Associated Dredging v. Continental Marine Towing
| Decision Date | 19 September 1985 |
| Docket Number | Civ. A. No. 83-5246 Section "I" (4). |
| Citation | 617 F. Supp. 961 |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | ASSOCIATED DREDGING COMPANY, INC. v. CONTINENTAL MARINE TOWING COMPANY, INC., et al. |
COPYRIGHT MATERIAL OMITTED
Francis J. Barry, Deutsch, Kerrigan & Stiles, New Orleans, La., for plaintiff.
Joseph T. Tynan, Poindexter, Bowers & Tynan, New Orleans, La., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The plaintiff, Associated Dredging Company, Inc. (Associated), filed this lawsuit against Continental Marine Towing Company, Inc., Real Towing Company, Inc., Commodore Maritime, Atlas Maritime Company, S.A., Empresa De Navegacao Aliance, S.A., ABC Insurance Company, XYZ Insurance Company, M/V MISS DEE, M/V ARABIAN CHALLENGER, and M/V ALNAVE, for damages sustained by the dredge CAPTAIN ROY P. BENOIT when it capsized in the Mississippi River in the early morning hours on October 29, 1982, while it was being towed by the M/V MISS DEE towards Venice, Louisiana.
Empresa De Navegacao Aliance, S.A., owner of the M/V ALNAVE, and Commodore Maritime and Atlas Maritime Company, S.A., owners of the M/V ARABIAN CHALLENGER were dismissed from this case via summary judgment.1 The Court held a non-jury trial on August 5, 1985 and the matter was subsequently taken under submission. Having reviewed the evidence, the memoranda of counsel, and the applicable law, the Court now enters its Findings of Fact and Conclusions of Law. To the extent that overlap exists between them, the Court's Findings and Conclusions are to be treated interchangeably.
(1)
Associated Dredging Company, Inc., a Louisiana corporation with its principal place of business in Harvey, Louisiana, was, at all pertinent times, the owner of the dredge CAPTAIN ROY BENOIT, a cutterhead and jet suction dredge, official number 566143, measuring approximately fifty feet in length by thirty-six feet in width and five feet in depth. The dredge has an all steel welded hull which is divided into five compartments, with a ten foot wide open machinery space running the full length of the hull, and manhole covers over the compartments which can be made watertight if securely bolted down.
(2)
Defendant, Real Towing Company, a Louisiana corporation, was, at all pertinent times, the operator of the M/V MISS DEE.
(3)
Defendant, Continental Marine Towing Company, a Louisiana corporation, was, at all pertinent times, the owner of the M/V MISS DEE.
(4)
This litigation arises out of the capsizing of the dredge CAPTAIN ROY BENOIT. The capsizing occurred in the early morning hours of October 29, 1982, upon the navigable waters of the Mississippi River in the Eastern District of Louisiana.
(5)
On October 28, 1982, the M/V MISS DEE was manned by Captain Joseph Rivas Daigle, Jr., pilot Gerald Baker, and deckhand Kevin Breland.
(6)
On October 28, 1982, a four vessel tow was made up at Associated Dredging's yard in Belle Chasse, Louisiana by Arnold Franklin Farmer, Roy Bergeron, Danny Harper and a deckhand. These individuals were employed by Associated Dredging aboard the dredge CAPTAIN ROY BENOIT. The tow was completed by Associated Dredging personnel prior to the arrival of the M/V MISS DEE. The tow consisted of a derrick barge attached to the towing hawser with the dredge CAPTAIN ROY P. BENOIT made up stern to stern with the derrick barge. Behind the dredge was the Q/B JANET and alongside the quarter boat was a small work boat, the M/V NELSON.
(7)
The M/V MISS DEE made up to the tow and inspected the tow before departing Associated Dredging's yard in Belle Chasse, Louisiana.
(8)
At approximately 1900 hours on Thursday, October 28, 1982, the M/V MISS DEE departed Associated Dredging's yard in Belle Chasse, Louisiana with the dredge CAPTAIN ROY BENOIT and the other vessels in tow.
(9)
While in tow, the dredge CAPTAIN ROY BENOIT had approximately one foot of freeboard at her bow and two to two and one-half of freeboard at her stern.
(10)
The M/V MISS DEE and her tow went through the Intercoastal Canal to the Algiers Locks where the crew of the dredge CAPTAIN ROY BENOIT inspected the tow lines and the dredge at approximately 12:30 a.m. on October 29, 1982. The crew of the dredge CAPTAIN ROY BENOIT stayed aboard the Q/B JANET during the voyage, but did not witness the accident.
(11)
The M/V MISS DEE and her tow then proceeded southbound on the Mississippi River. No other inspections of the tow were made by the Associated Dredging crew which this Court finds had assumed the obligation of inspecting and maintaining the tow.
(12)
At approximately 5:30 a.m. on the morning of October 29, 1982, two large unidentified oceangoing vessels passed the M/V MISS DEE and her tow within a few minutes of each other. These unknown vessels passed close to the tow's starboard side and caused the dredge CAPTAIN ROY BENOIT to shift violently from port to starboard, allowing wave wash to flood the open machinery space which ran the length of the hull. The Court notes that Gerald David Baker, an unlicensed pilot, was at the wheel of the M/V MISS DEE when the dredge capsized, and finds that Mr. Baker's lack of a required license in no way caused or contributed to the capsizing of the dredge CAPTAIN ROY BENOIT. The Court finds that Mr. Baker properly navigated the M/V MISS DEE and her tow at all times and did not receive any instructions or communications from the dredge crew although he had twice attempted to communicate with the crew of the dredge CAPTAIN ROY BENOIT.
(13)
The parties stipulated that Norman J. Dufour, Jr., a marine surveyor employed by Stickney Marine, was an expert in hull and machinery surveying. Mr. Dufour surveyed the dredge on November 8, 1982 at the Bisso Marine repair yard and noted that two manhole covers were missing on the aft port side of the dredge. He also noted that two square access hatches, each approximately four feet in length by twenty-eight inches in length, were not watertight and would allow water from wave wash to flow into the hold of the dredge CAPTAIN ROY BENOIT. Mr. Dufour also found a hole in the port bow corner of the dredge on internal inspection of the dredge. Mr. Dufour testified that this hole could not be seen from an outside inspection. Mr. Dufour also testified that if a wake or wave wash occurred, the dredge would take on water, first on the river or starboard side, and then from the shore or port side. Mr. Dufour further testified that the hole in the port bow corner would have aggravated the dredge's taking on water.
This Court accepts the testimony of Mr. Dufour and finds that the two manhole covers on the aft port side of the dredge, the non-watertight square access hatches, and the hole in the port bow corner of the dredge allowed wave wash from two unknown oceangoing vessels to flood the hold and the open machinery space of the dredge.
(14)
This Court finds that the wave wash created by the unknown oceangoing vessels flooded the hold, creating a loss of freeboard and an increasing loss of bouyancy which caused the dredge CAPTAIN ROY BENOIT to capsize. Plaintiff's contentions that the M/V MISS DEE improperly managed or navigated the tow are not supported by the evidence and are rejected by this Court.
The Court has jurisdiction over this matter under its admiralty and maritime jurisdiction; 28 U.S.C. § 1333, and Rule 9(h) of the Federal Rules of Civil Procedure.
Associated Dredging had a contract of towage with defendants for the transportation of the dredge CAPTAIN ROY BENOIT from the Associated Dredging yard in Harvey, Louisiana to Venice, Louisiana. In a contract of towage, the owner of the barge warrants that the vessel offered for towage is sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage. Consolidated Grain & Barge Co. v. Marcona Conveyor, 716 F.2d 1077, 1081 (5th Cir.1983). If the tow is unseaworthy by reason of weakness, decay, or leaks and such defects are not obvious to the master of the tug, the tug will be absolved from responsibility for such unseaworthiness if it is the cause of the damage complained of. This principle is commonly referred to as the warranty of seaworthiness. Kenny Marine Towing v. M/V JOHN R. RICE, 583 F.Supp. 1196, 1198 (E.D.La.1984); Massman Const. v. Sioux City & N.O. Barge Lines, 462 F.Supp. 1362, 1368 (W.D. Mo.1979).
The owner of the tug may rely on the warranty of seaworthiness and is under no duty tomake a detailed inspection of the vessel either prior to or during the voyage itself. The M/V MISS DEE was entitled to assume that the dredge CAPTAIN ROY BENOIT was seaworthy. Massman, supra, at 1368-69; King Fisher Marine Service, Inc. v. NP SUNBONNET, 724 F.2d 1181 (5th Cir.1984).
The owner of the tug is not an insurer of his tow, but is obligated to use such care in the performance of the work as a prudent navigator would under similar circumstances. Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 350, 76 L.Ed. 699, 703 (1932); Derby Company v. A.L. Mechling Barge Lines, Inc., 258 F.Supp. 206, 211 (E.D.La.1966), aff'd, 399 F.2d 304 (5th Cir.1984).
Unless Associated Dredging can establish a failure on the part of the M/V MISS DEE to meet this standard of care, they cannot recover. Stevens, supra, 285 U.S. at 202, 52 S.Ct. at 350. The burden of proof as to the negligence of the M/V MISS DEE is on Associated Dredging. Negligence must be shown by proof of specific acts of negligence or proof of a failure to exercise reasonable maritime skill unaided by any presumption of law. Massman, supra, 462 F.Supp. at 1374; Kenny Marine Towing, supra, 583 F.Supp. at 1199. The mere fact that the dredge CAPTAIN ROY BENOIT capsized and was damaged does not raise a presumption of fault on the part of the M/V MISS DEE. Stevens, supra; Houma Well Service, Inc. v. Tug CAPTAIN O'BRIEN, 312 F.Supp. 257, 260 (E.D.La.1970).
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