Lykes Bros. SS Co. v. Great Lakes Towing Co., Civ. A. No. 86-C-161.

• Decision Date: 10 March 1989
• Docket Number: Civ. A. No. 86-C-161.
• Citation: 719 F. Supp. 1449
• Parties: LYKES BROS. STEAMSHIP CO., INC., a corporation, and United Kingdom Mutual Steamship Assurance Association (Bermuda) Ltd., Plaintiffs, v. The GREAT LAKES TOWING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

719 F. Supp. 1449

LYKES BROS. STEAMSHIP CO., INC., a corporation, and United Kingdom Mutual Steamship Assurance Association (Bermuda) Ltd., Plaintiffs, v. The GREAT LAKES TOWING COMPANY, Defendant.

Civ. A. No. 86-C-161.

United States District Court, E.D. Wisconsin.

March 10, 1989.

Michael A. Snyder, for plaintiffs.

Harney B. Stover, Jr., Milwaukee, Wis., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

REYNOLDS, Senior District Judge.

FINDINGS OF FACT

1. The parties stipulate that the complaint is amended to include Lykes Bros. Steamship Co., Inc.'s protection and indemnity insurer, United Kingdom Mutual Steamship Assurance Association (Bermuda) Ltd., as an additional party plaintiff to the extent of $174,000.00 of the claimed damages which it paid to the City of Milwaukee.

2. Plaintiff, Lykes Bros. Steamship Co., Inc. ("Lykes"), is a foreign corporation with its principal office and place of business located at New Orleans, Louisiana. Defendant, The Great Lakes Towing Company ("GLT"), is a foreign corporation with its principal office and place of business located at Cleveland, Ohio, and with a local office and place of business located at Milwaukee, Wisconsin. The tugs TEXAS, MISSISSIPPI and WASHINGTON are not proper parties to this action because the complaint was never verified and was never served upon them, and there has been no voluntary appearance or claim filed on their behalf.

3. Lykes is the owner and operator of the S/S MARJORIE LYKES, a steamship approximately 592 ft. in length and 69 ft. in breadth. The ship has a steam turbine engine capable of delivering 11,000 shaft hp. to a single propellor, or screw, and is fitted with an 800 hp. bow thruster.

4. GLT is the owner and operator of the tugs TEXAS, MISSISSIPPI and WASHINGTON, all of which are harbor towing vessels approximately 81 ft. in length and 20 ft. in breadth. Each tug is powered by a 1,200 intermittent hp., 1,050 continuous hp., diesel engine with electric drive. All three of the tugs were of the same configuration and equipped with "mustache" type bow fenders about 2 ft. in width and wrapped around the tugs' bows on platforms constructed for that purpose. The tugs TEXAS and WASHINGTON were equipped with new towlines. The testimony concerning the size and composition of the towlines was inconsistent. However, based on the testimony of the engineer in charge of tug maintenance, the court finds that each towline was made up of a 150 ft. length of approximately 136,000 lb. tensile strength 2¼ in. diameter, 7 in. circumference, super polyester or high strength esterlon line shackled by a thimble to a 50 ft. pendant of 1 in. IWRC Improved Plow Steel cable having a breaking strength of approximately 90,000 lbs. Each tug's pulling or pushing power (bollard pull) was about 22,500 lbs. The TEXAS and MISSISSIPPI were built in 1916 in Cleveland, Ohio, and were rebuilt in 1957 and 1951, respectively. The WASHINGTON was built in 1925 and was rebuilt in 1951.

5. GLT's Schedule of Terms, Conditions & Rates, Effective 1 May 1983 (Tariff), was mailed to Lykes and the Great Lakes agent of Lykes on April 28, 1983, and was received by Lykes and its Great Lakes agent prior to May 7, 1983. Among other things, the Tariff provided:

(B) PERSON IN COMMAND. Towing service is rendered on the basis that the master, pilot or other person in charge of the vessel served is in command of the movement of the vessel, regardless of the number of tugs used.

(C) STRIKES, BREAKDOWNS, ETC. Great Lakes shall not be responsible for any expenses, losses, damages or claims whatsoever caused by or resulting or arising from the failure or delay in the performance of service due to ... breakdowns. ...

(F) OWNER RESPONSIBILITIES. The owner, operator, or charterer of any vessel served by one or more tugs agrees to hold Great Lakes and its tug or tugs free of claims for damage occasioned to such vessel by, or in any way contributed to by conditions beyond Great Lakes' control, such as, but not limited to: ... Choice of time of vessel's movement.

....

(H) APPLICABILITY OF PROVISIONS.... Great Lakes specifically disclaims any implied warranties of workmanlike service or seaworthiness by or of any tug, or by Great Lakes in connection with any service rendered.

6. Before the 1983 season of navigation on the Great Lakes, GLT reduced the size of its tug crew from four to three persons aboard each tug in order to meet competition from other towing companies which were operating with three person tug crews. Due to the reduction in crew size, there was no one on continuous duty in the engine room of the Great Lakes tugs.

7. During the morning of May 7, 1983, the S/S MARJORIE LYKES was enroute from the lower Great Lakes to Terminal No. 4 at the Port of Milwaukee, Wisconsin, carrying a partial cargo for discharge at Milwaukee and intending to load cargo there. There was a registered Great Lakes pilot, Earl McKnight ("Pilot McKnight"), aboard the ship who had come aboard at the St. Clair River in the vicinity of Detroit, Michigan. It was the policy of Lykes always to hire a local pilot to assist in docking.

8. During the morning of May 7, 1983, the ship's master, Captain Michael Soehnlein ("Captain Soehnlein"), listened to the National Weather Service's forecast several times and felt it was not alarming. However, at 1034 hours (10:31 a.m.) and thereafter, the weather service issued gale warnings for the southern one-third of Lake Michigan with winds 25-34 knots (29-40 m.p.h.) shifting northeast, and waves of 4 to 7 feet increasing to 6 to 10 feet by evening. Captain Soehnlein was apparently unaware of this forecast, as the official log entry prepared on May 9, 1983, states that there were "unforecast, high, gusty and shifting winds" at 1633 hours (4:33 p.m.) on May 7, 1983.

9. Sometime late morning on May 7, 1983, Captain Soehnlein determined that he would require the assistance of one tug to make the Terminal No. 4 dock. He called the ship's Great Lakes' agent, Kerr Steamship Co., at Milwaukee, and asked the agent to order one tug.

10. A gang of longshoremen was ordered for 1300 hours (1:00 p.m.) from the Milwaukee stevedore. Once ordered, they had to be paid for a minimum of four hours work. Linehandlers for mooring the ship were to be provided by the longshore gang.

11. Shortly before noon, the ship's Great Lakes' agent called GLT's dispatcher at Cleveland, Ohio, and ordered one tug to assist the S/S MARJORIE LYKES to dock at the Terminal No. 4 dock. Thereafter, at 1250 hrs. (12:50 p.m.), the tug TEXAS, under the command of Captain Jack Bohl with two other crew members aboard, was dispatched from GLT's Milwaukee tug office to meet the S/S MARJORIE LYKES and assist her from the outer harbor to the Terminal No. 4 dock. (Captain Bohl normally commanded the tug MISSISSIPPI, but due to the engineer's unfamiliarity with the equipment board on the MISSISSIPPI, Captain Bohl and crew boarded the TEXAS.) This was the first time the TEXAS had been used following the winter layup.

12. At about 1305 hrs. (1:05 p.m.), the tug TEXAS arrived at the outer harbor, and those aboard could see the S/S MARJORIE LYKES approaching the breakwater entrance to the Port of Milwaukee. At 1307 hrs. (1:07 p.m.), the S/S MARJORIE LYKES passed through the breakwater entrance and at 1313 hrs. (1:13 p.m.), the ship turned inside the outer harbor and prepared to back into the 300 ft. wide dredged slip along the Terminal No. 4 dock and moor port side to the dock, heading out in a northeasterly direction.

13. At 1318 hrs. (1:18 p.m.), the TEXAS secured a line to the starboard quarter of the ship. The ship then backed her engines to approach and enter the slip stern first, with the tug TEXAS assisting at the ship's starboard quarter aft. The ship handled the position of her own bow with her bow thruster and told the tug what to do.

14. At the time of the first attempt to dock the MARJORIE LYKES, the winds were blowing from the north/northeast at a speed of 20-21 knots, with gusts from 25-34 knots (approximately 25-30 m.p.h.) and the seas in the outer harbor were about 3-4 ft. in height.

15. Prior to the commencement of the maneuver, the ship's pilot and the tug's captain communicated on the radio-telephone. It was agreed that if the ship had any problem in making the dock, the maneuver would be abandoned and the ship would come ahead out of the slip and go to anchor in the outer harbor.

16. As the ship backed toward the slip stern first, the ship's pilot and the tug captain engaged in another radio-telephone conversation. The ship's pilot told the tug's captain that the ship was having trouble controlling her bow, and the tug's captain told the pilot that the tug TEXAS was having an engine heating problem. The first docking maneuver was aborted at 13:40 hrs. (1:40 p.m.), and the ship proceeded to anchor in the outer harbor.

17. To prevent a tug's engine from freezing during winter, the water in the cooling systems is replaced with alcohol. It is necessary to remove the alcohol from the engine following winter layup to prevent overheating.

18. The TEXAS overheated due to inadequate removal of the alcohol from its engine's cooling system following winter layup and evaporation of the alcohol during maneuvers.

19. Notwithstanding the tug TEXAS's overheating, the ship was forced to abandon the docking attempt because of the high winds.

20. At 1349 hrs. (1:49 p.m.), the MARJORIE LYKES went to anchor in the outer harbor and requested the assistance of an additional tug. At approximately 1530 hrs. (3:30 p.m.), GLT supplied the tug WASHINGTON which was commanded by Captain Louis Toth.

21. Later, at about 1530 hrs. (3:30 p.m.), engineer Andy Mueller, of the tug WASHINGTON, was requested to remedy the problem with the TEXAS' engines. He boarded the tug TEXAS and observed the gauge glass which indicated insufficient coolant in the engine. Mueller added some water to the engine cooling system and...