Atlantic Towing Co. v. The Caliche, 475

• Decision Date: 08 September 1942
• Docket Number: 477.,No. 475,475
• Citation: 47 F. Supp. 610
• Parties: ATLANTIC TOWING CO. et al. v. THE CALICHE et al. MERRY SHIPPING CO. v. SAME.
• Court: U.S. District Court — Southern District of Georgia

47 F. Supp. 610

ATLANTIC TOWING CO. et al. v. THE CALICHE et al.

MERRY SHIPPING CO. v. SAME.

Nos. 475, 477.

District Court, S. D. of Georgia.

September 8, 1942.

Lawton & Cunningham, of Savannah, Ga., for Atlantic Towing Co.

Connerat & Hunter, of Savannah, Ga., for Merry Shipping Co.

Barry, Wainwright, Thacher & Symmers, of New York City, and Anderson, Cann & Dunn, of Savannah, Ga., for the Caliche.

LOVETT, District Judge.

These are libels in rem against the motor vessel "Caliche", a tanker loaded with gasoline, for salvage services rendered in her rescue after she went aground on the north side of Tybee channel on the north Breaker Shoals. Libellants are the owner of certain tugs that came to her assistance and the owner of a self-propelled river barge into which a portion of the cargo was discharged while the tanker was aground. The cargo and freight were not proceeded against; the claims are against the ship only.

The defenses are the same in both cases — that there was no salvage service in the true or conventional sense, but even if so regarded libellants are entitled only to a moderate award, there being little risk to the salvors and little danger to the property saved.

On the hearing amendments were offered by libellants setting up negligent navigation of the tanker causing the stranding, whereby, it is said, the ship is primarily liable for the proportion of salvage usually chargeable against cargo and freight. On objection to the amendments ruling was reserved.

The cases were heard together, and accordingly may be disposed of in one opinion.

The issues of fact are within narrow compass.

I find as follows:

The "Caliche", bound on a voyage from Texas to Savannah, Ga., went aground with a full cargo of gasoline, approximately 58,000 barrels, at 2 a. m., April 20, 1941, about one hour before high water, near the entrance to the channel off Tybee Island. She was then traveling at a speed, aided by the tide, of 10½ to 11 miles per hour, her full speed. The testimony of the master shows the vessel arrived off Savannah Bar at 12:15 a. m., where and when he anchored to wait for high water. He had been under way about fifteen or twenty minutes when his ship, having left the channel, stranded on the shoals. The second mate was piloting the ship, as he had a pilot's license and the master had none. One of the range lights marking the range leading into the Savannah river had been blown down in a hurricane some months before. Two green buoys had been established on the south side and one on the north side of the channel, and the mate had only these buoys to guide him. In some way he got out of the channel on the north side, in shoal water, between two buoys, where the depth was 19 feet at mean low water. The vessel loaded drew 25 feet 4 inches of water. After grounding the ship worked her engines for an hour or two trying to free herself from the strand without success. The master then wired the owners in New York, told them he was stranded, and asked that they send tugs and assistance, and they in turn communicated with the Towing Company which sent tugs from Savannah to the assistance of the stranded vessel. Later, upon request of the owners, the river barge also went to the place of stranding to lighten the tanker by taking off some of the cargo.

About 9:45 a. m. on April 20th two tugs of the Towing Company, the "Robert W. Groves" and "Wm. F. McCauley", arrived on the scene, made fast to the "Caliche" and took soundings around her. No effort was made to release her until high water in the afternoon, which was at 3:42 o'clock. The two tugs pulled on the stern from 2 until about 4:30 o'clock, but were unable to move the vessel. The ship was aground her full length about five inches, possibly more. That was the master's estimate. By direction of the master, the tugs then hauled the ship's anchor, weighing about five tons, with sixty fathoms of chain, into deep water. The tide having fallen, the two tugs left for Quarantine Station up the Savannah river, about nine statute miles, intending to return and pull on the ship again on the next tide in the early morning of April 21st, which they did.

The same two tugs pulled and pushed on the starboard side and the ship heaved on her anchor from 2:55 a. m. to 4:45 a. m. the next morning without result, except to slue the stranded ship about in her bed some ten degrees towards the channel. On high water the same afternoon the two tugs were joined by a third, the "Cynthia No. 2", and the three worked on the ship; two of them pushed under the starboard bow and one under the starboard quarter at first, and finally all three were under the starboard bow. These operations continued from 3:15 to 5:40 p. m. Meanwhile, between the pulling on the morning and afternoon tides, the river barge, the "Merry Queen", arrived on the scene from Savannah and loaded approximately 4,500 barrels of gasoline from the "Caliche", taking it up the river to its destination at Savannah. No success attended the efforts of the tugs even though the ship had thus been lightened. They again returned to Quarantine, and perhaps to Savannah.

The barge again went to the "Caliche" on the next morning, April 22nd, and took off 3,500 barrels more of gasoline, finishing the lightering about 1:30 p. m., at which time the wind had changed from a southerly or southeasterly direction into the northeast with a rough sea. The master of the "Caliche" wired the owners that afternoon: "Caliche second lightering finished 1:30 p. m. Think ship will float at high tide 5:00 p. m. No further lightering can be done Strong northeast wind Rough seas". The owners thereupon wired the Towing Company, "Send tugs out to stand by ship. Strong northeast wind Rough sea". Before this message arrived the three tugs had departed. On arrival at the scene the "McCauley" took hold of the "Caliche" about 2:15 p. m., April 22nd. Again the ship heaved on her anchor and she came off the shoals about 3:10 p. m. The "Cynthia" because her decks were leaking in the heavy weather, recently having undergone repairs, returned to Savannah without performing any service on this day. The "Robert W. Groves" stood by. High tide was at 5:22 p. m.

The "Caliche" then proceeded to Savannah under her own power without incident.

When the vessel stranded and for two days ensuing the weather was good and the sea calm, the breeze being only 6 to 8 miles per hour and from the southeast. On the third day, during the morning of April 22nd, around 11 a. m., it began to breeze up and the wind got fresher and fresher, coming from the northeast, until it reached 6 Beaufort scale, strong breeze, 29.5 miles per hour. This was the condition when the "Merry Queen" stopped taking on cargo at 1:30 p. m., and continued during the afternoon. Where stranded the tanker was fully exposed to the sea. The barge receiving cargo had difficulty remaining alongside. She came up on the lee or starboard side and made fast to the "Caliche" with four lines. Old automobile tires were used as fenders and they were cut by the impact of the vessels. A spar was then put between them and was kept in place with great difficulty. The barge was a flat bottom boat designed for river service only, and her deck was 12 to 14 feet below the deck of the tanker. When the wind shifted to the northeast the barge was on the weather side, and the danger increased. As the seas rose they came over the stern of the barge and there was danger of the lines parting. When the barge finally cut loose at 1:30 p. m., the hose had to be turned loose on the tanker's deck as the barge's deck was under water and it would have washed a man overboard to unhook the hose there. Tanker and barge were steel vessels. If they had collided and ignited a spark, and the hose had parted, the possibility of fire would have been very real.

Each of the three tugs rendering service carried crews consisting of a master and five men; the river barge had a crew of nine men including the master and a pilot who was taken aboard.

The masters of the several tugs had the master of the "Caliche", at the end of each pulling service, to sign a slip or memorandum showing the time the tug made fast, started and let go, and the draft forward and aft, in which in printed words the following appeared: "The following service has been performed * * * as per conditions and rates for tug services a copy of which has been received by me", and then follows a brief description of the service rendered. The "conditions and rates" in evidence, show the charges for docking, undocking and shifting vessels, and for "pulling on vessels aground in river" at certain described locations, none of which includes the place of stranding, outside, in this case.

By stipulation it is agreed the sound value of the "Caliche" at the time she was grounded was $475,000; value of cargo, less freight, was $116,952.14; freight $11,068; and the cost of repairing damage to the tanker was $14,284. I find the value of the "McCauley" $140,000, the "Groves" $75,000, and the "Cynthia No. 2" $150,000; and the value of the barge "Merry Queen" $140,000.

Evidence was taken as to the cost of the tugs many years ago, and of the tax returns. I consider this evidence of little aid in arriving at values. The tugs have been re-conditioned, they are equipped for salvage service and no other like equipment is available in the port of Savannah. Tax returns are unsatisfactory evidence. The court judicially knows that undervaluation for tax purposes in Georgia is common. See The Silverway, Savannah Sugar Refining Corp. v. Atlantic Towing Co., 5 Cir., 15 F.2d 648. The barge was new, its recent cost shown. Other like equipment to the barge may have been available, of less capacity, but it was not shown to have been equally serviceable.

My conclusions of law follow.

The amendments to the libels should be disallowed.

Putting aside the urge that they were not seasonably offered, I think...