Great Lakes Towing Co. v. Bethlehem Transp. Corp.

• Decision Date: 05 June 1933
• Docket Number: 6176.,No. 6175,6175
• Citation: 65 F.2d 543
• Parties: GREAT LAKES TOWING CO. v. BETHLEHEM TRANSP. CORPORATION.
• Court: U.S. Court of Appeals — Sixth Circuit

65 F.2d 543 (1933)

GREAT LAKES TOWING CO. v. BETHLEHEM TRANSP. CORPORATION.

Nos. 6175, 6176.

Circuit Court of Appeals, Sixth Circuit.

June 5, 1933.

T. H. Garry, of Cleveland, Ohio (Goulder, White, Garry & McCreary and George William Cottrell, all of Cleveland, Ohio, on the brief), for Great Lakes Towing Co.

T. C. Robinson, of Cleveland, Ohio (Frederick L. Leckie and Holding, Duncan & Leckie, all of Cleveland, Ohio, on the brief), for Bethlehem Transp. Corporation.

Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Paragraph 17 of the general terms and conditions covering contracts for services of the Great Lakes Towing Company, as contained in its published schedule of rates, provides: "When a vessel is towed or pushed stern first by one tug, the service will be under the control and direction of the master of the vessel so assisted, and the tug will not be liable for any damages 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, provided the tug carries out the orders of the vessel master." The steamer Maryland, owned and operated by the Bethlehem Transportation Company, was performing such a maneuver with the assistance of the towing company's tug Yale, backing out from the east side of a pier in Sandusky Harbor, around the end of the pier, stern first, and into a slip to the west. After the stern had been brought around into the mouth of the slip and the bow was being pushed by the tug to the northwest and west to bring the vessel into alignment with the piers, the motion of the bow was not checked in time to prevent its striking the northerly end of the west pier, thus causing the damage herein complained of. The court below found both vessels equally at fault, that the above-quoted provision for limitation of liability did not operate to relieve the tug, and that the damages were therefore properly to be divided. From this part of the decree the towing company appeals (case No. 6175).

We are of the opinion that, had the master of the Yale in fact placed his tug wholly under the control and direction of the master of the Maryland, as is contemplated by paragraph 17 of the general terms and conditions, no liability could have arisen as against the tug or its owners because of anything done or omitted in the performance of the work for which the tug was employed, provided, of course, that the tug carried out the orders of the Maryland's master. In such a case the tug would become the mere motive power instrumentality of the vessel assisted, and the master and crew of the tug, pro tempore, would be regarded as the servants of the tow. Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U. S. 291, 53 S. Ct. 135, 136, 77 L. Ed. 311. But this situation did not arise. The master of the Yale knew exactly what service was required of him and his vessel, and he proceeded to perform that service upon his own initiative, without subordination to, although with the co-operation of, the master of the Maryland. In the case just cited it was assumed that the stranding of the tanker "was not in whole or in part due to any fault" of the tugs. In the case at bar we are of the opinion that those in charge of both vessels were jointly participating in their control and management; that neither master purported to be acting under paragraph 17 of the general terms and conditions, or in subordination to the other; that the masters of both craft were equally at fault; and that the damage to the Maryland was the natural and proximate result of the negligence of both. In such case the court below was right in apportioning the damage. The question was strictly one of fact — whether the tug was negligent in the performance of the duties which it had undertaken to perform and which it was then engaged in performing. Compare, Sturgis v. Boyer, 24 How. 110, 121, 124, 16 L. Ed. 591; The Steamer Syracuse, 12 Wall. 167, 171, 20 L. Ed. 382...