National Distillers Prod. Corp. v. Boston Tow Boat Co.

• Decision Date: 14 September 1955
• Docket Number: No. 52-31-A.,52-31-A.
• Parties: NATIONAL DISTILLERS PRODUCTS CORPORATION v. BOSTON TOW BOAT COMPANY and THE TRITON and HERCULES.
• Court: U.S. District Court — District of Massachusetts

134 F. Supp. 194

1955 AMC 1925

NATIONAL DISTILLERS PRODUCTS CORPORATION v. BOSTON TOW BOAT COMPANY and THE TRITON and HERCULES.

No. 52-31-A.

United States District Court, D. Massachusetts.

February 21, 1955.

On Rehearing September 14, 1955.

Thomas H. Walsh, Leo F. Glynn, Boston, Mass., Paul F. McGuire, New York City, of counsel, for plaintiff.

Seymour P. Edgerton, Bingham, Dana & Gould, Boston, Mass., for defendant.

ALDRICH, District Judge.

This is a suit in admiralty to recover damages caused by the grounding of the S. S. Carrabulle while she was being taken stern first out of Chelsea Creek into Boston Harbor on September 24, 1951. The action is in rem against the tugs Hercules and Triton, and in personam against Boston Tow Boat Company, hereinafter called the respondent, the owner of these two tugs, and two other participating tugs, Luna and Venus. Libellant was not the owner of the Carrabulle on September 24, 1951, but I shall refer to it as if it were.¹

The Carrabulle is a Liberty-type tanker 423' over-all and 57' beam. On the morning of September 24th she completed her unloading at the State Fuel Dock on the south side of Chelsea Creek, and notified the respondent to send four tugs to take her into the stream. Thus unloaded she drew 13' 10" aft and 6' 6" forward. Under normal load she drew 27' or more, both fore and aft, so that on the day in question her bow was high out of water, both actually and relatively. One witness testified that the bow was some 40' high, and I so find. Being a tanker there was comparatively little superstructure except the bridge and adjacent quarters, which were almost exactly amidships.

The tugs arrived at about 2:10 p. m. E.D.S.T. Prior to that time the Carrabulle's engine had been warmed up and everything made ready. Captain Sullivan, an employee of the respondent, came aboard from the Luna to serve as undocking pilot. He did this, as libellant well knew, under a standard agreement, known as the pilotage clause, that while so acting he was to be considered the servant of the libellant and not of the respondent.² The tugs thereupon took positions assigned to them by Captain Sullivan on the way up. The Hercules passed a stern line to the Carrabulle's stern, which was led through her after chock, located about midway on the port counter. The Luna placed her bow against the Carrabulle's port quarter, running a bow line to the ship. The Triton made up heads and points, with three lines, on the Carrabulle's port bow, and the Venus placed her bow against the Triton. By this maneuver the Venus and the Luna held the starboard side of the Carrabulle against the dock while her lines were being cast off. The dock was set in from the channel, and after she was free the Hercules by hauling on the stern line and the Luna by backing up pulled the vessel's stern out, aided by the Triton proceeding ahead with hard left rudder to start the bow. Although it is agreed that the stern of the Carrabulle thereupon proceeded in a general westerly direction down the creek until it struck the mud and some submerged pilings on the south side of the channel, the manner in which this happened, and the intermediate events are not agreed. I am not helped in the resolution of the dispute by the circumstance that Captain Sullivan is no longer available.

One of the difficulties relates to times. This difficulty is not solved by any one method, although I have before me the deck log, the engine-room log, and the bell book of the Carrabulle. There were no logs of the tugs. Entries on these books show that the stand-by signal was given by the bridge to the engine-room at 2:19. Whether that time is correct or not makes no material difference. The next time that occurs in any book is 2:36, when the deck log shows all clear of the dock and the engine ordered full ahead for ½ minute. (The bell book shows the ahead signal as 2:36½, stop at 2:37.) Following this the engine was ordered ahead again at 2:38. It is conceded that on this second occasion she did not respond — a matter I shall deal with later. She was ordered to stop at 2:38½. The libellant testified that at 2:38 the ship was aground — a matter somewhat confirmed by entries in the books. Captain Haugland, master of the Carrabulle, testified in accordance with the deck log that all clear of the dock — meaning that lines were aboard and they were 50'-100' away — was at 2:36.

One thing that is abundantly clear is that the Carrabulle did not proceed from the dock to the strand in two minutes. It is about 1000' from the dock to the point where she grounded, and she would have had to proceed at an average speed, starting from almost nothing, of about 5 knots to have traversed this distance between 2:36 and 2:38. Added to this is the conceded fact that there was an adverse tide of about ½ knot. Furthermore, the engine was running full ahead for at least ½ minute during this period. I am forced to conclude that the ship either did not ground until considerably after 2:38, or that she was clear of the dock well before 2:36.

In spite of the fact that I believe certain supporting entries may have been made on the libellant's books somewhat after the event, I find that the grounding occurred at 2:38. I reach this in the following manner.

It is, of course, not possible to determine how many minutes it took the tugs to haul the ship away from the dock. If that was not accomplished until 2:36, at which time, concededly, the engine was run full ahead for at least ½ minute, it is not clear why the Carrabulle's first movement would have been to have started forward up the creek when her proposed course was stern first in the opposite direction. Conceivably this might have been to straighten her out, but there was no testimony of any such purpose, and at this point she had at least three, if not four, of the tugs working on her. She was still close to the dock, and I will be slow to assume in the absence of any direct testimony that the engine was used under these circumstances for the purpose just suggested. On the contrary, I believe the more logical occasion to run the engine ahead for the first time was when the sheer developed that I am about to refer to.

Secondly, if 2:36 was the moment the vessel was clear of the dock, a time at which she had very little way on her, running full ahead for even one half minute, if it did not start her ahead, would at least seem enough to cut such stern way as she did have, and leave her about dead in the water. There is considerable testimony, and I find, that she proceeded 400 or 500 feet from the dock before the sheer developed. Respondent contends that the 2:38 full ahead signal, to which the engine did not respond, was the one when the sheer commenced. This would mean that the vessel traveled 400-500 feet from a stopped position, by means of two tugs, and against a current of perhaps ½ knot, between 2:37 and 2:38 (or between 2:36 and 2:38, with ½ minute full ahead on the engine). I do not believe that.

Furthermore, if 2:38 was the commencement of the sheer, what was happening on board thereafter? It must have taken an appreciable period from the commencement of the sheer until she grounded. Respondent claims that at 2:38½ the engine or wheel was ready to turn again. Even if the engine room failed to notify the bridge of the "repair," is it not logical to assume that thereafter there would have been frantic calls from the bridge — what are you doing? Instead, the bridge, having signalled, unsuccessfully, for full ahead at 2:38, signalled to stop at 2:38½. If they were aground, that was a good reason for such a signal. Otherwise there was no reason for cancelling the order. On the other hand, if 2:36 was at or after the commencement of the sheer, there was a reason for a stop signal at 2:37, viz., that Sullivan thought at that moment that he had given her enough, and that the rest of the straightening could be handled by the tugs.

This leaves two slight questions. If they were aground at 2:38, how was the engine room able to free the wheel at 2:38½? I believe, although the wheel was in the mud, that this alone did not stop her, but one of the broken piles there did, which subsequently became free. This, also, would account for the mud on the blades of the wheel above water, which cannot be accounted for if the 2:38 episode was in midstream. The presence of this mud was brought out by libellant in depositions before trial, and the respondent had ample opportunity to contradict it, and did not.

The other question relates to he rudder. Apparently at one point the Carrabulle's rudder was put at hard right, but was nearly straight at or after the strand. This fact, in my opinion, is about as consistent with one time of grounding as the other.

Before going into questions of liability it would be well to discuss how the sheer originated. Libellant claims it was caused by inattention on the part of the Hercules; that while the Hercules had a stern line to the Carrabulle, this line, not merely occasionally, but at all times, even when she was being towed stern first from the dock, hung loose, and that the Hercules did nothing but keep out of the way. I do not believe this. I think the sheer originated in quite another fashion.

The wind between the hours of 2:00 and 3:00 that afternoon was blowing from the southeast at a rate of 18 miles per hour at the East Boston Airport. This point of observation is not much more than a mile from Chelsea Creek, but I assume that the creek was in a relatively sheltered position. The Carrabulle's log gives the wind as Force 2, which is agreed meant 4-7 m. p. h.³ Respondent testified the wind was 10-12 m. p. h. and I so find.

When the vessel had reached a point approximately half way between the dock and the point of stranding a gust of wind hit the bow, and it fell off rapidly towards the Chelsea shore on the north side of the channel, causing the stern to sheer in towards the southerly...