Dow Chemical Company v. Tug Thomas Allen

• Decision Date: 14 September 1972
• Docket Number: 71-530.,Civ. A. No. 71-526
• Citation: 349 F. Supp. 1354
• Parties: The DOW CHEMICAL COMPANY v. TUG THOMAS ALLEN, her engines, tackle, apparel, furniture, etc., in rem, et al. Louie Ray BROWN v. NEW YORK UNDERWRITERS INSURANCE COMPANY et al.
• Court: U.S. District Court — Eastern District of Louisiana

349 F. Supp. 1354

The DOW CHEMICAL COMPANY

v.

TUG THOMAS ALLEN, her engines, tackle, apparel, furniture, etc., in rem, et al.

Louie Ray BROWN v. NEW YORK UNDERWRITERS INSURANCE COMPANY et al.

Civ. A. Nos. 71-526, 71-530.

United States District Court, E. D. Louisiana.

September 14, 1972.

COPYRIGHT MATERIAL OMITTED

James B. Kemp, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Dow Chemical.

George A. Frilot, III, Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for New York Underwriters.

Donald L. King, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Utica Mutual Insurance Co.

H. Harwell Herrin, Diaz & Herrin, Golden Meadow, La., for Pitre & Guildry Towing Co.

Philip E. Henderson, Henderson, Hanemann & Morris, Houma, La., for plaintiff Brown.

Stanley E. Loeb, Loeb & Livaudais, New Orleans, La., for defendant Dow.

MITCHELL, District Judge.

These cases involve a fire aboard the manned Barge 19-10 owned by Dow Chemical Company¹ while in tow of the Tug THOMAS ALLEN.

The first suit is brought by DOW² as owner of the Barge 19-10 against the Tug THOMAS ALLEN, in rem, against her owner, Pitre & Guidry Towing Co., Inc.,³in personam, and against the primary and excess hull and tower's liability insurers of the Tug THOMAS ALLEN, New York Underwriters Insurance Company⁴ and Utica Mutual Insurance Company,⁵ respectively. Dow's complaint claimed damages for the cost of repairing the barge and loss of use on the ground of negligent towage, breach of the warranty of workmanlike service and breach of a contract of towage, all resulting from an explosion and fire caused by a collision with an unmarked submerged gasline while the Barge 19-10 was in tow of the Tug THOMAS ALLEN in an oil field in Quarantine Bay, Louisiana, on February 28, 1970.

Dow, as a named assured, also claims damages (including attorneys fees, penalties and interest) for nonpayment pursuant to the insurance coverages afforded by New York and Utica.

Louie Ray Brown, a seaman employed by Dow aboard the Barge 19-10, filed an action for personal injuries⁶ against his employer and its insurer, Fireman's Fund Insurance Company⁷ under the Jones Act and general maritime law. Also named as defendants in this action were Pitre & Guidry and its primary and excess insurers, New York and Utica.

Dow and its insurer, Fireman's Fund, filed a cross-claim against Pitre & Guidry and its two insurers, contending that the contract of towage and the insurance policies obligated these defendants to indemnify Dow from any loss resulting from the casualty. They also seek reimbursement of maintenance and cure paid Brown, and reasonable attorneys fees.

Pitre & Guidry seek limitation of liability in both actions.

These actions were consolidated for trial on the merits and tried to the Court on a former date.⁸ By stipulation, all parties settled Brown's claim;⁹ the Court was simply to determine who should bear any, all or part of the loss of Brown.

After careful consideration of the evidence adduced at trial, briefs submitted by counsel and the law, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

I.

At all times pertinent hereto Dow, a Delaware Corporation, was the owner and operator of the service Barge 19-10, a non-self propelled, flat-deck inland coastal water vessel, approximately 120 feet in length, 35 feet in breadth and 8 feet in depth.

II.

At all times pertinent hereto, Louie Ray Brown was a citizen of the State of Mississippi, employed by Dow aboard its Barge 19-10.

III.

At all times pertinent hereto, Fireman's Fund was the general liability insurer of Dow as owner of Barge 19-10.

IV.

At all times pertinent hereto, Pitre & Guidry, a Louisiana corporation, was the owner and operator of the Tug THOMAS ALLEN, a twin screw steel-hull model tug, approximately 49.1 feet in length, 17.1 feet in breadth and 7.1 feet in depth.¹⁰

V.

Pursuant to a Towing Contract¹¹ between Pitre & Guidry and Dowell, a division of Dow, on February 27, 1970, the Tug THOMAS ALLEN was standing by Dow's Barge 19-10, which was completing the servicing of a well for Gulf Oil Corporation on Ward Rig Number 7, located in Quarantine Bay, Louisiana. The waters of Quarantine Bay are relatively shallow outside the main deep-water channels. In connection with drilling operations being conducted in the bay, unmarked submerged gas pipelines ran between the rigs. The evidence reflects that if any charts showing the locations of these pipelines existed, none were aboard the tug or the barge.

VI.

The crew aboard the THOMAS ALLEN consisted of her master, Forrest Anthony "Cisco" Plaisance, a tug skipper with approximately 18 years of experience on inland waters, and Harris J. Savoie, deckhand-cook. The barge was manned by Dow employees: A. J. Richard, a service engineer, who was in charge of the barge and the men on her; and two marine equipment operators, Louie Ray Brown and Edward Eugene Jones. None of Dow's employees had any experience in navigating a tug.¹²

VII.

Shortly after midnight, at approximately 1:00 a. m. on February 28, 1970, Dow completed its job aboard Ward Rig No. 7. Upon being told by a Gulf Oil Company employee to proceed with dispatch to Williams Rig No. 7 for a similar job, Richard told Captain Plaisance that the men on the Williams Rig were waiting and to get there as quickly as possible.

Upon information from the Gulf employee, Richard told Plaisance to tow the barge in a straight line from Ward Rig No. 7 to Williams Rig No. 7. Richard and the other personnel aboard the barge then went to sleep.

VIII.

The Williams rig was approximately one half mile away and clearly in sight. The tide was low. After making up to the Barge 19-10 in a "push" position, the THOMAS ALLEN proceeded toward Williams Rig No. 7 as directed. About half-way across, the THOMAS ALLEN ran aground on a sandbar. The tug captain radioed E. P. Lucas, the Dow dispatcher at Venice, Louisiana, who instructed Captain Plaisance to get the tug off the strand and to reach the Williams Rig as quickly as possible. After unsuccessful attempts to free the tug from the strand, the tug captain shut down to await high tide, and went to bed, leaving his deckhand on watch.

IX.

When Richard awakened at daybreak, approximately 5:00 a. m., he noticed the vessels were at a standstill. He boarded the tug, awakened the captain, and they returned to the barge for a discussion over a cup of coffee. Richard testified that he advised the tug captain that Dow was running late, the men on the Williams rig were waiting for them, and that the THOMAS ALLEN had to attempt to get to the Williams Rig No. 7.

Captain Plaisance testified that Richard directed that the tug back track over the same course used to reach the point of the strand and to return to the deep-water channel marked with buoys. From there the tug was ordered to follow a course through another deep-water channel, likewise marked with buoys, until reaching a point where it would be necessary to leave the deep-water channel and proceed over the shallow areas of the bay to Williams Rig No. 7.¹³

The uncontradicted evidence reflects that the tug captain protested, stating that he knew there were unmarked, submerged gaslines in the shallow areas of the bay adjacent to the deep-water channel and that he did not know the location of those gaslines. He further stated that if such a course were followed, he could not be responsible for striking the unmarked, submerged gaslines.¹⁴

X.

When Richard persisted that the tug attempt to reach Williams Rig No. 7 since the Barge 19-10 was already late, the tug captain requested a guide boat to lead the tug through the shallow areas containing the unmarked, submerged gaslines. The tug was made up in a pull position and proceeded to her destination. When the flotilla was in the main channel, Dow's dispatcher, Lucas, was contacted, and a guide boat was requested. However, the testimony reflects that Lucas reported that none was available at that time.

Captain Plaisance stated to both Richard and Lucas that the water in Quarantine Bay was shallow, that he did not know where the gas pipelines were, and that it was dangerous to proceed without a guide boat.

Lucas and Richard told Plaisance they must get to the rig as quickly as possible.¹⁵

XI.

At Lucas' request, radio contact was made with Norris Falgout, captain of the tug BAYPORT, who had been last to work Quarantine Bay. Captain Falgout and the BAYPORT generally did the same type of work as Captain Plaisance and the THOMAS ALLEN.

Captain Falgout told Richard that the field was dangerous, but if a man knew what he was doing, he shouldn't have any trouble.

Plaisance, not to be outdone by Captain Falgout, said he knew where he was and what he was doing.¹⁶

Plaisance admits making this statement, explaining that he meant that he knew the field, but did not know where the pipelines were.

XII.

The flotilla, with the tug pulling the barge stern first, proceeded in the marked navigable channel. As it reached a point abreast of the Williams Rig, Captain Plaisance made the decision to turn out of the channel into the bay toward the rig, which was plainly in view.

As anticipated, the water in the bay was shallow. The barge drew between 4½ feet of water; the tug drew approximately 5½ feet at her keel and, when pulling the barge, had a tendency to squat approximately 6" deeper in the water. Captain Plaisance testified that the tug was not dragging bottom as the flotilla slowly made its way to the rig.

The Court finds no evidence to indicate that Captain Plaisance acted unreasonably in turning into the bay at that point or proceeding in a straight line to the rig. The testimony reveals that there were no markings to indicate any type of existing underwater obstructions.

XIII.

At approximately 6:30 a. m., after the tug was approximately 200 feet into the bay from the channel, the...