Page 28 - Insurance Times December 2023

weakness was probably aggravated by the pounding of the a wear down of 30 percent or more of the original thickness
vessel in heavy weather, leading to cracking. However, on should be renewed.
her final voyage the weather does not appear to have been
exceptionally bad, and at no time did her officers report In this case, only a small section of the bulkhead near the
heavy pounding. It may be that after fourteen years of starboard lower corner of the bulkhead was renewed. There
carrying ore cargoes, and with little or no internal can be no doubt that the bulkhead between the
maintenance, the ship’s shell plating in this area could have Cumberland’s Nos. 1 and 2 holds was highly suspicious. The
worn thin and been severely fatigued. 6 footlong crack that appeared in this bulkhead on the ballast
passage from Japan to Tasmania is evidence enough of that.
Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 785 (5th Cir. 1990) When the water rose in No. 1 hold, the bulkhead was
(“Seeking to recover damages for the lost cargo, ASARCO subjected to immense pressures, which it eventually could
and Hansa Marine sued Glenara and Anglo-Eastern in both not withstand. It is highly likely that it collapsed, leading to
federal court and Louisiana state court, asserting claims in the flooding of No. 2 hold. From then on the Cumberland
both actions under the Carriage of Goods by Sea Act, 46 began to sink.
U.S.C. App. §§ 1300 et seq., the Pomerene Bills of Lading
Act, 49 U.S.C. App. §§ 81 et seq., and state tort and contract The ship’s age, metal fatigue and a chronic lack of proper
law. Glenara and Anglo-Eastern removed the state court suit maintenance must all have contributed to the eventual loss
to federal court, where it was consolidated with the federal of the Cumberland. She was a ship that had been hard run
action. Defendants then moved to dismiss on grounds of lack over the years in the pursuit of maximum profit. Her days
of personal jurisdiction, improper venue and forum non were ended because ignorant Inspection by flag state of the
conveniens, while plaintiffs sought remand of the state suit. vessel, negligent survey by Vessel’s Classification Society,
suspicious assessment by the Underwriter & Insurance
The district court refused to remand, finding no personal Surveyor.
jurisdiction. Plaintiffs sought
reconsideration of both
rulings, partly on the basis of
newly discovered information
concerning Anglo-Eastern's
contacts with Louisiana, and
they also sought the
reopening of discovery.
Following a hearing the court
refused to remand or to
reopen discovery and
reaffirmed its prior ruling,
dismissing the consolidated
cases without prejudice for
lack of personal jurisdiction,
improper venue and forum
non conventions. ASARCO
and Hansa Marine timely appealed.
*I am thankful to Dr.S.Mukherjee, an Expert and
The Cumberland’s construction was such that, when fully
International Investigator for Maritime Fraud for his advice
loaded, she was capable of floating with one hold flooded.
And she may well have done so, if the bulkhead between Dr. Soumi Mukherjee completed her Graduation in Mass
Nos. 1 and 2 holds had held. But this bulkhead was known Media and Masters in Mass Media from University of
to be weak. During the Special Survey carried out at Ulsan
Mumbai, later completed her Ph.d. She is interested in
in January 1987, ultrasonic testing of the bulkhead showed Investigative Journalism related with History, Geography,
a wear down or wastage of 40 percent on average, and in
Zoology etc. She is currently serving in Media Officer
at least one area in excess of 60 percent. In accordance with
with International Police Organization.
the Classification Society’s guidelines, plates which average
26 December 2023 The Insurance Times