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In re Complaint of Interstate Towing Co.

decided: September 22, 1983.

IN THE MATTER OF THE COMPLAINT OF INTERSTATE TOWING CO., AS OWNER OF THE TUG DELAWARE, INTERSTATE MARINE TRANSPORT CO., AS OWNER OF THE BARGE INTERSTATE 36, AND INTERSTATE AND OCEAN TRANSPORT CO., AS BAREBOAT CHARTERER OF THE BARGE INTERSTATE 36 AND THE TUG DELAWARE, PLAINTIFFS, FOR EXONERATION FROM OR LIMITATION OF LIABILITY; INTERSTATE TOWING CO., AS OWNER OF THE TUG DELAWARE, INTERSTATE MARINE TRANSPORT CO., AS OWNER OF THE BARGE INTERSTATE 36 AND INTERSTATE AND OCEAN TRANSPORT CO., AS BAREBOAT CHARTERER OF THE BARGE INTERSTATE 36 AND THE TUG DELAWARE, PLAINTIFFS, INTERSTATE AND OCEAN TRANSPORT CO., AS BAREBOAT CHARTERER OF THE BARGE INTERSTATE 36 AND THE TUG DELAWARE, PLAINTIFF-APPELLANT,
v.
BARBARA STISSI, JUDITH LAX AND THOMAS FUREY, CLAIMANTS-APPELLEES



Appeal from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.) denying Sonat Marine, Inc.'s and Thomas Furey's petitions for exoneration from or limitation of liability and apportioning liability for damages according to degrees of fault. Judgment affirmed except as to its apportionment of liability, and matter remanded to district court for reconsideration on that issue.

Van Graafeiland and Pierce, Circuit Judges, and Mishler, District Judge.*fn*

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

Sonat Marine, Inc., formerly Interstate and Ocean Transport Co., appeals from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.), entered on October 29, 1982. Appellant, the bareboat charterer of the tug Delaware and the barge Interstate 36, petitioned the court below for exoneration from, or limitation of, liability arising out of a collision which occurred on Long Island Sound on August 22, 1980.

Claimants against appellant include Thomas Furey, the owner of a small pleasure craft which collided with the barge, and Judith Lax and Barbara Stissi, representatives, respectively, of Ruth Calabro and Ronald Stissi, passengers in the Furey boat who were fatally injured in the collision. Appellant asserted counterclaims against all appellees. Appellee Lax asserted cross-claims against Furey and Stissi. In addition to asserting a claim, appellee Furey petitioned the district court for exoneration from, or limitation of, liability.

The court below denied appellant exoneration from liability, holding the tug and barge to be eighty percent at fault for the collision. The court also refused to limit appellant's liability to the value or amount of its interest in the vessels pursuant to 46 U.S.C. § 183 (1976). The court attributed twenty percent of the fault to the Furey boat and denied Furey's petition for limitation of liability.

As a general rule, a trial court's estimate of the amount of negligence attributable to each vessel is subject to the clearly erroneous rule. Getty Oil Co. v. SS Ponce De Leon, 555 F.2d 328, 335 (2d Cir.1977). This assumes, however, that the court applied correct legal standards in making its determination. Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir.1978). If the court applied improper legal standards its conclusion may be corrected as a matter of law. United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 10 L. Ed. 2d 823, 83 S. Ct. 1773 (1963). Viewing the district court's allocation of fault in that light, we conclude that it cannot stand. We affirm in part and reverse in part.

On August 22, 1980, at about 8:00 P.M., Mr. Furey, Mr. Stissi and Mrs. Calabro left a Huntington, Long Island marina in Furey's nineteen-foot, outboard motorboat to go fishing. The night was clear, the wind was moderate and the waves were from one to three feet high. With Furey operating his boat, the party went first to an area several miles north of the Huntington Harbor Lighthouse, where they fished for a short period of time. They then decided to try another spot some distance to the north, and the boat headed in that direction with Mr. Stissi at the controls.

Before reaching its intended destination, the motorboat encountered the Delaware. The tug was well lighted, showing a white bow light, port and starboard running lights, a white stern floodlight shining on a towing hawser, and some yellow deck lights. In addition, the Delaware had three white vertical mast lights, which indicated that it was "towing one or more vessels astern." 33 U.S.C. § 173(a) (1976), repealed by Inland Navigational Rules Act of 1980, Pub.L. No. 96-591, §§ 7, 8(a), 94 Stat. 3435 (1980). Despite the presence of the three mast lights and the floodlighted hawser, Stissi attempted to cross the Delaware's wake and, in the process, fouled his propeller on the hawser. While Furey was attempting to free the propeller, the Interstate 36, which the Delaware was towing, caught up with the stopped boat and overturned it.

Where mast lights indicate the existence of a tow, it has been held to be "inexcusable negligence" to cross behind the stern of the towing vessel without knowing the position of the tow, The Norne, 59 F.2d 145, 148 (5th Cir.1932), and the " ' navigation ', if it can be called such," of the crossing vessel has been described as "grossly at fault", In re Harbor Towing Corp., 310 F. Supp. 775, 782 (D. Md. 1970), aff'd sub nom. Harbor Towing Corp. v. Aetna Ins. Co., 438 F.2d 535 (4th Cir.1971) (per curiam). See Triangle Cement Corp. v. Towboats Cincinnati, 280 F. Supp. 73, 75 (S.D.N.Y. 1967), aff'd, 393 F.2d 936 (2d Cir.1968) (per curiam). The district court held that Stissi, as pilot of the Furey boat, was charged with knowledge of what the towing lights meant and the "lights should have alerted him to proceed with caution and to attempt, before he passed astern of the Tug, to ascertain where the towed vessel, if any, was located." Because of Stissi's failure to do so, the district court found him to be twenty percent at fault for the accident and Furey to be vicariously responsible for Stissi's fault.

It is the law of this Circuit that the mere presence on board of an owner does not constitute such privity as will preclude limitation of the owner's liability. Blackler v. Jacobus Transp. Co., 243 F.2d 733, 735 (2d Cir. 1957) (per curiam); In re Klarman, 295 F. Supp. 1021, 1022-23 (D.Conn. 1968); In re Liebler, 19 F. Supp. 829, 833 (W.D.N.Y.1937). To deny limitation to an owner, his "privity or knowledge must be actual and not merely constructive." In re Bloomfield Steamship Co., 422 F.2d 728, 736 (2d Cir.1970)(quoting The 84-H, 296 F. 427, 431 (2d Cir.1923), cert. denied, 264 U.S. 596, 44 S. Ct. 454, 68 L. Ed. 867 (1924)). "There must be some fault or negligence on his part or in which he in some way participates." Id. If the owner "is free from fault his actual knowledge of the facts of the accident does not prevent limitation." Blackler v. Jacobus Transp. Co., supra, 243 F.2d at 735.

Although the district court's opinion is somewhat confusing on this point, the fact that the court denied limitation of liability to Furey indicates that Furey's liability was not simply vicarious but was also based upon Furey's own personal acts of negligence. The district court found that the most plausible explanation for Stissi's running across the tow line was his ignorance of the significance of the tug's tow lights, and that Furey was negligent in permitting Stissi to operate the boat without knowing whether Stissi was familiar with the rules of navigation and maritime lighting. This was not mere vicarious negligence; it was Furey's own careless act. In re Theisen, 349 F. Supp. 737, 740-41 (E.D.N.Y. 1972); Moye v. Henderson, 364 F. Supp. 1286, 1292 (E.D.Ark.1973), aff'd, 496 F.2d 973 (8th Cir.), cert. denied, 419 U.S. 884, 42 L. Ed. 2d 125, 95 S. Ct. 151 (1974); Nuccio v. Royal Indem. Co., 280 F. Supp. 468, 469 (E.D. La. 1968), aff'd, 415 F.2d 228 (5th Cir. 1969)(per curiam).

Moreover, Furey's negligent conduct did not cease when he placed Stissi at the helm of his boat. The rules of safe navigation, which apply to pleasure craft such as the one owned by Furey, The O'Brien Bros., 258 F. 614, 616 (2d Cir.1919), Bremmer v. Shedd, 467 F. Supp. 261, 266 (W.D.Pa.1979), In re Val Marine Corp., 145 F. Supp. 551, 554 (S.D.N.Y. 1956), modified, 256 F.2d 911 (2d Cir.1958), In re Liebler, supra, 19 F. Supp. at 832-33, imposed a duty on Furey, a duty, which he failed to satisfy and which the district court failed to discuss, to see that a proper lookout was maintained from his boat at all times. "There is no exception to the rule requiring a lookout in favor of craft capable of committing injuries, on account of size." The Marion, 56 F. 271, 272 (D. Wash. 1893). See In re H. & H. Wheel Service, Inc., 219 F.2d 904, 914 (6th Cir.1955); Petersen v. Head Constr. Co., 367 F. Supp. 1072, 1075, 1080 (D.D.C. 1973); Dumatrait v. Tug Nick V, 212 F. Supp. 600, 602 (E.D.La. 1962).

It is axiomatic that an "inefficient lookout is equivalent to none." Sun Oil Co. v. S.S. Georgel, 245 F.Supp 537, 545 (S.D.N.Y.1965), aff'd, 369 F.2d 406 (2d Cir.1966) (per curiam). See The Robert H., Inc. v. The Socony No. 19, 162 F.2d 199, 200 (2d Cir.1947). A proper lookout is one that is vigilantly maintained by a competent person of suitable experience. Chamberlain v. Ward, 62 U.S. (21 How.) 548, 570, 16 L. Ed. 211 (1859); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1159-60 (2d Cir.1978), cert. denied, 440 U.S. 959, 59 L. Ed. 2d 772, 99 S. Ct. 1499 (1979); In re Flota Mercante Grancolombiana, S.A., 440 F. Supp. 704, 715-17 (S.D.N.Y.1977), aff'd on opinion below, Dkt. Nos. 77-7256, -7278 (2d Cir. Nov. 16, 1977). The need for competent vigilance has prompted repeated holdings that a lookout's sole duty should be that with which he is charged and that one who is assigned ...


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