Russell, Poling & Company v. Tug Alice M. Moran

• Decision Date: 26 January 1962
• Citation: 1962 AMC 618,205 F. Supp. 874
• Parties: RUSSELL, POLING & COMPANY, Newtown Creek Towing Company and Chester A. Poling, Inc., Libellants, v. TUG ALICE M. MORAN, her engines, etc., Tug Alice M. Moran, Inc., and Moran Towing & Transportation Company, Inc., Respondents.
• Court: U.S. District Court — Southern District of New York

205 F. Supp. 874

1962 AMC 618

RUSSELL, POLING & COMPANY, Newtown Creek Towing Company and Chester A. Poling, Inc., Libellants, v. TUG ALICE M. MORAN, her engines, etc., Tug Alice M. Moran, Inc., and Moran Towing & Transportation Company, Inc., Respondents.

United States District Court S. D. New York.

January 26, 1962.

Alexander, Ash & Schwartz, New York City, for libellants; Edward Ash, New York City, advocate.

Burlingham, Underwood, Barron, Wright & White, New York City, for respondents; Robert F. Lynch, New York City, advocate.

CROAKE, District Judge.

Russell, Poling & Company, Newtown Creek Towing Company and Chester A. Poling, Inc., filed this libel in rem against the Tug ALICE M. MORAN, her engines, etc., and in personam against the Tug ALICE M. MORAN, INC., and Moran Towing & Transportation Co., Inc. Libellant seeks to recover $17,000 for damages to its oil barge, the RUSSELL 22, claiming that the damage occurred in the Delaware River on January 6, 1959, while the barge was in tow of the tug ALICE M. MORAN. As indicated, the suit falls within the admiralty jurisdiction of this Court. The following facts are not in dispute:

On January 3, 1959, the RUSSELL 22, having no motive power, was taken in tow by the ALICE M. MORAN at Staten Island, New York, enroute for a salvage operation on a tanker known as the S.S. African Queen which was aground approximately 9½ miles off Ocean City, Maryland. The RUSSELL 22 is a steel oil barge, 230 feet long, 43 feet wide and 14½ feet deep. The RUSSELL 22 is equipped with six tanks divided into twelve compartments, six on the portside and six on the starboard side. A center line bulkhead separates the compartments. The ALICE M. MORAN is 108 feet long overall, with a beam of 35 feet and a 16 feet 8 inch depth.

On January 4th, owing to rough seas, fresh winds and icy weather, the tug and tow abandoned the salvage operation and proceeded to the inside of the Delaware breakwater. Later that day the ALICE M. MORAN towed the RUSSELL 22 to a point further inside the breakwater, where the barge dropped both its anchors.

On January 5th, due to rising winds and heavy seas, the salvage master ordered the tug to tow the barge to Wilmington, Delaware, until conditions improved. At 5:30 P.M. on the same day, the tug, manned by a captain and crew, attempted to get under way with the barge, manned by a barge captain, and a deckhand. However, one of the anchors of the RUSSELL 22 was fouled on the bottom, making it impossible to raise the anchor. The anchor and its chains were lost. The tug finally got under way with the barge in tow, but due to icy weather conditions, the tug was unable to make fast both ends of the towing bridle to the barge. Instead, the tug towed the barge with a single bridle, approximately 45 feet in length attached to a cleat on the starboard bow of the barge. The other end of the bridle was in turn connected to a towing hawser approximately 450 feet in length which was connected to the stern of the tug. In this fashion, the tow proceeded up the Delaware River, though its original destination, Wilmington, was now changed to Sun Shipyards at Chester, Pennsylvania, so that the RUSSELL 22 might be fitted with a new anchor and chain.

At 7:30 A.M. on January 6th, at a point just below Wilmington, the captain of the tug decided to tow the RUSSELL 22 alongside. The hawser was shortened from 450 to 90 feet, so that the total length of the towing hawser and bridle was now about 135 feet. There was heavy ice over the bow of the RUSSELL 22; consequently, the barge captain and his mate were unable to disengage the bridle from the starboard cleat of the barge. With the towing line attached to the barge in this manner, the tug rounded to port, so that its portside came alongside the portside of the barge. The record indicates that at this time there was a northwest wind of from 18-23 knots.

After making fast to the barge, the tug and barge proceeded up the Delaware River, arriving at the Sun Shipyards at 9:50 A.M. of the same morning, where the barge was moored with its starboard side next to the pier. This was done without incident. One of the deckhands from the tug boarded the RUSSELL 22 and assisted the crew of the barge in mooring it to the dock. After mooring, the captains of the tug and the barge telephoned their respective employers to report the loss of the anchor. No mention was made of the alleged collision which is the subject of this libel. The ALICE M. MORAN remained at the Sun Shipyards until 12:15 P.M. on January 6th, 1959, after which she left for the Delaware breakwater. The barge underwent repairs and left Sun Shipyards on January 8th in tow of the tug McAllister bound for her previous anchorage at the Delaware breakwater. She arrived there on January 9th and another attempt which was unsuccessful was made by the McAllister to bring the RUSSELL 22 alongside the African Queen. Again, because of heavy seas, the barge had to be returned to the breakwater as it was unable to approach within 500 yards of the African Queen.

On January 10th, the ALICE M. MORAN delivered supplies to the RUSSELL 22 while it lay at anchor at the breakwater, and on January 13th the ALICE M. MORAN picked up the barge captain and took him to Delaware City which was a trip requiring several hours. On January 18th, the RUSSELL 22 left the breakwater in tow of a tug Russell No. 16, bound for New York Harbor, arriving at Rosebank, Staten Island on the afternoon of January 19th. On the same day the RUSSELL 22 was shifted to New York Harbor by another tug, the Valmet. The following day she was shifted into New York Harbor by tugs Russell No. 9, Raymond Russell and the Valmet. In the course of these shifts, she was alongside of the U.S.N.S. Bowitch and S.S. Dalton Victory for the purpose of discharging cargo. The next day, January 21st, she was shifted twice in the New York Harbor by the Russell No. 8, and in the course of these shifts left the S.S. Dalton Victory and went alongside the U.R.S. No. 31 at the Brooklyn Navy Yard for the purpose of taking on bunker oil in certain of her tanks. On or about January 20th or 21st, one of the crewmen on the RUSSELL 22 who had not been aboard when she was towed by the ALICE M. MORAN found a leak in the No. 1 port tank, and for the first time a report was made as to damage of the barge. This crewman testified that he made the report to his employer and to the barge captain who was aboard when the RUSSELL 22 was towed from the Delaware breakwater to Chester, Pennsylvania, by the ALICE M. MORAN. At the time of this report, the original barge captain reported for the first time that the ALICE M. MORAN had collided with the barge on January 6th in the area adjacent to the No. 1 tank. The libellant notified the respondent on January 22d, 1959.

Libellant's contention is that when the ALICE M. MORAN shifted its towing position to come alongside the portside of the RUSSELL 22 on January 6th, while still keeping its bridle attached to the cleat on the starboard side of the RUSSELL 22, the towing hawser became caught underneath the bow of the barge, pulling the two vessels together and causing the tug to collide with the barge in the vicinity of the No. 1 tank, resulting in the cracked hull. Libellant maintains that this maneuver was unseamanlike, that the tug captain, under the circumstances described above, was therefore negligent, and that respondent is liable for the resulting damage.

The respondent contends that the tug captain executed the "rounding to" in a seamanlike manner, that the tug was well fendered, that no violent contact occurred between the two vessels, and that libellant has not proven either that respondent's tug was negligent or that the crack resulted from any act attributable to respondent.

It is well settled that a tug is not the bailee of a barge which it has in tow. See Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932). Negligence, therefore, cannot be presumed merely from damage which is discovered after the barge had been in tow of the tug. Libellant has the burden of proving that the respondent was negligent and caused the damage. See The Eastern, 280 F. 711 (2d Cir. 1922); the S. & P. No. 15, 61 F.Supp. 846 (D.C.E.D. N.Y.1945). Libellant cannot rely solely on the doctrine of res ipsa loquitur to establish or prove negligence on the part of respondent. In Avres Marine Service, Inc. v. W. Horace Williams Co., Inc., 213 F.2d 27 (5th Cir. 1954), the libellant sought to invoke the doctrine of res ipsa loquitur to sustain its burden of establishing negligence on the part of the respondent. However, the Court in its opinion was careful to point out that, while the doctrine of res ipsa loquitur may be used as an aid to a libellant, the negligence of ...