Full opinion text
OPINION PATRICK E. CARR, District Judge. This matter came before the Court for trial without a jury on the issue of liability only. The Court now rules as follows. To the extent the following findings of fact constitute conclusions of law, the Court adopts them as such; to the extent the following conclusions of law constitute findings as fact, the Court adopts them as such. This is a general average case under maritime law. Shell seeks a general average contribution from Placid for expenses in degrounding Shell’s tanker DIALA during a voyage in June 1983 when the DIA-LA grounded while carrying crude oil from Sullom Voe, United Kingdom to Placid’s facilities in Port Allen, Louisiana. Placid defends on three general grounds: first, Shell’s claim is barred by the admiralty doctrine of laches; second, Placid did not own any cargo on the DIALA at the time of the voyage when the DIALA encountered its difficulties; and third, the DIALA was unseaworthy when it began its voyage by being overloaded for travel on the Mississippi River and by having defective radar equipment. The Court rejects Placid’s first and second defenses and finds that the DIALA was not overloaded on this voyage. Concluding, however, that there was no general average act and alternatively that defective radar equipment from Shell’s poor maintenance had made the DIALA unseaworthy before its voyage and was a proximate cause of the grounding, the Court holds that Placid is not responsible for a general average contribution here. I. The plaintiff in this action is Deutsche Shell Tanker-Gesellschaft mbH (Deutsche Shell), a German corporation with its principal place of business in Germany. Shell International Marine Limited (Shellimar) and Shell International Trading Company (Shell Trading) are separate divisions of Shell International Petroleum Company Limited, which is a corporate affiliate of Deutsche Shell (collectively, Shell). At all material times, Deutsche Shell owned and operated the DIALA, an 800-foot long steam tanker built in 1966 and capable of carrying up to 70,000 tons of crude oil, and had the DIAL A under a long-term time charter to Shellimar. The defendant in this action is Placid Refining Company (Placid), a Delaware corporation with its principal place of business in Texas. Placid owns a crude oil refinery on the Mississippi River at Port Allen, Louisiana. A. The CFSA contract By the late 1970s, Shell had amassed one of the world’s largest fleets of oil tankers. Shell Trading was formed, among other reasons, to offer crude-oil transportation and trading services to non-Shell entities. Among the services Shell Trading developed were “Crude Freight Service Arrangements” (CFSAs). Under a CFSA, Shell would buy oil in one location from a party at some established price and then later, when the party was ready for delivery of the oil at a different location, would sell and deliver at the different location an equivalent quantity of oil to the party under the same established pricing system, with an additional agreed-upon rate for freight, with or without insurance at the party’s option. The oil that Shell would sell to complete a single CFSA transaction might or might not be the same oil that Shell had bought; generally, the oil Shell would buy passed into “the Shell system” for use by Shell or some third-party, and Shell would obtain another load of oil for delivery to the contracting party when the contracting party was ready for delivery. These contracts, which would generally apply over a six-month or one-year period, gave the contracting party a degree of flexibility in the timing between the production and delivery-for-refining of quantities of oil. Sometime in late 1979, David J. Fruin of Shell Trading telephoned Paul B. Wehner, Placid’s crude oil manager, to offer Shell’s CFSA services to carry oil cargo for Placid. The call was successful. Shell Trading and Placid entered into a series of six-month or one-year term CFSAs, all of which Shell drafted. For the portion of the CFSAs whereby Placid would buy back the oil from Shell, Placid always agreed that it, and not Shell, would obtain insurance for Shell’s carriage of such cargo. That is, Placid chose to buy the oil back on C & F terms, and not on CIF terms. Over time, market conditions changed in the oil industry, and Placid and/or Shell no longer wanted to continue the CFSAs on an extended basis. Thus, by at least the beginning of 1983, the parties did not renew in effect any CFSA. The parties did not, however, intend to cease doing business. In January 1983, they agreed to a proposed “blanket” CFSA (to be completed with details on price, quantity, and time) for possible later use. Around May 9, 1983, Wehner of Placid telephoned Fruin of Shell Trading to hire Shell’s services for the transportation of a single load of crude oil from Sullom Voe, Shetland Islands, United Kingdom to Placid’s refinery at Port Allen, Louisiana. Rather than use a voyage charterparty more typical for a spot contract for the carriage of a single shipment of cargo, Fruin suggested to use the proposed CFSA from January as the basis for the governing terms, notwithstanding that the CFSAs were designed for term, and not spot, contracts; Fruin agreed. The parties reached an agreement by telephone on May 10, 1990. The following day, Fruin sent a telex, which reads in whole: We confirm telecon Wehner/Fruin on May 10th in which we agreed a spot fixture under the C.F.S.A. arrangements between us whereby we shall purchase from you F.O.B. Sullom Voe 60000 tonnes plus/minus 5 percent Brent Blend and sell to you C and F Port Allen 60000 tonnes plus/minus 5 percent. The C and F price will include a freight component equivalent to 47 points of the worldscale basic rate from Sullom Voe to Port Allen. The parcel of crude is available for loading ex Sullom Voe May 21-23 and we intend to load this parcel on the DIALA due Sullom Voe May 21 and due Port Allen June 7th. Owing to the 40 foot fresh water draught in the Mississippi, the DIALA will not be able to load anything much in excess of 60000 tonnes. Secundo. We have amended the C.F.S.A. terms handed to you on 14th January 1983 as follows, in order to reflect the agreed conditions for this particular spot purchase and sale: [Sets forth enumerated changes to five clauses]. All other clauses and subclauses remain unchanged. Tertio. We are very pleased to have arranged this business with you and look forward to when we may resume our cooperation on a term basis. We request your telexed advice that you agree to all the above. See Exh. PI, at 2-3. Concurring in the confirmation, Wehner sent a reply telex, which reads in whole: We hereby agree to the C.F.S.A. terms as stated in your telex of 11 May 1983, whereby Shell International Trading Company lifts 60,000 tonnes of Brent crude oil from Sullom Voe terminal 21-23 May on vessel DIALA for delivery to Placid Refining Company at Port Allen, Louisiana. See Exh. Pl(l). Soon thereafter, Fruin mailed Placid a written CFSA, effective May 10, 1983, to reflect fully the terms of the parties’ contract; both Shell Trading and Placid signed this CFSA, which, like all the earlier CFSAs, Shell Trading had drafted. This CFSA contains the following pertinent terms: WHEREAS it is agreed as follows that in order that Shell [Trading] may effect a complete freighting service on behalf of Placid for the shipment of the latter’s Brent blend crudeoil from Sullom Voe, U.K. to Port Allen, Louisiana, USA, Shell will purchase Placid’s availability of Brent blend crudeoil FOB Sullom Voe and will sell to Placid an equal quantity of the same grade of crudeoil C & F Port Allen. DEFINITIONS For the purposes of this Agreement the terms “Buyers” and “Sellers” and “Oil” shall be defined as follows Sellers: —The selling party, either Shell or Placid as the case may be. Buyers: —The buying party, either Shell or Placid as the case may be. The Oil: —Brent blend crude oil TYPE, QUANTITY AND PERIOD OF DELIVERY 1.(1) Placid shall sell and Shell shall purchase 60,000 tonnes of the oil plus or minus 5 per cent for shipping operational purposes FOB (free on board) Sullom Voe in one parcel. (2) Shell shall sell and Placid shall purchase 60,000 tonnes of the oil plus or minus 5 per cent for shipping operational purposes C & F Port Allen in one parcel. PRICE 4.(1) Subject as hereinafter provided Shell will pay to Placid for each barrel (of 42 U.S. Gallons) of clean oil ... purchased by Shell under this Agreement, a price equivalent to the British National Oil Company’s official Selling Price ruling on the day on which loading of the parcel was completed FOB Sullom Voe____ (2) Subject as hereinafter provided Placid will pay to Shell for each barrel (of 42 U.S. Gallons) of clean oil ... purchased by Placid under this Agreement, a price equivalent to the British National Oil Company’s official Selling Price for the Oil ruling on the day on which loading of the parcel was completed FOB Sullom Voe ..., plus a freight component equivalent to 47 points of Worldscale applicable as at 1st January, 1983 for the voyage Sullom Voe to Port Allen. PAYMENT 6.(4) Depending on the circumstances prevailing for each individual shipment, payment will be required by either of the two following methods: (ii) In instances where Shell loads Placid’s oil and takes the aforesaid oil direct to Placid’s requested post of discharge the FOB invoice issued by Placid can be “offset” against the C & F invoice issued by Shell thereby resulting in a “net-out” payment of freight only, being payable by Placid on the due date according to conditions in Clauses 4(2) and 6(1) [on place of payment by Placid to Shell]. PASSING OF PROPERTY & RISK 7.(1) The oil loaded under this Agreement shall be at the risk of the Buyers as soon as it passes the vessel’s permanent hose connection at the port of loading. (2) For the oil sold C & F by Shell to Placid the oil shall be insured by Placid at Placid’s expense and such expense and such insurance shall cover the period from the time when the risk passes until arrival of the oil at destination and shall be covered by a standard Lloyd’s Marine Insurance Policy with Bulk Oil Clauses and Institute War, Strikes, Riots and Civil Commotion Clauses attached. (3) For the oil sold FOB by Placid to Shell the oil shall be insured by Shell at Shell’s expense and such expense and such insurance shall cover the period from the time when the risk passes until arrival of the oil at destination and shall be covered by a standard Lloyd’s Marine Insurance Policy with Bulk Oil Clauses and Institute War, Strikes, Riots and Civil Commotion Clauses attached. (4) Property in the oil loaded under this Agreement shall pass to buyer when loaded vessel reaches 400 miles outside of UK territorial waters or immediately prior to the entry of the vessel into the territorial waters of the country where the discharge port is located; whichever is the sooner. NOMINATION PROCEDURE 8.(1) On or before the 1st day of each month Placid shall advise Shell of their loading requirements for the following month and their arrival requirements in the form of:— v) Instructions regarding the make-up and disposition of Bills of Lading and other documentation required for the port of discharge____ Documentation procedures are detailed in Appendix ‘B’ attached hereto. ACCEPT AN CE/SUBSTITUTION 9.(1) The acceptance by Placid of a nomination [of a vessel] made by Shell under Clause 8 hereof shall operate to effect between Shell as Owners and Placid as charterers a chartering of the nominated vessel on the terms and conditions of the “Shellvoy 4” Charter Party. See “Appendix C”. In the event of any conflict between “Shellvoy 4” and this Agreement, then the provisions of this Agreement shall prevail. DISPUTES AND JURISDICTION 26.(3) This Agreement shall be construed and take effect in accordance with English Law. (5) An obligation under this contract shall not apply if and to the extent that it is incompatible with mandatory provisions of law applicable to the party in question. ASSIGNMENT 27.(1) Shell shall have the right at any time to assign to any Affiliate all or part of the rights and obligations to sell and deliver the oil in accordance with the terms of this Agreement, Shell remaining responsible for the fulfilment of the terms and conditions of the Agreement in accordance with paragraph (2) of this Clause. (2) Any such assignment shall be effected by notice in writing from Shell countersigned by the Assignee to signify its acceptance of the obligations under this Agreement. Upon the making of any such assignment, Shell shall remain bound as guarantors for due performance of the said obligations (as so accepted) by the Assignee. See Exh. PI, at 4-9, 17-18. Attached as Appendix B to the CFSA is an uncompleted typewritten form, which reads as follows: CARGO DOCUMENTATION (1) In instances where Shell loads oil and takes the aforesaid oil into the Shell ‘System’, Shell shall advise of the full cargo documentation required for the port of discharge, to enable to pass such documentation to supplier. For discharge ports in N.W. Europe, unless otherwise advised, Shell shall require to provide the following standard documentation:— CONSIGNEES: Shell International Trading Company DESTINATION: SPECIAL REQUIREMENTS: Certificate of Origin — To be endorsed by Local Chamber of Commerce. (2) In instances where Shell payback against (1) above an equivalent quantity and quality of oil at a different date, shall advise Shell of the full cargo documentation required for the port of discharge. For discharge ports, unless otherwise advised, shall require Shell, to provide the following standard documentation:— [none listed on form] (3) In instances, where Shell loads oil and takes the aforesaid oil direct to requested port of discharge, will advise their supplier direct of the necessary cargo documentation. See Exh. PI, at 21-22. Attached as Appendix C to the CFSA is an edited version of a standard “Shellvoy 4” voyage charterparty (May 1980 ed.), which in clause 32 contains the standard New Jason Clause and other standard provisions on general average: General Average shall be payable according to the York/Antwerp Rules, 1974, and shall be adjusted in London, but should the adjustment be made in accordance with the law and practice of the United States of America, the following clause, which shall be included or deemed to be included in all bills of lading issued pursuant to this charter, shall apply: In the event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the Carrier is not responsible, by statute, contract or otherwise, the cargo, shippers, consignees or owners of the cargo shall contribute with the Carrier in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred and shall pay salvage and special charges incurred in respect of the cargo. If a salving vessel is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving vessel or vessels belonged to strangers. Such deposit as the Carrier or its agents may deem sufficient to cover the estimated contribution of the cargo and any salvage and special charges thereon shall, if required, be made by the cargo, shippers, consignees or owners of the cargo to the Carrier before delivery. See Exh. PI, at 30, lines 385-398. According to Fruin, this CFSA was the sole contract between Placid and Shell during 1983. Pursuant to the parties’ agreement, Shell Trading nominated the DIALA to carry the cargo and made arrangements for the loading of the DIALA at the Sullom Voe terminal. On May 21,1983, the DIALA completed loading 58,548 metric tons of Brent blend crude oil ready for carriage to Port Allen. On that same day, the DIALA’s master at the time, Rüdiger Schatzel, issued a bill of lading for the cargo at Sullom Voe. The bill bears the preprinted title “SHELL BILL OF LADING/Printed October 1979.” The bill’s first line contains the preprinted entry “SHIPPED in apparent good order and condition by” and is followed by the typed-in entry “SHELL UK LTD FOR ACCOUNT SHELL INTERNATIONAL TRADING CO.” The bill then provides for the cargo “to be delivered ... unto TO ORDER PLACID REFINING CO or order.” The reverse side of the bill contains the same preprinted general average provisions as are quoted above from clause 32 of the Shellvoy 4 charterparty. See Exh. P2. Neither Shell nor Placid ever obtained insurance for this load of oil. B. The radar Because the DIALA is a self-propelled “vessel of 10,000 gross tons or more,” it is required by Coast Guard regulations to have two “marine radar system[s] that operate] independently of” each other (that is, “two completely separate systems”), at least while it is operating on the Mississippi River. Compare 33 CFR § 164.35(a) and id. § 164.37(a) with 33 U.S.C. § 1223(a)(3) and 33 CFR § 164.01(a). See also International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974), ch. V, reg. 12(h) (same), reprinted in 6B BENEDICT ON ADMIRALTY Doc. 14-8, at 14-392 (6th ed. 1991). 1. The equipment In 1973, Shell had two such independent radar units installed on the DIALA: a Raytheon/Selenia RM 10-centimeter S-band model (10-cm unit) and a Raytheon/Selenia TM 3-centimeter X-band model (3-cm unit). In June 1982, Shell had the 10-cm unit’s display screen equipped with a Prora ARPA (automatic radar plotting aid). At least when functioning properly, these two units satisfied these Coast Guard regulations. The DIALA’s two radar units are similar in design. Each has a 16-inch display screen on the bridge: the 10-cm’s display is located up front just behind the windows facing the bow, while the 3-cm’s display is located further aft. See generally Exh. P7 (sketch of bridge layout). Each display leads to an MTR (modulator/transmitter/receiver) unit in an adjoining room; in this room as well is a generator for each unit. Connecting to the 10-cm MTR unit is a coaxial cable that leads up to a 12-foot long antenna array unit on the mast atop the bridge. Connecting to the 3-cm MTR unit is a hollow metal “waveguide” that leads up to another, shorter-in-height 12-foot long antenna array unit on the same mast. The antenna array covers are made of fiberglass. Because the antenna unit must make 360° sweeps, the antenna base contains rotary ball bearings above and below the actual array unit. See generally Exh. P27, figure 6 (schematic of 3-cm antenna unit). Service repair reports for 1980-1981 show that, at least at that time, the 10-cm unit had a time meter that measured the number of hours the unit was turned on. See Exh. D3(2), (16), (19), (21), (25), (26), (29). Based solely on his inspections of other tankers and other classes of ships in general (and apparently not on any time meter readings on or records from the DI-ALA), Shell’s radar expert, Tom Stakelum, estimated that the DIALA’s use of the 3-cm radar unit averaged between 1500 and 2500 hours per year. See Tr. 111:79— 80. A simple, layman’s explanation of certain of the radar units’ components is helpful. A modulator sends power to a magnetron, which converts the power to dense RF (radio frequency) energy for transmitting out the radar unit. This RF energy passes through a T/R (transmitter/receiver) cell and then, for the 3-cm unit, through a waveguide (and, for the 10-cm, unit through a coaxial cable) to the antenna array, where the RF energy is transmitted into the atmosphere. A small fraction of this transmitted energy returns, or echoes, back to the antenna and back down the waveguide (or coaxial cable) again. The same T/R cell then directs this much weaker returning energy into receiver mixer crystals; the T/R cell is designed and is able, when functioning properly, to prevent the stronger, outgoing RF energy from passing through and thereby damaging these delicate mixer crystals. A klystron sends another, “base line” RF signal into the mixer crystals. “Mixing” these two incoming signals, the mixer crystals produce useful electronic information, which is then finally sent to the display unit. The modulator, magnetron, T/R cell, mixer crystals, and klystron are all components of the MTR unit. There are generally two types of T/R cells used for 3-cm radar units: the older 1B63B type and the newer, interchangeable VDX-1047S type. See Tr. 111:75-77; Exh. P26(B), at 5-12. The operator’s manual states that the newer type has a 5000-hour average life expectancy (ALE); while not stating the older type’s ALE, the manual indicated that the newer type’s ALE is longer than the older type’s. See ibid. The manufacturer of the newer type lists its average minimum life expectancy as 2000 hours. See Tr. 111:78. According Mr. Stakelum, what these two figures mean is that the newer type can be expected to remain operational for any period of time between 2,000 and 5,000 hours of radar use. See Tr. 111:78-79. He added that, unlike the older type, the newer is susceptible to possible damage by electrical storms. See Tr. 111:77. He also testified that it was “industry practice” to replace T/R cells on failure, and not earlier unless a technician by chance through testing with a volt meter finds “they’re in danger of imminent failure.” See Tr. 111:80-81; see also Jens Pedersen’s Depo., R.Doc. 39, at 32 (Pedersen:**). He qualified his statement, however, by adding that a technician may replace a T/R cell without evidence of damage if he knows that it has had over 5000 hours of use. See Tr. 111:81-82. When a radar unit is not functioning properly, a white spot may appear on the center of the display screen and render the unit unfit for use. There are various sources for this problem: a defective magnetron, a defective modulator, blown or defective mixer crystals, possibly a defective klystron, or water ingress into the waveguide. See Tr. 111:68-69. According to Michael St. Romain, the radar service technician who repaired the 3-em unit on the voyage at issue here, a white spot on the display screen “usually” indicates the presence of water in the waveguide. See Tr. IV:58. According to Jens Pedersen, the young radar service technician who had inspected both units in 1982, a center spot “normally” means a faulty T/R cell. See Pedersen:141. Captain Schatzel testified that service technicians on board over the years had told him that “a bright spot in the middle of the display was pointing to some water having entered the waveguide of the radar.” See Tr. 1:95. Another possible problem a radar unit may have is a weak display picture. The evidence identifies just two causes of this second problem: either a malfunctioning magnetron or water in the waveguide. See Pedersen:121; cf. Tr. 111:100. A defective klystron may damage the receiver mixer crystals. See Tr. 111:56. But imminent damage is not inevitable: Mr. St. Romain’s report, set forth on page 33 below, shows that, just after he installed new crystals, he installed a defective klystron that did not cause the new crystals to blow out. When a T/R cell fails so that it does not distinguish between the high power transmitting RE energy and the much lower power returning RF energy, this transmitting energy may pass directly into the receiver mixer crystals. For such T/R cell failures, the mixer crystals will blow out immediately. See Tr. 111:55; IV:64. When the sole problem is a T/R cell failure accompanied by a mixer crystal blow-out, a small white spot no bigger than a 25$ or 50$ coin will appear on the center of the display screen and the rest of the picture on the screen may disappear. See Tr. 111:55; IV:64-66. Water is a constant concern. See Tr. 111:67. When water is present in the waveguide, it may act as an unwanted, premature, close-range reflector for much of the strong transmitting RF energy. While not entirely clear, Mr. Stakelum appears to suggest that reflected RF energy caused by water in the waveguide “can pass through” the T/R cell without damaging it but still damage the mixer crystals. See Tr. 111:100. As little as a few drops of water (1-2 cc) can cause a white spot in the center of the display screen. See Tr. IV:58-59, 116. Depending on the amount of water in the waveguide, this spot “would be considerably larger” than the small spot that appears from the mere failure of a T/R cell and a mixer crystal. See Tr. IV:66; see also Pedersen:129 (“a big center spot” from water); cf Tr. 111:99— 100. There are generally three sources for water ingress into the waveguide: through flanges or seams on the waveguide, through the front or edges of the fiberglass scanner array unit (to which the waveguide connects), and through the rotary ball bearing components just above or below the scanner. See Tr. 111:65, 98; IV:59, 133. Because the antenna cover is continuously exposed to the harsh elements of the maritime environment, it may become soft and porous over time or otherwise in need of fiberglass recoating to prevent water leakage into the waveguide. See Tr. 111:96-97; cf Tr. IV:59. If enough water enters the waveguide and travels down into the MTR unit, then this standing water generally affects the magnetron and modulator first; apparently, however, standing water does not itself cause a T/R cell to fail, see Tr. 111:67-69. According to Placid’s radar expert, Mr. van Wyck, if only a small amount of water enters the waveguide while the transmitter is emitting RF energy, this water may dissipate within minutes from the heat generated by this energy. See Tr. IV:121. According to Mr. Pedersen, it takes several hours for water to boil off this way, see Pedersen:129-130; it is unclear, however, how much water he was considering for his statement as being initially inside the waveguide. In 1973, the DIALA was also equipped with an interswitch device, which permits the antenna and MTR unit on one radar system to be operated with the display unit of the other. See generally Exh. P27, figures 1-2 (schematic drawings of the inter-switch). To change from the regular mode (i.e., where the 10-cm/ARPA display operates solely with the 10-cm MTR unit and antenna, and the 3-cm display operates solely with the 3-cm MTR unit and antenna) to a crossed mode (i.e., where the 10-cm/ARPA display operates instead with the 3-cm MTR unit and antenna, and the 3-cm display operates instead with the 10-cm MTR unit and antenna), both systems must be turned off for at least three minutes. See Wolfgang Born’s Depo., R.Doc. 42, at 33, 89-90 (Bormxx); Pedersen:39. This interswitch device is rarely used; none of the DIALA’s crew had ever operated the interswitch device before the voyage here. See Tr. 1:82; Rüdiger Thrun’s Depo., R.Doc. 43, at 30 (Thrumxx). Inside (or near, cf Pederson:lll-112) at least a portion of the interswitch unit are printer circuit boards (PCBs). According to Mr. van Wyck, the contacts for PCBs should be checked for tightness of fit and cleaned as necessary. See Tr. IV:122-123. He suggested that the operator’s manual provides for such checks, see Tr. IV:123, but added that a check “is an ad hoc event rather than a periodic or scheduled event,” see Tr. IV:125; see also Tr. 111:41. Under the caption “Connectors” in the section on “Preventive Maintenance,” the manual for the 10-cm unit provides: “Check fastness ... of PCB connectors.” See Exh. P26(a), at 5-1. According to Mr. Stakelum, if as here a PCB relay is sealed in a contact case, the relay cannot be visually inspected before its failure. See Tr. 111:40-41. Based on the slim evidence here, however, the Court must reject Mr. Stakelum’s inference that it is impossible to inspect the relays before their failure: if, as Mr. Stakelum suggests, a serviceman can open the contact case and replace such a relay after its failure, then the Court would need more evidence than was presented here in order to find that a serviceman cannot also open the contact case beforehand merely to inspect the relay; in other words, there is no basis to infer — as Shell would — that opening a contact case for inspection may itself cause damage. 2. Shell’s maintenance and repair policy The manufacturer’s Operators and Simplified Field Service Manuals, which were kept on the DIALA, see Tr. 1:64, contain the same recommendation in a blocked-off “WARNING” box: “All work[s] performed on the radar must be carefully recorded on the radar log book.” See Exh. P26(A), at 5-1 (for the 10-cm unit); Exh. P26(B), at 4-1 (for the 3-cm unit). Notwithstanding this strong recommendation, Shell did not have the DIALA’s crew keep a radar log book until 1986, when the DIALA was reflagged under a Liberian flag and thus was required under Liberian regulations to carry such a log. See Tr. 1:34, 66; 11:40, 51. Surprisingly, Martin Buck, a Shell superintendent in charge of the overall maintenance of Shell’s many vessels including the DIALA, denied any manufacturer’s recommendation for keeping such a log, see Tr. 111:9, and Captain Schatzel had been unaware of any such recommendation, see Tr. 1:66. Captain Schatzel stated that it would be prudent marine practice to maintain such a log. See Tr. 1:66-67. Other officers unequivocally agreed that a manufacturer’s recommendations should be followed, see Thrun:44; Born:98, as did both radar experts, see Tr. 111:105; IV:110. Superintendent Buck agreed that such recommendations should be followed “in principle.” See Tr. 111:10. Placid presented uncontradicted expert testimony that it is standard in the maritime shipping industry to maintain such radar logs on a vessel. See Tr. IV:76. Shell did, however, have the DIALA keep certain limited records relating to radar maintenance and repair. Specifically, in a Gerátetagebuch (equipment diary) aboard the DIALA were kept copies of service reports that outside technicians rendered whenever they would do any inspection, work, or repair on a radar unit. See Tr. 1:33; 11:22. When the vessel ordered actual repairs by an outside technician, a crew member would generally direct the technician to this book so that the trained technician could better learn what work or trouble earlier technicians had had. Until a separate radar log was also maintained beginning in 1986, this book was the only written record aboard the DIALA of what work had been done on the radar units and of what parts had been replaced. See Thrun:8. It was the duty of the captain and the equipment officer (who at the time was Stephan Schuster, a Shell employee who did not testify) to keep this book complete. See Tr. 11:40. It was Shell’s apparent policy or at least practice, however, that small items such as a fuse replacement by a crewmember were not recorded in this book. See Tr. 11:3; 111:11. Thus, service technicians might not know about any such replacements — or about any new problems or whether any prior described problems were continuing — unless the captain or equipment officer orally advised the technician. Cf. Tr. 111:12; Thrun:36. Thus, whenever there would be a crew change between the DIALA’s permanent and relief captain or equipment officer (such as in April 1983, when Captain Schatzel relieved Riidiger Thrun, the DIA-LA’s permanent master at the time), such oral advices might be second-hand. As Captain Thrun’s testimony that, on his return, all he was told was “that both sets are working” shows, see Thrun:50, this word-of-mouth system is far from perfect. The DIALA’s crew lacked technical training and expertise in the maintenance and repair of radar equipment. For example, the crew could not read the wiring diagrams in the manufacturer’s radar manuals. See Thrun:46; cf. Tr. 1:79-80; Thrun:38. The crew relied on expert service technicians to do any repairs, beyond perhaps replacing simple fuses. See Tr. 11:4-5; Thrun:8. There is, however, no evidence that other vessels generally have or should have a crewmember with technical radar skills. The manufacturer’s operations manuals set forth at least three steps for “routine maintenance” on each unit: (1) each month, someone should check that the antenna cover has not been painted, check the oil level for antenna motor and add oil as necessary, listen to the antenna for abnormal noises, and clean the air filters; (2) every year, the oil in the antenna pedestal should be changed; and (3) “[e]very two years or 5000 hours of operation the Antenna should undergo a general overhaul and lubrication.” See Exh. P26(A), at 5-2 to 5-4; P26(B), at 4-3 to 4-6. The manual for the 3-cm unit contains the following elaboration for this biannual overhaul: During overhaul all ball-bearings and oil seal rings should be replaced; this will ensure reliable operation for the next two years. The overhaul of the antenna base requires the unit to be removed from the mast and brought to a workshop. See Exh. P26(B), at 4-6; see also Exh. P26(A), at 5-4 (very similar elaboration in the 10-cm manual). To complete this overhaul takes a few days. See Tr. IV:81; cf. Pedersen:162-163. With no explanation why, Mr. Stakelum suggested he disagreed with this last recommendation. See Tr. 111:104-105. Mr. Pedersen testified that the manufacturer instructed him (and others at a seminar the manufacturer had given in late 1981) not to overhaul antennas on any fixed time schedule, see Pedersen:46-50; he further explained, however, that he has had no training in bearing repairs and that his firm does not perform antenna overhauls but instead directs such overhauls to the radar manufacturer, see Pedersen:125, 162; also, it is unclear whether this instruction to him concerned just newer antenna models, cf. Pedersen:49, or just persons untrained in antenna overhauls. The DIALA’s equipment officer would perform the recommended monthly check. See Born:59-61. He would not, however, open up either unit for checking any components inside. See Born:100. It is unclear what written notation, if any, would be made concerning these inspections. There is no evidence that annual oil changes were ever performed by either a Shell employee or an outside radar serviceman. See Tr. IV:112-113. Every three months, the chief officer would prepare a quarterly report that was sent to Superintendent Buck’s office in Hamburg. In preparing the report’s entry on the radar equipment, the chief officer would meet with the radar equipment officer in order to notate any problems or repairs that the radar units had had any time since the last quarterly report. See Tr. 11:22; Born:56-57. Like copies of the service reports themselves, these reports are sent to Superintendent Buck’s office. See Tr. 11:66-67. Captain Thrun testified that any problems, repairs, or work at any time during the three-month period are to be notated in this report. See Thrun:32, 57-58. Unobjected testimony about the entries in certain earlier quarterly reports, see Tr. IV:78, corroborates the captain’s testimony. So does the entry in the December 1982 quarterly report in the record: “keine Storungen seit der Werft” (which the witnesses translated: no problems, or failures, since the shipyard, or drydock). See Exh. P25(A), entry 33, at 6; see also Tr. 11:39, 67; Thrun:32; Born:57. Thus, the Court specifically rejects Superintendent Buck’s self-serving testimony that only “unsolved” problems be notated in these reports. See Tr. 11:67. Shell’s witnesses testified that the DIA-LA underwent a drydock overhaul about every two years and, specifically, had undergone such in February 1990 and August 1982; they implied that the radar units themselves were specifically overhauled during these drydocks. See Tr. 11:59-60, 63-65; Thrun:31. On cross-examination, however, Superintendent Buck admitted that he only assumed that the last overhaul of the radar antennas was in February 1980 and that he had no independent documentation or other information that they were in fact ever taken down any time between February 1980 and the voyage at issue here. See Tr. 111:23-25. Chief Officer Wolfgang Born characterized the radar’s bi-annual service call as no more than “a general checkup.” See Born:63. Further, Shell introduced no testimony that it had requested, or the antenna units otherwise underwent, any such overhauls at any time before 1980. Finally, even considering the possible request in January 1980 for an antenna overhaul, the service reports for the February 1980 drydocking do not clearly indicate that either antenna was in fact taken down and overhauled at that time, see Exh. D3(4); indeed, the March 1980 service report described three paragraphs below strongly suggests the contrary. During these bi-annual drydockings, the DIALA underwent a classification survey by the German Hydrographic Institute. As part of the survey, the surveyor gives each radar unit an operational check and, if the unit appear to function properly, applies a certification sticker to the unit. See Tr. 1:32, 64; 11:65. There is no evidence, however, that these surveyors have technical radar expertise, open up the radar components, are shown the Geratetagebuch, perform a visual or aural check of the antennas above, or are told about any problems either unit may have had since the last classification survey. 3. The radars’ repair and maintenance history Superintendent Buck was unaware of any practice or recommendation to replace radar parts before they wear out. See Tr. 111:2. A March 1980 service repair report for the 3-cm radar unit noted “signs of rust and water ingress from the top bearing” and, despite the lack of continuing abnormal noises, recommended that this bearing be replaced as soon as possible. See Exh. D3(6). Yet Superintendent Buck was unaware of this report; he could point to no record that, at any time before the grounding, Shell had ever had this condition corrected or even specifically looked at, notwithstanding that Shell had had over two dozen service calls made on the radar units between the issuance of that report and the voyage here. Compare Tr. 111:3-5 with Exh. D3(7)-(42). As far as Captain Thrun knew, it was not until after the grounding that the bearing was ever replaced, or even that either antenna was ever taken down. See Thrun:78-79. In August 1982, as part of the DIALA’s bi-annual drydocking, a young Svensk Marin Radio AB radar serviceman, Jens Pedersen, inspected the radar units and, according to his service report (he had no independent recollection of this inspection, see Pedersen:80-81, 168-169), found no problems with the radar units other than with two receiver crystals, which he replaced. He did not, however, disassemble or overhaul the antennas. See Pedersen:162; Tr. 111:104. Further, Shell appears not to have specifically advised him, through the Geratetagebuch or otherwise, of either the earlier documented water-related antenna problem or any other problem whatsoever. See Pedersen:23, 75-76; cf. Thrun:18 (Captain Thrun was not present). For example, Shell appears not to have advised Pedersen that just the previous month a repairman had recommended that a component in the 10-cm display unit be replaced. Compare Exh. D3(37) with Pedersen:143-144. While he explained that his practice was to perform a “feel” test on the fiberglass antenna front if it visually appeared in disrepair, see Pedersen:142, he was never directly asked whether, and did not state that, he would always run his hand across the antenna front to determine whether it was porous or otherwise in need of repair for water leakage. Cf. Pedersen:53, 124. His whole inspection, which was for both radar units as well as for a directional finder device with which he was generally unfamiliar, lasted only five hours. See Pedersen:87-88. If he had been told about any intermittent or uncorrected problems, he would have kept the two radar units running for several hours in order for a more thorough inspection. See Pedersen:135-136. Between Mr. Pedersen’s inspection and the end of 1982, at least three service calls were made for the radar units. See D3(39) — (41). Yet in Chief Officer Born’s December 1982 quarterly report, he specifically noted no prior problems with the radar since the drydoeking. See Exh. P25(A), at 6. Superintendent Buck denied recalling any problems during this period. See Tr. 111:2. C. The voyage As quoted on page 765 above, Fruin’s May 10th telex indicated a “40 foot fresh water draught in the Mississippi.” On May 19th, Shell’s local New Orleans agent, Lykes Bros. Steamship Co., advised that, effective May 18th, the Bar Pilots (that is, the compulsory river pilots who operate at the mouth of the Mississippi up to Pilot-town) recommended a maximum loading draft of “39 feet” at Southwest Pass for vessels (like the DIALA) with a deadweight, or cargo-carrying, capacity less than 100,000 tons. See Exh. P4(3). Because Southwest Pass is at the mouth of the Mississippi River and has fresh water flowing out of it, the Court infers that this recommendation is for a 39-foot fresh-water draft. Telexes to Lykes Bros, confirm that the DIALA’s crew drew the same inference. See Exhs. P4(l)-(2). Shellimar in turn advised the DIALA’s crew to load the DIALA with as much oil for a 39-foot fresh-water arrival draft at Southwest Pass. See Tr. 1:38; 111:29. Calculating the amount of bunkers and potable water that the DIALA would expend on the trans-Atlantic portion of the voyage, Chief Officer Born calculated how much cargo the DIALA could take aboard in order to meet this safe arrival draft. See Born:69-70; Tr. 1:39; 11:5-7. On May 21, 1983, the DIALA completed loading 58,548 metric tons of Brent blend crude oil. See Exh. P2. Upon completion, the DIALA had a 38x/2-foot even-keel saltwater draft. See Exh. P5, at 51; Tr. 1:39; 11:6. This draft was sight-checked. See Tr. 11:6, 8. Captain Schatzel then advised Lykes Bros, by telex that the DIALA would be arriving at Southwest Pass with a 39-foot freshwater draft. See Exh. P4(l)(2). Around 5:30 p.m., about half an hour before the DIALA set off for Port Allen, First Officer Helmut Bork performed a quick operational check of various bridge equipment, including the two radar units. See Tr. 1:40-41; 11:24-25, 41. In the vessel’s movement book, he notated all the equipment was okay. See Exh. P6, at 13, at 17.30; Tr. 11:25. The trans-Atlantic portion of the voyage was uneventful. The weather was generally good, with occasional passing rain showers. See Born:18; see also Exh. P5, entries for 21 May 1983 to 4 June 1983, column 5. No one recalled any radar problems on the ocean voyage. See Tr. 1:42; 11:26; Born:17. However, the crew apparently kept the two radar systems on “stand-by” on most of this portion of the voyage. See Born:16. Upon nearing Southwest Pass, the actual amount of bunkers and water consumed was measured and the safe arrival draft computation was reconfirmed. See Tr. 11:6. These adjusted calculations computed a 38-foot sea-water draft just outside Southwest Pass. See Exh. P6, at 14, top entry; Tr. 1:42-43; Born:116. Because salt water is denser than fresh water, the DIA-LA’s 38-foot salt-water draft is equivalent to a 39-foot fresh-water draft. See Tr. 1:39. On June 5, 1983, around 1:50 a.m., the DIALA picked up the first of three compulsory river pilots, New Orleans Bar Pilot Wayne Cucullu. Around 2:17 a.m., the DI-ALA entered the Southwest Pass of the Mississippi River and proceeded up the river. At the time, the river was in high, flood water stages and had a swift current around 6-7 knots. See Tr. IV:16-17. Sometime thereafter, a “vibration” went through the DIALA. Because Officer Bork was not yet on duty for his 4-8 watch, see Tr. 11:26-27, the Court determines that this vibration occurred before 4 a.m. Chief Officer Born estimated that the vibration lasted around two minutes; while he characterized it a “stronger” vibration, he gave uncontradicted testimony that such vibrations were not unusual in shallower waters. He attributed the vibration to the DIALA’s passing over a shallower patch in the water course. See Born:19-20; 75-76. Similarly, Captain Schatzel attributed it to a change in the DIALA’s underkeel clearance from deeper to shallower waters. See Tr. 1:45, 76. According to Captain Schatzel, Pilot Cucullu used the slang expression “scraping barnacles” in connection with this vibration. Captain Schatzel understood the expression to mean that “there was some silt or something underneath” that was “knocking barnacles off of the bottom of [the] keel.” See Tr. 1:76. During this vibration, Captain Schatzel was standing at the 10-cm dispute unit, when “suddenly the picture went off.” See Tr. 1:45. Thereafter, he turned off the entire 10-cm unit and turned on the 3-cm unit, which had been switched to “stand by” when Pilot Cucullu came aboard. See Tr. 1:46, 74, 77. Around 5:10 a.m., the second compulsory pilot, Crescent River Port Pilot Charles Ciasen, took Pilot Cucullu’s place. Around 5:45 a.m., Captain Schatzel radioed Lykes Bros, for service repairs on both units; according to him, the 3-cm picture had a “weak picture.” See Tr. 1:47-49, 83-84; Exh. P8. For no reason explained in the record, no serviceman came aboard any time later that day. Around 2:50 p.m., the third and final compulsory pilot, New Orleans and Baton Rouge Steamship (NOBRA) Pilot Louis Lahners, took Pilot Clasen’s place. It is disputed whether Captain Schatzel advised Pilot Lahners at that time that the 10-cm radar unit was not operating. Compare Tr. 1:50, 77 with Tr. IV:29-30, 40, 54. Captain Schatzel himself admits, however, that he made no mention about the 3-cm radar unit’s weak picture. See Tr. 11:11. In any event, because of the relatively good visibility as late as 5:00 p.m., the crew was not using the 3-cm unit at that time. See Born:78. Around 6:00 p.m., as the DIALA was rounding St. Rose Point, Pilot Lahners spotted an approaching squall. Compare Tr. IV:18 with Exh. P6, at 15 (indicated Mile Marker 119 at 17:52) and Exh. P13(b). Pilot Lahners asked Officer Bork to turn on the radar. See Tr. 11:30-31, 45; IV:18. Officer Bork went aft, presumably to turn on or adjust the 3-cm unit. See Tr. IV: 19. Preferring to stand near the windows at the front of the bridge, cf. Tr. 11:46, Pilot Lahners did not yet go aft to the 3-cm display unit. Around twenty minutes later, as the DI-ALA was approaching the Luling Bridge, Pilot Lahners made a passing agreement with a downbound tug carrying a tow around 400 feet long. See Tr. IV:20, 23. Just after the DIALA passed under the bridge, the squall overtook the vessel and visibility became bad. Pilot Lahners asked to see the 10-cm display. See Tr. IV:20. Officer Bork stated that the 10-cm unit up front was out, but advised that Pilot Lahners could use the 3-cm unit in the back. See ibid.; Tr. 11:31. Pilot Lahners went back to the 3-cm unit where Captain Schatzel was adjusting various knobs. See Tr. 1:51; 11:31; IV:20. According to Captain Schatzel, the picture had considerably worsened from the morning. See Tr. 1:51. When Pilot Lahners looked at the screen, the picture had faded out completely; he saw nothing more than a small white dot in the center. See IV:20, 34; Exh. D8, at 1. Pilot Lahners immediately radioed the downbound tug that all radar was out and that he had lost complete eyesight of the tug and tow; he thus urged the tug to try to keep as far away as it could. See Tr. IY:21. Luckily, through Pilot Lahners’s deadreckoning skills in this in extremis situation, no collision occurred. The blinding squall passed within a few minutes, see Tr. 1:53; 11:32, IV:21, but the radar remained out. The general overcast/rainy weather remained similar, with intermittent light showers the rest of the evening. See Tr. IV:23; Born:27, 35; Exh. P5, June 5th entry, column 5 (“o/r,” standing for overcast/rain, at 20:00 and 24:00). None of the witnesses testified that he saw lightning or heard thunder any time during this squall or at any other time. Pilot Lahners was uneasy and upset by this uncontrollable near-miss. See, e.g., Tr. 1:54; 11:33; IV:21-22. He blamed the crew for what he perceived as their not telling him earlier that both radars were out. In the journal he carried on the vessel, he wrote: “Both radars inoperatable [sic]. Captain & mate told me they were working. Near collision because they lied.” See Exh. D9; Tr. IV:31. Within minutes of this encounter, compare Tr. IV:24 with Exh. P6, at 16 (passing Buoy 123A, across from 26 Mile Point, at 18:37) and Exh. P13(c), Pilot Lahners radioed the Coast Guard to advise that both radars were out and that he would seek to anchor the DIALA at the next open fleeting area. See Tr. 1:54; IV:24. Because the Bonnet Carré Spillway was open to release high waters from the river, the Bonnet Carré Anchorage was closed. See Tr. IV:25. The next open one was the LaPlace Anchorage, near Mile Marker 135. See ibid.; Exh. P13(d). Some time later, e.g., Tr. 1:54, Captain Schatzel called Chief Officer Born to the bridge to try to use the interswitch unit, which — to repeat — they had never used before, see Tr. 1:82. After two or three attempts, the two managed to obtain a picture by interswitehing the 10-cm antenna and MTR unit with the 3-cm display unit. See 1:54-55, 81; Born:31-33, 88-91. The display was good, see Born:34, 94; Tr. 11:36; Captain Schatzel testified that the picture was “brilliant” and “better than the one before,” when he had seen it in the early morning, see Tr. 1:55, 60. Around 7:50 p.m., as the vessel was rounding Mile Marker 130 at 35 Mile Point, Captain Schatzel informed Pilot Lahners about the inter-switching. Compare Exh. P6, at 16 (entry for 19:51) and Exh. P13(d) with Exh. D8, at 2. Pilot Lahners looked at the screen and confirmed that the display appeared good. See Tr. 1:56; 11:36; Exh. D8, at 2. Concerned about the safety of the DIALA and other vessels, see Tr. IV:50-51, he nonetheless still insisted on anchoring, see Tr. 1:56; 11:36; IV:50; Born:112, 119. At 8:48 p.m., the Coast Guard sent a telex to Lykes Bros, for forwarding to the DIALA. The telex reads in pertinent part: It has been reported that your vessel is operating in U.S. waters with only one of the two installed radars operable. Federal Regulations 33 CFR 164.37 require two operable marine radars on your vessel. The Captain of the Port, under authority of 33 CFR 160.111 orders your vessel not to depart the Port of New Orleans. This deficiency must be corrected and the Captain of the Port advised of the repairs or installation prior to your vessel’s departure from the Port of New Orleans via Easy Link Telex 701801 (USCG NOLA). Additionally, should your one radar fail to operate properly, the movement of your vessel will be restricted to daylight hours only, with a visibility of at least two miles____ See Exh. P9. The Court rejects Shell’s inference that this telex was in essence a confirmation of a conversation between the Coast Guard and Pilot Lahners. Not only does the telex make no mention of Pilot Lahners, but also the DIALA was almost twenty miles, if not more, upriver from New Orleans by the time Pilot Lahners radioed the Coast Guard, and the sky is always already dark around New Orleans at 8:48 p.m. in the first week in June. Further, Shell produced no documentary evidence, from either the DIALA’s or Lykes Bros.’ files or otherwise, that the contents of this telex were communicated to the DIALA’s crew by another telex or otherwise. See also Tr. 1:56-57, 70; 11:12. When the DIALA arrived at the LaPlace Anchorage around 9 p.m., the port anchor was dropped. Before the DIALA was positioned to drop its starboard anchor, the high water current of about six knots caught and swept the DIALA downstream out of control to Bonnet Carré Point, where the DIALA grounded at 9:40 p.m. During anchoring and until grounding, all orders were executed properly and there was no equipment failure. See Pretrial Order, R.Doc. 35, § 7(11), at 8. Extensive salvage efforts were undertaken, and the DIALA was finally refloated a week later on June 12th; it is the cost of these salvage efforts for which Deutsche Shell seeks general average contribution from Placid. Thereafter, the DIALA discharged the full cargo, undamaged, at Placid’s refinery at Port Allen by June 15th. No security was obtained from Placid, or anyone else, for the unconditional release of this cargo. D. The radar repairs on the voyage Sometime after the grounding, Captain Schátzel called for a radar service technician to repair the two radar units that night. At 2:00 a.m. on June 6th, Mr. Ben Kempf of ITT/Mackay (a division of ITT Telecommunications Corp.) came aboard; he remained aboard until 4:20 a.m. See Exh. D3(43); Exh. P6, at 18. Busy with refloating attempts when Mr. Kempf came aboard, Captain Schátzel simply asked Mr. Kempf “to do his best in repairing” both radars. See Tr. 1:89-90. Mr. Kempf did not testify. His work order contains the following entry (with just spelling errors corrected): arrived aboard ship; and found RADAR inoperative; tried interswitching transmitter and antenna unit but no success. checked radar indicator; and found no trigger to indicator traced problem to loss of trigger at interswitch pulled pcb [printer circuit board] cleaned contacts and replaced relay with ship’s spares; restored so SALSMAR 16" indicator [10-cm/ARPA display] to operation; checked all other positions of inter-switch. all normal, retuned transmitter 1645. operation normal. RAYTHEON 162 0-12 X RADAR; the transmitter is inoperative; all power supply voltages are normal; replaced blown receiver mixer crystals; but still no targets; replaced klystron with ship’s spare; crystal current appears normal at this time but still unable to tune, no other replacement parts are available, suspect both klystrons 2K25 are defective; because it was necessary to decrease crystal attenuation to achieve any reading of receiver mixer crystal current. No t/r cell replacement aboard ship; suspect water in waveguide or in array, disassembled waveguide at transmitter but no water there, removed waveguide from array to center of pedestal; but no evidence of water intrusion, will return tomorrow to finish repairs. Exh. P20-P21; D3(44). Despite his last comment, Mr. Kempf did not return; instead, his co-employee Michael St. Romain came aboard later that same day, when he succeeded in obtaining a 24-mile range picture on the 3-cm display, and returned the next day, when he treated both antenna units with a $24.50 fiberglass recoating kit. See Exh. P16; D3(45). His work order contains the following entry for his first visit on the vessel: Picture on radar showed signs of water in waveguide very weak picture and large spot in center. No evidence of water could be found down below. Removed scanner and inspected upper assembly. Some slight evidence of water was shown from scanner. The front of scanner in dire needed recoating. It is very porous and could get water inside during a severe storm. Recommend re-coating. Also noted that the top bearing is badly worn and should be replaced. Master requested that we obtain necessary parts and they will replace bearing. After reassembling waveguide parts a very slight improvement in picture was noted, but not enough. Changed defective TR cell and blown crystals. This improved picture further. Tuning of klystron cavity showed no change in picture. Changed klystron from ship’s spares. This improved picture further, now out to 6 miles. Made several other checks in TR unit with no help in picture. Changed out klystron with one from our kit. Tuned up radar now to have targets 24 miles. Exh. P16; D3(45). His entry for the second day was shorter: 6/7 Obtained necessary materials to coat scanners____ Arrived and coated both 10 & 3 cm scanners with fiberglass coating. Checked operation of both radars. Operation normal. Master request that rebuilding kit be sent to agents for them to install. Pedestal rebuild kit was not available from NPC. Exh. P17; D3(46). At trial, Mr. St. Romain gave two reasons why the top bearing for the scanner should be replaced: to prevent the turning mechanism from seizing up and to prevent water leakage. See Tr. IV:61. Mr. St. Romain attributed two causes for the loss of picture to the 3-cm unit he repaired: first, water intrusion; and second, “the T/R cell and klystron.” See Tr. IV: 62. Placid’s radar expert, Samuel van Wyck, expressed the opinion that preventative maintenance through ad hoc inspections and cleanings of the PCBs could have prevented the failure of 10-cm unit. See Tr. IY:123, 125. While admitting a lack of absolute certainty, he expressed the further opinion that water ingress through the scanner from its porous front and/or its unattended-to upper bearing was a probable cause of the 3-cm unit’s failure, see Tr. IV:133-134, and that an overhaul of the antenna unit would likely have corrected and prevented these water-related problems, see Tr. IV:124-125. Shell’s radar expert, Tom Stakelum, expressed the opinion that the defective relay causing the 10-cm radar unit’s failure could not have been detected beforehand. See Tr. 111:40-41. He believed that the 3-cm unit failed solely because its T/R cell had reached its useful life and that this failure would not have been reasonably discoverable beforehand; he added that the T/R cell’s failure was possibly hastened by an electrical storm. See Tr. 111:54-55. He believed that the 3-cm unit’s original klystron that Mr. Kempf had replaced was not defective. See Tr. 111:56. While admitting that the 3-em scanner was porous when the DIALA left Sullom Voe, see Tr. 111:106, he believed that water ingress was not a contributing cause of the 3-cm unit’s failure inasmuch as no MTR transmitter components were found damaged, see Tr. 111:69-70. In reaching his conclusion about the T/R cell’s age, Mr. Stakelum assumed that the cell was a VDX-1047S model. See Tr. 111:74-75. He based this assumption on the notation on a June 1982 service report indicating that a VDX-1047S T/R cell was replaced. See Exh. P24(A). But as the serial number on that report, compare, e.g., Exh. P24(A) with Exh. P24(D), the references to the Prora ARPA features, see Exh. P24(A), and the unobjected abstract for the report, see Exh. D3(35abstract), each confirm, that report concerned the 10-cm unit, and not the 3-cm unit. Thus, the Court finds that Mr. Stakelum’s assumption was in error. According to Mr. Stakelum, none of the other service records mention a replacement of a T/R cell for the 3-cm unit. See Tr. 111:77. When the DIALA was in Venezuela on July 8, 1983, a service technician inspected the 3-cm unit and on a service report wrote: “antenna not rotating.” See Exh. D3(47). When the DIALA returned to Germany at the end of the month, the antenna unit was replaced. See Exh. D3(49). Mr. Stakelum admitted that the top bearing for this antenna needed replacing. See Tr. 111:87. E. The proceedings Within ten days of the grounding, pursuant to the terms of both the CFSA and the bill of lading, see Exh. Pl(30), clause 32, lines 385-386; Exh. P2, clause 5, line 72, Shell appointed a London adjuster, Wm. Elmslie & Son, to issue a general average statement. See Exh. P29(II)(B). Correspondence between Shell and Placid reveals that Shell kept Placid advised of the progress of the general average adjustment. See Exh. P29(II) — (III). In November 1983, on a preliminary finding of the salvage expenditures and of the value of the cargo and the vessel, the adjuster requested that Placid make a $1 million deposit toward the general average claim. See Exh. P29(III)(F). Placid declined. Finally, on February 18, 1986, the adjuster issued its statement. See Exh. P28. On August 28, 1986, Deutsche Shell commenced this action against Placid in the federal district court in Houston. Thereafter, that court transferred the action to this Court under 28 U.S.C. § 1404(a). II.