Tidewater Marine Activities, Inc. v. American Towing Co.

• Decision Date: 30 December 1970
• Docket Number: No. 29835 Summary Calendar.,29835 Summary Calendar.
• Citation: 1971 AMC 307,437 F.2d 124
• Parties: TIDEWATER MARINE ACTIVITIES, INC., Plaintiff-Appellee, v. AMERICAN TOWING COMPANY, Inc., and the TUG JELENA ANN, its tackle, apparel, furniture, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

1971 AMC 307, 437 F.2d 124 (1970)

TIDEWATER MARINE ACTIVITIES, INC., Plaintiff-Appellee, v. AMERICAN TOWING COMPANY, Inc., and the TUG JELENA ANN, its tackle, apparel, furniture, etc., Defendant-Appellant.

No. 29835 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 30, 1970.

Cornelius G. Van Dalen, William S. Stone, New Orleans, La., for defendant-appellant; Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel.

Charles E. Lugenbuhl, New Orleans, La., for plaintiff-appellee; Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., of counsel.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

This suit in admiralty was brought by the appellee, Tidewater Marine Activities, Inc., to recover damages resulting from the allegedly negligent towing of its Quarterboat "BUDDEE." The district court found that appellant, American Towing Company, Inc., owner of the Tug "JELENA ANN," was negligent and awarded damages of $25,703.76. Appellant appeals from that determination and argues (1) that as a matter of law either the Tug was not negligent or the Quarterboat "BUDDEE" was itself unseaworthy; and (2) that the damages were excessive. Finding the district court's opinion supported by the evidence and not "clearly erroneous," Fed.R.Civ.P. 52; Hart v. Blakemore, 5 Cir. 1969, 410 F.2d 218, 220-221; Chitty v. M/V Valley Voyager, 5 Cir. 1969, 408 F.2d 1354, 1357; see McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, we append it herein and adopt it as the opinion of this court.

The judgment is affirmed.

APPENDIX

United States District Court Eastern District of Louisiana New Orleans Division

No. 7622 in Admiralty Division "A" Tidewater Marine Activities, Inc.

versus

American Towing Company, Inc., and the Tug Jelena Ann, its tackle, apparel, furniture, etc.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This suit in admiralty involves a claim for property damages sustained by the plaintiff when its Quarterboat BUDDEE sank on September 28, 1964, while in tow of the defendant's vessel, the Tug JELENA ANN, in Bayou Boeuf near Morgan City, Louisiana. Plaintiff claimed damages proximately caused by the negligence of the defendant in the operation of the tug in several particulars. American Towing Company, Inc., defendant, owner of the Tug JELENA ANN, answered, denying liability, and urging affirmatively that plaintiff breached its warranty of seaworthiness when the Quarterboat BUDDEE was tendered for towage. The case was tried to the Court, sitting in admiralty, and after considering the evidence, the Court makes the following

FINDINGS OF FACT

1.

At all times hereinafter involved:

(a) Plaintiff, Tidewater Marine Activities, Inc., was a corporation organized and existing under the laws of the State of Louisiana, and was, on September 28, 1964, the owner of the Quarterboat Buddee.

(b) Defendant, American Towing Company, Inc., a corporation organized under the laws of the State of Louisiana, was, on the said date, the owner of the Tug JELENA ANN, a documented vessel of the United States with register dimensions of length, 51.5'; breadth, 17.9'; and depth, 7.0', powered by two General Motors Diesel Engines, 300 horsepower each.

2.

The Quarterboat BUDDEE was a typical shallow water quarterboat used to feed and house crews. She had a steel hull, measuring 23' in width by 56' in length, with a hull depth of 3 feet. Wooden flooring on metal braces supported the wooden housing superstructure. A watertight flashing connected the main outside steel deck and the superstructure. The barge was divided into four main compartments, and there was a sponson on each side, each having two fresh water compartments and two rake compartments. All hatches on the sponson compartments were watertight. The hatches on the four main compartments were of a flange type fitting over the raised coaming. The hatches on the bow and stern were readily visible and accessible. On September 28, 1964, the BUDDEE had approximately 18 inches freeboard. She was equipped with towing knees at the bow, which projected approximately 4'10" above the water line.

3.

The Barge B-7 was a double raked barge measuring 100' × 28' × 6'6". In her empty condition on September 28, 1964, she drew approximately 1', leaving a freeboard of 5'6".

4.

Prior to September 28, 1964, plaintiff, through its officers, had entered into an agreement with Berry Bros. for the use of the Quarterboat BUDDEE. The BUDDEE was to be rented to Berry Bros. on a bareboat charter basis for a period of two months at a daily rate of $37.50. Berry Bros. had used the BUDDEE on other occasions, and was to provide towage from Tidewater Marine Activities' slip in Morgan City, Louisiana, to the scene of its operations.

5.

Berry Bros. contacted defendant, American Towing Company, and made arrangements for the Tug JELENA ANN to tow the Quarterboat BUDDEE and the Barge B-7 from Tidewater's slip to location. Plaintiff had nothing to do with the selection of the tug or the towing arrangements.

6.

The Tug JELENA ANN arrived at Tidewater's slip sometime shortly after 3:00 p. m. on September 28, 1964, and took into tow the Quarterboat BUDDEE and the Barge B-7. Under the orders of the Master of the JELENA ANN, the tow was assembled. The Barge B-7 was placed in the lead and the Quarterboat BUDDEE was made up astern of the Barge B-7, with a distance of approximately 12 inches between the stern of the B-7 and the bow of the BUDDEE. The JELENA ANN made up to the bow of the B-7 on a short towing hawser. The towing knees of the BUDDEE barely reaches the stern rake of the Barge B-7.

7.

There is some dispute as to the circumstances surrounding the arrival of the JELENA ANN at Tidewater's slip and the condition of the BUDDEE at that time. Captain Burtney J. Dupre, the Master of the tug, did not appear in Court, but his de bene esse deposition was offered by defendant without any explanation as to Dupre's whereabouts at the time of trial. Dupre testified that when his vessel arrived at the slip, he saw the BUDDEE being pumped. He claimed that Captain Courville, Captain of the Dredge WAL-DA-VICK, and Gordon Thibodaux, a maintenance man, told him that the BUDDEE was being pumped because rain water had gotten into her hull. Courville denies being present at the time the JELENA ANN arrived and denies specifically any conversation with Dupre on the day of the casualty. Thibodaux admits being present but testified that Courville had left the yard. According to Thibodaux, all that transpired between himself and Dupre was his comment to Dupre that the two vessels were ready to be taken in tow. Clarence Dupuy, a boatman employed by Tidewater Dredging Company, who was present at the time the JELENA ANN arrived, confirmed that Courville was not present. All three witnesses produced by plaintiff, Courville, Thibodaux and Dupuy, testified positively that the Quarterboat BUDDEE had not been pumped on the day of September 28, 1964. Courville, in fact, testified that he had checked all of the hatches and that there was no water in any of the compartments. I am impressed by their testimony and reject Dupre's version. I therefore find from the credible evidence that the Quarterboat BUDDEE had not been pumped and was free from water in her hull at the time the JELENA ANN arrived. All of the witnesses, including Dupre, testified that the BUDDEE was riding on an even keel with no list and appeared to be in a reasonably good condition.

8.

Dupre admitted that he did not check the hatches, nor did he or his deckhand make any inspection of the BUDDEE to determine her condition It is uncontradicted that under Dupre's direction, the tow was made up with the Barge B-7 placed at the lead and the Quarterboat BUDDEE made up astern. From Dupre's own testimony, it is apparent that he could not see the deck of the BUDDEE from his position in the wheelhouse. No employee of plaintiff participated in the make-up of the tow and Dupre did not ask anyone in plaintiff's employ any questions concerning the condition of the barge or the manner in which it should be towed. I find that the manner in which the tow was made up, particularly with respect to the inability of the Master of the JELENA ANN to see the deck of the Quarterboat BUDDEE, was as done solely under the direction and control of the defendant through its agent, Dupre.

9.

According to the charts offered in evidence and the testimony of the witnesses, Tidewater Marine Activities, Inc.'s slip is located at Mile 93 in the Intracoastal Waterway. It is undisputed that the Tug JELENA ANN, with the tow made up as indicated above, departed that slip at 3:30 p. m. on September 28, 1964. Dupre entered this time in his log and this is confirmed by the log kept by Tidewater's employee, Courville.

10.

The JELENA ANN proceeded into Bayou Boeuf from Tidewater's slip at full speed. According to Dupre, no lookout was posted on the Barge B-7 to advise him of the manner in which the Quarterboat BUDDEE was riding, and although he looked back several times, he was unable to determine the effect of his wheelwash or the turbulence from the Barge B-7 on the bow rake of the Quarterboat BUDDEE. He could not see that deck and was not concerned about it. As the flotilla passed Bayou Ramos, he felt a "sudden jerk" and turned around to look at his tow and saw the Quarterboat BUDDEE sinking on his port side. The Quarterboat BUDDEE sank almost immediately. According to Dupre, the site of the sinking was at Mile 90.8, although other witnesses placed it at Mile 90.3 or thereabouts. Dupre logged the time of the sinking at 3:45 p. m. and this is corroborated by Courville's testimony that he was called by a female employee of the defendant at 3:45 p. m. and told that the tow was sinking. I find that the tow sank within fifteen minutes of departure with the entire flotilla having travelled a distance in excess of 2.2 miles. There was no evidence of any...