Walker v. the Tug Diane , 350 F. Supp. 1388 ( 1972 )

350 F.Supp. 1388 (1972)

Fergus WALKER, Plaintiff,
v.
The TUG DIANE, Her Engines, Tackle and Appurtenances, In Rem,
The BARGE DAUPHINE, Her Tackle and Appurtenances, In Rem, et al., Defendants.

Civ. No. 424/71.

District Court, Virgin Islands, D. St. Croix.

November 28, 1972. Opinion on the Merits December 4, 1972.

Gamal & Rosskopf, Christiansted, St. Croix, V. I., for plaintiff.

Nichols & Silverlight, Christiansted, St. Croix, V. I., Jimenez & Fuste, San Juan, P. R., Bailey, Wood & Rosenberg, Charlotte Amalie, St. Thomas, V. I., for defendants.

MEMORANDUM OPINION AND ORDER

WARREN H. YOUNG, District Judge.

This case came to be heard on the Motion for Summary Judgment of the barge "Dauphine", Port San Juan Towing Company, Caribbean Sea-Road Service, Inc., and Indian Towing Company, Inc. The motion was unopposed.

The facts of this case are easier to understand and visualize than are the relationships of the various co-defendants. Hence, I will describe the collision first and then present the role of the various defendants. In the morning of July 25, 1971, tug "Diane" entered Christiansted Harbor with barge "Dauphine" in tow. There was a strong cross-wind which the tug's captain apparently did not take into consideration in his navigation and handling of the tow. As the tug and barge traversed near the harbor's yacht anchorage area, the barge collided with plaintiff's yacht "Posiedon", then anchored at her assigned berth.

Now as to the role of co-defendants:

Ocean Service Corporation ("Ocean Service")—owner of tug "Diane"

Port San Juan Towing Co. ("P.S.J. Towing")—time charterer of "Diane" Indian Towing Co. ("Indian Towing") —owner of barge "Dauphine"

Caribbean Sea-Road Service, Inc. ("Sea-Road")—bareboat charterer of barge "Dauphine"

At the time of the collision, tug "Diane" was towing barge "Dauphine" pursuant to an agreement between P.S.J. Towing (the tug's charterer) and Sea-Road (the barge's charterer). The barge was unmanned and was not required by applicable law and regulations to be manned.

I am of the opinion that only the tug "Diane" and her owner, Ocean Services, are responsible for the damages caused by the negligent operation of tug and tow. As a matter of law, when a time charter agreement is entered into with the vessel chartered being operated by personnel under the direct control, supervision and employment of the owners, and the same tows an unmanned barge, whatever damages that may be caused by their negligent operation are for the account of the tug and her owner. The mere fact that one vessel strikes and damages another, does not of itself make that vessel or her charterer liable for the damages. The collision must in some degree be occasioned by her fault. Cushing v. The John Fraser, 21 How. (62 U.S.) 184, 16 L.Ed. 106 (1859).

It is, of course, important to determine whether the navigation of the tow and barge outfit is in charge of the tug's officers or those of the tow; or, as it is frequently expressed, whether the tug is the "dominant mind". The Margaret, 94 U.S. 494, 24 L.Ed. 146 (1877). In the leading case of Sturgis v. Boyer, 24 How. (65 U.S.) 110, 16 L.Ed. 591 (1861), where a tug was towing a ship and the navigation was exclusively in the hands of the tug's officers, it was held that the tug was liable for the negligence which brought about the collision between the ship and a lighter. The ship which was being towed was not liable since the tug's officers were not the servants of the towed ship or of her owners. Even the fact that part of the ship's crew was on board and kept no lookout did not render her liable. The Court reasoned that the tug alone was in charge of the operation: "the Master and crew of the tow were not expected to participate in the navigation of the vessel and were not guilty of any negligence or omission of duty by refraining from such participation." The tow was "no more responsible . . . than so much freight". The Sturgis v. Boyer decision was specifically approved in The Eugene F. Moran, 212 U.S. 466, 29 S.Ct. 339, 53 L.Ed. 600 (1909). See also The Chicago, 2 Cir., 78 F. 819 (1896).

In The Fort George, 2 Cir., 183 F. 731 (1910), it was stated:

"We understand the rule to be, in the absence of an agreement to the contrary, that when the tug supplies the motive power she becomes the dominant mind, and the tow is required to follow directions from the tug."

Accordingly, if the tug is in sole charge of the navigation, the tow is not liable for the tug's fault. Or, in other words, when an independent contractor has undertaken to tow another vessel, the tow is not liable for the tug's fault. The City of Alexandria, 2 Cir., 31 F. 427 (1887); Cushing v. The John Fraser, supra; Sturgis v. Boyer, supra; The Clarita, 23 Wall. (90 U.S.) 1, 23 L.Ed. 146, 150 (1874); The Inca, 5 Cir., 148 F. 363 (1906); The Express, 2 Cir., 52 F. 890 (1892); The Prinze August Wilhelm, 2 Cir., 166 F. 995 (1908); The Margaret Thomas, 4 Cir., 183 F. 336 (1910); The C. W. Mills, 5 Cir., 241 F. 204, 378 (1917); The Teaser, 3 Cir., 246 F. 219 (1917); The Cromwell, 4 Cir., 259 F. 166 (1919), affd. 4 Cir., 247 F. 207; The Dorset, 4 Cir., 260 F. 32 (1919); The John D. Rockefeller, 4 Cir., 260 F. 982 (1919), affd. 4 Cir., 272 F. 67 (1921); The J. L. Miner, 6 Cir., 260 F. 901 (1919); Central Wharf Co. v. Furniss, 1 Cir., 269 F. 950 (1921); Hand & Johnson Tug Line v. Canada S. S. Lines, 6 Cir., 281 F. 779 (1922).

In the case sub judice, tug "Diane" was time chartered to P.S.J. Towing, but being under a time charter and not a bareboat charter, she was under the control of her owner, Ocean Services, and was being navigated by Ocean Services' captain and crew. Moreover, barge "Dauphine", which was the tow in this case, was unmanned. Hence, whatever damages were caused by the negligent operation of the tug and tow are imputable only to the tug owner and not to the barge owner, the barge charterer or the time charterer of the tug. Their Motion for Summary Judgment will, therefore, be granted.

ON THE MERITS

This case in admiralty was docketed October 19, 1971. The tug "Diane" was arrested, but was released on October 31, 1971, pursuant to a stipulation and order conditioned upon the tug's owner, Ocean Service Corporation (hereinafter known as "Ocean Services"), posting with the Clerk of Court a good financial guarantee bond in the amount of $15,000 to answer to any judgment that might be entered by the Court.

Ocean Services presented what was purported to be a good financial bond but the bond was rejected by plaintiff on ground that it did not comply with the terms of the stipulation. Further, it was not written by a bonding company authorized to do business in the Virgin Islands. After numerous and repeated requests for the substitution of an acceptable bond, plaintiff petitioned this Court for a rule upon Ocean Services to show cause why it should not be punished for violating the Order of Court.

The rule to show cause was duly served, but defendant Ocean Services failed to appear. Therefore, this Court entered an Order dated September 19, 1972, vacating the Release Order of October 30, 1971, and reinstating the motion and attachment against the tug. The order also struck the answer and cross-complaint of Ocean Services and declared Ocean Service Corporation to be in default for failure to post a good financial guarantee bond pursuant to its own stipulation and Order of the Court.

Plaintiff, on September 18, 1972, noticed Ocean Services and all other defendants that it would appear before the Court on November 6 to present evidence as to the damages involved in the collision of plaintiff's vessel "Poseidon" with the tug "Diane" and her tow, the barge "Dauphine". After a short postponement this hearing was held on November 16, 1972.

Prior to the November 16th evidentiary hearing, defendants Port San Juan Towing Company, Caribbean Sea-Road Services, Inc., and Indian Towing Company, served notice on all parties that it would argue their Motion for Summary Judgment at the same time and place scheduled for the evidentiary hearing.

On November 16, 1972, counsel for all parties were present including counsel for Ocean Services and the tug "Diane". The Court first heard the motion and argument for summary judgment presented by Josè Antonio Fustè, attorney for Indian Towing Company, barge "Dauphine", Port San Juan Towing Company and Caribbean Sea-Road Services, Inc. Plaintiff presented no counter argument and did not oppose the motion. Defendant Ocean Services and the tug "Diane" by their attorney offered no counter argument and did not oppose the motion. The Court then granted the Order for Summary Judgment and proceeded then to hear evidence as to damages pursuant to the notice for the evidentiary hearing.

At this point Mr. William Bailey, as attorney for Ocean Services and the tug "Diane", advised the Court that he had not been fully advised of the Court's Order of October 30, 1971, whereby Ocean Services and the tug "Diane" were declared to be in default for their failure to obey the Release Order. Although the proceeding was noticed for an evidentiary hearing only, the Court, at the request of counsel for Ocean Services, and over the objection by plaintiff's counsel, ordered testimony to be adduced pertaining to the question of liability and fault. There then followed a full hearing on the merits, i. e., on the question of liability and on the issues of damages. The facts of this case are as follows:

Plaintiff's vessel "Poseidon" is a steel hull cutter of Canadian registry, with a length overall of 55 feet and gross tonnage of 44 tons. She was employed by plaintiff for many years in the Virgin Islands in the yacht charter business. At the time of the collision, she was at anchor in Christiansted Harbor in a designated anchorage area. At about 0800, July 25, 1971, the tug "Diane" entered Christiansted Harbor with the barge "Dauphine" in tow. The tow had not as yet been made up when tug and tow traversed close by the yacht anchorage area. There was no sea running, the water was calm and the wind was gentle to light (no more than 12 knots). For some unaccountable reason, the barge was towed into the bow of the "Poseidon" and fouled her anchor line. It crashed against the topside of the "Poseidon" near the chainplates. The superstructure of the tug also collided with the "Poseidon" starboard side and damaged the spars aloft. At that time, plaintiff was ashore at the Outrigger's yard. Another charter boat skipper who saw the collision hopped into his small motor launch, went to the Outrigger and advised plaintiff of the collision. Plaintiff immediately motored back to his cutter, went on board and cut loose the anchor line in order to extricate the cutter and avoid further damage. He backed away from the barge and tug and in so doing fouled his propeller with a piece of the tow line.

From the facts as related to the Court by plaintiff, uncontroverted by any other testimony and in no way shaken under cross-examination, I find the tug "Diane" to be solely responsible for the damage to the "Poseidon". It is manifest that the collision was caused by the negligent navigation and towing operation under the sole control and management of the captain and crew of the tug "Diane".

The Court then went into the evidentiary hearing on damages which was presented by the testimony of plaintiff and various documents entered as Exhibits on behalf of plaintiff. From the testimony and supporting documents, I am satisfied that the plaintiff incurred the following out-of-pocket expenses in connection with the repair of the "Poseidon" and the loss of the two charter parties which the "Poseidon" was unable to accommodate by reason of the damage.

Survey by David W. Dana, Marine
Surveyor                               $   120.00
Anchor gear lost & never recovered           441.00
Airfare to Fajardo to inquire re
repairs                                     24.00
Loss of a 5 day charter of "Poseidon"
(net profit)                                     1200.00
Loss of a 7 day charter of "Poseidon"
(net profit)                                     1600.00
Replace mast                                1200.00
Seward Boat Works (Tarpon Springs,
Florida)
Statement for necessary repairs to
"Poseidon"                                4284.00
Reasonable value of Plaintiff
Walker's labor in making emergency repairs
following collision, time spent in
making & filing collision report & time
spent attempting to recover anchor &
gear                                              150.00
Reasonable value of Plaintiff
Walker's own labor in performing certain
repairs while the "Poseidon" was
hauled                                           1200.00
__________
$10,219.00

In concluding the evidentiary hearing, plaintiff asked for reimbursement of Court costs in the amount of $20.94, together with "reasonable attorney's fees". Since there has been no provision and authority in the past for the awarding of attorney's fees in causes of maritime and admiralty jurisdiction, I indicated in the dictation of my Opinion to the record that there would be no attorney's fees. However, I stated now that admiralty actions have been assimilated into civil actions to a large part, there may be good reason and authority for allowing attorney's fees in admiralty actions. Opportunity was given to plaintiff's counsel to submit a brief of authorities on the subject. Plaintiff's counsel has advised the Court that he was unable to cite authority for attorney's fees in admiralty jurisdiction. Therefore, no attorney's fees will be awarded.

Let Judgment be entered for plaintiff in the amount of $10,219.00, plus costs of $20.94, for a total of $10,239.94.