Offshore Company v. G & H Offshore Towing Co., 64-H-88.

• Decision Date: 10 June 1966
• Docket Number: No. 64-H-88.,64-H-88.
• Parties: The OFFSHORE COMPANY, as Owner of DRILL BARGE RIG 58, Libellant, v. G & H OFFSHORE TOWING CO., Inc., and the TUG JUNO, Respondent.
• Court: U.S. District Court — Southern District of Texas

262 F. Supp. 282

1966 AMC 2172

The OFFSHORE COMPANY, as Owner of DRILL BARGE RIG 58, Libellant, v. G & H OFFSHORE TOWING CO., Inc., and the TUG JUNO, Respondent.

No. 64-H-88.

United States District Court S. D. Texas, Houston Division.

June 10, 1966.

Vinson, Elkins, Weems & Searls, Houston, Tex. (Robert M. Julian), Houston, Tex., for libellant.

Royston, Rayzor & Cook, (M. L. Cook,) Houston, Tex., for respondent.

CONNALLY, Chief Judge.

The libel is one to recover for damage suffered by the Drilling Barge 58 on or about January 17, 1964, while she was in tow of the Tug JUNO in the Gulf of Mexico. By cross-libel, the respondent, as owner of the tug, seeks to recover a portion of the towing charges, which admittedly has been withheld by the libellant; certain additional or "detention" charges by reason of delay resulting from deviation from course for repairs to the 58, and attorneys' fees.

The contract of towage is in writing, and I refer thereto for a detailed statement of its terms. Briefly, it provided that the JUNO would pick up Barge 58 at Beacon No. 7, off the coast of Morgan City, Louisiana, and tow her to Breighton, Trinidad for a fixed sum. It further provided that if the tow put in to port during the voyage for repairs or alterations to the tow, or because of any other reason for which the tow might be responsible, additional compensation at a fixed daily rate was to be paid. A further provision was to the effect that the respondent "shall have the benefit of all exemptions from, and limitations of, liability to which an owner of a vessel is entitled under the Limitation of Liability Statutes of the United States and that they shall have all of the rights, immunities, and exemptions that are accorded to a ship and to a carrier under Title 46 U.S.C.A. Section 1304 (Carriage of Goods by Sea Act).¹

Drilling Barge 58 is owned by the libellant, The Offshore Company. She is an all-welded steel barge built in 1960. She is approximately 100 feet long and 80 feet wide. Her hull is of ½ inch steel plate. Immediately prior to the voyage she was carefully inspected and surveyed, and was found to be in good order and seaworthy in every respect. She and her sister ships previously had been towed without incident to practically all of the offshore oil producing areas of the world.

The Tug JUNO is owned by the respondent and cross-libellant. She is a seagoing tug of 197 gross tons, 100 feet in length, 27 feet in width, and with a draft of 12 feet 8 inches. At the time in question, she was in regular service of this nature, with crew, power, and equipment sufficient to accomplish this towage routinely.

The JUNO took the unmanned Barge 58 in tow at the assigned spot at 3:00 p. m., January 9, 1964, on a 1600 ft. towing cable, and the voyage began. Within the next few days, the flotilla encountered rough and very rough seas. Both vessels rolled heavily. However, nothing untoward occurred during this interval with the tow. On January 10, the JUNO lost all radio contact with marine operators ashore, and on or about January 12 the LORAN set became inoperative. The evidence does not suggest that either of these resulted from the weather conditions. The loss of radio contact is noted in the log and this continued until the radio was repaired January 20.² The loss of the LORAN is not noted in the log. Thus, by reason of cloudy and overcast weather which prevented their sighting of the celestial bodies, the officers of the tug were able to fix their locations thereafter only by dead reckoning estimate until about noon of January 18. As hereinafter noted, these estimates were grievously in error and such error was a vital consideration in later decisions.

Shortly after daylight of January 17, the Captain of the JUNO noted that the Barge "seemed to be going down by the head." A log entry at noon of that date was to the effect that "58 had settled by the head app. 3 ft.". At this time both tug and tow were rolling in very rough seas. The Captain reduced speed slightly. As she was out of radio contact and unable to secure instructions, and as the navigator fixed the JUNO's location by dead reckoning at a point almost through the Yucatan Straits (where the flotilla would have been confronted with a strong adverse current), the Captain felt the wiser course was to proceed. The JUNO held her course. As high a speed was maintained as weather conditions, and safety to the towing cable, permitted.

Between noon and 3:00 p. m. of January 18, a number of important developments took place. The Barge was noted to be down by the head some four to five feet. As the weather had moderated somewhat, speed was increased. Weather also permitted a closer inspection of the Barge, and the tug reversed for this purpose. It was found that she was down to such an extent that her deck was awash. At about this time the weather cleared sufficiently for the officers of the JUNO to determine her correct position. They found—to their surprise— that she had made much less headway than supposed, and rather than being some 90 miles to the southeast of Cape San Antonio (being the western tip of Cuba) and having passed through the Straits of Yucatan, in fact she was some 60 miles to the northwest of the Cape and was only approaching the Straits. Hence, being some 150 miles farther from his destination than he had thought, the Captain of the JUNO changed course for Key West, Florida (thus securing the benefit of a favoring two knot current) as a port of refuge. From that point forward, the weather abated and the remainder of the voyage to Key West was uneventful. No member of the JUNO crew was put aboard the 58, nor was she pumped out, during this interval. She arrived at Key West the evening of January 21 with her bow under water, but still afloat.

Repairs were made in Key West. It was found that Barge 58 had suffered rather widespread damage at various spots completely across her forward end. The steel plating had been dented and punctured, and her welded seams split open. There were five holes which from the pictures in evidence appear to vary in size from a split perhaps 2 inches wide to a puncture about the size and shape of a football. Sea water had not only entered her hull, but had done extensive damage to the electrical wiring and equipment within her deck housing. The damage had obviously been inflicted by some heavy object or objects which had come in violent contact with the hull during the towage. There is no evidence whatsoever as to precisely what caused the damage. The crew of the JUNO have testified that they have no knowledge of the cause. The Barge, as stated, was unmanned.

The libellant has suggested that the tug may have backed down upon the tow. The crew of the JUNO deny this, and there is no evidence that any damage was apparent to the tug. The Captain of the JUNO suggests contact with partially submerged floating objects such as logs or debris may have caused the damage. Not only did he testify to having seen a number of such partly submerged objects on January 16 (the day before the list was detected), but made an entry in the log book under that date to this effect. I do not credit this testimony. From its location in the log book and from the reservations which I entertain with respect to other testimony of the JUNO's captain,³ I am of the view that this entry was inserted long after January 16th, with an eye to the trial and the need for an explanation of the damage.

The evidence as recited above is without dispute. An abstract statement of the applicable law also seems to be clear. But it does not follow that decision of the case is a simple task. In my judgment, the question is very close.

The respondent relies on Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932), and the cases which follow this authority, such as Stall & McDermott v. The Southern Cross, 196 F.2d 309 (5th Cir. 1952); New Orleans Coal, etc. v. United States, 86 F.2d 53 (5th Cir. 1936); South, Inc. v. Moran Towing & Trans. Co., 252 F.Supp. 500 (S.D.N.Y.1965), affirmed by the Second Circuit, South, Inc. v. Moran Towing Co., 360 F.2d 1002, May 27, 1966; Sentell v. Gibson Bros. Towing Co., 173 F.Supp. 737 (S.D.Ala.1959); Halliburton Oil Well Cementing Co. v. Stellman Trans. Co., 123 F.Supp. 568 (S.D.Tex.1954); The Lapwing, 56 F.Supp. 859 (E.D.La.1944).

From these authorities, the following principles are established:

(a) An agreement to tow does not impose the liability of an insurer, or of a common carrier, upon the tug;

(b) A contract of towage does not create a bailor-bailee relationship;

(c) An action by the tow against the tug is ex delicto, not ex contractu;

(d) The tow must prove negligence on the part of the tug to recover;

(e) No presumption of negligence arises merely on proof that the tow was in good condition when delivered, and in damaged condition when returned.

The libellant contends that negligence is shown here, not by direct evidence of what happened, but because (it is argued) that the circumstances here create a presumption of negligence—that damage of this nature is not inflicted across the leading edge of a steel plated barge unless there be negligence on the part of the tug—and that the burden is imposed on the tug to explain. In the absence of an explanation showing the tug to be free of fault, it is argued that liability follows. The libellant relies on Detyens Shipyards, Inc. v. Marine Ind. Inc., 349 F.2d 357 (4th Cir. 1965); Bisso v. Waterways Trans. Co., 235 F.2d 741 (5th Cir. 1956); Sternberg Dredging Co. v. Moran Towing & Trans. Co., 196 F.2d 1002 (2nd Cir. 1952), on reh. 200 F.2d 603; The Anaconda, 164 F.2d 224 (4th Cir. 1947); Simkins v. R. L. Morrison & Sons, 107 F.2d 121 (5th Cir. 1939); The Stirling Tomkins, 56 F.2d 740 (2nd Cir. 1932); The Clarence P. Howland, 16 F.2d 25 (2nd Cir. 1926). These cases I believe without exception, cite and recognize the rule of Stevens v. The White City and her...