The opinion of the court was delivered by: FREED
The issues here presented for determination by this court arise out of three separate petitions, invoking the jurisdiction of the court, and seeking on behalf of its petitioner exoneration from and limitation of liability, under and by virtue of Title 46, Sec. 183, Sec. 184 and Sec. 185, U.S.C.A., and sections amendatory of, and supplemental thereto.
The petitioners claim the protection of the exoneration and limitation statutes because of various suits instituted to recover for loss of life and damage to property arising out of the sinking of the Steamtug Admiral and its tow, the Barge Cleveco, upon the waters of Lake Erie on December 2, 1942, with all hands aboard.
In its petitions, Cleveland Tankers, Inc., as owner of the Steamtug Admiral and the Barge Cleveco, alleges as to each, that the sinking of the tug and barge was caused by the elements, and that both vessels were seaworthy in every respect, and properly manned, equipped and fit for the voyage they undertook at the time of their departure from Toledo, Ohio, for Cleveland.
The petitioner alleges further that the damage, loss and injury occasioned by the disaster were due solely to the severity of a storm of extraordinary proportions encountered by the vessels, and not attributable to any fault or negligence on its part.
In each instance the petitioner seeks judgment relieving it of any liability whatsoever for any loss, damage or injury arising out of the disaster; or, in the alternative, that should the court find the petitioner liable, then that the liability of the petitioner be limited to the value or amount of the petitioner's interest in the tug and barge, and the freight pending, if any, and that this sum be distributed pro rata among the various claimants, and, a decree discharging the petitioner from any and all further liability.
The Allied Oil Company, Inc., in its petition for exoneration from and limitation of liability, alleges substantially the same facts as are contained in the petitions of Cleveland Tankers, Inc., except that it denies any interest in the two vessels either as owner, or owner pro hac vice, and asks that the relief prayed for by the other petitioner be extended to it in the event that the court should find it to be either the owner, or owner pro hac vice.
Upon the petitions filed, and the applications for monitions and injunctions sought, the court entered orders: (1) Appointing a Commissioner to appraise the interest of the petitioners in the vessels in question, and (2) requiring the petitioners to pay into the registry of the court the sum so found by the Commissioner, and (3) issuance of monitions citing all persons to file with the Commissioner their proofs of claim and their answers in respect of the matters alleged in the various exoneration and limitation petitions, and (4) injunctions restraining the prosecution of any suits then pending or any proceedings then undertaken, and all future litigation arising out of, or resulting from the disaster.
As the result of the orders issued, the Commissioner reported claims in the aggregate sum of $ 1,065,000 filed as the result of the sinking of the Barge Cleveco; claims aggregating $ 1,100,000 arising out of the sinking of the Steamtug Admiral, and as against the Allied Oil Co., claims in the amount of $ 500,000. During the trial of this cause the court permitted the filing of two additional claims in the aggregate sum of $ 200,000 arising out of the sinking of the Steamtug Admiral.
The various claimants, in their answers, allege:
(1) That the Steamtug Admiral was unseaworthy at the commencement of the voyage, and was unfit for the service in which she was engaged by reason of her instability, resulting from alterations and additions to her superstructure.
(2) That the mean draft of the tug exceeded 11 feet, and that the tow line occupied a position other than in a line with the fore and aft axis of the tug.
(3) That the tug was not seaworthy for the purposes for which she was being used in that she had been built as an ice-breaker and harbor tug, and was unfit for towing service, particularly unfit and unseaworthy for the purpose intended in this voyage.
(5) That the petitioner employed as master of the tug a person lacking in experience, and with no experience in navigation during winter weather.
(6) That the tug was sent to sea with an unseaworthy barge, with knowledge that the steering gear of the barge was not in good repair.
(7) That the tug was given sailing orders with knowledge that on previous occasions when the Admiral towed the Cleveco, the towing line had not been maintained in a fore and aft position, and that under calm weather conditions the Tug Admiral had tipped to the extent that her rail was under water.
The claimants ask that the court dismiss the petitions for exoneration and limitation of liability, and seek an award for damages.
The answer to the Allied Oil Company's petition alleges that by virtue of its stock ownership in Cleveland Tankers that it is the real owner of the vessels in question, or is owner pro hac vice.
The three cases, by stipulation, were tried together to the court. Many witnesses testified and numerous documents were introduced. The controversies were submitted upon the filing of voluminous briefs covering the issues raised in the many days of hearing.
The history of the two vessels in question is raised as an important issue in this case, and hence it is in point to discuss them.
It appears from the evidence that the Steamtug Admiral was built by the Manitowoc Shipbuilding Co. on order of the Milwaukee Tugboat Line. She was known, originally, as the W. H. Meyer, and was delivered in 1923. At the time of her construction an old power plant was installed in her, and she was outfitted with an engine of the size usually used in boats of that description for the purpose for which she was built.
It appears that she was built according to standard specifications of the American Bureau of Shipping, for use in harbor and lake towing, and that she was inspected by the United States Steamboat Bureau inspectors before delivery. During her years of service, the tug was returned to the Manitowoc yards frequently for minor repairs and painting. According to officials of the Milwaukee line, while they owned her, she was a seaworthy vessel and well maintained.
The testimony discloses that Cleveland Tankers became interested in the purchase of this vessel about April, 1942. The record shows the company had acquired the barge Cleveco sometime prior, and desiring a tug with which to tow her, made inquiry about this boat. The vessel was examined by Capt. Leif Jonassen, the acting manager, and at that time Marine Superintendent of Cleveland Tankers, and Gavin Drummond of Lloyd's Registry, in his private capacity as a marine architect. She was again examined the following month at Milwaukee, and upon the recommendation of Capt. Jonassen, it was decided to purchase the tug.
The Admiral was an 86-foot steamtug, drawing 12 1/2 feet, with a 22-foot beam. To use her for the purposes for which Cleveland Tankers intended to employ her, it became necessary to make alterations to her superstructure and quarters, to enable her to carry a crew of 13 men. She was put into drydock in the yards of J. A. Hendrickson Co. and a set of plans was drawn detailing the work proposed to be done. The plans then were submitted to the Steamboat Inspection Bureau and approved by it. The plans contemplated cutting away the wheelhouse and moving it forward, raising it to make room for additional quarters; installing a shower and washroom, reconstructing the messroom, installing new refrigerating equipment, raising the smokestack and installing new life rafts and other equipment made necessary by the renovation of the vessel.
The repairs had the effect of raising the superstructure of the vessel, raising her center of gravity and adding to her weight approximately 19,000 pounds, more or less.
Government inspectors, representatives of Lloyd's Registry and officials of Cleveland Tankers were in periodic attendance during the time of reconstruction.
The inclination tests were made, and the final and determinative calculations were embodied in a report of September 11, 1942, by Capt. Gould, and delivered to the owners of the Tug Admiral, which report set out the following conclusions:
'Examination of the foregoing data (stability data) indicates that the subject vessel is slightly deficient in stability and the following restrictions should be observed in the operation thereof:
'(1) Vessel should not be operated at a mean keel draft in excess of 11'-0' or at more than 2'-3' trim by the stern when at this draft.
'(2) Bilges should be maintained well pumped out.
'(3) Tow line should be maintained in as nearly a fore and aft line as practicable.
'If it is found impracticable in operation to limit the draft to 11'-0' the permissible draft evidently may be increased by building up the deck at the low point of the sheer so as to increase the depth at this point by at least the amount of the desired increase in draft. Plans for such alteration should be submitted for approval.
'James B. Robertson 'Naval Architect'
The Tug Admiral was put into service by Cleveland Tankers the day after receipt of the temporary certificate and from that date until the disaster, she and the Barge Cleveco operated as a unit.
During that period, as related by former members of the crew, the Tug Admiral nearly capsized in the Detroit River on an occasion when she was towing the Barge Cleveco. The testimony is to the effect that members of the crew were awakened by a sudden roll of the vessel when the barge sheered off at an angle. Testimony is that the crew hurried to the deck and disengaged the towing line which was tipping the tug, that the Admiral hung on her side for a moment, and then righted herself. There was evidence offered with reference to the stranding of the flotilla.
There is a great deal of testimony in the record on the part of former members of the crew of the Admiral as to the incompetency of her master, leaking doors and portholes, sticking of freeing ports, water coming through into her hold, and the defective condition of the pelican hook which secured the tow line on the Admiral. Considerable evidence has been directed to the appearance of the pilot house after the alterations were completed. Claimants' witnesses stated that after the reconstruction of the Admiral, it was impossible for the wheelsman to keep the barge in sight and in full view without leaving the wheel, mounting a step and looking out a window at the rear of the pilot house; or otherwise, without leaving the wheel and stepping out of the wheel house entirely, and looking back from the deck. All this is contested by the officials of the company who inspected her periodically and challenge the accuracy of these statements, contending that she was seaworthy in all these respects.
The Barge Cleveco likewise was purchased by Cleveland Tankers after she had been in service for many years. She had been built at Lorain, Ohio, and was first known as the Socony 85. From the time of her delivery in 1913, until she was returned to the Great Lakes in 1935, she was employed in ocean tanker service. She was 260 feet long, drawing 24 feet, with a 43-foot beam. The Cleveco had been inspected annually by the steamboat inspectors. At the time of her purchase by Cleveland Tankers, in September, 1940, she had been dry-docked and had undergone repairs to put her in seaworthy condition. At the end of each succeeding shipping season she was dry-docked and completely renovated. In August, 1942, the Cleveco ran aground at Port Colburn and again was dry-docked for repairs to put her in seaworthy condition. She was examined after these repairs were completed and awarded a certificate of seaworthiness by the United States Salvage Association.
The tragedy that gives rise to the various claims this court is called upon to decide, has its origin in a voyage in which the Barge Cleveco, in tow of the Tug Admiral, loaded a cargo of oil which was to have been ...