Singer v. Dorr

• Citation: 272 F. Supp. 931
• Decision Date: 16 June 1967
• Docket Number: Civ. A. No. 14421.
• Parties: Mrs. Barbara Lynn Whitley SINGER, widow of Lester Karl Singer, Jr., Individually and as Administratrix of the Succession of Lester Karl Singer, Jr., and as Next Friend of the Minor, Karl David Singer v. Louis R. DORR, d/b/a Dorr Towing Company, Dorr Towing Co., Inc., Federal Barge Lines, Inc., Port City Barge Lines, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

272 F. Supp. 931

Mrs. Barbara Lynn Whitley SINGER, widow of Lester Karl Singer, Jr., Individually and as Administratrix of the Succession of Lester Karl Singer, Jr., and as Next Friend of the Minor, Karl David Singer v. Louis R. DORR, d/b/a Dorr Towing Company, Dorr Towing Co., Inc., Federal Barge Lines, Inc., Port City Barge Lines, Inc.

Civ. A. No. 14421.

United States District Court E. D. Louisiana, New Orleans Division.

June 16, 1967.

Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., Lemle & Kelleher, New Orleans, La., for Federal Barge Lines, Inc. and Port City Barge Lines, Inc.

Patrick L. Burke, James A. George, Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, La., for Dorr Towing Co., Inc. and Stuyvesant Ins. Co.

HEEBE, District Judge:

This matter raises interesting and novel questions concerning the existence, nature, and extent of the implied warranty of workmanlike service which may be owed by a tug owner to a barge owner. The proceedings out of which those issues now arise were, insofar as is relevant to an understanding and determination of those issues, as follows:

Lester Singer was employed by Dorr Towing, Inc., as a deckhand on Dorr's tug, the "Big Louie II." Port City Barge Lines, Inc., was the owner of the barge PCBL-104, which was leased to Federal Barge Lines. Dorr contracted with Federal to tow the barge from the American Sugar Refinery to Federal's fleet area. On the night of September 23, 1963, the "Big Louie II" had the PCBL-104 in tow, when Singer fell from either the barge or the tug into the Mississippi River and drowned. Singer's widow and child brought a wrongful death claim in negligence under the Jones Act, 46 U.S.C.A. § 688, against Dorr Towing¹ and its insurer and an action in negligence and unseaworthiness² under the state wrongful death provisions, Louisiana Civil Code Art. 2315, against the barge interests. The barge interests brought a cross claim³ against the tug owner, alleging that there was implied in the towage contract an obligation of the tug owner to perform his services in a reasonable and workmanlike manner, and that that obligation had been breached. The barge interests asked for indemnity from the tug owner for all damages for which they were held, together with costs, disbursements and attorneys' fees; further, if the barge interests were not held liable to the plaintiff, they sought recovery of their costs, disbursements and attorneys' fees from Dorr. Dorr responded by filing a cross claim against the barge interests based on the alleged obligation implied by the towage contract that the barge interests furnish a seaworthy barge and the breach of that obligation. A jury trial was sought on all claims except the cross claim of the barge interests.

The trial lasted six days.⁴ After the presentation of plaintiff's evidence, the trial judge granted a directed verdict in favor of the defendant barge interests against the plaintiff, and after the presentation of defendant Dorr's evidence, the Court likewise granted a directed verdict in favor of the barge interests on the cross claim of Dorr— although there had been evidence presented upon which the jury could have based a finding that the barge was unseaworthy, there was no evidence to support a finding that any such unseaworthiness had been the proximate cause of Singer's death.⁵ See Reasons, document #93 of Record.

At the conclusion of all the evidence, the case was submitted to the jury on written interrogatories. The jury found that Dorr Towing was proximately negligent and awarded damages of $70,000.00 plus funeral expenses to the plaintiff, to be reduced 50% for the decedent's proximate contributory negligence. Judgment was thereafter entered on the jury verdict in favor of the plaintiff against defendant Dorr; on the directed verdict in favor of the defendant barge interests against the plaintiff; and on the directed verdict in favor of the barge interests against Dorr on Dorr's cross claim. However, judgment was further entered to the effect that the cross claim of the barge interests against Dorr was moot. Plaintiff then moved for judgment n. o. v. or for a new trial; whereupon Dorr moved, solely in the event plaintiff's motion was granted, to set aside the directed verdict against it, and grant a new trial, on its cross claim against the barge interests. The barge interests moved to strike that portion of the judgment which found that the cross claim of the barge interests against Dorr was moot, and further moved that the Court render a separate finding that Dorr breached its warranty of workmanlike service and enter a separate judgment thereon, awarding the barge interests their attorneys' fees and costs as against Dorr.

Prior to the hearing of any of these motions, the trial judge, our predecessor, Judge Ellis, retired. Later, the plaintiff and Dorr settled their differences, and a satisfaction of judgment was entered. The remaining motion— that of the barge interests to amend the judgment—was brought on for hearing before us. It is, of course, clear that the cross claim of the barge interests against Dorr is not moot, in that it specifically sought costs and attorneys' fees in the event the barge interests were not held liable to plaintiff. Therefore, that portion of the judgment must be stricken. We must now decide whether an implied warranty of workmanlike service in the performance of the towage contract is owed by tugs to barges and, if so, the nature and extent of that warranty, and the remedy for its breach; and lastly, if the law would allow a remedy in the posture of this case, whether the warranty was in fact breached under the facts of this case.

We can find no cases on the question of an award of costs and attorneys' fees to a barge at the expense of a tug. However, our study of the jurisprudence in related areas leads us to the inescapable conclusion that costs and attorneys' fees may properly be awarded. First, and most important, there is an implied warranty of workmanlike service, that is, an implied obligation to tow properly and safely, owed by a tug to a barge—the very nature of the towing agreement necessarily implies an obligation to tow properly and safely, and competency and safety are essential elements of the towing service undertaken. James McWilliams Blue Line v. Esso Standard Oil Co., 245 F.2d 84 (2nd Cir. 1957); Dunbar v. Henry Dubois' Sons Co., 275 F.2d 304 (2nd Cir. 1960), cert. den. 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46 (1960). Next, given the existence of this warranty, we can see absolutely no reason for its scope and the measure of its breach being determined by theories conceptually different from those applied to the warranty of workmanlike performance owed by a stevedore to a shipowner. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). Both the barge owner and Ryan shipowner turn their vessels over to the complete control of another party (tug owner or stevedore) but nonetheless remain absolutely liable for the condition of their vessels under the non-delegable duty to provide a seaworthy vessel. Thus, assuming the initial seaworthiness of the vessel when control is transferred by the owner, the owner's liability to third persons can depend entirely on the actions of the party to whom control is transferred and who is under the implied obligation of workmanlike service.

The stevedore who breaches his warranty, causing the shipowner to be held liable to an injured longshoreman, must indemnify the shipowner for the damages recovered by the longshoreman. Ryan, supra. Subsequent to Ryan, it was held that this indemnity includes not only the damages recovered by the plaintiff, but also the attorneys' fees incurred by the shipowner in attempting to defend against the plaintiff's claim. See cases cited in Drago v. A/S Inger, 194 F.Supp. 398, 409-410 (E.D.N.Y. 1961). The next development in this area of the law was the allowance of recovery of attorneys' fees where the shipowner successfully defends against the plaintiff's claim—if the stevedore breached its warranty, then it is liable for all damages caused by that breach, including attorneys' fees expended in defending unsuccessful claims which were brought as a result of that breach. Caswell v. Koninklyke Nederlandsche Stoomboot Maalschappy, 205 F.Supp. 295 (S.D.Tex.1962), "clear and logical opinion" concurred in and affirmed, sub. nom. Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboot Maalschappy, 324 F.2d 746 (5th Cir. 1963), cert. den. (3 votes for cert.) 376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972 (1964), reh. den. 377 U.S. 925, 84 S.Ct. 1219, 12 L.Ed.2d 217 (1964), cited and followed, Massa v. C. A. Venezuelan Navigacion, 332 F.2d 779 (2nd Cir. 1964), cert. den. 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 186 (1964). For a time this was not the rule in the Eastern District of Virginia, Fox v. SS Moremacwind, 182 F.Supp. 7 (1960); Hill v. American President Lines, Ltd., 194 F.Supp. 885 (1961), but the author of those opinions later stated them to be incorrectly decided, Bielawski v. American Export Lines, 220 F.Supp. 265 (1963) and his change of heart was affirmed, sub. nom. American Export Lines v. Norfolk Ship-building & Drydock Corp., 336 F.2d 525 (4th Cir. 1964).⁶

It appears that none of the tug-barge cases involved attorneys' fees or a successfully defended main claim. However, we can see no reason why, if the implied warranty exists, it should not cover attorneys' fees even where the main claim is successfully defended, just as it does in the shipowner-stevedore cases.⁷ The theories behind the indemnity are the same in both cases, and the line-up of the parties almost precisely parallel. In both cases, an injured plaintiff sues a vessel owner who third-parties the person in control of the vessel (the implied obligor). In both cases, the vessel owner is under the nondelegable duty to provide a seaworthy vessel and thus any...