Tebbs v. Baker-Whiteley Towing Co.

• Decision Date: 06 July 1967
• Docket Number: 4448.,4535,Adm. No. 4543
• Citation: 271 F. Supp. 529
• Parties: Malcolm B. TEBBS, Libelant, v. The BAKER-WHITELEY TOWING CO., Michael R. Cataneo, trading as Tony Cataneo Line Service, American Ship Service Co., Inc. and United States of America. Malcolm B. TEBBS v. PACIFIC SHIPPING CORPORATION. UNITED STATES of America v. M/V SANDS POINT, her engines, etc.
• Court: U.S. District Court — District of Maryland

271 F. Supp. 529

Malcolm B. TEBBS, Libelant, v. The BAKER-WHITELEY TOWING CO., Michael R. Cataneo, trading as Tony Cataneo Line Service, American Ship Service Co., Inc. and United States of America.

Malcolm B. TEBBS v. PACIFIC SHIPPING CORPORATION.

UNITED STATES of America v. M/V SANDS POINT, her engines, etc.

Adm. Nos. 4543, 4535, 4448.

United States District Court D. Maryland.

July 6, 1967.

COPYRIGHT MATERIAL OMITTED

Sol C. Berenholtz, Baltimore, Md. (Solomon Kaplan and Murray I. Resnick, Baltimore, Md., advocates), for Tebbs.

Constable, Alexander & Daneker, Baltimore, Md. (John D. Alexander, Baltimore, Md., advocate), and Foley & Martin, New York City (Christopher E. Heckman, New York City, advocate), for Baker-Whiteley Towing Co.

Richard A. Reid, of Towson, Maryland, for Michael R. Cataneo.

Lord, Whip, Coughlan & Green, Baltimore, Md. (Alva P. Weaver, III, Baltimore, Md., advocate), for American Ship Service Co., Inc.

Anthony W. Gross, Atty., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., and Thomas J. Kenney, U. S. Atty., and John H. Skeen, Jr., Baltimore, Md., for the United States.

THOMSEN, Chief Judge.

The claims and cross-claims now before the Court in these consolidated suits in admiralty (see Section C of this opinion) arise out of a collision in Baltimore Harbor, at the foot of Broadway, on April 18, 1963, between the M/V Sands Point, an ocean-going tanker, and the yacht Abogado.¹

Libelant Tebbs is the owner of the Abogado. Respondents and cross-claimants are: the M/V Sands Point; Pacific Shipping Corp., her owner and operator before she was seized by the United States Marshal for this district nearly four months before the collision; the United States; Baker-Whiteley Towing Co.; American Ship Service Co.; and Michael Cataneo, t/a Tony Cataneo Line Service.

There is hopeless conflict between the testimony of the many witnesses; and because of the passage of time since the collision and for other reasons, much of the testimony was not reliable.

A. Historical Facts

1. On December 21, 1962, the United States filed a libel in this Court against the Sands Point for oil pollution. The vessel was seized and attached by the Marshal on December 26, and on the following day was shifted by her crew to the yard of General Ship Repair Corporation, Key Highway, Baltimore, where she remained until April 17, 1963.

2. On January 9, 1963, General Ship Repair filed a libel against the vessel, and she was again seized and attached by the Marshal. The owner employed the crew aboard the vessel until January 8; thereafter the Marshal employed the crew until January 15, when on advice of the Coast Guard, he obtained approval of the Court to employ a manning crew, and reduced the crew to three mates, three engineers and three firemen—who kept steam up to avoid damage to the vessel during the winter months, and guarded against fires and vandalism.² One of the mates so employed was John M. Diakakis, the former chief mate of the vessel.

3. While at the General Ship Repair pier the lines used had been the vessel's lines, and they had been handled by or under the direction of the mate on duty at the time.

4. On April 16, the boilers were shut down; thereafter on advice of the Coast Guard that only a watchman was needed, the Marshal employed two men aboard the vessel. One of them, Diakakis, worked two eight-hour shifts; the other, Billy Watson, the former radio operator, worked one shift. Although both men were employed as watchmen, the Marshal chose Diakakis because of his experience and knowledge of the vessel, and paid him $30 per shift, or $60 per day.³

5. On April 15, 1963, on petition of General Ship Repair, alleging that it needed to use the dock at which the Sands Point was moored, and on advice from the Marshal that the Coast Guard had arranged for a new berth to which the vessel might be shifted, the Court ordered the Marshal to remove the Sands Point from the General Ship Repair yard within 48 hours.⁴

6. The Marshal had had no experience shifting vessels, so he sought advice from respondent Cataneo. Acting on Cataneo's advice, and after obtaining two bids, the Marshal made an oral contract with Baker-Whiteley Towing Company, another respondent, to shift the Sands Point from the General Ship Repair yard to the Broadway Pier, at Broadway and Thames Street. The Marshal engaged American Ship Service, also a respondent, to furnish the linemen needed to handle the lines aboard the vessel, and Cataneo to furnish the linemen needed to handle the lines on the dock. The Marshal told Baker-Whiteley and the line companies that the Sands Point was a dead ship, with no master or riding crew aboard, only a watchman.

7. Captain George C. Hinkleman, one of Baker-Whiteley's tug captains, was in charge of shifting the vessel on the morning of April 17. He boarded the Sands Point and acted as docking master. He found Diakakis aboard the vessel, dressed and acting as a mate. The Marshal had not authorized Diakakis to continue acting as a mate, but had not forbidden him to do so. Captain Hinkleman gave orders with respect to the lines to Diakakis, who passed them on to the linemen furnished by American Ship Service. That company had furnished no foreman or gang leader, since only eight linemen were needed and it is not customary in the port of Baltimore to send a foreman unless twelve linemen are furnished. Captain Hinkleman gave orders to the linemen on the docket, who had been furnished by Cataneo.

8. Around noon on April 17 the Sands Point was docked bow-in, with her port side to the Broadway Pier and her bow not more than 30 feet from the port side of the yacht Abogado, which was moored parallel to Thames Street along a wall.

9. The Broadway Pier has a total length of about 500 feet. The length of the Sands Point is 488.3 feet; as she was moored, her after end extended well beyond the end of the pier.

10. Captain Hinkleman directed that five lines be put out—two bow lines, a forward spring line, and two stern lines. Since the after end of the Sands Point extended so far beyond the end of the pier, the stern lines did not run aft from the vessel to the pier, and so were not effective to prevent the vessel from moving forward, as they would normally have been. The responsibility for preventing forward movement of the vessel therefore rested on the one forward spring line when Captain Hinkleman left the Sands Point. Captain Hinkleman gave no heed to the condition of the lines although he noticed that they were old and worn.

11. A westerly wind was blowing against the port side of the vessel. The lines which Captain Hinkleman had ordered put out were insufficient, and Diakakis prudently caused additional lines to be put out. The evidence varies as to how many; the Court finds that Diakakis put out an additional forward spring line, an after spring line, and an additional bow line.

12. On the afternoon of April 17, the Director of Port Operations learned that the Sands Point was not gas-free; he objected to her location at the Broadway Pier, and the Coast Guard and the Marshal agreed that she should be shifted the next day to an anchorage out in the river. Accordingly, the Marshal called Baker-Whiteley and contracted with that company to perform the operation. The Marshal again called on American Ship Service and Cataneo to supply the linemen, and Baker-Whiteley agreed to fix the time when the linemen should report.

13. The Baker-Whiteley office assigned three tugs to participate in the operation: the Holland, 1800 H.P.; the Progress, 750 H.P.; and the Resolute, 1800 H.P. Captain Eminizer of the Holland was designated to serve as the docking and undocking master, and to be in charge of the operation. The Holland and the Progress were at the Recreation Pier (where Baker-Whiteley has an office) about 200 feet from the Broadway Pier. The two tugs moved into the slip about 2:10 p. m. The Resolute was out in the river and did not arrive until after the collision.

14. The linemen had arrived about an hour or so before the two tugs. The Cataneo men sat in their automobile until after the collision. Some of the men from American Ship came aboard the Sands Point and some remained on the dock. On instructions from Diakakis (it is immaterial whether the suggestion came from Diakakis or from the linemen), they began to single up; they took in the second forward spring line, which Diakakis had put out the day before, after Captain Hinkleman had left, and also took in one of the bow lines.⁵ That work was completed before the two tugs approached the Sands Point.

15. On April 17 Diakakis undertook to act as a mate would act, transmitting orders from Captain Hinkleman to the linemen. He signed the Baker-Whiteley chit on April 17 as mate. He continued to act as a mate would act on April 18 when two Deputy Marshals were aboard, and thereafter submitted work records to the Marshal on which he was designated as mate. The Marshal never objected to such designation or conduct.

16. The weather was clear, with good visibility. The wind was more or less from the west at nearly 20 knots. Tidal current was negligible.

17. As the tug Holland entered the slip, Captain Eminizer saw that the two stern lines did not run aft from the Sands Point, and knew or should have known that they would not help prevent any forward movement of the Sands Point until she had gone forward an appreciable distance. He also knew or should have known that the Abogado was then less than 30 feet from the bow of the Sands Point.⁶ He knew or should have known that the Sands Point was in the custody of the Marshal, that there was no master or riding crew aboard except Diakakis,⁷ and that linemen were being supplied by American Ship Service and Cataneo, as they had been on April 17.

18. Nevertheless Captain Eminizer made no effort to determine the number or condition of the lines which were out. Nor did he take any precautions to prevent the...