THE VULCAN
| Decision Date | 07 April 1945 |
| Docket Number | 625.,No. 624,624 |
| Citation | 60 F. Supp. 158 |
| Parties | THE VULCAN. RIVERSIDE TRAWLING CO., Inc., v. THE VULCAN et al. RIVERSIDE PACKING CO., Inc., v. SAME. |
| Court | U.S. District Court — Eastern District of Louisiana |
Richard B. Montgomery, Jr., of New Orleans, La., for libelant.
John D., M. A. & Edwin H. Grace, of New Orleans, La., for Sabine Towing Co., Inc.
Lemle, Moreno & Lemle, of New Orleans, La., for River Terminals Corporation.
On the afternoon of December 5, 1942 the fishing boats, Racketeer and Gertrude, were moored alongside the wharf of the Riverside Packing Company, Inc., at Berwick, Louisiana. This wharf is located on the west side of Berwick Bay immediately south of the Southern Pacific Railroad bridge. The Gertrude was moored higher upstream partly protected by the west fender of the draw which lay on her starboard hand and the Racketeer was moored immediately behind her.
At this time the tug Vulcan, with barges 93, 44 and 91, owned by the River Terminals Corporation, in tow, was proceeding up the Atchafalaya River bound on a voyage to Baton Rouge, Louisiana. Before rounding a bend in the river which screened the bridge from view and when within about one mile of the bridge, the mate, who was then at the wheel of the tug, signaled for a passage through the bridge and received an all-clear signal in response. On reaching a point within three-quarters of a mile from the Southern Pacific Company's bridge across Berwick Bay connecting Berwick and Morgan City, the speed of the tug was reduced to slow or about two and a half miles per hour. Under a slow bell with the current running at the rate of about two and a half miles an hour and with a strong wind out of the southwest, the tug proceeded on a general northerly course and came within sight of both of the bridge spans when the latter were about 1200 or 1500 feet away. When the bridge came into view the tug was lined up to pass through the east span, which is on the Morgan City side of the bridge, but the mate and the master, who was standing on the bridge nearby, observed that a pile driver and some barges were blocking its passage. When about 1500 or 1600 feet distant from the bridge they received a warning that the east span was closed to navigation when one of the bridge tenders out on the center span signaled them to pass through the west span. Upon receipt of this warning the tug changed course and headed for the west span.
The master of the Vulcan described the maneuvering of the tug and tow in this fashion:
At this juncture we encounter a variance between the verified answers of the Sabine Towing Company, Inc., and the testimony of the master of the tug. The answers set forth that the "rubbing" of the second barge against the bridge fender was accidental. The master's testimony, however, is that the "rubbing" was intentional. Other inconsistencies will be adverted to later on.
There is no controversy here as to what happened to the two barges after they had broken loose from the lead barge. It is conceded by all that they swung over to the west bank and crashed into the Gertrude and Racketeer with great force, causing each vessel to sink.
As a result of this collision two separate libels were filed against the tug Vulcan and the River Terminals Corporation barges 93, 44 and 91, one libel being instituted by the Riverside Trawling Company, Inc., the owner of the Gertrude, and the other by the Riverside Packing Company, Inc., the owner of the Racketeer. The River Terminals Corporation, as the owner of the barges 93, 44, and 91, and the Sabine Towing Company, Inc., as the owner of the tug Vulcan, appeared separately in each case claiming their respective vessels and each separately posted release bonds. Thereafter the River Terminals Corporation filed petitions under the 56th Admiralty Rule, 28 U.S.C.A. following section 723, against the Sabine Towing Company, and the latter filed similar petitions against the former. By stipulation of the parties it was agreed that these cases should be consolidated for trial insofar as the question of liability is concerned, separate decrees to be rendered in each case. The questions for decision are: Whether the libelants are entitled to recover their damage or any part thereof for the sinking of the two fishing boats which they own; and if so, what is the liability therefor between the Sabine Towing Company as the owner of the tug Vulcan and the River Terminals Corporation as owner of the three barges.
Too well settled to require extended citation of authorities is the principle of admiralty that in a collision between a moving vessel and a vessel moored in a proper place there is a presumption of negligence on the part of the moving ship. The Waterford, 2 Cir., 6 F.2d 980, 981.
In the instant case the libels allege that the Gertrude and the Racketeer were moored to the dock where they had a right to be at the time of the collision. On the other hand, the respondent claimant asserts that these two vessels were moored "in an improper and unsafe place, and unnecessarily and negligently exposed to danger, * * * and should take the consequences of said collision." There was evidence introduced to the effect that the owners of the two fishing boats "had no official license for a wharf at the particular point at which these boats were moored." However, the president and general manager of the two Riverside companies testified that they had been operating their vessels from that wharf since 1935, and that, prior to that time, the Norman Breaud Lumber Company, from which the wharf was purchased, had done likewise.
Assuming without deciding that the wharf was not authorized by law and that the Gertrude and Racketeer were illegally moored thereto, it does not follow that libelants are ipso facto barred from recovering damages. Under the authorities it is plain that libelants may be permitted to show that the existence of the unauthorized wharf not merely might not have been one of the causes of the collision or that it probably was not, but that it could not have been. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726.
In my opinion libelants have discharged this burden. In its answers the Sabine Towing Company, Inc., alleges that "the collision * * * was occasioned solely as a result of the breaking of the couplings * * * for which claimant denies liability * * *" And this allegation finds support in the testimony of the master. It follows therefore that if the parting of the ropes was the sole cause of the accident, the allegedly illegal mooring of the fishing boats could not have been one of the causes. It is not necessary, however, to base this conclusion solely upon these admissions. The entire record shows the parting of the coupling lines and the subsequent collision were caused by the negligent manner in which the tug Vulcan was handled.
The evidence in this case is all one way and to the effect that it was the port coupling line between the lead barge and barge No. 2 that broke first, and all of the witnesses on the tug testified that the line did not break until the engine on the tug had been put full speed ahead. Now what happened and the reason for its happening is obvious. When barge No. 2 came to rest against the bridge fender approximately amidship of the barge and the tug was put full speed ahead this pulled the lead barge to the right putting the starboard after corner of No. 1 barge against the forward starboard corner of No. 2 and placed the entire strain on the coupling line between the after port corner of barge No. 1 and...
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