COMPLAINT OF BFT NO. TWO CORP.

• Decision Date: 30 June 1977
• Docket Number: Civ. A. No. 74-391.
• Citation: 433 F. Supp. 854
• Parties: Complaint of B.F.T. NO. TWO CORP. as Owner, and Boston Fuel Transportation Inc., as Chartered Owner and Operator of the TUG HARBOR STAR, for Exoneration from and Limitation of Liability.
• Court: U.S. District Court — Eastern District of Pennsylvania

433 F. Supp. 854

Complaint of B.F.T. NO. TWO CORP. as Owner, and Boston Fuel Transportation Inc., as Chartered Owner and Operator of the TUG HARBOR STAR, for Exoneration from and Limitation of Liability.

Civ. A. No. 74-391.

United States District Court, E. D. Pennsylvania.

Opinion April 19, 1977.

Supplemented June 30, 1977.

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Raymond T. LeTulle, Philadelphia, Pa., for plaintiff.

Alfred J. Kuffler, Philadelphia, Pa., for defendant.

OPINION AND ORDER

HUYETT, District Judge.

Judge Learned Hand once wrote:

Masters who choose to divine the purposes of other vessels and keep on, may avoid the charge of overcaution, but they take their chances. If they escape, well and good; if they fail, their owners pay.

A. H. Bull S.S. Co. v. United States, 34 F.2d 614, 616 (2d Cir. 1929). This case attests to the continuing vitality of Judge Hand's admonition: the facts reveal that sailors continue to take chances and the resolution evidences that their owners continue to pay.

At 0138 on the morning of September 13, 1973, the S.S. Santos, a tanker owned by Tankore Corporation (Tankore), collided on the Delaware Bay with a barge which was being towed by the Harbor Star, a tug owned by B.F.T. No. Two Corp. (BFT) and operated by Boston Fuel Transportation, Inc. (Boston Fuel). Plaintiffs, the owner and the operator of the Harbor Star, brought this action for exoneration from or limitation of liability. Tankore, owner of the S.S. Santos, entered the case as a claimant, and in addition the owner of the barge, the United States, asserted a cross-claim against Tankore. The government eventually relinquished its cause of action against Tankore for $247,500. As claimant, Tankore seeks to recover from plaintiffs BFT and Boston Fuel the amount paid in settlement to the United States, the owner of the barge, and for the damage sustained by the S.S. Santos.

Both claimant and plaintiffs contend that the collision was attributable solely to the fault of the other vessel. Alternatively, each alleges that any fault on its part was minimal compared with that of the other vessel.

After considering the stipulations agreed to by the parties, the proposed Findings of Fact and Conclusions of Law, the exhibits admitted into evidence, the testimony at trial and post-trial briefs, we make the following Findings of Fact and Conclusions of Law in accordance with Fed.R.Civ.P. 52(b). For ease of understanding, we choose to document our Findings of Fact and Conclusions of Law in narrative form rather than in separately numbered paragraphs.

FINDINGS OF FACT

I. Tug Harbor Star.

The tug Harbor Star is a diesel powered, uninspected towing vessel, which flies the American flag. She is 87'9" in length and has a beam of 24 feet. She was purchased by BFT in December, 1972 for $52,500. At all material times, she was equipped with radio transmitter, compass, radar and whistle in the wheelhouse. None of this equipment was situated at the aft control station, but there was a radio speaker in the galley which could be heard by someone manning the aft controls. (Exs. P-11D, P-11B).

Boston Fuel owns all the stock of BFT which is the titled owner of the tug. Both companies have common directors and stockholders. Pursuant to an oral agreement, Boston Fuel operates the tug, meaning that it supplies a crew, fuel, insurance and work for the tug on behalf of BFT. All income generated by the tug is credited directly to BFT and all expenses directly attributable to the tug are credited directly to BFT. At the end of each calendar year, BFT pays Boston Fuel a 15%-20% operating fee based upon the gross income generated by the tug.

On September 7, 1973, John Curry, dispatcher for Boston Fuel, received a call seeking a tug to tow a Navy houseboat from Boston to Philadelphia, a distance of 472 miles. The job was accepted and the following terms were agreed to: (1) the tow would be picked up in the Navy Yard in Boston on September 10; (2) the fee would be $75 per hour portal to portal (round-trip); and (3) the Navy would supply the running lights on the barge.

When the tug left Boston bound for Philadelphia she was manned by a seven-man crew: Captain MacDonald, Thomas Balcom, two engineers, two deckhands, and a cook. No decision had been made about the status of the crew and tug upon arrival in Philadelphia. The crew might have stayed over in Philadelphia for several days awaiting a return tow or a replacement crew might have relieved the original crew if a return tow could have been arranged for immediate departure.

The tug Harbor Star picked up the tow on September 10, 1973. The tow measured 261 feet long, 48 feet in beam and 40-50 feet high. The lights which were supplied to the tow by the United States Navy consisted of a 10 point green starboard running light, a 10 point red port running light, a 12 point white stern light and a 20 point forward white light. In addition, a forward strobe light was provided as a safety device which would signal if the barge began taking water.

The tug set off from Boston and proceeded down through the Cape Cod Canal and Long Island Sound. With the tow on a 1200 foot hawser, the Harbor Star continued down the New Jersey coast and entered Delaware Bay at about 0024 on the morning of September 13th. The night was clear with a full moon and visibility was at least 10 miles. In the bay, a 15 knot wind was blowing from the northeast and the current was running towards the southeast at about 1½ knots. As he entered the Delaware Bay, Tom Balcom spoke on the telephone with the Philadelphia Pilots' station. He was informed that there were several outgoing ships, but no mention was made of any incoming traffic.

The tug proceeded up to the east of the Brandywine Range, the deep water channel leading to the Delaware River up to the port of Philadelphia. When she arrived on the east side of the Delaware Bay one-half to three-quarters of a mile west of buoy R-2 and about 3 miles below buoy R-9 at Brown's Shoal, (Ex. P-10, point marked P-5) the tug stopped to shorten her hawser down from 1200 feet to the 200-300 feet needed for safe towing in the narrow confines of the Delaware River. This locale was known among seamen as a place often used for shortening up. (Ex. C-31, p. 24).

At 0119 the shortening-up process was commenced. No one was specifically appointed as a lookout during shortening up, but there were three men, Tom Balcom and two seamen, on the stern of the tug occupied with bringing in the hawser. Captain MacDonald was overseeing the operation from the aft steering station. During the shortening-up process or immediately before its commencement, two white lights were spotted on the horizon. The Captain checked the radar which was on a six-mile range and saw nothing. Two further checks of the radar by Captain MacDonald revealed nothing astern. (N.T. 243-44)

At 0137, when the hawser had been shortened to about 300 feet, the men on the tug espied the stem of the Santos off their starboard aft, approximately 400-500 feet from the barge. No whistle or radio contact was initiated by either vessel at this time. At 0138, the Santos' stem collided with the tow just forward of amidships. The impact pulled about 600 feet of the hawser line out before the seamen on the tug had an opportunity to cut the hawser.

Following the collision, the tug went alongside the barge and secured it. Subsequently, the barge was picked up by the Judy Moran and taken into Philadelphia. Undamaged by the collision, the Harbor Star left Delaware Bay at about 1410 on the 13th heading for Boston. After a stop in New London, Connecticut, the tug arrived in Boston at approximately 2300 on the evening of September 15, 1974.

II. Santos.

The S.S. Santos, a Liberian flagship, is owned by Tankore. The vessel, a tanker 639'7" in length, 80'5" across the beam and weighing 45,000 tons, was transporting a cargo of heating oil to Philadelphia.

Early on the morning of September 13th, the Santos was steaming toward the Delaware Bay to take a pilot on board to guide her up the Delaware River to Philadelphia. At about 0020-0025, Captain Cano on the Santos spotted a tug showing two or three towing lights. He first attempted to fix the tug with binoculars, but because of excessive glare, he continued his observation without the binoculars. The tug was bearing about 20 degrees to the Santos and the Captain estimated that it was six miles away. He looked at the radar at that time and was able to ascertain only one target on the screen.

At 0047, the Santos stopped in the pilot area to pick up Captain Orton, a duly licensed Delaware River pilot. When the pilot entered the bridge, at least 4 other persons were present: the seaman on watch at that time, the helmsman, the second officer, and Captain Cano. Shortly after entering the bridge, Captain Orton observed the tug showing three towing lights, bearing about 20 degrees off his starboard bow. He checked the radar, which was operating on a four-mile range, and only saw one pip near the outside of the ring. Subsequently, no constant radar watch was maintained, although the second officer checked it sporadically. Two targets, signifying a tug and tow, were never observed on the radar screen.

Subsequently, the pilot took the conn and brought the vessel to a course of 337°, heading for the entrance to the Brandywine Range. The tanker's engines were operating properly. (Ex. C-29, p. 9; Ex. C-25, p. 83-84). At 0048, the engines were put on half ahead. At 0052, the engines were advanced to full ahead where they remained until about one minute before the collision. At full ahead, the Santos made 7-8 knots over the ground after deducting the 1½ knot ebb current against which she was proceeding.

Several minutes before the collision, the pilot observed that the Santos' course was going to take her within 300 feet of the stern of the tug. The Santos altered her course...