American Home Assur. v. L & L Marine Service, Inc.

• Decision Date: 15 June 1988
• Docket Number: No. 85-1820A(6).,85-1820A(6).
• Citation: American Home Assur. v. L & L Marine Service, Inc., 688 F. Supp. 502 (E.D. Mo. 1988)
• Parties: AMERICAN HOME ASSURANCE CO., Plaintiff, v. L & L MARINE SERVICE, INC., Defendant/Third-Party Plaintiff, v. APEX R.E. & T., INC., et al., Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Missouri

688 F. Supp. 502

AMERICAN HOME ASSURANCE CO., Plaintiff, v. L & L MARINE SERVICE, INC., Defendant/Third-Party Plaintiff, v. APEX R.E. & T., INC., et al., Third-Party Defendants.

No. 85-1820A(6).

United States District Court, E.D. Missouri.

June 15, 1988.

Samuel Murphy, Lucas & Murphy, St. Louis, Mo., for plaintiffs.

James W. Herron, Lewis & Rice, St. Louis, Mo., for defendant L & L Marine Service.

John S. Sandberg, Timothy J. Phillips, St. Louis, Mo., for defendant APEX.

MEMORANDUM OPINION

GUNN, District Judge.

This case involves an admiralty and maritime claim within the meaning of Rule 9(h), Fed.R.Civ.P. The Court has jurisdiction pursuant to 28 U.S.C. § 1333.

The cause arises out of the grounding of the loaded fuel tank barge APEX CHICAGO operated under charter agreement by third-party defendant Apex R.E. & T., Inc. ("Apex"), a wholly owned subsidiary of Apex Oil, Inc. At the time of the grounding, the barge was being towed by the towboat MAYA which was under charter to Apex but being operated by a crew of defendant L & L Marine, Inc. ("L & L").

Plaintiff American Home Assurance Co. ("American"), as insurer, paid Apex Oil Co. for the damage to the barge, the cost of the lost cargo and costs of pollution containment and cleanup. Plaintiff as subrogee seeks to recover from defendant L & L for its negligent operation of the tow MAYA. L & L has brought a third-party complaint against Apex under Rule 14(c), Fed.R.Civ.P., seeking indemnity or contribution alleging that the MAYA and its tow line were unseaworthy.¹

Pursuant to Rule 52, Fed.R.Civ.P., the Court makes the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff American Home Assurance Co. is a New York corporation. Defendant L & L Marine Service, Inc. is a Missouri corporation. Apex R.E. & T., Inc. is a corporation existing according to law and is a wholly owned subsidiary of Apex Oil Company.

2. A Missouri partnership doing business under the name of Central Barge & Boat Company ("Central") was the owner of the tug MAYA and barge APEX CHICAGO. Central chartered both the tug and barge to Apex.

3. The incident giving rise to this action occurred on October 19, 1981. Prior to and during October 1981, L & L and Apex jointly participated in the operation of the tug and barge under agreement on the following basis: L & L employed, paid and provided the crew for the MAYA, paid for provisions and supplies and expended funds on behalf of Apex for maintenance and repair of the vessels. Apex reimbursed L & L, or paid directly, all fuel costs, maintenance and repair costs, and paid a daily amount to cover crew wages and costs. Apex dispatched the vessels and was in daily contact with the crew of the MAYA.

4. The parties operated the vessels as a unit, with the barge being pushed or towed by the tug. The barge had no crew. The tug and barge were designed to function as a unit. The barge had a notch in its stern to accommodate the bow of the tug for movement in a pushing mode. The tug was equipped with a towing hawser for placing the barge in tow behind the tug.

5. The vessels were engaged in moving petroleum cargoes for Apex Oil, in the APEX CHICAGO, between ports on the northeast coast of the United States. Apex contracted with Apex Oil for the movement of the cargoes and was paid by Apex Oil for those movements. Other than any profits included in the daily rate paid it, L & L did not share in any profits or losses realized by Apex from the movement of the cargos.

6. Under agreement, L & L's crew had the responsibility for navigating the tug and barge, and on October 19, 1981 was in charge of the navigation of tug and tow.

7. In the early morning hours of October 19, 1981, while enroute from Carteret, New Jersey, to Boston, Massachusetts, the tow line securing the barge to the tug parted in heavy seas causing the barge, carrying a cargo of unleaded gasoline, to become stranded on rocks known as "The Hen and Chickens" off the coast of Massachusetts resulting in a loss of cargo aboard the barge. Apex Oil Co. was the owner of that cargo. L & L's crew was navigating the MAYA, with the APEX CHICAGO in tow at the time.

8. The barge was being towed on a hawser made up of a towing cable, a nylon shock line and a towing bridle. The bridle was made of chain and was secured to the port and starboard bow of the barge. A ten-inch circumference nylon shock line ran between the bridle and the end of the towing cable. The towing cable was mounted on a winch on the stern of the MAYA. The cable portion of the hawser parted. That cable was a one-and-one-half inch diameter galvanized wire made up of six parts of 24 metal strands each (6 × 24) with a rope core. The Apex purchase order shows that the cable, when installed, was 1,500 feet long and had a breaking strength of 133,000 pounds.

9. The anticipated route from Carteret, New Jersey, to Boston, Massachusetts, was through Long Island Sound, Block Island Sound, Rhode Island Sound, and then into Buzzard's Bay from which the tug and barge would enter Cape Cod Canal to Cape Cod and then to Boston Harbor.

10. The MAYA's captain was James Harrell; its relief captain was Wayne Katez.

11. During Wayne Katez's shift at watch from 12:00 a.m. to 6:00 a.m. on October 18, 1981 the MAYA proceeded in the pushing mode through Long Island Sound, traveling in a northeasterly direction. At 5:00 a.m. on October 18, 1981 the National Oceanic and Atmospheric Administration ("NOAA") issued a small craft advisory. NOAA's 5:39 a.m. weather forecast was:

Southerly winds increasing today to 20 to 30 knots and gusty by evening ... shifting to the west 15 to 20 knots late tonight and northwest Monday, visibility lowering to near a mile in occasional rain this afternoon and tonight. Seas building to 3 to 6 feet today ... 4 to 8 tonight.

12. At 6:00 a.m. Captain Harrell took over the watch and continued on course. At 8:15 a.m. Captain Harrell switched modes of handling the barge from pushing to towing, putting the barge on the tow wire. The tow wire was let out to a length between 650 and 750 feet and remained at this length for the remainder of the journey until the barge grounded.

13. During severe weather, it would have been advantageous to let out additional cable, but this could not be accomplished for the reason that the towing winch was mounted on the deck and required a manual release which would expose crew members to serious danger to attempt to shorten or lengthen the line under prevailing sea conditions.

14. The crew was not aware of the breaking strength of the tow line which had been installed prior to the time L & L began operation of the MAYA, and there were no documents on the tug which disclosed its breaking strength.

15. At 12:00 noon, Wayne Katez took watch as the MAYA continued pulling the APEX CHICAGO. At 2:00 p.m. the tug and barge were abeam Little Gull Island, which marks the end of Long Island Sound and the beginning of Block Island Sound.

16. Block Island Sound and Rhode Island Sound constitute waters unprotected from the Atlantic Ocean in the route from Carteret, New Jersey, to Boston, Massachusetts. It would be expected that higher seas and more adverse weather conditions would be encountered in the unprotected waters of Block Island Sound and Rhode Island Sound. Despite the small craft advisory and threat of worsening weather, Captain Harrell left the protection of Long Island Sound.

17. At 5:00 p.m. on October 18, 1981 NOAA changed the small craft advisory to gale warnings. NOAA's forecast was "southerly winds increasing 20 to 35 knots and gusty tonight shifting to westerly 20 to 35 knots and gusty Monday."

18. At 6:00 p.m. on October 18, 1981, when Captain Harrell came on duty, Mr. Katez informed him of the heavy seas and the gale warnings that had been issued. At this time the MAYA and APEX CHICAGO were two hours away from Block Island.

19. Captain Harrell discussed the feasibility of getting in the lee of Block Island where several other vessels were riding out the storm in the sheltered waters. Captain Harrell did not stay in the lee of Block Island but proceeded northwest through Block Island Sound and Rhode Island Sound to Buzzard's Bay.

20. The charts aboard the MAYA did not include navigation charts of the area.

21. Captain Harrell was advised by the captains of the vessels in the lee of Block Island that the seas were getting very bad to the north of Block Island in Block Island Sound, but he nevertheless chose to continue the voyage toward Buzzard's Bay.

22. After the tug and barge left Block Island, the weather conditions worsened with winds reaching 30 to 35 knots out of the southeast and seas rising from 8 to 10 feet. Periodically a squall would increase the rain and wind making visibility close to zero. The squalls were so intense that it rendered the radar inoperative at times. During the periods when the tug was in a squall the barge could neither be seen visually nor on radar.

23. At 11:39 p.m. on October 18, 1981, the following weather forecast was broadcast by NOAA:

Gale warnings still in effect. Wind southerly 20 to 35 knots rest of tonight shifting to the west 20 to 35 knots Monday morning and to the northwest 25 to 35 knots Monday afternoon diminishing Monday night. Visibility below a mile in rain and fog overnight ... Seas 3 to 6 feet except up to 8 feet at (Buzzard's) Bay entrance....

24. At 12:00 midnight Mr. Katez took over the duty watch. A gale warning continued with heavy seas, rain and winds from 30 to 35 knots. The radar showed the tug and tow three and a half miles outside of Buzzard's Bay at 12:00 midnight. Captain Harrell stayed on the bridge until 12:20 a.m. discussing with Katez their options and the weather conditions. Before leaving the bridge Captain Harrell gave Katez instructions to slow down to three knots once the tug and barge entered the bay in order that they would arrive at Cape Cod Canal by daylight as they did not...