Pure Oil Company v. M/V CARIBBEAN

• Court: U.S. District Court — Western District of Louisiana
• Citation: Pure Oil Company v. M/V CARIBBEAN, 235 F.Supp. 299 (W.D. La. 1964)
• Decision Date: 03 November 1964
• Docket Number: No. 8736,9018.,8736
• Parties: The PURE OIL COMPANY v. M/V CARIBBEAN and Caribbean Towing Co. CARIBBEAN TOWING CO. v. M/V DIANA BRENT and Brent Towing Co., Inc. SILVEY-TAYLOR BARGE CO. v. TUG CARIBBEAN and Caribbean Towing Co. CARIBBEAN TOWING CO. v. M/V DIANA BRENT and Brent Towing Co., Inc.

235 F. Supp. 299

The PURE OIL COMPANY v. M/V CARIBBEAN and Caribbean Towing Co.

CARIBBEAN TOWING CO. v. M/V DIANA BRENT and Brent Towing Co., Inc.

SILVEY-TAYLOR BARGE CO. v. TUG CARIBBEAN and Caribbean Towing Co.

CARIBBEAN TOWING CO. v. M/V DIANA BRENT and Brent Towing Co., Inc.

Nos. 8736, 9018.

United States District Court W. D. Louisiana, Lafayette Division.

November 3, 1964.

COPYRIGHT MATERIAL OMITTED

Deutech, Kerrigan & Stiles, Paul A. Gaudet and H. Barton Williams, New Orleans, La., for libelant and respondent in cross-libel, The Pure Oil Co.

Faris, Leake & Emmett, J. Y. Gilmore, Jr., New Orleans, La., for respondents, Caribbean Towing Co. and M/V Caribbean.

Lemle & Kelleher, George A. Frilot, III, New Orleans, La., for impleaded respondents and cross-libelants, Diana Brent and Brent Towing Co.

PUTNAM, District Judge.

The Pure Oil Company, owner of a cargo of petroleum products laden on board the Barge NBC 934, instituted a libel against the M/V Caribbean and Caribbean Towing Company for damages to its cargo arising out of the collision between the tow of the M/V Caribbean and the tow of the M/V Diana Brent. C. J. Boyne, E. W. Lasseigne and Edward Boyne, the partners comprising Caribbean Towing Company, claimed the M/V Caribbean, answered and impleaded the M/V Diana Brent and Brent Towing Company, Inc. Silvey-Taylor Barge Company instituted a libel against the Tug Caribbean and Caribbean Towing Company for damages to its Barge NBC 934 arising from the same collision. Caribbean Towing Company claimed the Caribbean, answered and impleaded the Diana Brent and Brent Towing Company, Inc. Brent Towing Company, Inc. claimed the M/V Diana Brent, answered both impleaders and the cases were consolidated for purposes of trial. Brent Towing Company, Inc. then filed a cross-libel against Pure Oil Company seeking recovery, under contractual relationships, for any contingent liabilities to Pure as a result of the impleaders. The Pure Oil Company excepted to the cross-libel and the question of liabilities between Brent Towing Company, Inc. and the Pure Oil Company was referred to the merits. Trial was held on April 15-16, 1964, and evidence was adduced on all issues. The matter was submitted on the question of fault between the Caribbean and the Diana Brent and their respective owners and held open for further testimony in regard to the contractual issues between Pure Oil Company and Brent Towing Company, Inc.

FINDINGS OF FACT

1. On the evening of April 19, 1961, the M/V Diana Brent, a 900 horsepower single screw tug, about 75 feet long, owned and operated by Brent Towing Company, Inc. was upbound in the Atchafalaya River pushing three barges in tandem. Her lead barge was NBC 934, owned by Silvey-Taylor Barge Company, and her tow was approximately 645 feet in length.

2. On the same date, the M/V Caribbean, a steel tug approximately 65 feet long, powered by two engines developing approximately 1000 horsepower and pushed by twin screws, owned and operated by a partnership composed of C. J. Boyne, F. W. Lasseigne and Edward Boyne, was downbound in the Atchafalaya River pushing two loaded barges in tandem. The Barge LBTCO 22 (ex COLLE 122) was the lead barge and the MS 4 was faced up to the Caribbean. The Caribbean's tow was about 480 feet in length.

3. The night was clear and the Atchafalaya River was at a high stage, overflowing its banks in the area of the ultimate casualty. The current was strong at between 5 and 7 miles per hour.

4. Just above Mile 13, the Atchafalaya River bends nearly 90° to the left for upbound traffic. Approaching the bend, the Diana Brent and her tow were holding near the right descending bank. As she made the turn leading into the straight reach above Mile 13, however, the Diana Brent drove her tow 150 feet to 300 feet into the channel before she began to pivot. The sweep of the current caused the Diana Brent to drift off to the center of the channel by the time she straightened up.

5. As the Diana Brent made her turn, she came into view of the descending Caribbean, two to three miles above her. The Caribbean, in the straight reach, was holding to her starboard side of the river, nearer to the bank than to the middle of the channel. Her captain, atop the pilot house fixing a spot light, saw the Diana Brent's red light as she came out of the bend and, shortly thereafter, the Diana Brent showed both her red and green lights as she rounded up. This indicated an end on meeting situation.

6. As the tows came end on, the mate of the Caribbean, at her wheel, sounded a single blast of her whistle. At about this same time, and when the tows had closed to within one mile of one another, the mate of the Diana Brent, at her wheel, sounded two blasts on her whistle. Neither vessel heard the proposed passing signal of the other, probably because they were simultaneously made. The Diana Brent was then making about 4 miles per hour over the ground and steering toward her left ascending bank, which she wished to follow upriver to take advantage of slack water. The Caribbean, with the strong current underfoot, was making about 12 to 14 miles per hour. There was a closing range rate between the two flotillas of 15 to 16 miles per hour.

7. The Diana Brent continued to steer toward her left ascending bank and closed her red light to the Caribbean. The Caribbean sounded a danger signal and reversed her engines when the flotillas had closed to less than one-half mile (the testimony varies from 200 feet to 2000 feet, but we find that this occurred when the flotillas were well within one-half mile, and probably within 1000 feet when the Caribbean so acted). At a distance of less than one-quarter mile, the Diana Brent sounded a danger signal and began backing on her engines. Thereafter, the Diana Brent drove her tow into the left ascending bank on an angle and, at about that time, the starboard bow of the lead barge of the Caribbean collided with the starboard side of the NBC 934 about 50 feet aft her bow corner. The NBC 934 was holed and part of her petroleum cargo spilled into the river.

RELATIONSHIP OF PURE AND BRENT TOWING, ETC.

At the outset, we overrule the exception of Pure to the cross-libel filed by Brent. The latter, being an impleaded respondent in Pure's original action, stands charged with fault to the same extent as if it were originally named. Benedict on Admiralty, Vol. 2, § 351, p. 538, et seq. The cross-libel grows out of the provisions of the contract under which Pure's cargo was being transported. This is germane to the matters placed before the Court, and may properly be made the subject of a cross-libel.

Since we have heard all of the evidence to be offered by either side on these issues, we now decide the motion for summary judgment filed by Pure with the merits of the bill, and proceed with our findings of fact.

8. By contract effective January 1, 1958, Silvey-Taylor agreed to move bulk cargo consisting of petroleum products for Pure, and to provide therefor a tug known as M/V Valto, Barges NBC 933, NBC 934, NBC 1076, or equivalent substitutes, for a specified rate. (Diana Brent, Exhibit 3)

9. This contract contained the following clause, limiting the liability of Silvey-Taylor:

"INSURANCE AND MARINE PERILS:

"Owner shall carry at its expense Hull and P&I insurance (but not tower's liability covering cargo) to the full value of the tow used in the fulfillment of this contract. Company hereby acknowledges that the towage rate specified herein does not contemplate or include an allowance for liability insurance covering the cargo and as an additional consideration supporting owner's undertakings, company shall and it does hereby agree to hold owner, its tow, masters, crew, agents and employees harmless for claims for cargo loss, damage or contamination whether arising or resulting from an act of neglect or default in the navigation or management of the vessel, including but not limited to, explosion, fire collision, stranding, salvage operations, equipment defect, or other peril, danger or accident of navigable waters or from any other cause of whatsoever kind arising. In furtherance hereof, company agrees to insure the cargo transported hereunder to its full value against all marine perils, including loss, damage or contamination, salvage or general average contribution, etc. and to secure a waiver of assignment and/or subrogation from the cargo underwriters in favor of owner on account of any cargo claims paid by the underwriters."

10. On October 3, 1960, Silvey-Taylor contracted with Brent to furnish a tug, manned and victualled, for the performance of the abovementioned contract with Pure, for a consideration of 65% of the revenues collected for towing such products, in the barges owned by Silvey-Taylor. (Diana Brent, Exhibit 4) This contract contained the following provisions:

"INSURANCE: Tower, at its own expense, shall insure the towing vessels furnished pursuant to this agreement with first-class underwriters against both Hull and P&I risks, including collision and Tower's liability clauses, to the full value of each such vessel. Charterer, at its own expense, shall insure the barges pursuant to this agreement with first-class underwriters against both Hull & P&I risks. It is mutually agreed by both parties that the shipper will provide all cargo insurance and that neither the Charterer nor the Tower will be responsible for any loss or damage to the cargo.

"Tower and Charterer agree to waive right of subrogation against the other at no expense to either."

11. The uncontradicted testimony of the witness Lamar Silvey establishes that the M/V Valto became inoperative, and Tugs of Brent Towing were substituted therefor, with the consent of Pure. Although the Court held the record open to permit Pure to take the deposition of its representative with whom these arrangements were made or to show other contradictory evidence, none has been produced. This substitution of...