Unknown to Rittenhouse, he was considered by the Coast Guard personnel to be in charge of the towing operation and to possess the power to stop it at any time. In point of actual fact, the coxswain was in charge of the cutter and did, in fact, exercise exclusive control over and direction of the towing operation. No inquiry was ever made of Rittenhouse by the Coast Guard personnel as to his competence and experience in towing operations. Since Rittenhouse had never been involved in a towing operation, he relied, quite reasonably, upon and deferred to the skill and competence of the Coast Guard personnel.
Before the tow began, Nikiforow returned to the cutter and positioned himself behind a wire-mesh safety screen, designed to protect the coxswain and himself from harm. As ultimately will be shown, the safety screen, which had a "give" of almost twelve inches, proved unsuitable in the circumstances for its intended purpose.
Coxswain Short commenced the towing operation and made at least three unsuccessful attempts to free the defendant's vessel from the sand bar. All of the attempts were made from the portside of defendant's craft, the final effort being made from an angle somewhat aft the port beam of the defendant's vessel. When the second attempt was undertaken, the coxswain increased the engine power to 600 r.p.m., which was sufficiently powerful to heel the defendant's vessel over to a 45 degree angle. On the third attempt, engine power was further increased to 1000 r.p.m. This surge caused the defendant's vessel to heel over to such an extent that a marked degree of tilt was created. This resulted from the position of the bow of defendant's vessel, high on the sand bar, and the increased force exerted by the engines of the cutter, which sat lower and lower in the water as the cutter, restrained by the tow line, increased its power. The foreseeable consequence was that the tow line on the sampson post pulled almost vertically, rather than horizontally. The pressure was different from and more than the post was designed to withstand. As a result, the lamination of the post parted around the lag bolt securing it to the keel, the deck ceased to provide the designed lateral support for the sampson post, causing it, literally, to be uprooted, and, because of the elasticity of the nylon line, to be propelled across the distance between the two vessels, striking the safety screen and severely injuring Nikiforow.
Under the evidence the jury found Rittenhouse negligent because he failed to advise the Coast Guard personnel that the chock on the port bow, through which the line had been run, had parted and because he failed to stop the towing operation when it should have been evident that the Coast Guard coxswain was reckless of the safety of the defendant's vessel and of the other persons involved in the attempted tow.
While the negligence of Rittenhouse has been established by the verdict of the jury, that negligence was merely "passive" or "secondary" to the "active" or "primary" negligence of the United States. It is manifest from this record that Rittenhouse understandably and reasonably relied on the purported expertise and control exercised by the Coast Guard in the towing operation. The understanding of the Coast Guard personnel, not communicated to Rittenhouse, that he had either full control or the right to control the towing operation does not militate against the defendant's understanding.
Having assumed full control of the towing operation, the Coast Guard was primarily negligent in failing to inspect the sand bar, the extent and degree of the grounding and in then initiating the dangerous, and increasingly forceful broadside tow, when defendant's vessel was so deeply entrenched in the sand at ebb tide. By simply waiting for a turn of the tide, later in the day, the vessel would have floated off unaided, as it actually did. Moreover, when it became evident, by the marked tilt of the vessel, that the towing operation had become dangerous, the coxswain owed a duty to all concerned to cease further rescue efforts or at least to desist, to ascertain if a different and reasonably safe method could be devised. Additionally, the failure of the Coast Guard to train and instruct the plaintiff and the coxswain properly and adequately in safety and inspection procedures, prior to commencement of and during any towage, precipitated the injury which occurred to the plaintiff.
Alternatively, when the Coast Guard, without solicitation by the defendant, undertook to free the vessel from the sandy bottom, in return for the execution of a waiver of liability, an admiralty contract came into being. Under this contract the Coast Guard impliedly warranted that it would perform its service in a careful, safe and seamanlike manner. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956). Having breached this implied warranty, which directly resulted in defendant's liability to the plaintiff, defendant is entitled to full indemnity from the United States. That indemnity includes the total amount of the judgment ($60,000) and costs ($426.86) as well as counsel fees of $18,423.48 and $750.00, which fees are fair and reasonable. A.C. Israel Commodity Co. v. American-West African Line Inc., 397 F.2d 170 (3 Cir. 1968) cert. denied 393 U.S. 978, 89 S. Ct. 446, 21 L. Ed. 2d 439 (1968).
Accordingly, we enter the following
Now, this 11th day of November, 1970, it is ordered that:
1. the motion of the intervenor-plaintiff, United States, to dismiss the counterclaim of the defendant, Rittenhouse, be, and it is, denied;
2. in the action of the United States for payment of medical expenses, judgment be, and is now entered in favor of the defendant, Rittenhouse and against the intervenor-plaintiff, United States;
3. on the counterclaim of the defendant, Rittenhouse, for indemnity, judgment be, and is now entered in favor of the counterclaimant, Rittenhouse, against the intervenor-plaintiff, United States, in the total sum of $79,600.34;
4. the foregoing Opinion and Order constitute the Court's findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).