Stall & McDermott v. The Southern Cross
| Decision Date | 08 May 1952 |
| Docket Number | No. 13655.,13655. |
| Citation | 196 F.2d 309 |
| Parties | STALL & McDERMOTT v. THE SOUTHERN CROSS et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Brunswick G. Deutsch, New Orleans, La., for appellant.
Edwin H. Grace, New Orleans, La., for appellees.
Before HOLMES, BORAH, and STRUM, Circuit Judges.
The libel in this case was filed by Stall & McDermott against the tug Southern Cross and her owner, Grizzafi Towing Company, to recover for the loss of the quarterboat Lorraine while in tow of the Southern Cross.
The libel alleged that the sinking was caused by the negligence of the tug Southern Cross in towing the quarterboat Lorraine at an excessive rate of speed and because those in charge of the navigation of the tug neglected and refused to heed the signals of the Lorraine's attendant when the tow was in distress. The answer denied the negligence charged and affirmatively set up that the Lorraine sank because of its unseaworthy condition. The District Court found in favor of appellees and dismissed the libel, Stall & McDermott v. The Southern Cross, D.C., 95 F.Supp. 612, and to reverse that judgment this appeal is prosecuted. The facts briefly stated are these:
On January 8, 1945, Drinkwater, representing appellant, and Grizzafi, representing appellee, entered into a verbal contract for the towage of the Lorraine from Morgan City, Louisiana, to a job site near Pecan Island in White Lake, Louisiana.
The quarterboat Lorraine was a flat-bottomed, wooden barge; she had a length of 36', beam of 16' and depth of 3'. Her hull and side planking were 2" x 12" timbers and her inside seams were stripped with 1" x 3" battens. The Lorraine's superstructure consisted of upper and lower deckhouses. On the upper deckhouse there were installed two fresh water tanks of about 900 gallons each. One tank was forward and slightly to starboard of the center line, the other was aft and slightly to port of the center line. The age of the quarterboat was unknown and except for painting she had undergone no maintenance or repair work of any kind for a period of two years.
On January 9, 1945, Gibbs was sent to Morgan City by appellant's superintendent, Drinkwater, to take charge of the loading of the Lorraine. Gibbs was specifically directed to fill her upper water tanks, to see that her hull was pumped free of water, and generally to watch over her while she was being towed to destination. When Gibbs arrived at Morgan City the Lorraine was across the Atchafalaya River at Berwick, where she had been tied up for an indefinite period of time. Gibbs requested of Grizzafi that the Lorraine be brought over to the Morgan City dock and this was done after Gibbs had inspected her hull and pumped out the water which he found in the hold. While alongside the dock Coleman, the master of the Southern Cross, noticed that Gibbs was filling the upper tanks with water and, being fearful that this might make the quarterboat top heavy, he asked Gibbs not to do it and told him that if it was necessary to fill these tanks he was not going to take the quarterboat in tow. Whereupon Gibbs advised Coleman that he had full charge of the quarterboat and that was his responsibility, not the master's. Gibbs told Coleman to take charge of the tug and he would take care of the quarterboat and when he finished loading the tanks they would take off. The conversation there ended.
The tug and tow got under way at 1:00 P.M. and proceeded westward in the Intercoastal Canal at a slow and safe speed of approximately 2½ miles per hour. At 12:30 A.M., after having proceeded without incident or difficulty a distance of approximately thirty miles, they laid up for the night. Before again getting under way Gibbs requested and was supplied with a smaller pump from the tug. The large pump, because of its greater capacity, required constant attention...
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