Patterson Oil Terminals v. The Port Covington, 10965.

• Decision Date: 14 July 1953
• Docket Number: No. 10965.,10965.
• Citation: 205 F.2d 694
• Parties: PATTERSON OIL TERMINALS, Inc. v. THE PORT COVINGTON et al. THE GIRARD POINT.
• Court: U.S. Court of Appeals — Third Circuit

205 F.2d 694 (1953)

PATTERSON OIL TERMINALS, Inc. v. THE PORT COVINGTON et al. THE GIRARD POINT.

No. 10965.

United States Court of Appeals Third Circuit.

Argued April 10, 1953.

Decided July 14, 1953.

Joseph W. Henderson and Rawle & Henderson, Philadelphia, Pa. (Harrison G. Kildare, Philadelphia, Pa., on the brief), for appellants.

Timothy J. Mahoney, Jr., and Krusen, Evans & Shaw, Philadelphia, Pa. (Leslie C. Krusen and Thomas E. Byrne, Jr., Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Three questions are presented in the instant appeal: (1) did the District Court err in its fact finding and conclusions of law with respect to the liabilities of the parties to the litigation; (2) can respective liabilities of respondents with adverse interests be adjudicated in an admiralty action in the absence of a cross-claim or cross-libel setting up the issue of such cross-liabilities; and (3) did the specific averments in the answer to the libel filed by the complaining respondents constitute a "cross-claim" or "cross-libel" within the requirements of applicable pleading principles in admiralty.

The facts are set forth in detail in the opinion of the District Court E.D.Pa.1952, 109 F.Supp. 953. They may be summarized as follows:

Patterson Oil Terminals, Inc. owned a mooring dolphin adjacent to its dock in the Delaware River at Billingsport, New Jersey. The dolphin was struck and damaged by the S. S. "Creighton Victory", operated under bareboat charter by the Black Diamond Steamship Corporation ("Black Diamond"). The collision occurred on February 14, 1948, while the "Creighton Victory" was being docked under her own power with the assistance of the tugs "Port Covington" and "Girard Point", owned and operated by the Curtis Bay Towing Company of Pennsylvania ("Curtis Bay").

At the time of the collision the captain of the "Creighton Victory" was present on its bridge as was the captain of the tug "Girard Point", who was acting in the capacity of docking pilot. The weather was clear but windy with heavy gusts of 40 miles per hour force. When the "Creighton Victory" was about 150 feet from the dock a sudden gust of wind sent her into a sheer which those in control of the vessel could not break before she struck the dolphin.

The District Court found that the collision was not the result of inevitable accident; that when the "Creighton Victory" and the tugs hove anchors at the start of the berthing operation about 20 minutes before the accident, the wind was 24 miles per hour and as the vessels moved down the river the wind increased in force; that the accident could have been avoided if three tugs had been used instead of two and that before the "Creighton Victory" left her anchorage she or Curtis Bay "could have insisted upon an additional tug" instead of proceeding with but two tugs.

In consonance with these fact findings the District Court held that Black Diamond and Curtis Bay had not met the burden of rebutting the presumption of negligence which arises when a vessel comes into collision with a stationary object and accordingly both were liable to the owner of the dolphin for the damages it sustained. It may be noted that the District Court further held that the presumption aforementioned operates against all parties participating in the management of the vessel and in doing so stated that "During the maneuvering of the vessel (the `Creighton Victory') in the effort to break the sheer, the captain was present on the bridge and if what the pilot did appeared to be insufficient or wrong he could have corrected or countermanded the pilot's orders."

In making its determination as to liability, the District Court declined to consider the effect of the provisions of a "pilotage clause" in a towing contract between Curtis Bay and Black Diamond which Curtis Bay contended made its docking pilot the servant of Black Diamond and accordingly relieved it of any liability to the owner of the damaged dolphin, or in the alternative entitled it to an indemnity judgment against Black Diamond. In doing so the District Court said, 109 F. Supp. at page 955:

"The pilotage clause by which the docking pilot became the servant of the vessel and her owners does not affect the tort liability of the parties to the libellant, whatever its effect may be as between the two parties to the contract."

Following the filing of the District Court's opinion, Curtis Bay, acting on its theory that it had sufficiently cross-claimed or cross-libelled in its answer to the libel (as subsequently set forth) filed a petition for review requesting additional findings of fact and conclusions of law and determination of the respective liabilities of Black Diamond and Curtis Bay to the owner of the damaged dolphin under the pilotage clause, and/or an adjudication of indemnity against Black Diamond.

The District Court in an "Opinion Sur Petition for Review and For Additional Findings"¹ denied the petition on the ground that "In the absence of a crosslibel, the findings requested by the petitioner would have no effect upon the decree² nor would they necessarily obviate further litigation."

Pursuant to this opinion the District Court entered a "Final Decree in re Determination of Liability Between Respondents" denying the petition for review. This appeal is from that decree and it raises the questions earlier stated.

With respect to the contention that the District Court erred in its determination that Black Diamond and Curtis Bay were negligent, we are of the opinion that the finding of negligence was amply supported by the evidence and must therefore be affirmed.³

As to the second question presented: can respective liabilities of respondents with adverse interests be adjudicated in an admiralty action in the absence of a cross-claim or cross-libel setting up the issue of such cross-liabilities. On that score it is well settled that the only manner in which affirmative rights may be asserted against a party in admiralty is by crossclaim or cross-libel or by an independent suit. Ward v. Chamberlain, 1859, 21 How. 572, 62 U.S. 572, 16 L.Ed. 219; The Dove, 1876, 91 U.S. 381, 23 L.Ed. 354; Bowker v. United States, 1902, 186 U.S. 135, 22 S.Ct. 802, 46 L.Ed. 1090; Mayer & Lage, Inc., v. Prince Line, Limited, D.C.S.D.N.Y.1920, 264 F. 854; Cioffi v. New Zealand Shipping Co., D.C.S.D.N.Y.1947, 73 F.Supp. 1015, 1016.

As to the third question presented: did the specific averments in the answer to the libel filed by the complaining respondents constitute a "cross-claim" or "cross-libel" within the requirements of applicable pleading principles in admiralty. With respect to this phase of the case Curtis Bay vigorously urges that the averments in Paragraph 13 of its answer to the libel sufficiently constituted a "cross-claim" or a "cross-libel" against Black Diamond and that the District Court erred in concluding otherwise. It becomes necessary, accordingly, to consider Paragraph 13 of the answer which reads as follows:

"13. As a further and separate defense, claimant-respondent avers that insofar as the aforesaid collision and loss may be determined to have resulted from the fault or negligence of the tug-master of Tug Girard Point who was on board the S. S. Creighton Victory in charge of the operation at all material times, claimant-respondent is entitled in respect to all sums adjudged against it to recover the same by way of indemnity from respondent United States of America⁴ under the Pilotage Clause of the towage contract between the said parties, reading as follows:

"`Whenever the Master or other officer of any tug or any licensed pilot goes on board a vessel to assist her movement or handling, he becomes and continues to be solely the servant of said vessel and her owners in respect of all acts done by him and all orders given by him to any tugs engaged or to said vessel or otherwise in the movement or handling of said vessel; and none of the tugs or their owners, agents or charterers shall be responsible or liable for any claims or any damages caused by or resulting from such acts or orders.\'"

Analysis of Paragraph 13 discloses that it merely asserted a right to recovery by way of indemnity against the United States (Black Diamond) under the Pilotage Clause, in the event that the District Court found that there was negligence on the part of its tug-master while he was acting as docking pilot aboard the "Creighton Victory"; this on the ground that the Pilotage Clause provided that the tugmaster while acting as docking pilot became "solely the servant" of the "Creighton Victory."

On this score it must be noted that the only relief asked for by Curtis Bay was the dismissal of the libel as to it and the tugs "Port Covington" and "Girard Point". It did not ask or pray for any judgment by way of indemnity against Black Diamond. It merely asserted its right to recover indemnity from Black Diamond.⁵

The averments in Paragraph 13 did not constitute a cross-libel. Mayer & Lage, Inc. v. Prince Line, Limited, supra;⁶ The Edward H. Blake, 5 Cir., 1899, 92 F. 202⁷; Hawgood & Avery Transit Co. v. Dingman, 8 Cir., 1899, 94 F. 1011; see Consolidated New York Coal Corp. v. Howard, D.C.S.D. N.Y.1943, 52 F.Supp. 600. It was not in form a cross-libel; it was not attended with the requisite formalities of a cross-libel; there was no posting of security nor was it required that Black...