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IN RE MORAN INLAND WATERWAYS CORP.

October 30, 1970

In the Matter of the Complaint of MORAN INLAND WATERWAYS CORPORATION, as owner, and Moran Towing & Transportation Co., Inc., as chartered owner of TUG MARGOT MORAN, for exoneration from or limitation of liability. In the Matter of the Complaint of SEABOARD SHIPPING CORPORATION, as owner of the BARGE OIL TRANSFER 32, for exoneration from or limitation of liability

Frederick Van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

In early November, 1966 Arthur Naess and Charles Thompson, two bargemen, were lost from the barge Oil Transfer 32 (O.T. 32) during an extremely severe storm while the barge was under tow by the tug Margot Moran (Margot) on Lake Michigan. Moran Inland Waterways Corporation was the owner and Moran Towing and Transportation Co., Inc. the bareboat chartered owner of the tug Margot. (These corporations will be referred to as Moran.) Seaboard Shipping Corporation (Seaboard) was the owner and operator of the O.T. 32. *fn1" Claims were made against Moran and against Seaboard for the two deaths and Seaboard made claim against Moran for damage sustained by the O.T. 32. Seaboard and Moran then each filed a separate proceeding in admiralty for exoneration from or limitation of liability.

 Claims to recover for the deaths were made in both limitation proceedings on behalf of the wives of Naess and Thompson. Subsequently, Moran and Seaboard entered into a joint settlement with the death claimants pursuant to which each advanced a portion of the $225,000 paid in settlement. The agreement provided:

 
6. In the event that Seaboard is held liable to Moran, Moran shall be entitled to include in its damages the sum which it will advance to settle the death claims, and in the event that Moran is held liable to Seaboard, Seaboard shall be entitled to include in its damages the sum which it will advance to settle the death claims.
 
7. Neither Moran nor Seaboard shall be required to prove its liability to the death claimants or any justification, legal or otherwise, for the settlement with the death claimants as a condition precedent to obtaining indemnity from the other.

 Under these provisions Moran seeks to recover from Seaboard by way of indemnity the amount it contributed to settle the death claims. In the alternative, it seeks contribution from Seaboard.

 Seaboard, on the other hand, seeks to recover from Moran the amount it contributed to the settlement of the death claims. It also claims damages in the sum of $55,000 allegedly sustained by the O.T. 32. In any event, Seaboard seeks to limit its liability in order to fend off any recovery against it by Moran.

 The issues thus presented were tried before me without a jury.

 The O.T. 32 is a steel tank barge, 1278 gross and net tons, 229.4' long by 42.9' wide by 14.5' deep. She had no propulsion power but carried a crew of two certified tankermen. On October 30, 1966 she loaded a cargo of benzoil at Lemont, Illinois for Bay City, Michigan. On the morning of October 31, 1966, the O.T. 32 was pushed from Lemont to Chicago by the tug Margot on the first leg of the voyage. The Margot is a steel tug 141 gross tons, 96 net tons, 84.8' long by 24' beam by 9.6' depth with 1280 h.p. diesel engines. She carried a crew of 7 including Chester MacDonald, her Captain. The officers of the tug and the crews of both tow and the tug were thoroughly experienced and well qualified. The Margot was equipped with various types of direction finders and weather receiving radio equipment. She did not, however, have a barometer calibrated for the Great Lakes. Seaboard claims that her failure to have a working barometer rendered her unseaworthy.

 The O.T. 32 was structurally seaworthy and certified by the Coast Guard. However, its vocaline radio with which to communicate with the tug was and had been out of order for several months. If the bargemen wished to communicate with the tug they had agreed to display a sheet or to use the flood light at night. The barge was also equipped with a foghorn and flares. None of these devices, however, was an effective means of communication between the two vessels in a severe snow storm.

 In addition, the lifeboat on the O.T. 32 had sustained damage in September, 1966 and was unseaworthy. To remedy this an inflatable liferaft had been put aboard the barge at Lemont. The liferaft was an adequate and reasonable substitute for the damaged lifeboat. However, the bargemen were not instructed that proper installation called for the liferaft cannister to be placed on a cradle on the deck near the side of the barge so that it could easily be pushed over the side and inflated. Instead, the liferaft cannister was simply placed within the damaged lifeboat.

 At Lemont the O.T. 32 was loaded to drafts of 11'1" forward and aft, her Intermediate Marks giving a freeboard of 3'5". The season for Intermediate Marks expired at 2400 October 31 and at 0001 November 1 the winter season commenced during which her maximum permissible drafts were 2 3/4" less than the Intermediate Marks.

 The trip from Lemont to Chicago was uneventful and the flotilla arrived there on the afternoon of October 31. Gale warnings for Lake Michigan remained up throughout that day. This prompted Captain MacDonald to remain at Chicago rather than to set out immediately. The next morning, although gale warnings were still in effect, the actual weather conditions at Chicago, as well as at Milwaukee, 75 miles up the west shore of the Lake, were quite moderate. With winds coming from the northwest, MacDonald determined that there would be no risk as long as he remained in the lee of the west shore. Before leaving Chicago, at 0830 on November 1, he informed the bargemen aboard the O.T. 32 that the weather would be a little sloppy and while he did not tell them that gale warnings were in effect, the gale flag was up at the Coast Guard dock in plain view. In view of the fact that Captain MacDonald could reasonably have expected the winds to continue from the northwest, it was not unreasonable for him to set out in the face of gale warnings and he was not negligent in so doing.

 At 0830 on November 1, the Margot pushed the O.T. 32 onto Lake Michigan and there took her in tow on a 1200 foot hawser. The crew of the O.T. 32 consisted of Barge Captain Naess and Mate Thompson.

 At 1800 on November 1, while the flotilla was traveling north along the west shore of the Lake, gale warnings were lowered and small craft warnings were raised. The forecast continued to call for northwest winds. Intermittent heavy snow fell during the afternoon and evening of November 1. Seas increased and the speed of the tug was reduced.

 At 0230 November 2, the Margot received a report from Point Betsie on the east shore of the Lake of winds NNE. At 0930 on November 2, when the flotilla was 11 miles off Sheboygan on the west shore, the winds had actually shifted to the northeast with velocities of 20-25 MPH. Small craft warnings were still in effect. In order to seek the lee on the east shore and so that the flotilla would head into the weather and seas, MacDonald changed course and headed northeasterly across the Lake toward Big Sable Point, 60 miles away on the east shore. Before heading across the Lake at 0930 on November 2, the tug could safely have put in at Sheboygan if MacDonald had thought it necessary. It was not, however, unreasonable under the circumstances to change course and head across the Lake and it was not negligent to do so. At 1200 November 2 the forecast was for northeasterly winds with snow, and small craft warnings were up.

 At 1330 on November 2, four hours after the flotilla had shifted course at Sheboygan and headed across the Lake toward Big Sable Point, a special weather bulletin was broadcast for the portion of the Lake in which the flotilla was then located, changing small craft warnings to gale warnings at 1500 hours. Winds were still from the northeast and no shift to the northwest was forecast or anticipated at that time. The O.T. 32 had consistently appeared to be riding well and there was no reason to be apprehensive about her safety. Thus, MacDonald continued across the Lake to seek the lee on the east shore. While it was possible to turn back at 1330, MacDonald's decision to proceed across the Lake was not unreasonable and his failure to turn back was not negligent.

 At 1800 on November 2 the forecast was for winds N 41-47 knots for 12 hours, shifting to NW in the following 12 hours. The cabin lights of the barge were visible. There is no evidence that it was possible at this point to return the flotilla to the west shore and Seaboard makes no such claim.

 At 0000 November 3, the forecast was for winds N 41-47 knots for 9 hours, shifting to NW during the succeeding 9 hours, then NW 28-33 knots for the following 6 hours, with snow or rain and snow. The flotilla continued to experience northeasterly winds and seas. It proceeded without apparent difficulty toward Big Sable Point. At daybreak the cabin lights of the barge were burning.

 At 0600 on November 3, when the tow was 10 miles from Big Sable Point on the east shore of the Lake, the winds shifted to the northwest. Because of the nature of the available harbors on Lake Michigan, it was unlikely that, under the existing weather conditions, the tug could have brought the barge on a 1200-foot hawser safely into a harbor on the east shore. Moreover, it would have been unsafe to shorten the hawser under the circumstances. Thus, the only reasonable alternative available to Captain MacDonald was to change course and head into the winds and seas toward the west shore of the Lake. This is what he did at 0600 on November 3.

 At about 0700 on November 3, the O.T. 32 was observed, through lulls in the snow, to be riding and following well. No distress signals from her crew were seen. However, the lifeboat of the barge was observed to be athwartship instead of in its regular fore and aft position. The Margot was proceeding at reduced speed and was in no difficulty.

 At mid-afternoon of November 3, the storm increased to peak intensity with winds of about 50 knots, gusting to 65 knots, and seas of about 15 feet. At this point, the Margot had no alternative but to proceed as best she could, heading northwesterly into the weather and ...


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