Curtis Bay Towing Co. v. Southern Lighterage Corp., 6445.

• Decision Date: 10 November 1952
• Docket Number: No. 6445.,6445.
• Citation: 200 F.2d 33
• Parties: CURTIS BAY TOWING CO. OF VIRGINIA, Inc. v. SOUTHERN LIGHTERAGE CORP. THE J. ALVAH CLARK. THE COVERED WAGON.
• Court: U.S. Court of Appeals — Fourth Circuit

200 F.2d 33 (1952)

CURTIS BAY TOWING CO. OF VIRGINIA, Inc. v. SOUTHERN LIGHTERAGE CORP. THE J. ALVAH CLARK THE COVERED WAGON.

No. 6445.

United States Court of Appeals, Fourth Circuit.

Argued October 10, 1952.

Decided November 10, 1952.

John W. Oast, Jr., Norfolk, Va., for appellant.

Edward R. Baird, Jr., Norfolk, Va., (Baird, White & Lanning and George M. Lanning, Norfolk, Va., on brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and WILLIAMS, District Judge.

DOBIE, Circuit Judge.

This is an appeal from an interlocutory decree of the United States District Court for the Eastern District of Virginia, awarding damages to the libelant, Southern Lighterage Corporation, for the sinking of its gravel laden scow, Covered Wagon, in the James River. The sinking is alleged to have been caused by the negligence of the respondent, Curtis Bay Towing Company, in failing to exercise reasonable care in the protection of the scow.

On May 2, 1951, at Dutch Gap on the upper James, the respondent's tug, J. Alvah Clark, picked up five unmanned scows of the libelant, each loaded with gravel, for towing down river to Norfolk, Virginia. The scows were the ordinary square-end type, with a slightly raked hull, 113 feet long, 30 feet wide and 9 feet in depth. The tow had been made up by libelant, in tandem and coupled at 4 feet, with the Covered Wagon second in line.

When the tow departed from Dutch Gap at 7 P.M., the scow in question had a freeboard of 3 feet 6 inches at either end and about 2 feet 6 inches amidships. Nothing untoward happened until 5:30 in the afternoon of the next day, when the first mate of the Clark noticed that the Covered Wagon had acquired a severe list on her starboard side forward, leaving a freeboard of only about 10 inches at that point. The attention of the tug's captain was directed to this condition and he immediately put about, boarded the scow, found that she was taking water through her seams, and set a pump against the leak. At this time it was raining, the tide was flooding and the wind was blowing adversely.

After starting the pump, the members of the crew of the Clark returned to the tug and she reassumed her position at the head of the flotilla to continue her trip. Just then a heavier rain fell, the pump stopped, and the tug once again put about to come alongside the scow. Before the tug reached the scow, however, the tug's propeller fouled in the towing hawser. With the aid of another vessel in the vicinity, the tug finally reached the Covered Wagon.

The pump was restarted and, as the Clark was then without power, she called a sister tug, the Dixie, for assistance. The Dixie arrived in about thirty minutes but the scow capsized while her crew members were attempting to put another pump aboard. After marking the scow with an appropriate light, the Dixie took the remainder of the flotilla in tow, including the still helpless Clark, and brought it to its destination.

The District Court held that the Clark failed in its duty to devote reasonable care to the protection of the Covered Wagon to prevent her foundering and that this want of care was the proximate cause of her loss. We are asked to review the correctness of this decision.

The law governing such situations is well settled. In a contract of towage, the owner of the tow is responsible for the seaworthiness of his vessel and the owner of the tug for its safe navigation. The Radnor, D.C.Md. 21 F.2d 982; The Lizzie M. Walker, 4 Cir., 3 F.2d 921. The owner of the tug is not an insurer against whom the mere loss of the tow raises a presumption of fault, Stevens v....