Eastern Tar Products Corp. v. Chesapeake Oil Transport Co.

• Decision Date: 09 January 1939
• Docket Number: No. 4399.,4399.
• Citation: 1939 AMC 58,101 F.2d 30
• Parties: EASTERN TAR PRODUCTS CORPORATION et al. v. CHESAPEAKE OIL TRANSPORT CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

1939 AMC 58, 101 F.2d 30 (1939)

EASTERN TAR PRODUCTS CORPORATION et al. v. CHESAPEAKE OIL TRANSPORT CO. et al.

No. 4399.

Circuit Court of Appeals, Fourth Circuit.

January 9, 1939.

George W. P. Whip, of Baltimore, Md. (Braden Vandeventer, of Norfolk, Va., on the brief), for appellants Eastern Tar Products Corporation and Liquids Transp. Corporation.

Emory H. Niles, of Baltimore, Md. (Theodore R. Dankmeyer, of Baltimore, Md., on the brief), for appellant Tar & Asphalt Transp. Co.

William A. Grimes, of Baltimore, Md. (Ritchie, Janney, Ober & Williams, John W. Farrell, and Robert W. Williams, all of Baltimore, Md., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and H. H. WATKINS, District Judge.

NORTHCOTT, Circuit Judge.

This is an appeal from a decree entered in the District Court of the United States for the District of Maryland, at Baltimore, involving a libel filed on October 25, 1937, by Eastern Tar Products Corporation, a Maryland corporation, and intervening libels filed by appellant, Liquids Transportation Corporation, a Delaware corporation, on December 10, 1937, and the appellant Tar & Asphalt Transportation Company, a Maryland corporation, filed on December 14, 1937. The libels were filed against the appellees, Chesapeake Oil Transport Company, George E. Rogers, Calvert Bank as Trustee, and Blanche T. Rogers and the steamtug Frances. Answers were filed by the appellees on January 25, 1938, to the libel and intervening libels.

The controversies arose out of a marine catastrophe which occurred on February 21, 1937, in Chesapeake Bay, while the tug Frances, owned or operated by the appellees, was towing the barge U. S. No. 232, owned by Tar & Asphalt Transportation Company, and the barge Louisiana Girl, owned by the Liquids Transportation Corporation, from Washington to Norfolk. The barges were loaded with tar.

The Frances was a steamtug of 200 horse power, about 80 feet long, 17 feet beam, and 8 feet 4 inches deep. The barge 232 was 144 feet long and the barge Louisiana Girl was 100 feet long. The barge 232 was next to the tug, connected by a single hawser, and the Louisiana Girl was behind barge 232, connected to it by double lines. In the course of the voyage a storm was encountered on the afternoon of February 21, and shortly after four o'clock the starboard hawser between barge 232 and the Louisiana Girl parted causing the rear barge to slew around, dragging the 232 broadside to the wind and waves. The windows and door of the cabin house of 232 were smashed, letting water into her after compartment. Shortly thereafter the remaining hawser between the barges parted and then the hawser between the tug and 232 also parted and barge 232 was anchored. The Louisiana Girl had no anchor and drifted into shoal water where it was impossible to get a line from her to the tug. In the meantime the 232 was sinking. The captain of the tug after taking on board the captains of the two barges, they had no other crew, abandoned the barges and proceeded to Norfolk. The barge 232 sank and with the cargo was a total loss. The Louisiana Girl, though adrift, was picked up and towed to Norfolk. The barge and cargo were undamaged.

The libel was brought by the Eastern Tar Products Corporation to recover the value of the tar on barge 232, the intervening libel filed by Tar & Asphalt Transportation Company was to recover the value of the barge 232 and the intervening libel filed by Liquids Transportation Corporation was to recover expenses paid for salvaging the barge Louisiana Girl and her cargo.

In the libels there were allegations that the tug was at fault because of insufficient power, improper towing lines, and faulty seamanship on the part of her captain. It was also alleged that barge 232 was unseaworthy.

In May, 1938, a hearing was had at which witnesses were heard on behalf of the libelants and the respondents. The judge below filed an opinion on July 7, 1938, in which he made findings of fact and reached the conclusion, as a matter of law, that the tug Frances was not liable for any damages growing out of the catastrophe. On August 16, 1938, a final decree was entered dismissing all the libels. From this action of the court below this appeal was brought.

The questions involved are first; whether the tug Frances was seaworthy, and second; whether there was any negligence in the navigation of the tug.

The judge below found that the tug and equipment were seaworthy; that there was no negligence in her navigation and that the cause of the damages was a sudden and severe storm which was accompanied by high winds and heavy seas; that the storm could not have been reasonably anticipated but was a peril of the sea and that the tug was not responsible for the damages.

We are of the opinion that all the findings of the trial judge are supported by the weight of the evidence and are correct.

The holding of the judge that the storm was so severe as to constitute a peril of the sea, for the consequences of which the tug could not be held liable, is strongly supported by the fact that when the Coast Guard station was appealed to for help for the barges, on the arrival of the tug at Newport News, aid was refused because of the severity of the storm. The storm was proven to have been of unusual severity, the approach of which was not indicated by barometer readings. The velocity of the wind that accompanied the sudden squalls was more than forty miles an hour and the wind came in sudden gusts.

The liabilities of a tug with respect to its tow were discussed by this court in Southgate v. Eastern Transportation Co., 4 Cir., 21 F.2d 47, where Judge Waddill said page 49:

"A vessel, seeking the services of a towboat, holds itself out to be sufficiently staunch and strong — that is, seaworthy — to withstand ordinary perils of the sea to be anticipated on a voyage; and a tug has also the right to assume that the tow will carry a competent and sufficient crew, and is not liable for dangers, either from the unseaworthy condition of the barge or for the failure of its owners to properly man and equip the same. Citing cases.

"The duty of a tug to its tow is likewise well understood. The tug is not an insurer of the safety of the tow, nor is there imposed upon it the obligation of a common carrier; but it is charged with the duty of exercising reasonable and ordinary care for the protection and safe-keeping of the tow intrusted to it, and should faithfully and diligently discharge its undertaking,...