235 F. 795 | N.D. Fla. | 1916
This case involves the liability of a tug under a towage contract which limited the liability of the tug to “use every means for the safety and safe delivery” of the tows, by which the Clooney Construction Company was transporting oil by barge from Port Arthur, Tex., to Frontera, Mexico. It was understood “that the entire tow is under the orders and supervision of the Clooney Construction Company,” but that the steam tug Monarch, hired from the I. H. Aiken Towboat & Barge Company, was to tow the barges between the points mentioned.
Two previous trips had been successfully accomplished, but on the third voyage the tug, on the fourth day out, owing to high winds and heavy seas, was unable to replenish her bunkers with coal from the barges, placed thereon by the charterers, and the master, after conference with crew, decided that with the progress the tow was making against adverse conditions it was impossible to reach Frontera, or any other point where fuel could be obtained, or where coaling from the barges would be possible, abandoned the tow at sea, and returned to Galveston, where charterers were notified, with request for orders, but none were given.
The record discloses the facts in the case to be: That about the 22d day of May, 1912, the steam tug Monarch (hereafter called the tyg) left Pensacola, Fla., for Port Arthur, Tex., via Calcasieu Pass, La., with 45 tons in her bunkers and approximately 20 tons on deck. At an intermediate point the tug took in tow two unloaded barges of the Clooney Construction Company (hereafter referred to as the charterers). Arriving at Port Arthur, the tug exchanged these barges for two which were loaded with oil destined for Frontera, Mexico. This was the third voyage contemplated under the existing contract with the charterers. The duty of the tug under the contract is expressed in the following paragraph:
“It is understood tkat the entire tow is under the orders and supervision of the Clooney Construction Company, and in performing this work the I. H. Aiken Towboat Company shall use every means for the safety and safe delivery of each tow specified, but are in no way to be held responsible for same.”
Prior to entering into the contract the tug owners advised the charterers of the speed, capacity, and coal consumption of the tug. With the approval of the charterers a mariner was employed for this voy
After clearing from Port Arthur with the tow, the master set the course of the tug for Frontera, Mexico, via Tampico. According to the evidence, to have made Tampico would have required about six days proceeding at normal speed with the tow. With the weather fair and everything favorable the tug had a sufficient supply of coal for the voyage to Tampico. She did not have enough coal on board, for a voyage first to Frontera without a stop- for recoaling. The charterers, knowing the capacity of the tug, accepted her and permitted her to go to sea with the loaded barges. With the co-operation of the respondent the charterers sought to overcome the lack of fuel capacity of the tug by placing an ample supply on the stern of each of the barges making .up the tow.
On the voyage from Pensacola to Port Arthur the tug consumed a portion of the supply of 45 tons stored in her bunkers, which was in turn replenished from the 20 tons supply carried on deck. Arriving at Port Arthur, the tug took on deck from one of the barges about 20 tons of coal to replace that which had been taken from the deck supply to replenish her bunkers. With this and that remaining on .the barges the tug put to sea.
The evidence shows that the barges were sent to sea heavy loaded. After the tow was at sea four days, a strong head wind and high sha arose on the 27th, which continued throughout the 28th, when about 1 p. m. the tow was set adrift. Of her original supply the tug had left coal for about 36 hours’ steaming. Because of the insuperable difficulties of coaling from the barges at that time, the tug made for Galveston, arriving there about noon of the following day. Upon reaching Galveston it was ascertained the tug had left in her bunkers about 4 tons of coal. When the barges were abandoned the tug and tow bad traversed about 250 miles, probably half the distance from Port Arthur lo Tampico. At this time the tug was about 230 miles from Galveston and 136 miles from Aransas Pass, Tex. From Galveston the master of the tug notified the charterers of the loss of the tow and that she awaited orders. No orders were received, and the tug did not return to sea, and made no effort to recover the barges.
On the other hand, the respondent contends : That the tug left Port Arthur fully coaled. That the charterers were advised of her coal capacity, speed, and coal consumption. That the charterers provided
From the course of the tug and tow as disclosed by the evidence it is not probable that they were making for Frontera direct. The weight of the testimony shows the tow was proceeding via Tampico, and I am constrained to regard the case as though the voyage was to be made that way. It may be granted that it was a hazardous thing to attempt the voyage with just sufficient coal on board to consummate the trip in fair weather with everything going well; but the charterers’ engagement of the tug for the service and its voluntary efforts to enlarge the coal capacity of the tug contemplated but one thing, namely, that when the tug should need a new supply of coal that .it should be taken from the barges at sea as the occasion required.
Allowing the barges to go to sea in this contingency, the charterers must be held to have assumed the risk of the tug’s ability to coal at sea. While there are some inconsistencies urged in libelant’s argument, it may be summed up to one proposition; i. e., whether or not the master of the tug was in the circumstances justified in willfully setting adrift the tow, and, if so, then was he negligent in not attempting to recover it at sea?
A clear preponderance of the evidence shows that the barges were overloaded, and this overloading has a material bearing upon the question as to the diminished speed of the tow, and in so far as it was a contributing cause to the water-logging of the barges, if in fact they were water-logged.
It must be admitted that the master of the tug knew at the time of departure that the barges were overloaded, and. he knew as well as the charterers that in consequence the progress of the tow would be’ slow. He was aware of the difficulties of coaling from the barges at sea, as well. The charter provided, non constat that the “entire tow” was “under the orders and supervision of the Clooney Construction Company” and that the tug owners were “in no way to be held responsible for same,” which of itself shows that the master of the tug owed no duty to the tow until it passed into his control and was subject to his direction, notwithstanding the contract provided that the tug “shall use every means for the safety and safe delivery of each tow.”
It appears that the main fault with the undertaking and the thing which defeated its accomplishment was overloading the barges. The charterers maintain that they were seaworthy, even though heavy loaded. The respondent insists in the first instance that they were not seagoing barges, and that to load them as they were loaded invited disaster, by making them peculiarly liable to water-logging and thus to be rendered unseaworthy. If they had been seagoing barges and had been properly loaded, there can be little doubt that they would have made faster speed and accomplished the voyage safely. It must be admitted that the overloading contributed in no small degree to the water-logging. Manifestly the tug cannot be held responsible for a condition due in the first instance to the carelessness of the charterers at a time when the tug had no control of the tow.
The master of the tug testified that at the time the barge masters, came aboard each told him the barges were water-logged. The barge master who testified denied this statement, and swore that his barge was not water-logged. Under the circumstances, it is highly probable that the admissions made at the time are entitled to more credence. Even if the barge master’s declarations were not true as to the condition of the barges, the situation confronting the master of the tug was such as to warrant his accepting it in determining in the circumstances the proper course to pursue.
It is the inevitable conclusion that the shortage of fuel caused the abandonment of the tow; it is equally certain that it was the imminent condition of the barges which prevented any attempt to make a port of safety with them, or either of them. The barge masters were the agents of the charterers, and their statements in extremis would bind their principal.
The master of the tug was under no duty in the circumstances to seek corroboration of their representations as to the condition of the
A decree dismissing the libel should therefore be entered.