In re Moore

• Decision Date: 09 January 1968
• Docket Number: Civ. A. No. 29397.
• Citation: 278 F. Supp. 260
• Parties: In re J. Lewis MOORE and Olive L. Moore, d/b/a Moore Towing Company, as charterers, and Mobil Oil Corporation, as owner of the TUG OLIVE L. MOORE.
• Court: U.S. District Court — Western District of Michigan

278 F. Supp. 260

In re J. Lewis MOORE and Olive L. Moore, d/b/a Moore Towing Company, as charterers, and Mobil Oil Corporation, as owner of the TUG OLIVE L. MOORE.

Civ. A. No. 29397.

United States District Court E. D. Michigan, S. D.

January 9, 1968.

John L. Foster, Foster, Meadows & Ballard, Detroit, Mich. for Mobil Oil Corp.

David G. Davies, Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio for J. Lewis Moore and Olive L. Moore, d/b/a Moore Towing Co.

William D. Carle, McCreary, Hinslea & Ray, Cleveland, Ohio for Huron Cement Division, National Gypsum Co.

OPINION

FREEMAN, Chief Judge.

This is a motion of Huron Cement Division, National Gypsum Company, for dismissal as to it of a complaint by the owner and the charterers of the Tug Olive L. Moore, seeking limitation of liability.¹ Plaintiffs' allegations, which, for present purposes, must be considered true, indicate that on May 4, 1966, the Moore departed Chicago en route through the Great Lakes system to Rockland or Parker Flats, Maine, pushing a barge belonging to a third party, loaded with shelled corn. About 24 hours after breaking ground, the captain, Randolph Lewis, sensing a storm in the making, decided to bring the barge astern and pull it. During maneuvers to achieve this realignment, the two craft collided, and the Moore began taking on water in excess of pumping capacity. Lest she sink, he ordered her beached.

Eventually refloated and towed along with the barge to Muskegon on the west coast of Michigan, the tug put up for more than five weeks while her hull and engines were repaired. Toward the end of this period, Huron, in a gesture of fellowship which it had since come to regret, gave permission for the use of one of its piers for carrying out dock trials on the Moore. The upshot of the tests was the collapse of a number of pilings supporting the pier and total damage estimated at $75,000.

Four days later, after a letter of undertaking offered on behalf of plaintiffs on account of this injury had been accepted by Huron, the offending vessel, still destined for Maine, left Muskegon with the grain. She never made it. Her engines went dead on June 23 in the Straits of Mackinac and could not be restarted. She was brought to Cheboygan, Michigan, where new arrangements were completed for getting the corn East. Thereafter, this litigation began, and the tug was turned over to a trustee who, with considerable effort, managed to sell her for $16,100. On the other side of the ledger, approximately three dozen parties including the cement company have entered demands totalling a quarter of a million dollars.

The first reason assigned by Huron for dismissal is that in its estimation this case is concerned with only the creditors holding claims connected with the Moore's passage from Muskegon to the Straits, a category which, it assumes, excludes itself. To arrive at this position, the movant works from three premises: First, a number of decisions, of which The Alpena, 8 F. 280 (N.D.Ill. 1881), is probably the most well known, say that a shipowner can limit in any one action no debts other than those incurred during or in furtherance of the "voyage" most recently antedating his petition. Second, this rule should apply as well to "incidents" between voyages, so that where a chain of events of either or both types preceded filing, only liabilities associated with the latest of the series can be restricted. Third, on the present facts, the course from Chicago to the Straits must be broken down into two voyages—from the Illinois port to Muskegon and from that community north—and one intervening incident, the dock accident. In analyzing this argument, attention can most economically be devoted initially to the meaning of the term employed in The Alpena; for, obviously, if everything which took place between May 4 and June 23 happened as a part of a unitary voyage, Huron's ultimate contention is without foundation.²

Neither the keystone of the Act of March 3, 1851, nor its present version, 46 U.S.C. § 183(a), the pivotal provision here, uses the controversial word; and a vessel need never have plied the waves in order to take advantage of the legislation. Lehigh Valley R. R. v. Jones, 50 F.2d 828 (3d Cir. 1931). However, the statute has always said that an owner's responsibility will not exceed the value of his interest in his ship and pending freight. The voyage concept was introduced as a factor in determining this amount. In Norwich & New York Trans. Co. v. Wright, 80 U.S. (13 Wall.) 104, 20 L.Ed. 585 (1872), the Court discussed at length the formulae for appraisal then existing under comparable Civil and English laws, noting that the latter differed from the former by commanding, as a prerequisite to invocation, a deposit with the admiralty tribunal equal to the worth of the craft as it stood immediately prior to the disaster which triggered the desire to seek limitation. Selecting the one which seemed more harmonious with congressional design, the Court opted for the Continental approach expressed, among other places, in the Maritime Ordinance of Louis XIV:

The proprietors of vessels shall be responsible for the acts of the master, but they shall be discharged by abandoning the ship and freight. (Emphasis supplied.)

Although the post-misadventure norm was thus established, refinement was necessary. Fourteen years later, when another suit growing out of the same collision came before him, Justice Bradley was more specific regarding the reference point for computation:

Section 4283 as amended, 46 U.S.C. § 183 declares that the liability of the owner of any vessel for, inter alia, embezzlement, loss, destruction and collision shall `in no case' exceed the value of his interest in the vessel and her freight then pending. When it says `in no case,' does it mean that for each case of `embezzlement, loss, destruction, collision,' etc., happening during the whole voyage, his liability may extend to the value of his whole interest in the vessel? Twenty cases might occur in the course of a voyage, and all at different times. * * * Pending freight is of no value to the shipowner until it is earned; and it is not earned, if earned at all, until the conclusion of the voyage. Does this not show that every `case' in which the principle of limited liability is to be applied means every voyage? We think it does. It seems to us that the fair inference to be drawn from section 4283 is that the voyage defines the limits and boundary of the casus or case to which the law is to be applied.³ City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134 (1886).

He then held that the relevant valuation time is the end of the voyage, whenever or wherever that might be. Ibid.

The most enlightening subsequent opinions in the area have been written in response to an objection of a claimant that the money or property before the court for distribution to creditors was inadequate because it reflected the worth of a bottom at a moment other than that which was actually the conclusion of the trip. While the instant motion does not attack the sufficiency of the fund created by the sale of the Moore,⁴ the crucial underlying issue, voyage identification, is identical, and the teachings of these authorities are pertinent—in particular the principal lesson, stated succinctly in In re La-Bourgogne, 117 F. 261 (S.D.N.Y.1902): "`Voyage' is a term of recognized meaning in common parlance, and has received a legal interpretation accordingly." Another doctrine implicit in the rationale of the City of Norwich and applied in a companion case deserves emphasis: A voyage is not necessarily terminated by the occurrence of a mishap, and the rights of an owner are in no way diminished if as it progresses another misfortune befalls him. See The Great Western, 118 U.S. 520, 6 S.Ct. 1172, 30 L.Ed. 156 (1886).

Neither Huron's brief nor independent research has disclosed any precedent suggesting that a journey is over because a boat is berthed for mandatory repairs, where, as here, she sets out again bound for her original destination, having all the time refused to relinquish the shipment entrusted to her. On the other hand, there is much pointing the other way. If following trouble at sea the ship resets her sail, the venture continues until she makes the intended final harbor, forsakes it, or suffers another calamity causing real or practical destruction. See The Great Western, supra; The C. F. Coughlin, 25 F.Supp. 649 (W.D.N.Y.1938). The steps required to allow her to pick up her travels are irrelevant. Thus, while she may have to jettison cargo, be refloated, and proceed under tow, she is still on a single voyage. See The Abbie C. Stubbs, 28 F. 719 (D. Mass.1886). Likewise, it is of no consequence that a steamer sustains a gash which would prove fatal unless patched, if, in fact, it is. See The Anna, 47 F. 525 (D.S.C.1891).

The case at hand is distinguishable from Stubbs and Anna. The Moore was brought to shore for remedial action, remained there for several weeks before heading back to open water, and occasioned the harm for which Huron seeks compensation during this interval. However, none of these factors is of legal significance. The overhaul at the edge rather than in midstream is a formal variation on the theme of these decisions which does not urge a substantial change in the pattern of their results by severely circumscribing the privilege and duty of a skipper in distress to do what he conceives to be best for his employer and consignments. The same must be said of the length of the pause. Although when the tug sought refuge she was disabled and unfit for commerce, she could hardly have been mistaken for a wreck. Compare The Anna, supra. Because no alternate means of propelling the barge was attempted prior to June 23, the master clearly had not despaired of going on to Maine. The dock trials did not dampen his optimism, nor have any important effect upon his ability to get there.⁵...