Allied Chemical & Dye Corp. v. The Christine Moran

• Decision Date: 23 January 1961
• Citation: 1961 AMC 2620,190 F. Supp. 703
• Parties: ALLIED CHEMICAL & DYE CORPORATION, as Owner of THE Barge BARRETT NO. 1, Libelant, v. THE Tug CHRISTINE MORAN, THE Tug CLAIRE A. MORAN, INC., Claimants, and Moran Towing & Transportation Company, Inc., and Seaboard Shipping Corporation, Respondents.
• Court: U.S. District Court — Southern District of New York

190 F. Supp. 703

1961 AMC 2620

ALLIED CHEMICAL & DYE CORPORATION, as Owner of THE Barge BARRETT NO. 1, Libelant, v. THE Tug CHRISTINE MORAN, THE Tug CLAIRE A. MORAN, INC., Claimants, and Moran Towing & Transportation Company, Inc., and Seaboard Shipping Corporation, Respondents.

United States District Court S. D. New York.

January 23, 1961.

Pyne, Smith & Wilson, New York City, for libelant. William G. Wilson, Staten Island, N. Y., Albert Robin, Edmund S. Purves, New York City, of counsel.

Burlingham, Hupper & Kennedy, New York City, for claimants and respondents. Eugene Underwood, Robert A. Feltner, New York City, of counsel.

DAWSON, District Judge.

Allied Chemical & Dye Corporation, as owner of the barge Barrett No. 1, filed a libel against the tug Christine Moran, Moran Towing & Transportation Company, Inc., and Seaboard Shipping Corporation, based on breach of contract and negligent towage. This in rem action against the Christine Moran and in personam action against Moran Towing & Transportation Company, Inc. (hereinafter referred to as "Moran") and Seaboard Shipping Corporation (hereinafter referred to as "Seaboard") was tried under the admiralty jurisdiction of this Court.

The Parties

Libellant, Allied Chemical & Dye Corporation (hereinafter referred to as "Allied") is a corporation duly organized and existing under the laws of the State of New York with an office and place of business in the City of New York. At all times pertinent to this case the barge Barrett No. 1 was owned by Allied.

Respondent Moran is a corporation organized and existing under the laws of the State of New York, having a place of business in the City of New York. At all times pertinent to this cause of action, Moran owned and operated the tug Christine Moran, which is within the jurisdiction of this Court.

Respondent Seaboard is a corporation organized and existing under the laws of the State of Delaware, having a place of business in the City of New York. Pursuant to a contract dated January 19, 1954, the barge Barrett No. 1 was time chartered by libellant to Seaboard. This charter was in force and effect at all times pertinent to the present cause of action. Under the terms of the agreement, Allied, as owner of Barrett No. 1, undertook to maintain, equip and supply the vessel. The Barrett was to be properly manned by a captain and crew provided and paid by Allied. Throughout the period of this charter, the barge was manned, operated and controlled by employees of Allied.

On or before December 4, 1954, Seaboard engaged Moran to tow the Barrett No. 1 from Morehead City, North Carolina, to New York City. Pursuant to this agreement, Moran assigned the tug Christine Moran to perform the towage service.

The Facts

The barge Barrett No. 1 (hereinafter referred to as "Barrett") has a steel hull, is 228 feet long, 38 feet wide and 16.8 feet deep. She is equipped with two stockless anchors, weighing 1,200 pounds each, each anchor having 75 fathoms of 1 1/8 th inch chain. The Barrett is also equipped with ballasting facilities and a sea cock. In addition the Barrett has a boiler to heat cargo, three primary diesel engines to pump cargo or ballast and generate electricity for light. The Barrett has no steering apparatus. She has no motive power or radio transmitter, nor is she equipped with any mechanical signalling device.

When she left Morehead City, the Barrett was entirely light except for 4,000 gallons of fuel oil, used to clean the tanks, and had a draft of 1' 6" forward and 5' 6" aft.

The Barrett's crew consisted of two tankermen, Captain Henry Slivinski and Mate Lars Midthassel, and two firemen, Norman Jorgensen and Henry Zines. Even though the captain and mate were certified able-bodied seamen, no one on board was skilled in navigation. Had there been navigational equipment aboard the vessel, it could not have been used by the crew. But this does not suggest negligence on the part of Allied in failing to equip or man the ship properly; for, in fact, the crew and equipment of the barge were well above the general standard in the industry. Where a barge is in tow of a tug, the tug is the "dominant mind" and the tow need not be manned as a separate entity seagoing vessel. See, Cleary Bros. v. The Dauntless, 2 Cir., 1949, 178 F.2d 72; The Rebecca, 4 Cir., 1945, 152 F.2d 607.

The tug Christine Moran is 96.3 feet long, 25.2 feet wide, and 10.8 feet deep, built in 1953, with 1,000 horsepower diesel-electric engine. She carried a competent crew of nine.

About noon of December 5, 1954, the day after the tug and tow set sail for New York, the Christine's master, Captain Anderson, learned of an unfavorable weather forecast. He thereupon altered course off Cape Henry, Virginia, and headed into Hampton Roads.

At 4:40 P.M. the Christine ordered the Barrett to drop anchor. The port anchor was let go and 2½ shackles (37½ fathoms or 225 feet) of chain were paid out. The vessels, at this time, were somewhat north of Craney Island in Hampton Roads.

The Christine then made fast alongside the Barrett and both vessels awaited the 6:00 P.M. weather report.

At 6:00 P.M. the Christine's master learned that northeast storm warnings had been hoisted at 5 o'clock. Increasing northeast winds, becoming strong early in the night, probably reaching gale force (39-54 mph) at times late that night or the next day, with rain or snow and poor visibility were forecast.

The Christine's captain advised Captain Slivinski of the forecast, suggested that he let out more anchor chain, and told Slivinski that he had decided to leave the barge where she was at anchor, while the Christine made her way to port in Norfolk Harbor.

At 6:15 the Christine left the anchorage and proceeded to Curtis Bay Towing Company dock at a distance of one hour and five minutes away. The Christine stayed at that dock until about noon of December 6, 1954, at which time it returned to the anchorage to find that the Barrett had gone aground during the storm.

The Barrett crew remained aboard after the Christine left at 6:15 P.M. on December 5th. Anchor lights and watches were set. At 8:00 P.M. an additional 1½ shackles of anchor chain were let out. The Barrett's log book reveals that at 8:00 P.M., 11:00 P.M. and midnight the crew believed the anchor to be holding. The anchor chain was felt and cross range bearings and soundings were taken.

The weather remained clear and calm until 11:00 P.M. Sometime before midnight the winds increased and it began to rain and snow. As the night progressed the weather worsened. The winds reached gale force. Visibility was very poor.

The following was entered in the log book between 12:00 and 4:15 A.M.:

"Heavy snow—visibility very poor —cannot see shore, other ships, or any lights."

By 4:15 A.M. a ship was sighted, anchored approximately 1,000 feet away. About 4:30 A.M. trees were sighted on shore. By 4:45 A.M. the tow was dragging anchor in shallow water 150 feet off shore. At 5:00 A.M. the Barrett was aground on Craney Island.

During the time the Barrett was at anchor, no efforts were made to ballast the vessel or to drop the second anchor.

The Law

What is the duty of a tug to a tow? The tug is considered the dominant mind in the tug-tow flotilla. Cleary Bros. v. The Dauntless, supra; The Rebecca, supra. The tow is, of course, responsible for the "internal economy" of the vessel, e. g., the shifting of lines when moored or anchored, the taking in or the letting out of hawsers with the variations in the tide. Tucker v. Reading Co., 2 Cir., 1942, 127 F.2d 527. This duty is strictly limited, however, because of the "`feckless folk' who frequently man barges." The B. B. No. 21, 2 Cir., 1931, 54 F.2d 532, 534.

A tug accepts responsibility for the tow as soon as it takes the tow from its originating berth. This is a continuing responsibility which does not terminate until the tow is safely anchored at the completion of the voyage. The Anna O'Boyle, 2 Cir., 1941, 122 F.2d 286, 287; The Baltimore, D.C.E.D.N.Y.1944, 53 F.Supp. 462, 464. When a tug finds that she cannot deliver her tow at the specified destination point, it is her duty to tie the tow at some safe place and protect it until she can make delivery at the specified point. The B. B. No. 21, supra; The May McGuirl, 2 Cir., 1919, 256 F. 20.

Although this is a broad responsibility, the tug is not liable for damage in the absence of negligence. And that negligence must be the proximate cause of the injury, before any liability can be imposed on the tug. Stevens v. The White City, 1932, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699; The Graebner, D.C.E.D.N.Y.1946, 66 F.Supp. 456.

Thus the tug is not an insurer of the safety of the tow; nor does the tug assume the obligations of a common carrier. Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47, 49. Whether it incurs the duty of a bailee for hire may vary from case to case. Cf., Doherty v. Pennsylvania R. Co., 2 Cir., 1920, 269 F. 959, 962 with C. F. Harms Co. v. Erie R. Co., 2 Cir., 1948, 167 F.2d 562. But a towage contract does not per se give rise to a bailor-bailee relationship. Stevens v. The White City, supra; Petition of Tracy, D.C.S.D.N.Y. 1950, 92 F.Supp. 706, 712.

However, a tug is charged with the duty of exercising reasonable and ordinary care for the protection of its tow. Petition of Tracy, supra. Pursuant to this duty it should omit nothing which could reasonably be required to lessen the hazard to the tow. The tug must fulfill her contract with the degree of caution and skill prudent navigators usually employ in similar services. Southgate v. Eastern Transp. Co., supra; The Hackensack, D.C.S.D.N.Y. 1922, 291 F. 69.

A tug also has certain duties which arise when it chooses to anchor or moor the tow prior to the termination of the towage contract. Where, for convenience, a voyage is divided into stages, the tug must provide the tow with a safe berth and she remains responsible for the moored tow during that...