Farrell Lines, Incorporated v. Birkenstein

• Decision Date: 20 July 1962
• Citation: 207 F. Supp. 500
• Parties: FARRELL LINES, INCORPORATED, Libelant, v. The S/S BIRKENSTEIN, her engines, boilers, tackle, apparel, etc., and The Tug Pauline L. Moran, her tackle, engines, boilers, apparel, etc., and North German Lloyd (Nord. Deutcher Lloyd), Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents. NORDDEUTSCHER LLOYD, as owner of the s/s Birkenstein, Impleading Petitioner, v. The TUG PAULINE L. MORAN, her engines, boilers, etc., Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents-Impleaded.
• Court: U.S. District Court — Southern District of New York

207 F. Supp. 500

FARRELL LINES, INCORPORATED, Libelant, v. The S/S BIRKENSTEIN, her engines, boilers, tackle, apparel, etc., and The Tug Pauline L. Moran, her tackle, engines, boilers, apparel, etc., and North German Lloyd (Nord. Deutcher Lloyd), Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents.

NORDDEUTSCHER LLOYD, as owner of the s/s Birkenstein, Impleading Petitioner, v. The TUG PAULINE L. MORAN, her engines, boilers, etc., Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents-Impleaded.

United States District Court S. D. New York.

July 20, 1962.

COPYRIGHT MATERIAL OMITTED

George W. Sullivan, New York City (Stapleton, Flynn & Lilly), New York City, for libelant.

MacDonald Deming and Charles S. Haight, Jr. (Haight, Gardner, Poor & Havens), New York City, for respondent-impleading petitioner North German Lloyd (Nord. Deutcher Lloyd).

Eugene Underwood and Robert A. Feltner, New York City (Burlingham, Underwood, Barron, Wright & White), New York City, for respondents-impleaded The Tug Pauline L. Moran, Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc.

FRIENDLY, Circuit Judge (sitting by designation).

Farrell Lines, Incorporated, owner of a pier at the foot of 33d Street in Brooklyn, N. Y., fronting on Gowanus Bay, brought this libel against the M/V Birkenstein and the tug Pauline L. Moran in rem and North German Lloyd, a West German corporation, hereafter NGL, owner and operator of the Birkenstein, and Tug Agnes A. Moran, Inc., and Moran Towing and Transportation Company, Inc., New York corporations, the former being the owner and the latter the operator of the Pauline L. Moran, in personam. The libel sought recovery for damages caused to the pier by the Birkenstein while the latter was being maneuvered by a Moran pilot with the assistance of the Pauline during the afternoon of February 23, 1961. The Birkenstein and North German Lloyd denied fault but also asserted that if there was any, it lay at the door of the Moran defendants whom they impleaded. As might be expected, the latter claimed innocence on their own part and fault on that of the Birkenstein. The trial was expedited by the cooperation of the proctors, and their briefs have been pointed and helpful.

At the opening of the trial proctors for the three interests announced a settlement whereby Farrell Lines released all the defendants in consideration of $42,500, paid by NGL without prejudice to the Court's ultimate determination of its rights against the Moran defendants; Moran agreed to the reasonableness of the amount. Since the Birkenstein suffered no physical damage, the sole issue became where the cost of this settlement and of another compromise reached by NGL, relating to a personal injury claimant on the pier, should ultimately fall.

There is less disagreement as to the facts than is usual in a collision case — probably due to the circumstance that only one flotilla was in motion. At this point I make the following findings; I shall make additional ones in the course of the subsequent discussion:

1. The Birkenstein is a motor vessel of 5,798 gross tons, 3,350 net tons, 498'1" in length, and 60'4" in extreme breadth. She has a single righthanded screw. Her slowest speed is 5.3 knots. She is equipped with a Raytheon 10-centimeter Model 1402, 16-inch scope, radar. Her draft on the day in question was 15'6" forward and 17'6" aft.

2. The Birkenstein is one of a number of freighters operated by NGL into New York harbor. She and the other NGL freighters regularly dock at Prospect Terminal (also called Continental Piers) near the upper end of Gowanus Creek in Brooklyn.

3. The entrance to Gowanus Creek is through Gowanus Bay, which lies northeast of the Bay Ridge Channel. Gowanus Bay is some 750 yards long from 35th Street to 27th Street; Gowanus Creek, from 27th Street to the Prospect Terminal, is some 840 yards long. Between the 35th St. pier and Erie Basin, Gowanus Bay is about 400 yards wide; at the 33d St. pier it narrows to about 300 yards. Gowanus Creek is about 100 yards wide.

4. Moran Towing and Transportation Co., Inc. and NGL were parties to a Towing Contract. Under this contract, a printed form, Moran agreed "to furnish tugs for, and to attend to, all the towage requirements at the Port of New York" of all NGL vessels, at stipulated rates per tug for base periods and for additional time. The contract contained the following clause:

"PILOTAGE—When the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power, goes on board such vessel, or any other licensed pilot goes on board such vessel, it is understood and agreed that such tug captain or licensed pilot becomes the servant of the owner of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service, and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot, nor the tugs, their owners, agents, charterers, operators or managers shall be liable for any damage resulting therefrom."

5. The practice of the parties was that NGL's New York agent, United States Navigation Co., would advise Moran of the name of an arriving vessel, her estimated arrival time, and the pier to which she was to proceed. NGL did not specify the number or characteristics of the tugs to be furnished. The practice was for Moran to furnish at least two tugs, sometimes three. There was no general practice that the tugs so furnished would be equipped with radar. Some 71% of Moran's New York harbor tugs have radar; all have radio-telephone. The radar generally used on Moran tugs is the RMCA Model CR 103 3-centimeter set.

6. On February 22, 1961, NGL's New York agent advised Moran that the Birkenstein was expected at Ambrose Light at 13:00 on the following day, would proceed to Quarantine, and would then dock at Pier 3, Prospect Terminal.

7. The Birkenstein anchored at Quarantine on February 23, 1961, at 14:50 and departed for the inner harbor at 16:10. There is some variation in the estimates of visibility at the time of her departure from Quarantine; it seems likely that this was approximately one mile — probably less rather than more.

8. As the Birkenstein proceeded up the harbor, visibility worsened. Chief Officer Weisskopf testified that as she passed Anchorage 21-B at the entrance to Bay Ridge Channel, visibility was 400 meters. By the time the Birkenstein came opposite Bush Terminal, visibility had so decreased that the officers on her bridge could hardly see the bow 250' off. During the passage from Quarantine the Birkenstein was using her radar; this was functioning perfectly.

9. About 15:30 Moran's despatcher instructed the Pauline L. Moran that she was to meet the Birkenstein if the vessel left Quarantine. About 17:00 the despatcher advised that he thought the Birkenstein had left Quarantine and that the Pauline was to go out and get her and bring her into Prospect Terminal. He also advised that the James Moran was clearing the berth and that when the James was through with this, it would come out and help the Pauline dock the Birkenstein.

10. The Pauline L. Moran is a Diesel-electric powered tug with 1200 horsepower. She is 100.2' long; her gross tonnage is 211. She had no radar, as was apparent by inspection from the bridge of the Birkenstein. Her crew consisted of captain Cray, chief officer Smith, a deckhand, a cook, an engineer, and an oiler.

11. The Pauline had proceeded to a position off Pier 4, Bush Terminal Docks, when she heard a whistle which she thought came from the Birkenstein. The Pauline went out to find the vessel and did, first seeing her at a distance of 150' to 200'. The Pauline landed alongside to starboard, put a line up and put Cray aboard. This was at 17:16. Before leaving, Cray ordered Smith to put a line up in the first chock forward of the Birkenstein's bridge and to await further orders. The Pauline's engines were stopped. Smith took over command of the Pauline and the deckhand manned the lines. No one was posted on the bow.

12. Cray went immediately to the bridge of the Birkenstein. The others there were Captain Conrad, the Sandy Hook pilot, chief officer Weisskopf, officers' assistant Koepke at the engine telegraph, second officer Stindt at the radar, a helmsman, and a bridge lookout. Third officer Goldenstein, carpenter Meyer and another lookout were on the bow.

13. There are some differences, although not real contradictions, in the testimony as to the conversation when Cray reached the bridge. Conrad recalled only telling Cray the ship's draft, the range at which the radar was set, that the engines were stopped, "and where we intended to go", and asking which pier was ready. Cray's recollection was that he and Conrad "discussed the weather conditions, advisability of proceeding further, or any such action as he would care to take I would be glad to assist him in doing so"; Cray said he "only outlined the possibilities". He "made no recommendation" since "any action would have been hazardous". Cray testified that the master made the decision to proceed. Although Cray's version may be somewhat on the pat side, I see no sufficient reason to disbelieve him; indeed, the master's own testimony suggests that he then had no thought of doing anything other than to proceed to the pier unless someone strongly advised against it.

14. Cray's first engine order on the Birkenstein, at 17:20, was "dead slow ahead." His course was along Bay Ridge Channel toward the entrance to Gowanus Bay and then into the Bay; entering the Bay would require a change from 35° —40° to 55° —65°.

15. Shortly before Cray boarded, Stindt had put the Birkenstein's radar on the 1-mile range. For a time the radar continued to work well; Stindt made reports to the master and to Cray. But "the more we came to Gowanus Channel, the...