Southgate v. Eastern Transp. Co.

• Decision Date: 05 July 1927
• Docket Number: No. 2596.,2596.
• Citation: 21 F.2d 47
• Parties: SOUTHGATE v. EASTERN TRANSP. CO. THE DIRECTOR.
• Court: U.S. Court of Appeals — Fourth Circuit

21 F.2d 47 (1927)

SOUTHGATE v. EASTERN TRANSP. CO THE DIRECTOR.

No. 2596.

Circuit Court of Appeals, Fourth Circuit.

July 5, 1927.

John W. Oast, Jr., and R. Arthur Jett, Jr., both of Norfolk, Va. (Kelsey & Jett, of Norfolk, Va., on the brief), for appellant and cross-appellee.

Edward R. Baird, Jr., of Norfolk, Va. (Baird, White & Lanning and George M. Lanning, all of Norfolk, Va., on the brief), for appellee and cross-appellant.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

WADDILL, Circuit Judge.

These are cross-appeals in admiralty from a decree of the United States District Court for the Eastern District of Virginia, at Norfolk, and involve the liability for losses sustained by the Eastern Transportation Company, incident to the enforced anchorage of the barges James M. Hudson and E. R. Haggett near the entrance to the Virginia capes during a storm.

The two barges, both ocean-going vessels, light, were in tow of the ocean-going tug Director, en route from Delaware Breakwater to Norfolk, at the agreed sum of $150 for each barge. The tug and tow left the Breakwater on the early morning of December 31, 1924, at which time the weather conditions appeared favorable, and so continued until about noon of that day, when the wind increased, and continued to do so until that night, reaching the proportions of a gale. About 1:30 o'clock on the morning of January 1st, when the tug and tow were about two miles past Cape Charles Light vessel, the hawser between the tug and the head barge, the Hudson, parted. The tug thereupon immediately signaled to the barges to anchor, which they did, and upon finding them resting safely, as was believed, the tug proceeded to Norfolk; it being impracticable for her to do anything to aid the barges in the then weather conditions, particularly as she had lost her hawser, which was attached to the Hudson. The tug, about 6:30 a. m. on January 1st, arrived in Norfolk, and during that day informed the Eastern Transportation Company's agents of the anchoring of the barges, which they did not consider to be in a position of imminent peril.

On the 2d of January the tug, upon the moderation of the weather, proceeded to secure the barges and bring them into port, and late in the evening of that day found the Hudson lying safely at anchor, where she had been left on the morning before, but the Haggett had disappeared. Upon speaking the Hudson, and finding her in no immediate danger, the tug set out to look for the Haggett, and about 5:30 p. m. of January 2d sighted her stranded off Fortieth street, Virginia Beach, whither she had drifted about 12:30 that morning. On January 3d, the weather having further moderated, the tug went out again for the barges, and received the Hudson from one of the Coast Guard cutters, and towed her into Hampton Roads, and later the Haggett was floated and brought in by its owners.

The libel was filed on the 16th of March, 1925, by the Eastern Transportation Company, claiming damages to the two barges of $35,000. The claim was based upon the alleged negligence of the tug in abandoning its tow, and not properly caring for and bringing the same into port; the barges, as claimed, being properly manned, equipped, and seaworthy at the undertaking of the service.

Appellant, T. S. Southgate, as owner and claimant of the tug, answered, and denied all liability for the stranding of the barges, and the damage sustained by them, and urged that whatsoever damage befell them was such as was incident to perils of the sea, and that the proximate cause — certainly so far as the Haggett was concerned — was her unseaworthiness, and that she was not properly equipped and manned for the service required. The Haggett, at the time of anchoring her, had on board only her master and his wife and a small child, and so cast overboard his anchors that they fouled, and that only one, instead of both, anchors held at the same time. Appellant, Southgate, also filed his cross-libel, setting up damages in the sum of $850 for the loss of his hawser by the Hudson, and the further sum of $150 for towage due by the Hudson.

Much testimony was adduced by the parties in support of their respective contentions; the contest between them in the last analysis being that the Transportation Company sought to place the entire liability upon the tug, as well for damages incident to the losses sustained by the Hudson, as the result of the violence of the storm to which she was subjected, as for the very serious loss and damage sustained by the Haggett. The tug owner, on the other hand, urged its entire freedom from fault for the losses to the barges, and insisted that the Eastern Transportation Company owed the tug for the loss of its hawser and for the towage money.

The learned judge of the District Court, after full consideration of the entire testimony, exonerated the tug from liability in connection with the Hudson, and held that the Haggett sustained damages to the extent of $15,000, and that the tug was liable for one-half thereof, in that its action in failing to return to the barge on the morning of the 1st of January, and in failing earlier to notify the Transportation Company and the Coast Guard of the situation of the barges, were "contributing and concurring" acts of negligence affecting the stranding of the barge Haggett, and that the Haggett's unseaworthy condition, as well as her failure to have a sufficient and competent crew, were also contributing and concurring causes to her stranding, which prevented her recovery for one-half of the damage sustained by her; and the court likewise dismissed the cross-libel filed by the appellant, Southgate, which denied to the tug the right of recovery for the loss of her hawser and her towage of the Hudson.

From this action of the court the appeal and cross-appeals were taken. The assignments of error are elaborate and many in number, setting forth in considerable detail the respective contentions of the parties. Without entering into a general discussion of them, it may be said that the four grounds last above stated cover the rulings of the court to which exceptions were taken; that is: Did the trial court err in exonerating the tug from liability for the losses of the Hudson? Was there error in holding the tug liable for half of the losses sustained by the Haggett? Was there error in exonerating the Haggett from liability, either in connection with the losses directly arising or in its conduct, or from those "contributing and concurring" in connection therewith? And, should the cross-libel of Southgate have been dismissed?

The law properly controlling, determinative of the questions thus presented, is too well settled to admit of serious controversy, or to require extensive citation of authority. A vessel, seeking the services of a towboat, holds itself out to be sufficiently staunch and strong — that is, seaworthy — to withstand ordinary perils of the sea to be anticipated on a voyage; and a tug has also the right to assume that the tow will carry a competent and sufficient crew, and is not liable for dangers, either from the unseaworthy condition of the barge or for the failure of its owners to properly man and equip the same. The Syracuse (D. C.) 18 F. 828; The Edmund L. Levy (C. C. A.) 128 F. 683.

The duty of a tug to its tow is likewise well understood. The tug is not an insurer of the safety of the tow, nor is there imposed upon it the obligation of a...