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GEO. W. ROGERS CONST. CORP. v. UNITED STATES

January 15, 1954

GEO. W. ROGERS CONST. CORP.
v.
UNITED STATES et al. STATEN ISLAND RAPID TRANSIT RY. CO. v. UNITED STATES et al.



The opinion of the court was delivered by: LEIBELL

The Findings of Fact in this case tell the story of a very unusual accident which occurred at the B. & O.'s bridge over the Arthur Kill, at Staten Island, New York. An inference of fault arises against The Cayuse, a moving vessel which collided with the properly-moored Whirley No. 32 and pushed The Whirley into a lawful bridge. The Providence, 2 Cir., 67 F.2d 865; Carr v. Hermosa, 9 Cir., 137 F.2d 983. The issues in this case center around the question of who is liable, the respondent or the respondent-impleaded, or both. It is the government's contention that Dalzell, the respondent-impleaded, is liable for the libellants' damages, and that if The Cayuse is liable in rem to the libellants, she is only secondarily liable. Dalzell's counsel argues that the respondent, The United States of America, is solely liable and that Dalzell should be completely exonerated.

The Conclusion of Law place the entire liability on the respondent, the United States, as the owner of the tanker Cayuse. That the tanker, Cayuse, was unseaworthy, in respect to her port steering engine and her port anchor, was established through the depositions and testimony of her officers. The unseaworthiness was a proximate cause of the accident. That Pilot Ambrose did not act either promptly or rightly when he knew that a collision with the bridge fender or The Whirley No. 32 was imminent, is shown by the physical facts, the distances shown on Court Ex. 1, the entries in the bell book as to the engine's speed and the changes ordered, and by the depositions and testimony of those on the bridge of the tanker, including the Pilot, Ambrose. The faulty navigation of the pilot is chargeable to The Cayuse. Although the pilot was regularly employed by Dalzell as a tugboat captain, he was also a United States licensed pilot for New York Harbor, including the Kills. He has been tugboating in the Harbor for many years and was recognized as a competent pilot.

Dalzell's pilotage clause, published in Dalzell's Schedule of Standard Rates and Terms for tug service in New York Harbor, is not contrary to any rule of public policy and is binding on the respondent, the owner of The Cayuse. Dalzell's 'responsibility is not to be extended beyond the service that it undertook to perform. It did not furnish pilotage. The provision that its tug captains while upon the assisted ship would be the servants of her owner is an application of the well-established rule that when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former. Denton v. Yazoo & M.V.R. Co., 284 U.S. 305, 308, 52 S. Ct. 141, 76 L. Ed. 310. It would be unconscionable for petitioner upon occurrence of a mishap to repudiate the agreement upon which it obtained the service.' The quotation is from Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, at page 294, 53 S. Ct. 135, at page 136, 77 L. Ed. 311. Pilot Ambrose in navigating The Cayuse under her own propelling power, 'became the servant of the owner of the vessel with respect to giving orders to any of the tugs engaged in the towage service and with respect to handling the vessel, and the tugs were thereupon released from faults or acts of negligence' of the pilot. The Margaret A. Moran, 2 Cir., 57 F.2d 143. See also Moran Towing & T. Co. v. Navigazione Libera Triestina, S.A., 2 Cir., 92 F.2d 37.

 When it appeared to the pilot that a collision with The Whirley No. 32 was imminent, about the time the bridge of The Cayuse was under the Goethals bridge, because of the then heading of the ship and the fact that The Cayuse had not answered fast enough to an easy left wheel, he tried to help the tanker swing to the left by increasing her speed with a touch of half ahead, and he ordered the wheel hard left. When the increase in speed with the wheel hard over, had no effect in bringing The Cayuse to the left, the pilot ordered the engines slow ahead and ordered the tug Dalzellaird to back. He also ordered that the port anchor be let go. He did not call upon the tug Lloyd H. Dalzell to help in the emergency, because he could not get her around in time. His order to let go the port anchor could not be obeyed because that anchor was frozen or jammed and of that he had no knowledge. But even if the port anchor had been available, the order was given so late that in all probability it would not have prevented a collision altogether. If it had swung the stem of The Cayuse to the left, it is likely that The Cayuse would have hit the easterly fender rack of the B. & O. span. When the Second Mate dropped the starboard anchor, which was pulling the stem of The Cayuse to the right, then (at 7:50) the pilot ordered The Cayuse's engines full astern. The collision with The Whirley No. 32 took place at 7:51. The Cayuse did not develop sternway until after the collision with The Whirley.

 When I questioned the pilot as to what he might have done to avoid the collision if he had acted sooner, he remarked that 'hindsight is better than foresight', and that 'We have so many narrow escapes every day in this business'. But a pilot is engaged to navigate because of his experience in handling ships, and his special knowledge of the waters and local navigating conditions. He is supposed to have enough foresight to avoid collisions. He holds his rank and rating because he is considered expert enough to act promptly and right in extremis.

 If Pilot Ambrose had ordered The Cayuse's engines full speed astern and The Dalzellaird to back, as the danger was developing when the stem of The Cayuse passed under the Goethals bridge, and if he had ordered the following tug, The Lloyd H. Dalzell, to the starboard quarter of The Cayuse to hold the tanker away from the abutment of the Goethals bridge, any collision with The Whirley No. 32 or the easterly fender of the B. & O. bridge span, could have been avoided. His failure to take proper measures to avoid the collision constituted faulty navigation and was a proximate cause of the accident.

 Undoubtedly The Dalzellaird, the tug on the port bow of The Cayuse, did all that she was called upon to do by the pilot. The tug had to await his orders. Likewise the following tug, The Lloyd H. Dalzell, was not supposed to act independently, if there was a likelihood that the pilot might have orders for her. The imminence of the collision was probably not as apparent to the following tug as it would be to those aboard The Cayuse. After the collision, The Lloyd H. Dalzell passed along the starboard side of The Cayuse and played a hose on The Whirley No. 32, to put out a fire that had started aboard her. The evidence did not disclose any negligence on the part of either tug.

 There seems to be some dispute as to just what Pilot Ambrose was told about the steering gear not working properly, while The Cayuse was being turned around at Bayway. In the penned statement, which the master of The Cayuse added to the typewritten statement which the pilot asked him to sign, there appears the following: --

 'While turning around the quartermaster informed me that rudder indicator showed 15 degrees rudder when wheel was hard over.'

 That is what the Pilot testified he was told by the Master. The pilot also testified that when the ship was practically turned around she responded well to a hard rudder, the way he expected she would, and he straightened her up in the channel and headed north. He so informed the Master of the Cayuse at the time.

 The government argues that Dalzell is liable because Pilot Ambrose went ahead with The Cayuse with only two tugs, after he had been told that the rudder indicator did not seem to register properly, when The Cayuse's wheel was put over hard after she had been turned around at Bayway. But that is not the whole story. The Pilot was not told that there had been trouble with the telemotor part of the steering apparatus on the last voyage of The Cayse into the port of New York. He thought that the trouble was with the indicator and that it was only momentary. When The Cayuse responded to a right rudder at Gulfport he told Captain Fields that The Cayuse was steering all right, but in response to the 'Captain's request he kept both the tugs. The Captain's request was a precautionary matter evidently based on what he knew about the vessel's steering gear. If the Pilot had known that the steering gear was out of order he would have ordered two additional tugs, if The Cayuse was to proceed and not be put back to her dock. It would not have been any money out of the Pilot's pocket and it would have meant more money for the Dalzell Towing Company. There would have been no reason for him not to other additional tugs if the had known that the steering apparatus was not responsive.

 The opinion the Pilot formed that The Cayuse was steering all right, was his opinion as the Pilot while he was navigating from the bridge of The Cayuse. If he was wrong in this conclusion it was a mistake he made as the Pilot, for which The Cayuse and its owners are responsible under the pilotage clause of Dalzell's Standard Rates and Terms. If he failed to re-dock The Cayuse or order extra tugs, that mistake was based on his conclusion that the steering gear was operating all right, which, as above indicated, was a mistake he made in his capacity as pilot.

 For the foregoing reasons -- the unseaworthiness of The Cayuse as to her steering gear and port anchor, the faulty navigation of the pilot as an employee of the owner of The Cayuse, the lack of fault on the part of the two Dalzell tugs -- I have concluded that the respondent, United States of America, as owner of The Cayuse is solely liable for the damage to The Floating Whirley No. 32 and the B. & O. bridge. Submit a decree in accordance with the Conclusions of Law.

 Supplemental Opinion

 On April 28, 1953, I filed Findings of Fact and Conclusions of Law in these two admiralty actions, which had been consolidated ...


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