87 F. Supp. 216 | S.D.N.Y. | 1949
Mathiasen Shipping Co. Inc. (referred to as Mathiasen) has filed its libel on in rem principles against the United States, as owner of the steamer Golden Fleece.
At 1:20 p. m. Golden Fleece weighed anchor and, using her engines, shaped her course for the slip between Piers 13 and 12. Ideal was stationed on the port bow with Evelyn just astern of her; Niagara was on the port quarter. Moored along the north face of Pier 13, in the outer berth, was the liberty ship John Howland.
Thereafter three army tugs breasted Golden Fleece away from the pier and the John Howland, and got her into the slip without damage to herself, to the pier, or to the liberty ship. What remained of Ideal either floated or was towed a short distance down stream and sank — a constructive total loss.
On these facts, it would seem that the in rem liability of Golden Fleece could hardly be disputed. It is idle to talk about inscrutable fault under the conditions that existed, nor is there any great point in the contention made by respondent that Ideal assumed the risk. She took station where she was assigned by the docking master who concededly never relieved 'her. She is criticised because when she attempted to extricate herself she may have backed on left rudder.
But respondent, answering all this, argues that even under a pilotage clause the libelant towing company is responsible (or at least Golden Fleece is immune from liability), because (1) the docking operation was undertaken with inadequate power, which is the responsibility of libelant and (2) even if that were not so, the pilot-age clause cannot be used as a “sword” in
The trouble with the first contention is that it is based upon an hypothesis not only unsupported, but contradicted by all the evidence there is. Everyone concerned, including the master of Golden Fleece, was satisfied to commence the docking operation with the towage facilities at hand, and until the moment the steamer began to sag down, no witness in the case either foresaw or had grounds to foresee that this would happen. But, of course, after the unexpected sagging commenced, the question of. towage power became irrelevant: at that point the docking master should have foreseen and avoided the disaster.
The second contention urged by the respondent has been raised unsuccessfully at least once before, and recently in my own district, Dalzell v. The New York, D.C.1948, 77 F.Supp. 793. The fallacy underlying respondent’s position is that it seeks to apply to a case of liability in rem the principles which would govern personal liability, and it ignores the effect of the pilotage clause. There was no reservation in the standard pilotage clause in effect at the time of this disaster under which the towage company waived any rights which a third party would have. And the effect of the pilotage clause is much the same as if, until the completion of the operation, the docking master had been discharged by the tower, and had entered the service of the tow.
For the rest, respondent cites a number of cases which set forth the familiar principle that fault is not, under ordinary circumstances, to be imputed to the tow. The answer is obvious: the circumstances here were not ordinary, because the tow was using her own engines, and, beside that, a pilotage clause, the validity of which is no longer open to question, governed the relations between tug and tow. It would be ridiculous to say that a ship may be held responsible for its maneuvers while under the control of a compulsory pilot, The China, 1869, 7 Wall. 53, 19 L.Ed. 67, but that its responsibility disappears when by a proper contract she has voluntarily charged herself with the derelictions of a docking pilot.
The sole proximate cause of the disaster to Ideal lies in the fact that Golden Fleece, having become conscious of imminent danger unforeseen until she entered the slip, took the risk of continuing, and attempting the impossible: the disaster inevitably followed.
Libelant is entitled to an interlocutory decree in the usual form against respondent, with costs.
I have filed findings of fact and conclusions of law.
. Golden Fleece is 441.2 feet long, 63.2 feet beam, and depth 36.7 feet, 6000 horsepower. She was built in 1944 and displaces 8,258 gross tons.
. Ideal is 86.5 feet long, 24.8 feet beam, depth 10.9 feet, 550 horsepower.
. Evelyn is 90.5 feet long, 26 feet beam, and depth 11.6 feet, 750 horsepower.
. Niagara is 95.5 feet long, beam 24.7 feet, depth 12.2 feet. She was built in 1918. Incidentally, there is in the record some dispute about whether Niagara’s horsepower is 450 or 750. I do not believe that this controversy is very important: It seems clear to me that Niagara probably developed not much less than 750 horsepower; at any rate she was fit for the task she undertook.
. John Howland is 423.1 feet long, depth '34.8 feet, and beam 57.1 feet.
. Ideal’s master testified to this effect at the coast guard inquiry; at the trial of this cause he said he could not remember putting his wheel over.
. The mere fact that Golden Fleece safely crossed the lower bay to the slip entrance without incident (e. g. sagging), as all agree; to me shows (1) that the towage facilities were adequate, as the docking master thought, when the venture began, and (2) the sagging was caused by sudden gusts, or increased wind pressure at the slip.