United States v. The Manzanillo

• Decision Date: 10 June 1960
• Docket Number: Civ. No. 9685.
• Citation: 190 F. Supp. 229
• Parties: UNITED STATES of America, Libelant, v. THE Tug MANZANILLO, her engines, tackle and apparel, and Shaver Transportation Company, Respondents.
• Court: U.S. District Court — District of Oregon

190 F. Supp. 229

UNITED STATES of America, Libelant, v. THE Tug MANZANILLO, her engines, tackle and apparel, and Shaver Transportation Company, Respondents.

Civ. No. 9685.

United States District Court D. Oregon.

April 25, 1960.

Supplemental Opinion June 10, 1960.

Victor E. Harr, Asst. U. S. Atty., Portland, Or., for libelant.

Kenneth E. Roberts of Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for respondents.

KILKENNY, District Judge.

Libelant was the owner and operator of the S.S. Harold L. Winslow and the employer of Capt. Eric A. Peters, herein called Peters, the master of the Winslow. The Tug Manzanillo, herein called Tug, was a towing vessel owned by Shaver Transportation Company, herein called Shaver. On August 26, 1954, libelant agreed with Shaver that it should furnish two tugs to properly and safely tow Winslow, a dead ship loaded with grain, from Portland, Oregon, to a berth at Astoria, Oregon. On August 27, 1954, Shaver furnished libelant two tugs, one being the Tug, which towed Winslow from Portland to a berth at Astoria. After Winslow was so berthed, the Tug took the master and crew of Winslow off the ship, said master and crew descending a ladder from the deck of Winslow to the deck of the Tug, at which time Peters, while coming on board the Tug, fell on the locker hatch of Tug and sustained personal injuries. As a proximate result of the injuries Peters suffered while falling on said locker hatch, libelant paid the claim of Peters on account of maintenance and cure in the fair and reasonable value of $5,912, and the further sum of $250 as reasonable attorney's fees in connection with the settlement of the claim. Libelant demanded said amounts as damages from the Tug and Shaver, no part of which has been paid.

In July, 1955, Peters instituted suit to recover damages against Shaver in the Circuit Court for Multnomah County, Oregon, and in such suit claimed that Shaver was negligent in certain particulars; that he had lost $4,000 in lost earnings and would lose additional earnings; that he had incurred medical and hospital expenses of $682.20. On May 25, 1956, Peters settled said case in said court for the sum of $16,000 which sum was paid to Peters, who on said day executed a release of all claims in favor of Shaver. Said release contained a provision reserving to Peters the right to prosecute any action which he might have against Shaver or others for maintenance and cure under applicable maritime law.

Libelant contends that Shaver, in furnishing such tugs, agreed to various usual and customary services in connection with the towage in question, including the taking of the master and crew ashore from a dead ship after towing such ship to the Maritime Administration Reserve Fleet in Astoria, and that at the time of the injury Shaver and the Tug were fulfilling this part of the towage agreement. Libelant also contends that the Tug was not seaworthy, in that an unsafe condition existed on deck with respect to the gear locker hatch, hatch coaming and cover and in failing to secure the cover in place over the hatch, and further that the master and crew of the Tug selected an improper and unsafe place on Tug's deck to receive the master and crew of Winslow on board such deck. It is further contended that this unseaworthiness and negligence was the proximate cause of the injuries to Peters and that such injuries should have been foreseen. The respondents deny libelant's contentions, set up negligence on the part of Peters, and claim that the suit was not brought within a reasonable time and that the respondent has been prejudiced thereby.

I shall first dispose of the defense of laches. We must keep in mind that the United States is the libelant. In such case, the doctrine of laches cannot be raised. United States v. Summerlin, 1940, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283; Aiken v. United States, 9 Cir., 1958, 260 F.2d 936; Olshausen v. C. I. R., 9 Cir., 1959, 273 F.2d 23.

Since this is an action for indemnity in connection with a payment for maintenance and cure, it is questionable whether the plea of contributory negligence is sound. However, I do not have to decide that question, in that I find there was no substantial evidence of contributory negligence on the part of Peters.

The evidence is clear that respondents, as part of the towage contract, agreed to take the master and crew of Winslow ashore and that this was a usual and customary arrangement in towing dead ships to the Maritime Administration Reserve Fleet at Astoria. Likewise, it is clear that Peters was injured while he was coming aboard the Tug pursuant to the usual and customary practice in connection with such towage contracts. Under such circumstances, the usual and customary practice forms a part of the contract itself. Sun Oil Co. v. Dalzell Towing Co., 2 Cir., 1932, 55 F.2d 63, 64, affirmed 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311; Thibeault v. Boston Towboat Co., D.C.Mass., 1939, 28 F.Supp. 152.

Since the respondents assumed the obligation of transporting the master and crew to shore, it also assumed the duty to furnish a seaworthy vessel. The evidence is convincing that the Tug was unseaworthy in the claimed particulars. The fact that the hatch cover was in a dangerous condition was recognized by the members of the crew of the Tug. They claim the condition was so dangerous that they actually cautioned, or attempted to caution, Peters of the danger. In this state of the record, I must hold that the Tug was unseaworthy. Likewise, it is clear that such unseaworthy condition was the proximate cause of Peters' injuries.

Respondents urge that libelant is not entitled to recover for the $5,912 maintenance and cure and attorney's fees and expenses in the sum of $250 which was paid to Peters. Respondents cite Standard Oil Company of Cal. v. United States, 9 Cir., 1946, 153 F.2d 958; 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067. That case involved an action by the United States against Standard Oil Company to recover for the loss of services to the plaintiff of a member of the armed forces. The maritime law was not involved. The court in that case was dealing with the state law of California and certain common law principles. Since this was an action for loss of the services of an employee, rather than an action for maintenance and cure under the admiralty law, the decision is of little value.

In Houston Belt & Terminal Railway v. Burmester, Tex.Civ.App.1957, 309 S. W.2d 271, the owner of the ship sought to recover against the owner of an automobile, in which the captain of the ship was injured, certain amounts paid under general maritime law for maintenance and cure, which sum was paid on the theory that the owner of the automobile had an implied contract with the shipowner for the safe carriage of the captain to the ship. The Texas court denied recovery on the theory that such recovery could only be had under the maritime law and that since such law is not applicable in Texas, the shipowner could not recover. Again, we had a situation where the court applied the common law, rather than the maritime law. The action was prosecuted under the laws of the state of Texas and the court refused to apply the law of admiralty. The Texas court held that the general maritime law was not applicable in Texas and for that reason it would follow the state law as announced in Morgan v. Woodruff, Tex. Civ.App., 208 S.W.2d 628. I must assume that the Texas court took this position for the reason that the captain was injured while on land and not on navigable waters. Otherwise, Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, would be applicable. It was there held that a person injured on navigable waters while on a ship must assert his rights under maritime law, rather than under the law of the state. The Texas case is not in point.

Respondents have consistently presented their defense on a theory of pure tort. They fail to recognize the libelant's theory that its cause of action is grounded in contract. Federal No. 2, 2 Cir., 1927, 21 F.2d 313, is the principal case on which respondents rely. In order to understand the decision in this case, I must place myself in the same legal position as the author of the opinion. On the claim for maintenance and cure, his position was expressed:

"* * * The basis of the claim is that the negligence resulting in injury to Parr gave rise to the occasion which required or obliged the appellant to pay the hospital bill. Even though one causes injury to another, to impose responsibility therefor contemplates a violation of a legal duty. The tug owed no legal duty to the appellant with reference to its contractual rights with the seaman." (Emphasis added.)

Although I disagree with the author's legal conclusion as to the violation of a legal duty, the language fully explains the ultimate decision. In this case I have already held that respondents were under a contractual duty to libelant to furnish a seaworthy ship. Federal No. 2 supports the respondents' contentions. However, in the light of the "stevedore" cases hereinafter mentioned, I do not believe that Federal No. 2 is sound. Respondents cite numerous other cases which lend general support to their theory. I do not believe a discussion of these cases would cast light on this rather confused problem. The cases in point on the subject are few and are in hopeless conflict.

It...