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TIDEWATER GRAIN CO. v. S.S. POINT MANATEE

October 5, 1984

TIDEWATER GRAIN COMPANY
v.
THE S.S. POINT MANATEE, her engines, boilers, equipment, etc. and THE POINT SHIPPING CORP. and TUG CAVALIER, her engines and equipment, etc. and TUG CAPE MAY, her engines and equipment, etc. and CURTIS BAY TOWING COMPANY OF PENNSYLVANIA


VanArtsdalen, J.


The opinion of the court was delivered by: VANARTSDALEN

VanARTSDALEN, J.

MEMORANDUM OPINION AND ORDER

 In this case Tidewater Grain Company (Tidewater) alleges that the S.S. POINT MANATEE while under tow by tugs owned and operated by the Curtis Bay Towing Company (Curtis Bay) allided with the Tidewater dock. Tidewater seeks compensation for damages to the dock in this action against Curtis Bay and the owners of the S.S. POINT MANATEE, the Point Shipping Corporation.

 At the time of the allision the POINT MANATEE was piloted by an employee of Curtis Bay, Jerome Mamo. Curtis Bay and Point Shipping have filed cross motions for partial summary judgment on the issue of which party is liable for any negligence that may have been committed by pilot Mamo. Curtis Bay argues that pilot Mamo was the borrowed servant of Point Shipping at the time of the accident and that Point Shipping, therefore, is liable for any negligence of pilot Mamo as his employer. Point Shipping contends that under its contract with Curtis Bay, or alternatively by operation of law, pilot Mamo remained the employee of Curtis Bay and that Curtis Bay, not Point Shipping, is liable for any damages caused by pilot Mamo's negligence.

 On January 3, 1983, the POINT MANATEE was being towed from Camden to Girard Point by tugs owned and operated by Curtis Bay. The POINT MANATEE was not under its own propulsion, and its own propulsion was not available for use. Certain of her navigation equipment, however, was available and was being used in piloting the ship. In addition to pilot Mamo, two representatives of the owners of the POINT MANATEE, a small shore crew and the ship's master, Dana Dillon, were aboard during the maneuver.

 The first question to consider is whether the towage contract between Point Shipping and Curtis Bay determines which party is liable for damages caused by negligence of the pilot. The contract contains a pilotage clause providing that when a tug employee pilots a vessel under its own propulsion or with its own propulsion available the pilot becomes the borrowed servant of the vessel's owners and that they, not the towing company, are liable for any negligence of the pilot.*

 Point Shipping argues that the negative inference of a contract disclaiming liability for negligent pilotage of a ship under its own power is that the towing company is liable for negligent navigation of a ship propelled only by the power of tugs. Ambiguities in the contract should be read in favor of Point Shipping and against Curtis Bay who authored the contract. Melso v. Texaco, Inc., 532 F. Supp. 1280, 1297 (E.D. Pa.), aff'd, 696 F.2d 983 (3d Cir. 1982). The contract language, however, is not ambiguous. It covers only situations in which the vessel being navigated is "making use of or has available [its] own propelling power." Neither party contends that the POINT MANATEE was under its own propelling power or that she had that power available. Nor has any evidence been offered to establish the understanding of the parties that the contract was to bear the negative inference propounded by Point Shipping. I therefore find that the contract does not govern the relative liability of Curtis Bay and Point Shipping for any negligence that might have been committed by pilot Mamo. Liability must be determined in accordance with the common law borrowed servant doctrine.

 A person who is employed generally by one employer but is performing a particular service for another employer under the control and direction of the temporary employer becomes the borrowed servant of that temporary employer. Standard Oil Co. v. Anderson, 212 U.S. 215, 220-22, 53 L. Ed. 480, 29 S. Ct. 252 (1909). Under this borrowed servant doctrine, the temporary employer is vicariously liable for negligence of the borrowed servant. Id. In accordance with general principles of respondeat superior, the bases for imposing liability are: (1) that the employee was performing the work of the temporary employer; and (2) that the temporary employer had the right and duty to supervise and control the employee in the performance of the work. These two factors are to be considered in determining the issue whether a person is a borrowed servant. Id.; Amerada Hess Corp. v. Ogden Saguenay Transport, Inc., 1980 A.M.C. 900 (M.D. Fla. 1979).

 The applicability of the borrowed servant doctrine to towing company employees is not a novel issue. In Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 77 L. Ed. 311, 53 S. Ct. 135 (1932), the Supreme Court enforced the provision in a contract that a pilot provided by a towing company aboard a ship under its own propulsion would become the borrowed servant of the ship's owners. The Supreme Court has limited the applicability of the borrowed servant doctrine to tugboat employees, however, by holding that a towing company could not avoid liability for the negligence of its employees by contractually disclaiming liability or through the fiction of the borrowed servant doctrine. Bisso v. Inland Waterways Corp., 349 U.S. 85, 99 L. Ed. 911, 75 S. Ct. 629 (1955). The Court in Bisso distinguished Sun Oil Co., noting that a towing company was not in control of its employee piloting a vessel under its own power. Bisso, 349 U.S. at 92-94.

 It is well established that a tug company employee piloting a dead ship (a ship having no propelling power of its own available) remains the employee of the tug company and does not become the borrowed servant of the owners of the dead ship. Sturgis v. Boyer, 65 U.S. (24 How.) 110, 16 L. Ed. 591 (1861); Compania Maritime Samsoc Limitada v. Moran Towing & Transp. Co., 197 F.2d 607, 1952 A.M.C. 1291, 1294 (2d Cir. 1952); Walker v. Tug Diane, 350 F. Supp. 1388 (D.V.I. 1972).

 Curtis Bay contends, however, that in the present case because the master of the ship was on board during the towing, because some of the navigation equipment aboard the POINT MANATEE was used and because the shore crew of the POINT MANATEE assisted in the towing, the owners of the POINT MANATEE had sufficient control and direction over the navigation to make pilot Mamo their borrowed servant.

 It is well established that the ship's master has the legal authority to remove the pilot from control of the ship. The China, 74 U.S. (7 Wall.) 53, 67, 19 L. Ed. 67 (1868). It is equally clear that the pilot, and not the master, controls and directs the navigation of the ship. The Oregon, 158 U.S. 186, 194, 39 L. Ed. 943, 15 S. Ct. 804 (1895); The Framlington Court, 69 F.2d 300, 306 (5th Cir. 1934).

 In cases in which the ship with a borrowed pilot was under its own propulsion, courts have found that the master had sufficient control to warrant the shipowner's liability for negligence of the pilot. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 77 L. Ed. 311, 53 S. Ct. 135 (1932); Amerada Hess Corp. v. Ogden Saguenay Transport, Inc., 1980 A.M.C. 900 (M.D. Fla. 1979); see also The China, 74 U.S. (7 Wall.) 53, 19 L. Ed. 67 (1868) (ship compelled to take locally licensed pilot was liable for pilot's negligence). But even in such situations where a towing company pilot navigates a ship under its own propulsion with the ship's master aboard, other courts have not hesitated to find that the pilot was in control of navigation and that the shipowner was not liable for negligence of the pilot. Publicker Indus. v. Tugboat Neptune Co., 171 F.2d 48, 50 (3d Cir. 1948); cf. Tankers & Tramps Corp. v. Tugs Jane McAllister & Margaret M. McAllister, 358 F.2d 896 (2d Cir. 1966) (tug owner, not shipowner, liable for negligence of pilot where contract failed to provide that pilot would be borrowed servant).


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