Hendry Corp. v. Aircraft Rescue Vessels

• Decision Date: 27 June 1953
• Docket Number: No. 1432.,1432.
• Citation: 113 F. Supp. 198
• Parties: HENDRY CORP. et al. v. AIRCRAFT RESCUE VESSELS, C-77436 and C-77439.
• Court: U.S. District Court — Eastern District of Louisiana

113 F. Supp. 198

HENDRY CORP. et al. v. AIRCRAFT RESCUE VESSELS, C-77436 and C-77439.

No. 1432.

United States District Court E. D. Louisiana, New Orleans Division.

June 15, 1953.

Supplemental Opinion June 27, 1953.

Deutsch, Kerrigan & Stiles, Rene H. Himel, Jr., New Orleans, La., for libelants.

Terriberry, Young, Rault & Carroll, Benjamin W. Yancey, New Orleans, La., for respondents.

WRIGHT, District Judge.

Two 104 feet aircraft rescue vessels in tow in Port Royal Sound broke away from their tug during a storm and fetched up on the beach north of Hilton Head Island. After considerable effort and much delay, they were re-floated. Libelants herein seek a salvage award based on services rendered in re-floating the vessels.

The California Company, owner of the aircraft rescue vessels, entered into an agreement of towage with the Hendry Corporation, one of the libelants herein. Under the contract Hendry Corporation agreed to tow seven aircraft rescue vessels without cargo from Charleston, South Carolina, to Harvey, Louisiana. Hendry Corporation was to furnish two tugs, the General Pershing and the Dragon, one tug to tow four of the vessels and the other three. The contract also contained the following provisions:

"The method of making up the tows will be determined by Hendry subject to the approval of representatives of California at Charleston, South Carolina. California assumes full responsibility for the method in which the tow is to be made up at the commencement of the voyage.

"The towage contemplated will be done at the sole risk of the aircraft rescue boats and neither Hendry nor the towing tugs or any other equipment used in the towage shall be liable for any loss or damage to the aircraft rescue boats unless the damage is caused by the gross negligence of Hendry, its agents or employees * * *."

The Hendry Corporation designated the Tug Dragon to tow the four aircraft rescue vessels from Charleston. Since this case concerns two of these four aircraft rescue vessels, no further reference will be made to the General Pershing and her tow except insofar as the General Pershing participated in the salvage of the stranded vessels.

The Dragon is a tug 54½ feet long, 17½ feet in beam, 5.8 feet in draft with a Diesel engine of 230 horsepower. The General Pershing is a Diesel tug 60 feet long, 16 feet 3 inches in beam, with a draft of 5 feet 5 inches. Her indicated horsepower is 225. The aircraft rescue vessels are of double plank mahogany 104 feet long, 19 feet in beam with a draft of 5 feet 6 inches. Each is powered with two marine engines developing together in excess of 3000 horsepower. The Hendry barge, hereinafter referred to, is made of wood sheathed in steel. She is approximately 105 feet long, 32 feet in beam and 9 feet in depth. At all pertinent times she was partially loaded with what has been described as "junk".

The makeup of the tow of the Dragon was directed by two representatives of the California Company and one Anslow, Charleston superintendent of the Hendry Corporation. In addition to the four rescue vessels, there was included in the tow the Hendry barge. The rescue vessels were made up two abreast with the barge astern.

There is a dispute in the evidence as to whether or not the representatives of California Company knew and approved of the barge being included in the tow. While it is customary in the towage business to include vessels of several different owners in the same tow, the towage agreement here seems to indicate that no other vessels would be towed. The matter is further confounded by the fact that Mr. Anslow of Hendry Corporation, who directed the makeup of the tow along with the representatives of the California Company, was drowned during the salvage operations. The master of the Dragon, however, testified that the representatives of the California Company knew and approved of the barge being included in the tow, while the same representatives steadfastly deny knowledge or approval. Since, as will be seen, it was the overload on the tug rather than the makeup of the tow which caused the vessels to strand, it will be unnecessary to resolve this conflict.

The Dragon and her tow departed Charleston early the morning of February 29, 1948. At the time the weather was fair and no storm warnings of any kind were displayed. On March 1, 1948 the tow entered Port Royal Sound from Beaufort River and headed south across the Sound toward the Intracoastal Waterway, a distance of three and a half miles. As the tow entered the Sound, a severe windstorm broke with northeast winds of 40 miles per hour. The Dragon headed into the wind in an attempt to ride out the storm, but after an hour the combined action of the wind and the tide in the sound, which was variously estimated from three to seven miles per hour, broke the cables coupling the two pairs of rescue vessels, and one pair of rescue vessels together with the barge stranded on the lee shore of Hilton Head Island southwest of Port Royal Sound.

The storm in Port Royal Sound continued for several days and all efforts on the part of the Dragon to recover the stranded vessels proved unavailing. Hendry Corporation dispatched its tug General Pershing to the scene and Anslow arrived on March 3rd to direct the salvage operation. The attempt to salvage the vessels continued under Anslow's direction until March 5th when Anslow was drowned while attempting to recover a line which the Dragon had secured to the stranded vessels and bouyed the day before. On March 7th Hendry's Tampa superintendent, Kennard, arrived to direct the salvage operations. Finally, on March 10th, after the weather had moderated considerably, one of the rescue vessels was refloated and the other was brought off the beach the following morning. The vessels were pumped out, cleared of wreckage and debris and towed by the General Pershing to New Orleans where they were delivered to California's representative.

The Hendry Corporation, Kennard and the master, officers and crew of the General Pershing filed this libel in their own behalf and in behalf of Anslow's Estate to recover a salvage award for saving the aircraft rescue vessels. The California Company, claimant of the vessels, filed a cross-libel against Hendry for damage to the vessels resulting from the breakup of the tow.

Claimant does not contend that the provision of the towage agreement relieving the Hendy Corporation from liability for all except gross negligence, is unenforceable or against public policy. It contends, first, that the evidence proves gross negligence on the part of Hendry and alternatively, if it does not, it proves negligence, and consequently the libelants cannot recover a salvage award.

California contends that the Dragon and her owners were guilty of gross negligence in that the Dragon was undermanned and overloaded by the addition of the barge to the tow. Claimant also contends that the Dragon was unseaworthy in that she was not equipped with a radio by means of which warnings of the storm in Port Royal Sound could have been received.

Gross negligence has been defined as the entire absence of care, or very great negligence. It consists of utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Hollander v. Davis, 5 Cir., 120 F.2d 131. Viewed from that standard, the actions of the Hendry Corporation leading up to the stranding of the rescue vessels do not amount to gross negligence. Although not convincing, there is yet substantial evidence in the record tending to show that the Dragon was capable of handling her tow, including the barge, in any weather reasonably to be expected...