150 F.2d 214 | 5th Cir. | 1945
Appellant, as owner of the quarterboat “Santee,” filed a libel in rem against the tug “Lapwing” to recover for injuries sustained by the “Santee” while being towed by the “Lapwing” from Pascagoula. Mississippi, to Fort Meyers, Florida. When engaged in performing the towage contract, the “Lapwing” tied up the quarterboat in Carrabelle Inlet, Florida, for the night. As. the tide ebbed during the night, the quarter-boat settled on submerged piling, one of which pierced the wooden hull and caused her to sink.
Libelant alleged that the sinking was caused by the negligence, unskillfulness,, and inattention to duty of the officers and. crew of the “Lapwing” in selecting an improper and unsafe place to moor the quarterboat; and in negligently allowing thequarterboat to settle, with the receding tide, on obstructions which were known or should have been known to the officers and. crew of the “Lapwing.” The answer denied the negligence charged and affirma
The appeal presents the question: Was the sinking caused by the negligence, unskillfulness, and inattention to duty of the officers and crew of the tug “Lapwing”?
The Supreme Court in Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699, upon the question of the duty and liability of a tug under a towage contract, held (1) that the tug is not a bailee of the vessel in tow or her cargo; (2) that a suit by the owner of the tow to recover for an injury to the tow caused by negligence on the part of the tug is an action ex delicto; (3) that the tug is not liable as an insurer or as a common carrier, but owes to the tow the duty to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar services; and (4) that the mere fact that the tow was in good condition when received by the tug, and in damaged condition when delivered, does not raise any presumption of fault on the part of those performing the towage service.
In New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 86 F.2d 53, 60, this court stated the law as follows: “A tug is bound to use only reasonable and ordinary care and skill in conducting the tow, and is neither a bailee nor an insurer of the tow. * * * A suit to recover damages for loss of the tow is an action ex delicto and the burden is on the claimants to prove the negligence of the tug. A presumption of negligence does not arise merely from a showing that the tow has been damaged.”
Since all the evidence was in the form of depositions, and an appeal in admiralty is in substance a trial de novo,
As we are fully in accord with Judge Caillouet’s able opinion in this case,
Judgment affirmed.
Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156; The John Twohy, 255 U.S. 77, 41 S.Ct. 251, 65 L.Ed. 511.
D.C., 56 F.Supp. 859.