Great Lakes Towing Co. v. American SS Co.

• Decision Date: 12 January 1948
• Docket Number: No. 10485.,10485.
• Parties: GREAT LAKES TOWING CO. v. AMERICAN S. S. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

165 F.2d 368 (1948)

GREAT LAKES TOWING CO. v. AMERICAN S. S. CO.

No. 10485.

Circuit Court of Appeals, Sixth Circuit.

January 12, 1948.

W. A. Eldridge and C. A. Schipfer, both of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, on the brief; Carl A. Schipfer and W. Alexander Eldridge, both of Cleveland, Ohio, of counsel), for appellant.

Laurence E. Coffey, of Buffalo, N. Y., and L. Y. Ray, of Cleveland, Ohio (Leckie, McCreary, Schlitz & Hinslea, of Cleveland, Ohio, and Richards & Coffey, of Buffalo, N. Y., on the brief; Lucian Y. Ray, of Cleveland, Ohio, and Laurence E. Coffey, of Buffalo, N. Y., of counsel), for appellee.

Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The suit was in admiralty, brought by the appellee as libelant, for the negligent towage of its steamer Consumers Power by the steam tug Idaho. The District Court found both vessels at fault and entered an interlocutory decree, dividing the damages. While the appellee did not appeal, it filed timely cross-assignments of error.

Consumers Power was a steel construction steam vessel, 512 feet long, with a 56-foot beam. In the early morning of May 8, 1945, it was anchored at Chesapeake and Ohio Dock, Number 3, Toledo, in a 200-foot wide slip, with her starboard side to the dock and her stern 150 feet from its end. On her port side, dock number 2 extended into the river some 800 feet further than number 3. The river channel, which was 500 feet wide, ran at approximately a 45 degree angle to the front ends of the two docks in a north-easterly and southwesterly direction. Buoy 38 marks the north-westerly limits of the channel and is approximately 1400 feet from the end of number 3 dock and 1,000 feet from the end of number 2 dock. Buoy 37 marks the south-easterly limits of the channel and is some 600 feet from the end of number 3 dock and 1,100 feet from the end of number 2 dock. The number 3 dock is approximately 900 feet from the easterly limits of the channel.

At about 4 a. m., the steamer, having completed its loading, called for a tug. Her steam was up, her crew at their stations, the captain in the pilot house, first mate forward, first assistant engineer in the engine room, and an experienced seaman stationed aft. The tug Idaho answered the call, and, without communicating in any way with the steamer, took in its stern line, and, receiving the all right signal, began the tow. The night was dark, the water calm, and the wind moderate. The stern of the vessel was to be turned toward its starboard side, so that its bow would face up the channel, and in order to successfully accomplish this maneuver it was necessary to clear buoys 37 and 38 with the stern and clear extended dock 2 with the bow. It was not, however, successfully accomplished. The stern of the steamer struck buoy number 38, the anchor chain of which fouled its propeller hub, stopping and disabling her engines and damaging her rudder and other parts.

The Court found that the tug had towed the steamer astern too fast, considering the turn to be made, did not swing the stern up-stream soon enough, and was late in giving full-speed-ahead signals to the steamer. It also found that the watchman of the steamer was not competent to accurately report to his pilot house the situation of the stern of the vessel and did not adequately report its proximity to buoy 38. It concluded that the collision and damage were therefore the result of the negligence of the tug. It also concluded that the steamer was likewise at fault in that the master took inadequate precautions for cooperation in the disposition of his crew and in respect to instructions given to them.

Although an appeal in admiralty is a trial de novo, the findings will not be set aside unless they are against the clear preponderance of the evidence, The Cleveco, 6 Cir., 154 F.2d 605-609. We consider it unnecessary to detail the testimony of the witnesses and deem it sufficient to say that there was conflict between those in charge of the tug and those on the steamer as to the sternway given the tow, the angles of pull by the tug, and the proximity of stern to buoy 38 when such angles were changed. In this situation, giving consideration to the fact that the District Judge saw and heard the witnesses, we are unable to say that his evidentiary findings or ultimate conclusions were wrong. The decree must therefore be affirmed, unless the provisions of the appellant's tariff here relied upon relieves the tug's owner from liability.

Paragraph 17 of the appellant's tariff is as follows: "When a vessel is towed or pushed stern first by one tug at her bow, or stern, or is being winded by one tug at her bow, the service will be under the direction and control of the master of the vessel so assisted, and the tug will not be liable for any damage that may be sustained or caused by the vessel coming into contact with any other craft, dock, or other object, or by stranding or touching bottom, unless the tug fails to follow orders received by the master of the tug from the master in charge of the vessel being served, and the master and crew of the tug shall be, and shall be held to be, servants and agents of the vessel served. (It is recommended that in stern first and winding operations in those ports where more than one tug is stationed, the vessel order two tugs.)"

Relying upon the above provisions, the appellant contends that it is exempt from all liability for its own negligence. The appellee, on the other hand, urges that Paragraph 17 has no application to the present case, may not be...