Sabine Towing Co. v. Brennan, 7267.

• Decision Date: 27 August 1934
• Docket Number: No. 7267.,7267.
• Citation: 72 F.2d 490
• Parties: SABINE TOWING CO., Inc., v. BRENNAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

72 F.2d 490 (1934)

SABINE TOWING CO., Inc., v. BRENNAN et al.^*

No. 7267.

Circuit Court of Appeals, Fifth Circuit.

July 17, 1934.

Rehearing Denied August 27, 1934.

John D. Grace, M. A. Grace, and Edwin H. Grace, all of New Orleans, La., for appellant.

H. C. Hughes, of Galveston, Tex., and M. G. Adams, of Beaumont, Tex., for appellees.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, petitioner in "a cause of exoneration from or limitation of liability" on account of the sinking of the tugboat Edgar F. Coney and the loss of her crew, was unsuccessful below. The District Judge found that the weather in which the Coney was operating at the time it sank was not unusual, but reasonably to be expected at that time of year. He thought petitioner had failed to carry the burden it was under to show that the tug was seaworthy and properly equipped and supplied. He found too, that the proof affirmatively established that in making the repairs on the Coney the owner had negligently made it unseaworthy as to stability and buoyancy by overweighting it. Denying the petition, he found for claimants.

Appellant challenges these findings and the decree on which they rest as without support in the evidence. It argues that the storm in which the Coney sank was sufficiently severe to account for the sinking without fault. It argues too, that the showing it made regarding the outfitting and preparation of the Coney for its change of use from coastwise to ocean going, fully satisfied every requirement of due care. It argues, finally, that if there was negligence in equipping and outfitting the Coney its proof has clearly shown that this was without its knowledge or privity. Claimants reply, not so. Vigorously defending the findings, they argue that they are in accord with the great preponderance of the evidence; indeed, that no other view would be reasonable. Appellant and appellees are in substantial agreement as to the controlling principles of law. Their differences, except in one particular, arise out of their conflicting views of what the evidence established. The point of law on which they differ is whether, to avail of limitation, the barge should not also have been surrendered. The District Judge decided this issue in favor of appellant. Claimants argue here with conviction that this was error. They insist that the barge must be surrendered along with the tug as a condition to limitation — citing Sacramento Nav. Co. v. Saltz, 273 U. S. 326, 47 S. Ct. 368, 71 L. Ed. 663; Standard Dredging Co. v. Kristiansen (C. C. A.) 67 F.(2d) 548; In re W. E. Hedger (C. C. A.) 59 F. (2d) 982; Alvah H. Boushell (C. C. A.) 38 F.(2d) 980; The El Sol (D. C.) 45 F.(2d) 852.

While we think claimants are right that the barge should also have been surrendered, we do not find it necessary to determine the effect of the failure to surrender it, nor whether it may still be surrendered, because of our view that on the merits the decree for claimants was right. We address ourselves to those. The facts may be quite briefly stated, for though considerable testimony was taken, the issues are few and narrow, and the case made was in small compass.

On January 28, 1930, the Edgar F. Coney left Sabine Bar with the barge "Pure Detenox" in tow, bound for Pensacola, Fla. At this time the weather conditions were moderate. During the afternoon and night they grew worse, with heavy rain squalls and shifting winds. The barge, however, steered all right following in the wake of the tug, and no signals were exchanged indicating danger or trouble. The weather, while severe, was not unusual for that time of the year. As the captain of the barge and some of the crew put it, "We have been in that kind of weather many times" and they were not expecting or looking for any trouble. The night was very dark, but there were flashes of lightning which enabled them to see the tug from time to time. About 10 p. m. the crew on the barge noticed the lights on the tug, which had been appearing and disappearing at intervals, finally disappear altogether. Shortly after this cries for help were heard from men in the water near by. Due to the condition of the weather, the barge being deeply loaded, and seas breaking over her decks, with a stiff wind and heavy rain at the time, they were unable to launch the life boats and could only throw life buoys and life belts and other available gear to the men in the water. Shortly afterwards, discovering that the barge was not being towed, they succeeded, though with difficulty, in letting the anchor go and anchoring for the night. On the morning of January 29, the towing hawser was hauled onto the barge with towing hooks on end intact. The chain had parted from around the bitts on the tug. The barge crew then discovered the topmast of the tug sticking out of the water about 4 feet, indicating that the tug was resting on the bottom in about 42 feet of water. All on the tug were lost, and what actually caused it to sink can be determined only circumstantially. For many years the Coney, a Tampa tug, had been engaged in towing coastwise. Appellant in the latter part of 1929 bought it for $30,000, and after spending $20,000 on it in repairing and reconditioning it, obtained a certificate of inspection from the United States local inspector in which the license was enlarged from coastwise to ocean going. It is not claimed that any of these repairs were badly made, or that any bad material was put into them. The claim is that the Coney was cranky, and unstable, and that only by precisely keeping it within the load and draft limits prescribed for it in an inclining test, which it had been subjected to many years before at Tampa, could it be safely operated even coastwise. Specifically it was proven that a Dialogue boat, well and safely built, it had from time to time undergone changes in construction and in use from coastwise to ocean going which had made it so unstable as to require an inclining test, that as the result of this test permanent orders had been issued limiting its draft to 10 feet 5 inches under fixed weight conditions, and that while these weight conditions and this draft were observed, it had been safely operated. It was claimed that appellant, the new owner of the tug, in disregard of these restrictions, added weight to it which put it down in the water below the draft fixed and so reduced its freeboard as that when subjected to the action of heavy seas rolling over it, it was made unable to come easily up, and put in great danger of sinking. It was around this point, as to the correctness of the test made by Captain Noel, and as to what was actually done to conform to it, that the great contention raged. Captain Noel testified for claimants in support of his test, while for the petitioner a Mr. Slade very vigorously disputed Noel's measurements and conclusions, and insisted that the Coney had a much greater depth of hull than Noel allowed it, and that by correct measurements it could have been loaded to 11 feet 10 inches, still leaving 1 foot 1 inch for freeboard. Noel testified by deposition; Slade in person.

Another matter of dispute and contention was whether the Coney's fuel tanks were cut down 24 inches as required by the order, or only 12 inches as desired by her then owner. A great deal of testimony bearing circumstantially on this point, but not directly establishing it, was taken. That the boat had been thought cranky and unstable, and that the inclining test was deemed necessary and was made, was not disputed. The dispute was over whether the test had been properly made, whether the requirements had not been more rigorous than necessary, whether those made were met, and whether the additional weight the new owners added could have made it unstable. The petitioner was in the embarrassing position of having, after the loss, to minimize the importance of, and to explain away as far as possible, the stability test and the conditions imposed as the result of it, because in purchasing the vessel and reconditioning it for ocean going, and especially in adding the weight which was added, it had acted in complete ignorance of the fact that the test had been made, and in reliance entirely on the certificates of inspection and the oral reports it got without resorting to the information about the boat which was in writing and easily and readily available. In addition, therefore, to vigorously claiming the protection of and the right to rely on the certificates of inspection the boat had, the petitioner struggled hard to show that the crankiness and instability the boat had evidenced before the inclining test was ordered was the result of improper handling, and, if not, that Noel had greatly magnified its gravity in his inclining test, and had imposed unreasonable conditions through wrong measurements and a misunderstanding of the nature, character, and service of the boat. Claimants, in support of their position that the inclining test was accurately made, and the conditions imposed were wisely fixed, proved by Wiebe, for many years its master, that after the test the boat was run for years with the loaded draft kept down to the 10 feet 5 inches recommended, and that during that time it had had no trouble, and they proved also that the addition of 6 tons to its weight would reduce the freeboard. As to just how low the tug sat in the water, what its draft was, and what freeboard it had when, fully loaded, it set out on its voyage, there was no direct testimony. Appellant offered the testimony of its officers and employees and also of the government inspectors that, while they made no tests for stability, the boat looked to be and they thought it was entirely seaworthy and in good shape, and that they did not notice any substantial difference in its freeboard before and after the additional weight had been put on. The only witnesses purporting to state how low it was in the water after...