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December 1, 1951


The opinion of the court was delivered by: CLANCY

Findings of Fact.

1. On November 30, 1946 the tugs Howard C. Moore, Agnes A. Moran and Claire A. Moran, all controlled and operated by the impleaded respondent Moran Towing and Transportation Company, Inc., hereafter called Moran, towed, as a dead ship, the liberty ship Isaac S. Hopkins, which had been delivered on that day into Moran's possession and custody from the laid-up anchorage at Tarrytown, New York. Moran towed the Hopkins to New York Bay and anchored it in the neighborhood of the Statute of Liberty near bellbuoy 7. In so far as the evidence goes, the Hopkins was anchored in the Bay for the convenience of Moran. She was allowed to remain there until the 2nd of December, 1946.

2. Before the 30th of November the barge Maryland and the barge Rock Harbor, both being at the time tight and seaworthy and properly manned and equipped, were anchored on Red Hook Flats, the Rock Harbor near buoy 30, the Maryland about 200 yards southeast of her.

 3. The Hopkins was a dead ship without any steam even that quantity sufficient to operate the windlasses on which were wound her anchors and without any means of communication. A so-called 'riding crew' of five was aboard her. The evidence gives no support to the use of the word 'crew' which has a professional connotation. We shall call them collectively 'a gang'. In the absence of evidence as to their qualifications it is found in the language used to describe them on the trial and to which neither the captain in charge of the towing operation nor his counsel demurred, that they were laborers unskilled in the rudiments of navigation or care of a ship. It is further found that none of these five individuals had the knowledge or the capacity to perform any duties aboard except such as a laborer might perform under the immediate personal supervision and according to the instructions of someone else who would know what to do and how to do it. These men were put aboard by the respondent Moran.

 4. Upon reaching the anchorage and in obedience to the instructions of the master of the tug Howard C. Moore, who was in control of the operation, but one anchor, her starboard one, was put out. The length of the chain on which this anchor depended was not established by any credible evidence but the evidence of subsequent events was conclusive that its length was insufficient to hold the vessel in a strong wind.

 5. Midday of December 2, 1946 a gale blew from the west and the tug Alice M. Moran was instructed by the Moran Company office by radio to examine the situation of the Hopkins and insure its security. The tug merely went to the neighborhood of the Hopkins which had then dragged her single anchor almost a mile from her original position, displayed no care whatever in discovering its situation and took no measures whatever to insure its safety despite the dangerous velocity of the wind then blowing and what was to be expected, storm warnings for small vessels having been then displayed and broadcast.

 6. Within an hour thereafter the wind dislodged the Hopkins from the position she held when viewed by the Alice M. Moran's captain. She dragged her anchor southeasterly across the Bay, colliding first with the barge Rock Harbor and thereafter her midship section struck the stem of the Maryland across which she clung while the Maryland was carried to a point off the Brooklyn shore when the Hopkins grounded. Immediately after the collision with the Maryland the Hopkins dropped her second anchor.

 7. Both the Maryland and the Rock Harbor were damaged and such damage was caused solely by the negligence of the Moran Company and its tugs above named. There is no evidence that the men aboard the Hopkins were employees of the United States or that their failure to act contributed in any respect to causing libellants' damage.

 8. Each of the Moran tugs is separately owned apparently in a convenient corporation. It was stipulated however that all were operated and controlled by the Moran Company which on, before and after the 30th day of November, 1946, enjoyed a contract with the United States, No. WSA-3902, and designated GAA-Special 8-1-42 (Barge Service) to manage and conduct the business of vessels assigned to it by the United States from time to time of which the Hopkins, on November 30, 1946, was one.

 9. The Moran Transportation and Towing Company, Inc., at the same time enjoyed what was designated as a master towing contract with the United States, No. WSA-4939. This contract with its later addendum never included the Hopkins. The Hopkins was delivered to Moran on November 30, 1946 'under the terms and conditions of contract to be executed', such receipt being executed by both the United States Maritime Commission and Moran. Redelivery of the Hopkins to the Government was acknowledged on the 10th of January, 1947, the receipt reciting that such delivery was made under the terms of the Special Barge Contract WSA-3902, dated December 18, 1942, adverted to in the preceding finding. On April 8, 1947 another delivery receipt was executed by both the United States Maritime Commission and Moran providing precisely the same terms and reciting: 'This certificate supercedes (sic.) and cancels any other previous certificate executed with Moran Transportation & Towing Co., Inc., to cover redelivery on the date shown above.'

 10. The putting of the riding gang on the Hopkins by Moran was done by Moran as the towing agent and not in accordance with the so-called service agreement.

 11. Article 16(a) of this barge service contract, WSA-3902, provides that the United States shall indemnify * * * the General Agent against any and all claims and demands * * * asserted for injury to persons or property arising out of or in any way connected with the operation or use of said vessels or the performance by the General Agent of any of its obligations hereunder, including * * * claims * * * by * * * other vessels * * *

 12. Article 16(c) reads: 'In the event that the General Agent shall perform any stevedoring, terminal, ship repair or similar service for the vessels hereunder at commercial rates, the General Agent shall have all the obligations and responsibilities of the person performing such services under the standard or other approved form of contract with the United States or, in the absence of such standard or approved form, under usual commercial practice.' The towing of the Hopkins by Moran and its tugs was either done under an independent hiring of itself by Moran as agent, pursuant to this paragraph of contract WSA-3902 or pursuant to the terms of a separate towing contract which was not put in ...

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