American Bridge Div., US Steel Corp. v. Roen Steamship Co.

• Decision Date: 29 April 1963
• Docket Number: No. 59-C-100.,59-C-100.
• Citation: 216 F. Supp. 353
• Parties: AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION, Libelant, v. ROEN STEAMSHIP COMPANY, a corporation, and The Diesel TUG JOHN PURVES, her engines, boilers, etc., Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

216 F. Supp. 353

AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION, Libelant, v. ROEN STEAMSHIP COMPANY, a corporation, and The Diesel TUG JOHN PURVES, her engines, boilers, etc., Respondents.

No. 59-C-100.

United States District Court E. D. Wisconsin.

April 29, 1963.

Robert G. McCreary, Jr., and David G. Davies, Cleveland, Ohio, Arthur Wickham, Milwaukee, Wis., for libelant.

Sparkman D. Foster, Detroit, Mich., John A. Kluwin and Bernard J. Hankin, Milwaukee, Wis., for respondents.

GRUBB, District Judge.

This is an action in admiralty in which libelant alleges that respondents' tug, John Purves, while towing libelant's barge A.B. No. 71 in Lake Erie, negligently caused the barge to capsize. As a result of the capsizing, certain equipment belonging to libelant which was loaded aboard the barge was lost. By stipulation, the issue of liability has been severed from the issue of damages. The testimony and evidence show the facts to be as follows:

In the late summer of 1957, construction of the Mackinac Bridge was being completed, and libelant, which had built the superstructure of the bridge, was in the process of moving its bridge construction equipment to other job sites.

Barges A.B. No. 71 and A.B. No. 72, owned by libelant, had been used during the bridge construction as derrick boats supporting a stiff-leg derrick and hoisting engines. Libelant decided to dismantle the derrick and to have the barges, with certain equipment aboard, towed from libelant's base at St. Ignace, Michigan, (near the job site) to Messena, New York.

Libelant's traffic manager, L. H. Tutwiler, made a number of inquiries of towing companies and railroads regarding rates to Messena and intermediate points, and received an oral quotation from John H. Purves, treasurer of respondent, Roen Steamship Company, for towage of the two barges and equipment thereon from St. Ignace, Michigan to Buffalo, New York. (Arrangements for the rest of the tow from Buffalo to Messena were made with other companies.)

On or about September 27, 1957, libelant received the following telegram:

"THIS WILL CONFIRM OUR TELEPHONE CONVERSATIONS WITH RESPECT TO TOWAGE OF YOUR TWO SCOWS FROM ST. IGNACE, MICHIGAN, TO THE AMERICAN SHIPBUILDING DOCK, BUFFALO, NEW YORK. DUE TO LATENESS OF SEASON WISH IT UNDERSTOOD THAT TOWING CHARGES OF $10,000 IS CONSIDERED EARNED EVEN IF TOW OR PART OF TOW IS LOST. TOWING SERVICE IS SUBJECT TO ACTS OF GOD, PERILS OF THE SEA, DANGERS OF NAVIGATION OR OTHER CAUSES BEYOND OUR CONTROL. MAKE UP OF THE TOW AND TOWING ARRANGEMENTS TO BE APPROVED BY YOUR REPRESENTATIVE PRIOR TO DEPARTURE. EXPECT OUR TUG JOHN PURVES ARRIVE ST. IGNACE ABOUT TUESDAY NIGHT OCTOBER 1.

"ROEN STEAMSHIP COMPANY "PURVES."

On October 2, 1957, L. H. Tutwiler sent the following letter to respondent company:

"This will confirm our telephone conversation on October 1 relative to your towing two American Bridge barges Nos. 71 and 72, together with tugboat, hoisting engines, stiff-leg derrick, wire rope, and miscellaneous structural steel and erecting equipment between St. Ignace, Michigan, and Buffalo, New York, for a total price of $10,000.00. We understand you will utilize dock facilities of American Shipbuilding Company in Buffalo as terminus.

"We understand one of the barges will have loaded on it the tugboat and hoisting engines, whereas the other barge will have loaded on it the stiff-leg derrick and miscellaneous structural steel. These are steel-deck barges measuring 100' by 26' by 6'6", weighing approximately 78 tons each, empty. Their light draft is 1'2". Details regarding how the equipment is loaded on these barges and the weight can be obtained from Mr. A. Drilling, phone St. Ignace, Michigan 860.

"Arrangements have been made with the Connors Standard Marine Corporation, 19 Rector Street, New York, New York, to tow these barges and equipment from Buffalo to Ogdensburg, New York. Your telegram advised that the tug `John Purves' was expected to arrive at St. Ignace about Tuesday night, October 1, and that you estimated three to four days from St. Ignace to Buffalo.

"The United States Steel Corporation agrees that you will have earned towing charge of $10,000 even if tow or part of tow is lost. It is also agreed that towing service is subject to acts of God, perils of the sea, dangers of navigation, or other causes beyond your control. When you commence tow from St. Ignace, we will appreciate your advising this office of an E.T.A. at Buffalo so that we may coordinate pickup with Connors.

"If you have any further questions, please contact this office."

The derrick, which had been supported by the barges during the bridge construction, was dismantled, and the barges, which had been connected together by means of steel beams, were separated. Each of the two barges measured 100 feet in length, 26 feet in width, and 6 feet 6 inches in depth, and weighed approximately 78 tons. Their light draft was 1 foot 2 inches. Four manholes in the deck provided access to the interior of each barge which is divided by transverse watertight bulkheads into four compartments — two small "rake tanks" at the ends and two large compartments occupying the midships body of the barge.

The preparation and loading of the barges was under the overall direction of Robert C. Anderson, an assistant superintendent on the Mackinac Bridge job. Raymond E. Cote, the master mechanic, actually exercised the immediate supervision of the work. Cote pumped out 6 to 18 inches of water which had been placed into the barges for ballast when they were being used for a derrick platform. There were some minor cracks on the decks or sides of the barges which were welded. Anderson and Cote then checked the barges for leaks, but none were found.

The four manhole or hatch covers, which were about 18 inches across, were bolted down. The loading of the barges took two to three weeks to complete.

The load which was placed on barge A.B. No. 71 consisted of a 50 foot work tug, the Lewes, which was placed on deck in a welded steel cradle; two hoisting engines; eight drums of cable; two 10,000 pound and two 3,000 pound anchors; anchor chain; and miscellaneous cans, buoys, and dunnage. Anderson estimated the total weight of the load to be 138 to 146 tons, although in answer to interrogatories before trial, one of libelant's officials stated that the weight was approximately 129 tons. The second barge, A.B. No. 72, carried steel beams.

After the loading had been completed, Anderson and Cote again inspected the interior of the barges and found no cracks or evidence of leakage.

At some time between the completion of the loading and the departure of the barge on October 2, 1957, Captain Melvin J. Bishop, a fleet captain and marine surveyor, was requested to inspect the loaded barges. In his opinion the barges were properly loaded for the trip to Buffalo, New York, and could safely carry a load of 150 tons under the lake conditions in the fall of the year. In the course of his survey, he found 1 or 2 inches of water in the bottom of the barge, which was considered a typical amount for any working barge. He also measured the freeboard of the barges (the distance from the water's edge to the edge of the main deck) which he found to be 30 inches. There are other estimates of the freeboard made by various crew members of the Tug John Purves and by employees of libelant, ranging from 2 to 4 feet.

On October 2, 1957, the Tug John Purves arrived at St. Ignace, and at 12:20 P.M. on that day it departed with the barges in tow, A.B. No. 71 in the lead, on a towline of 800 to 1,000 feet. The barges were unmanned and in the exclusive control of the tug.

During the afternoon and night of October 2 and the morning of October 3, 1957, the flotilla made an uneventful passage down Lake Huron in clear weather with variable winds. Coming down Lake Huron, the tug was running at full speed, averaging over 11 miles per hour at 744 rpm. During this period the barges maintained an even trim and showed no list or instability.

At about 12:50 A.M. on October 4, 1957, as the flotilla had just gone through the Detroit River into the far westerly end of Lake Erie, the wind had increased to about 30 miles per hour from the northeast, so the flotilla sought shelter and anchored in Pigeon Bay at the northwest corner of Lake Erie. While there, the barges were again checked, and they appeared to be on an even trim and otherwise in normal condition.

At 6:00 A.M. on October 5th, the flotilla again got underway, but at 6:15 A.M. the tug checked her speed momentarily when she encountered a heavy swell. The barges apparently rode out the swell with no difficulty. At 7:22 A.M. the flotilla headed out toward the center of Lake Erie on an easterly course of 072° true, with a moderate north-northeasterly to easterly wind. The engines of the tug were running at 600 rpm throughout this period. At 12:10 P.M. the tug changed course to 090° true, or due east. At the time of this course change, the wind had again increased to 25 to 30 miles per hour and had shifted to due east so that the tug and her barges were proceeding head on into the wind and seas and at an average speed in excess of 8 miles per hour. At 2:00 P.M. the mate had observed the lead barge was "slightly down by the bow."

The captain of the John Purves, Captain Bernard Gjerde, ordered the barges to be pulled up close enough so that several men could go aboard the lead barge. The log indicates that they reported 6 inches of water "forward," i. e., in either the forward raked tank or the forward main tank. In any event, only one of the hatches was removed, and only one of the tanks was inspected.

At 2:45 P.M. the tug resumed speed at 600 rpm on the same course into the head seas built up by the 25 to 30 miles per hour easterly winds. The evidence established, and the court so finds, that the waves at that time were at least 4 feet high. Captain Gjerde then went below for a nap,...