Waterman SS Corporation v. Dean

• Decision Date: 27 December 1948
• Docket Number: No. 5781.,5781.
• Citation: 171 F.2d 408
• Parties: WATERMAN S. S. CORPORATION v. DEAN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

171 F.2d 408 (1948)

WATERMAN S. S. CORPORATION v. DEAN et al.

No. 5781.

United States Court of Appeals Fourth Circuit.

December 27, 1948.

Eugene F. Gilligan, of New York City (Kirlin, Campbell, Hickox & Keating, of New York City, and Ober, Williams, Grimes & Stinson, and Southgate L. Morison, all of Baltimore, Md., on the brief), for appellant and cross-appellee.

I Duke Avnet, of Baltimore, Md. (Edgar Paul Boyko, of Baltimore, Md., and John P. McKinley, of Savannah, Ga., on the brief), for appellees and cross-appellants.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The sole controversy on this appeal concerns the amount to be allowed to four officers and twenty-seven men of the Furnifold M. Simmons for their successful salvage services to the S/S Fairisle, which was floated through the efforts of the Simmons after having been stranded in the Bay of Bengal off the east coast of India near a point called Bavanapadu. Neither the master nor five other members of the crew, nor the owners of the Simmons joined in the suit.

The Fairisle is a turbine driven, single screw, steel cargo steamer, length 468 feet, 6165 gross tons, 15½ knots, with a crew complement of forty-four men. Her fair salvage value was $943,875. The Simmons is a 2500 h.p. Liberty ship, owned by the United States through the War Shipping Administration, 441 feet long, 7,170 gross tons, 11 knots, and a total crew of thirty-seven. Her value was $544,506. Both vessels were without cargo or freight at the time the services in question were performed.

On August 28, 1946, while discharging cargo in Calcutta, the Simmons received a message that the Fairisle had run aground at a point 250 to 300 miles away. No standard salvage equipment was available. The Simmons, hastening to the rescue, reached Bavanapadu at 11 p.m. on August 29. She found the Fairisle lying about 50 to 75 yards from the beach, her bow facing the shore. There were rocks 10 to 12 feet high at the shore line between one-half mile and a mile to the southwest, and a little way into the water at this distance were rocks projecting just above the surface. At the point where the Fairisle was stranded the bottom was hard sand of uneven depth. The water was 3 to 4 feet deep at the Fairisle's bow, but the ship lay in a "coffin" so that the water was a little deeper immediately under it than around it. The current flowed northeasterly at about 2½ knots. The sea was calm except for a long southeasterly swell and a heavy surf close to the Fairisle, and all during the operation the weather remained favorable. In this neighborhood tropical cyclonic storms occur occasionally in August and September, and become more frequent and more violent in October. Except for the possibility of such a storm the Fairisle was in no immediate danger. The rocks presented no threat as long as the weather was favorable.

On arrival, the Simmons found that the Royal Indian Navy had sent in response to the Fairisle's plea three small craft, one comparable to a destroyer escort, and the two others less powerful than our PT boats which had tried unsuccessfully to tow the Fairisle off the sand, and finally left after their towing line parted. The Simmons undertook to tow the Fairisle off the bottom by means of a heavy, inflexible wire insurance cable, about an inch and a half in diameter, which could be brought to the Fairisle only by the prior use of smaller lines, the first of which, a small messenger line was carried to her by a life boat, since the distance was too great to shoot the line. The Simmons, fearful of being stranded herself, anchored about a quarter mile off the Fairisle. On August 31, when the first effort to secure lines between the ships was made, the small messenger line parted. On the same day, the Azaleia City, owned by the Waterman S/S Co., which also owned the Fairisle, stood by for about six hours and finally left because she was fully laden and could not come in close enough to be of any help. She did radio the Fairisle that "in your position I don't think the Simmons or myself can render you much assistance at this time" and her master ventured the opinion that there was no chance of refloating until the next spring tides which would not occur until September 18.

On September 1, the Simmons was successful, after two lifeboat trips to the Fairisle, in securing an 8 inch mooring line between the ships, but once again the lines parted. The next day the Simmons sent a motor lifeboat to take over the messenger line and start over again. The lifeboat's motor went dead close to the stern of the Fairisle, so that there was danger of her being dashed against the Fairisle by the sea; and since it was impossible to row back out, the lifeboat was beached. Another lifeboat was dispatched to bring back the men on the beach, but the surf was so rough that the men on both lifeboats, numbering about fourteen, had to spend the night on shore where it was cold, damp and uncomfortable.

After the failure of the attempt of September 2, the Fairisle sent the following message to the Simmons: "We cannot see how you can lift this ship from 3 to 4 feet at high tide. Sandbar has formed all around this vessel. We are as disappointed as you, too, are, but we cannot be pulled off by your cable." The Fairisle also radioed her owners that there was no hope of success for the Simmons' efforts. The Simmons replied: "How do you know we cannot tow you off? We haven't tried yet. Tomorrow I am maneuvering this vessel closer to you in order to get towing wire to you."

In accordance with this message, the Simmons moved in closer on September 3, and dropped her kedge anchor to keep her from swinging. On this, her fourth attempt, she was successful in securing the insurance wire by 8:30 P.M.; but in order to do this her original plan had to be modified. The surf was so heavy that it was dangerous for a lifeboat to try to get close to the stern of the Fairisle, and it was necessary to run the messenger line to the beach and connect it with a line run from the beach to the Fairisle. Even the trip from the beach to the Fairisle was not without hazard, and once the motor lifeboat making the trip filled with water and spilled the men in it.

The Simmons' chief engineer, who had spent the previous night on the beach, had observed contrary to the information in the marine charts and books for the region, that the tide at night was higher than at any other time. The Simmons, therefore, decided to make the next attempt at night. From 12:54 to 2:44 A.M. the night of September 3-4, the Fairisle was pulled out 40 feet, but slipped back into her coffin. Finally, on the night of September 4-5, after being towed from 3:24 to 5:21 A.M., and working her own engines astern, the Fairisle came clear. Thereafter she proceeded under her own power to Vizagapatam where she loaded a cargo and carried it to Baltimore without incident. Her total repair bill for damages caused by the stranding was said to be $114,000.

The entire crew of the Simmons participated at one time or another in the salvage operation, in handling the lines and manning the lifeboats, although about half of them had had no previous experience in the work of the deck department, or in the night towing. The crew received their regular wages but regular hours were, of course, impossible, and the men were called on for services whenever there was work to be done. The master of the Fairisle characterized the salvage as "difficult and hard work".

The crew of the Simmons have stressed the potential danger from storms and rocks, the long and irregular hours, the...