The opinion of the court was delivered by: BARD
This is a libel in admiralty brought by Julio Ribeiro Campos, owner of the bark Foz do Douro, against Curtis Bay Towing Company of Pennsylvania, operator of the Tug H. S. Falk, and Moran Towing and Transportation Company, Inc., operator of the Tug Nancy Moran, for damages caused by collision of the Nancy Moran with the Foz do Douro on April 10, 1943 on the Delaware River off the entrance of the Delaware and Chesapeake Canal. At the conclusion of libellant's testimony the Court of its own motion directed that the libel be dismissed as to the Curtis Bay Towing Company of Pennsylvania, operator of the H. S. Falk.
On the afternoon of April 10, 1943 the Portuguese bark Foz do Douro, after having been aground on the Pea Patch Shoal, in the Delaware River, was floated by the combined efforts of the tugs Nancy Moran and H. S. Falk. Under the direction of Commander Eugene C. Kelly, a Delaware River pilot on board the Foz do Douro, the tugs began a towing operation to place the bark at a safe anchorage.
The Nancy Moran took a hawser approximately 200 feet in length from her stern towing bitt to a bitt on the starboard bow of the Foz do Douro and the H. S. Falk took a line from the stern of the bark. The line from the stern was thrown off shortly after the towage began and the H. S. Falk did not participate thereafter in the towage. The course was east southeast with the bark following the course of the Nancy Moran on a hawser. A brisk following wind from the northwest striking the masts, rigging and furled sails of the bark provided enough motive power to permit the bark to maneuver independently of the tug.
An action by a tow against her tug for injuries caused by the tug is a suit ex delicto and not ex contractu. The Syracuse, 12 Wall. 167, 79 U.S. 167, 20 L. Ed. 382; The J. P. Donaldson, 167 U.S. 599, 17 S. Ct. 951, 42 L. Ed. 292, and, as in the ordinary tort action, the burden of proving negligence and that this negligence was a proximate and contributing cause of the injury rests upon libellant. Stevens v. The White City, 285 U.S. 195, 52 S. Ct. 347, 76 L. Ed. 699; The Lizzie D. Shaw, 3 Cir., 47 F.2d 820; The Clarence L. Blakeslee, 2 Cir., 243 F. 365. The tug is not an insurer of the safety of her tow, but has the duty to exercise such reasonable care and maritime skill as prudent navigators employ in the performance of similar services. Stevens v. The White City, supra; The Lizzie D. Shaw, supra; Delaware Dredging Co. v. Graham, D.C.E.D. Pa., 43 F.2d 852.
The furled sails, masts and rigging of the bark offered considerable resistance to wind, and the brisk following wind over the stern enabled the bark to proceed at approximately five knots per hour independently of the motive power of the tug. Under these circumstances it was recognized that if the H. S. Falk would take a line from the stern of the bark or if the bark would be permitted to proceed stern-first under the motive power of the wind with the Nancy Moran taking a line from the bow of the bark and following it to the anchorage, that the towage could be made with greater safety. These alternative methods of towage would have permitted the tugs to control, to a greater degree, any sudden movement of the bark which might be caused by the wind.
Commander Kelly, the pilot on board the Foz do Douro, was in charge of the towing operation, The Civilta and The Restless, 103 U.S. 699, 26 L. Ed. 599, and it was his duty to direct the operation of the bark and to interfere and direct the operation of the tug if the tug failed to use reasonable care or exercise proper maritime skill under the circumstances. The Shubert, D.C.E.D. Pa., 45 F. 497. The Foz do Douro was not a dumb tow. It had a full crew and a competent pilot on board and had independent motive power. It was therefore the duty of the bark's pilot to use every available facility of the bark to assist in breaking the sheer. The Willowpool, 2 Cir., 65 F.2d 385; The Jacob Brandow, D.C.S.C., 39 F. 831. Yet the helmsman on the bark testified that Kelly gave no order after the sheer began to port the rudder of the bark which would have materially assisted the tug in its efforts to break the sheer.
Commander Kelly's failure to adopt one of the alternative methods of towage, presumably in the interest of economy or speed, and his failure to direct the use of the bark's rudder to help break the sheer may have been negligence having material relationship to the collision for which the Foz do Douro should assume responsibility. The China, 7 Wall. 53, 19 L. Ed. 67; The Helen, 2 Cir., 5 F.2d 54; Standard Oil Co. of New Jersey v. United States, S.D. Ala., 27 F.2d 370. However, a determination whether Commander Kelly was negligent and whether this negligence, if any, was a proximate cause of the collision is not necessary in this opinion.
Libellant urges that, without regard to the cause of the backward are movement of the tug, the master of the tug did not exercise reasonable care and the maritime skill of a prudent navigator in that he failed to cut the hawser in time to avoid the collision. When the sheer of the bark began, it was incumbent upon the Nancy Moran to correct the sheer by turning to port and pulling full speed ahead, and it was her duty to continue these efforts so long as it was possible to do so and still avoid the collision. It was apparent that the tug, with her engines running full speed ahead, would forge ahead clear of the bark the instant the hawser could be cut. The master of the Nancy Moran gave the order to cut the hawser when the tug was approximately 60 feet from the port quarter of the bark. While in the act of cutting the hawser with an axe the deckhand slipped and fell to the deck and the hawser was thereupon cut at or about the moment when the collision occurred. Libellant urges that the master of the tug should have anticipated the possibility that the deckhand might slip and that he was negligent in not allowing sufficient time for cutting the hawser in the light of that possibility.
Precisely when the moment had arrived for cutting the hawser was a question for the master of the Nancy Moran to determine in the exercise of his judgment as an experienced navigator. The narrow line of demarcation between negligent and non-negligent error of judgment is expressed in The Eli B. Conine, 2 Cir., 233 F. 987, at page 988: "Lack of care under the circumstances,' which is negligence, is rarely willful or reckless; it is usually error of judgment. But the converse is not true -- that every error of judgment is negligence. The error must be measured by the standards of conduct and business knowledge furnished by the evidence and by the experience of which even courts can take cognizance without direct testimony. If the error, viewed from that standpoint, is such as would not have been committed by a reasonable man, reasonably skilled in his occupation, it is negligence.' When thus tested, the delay in ordering the cutting of the hawser cannot be considered negligence. The exercise of judgment by the master of the Nancy Moran in determining the exact moment when the order should be given was that of a reasonable man skilled as a mariner. If the deckhand had not slipped and the hawser cut immediately after the order was given, no one could have quarreled with the timeliness of the master's decision. It was only in the light of after events and in the exercise of hindsight that libellant charges the master with negligence.
There remains only the question of whether negligence can be imputed to the Nancy Moran from the fact that her deckhand slipped and fell when he first attempted to cut the hawser. The stern deck of the Nancy Moran was wet from spray thrown over the three foot freeboard by the brisk wind and the pull of the hawser caused by the starboard sheer of the bark gave the Nancy Moran a sharp list to the starboard. There is no evidence to indicate that the deckhand, who had adequate experience or anyone else on board the tug was guilty of any negligent act contributing to his fall. His fall must be regarded as a fortuitous and unexpected event which, although it directly contributed to the accident, cannot form the basis of a compensatory action.
Libellant has not sustained its burden of proving any negligence on the part of respondent which was a contributing factor in the collision. Stevens v. The White City, supra. The libel must therefore be dismissed as against Moran Towing and Transportation Company, Inc., respondent.
I make the following special findings of fact:
1. Libellant Julio Ribeiro Campos, a citizen and resident of the Republic of Portugal, was on April 10, 1943, and still is, owner of the Bark ...