Tebbs v. Baker-Whiteley Towing Company

• Decision Date: 03 March 1969
• Docket Number: No. 12838,12839 and 12837.,12838
• Citation: 407 F.2d 1055
• Parties: Malcolm B. TEBBS, and United States of America, Appellees, v. The BAKER-WHITELEY TOWING COMPANY, Appellant. PACIFIC SHIPPING CORPORATION, a body corporate, Appellee, v. The BAKER-WHITELEY TOWING COMPANY, Appellant. UNITED STATES of America, Appellee, v. The BAKER-WHITELEY TOWING COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.2d 1055 (1969)

Malcolm B. TEBBS, and United States of America, Appellees, v. The BAKER-WHITELEY TOWING COMPANY, Appellant.

PACIFIC SHIPPING CORPORATION, a body corporate, Appellee, v. The BAKER-WHITELEY TOWING COMPANY, Appellant.

UNITED STATES of America, Appellee, v. The BAKER-WHITELEY TOWING COMPANY, Appellant.

Nos. 12838, 12839 and 12837.

United States Court of Appeals Fourth Circuit.

Argued January 8, 1969.

Decided March 3, 1969.

Christopher E. Heckman, New York City (John D. Alexander, John D. Alexander, Jr., Constable, Alexander & Daneker, Baltimore, Md., and Foley & Martin, New York City, on brief) for appellant.

John H. Skeen, Jr., Baltimore, Md. (William A. Skeen, and Skeen, Wilson, Gilbert & Roach, Baltimore, Md. and Stephen H. Sachs, U. S. Atty., on brief) for appellee United States.

Solomon Kaplan, Baltimore, Md. (Sol C. Berenholtz and Murray I. Resnick, Baltimore, Md., on brief) for appellee Malcolm B. Tebbs.

Before SOBELOFF, BOREMAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

Malcolm Tebbs, owner of the private yacht Abogado, recovered an interlocutory judgment in the District Court against the United States and The Baker-Whiteley Towing Company based on their negligence which caused a maritime collision between the tanker M/V Sands Point and the Abogado on April 18, 1963. The accident, the court found, was caused by the concurrent fault of Baker-Whiteley and the United States, but the court awarded the United States judgment on its cross-claim against Baker-Whiteley for indemnity. Baker-Whiteley appeals from both judgments — that in favor of Tebbs and that in favor of the United States for indemnity.

At the time of the accident, the Sands Point was a "dead ship" in the custody of the U. S. Marshal because of a libel for oil pollution filed by the United States in December, 1962. The ship was moored at Broadway Pier in Baltimore in the care of John Diakakis, former chief mate of the Sands Point, whom the Marshal hired as a watchman. The ship had been moved to the pier by Baker-Whiteley tugs on April 17, but on April 18 the Marshal learned that it would have to be shifted again, to an anchorage in the river. Baker-Whiteley entered into an oral agreement with the Marshal to handle the second tow operation.

The Sands Point was moored at the pier with its bow approximately thirty feet from the Abogado and its stern extending beyond the end of the pier. Because of the ship's position, its stern lines ran forward rather than aft to the pier; therefore, only the single "forward spring line" of the ship served to prevent it from moving forward toward the Abogado. As the undocking began on April 18, the tug Holland, one of the three Baker-Whiteley tugs assigned to the operation, came alongside the Sands Point to make fast to its stern. In doing so, the tug pushed the Sands Point forward and the single forward spring line parted under the strain. The tanker consequently rammed the Abogado.

Tebbs, the Abogado's owner, filed a series of libels against the Sands Point, the United States, Baker-Whiteley, and other parties not involved in this appeal. After trial, the District Court, 271 F. Supp. 529, found that the spring line which parted was weak and that the watchman Diakakis as agent for the United States was negligent in not putting out additional lines. The court's finding of negligence as to Baker-Whiteley rested upon the failure of its undocking master, Captain Eminizer of the Holland, to check the mooring lines of the Sands Point or take other precautions against the strain that would be put on the lines as the tugs came alongside.

I

Baker-Whiteley contests the District Court's conclusion that Captain Eminizer had a duty to check the mooring lines before beginning to undock the ship. The tug owner argues that its agent was entitled to rely on the warranty of seaworthiness extended by a vessel offering herself for tow. It is true that the owner of a tow is ordinarily responsible for its seaworthiness. Curtis Bay Towing Co. v. Southern Lighterage Corp., 200 F.2d 33 (4th Cir. 1952). As the District Court pointed out, however, Baker-Whiteley knew that the Sands Point was a "dead ship" in the custody of the Marshal, and the normal assumptions concerning a competent crew and a seaworthy vessel were not justified. In a situation of this kind, the tug is responsible for both vessels. Sturgis v. Boyer, 65 U.S. (24 How.) 110, 16 L.Ed. 591 (1860); The Rebecca, 152 F.2d 607 (4th Cir. 1945). Baker-Whiteley therefore had a special duty in relation to the tow to take steps "necessary for its safety and the safety of other vessels." The Lizzie M. Walker, 3 F.2d 921 (4th Cir. 1925).

The District Court found that Captain Eminizer was "in charge of the operation" from the moment the tugs approached the Sands Point. See Midland S.S. Line, Inc. v. The Arkansas, 232 F.2d 81 (6th Cir. 1956). Therefore, it was his duty to guard against the hazards suggested by the Sands Point's situation, as described in the findings of the District Court:

As the tug Holland entered the slip, Captain Eminizer saw that the two stern lines did not run aft from the Sands Point, and knew or should have known that they would not help prevent any forward movement of the Sands Point until she had gone forward an appreciable distance. He also knew or should have known that the Abogado was then less than 30 feet from the bow of the Sands Point. He knew or should have known that the Sands Point was in the custody of the Marshal, that there was no master or riding crew aboard except Diakakis, and that linemen were being supplied by American Ship Service and Cataneo, as they had been on April 17.

Moreover, since Baker-Whiteley had directed the docking and mooring of the ship on April 17, it was at least partly responsible for the insufficient mooring lines. The circumstances of the undocking operation should have suggested that special precautions might be necessary.

A tug has the duty to adapt to conditions of which it is aware, even if they are caused by the negligence or unseaworthiness of the tow. Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496 (2d Cir. 1961); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 153 F.Supp. 923 (E.D. La.1957). Here, the tug captain was aware of a situation which created a duty to inquire about the sufficiency of the Sands Point's moorings. Although he was not aware of the weak spring line, the court found that "he could have learned that it was bad by observation before the collision or by inquiry." Since he was under a duty to inquire, the measure of his knowledge is "what he is charged with finding out." Avera v. Florida Towing Corp., 322 F.2d 155, 166 (5th Cir. 1963).

Given the particular circumstances, we agree with the District Court that Captain Eminizer was negligent in failing to take adequate precautions before allowing the tug Holland to exert forward pressure on the...