SC Loveland, Inc. v. East West Towing, Inc.

• Decision Date: 21 May 1976
• Docket Number: No. FL 73-43-Civ-NCR,FL 73-61-Civ-NCR and FL 74-396-Civ-NCR.,FL 73-43-Civ-NCR
• Citation: 1978 AMC 2293,415 F. Supp. 596
• Parties: S. C. LOVELAND, INC., Plaintiff, v. EAST WEST TOWING, INC., E. & I., Inc. in personam, and the TUG MISS CAROLYN, her engines, tackle, furniture, appurtenances, etc., in rem, Defendants. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Plaintiff, v. S. C. LOVELAND, INC. and East West Towing, Inc., in personam and the TUG MISS CAROLYN, her engines, etc. and the BARGE LOVELAND 34, in rem, Defendants. ST. PAUL MERCURY INSURANCE COMPANY et al., Plaintiffs, v. EAST WEST TOWING, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

415 F. Supp. 596

1978 AMC 2293

S. C. LOVELAND, INC., Plaintiff, v. EAST WEST TOWING, INC., E. & I., Inc. in personam, and the TUG MISS CAROLYN, her engines, tackle, furniture, appurtenances, etc., in rem, Defendants.

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Plaintiff, v. S. C. LOVELAND, INC. and East West Towing, Inc., in personam and the TUG MISS CAROLYN, her engines, etc. and the BARGE LOVELAND 34, in rem, Defendants.

ST. PAUL MERCURY INSURANCE COMPANY et al., Plaintiffs, v. EAST WEST TOWING, INC., Defendant.

Nos. FL 73-43-Civ-NCR, FL 73-61-Civ-NCR and FL 74-396-Civ-NCR.

United States District Court, S. D. Florida, Ft. Lauderdale Division.

May 21, 1976.

COPYRIGHT MATERIAL OMITTED

Christian D. Keedy, of Smathers & Thompson, Miami, Fla., for S. C. Loveland, Inc.

Geoffrey B. Dobson, Tallahassee, Fla., for State of Florida, Dept. of Transportation.

William L. Von Hoene, New Orleans, La., Dewey R. Villareal, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, Fla., for East West.

Theodore G. Dimitry, of Vinson, Elkins, Searls, Connally & Smith, Houston, Tex., for St. Paul Mercury Ins., et al.

Ron FitzGerald, of Fleming, O'Bryan & Fleming, Ft. Lauderdale, Fla., for E. & I., Inc. and tug MISS CAROLYN.

ROETTGER, District Judge.

These three admiralty cases arose out of a collision between a barge which dragged anchor at its anchorage in the mouth of Tampa Bay and crashed into the Sunshine Skyway Bridge, owned by the State of Florida.

Shortly after the collision, the barge owner S. C. Loveland Inc., brought suit against the tug MISS CAROLYN in rem and against East West Towing, Inc. and E. & I., Inc. in personam. East West Towing and E. & I., the past and present owners of the tug MISS CAROLYN, cross-claimed against each other for damages resulting from any liability to plaintiff.

Shortly thereafter, the State of Florida filed suit against S. C. Loveland, Inc. and East West Towing in personam and against the tug MISS CAROLYN and the barge LOVELAND 34, in rem. S. C. Loveland cross-claimed against East West Towing and the tug MISS CAROLYN.

St. Paul Mercury Insurance Company and two other insurance companies sought a declaratory judgment to declare the policy of insurance issued to East West null and void because of its alleged change of ownership or management of the vessel without written consent of the underwriters. Both S. C. Loveland, Inc. and E. & I. intervened, asserting an interest as potential beneficiaries of the policy.

The suits were consolidated for purposes of pleading and trial. Findings of fact and conclusions of law will be set forth in this memorandum opinion.

FINDINGS OF FACT

E. & I., Inc., a Florida corporation, had a contract for purchase of the tug MISS CAROLYN for $175,000 from East West Towing, Inc., a Louisiana corporation. The closing had been delayed a couple of times and the final closing date was set for August 17, 1973. On the 16th of August representatives from E. & I., Mr. Manion and Capt. Landreth, flew to New Orleans expecting to hold a closing. By then the condition of obtaining financing had been satisfied so that the closing could proceed. When the E. & I. representatives arrived in New Orleans, the tug MISS CAROLYN was not in port; instead she had been dispatched with a tow by East West Towing on the 14th of August and was en route to Florida. The original contract of towage had been modified to extend her destination to Jacksonville rather than Tampa.

The tow was the barge LOVELAND 34, an unmanned (dumb) 115 feet steel barge with about 2½ feet of freeboard. The barge had no fixed superstructure and was carrying a cargo of two large objects which were chemical reactors.

E. & I. had expected to take command of the tug MISS CAROLYN and depart for Grand Cayman immediately after the closing and had charts for that intended voyage. Since the tug MISS CAROLYN was not in port, East West and E. & I. found themselves engaged in further negotiations. East West desired E. & I. to take over the tow but E. & I. declined; they did not have the appropriate towing liability insurance and did not want to secure it because of the costs involved.

The testimony was unequivocal that the sale would not go through unless arrangements could be made for East West to complete the tow. East West tried to obtain the services of a tug in Tampa but was unable to do so. Consequently, the parties agreed on an arrangement whereby East West would dispatch the tug GARY STEPHENS to cross the Gulf directly to Tampa. There it would take over the tow from MISS CAROLYN when she arrived in the Tampa area.

The court finds that it was the clear intention of the parties that command of the tug MISS CAROLYN would not be turned over to E. & I. until the tow had been taken to Tampa Bay. The court further finds that it was the intention of the parties that the tow would be taken over in the Tampa Bay area by the tug GARY STEPHENS which, although owned by Delta Boat & Barge, was operating under the authority of East West. The testimony of all the witnesses of East West alone compels the finding that no documents of sale would have been executed by E. & I. for the purchase of the vessel absent the agreement to permit the GARY STEPHENS to pick up the tow in Tampa. E. & I.'s witnesses add further support to that finding. The documents were executed on the night of August 16th and the respective parties celebrated the occasion that evening in New Orleans.

Meanwhile, by noon on the 16th the tug MISS CAROLYN had arrived at Panama City, Florida with her tow and stopped there. Jay Landreth was flown to Panama City on the afternoon of the 16th and went aboard the tug MISS CAROLYN. The ship's license was brought back by the pilot of the seaplane and given to the lender's agent as required by the lender prior to the disbursing of funds.

In the first of a series of unusual errors in communication, an East West officer, Mr. Dupre, called the captain on MISS CAROLYN, Capt. Verdin, that same afternoon and advised him that the boat was sold. Evidently he did not further advise Capt. Verdin that the sale was conditioned on the tow being completed by East West with the tug GARY STEPHENS picking up the tow at Tampa. This created the unusual situation of Capt. Verdin thinking the boat had been sold when the contract purchaser's skipper, Capt. Landreth, came aboard in Panama City.

The court specifically finds that Capt. Landreth had no intention of taking over command and did not do so at Panama City. Capt. Verdin retained command although he was clearly in an Alphonse-Gaston situation with Landreth in the sense that he was seeking Landreth's advice and, perhaps, even deferring to Landreth on occasion.

The court finds there is an extremely sound reason why Capt. Verdin would do that: he had never been to the Tampa area — in fact, he had never been east of Panama City — while Capt. Landreth had experience in Tampa waters.

This scene aboard the tug MISS CAROLYN at Panama City was a bit unusual: the crew advised Landreth they couldn't go on because they had no fuel. They had no groceries. They had no charts. In fact, they were navigating by means of a Texaco road map. There was some evidence that they had planned to pick up charts in Louisiana before leaving but had failed to do so. Since the barge must proceed outside from Apalachicola to Tampa, Landreth checked the compass and found it had a deviation of more than 50 degrees; Landreth plotted a course to compensate for that compass error and subsequently the tug MISS CAROLYN left for Tampa.

Before they departed Panama City Landreth gave money to one of the crew members to obtain groceries; Landreth also obtained fuel at the Gulf docks where the tug was tied up. The testimony was uncontradicted that E. & I. would be reimbursed for the fuel used by the tug in getting the tow to Tampa.

The court observes that Capt. Verdin had a license for inland and western waters but not for open water. Capt. Verdin had only two or three months of formal schooling in his life. Apparently, he did not know where Jacksonville was and expressed surprise to Capt. Landreth at the distance from Panama City to Jacksonville.

Somewhere en route to Tampa about 3 A.M. on the 18th Capt. Verdin got lost, then woke up Landreth, who took the wheel. This squares with the marine operator's report that there was a call from the tug MISS CAROLYN requesting navigational assistance about that time on the morning of the 18th. When the tug MISS CAROLYN got to the mouth of Tampa Bay, where it is spanned by the Sunshine Skyway Bridge, there was a discussion between Capt. Verdin and Capt. Landreth about where to anchor the barge. Finally, the anchorage site in the spoil banks, just east of the Sunshine Skyway Bridge on the south side of the channel, was selected and the barge was anchored there about 10 A.M.

There is no evidence before the court that there was anything other than sufficient cable payed out for the anchor. The tug MISS CAROLYN continued on to the Nilo Docks in Tampa located about 30 miles and a three-hour run from the anchorage. East West has urged throughout the trial that there was some urgency on the part of E. & I. to get the boat to Fort Lauderdale and that was the reason for anchoring the barge in the spoil banks. However, that does not square with the evidence.

The court finds that the only purpose in leaving the barge in that location is so that it would be convenient for the tug GARY STEPHENS to pick it up. It could not be a benefit to E. & I. because E. & I. had already made arrangements for their personnel to meet the tug MISS CAROLYN at the Nilo Docks in Tampa. MISS CAROLYN arrived at the Nilo Docks on the afternoon of the 18th and Capt. Verdin contacted East West. At that time the crew of E. & I. which was to take the tug around to Fort Lauderdale had not left Fort Lauderdale and did not arrive in Tampa until about 11 P.M. Further, MISS CAROLYN didn't leave until...