American Tug Boat Co. v. Washington Toll Bridge Authority, 33371

Decision Date22 December 1955
Docket NumberNo. 33371,33371
Citation291 P.2d 668,48 Wn.2d 117
PartiesAMERICAN TUG BOAT COMPANY, a Washington corporation, Appellant, v. WASHINGTON TOLL BRIDGE AUTHORITY, an instrumentality of the State of Washington, Respondent.
CourtWashington Supreme Court

O. D. Anderson, J. P. Hunter, Everett, for appellant.

Don Eastvold, Atty. Gen., Bogle, Bogle & Gates, Claude E. Wakefield, Edward C. Biele, Seattle, for respondent.

DONWORTH, Justice.

This case presents the single question whether the owner of a tug which is towing a raft of logs belonging to other parties, pursuant to a contract of towage, may maintain an action against the owner of a ferry boat for damages to the tow caused by the negligent operation of the ferry.

This question comes to this court as the result of the trial court's sustaining a demurrer to a complaint alleging, in substance, as follows:

On February 7, 1954, plaintiff's tug 'Gwylan' had in its exclusive possession and control a tow of four rafts of logs consisting of boomsticks (owned by Weyerhaeuser Timber Company and Snohomish River Boom Company) and logs (owned by Georgia-Pacific Plywood Company), pursuant to a contract to transport the tow for its owners from Everett to Port Blakely. On the date mentioned, when the tug and tow was off Alki Point in Elliott Bay, the ferry 'Willapa,' owned and operated by defendant, Washington Toll Bridge Authority, negligenty collided with the tow, thereby destroying thirteen boomsticks and scattering the logs.

On or about February 18, 1954, plaintiff, pursuant to RCW 47.60.230, filed a claim with defendant in the amount of $3,334.68, seeking reimbursement for (a) the value of boomsticks destroyed in the collision, and (b) the cost of salvage operations in collecting and rerafting the logs made necessary because of the collision. This claim was not paid.

It was further alleged that the collision was due solely to the negligence of defendant's servants in operating the ferry. Plaintiff prayed for recovery of the full amount of its claim.

A demurrer to the complaint was interposed by defendant on the grounds that (a) the court did not have jurisdiction of the subject matter, (b) plaintiff had no capacity to sue, (c) there was a defect in parties plaintiff, (d) the complaint did not state a cause of action, and (e) plaintiff was not the real party in interest. This demurrer was sustained and, upon plaintiff's election to stand on its complaint, judgment was entered dismissing plaintiff's action with prejudice. Plaintiff has appealed and assigns error to the sustaining of the demurrer and to the entry of judgment dismissing the action.

The legislature has provided that, upon compliance with certain conditions, a suit may be brought against the Washington Toll Bridge Authority to recover for damages arising out of injuries inflicted upon persons and property in the operation of its ferry system. The statutes granting this conditional right of action are as follows:

'In case of property loss or damage, personal injuries or death resulting from the operation of any ferry or terminal by the authority, any person or the personal representative of any person shall, subject to and to the extent hereinafter provided, have a right of action against the authority for such damage, loss, injury or death.' RCW 47.60.230.

'The right of action extended by RCW 47.60.200 to 47.60.270 shall be applicable to loss or damage of property and/or personal injury or death, resulting from the operation of ferries or terminals by the authority to persons other than shippers or passengers, but any recovery of damages in such cases shall not exceed an amount equal to the limitations of the insurance carried by the authority to insure it against loss for such liability.' RCW 47.60.240.

'As a condition to a recovery thereon, a verified claim against the authority growing out of such damages, loss, injuries or death must first be presented to the authority and filed with its secretary within thirty days after the time when such claim accrued. If the claimant shall be incapacitated from verifying and filing his claim within said thirty days, or if the claimant be a minor, then the claim may be verified and presented on behalf of said claimant by his relative, attorney or agent. Each such claim must accurately locate and describe the event or defect that caused the damage, loss, injury or death, reasonably describe the damage, loss or injury, and state the time when the same occurred, give the claimant's residence for six months last past and contain the items of damages claimed. No action shall be maintained against the authority upon such claim until the same has been presented to, and filed with, the authority and sixty days have elapsed after such presentation and filing, nor more than three years after such claim accrued.' RCW 47.60.250.

The principal question on this appeal is whether appellant qualifies as a 'claimant' under the statutes above quoted. If appellant may maintain an action in its own name against a private party under the facts alleged in the complaint, then it may file a claim with, and (after the expiration of sixty days) may institute a suit against, respondent. In other words, the decision in this case depends on whether a tug owner, under the facts alleged in the complaint, has a cause of action against the owner of a vessel negligently damaging the tow.

The trial court held that the only legal interest appellant had in the tow was its lien for towage services, and that, since the complaint did not allege the assertion of such a lien by appellant, it could not be a claimant under the statute, and had no capacity to maintain this action against respondent. The court, therefore, sustained the demurrer on the ground that appellant lacked the capacity to sue.

Respondent, arguing in support of this theory, cites Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 349, 76 L.Ed. 699, as holding that, in a towage contract for the towing of a vessel with a crew on board, the tug is an independent contractor and not a bailee of the tow nor an agent of the owner of the tow nor a common carrier. In that case, it was said:

'The tug does not have exclusive control over the tow, but only so far as is necessary to enable the tug and those in charge of her to fulfill the engagement. They do not have control such as belongs to common carriers and other bailees. They have no authority over the master or hands of the towed vessel beyond such as is required to govern the movement of the flotilla. In all other respects and for all other purposes the vessel in tow, its cargo and crew, remain under the authority of its master; and, in emergency, the duty is upon him to determine what shall be done for the safety of his vessel and her cargo. In all such cases the right of decision belongs to the master of the tow and not to the master of the tug. A contract merely for towage does not require or contemplate such a delivery as is ordinarily deemed essential to bailment. * * *' (Italics ours.)

In our opinion, the case is not in point here. If 'the vessel in tow, its cargo and crew, remain under the authority of its master', patently a contract of bailment does not exist, for there is lacking the element of delivery or change of possession which is essential to a bailment. The cited case has no application where, as here, the tug had exclusive possession and control of a 'dumb' tow.

There can be no question under the authorities but that appellant, as owner and operator of the tug, was a bailee of the boomsticks and logs which it had in its possession for towage purposes. This court has approved the definition of bailment stated in 6 Am.Jur. 140, saying:

'However we think there is another and better ground upon which the appellant must prevail. That is that there was no change of possession or delivery in this case. In defining bailment, 6 Am.Jur. 140 says: 'In its broadest sense it has been said to include any delivery of personal property in trust for a lawful purpose.' While we are not inclined to view the element of delivery in any technical sense, still we think there can be no delivery unless there is a change of possession of an article from one person to another.' Theobald v. Satterthwaite, 30 Wash.2d 92, 190 P.2d 714, 715, 1 A.L.R.2d 799.

In 6 Am.Jur (Rev. ed.) 178, Bailments, § 4, defining bailments, it is said:

'* * * it is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether or not such possession is based on contract in the ordinary sense.'

See, also, Ramsden v. Grimshaw, 23 Wash.2d 864, 162 P.2d 901; Spare v. Belroy Housing Corp., 179 Wash. 385, 38 P.2d 207; Hadley Warehouse Co. v. Broughton, 126 Wash. 356, 218 P. 257.

Cases from other jurisdictions in which a tug owner has been held a bailee of the tow are: Doherty v. Pennsylvania R. Co., 2 Cir., 269 F. 959; The Nonpariel, D.C., 149 F. 521; The Jersey City, 2 Cir., 51 F. 527; Knapp, Stout & Co. v. McCaffrey, 178 Ill. 107, 52 N.E. 898, affirmed 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921; Brown v. Clegg, 63 Pa. 51. See, also, Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911; Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122.

In our opinion, the allegations of the complaint that the tow, owned by third parties, was in the exclusive possession and control of appellant, pursuant to a towing operation for valuable consideration, were sufficient, as against demurrer, to plead a contract of bailment wherein appellant was the bailee of the tow.

Having determined that appellant was a bailee of the tow involved in this case, we now consider its right...

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  • State ex rel. Trimble v. City of Moore
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    ...in excess of his own interest must be held in trust to the extent of the bailor's interest. American Tug Boat Co. v. Washington Toll Bridge Auth., 48 Wash.2d 117, 291 P.2d 668, 672 (1956); Cramer v. Fischer Bakery Co., 98 Ohio App. 25, 128 N.E.2d 161, 164 (1953); Hudson Transit Corporation ......
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    ...v. State of Ohio, 248 U.S. 32, 34, 39 S.Ct. 16, 63 L.Ed. 108, (1918). (Italics ours.) In American Tug Boat Co. v. Washington Toll Bridge Authority, 48 Wash.2d 117, 119, 291 P.2d 668 (1955), this court recognized that the state has, by statute, granted certain conditional rights of action ag......
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