Boston Metals Co. v. The Winding Gulf

• Decision Date: 04 January 1954
• Docket Number: No. 6637.,6637.
• Citation: 209 F.2d 410
• Parties: BOSTON METALS CO. v. THE WINDING GULF et al. THE ST. FRANCIS.
• Court: U.S. Court of Appeals — Fourth Circuit

209 F.2d 410 (1954)

BOSTON METALS CO. v. THE WINDING GULF et al. THE ST. FRANCIS.

No. 6637.

United States Court of Appeals Fourth Circuit.

Argued November 11, 1953.

Decided January 4, 1954.

John H. Skeen, Jr., Baltimore, Md. (William A. Skeen and Eugene M. Feinblatt, Baltimore, Md., on brief), for appellant.

Charles S. Bolster, Boston, Mass. (Theodore R. Dankmeyer, Baltimore, Md., Seymour P. Edgerton, Bingham, Dana & Gould, Boston, Mass., and Niles, Barton, Yost & Dankmeyer, Baltimore, Md., on brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

A collision on the night of July 13, 1945 at sea outside the southernmost end of Buzzards Bay, Massachusetts, between the steam collier Winding Gulf and an obsolete destroyer which formerly belonged to the United States and was then in tow of the tug Peter Moran, caused damages to the ship and the total loss of the destroyer. On November 14, 1945 Boston Iron and Metal Company, a Maryland corporation which owned the destroyer, filed a libel against the ship and her owners in the District Court of Maryland. Thereupon Massachusetts Trustees of Eastern Gas and Fuel Associates, a voluntary association organized under the laws of Massachusetts, filed a claim to the ship as owners thereof and also filed a cross libel in personam against Boston Metals.

The District Judge held upon the trial of the case that the ship was in fault in not changing her course or speed, and that the owner of the destroyer was at fault in respect to lights and absence of crew on the destroyer, and that both faults contributed to the collision, and accordingly entered an interlocutory decree for division of damages. See the opinion of Judge Chesnut in The St. Francis, D.C., 72 F.Supp. 50.¹ The judge subsequently found that Boston Metals had suffered damages in the sum of $15,000 for the loss of the destroyer and that Massachusetts Trustees had suffered damages for injury to the ship in the sum of $18,657.04, and entered final judgment in favor of Massachusetts Trustees in the sum of $1828.52 with interest. See Boston Iron & Metals Co. v. S. S. Winding Gulf, D.C., 85 F.Supp. 806.

Boston Metals was held liable for the faults of the destroyer although she was a dead ship unmanned and without motive power and was being towed by the tug Peter Moran when the collision took place. Ordinarily the faults of navigation of the tow under such circumstances could not be imputed to the owners of the tow but only to the tug. Sturgis v. Boyer, 24 How. 110, 16 L.Ed. 591; The Eugene F. Moran, 212 U.S. 466, 29 S.Ct. 339, 53 L.Ed. 600; The John D. Rockerfeller, 4 Cir., 272 F. 67. In this case, however, there was a special form of contract between Boston Metals, the owner of the destroyer, and the Foundation Maritime, Ltd., a Canadian corporation which agreed to supply the tug for the towage of the destroyer and an accompanying ship from Sydney, Nova Scotia, to Baltimore, Maryland, for $11,000, with the understanding that the services of the towing company would be supplied in accordance with the Standard Towing Conditions attached to and made a part of the contract as follows:

"2. The services will be supplied upon the condition that all towing, moving, shifting, docking, undocking or other handling of a vessel or craft of any character by a tug or tugs owned or employed by the Tug Company is done at the sole risk of such vessel or craft and of the owners, charterers or operators thereof, and that the Master and crew of such tug or tugs used in the said services become the servants of and identified with such vessel or craft and their owners, and that the Tug Company only undertakes to provide motive power.

"3. The Tug Company will not be responsible for the acts or defaults of the Master, or crew of such tug or tugs, or any of their servants or agents or else whosoever, nor for any damages, injuries, losses or delays from whatsoever cause arising that may occur either to such vessel or craft, or property or persons on board thereof, or to any other ship or vessel or property of any kind whether fixed or movable and the Company shall be held harmless and indemnified by the Hirer against all such damages, injuries, losses and delays, and against all claims in respect thereof."

The District Judge held that these conditions of the contract legally resulted in making the faults with respect to lights and absence of crew on the destroyer directly attributable to Boston Metals, her owner, and that these faults might be ascertained in the pending suit without being first litigated in a suit by the Winding Gulf against the tug, because they constituted faults of the master of the tug who, by the terms of the agreement, became in this respect the servant of Boston Metals.

The tug, Peter Moran, was not brought into the instant suit because of lack of jurisdiction in the Maryland court, but subsequently the Massachusetts Trustees filed a libel for damages to the collier against the tug in the Southern District of New York. The New York suit was still pending when the decision in the instant case was filed, but has since been decided by Judge Coxe in Adams v. The Peter Moran, D.C. S.D.N.Y., 94 F.Supp. 520. The case was heard upon the deposition of the master of the tug taken in the Maryland suit and upon a stipulation that the facts were as found by Judge Chesnut in his opinion; and the judge held upon the record, as Judge Chesnut had previously found, that both the ship and the tug were at fault and that the faults of both contributed to the collision. He also held that the provisions of the towing contract making the master of the tug the servant of the owner of the tow merely served to fix the relationship between the tug and the Boston Metals, and could not affect the liability of the tug or the liability of the tow, as independent vessels, each one liable to the collier for its own fault. He therefore entered a decree dividing the damages equally among all three vessels, since all were equally at fault, but providing that the collier should not receive more than two-thirds of her damages, taking into account the amount collected from Boston Metals under the Maryland decree.

Boston Metals contends that the great preponderance of the evidence shows that the collision was due solely to bad navigation on the part of the Winding Gulf without any fault on the part of the tug; and that even if the tug was negligent in respect to lights or the absence of a crew on the tow,...