South, Inc. v. Moran Towing & Transportation Co.
| Decision Date | 16 August 1965 |
| Docket Number | No. 61 Ad. 964,61 Ad. 1480.,61 Ad. 964 |
| Citation | 252 F. Supp. 500 |
| Parties | SOUTH, INC., as owner of the FERRYBOAT VEGA, Libellant, v. MORAN TOWING & TRANSPORTATION CO., Inc., Respondent, and TUG CHRISTINE MORAN, her engines, etc., Tug Claire A. Moran, Inc., Claimant. MORAN TOWING & TRANSPORTATION CO., Inc., Cross-Libellant, v. SOUTH, INC., Cross-Respondent. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Hardin, Hess & Eder, New York City, for libellant.
Burlingham, Underwood, Barron, Wright & White, New York City, for respondent.
Libel to recover damages sustained by the libellant, South, Inc., as a result of the loss of her vessel, the ferry Vega, while in the tow of the respondent's tug Christine Moran, is dismissed.1
Decree on cross-libel, by Moran Towing & Transportation Co., Inc., to recover its damages due to the aforementioned loss shall be entered.
The instant action was submitted to the court solely on the issue of liability. Since the court finds that liability has been established on the cross-libel, the question of damages is reserved for the determination of a commissioner.
The court finds jurisdiction over all aspects of the action.
The within action was tried before this court, without a jury. The taking of evidence was concluded on March 25, 1965.
The libellant, South, Inc., is a corporation duly organized and existing under the laws of the state of Florida. Respondent, Moran Towing & Transportation Co., Inc., is a corporation incorporated under the laws of the state of New York. Tug Claire A. Moran, Inc., the claimant, is the corporate owner of the tug Christine Moran.
On January 5, 1961, the libellant purchased three ferries from Sunrise Ferries, Inc. for a total cost of $60,000. The vessels purchased were the Vega, the Deneb and the Altair. Each of these ships was substantially identical in its construction. The physical dimensions of the Vega, noted by stipulation in the pre-trial order, were as follows: 84 gross tons; registered length 61.9 feet; registered breadth 38.9 feet; registered depth 8.0 feet. The Vega was built at Port Richmond, New York in 1946.
South, Inc. and Moran Towing & Transportation Co., Inc. entered into a contract of towage on January 9, 1961. Respondent agreed to furnish a seagoing tug to tow the three vessels from New York to Norfolk, Virginia. Agreement was made to take the ferries in a single tow to their destination. As part of the towage contract, libellant was required to fit out and maintain the three ferries for towage in a sufficient and proper manner. The arrangements included the installation of lights and compliance with all additional requirements of the underwriters' surveyors.
Prior to the execution of the towage contract, libellant had sought to obtain insurance. The underwriters appointed Edward Ferenczy, a marine surveyor, to examine the vessels and submit any recommendations required to prepare the ferries for the tow. Ferenczy's inspection of the Vega indicated some pitting, although no excessive corrosion, which caused some misgivings over the condition of the Vega's plating. For this reason, he recommended that she be drydocked for further examination. Libellant did not drydock the Vega and insurance coverage was refused.
The surveyor Ferenczy also detailed recommendations for the installation of equipment aboard the vessels to best effectuate the proposed make-up of the tow. As a result, two six foot long angle irons were welded to the deck of the Vega, one on either side of amidships, each with a hole in either end. The towing hawser was to be secured to a bridle and the two ends of the bridle were to be shackled in the holes nearest the bow. The intermediate hawser from the Vega to the Deneb, next in line in the flotilla, was to be secured in the same manner. Coastal Dry Dock & Repair Co. was engaged by the libellant to perform the necessary preparations which included boarding up of her windows and closing up of the deck and hull openings.
At the time the contract of towage was discussed and signed, the then vice-president of the libellant, Gordon Duke, engaged in conversation with Captain Leonard Goodwin who was operations manager for the respondent. Duke noted the character of the ferries to Goodwin and requested that the vessels be towed at a prudent speed. No specific recommendations of speed were mentioned by Duke and the manner of towage was left to the competence of the respondent.
The respondent assigned the tug Christine Moran to carry out the contract. The tug was 96.3 feet in length, 25.2 feet in width and 12 feet in depth. She was powered by a diesel electric engine of 1100 horsepower and had been placed into service during the 1950's.
The events of the voyage itself, beginning on the evening of January 10, 1961, were related to the court by two witnesses, Rodney Jones, Master of the Christine Moran and John Blaha, her First Mate. Due to the positioning of the three ferries at the Coastal Dry Dock & Repair Co. yard, the tug Claire Moran took the Vega in tow and turned her over to the Christine Moran at the Narrows. The Christine Moran had already taken the Deneb and the Altair in tow and when she rendezvoused with the Claire Moran, the Vega was placed as the lead ferry in tow, astern of the tug, followed by the Deneb and the Altair.
Prior to the commencement of the pick up at Coastal's yard, Rodney Jones had boarded the ferries to make an examination. He satisfied himself that all deck openings were closed and all windows boarded up but any other inspection was impossible since all openings to the interior of the vessels were secured. Also at that time, the respondent furnished the ferries with red and green 10-point side lights (port and starboard running lights) and a white all-around light set in position on the stern of each ferry. The lights were individually battery powered and were self-contained.
Before proceeding to an examination of the actual events of the voyage leading up to the casualty in question, certain other preliminary facts must be noted. Prior to commencement of the tow, on January 10, 1961, the Coast Guard at New York inspected the Vega and issued a permit for her to proceed unmanned in tow to Jacksonville, Florida. The evidence in addition indicates that no untoward event occurred during the time the Vega was in the tow of the Claire Moran prior to the meeting with the Christine Moran in the Narrows. The weather on the night of the tow was unquestionably ideal for towing. The visibility was excellent and the wind velocity was approximately five to six miles per hour. The water was smooth.
The hawser arrangement between the Christine Moran and her charges consisted of a main hawser to the lead ferry Vega of 8 inch nylon, approximately 1200 feet in length.2 The intermediate hawser between the Vega and the Deneb was approximately 600 feet of 7 inch nylon and the one between the Deneb and the Altair approximately 600 feet of 8 inch nylon.
The tug, with the three ferries in tow, proceeded from the Narrows at about midnight of January 10, 1961. It passed Romer Shoal Buoy about 1 A.M. and moved past Scotland Light Vessel about 1:50 A.M. After that, the tug set her course southerly, parallel to the Jersey coast. The speed of the tow during the entire voyage ranged from zero to seven knots, at full throttle. The latter speed persisted for the duration of the trip along the Jersey coast.
Captain Jones testified that his watch aboard the tug ended at midnight and he left the bridge at about 12:45 A.M. First Mate Blaha had command during the early morning hours of January 11. Periodic watch was kept on the ferries in tow and the trip was uneventful until sometime around 4:30 A.M. At that time, about three miles from the Coast Guard station at Shark River, Blaha noticed that the three lights aboard the Vega were no longer visible. A sailor was sent below deck to summon Captain Jones. While word was being transmitted to the captain, Blaha turned on the radar to attempt to get a sighting of the Vega. After Captain Jones arrived in the wheelhouse, the Christine Moran's radar picked up three images on the scope. Radar contact was thus established with the Vega. Jones testified that the radar on board the tug was capable of discerning objects four feet and higher in the water.
To confirm the instrument sighting of the Vega, the tug, which had reduced speed upon failure to visually sight the ferry, turned around in a northerly direction until she came abreast of the vessel and to her west about 600 feet away. Captain Jones testified that the moon was shining in the east and that the Vega's silhouette could plainly be seen. The witnesses testified that the Vega was riding upright and as high in the water as before. Her silhouette appeared like that of her sister ferries.
Captain Jones was extensively questioned to probe the reason why the Christine Moran did not attempt to move closer to the Vega or send someone to board her. The tug had a lifeboat on board but Captain Jones stated that his fears for the safety of his crew, due to the difficulty of a boarding operation, dictated his choice not to approach any further. In addition, the visual contact with the Vega convinced the captain that there was no imminent danger to the vessel.
Having determined to continue on its regular course, the tug proceeded to turn slowly and head south. Once again the tug resumed full speed, about seven knots. After approximately twenty minutes, around 5:30 A.M., during which time the tow travelled no more than a mile or so, it was observed that the tug was no longer making the speed produced previously. After radar failed to pick up the Vega, speed was reduced to almost zero. The crew was alerted and the capstan engine was readied to begin shortening the main hawser. The hawser was shortened to within less than 300 feet of the Vega and she was sighted. With the aid of the...
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