1972); see Dredge Cartagena v. S.S. Syra, 1968 A.M.C. 2235, 2240 (D.Md. 1968) (failure of vessel to use radar at night to ascertain position of dredge pipeline). We believe that when a vessel is faced with uncertainty about the situs of a vessel ahead, whether it be an approaching, crossing or overtaking situation, the uncertain vessel has a duty to use its radar to ascertain what is ahead. The crew of the Santos chose not to man a radar watch notwithstanding the fact that they had viewed the tug's towing lights and they had not been able to locate the tow. We find that this failure constituted fault.
Having found that the circumstances warranted a radar watch, we must now determine whether the claimant's failure to monitor the radar contributed to the accident. Afran Transport Co. v. The Bergechief, 274 F.2d 469, 475 (2d Cir. 1960); Moran Scow Corp. v. S.S. Boston, supra, 342 F. Supp. at 239-40. Although the radar showed only one target, no testimony was presented to show conclusively that this necessarily would have remained the case had constant radar surveillance been maintained. Thus, we conclude that the failure of the Santos to maintain a radar watch when the contents of waters ahead were uncertain amounted to fault and it contributed to the accident.
Plaintiff also argues that the Santos was at fault for failing to plot the course of the tug and tow. The duty to plot has been imposed where, because of the risk of collision raised by ships' inability in poor visibility to ascertain the "closest point of approach, course and speed" of each other, plotting was the most efficient way to determine these facts. Orient Steam Navigation Co. v. United States, 231 F. Supp. 469, 474 (S.D. Cal. 1964); see Getty Oil v. S.S. Ponce DeLeon, 409 F. Supp. 909, 918 (S.D. N.Y. 1976). This duty is not applicable in this case since the peril flowed not from the failure to establish the course of the tug and barge, but rather from the failure to ascertain the existence and position of the tow. Plotting would not have aided this necessary determination. Moreover, the Santos had the Harbor Star under visual observation for at least an hour prior to the collision, so that the course and bearing of the tug was not a mystery to the tanker. Therefore, since the danger in this overtaking situation arose solely from the failure to inquire into the existence, rather than the course, of the tow, we find no duty to plot on these facts.
D. Other Allegations of Statutory Fault on Santos' Part.
After the tow was sighted, the pilot attempted to blow the ship's whistles to warn the tug of the impending collision. The whistles failed to work and thus, the Santos breached 33 U.S.C. § 191. However, since this attempt to blow the whistles was made within 1000 feet of the barge and the tow could not have been moved quickly, the violation could not have contributed to the accident. Cf. Tiger Shipping Co. v. The Tug Carville, 381 F. Supp. 1340 (E.D. Va. 1974). Similarly, even if we assume that the Santos breached 33 U.S.C. § 201 by neglecting to carefully watch the compass bearing of the vessel in order to avoid a collision, this neglect could not have caused the accident since the Santos collided with the barge rather than the tug. The accident resulted from the failure of the Santos to find the tow and then give it a wide berth when passing.
The plaintiffs also urge we find the Santos at fault under 33 U.S.C. § 212. We decline to do so since the plaintiffs have not alleged any particular fault on the part of the Santos that would require application of this "special circumstances" rule.
III. Limitation of Liability.
Both BFT and Boston Fuel seek to limit their liability pursuant to 46 U.S.C. § 181 et seq. The contentions posed by these requests reveal the following issues: (1) Does BFT or Boston Fuel come within the terms of the limitations statute, (2) if they do, are they prohibited from limiting their liability because they were "in privity with" or had "knowledge of" a fault which contributed to or caused the collision, and (3) if limitation is allowed, what is the size of the limitation fund? Pursuant to an oral agreement, Boston Fuel supplied a crew, insurance and business for the owner of the tug, BFT. All income generated by the tug is credited directly to BFT and all expenses directly attributable to the tug are charged directly to BFT.
At the end of each calendar year, BFT pays Boston Fuel an operating fee based upon the income generated by the Harbor Star.
A. BFT and Boston Fuel are Owners or Charterers Within the Meaning of the Limitation Statutes.
It is clear that BFT is the titled owner of the tug and as such lies within the ambit of the limitation statutes. The claimant, however, vigorously contests Boston Fuel's contention that it is an owner or charterer within 46 U.S.C. § 183
and 46 U.S.C. § 186
and that thus it should be entitled to limit its liability to the value of the vessel and then pending freight.
A charter agreement justifying the plaintiffs' request need not be written, so long as it is express and embodies certain terms which establish the relationship of the parties to the vessel. Jones & Laughlin Steel Corp. v. Vang, 73 F.2d 88, 90 (3d Cir. 1934), cert. dismissed, 294 U.S. 735, 55 S. Ct. 496, 79 L. Ed. 1263 (1935). Also, the agreement need not identify itself in the terms "charter" or "charter party." In re Petition of United States, 259 F.2d 608, 609 (3d Cir. 1958). While we are not certain that the terms embodied in the oral agreement between Boston Fuel and BFT would normally constitute a "charter party", the case of In re Petition of United States (the Mathiasen case), supra, compels us to conclude that Boston Fuel may limit its liability in this case.
The Mathiasen case involved an agreement very similar to the one here. In that case, Mathiasen's Tanker Industries, Inc. contracted with an agency of the United States Navy to manage and operate tankers for the Navy. The specifics of the agreement provided that the operator would supply the crew, equipment, fuel, and other items for the vessels and receive compensation for its services on a cost-plus basis.
No labor agreements were to be entered into by Mathiasen that related solely to the Government-owned ships. The District Court concluded that, although the agreement made no mention of the word charter, Mathiasen had "exclusive possession and management" of the tanker and thus must be found to be a "charterer" within the meaning of § 186. 155 F. Supp. 714, 717 (D.Del. 1957).
The Court of Appeals for the Third Circuit expanded upon the District Court's conclusion, stating:
As we see it, Mathiasen's role under the contract partakes of the nature of both charterer and owner pro hac vice. Either status justifies its petition for limitation. We do not think that the clause providing for the vessel to be operated "in such service as the Government may direct" or the reference to government owned tankers as being "in the custody of the contractor" destroys the total effect of the contract making Mathiasen a charterer of the Mission. It seems to us that in every substantial sense needed to support its right to file the petition the contractor became just that. In Thorp v. Hammond, 1870, 79 U.S. 408, 12 Wall. 408, 20 L. Ed. 419, there was no agreement which named Hammond as the charterer but the vessel was commanded, sailed and exclusively managed by him "whereby" as the Supreme Court said, at page 416, "he had in effect become the charterer of the vessel." The Court on the following page specifically stated " Hammond, therefore, is to be regarded as the owner, because the charterer, and as such responsible for the tortious acts of the vessel." (Emphasis supplied) . . . . This same sort of broad construction was taken of the word owner in Flink v. Paladini, 1929, 279 U.S. 59, at page 63, 49 S. Ct. 255, 73 L. Ed. 613, where the Court said: