In re Pacific Inland Navigation Company

Decision Date10 February 1967
Docket NumberCiv. No. 2581.
Citation263 F. Supp. 915
PartiesIn the Matter of the Complaint of PACIFIC INLAND NAVIGATION COMPANY, Inc., a corporation, as owner pro hac vice of the DIESEL TUG SHINN for exoneration from or limitation of liability.
CourtU.S. District Court — District of Hawaii

Roy A. Vitousek, Jr., Honolulu, Hawaii, for plaintiff Pacific Inland Navigation Co., Inc., Pratt, Moore, Bortz & Vitousek, Honolulu, Hawaii, of counsel.

Katsugo Miho, Honolulu, Hawaii, for claimants Fong, Miho, Choy & Robinson, Honolulu, Hawaii, of counsel.


TAVARES, District Judge.

On September 16, 1966, the Diesel Tug SHINN was proceeding from Pier 24, Honolulu Harbor, to Pier 32, Honolulu, for the purpose of refueling the Tug. In the course of the voyage the SHINN struck the Japanese Fishing Vessel KUNI MARU No. 3, hereinafter called KUNI MARU. Both vessels were damaged and some injuries were sustained by the crew members of the Tug.

The owners of the KUNI MARU have claimed damage of approximately $167,000.00.

Pacific Inland Navigation Co., Inc., hereinafter called Pacific, representing that the value of the Diesel Tug SHINN did not exceed the sum of $95,000.00 following the accident, has instituted this action for exoneration from liability or for limitation of liability under 46 U.S.C., §§ 183-189, in accordance with Rule F of the Supplemental Rules of the Federal Rules of Civil Procedure, and has filed with its complaint, a bond, to include costs in the sum of $95,250.00.

On October 31, 1966, the owners of KUNI MARU and crew members thereof filed a Motion for Increased Security.

Under this motion KUNI MARU makes three contentions regarding the effect of 46 U.S.C. § 183, which grants an offending vessel the privilege of limiting liability upon condition that the owners, pursuant to 46 U.S.C. § 185, surrender the value of their interest in "such vessel, and her freight then pending," namely:

(1) That "freight pending" includes all revenue paid which might become payable under the charter under which the SHINN was hired by Matson Navigation Co., hereinafter called Matson, or, in the alternative, such revenue as the Tug might have coming under the charter for the balance of the charter period, e. g., from September 16, 1966, to and including October 23, 1966;

(2) That the cost of the repairs to SHINN after the collision, approximating $25,000.00, should be included in determining the value of the "owner's interest"; and,

(3) That the maximum amount of the hull and machinery and public liability insurance carried by the SHINN at the time of the collision as required by the charter, should be included in determining the value of the "owner's interest."

It appears from the record that Pacific, as owner, entered into a time charter party agreement with Matson as the charterer, under date of October 24, 1963, whereby the Tug WINQUATT was to be delivered to the charterer on October 25, 1963, the agreement to continue until time of redelivery at Owner's dock at Vancouver, Washington. By paragraph 15 of the agreement, the term of the charter party was expressed to be for six months from date of delivery of the tug, subject to charterer's option to renew for a further period of six months.

It is reasonably inferable that this charter was extended by mesne agreements until, by supplemental agreement of July 16, 1965, it was amended to provide for substitution of the tugboat SHINN for the O/S WINQUATT, with a substitution of rates for the use and hire of the SHINN. It was later further amended so as to provide for the following rates:

A. Per day of sea time while operating with a barge in tow, $1,325;
B. Per day of sea time while operating without a barge in tow, $1,235.00;
C. Per day of standby time or lay time, at $985.00;

and to extend the term thereof to and including October 23, 1966.

Under paragraph 8 of the charter party it was provided that,

"In the event of loss of time from deficiency of men or stores, fire, breakdown or damages to hull, machinery or equipment, unintentional grounding, detention by average accidents, dry-docking, or by any other cause under Owner's control preventing the full working of the Tug in excess of 24 continuous hours, the payment of hire shall cease for the time thereby lost."

Immediately following the accident on September 16, 1966, the SHINN made fast to Pier 32 at 11:35 a. m., and departed therefrom to dry dock for repair at 1:20 p. m. on the same day. The record does not reveal the date when dry-docking and repairs were completed.

No cases have been cited by either side, nor has the Court found any case directly in point upon the contention of the claimant to the effect that under such a charter the SHINN was on a six months "voyage" and that "freight pending" should include the total amounts which the tug earned or might earn during the entire charter period, or at least during that portion of the charter period from September 16, 1966, the date of the accident, until October 23, 1966, the terminal date of the charter party as amended.

The original charter party had reference to the Tug O/S WINQUATT. The amendment of July 16, 1965, authorized a substitution of SHINN for the O/S WINQUATT. The later, undated amendment also authorized such substitution and extended the term of the charter party to and including October 23, 1966. In the event that SHINN was actually in substitution as the October date approached, the plaintiffs would have been obligated to return her to Vancouver. However, there is nothing in the record to prevent the resubstitution of the WINQUATT under the charter party at any time subsequent to September 16, 1966. Claimant's contention, if carried to its logical conclusion, would require the total earnings under the charter party and all of its extensions to be included as "freight pending" irrespective of which tug provided service to plaintiff. However, claimant only contends for the inclusion of the "total earnings of the Tug SHINN during the six months of the alleged Time Charter Agreement and any extension thereof, or, in the alternative, its total earnings during the period September 16, 1966, to and including October 23, 1966."

No facts whatever have been presented as to the period or periods of employment of SHINN. From the record as it stands, no showing whatever has been made regarding substitutions or the periods thereof. Nothing appears in the record from which the Court could make a determination as to the earnings of SHINN under the charter. Should the alternative be selected as a basis of calculation, the Court has no way of knowing that the WINQUATT was not substituted for the SHINN immediately following the accident. For all that the record discloses, September 16, 1966, may have been the day upon which SHINN was first substituted for the WINQUATT. The Court does not believe that the term "freight pending" was ever intended to be subjected to such vagaries.

The utility of a tug is certainly different from that of other types of vessels. Certain types of tugs, by their very nature, are designed to tow. They earn by what they tow, rather than by what they carry as freight.

As we might well expect, it has been said that:

"* * * In the case of a flotilla consisting of tug and tow, the vessel required to be surrendered will, in some circumstances, be only the tug, as in Liverpool, etc., Nav. Co. v. Brooklyn Eastern Dist. Terminal, 251 U.S. 48, 40 S.Ct. 66, 64 L.Ed. 130, while in other circumstances it will be the whole flotilla. The Columbia, 73 F. 226 (C. C.A.9), approved in Sacramento Nav. Co. v. Salz, 273 U.S. 326, 332, 47 S.Ct. 368, 71 L.Ed. 663.",

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5 cases
    • United States
    • U.S. District Court — Southern District of New York
    • May 20, 1976
    ...L.Ed. 134 (1886); Pettus v. Jones & Laughlin Steel Corporation, 322 F.Supp. 1078, 1080-81 (W.D.Pa.1971); In re Pacific Inland Navigation Company, 263 F.Supp. 915, 919 (D.Hawaii 1967); In re Sheridan's Petition, 226 F.Supp. 136, 140 (S.D.N.Y.1964); Gilmore and Black, The Law of Admiralty, 90......
  • In re Drill Barge No. 2
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    ...141, 28 S.Ct. 664, 678, 679, 681, 52 L.Ed. 973 (1908); The Black Eagle, 2 Cir., 1937, 87 F.2d 891, 893, 894; In re Pacific Inland Nav. Co., D.C.Hawaii 1967, 263 F.Supp. 915. GODBOLD, Circuit Judge (specially concurring in part and dissenting in part): As to the cross-appeal only, I would re......
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    ...involved only the right of the shipowner to limit, "not the right of the insurer to do so." Similarly, in In re Pacific Inland Navigation Co., Inc., 263 F.Supp. 915 (D.H.1967), in a suit against the owner of the vessel responsible for the collision which caused injury to the plaintiff's shi......
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