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    United States Court of Appeals Second Circuit.: No. 388. Docket 26897

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    The Chemical Transporter barge capsized while being towed by the tug Marie J. Turecamo. Chemical Transporter sued the tug for damages. The district court found the tug solely at fault. On appeal, the appellate court affirmed. It held that while the barge was initially at fault for a hole that allowed water into its rear tank, the tug was aware the barge was in trouble but still towed it at a near 90-degree angle, causing it to capsize. The court said that once the first vessel's fault becomes apparent, the second vessel must navigate to avoid injury, even if the first vessel was initially at fault.

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    United States Court of Appeals Second Circuit.: No. 388. Docket 26897

    Uploaded by

    Scribd Government Docs
    24 views4 pages
    The Chemical Transporter barge capsized while being towed by the tug Marie J. Turecamo. Chemical Transporter sued the tug for damages. The district court found the tug solely at fault. On appeal, the appellate court affirmed. It held that while the barge was initially at fault for a hole that allowed water into its rear tank, the tug was aware the barge was in trouble but still towed it at a near 90-degree angle, causing it to capsize. The court said that once the first vessel's fault becomes apparent, the second vessel must navigate to avoid injury, even if the first vessel was initially at fault.

    Original Description:

    Filed: 1961-05-29 Precedential Status: Precedential Citations: 290 F.2d 496 Docket: 26897_1

    Original Title

    Chemical Transporter, Inc., as Owner of the S.S. Chemical Transporter and the Steel Tank Barge Chemical Progress, Etc., Libelant-Appellee v. M. Turecamo, Inc., the Tug Marie J. Turecamo, Her Engines, Etc., and Turecamo Coastal & Harbor Towing Corp., 290 F.2d 496, 2d Cir. (1961)

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    The Chemical Transporter barge capsized while being towed by the tug Marie J. Turecamo. Chemical Transporter sued the tug for damages. The district court found the tug solely at fault. On appeal, the appellate court affirmed. It held that while the barge was initially at fault for a hole that allowed water into its rear tank, the tug was aware the barge was in trouble but still towed it at a near 90-degree angle, causing it to capsize. The court said that once the first vessel's fault becomes apparent, the second vessel must navigate to avoid injury, even if the first vessel was initially at fault.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    24 views4 pages

    United States Court of Appeals Second Circuit.: No. 388. Docket 26897

    Uploaded by

    Scribd Government Docs
    The Chemical Transporter barge capsized while being towed by the tug Marie J. Turecamo. Chemical Transporter sued the tug for damages. The district court found the tug solely at fault. On appeal, the appellate court affirmed. It held that while the barge was initially at fault for a hole that allowed water into its rear tank, the tug was aware the barge was in trouble but still towed it at a near 90-degree angle, causing it to capsize. The court said that once the first vessel's fault becomes apparent, the second vessel must navigate to avoid injury, even if the first vessel was initially at fault.

    Copyright:

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    of 4

    290 F.

    2d 496

    CHEMICAL TRANSPORTER, INC., as owner of THE S.S.


    CHEMICAL TRANSPORTER and THE Steel Tank Barge
    CHEMICAL PROGRESS, etc., Libelant-Appellee,
    v.
    M. TURECAMO, INC., THE Tug MARIE J. TURECAMO,
    her engines, etc., and Turecamo Coastal & Harbor Towing
    Corp., Respondents-Appellants.
    No. 388.
    Docket 26897.

    United States Court of Appeals Second Circuit.


    Argued May 12, 1961.
    Decided May 29, 1961.

    Henry C. Eidenbach, Hill Rivkins Middleton Louis & Warburton, New


    York City, for respondents-appellants; Thomas P. Pender, New York
    City, of counsel.
    Gerald J. McKernan, Macklin, Speer, Hanan & McKernan, New York
    City, for libelant-appellee; James M. Leonard, New York City, of counsel.
    Before SMITH and HAND, Circuit Judges, and WATKINS, District
    Judge.*
    HAND, Circuit Judge.

    This is an appeal by the respondents from a decree of Judge Clancy, holding the
    respondents' tug liable for the capsizing of the libellant's barge which she had in
    tow at the time. The barge was made of steel and was laden with "molten
    sulphur," a substance which will flow somewhat sluggishly as the barge rolls in
    the water. The sulphur filled four tanks each running athwartships, and the
    barge had also two fore and aft trimming tanks outside the cargo tanks. She
    was about 229 feet long, 42 feet wide and 15 feet in depth with both ends raked,
    and when loaded she drew 12 or 13 feet forward, and 13 and a half feet aft. Her

    cargo weighed about 2600 tons, stowed to give a list of six inches. Besides the
    six tanks mentioned she had forward and after peak tanks, both empty at the
    time in question, except for a hole in the after tank just above a starboard
    "skeg"; five feet below the deck, three by five inches in size. The capacity of
    the after peak was 420 tons of water, and at the time the barge capsized it had
    been filled with water coming through the hole, which the cargo had brought
    below the water line. The empty barge had been placed alongside of a tank
    steamer at 10 p. m. and was filled by 2:30 p. m. The tug then took the barge in
    tow on a hawser of about 30 or 40 feet and began to tow her from New Haven
    harbor to Everett, Mass. As she brought the barge into Long Island Sound the
    bridle to which the hawser was fastened broke and had to be renewed. This was
    at about 4:30 a. m. and the tug put a man on board who installed a new bridle
    and proceeded with a hawser of 300 feet, later lengthened to 1000 feet. At about
    6 a. m. it was plain that the barge was in trouble; her after stern was awash and
    her bow was too high. The tug came alongside and after some delay shortened
    the hawser to 300 feet, and began to pull the barge at a right angle. In about
    fifteen minutes i. e. at 6:15 the barge capsized. The tug maintained that
    the filling of the after peak through the hole had made the barge unseaworthy;
    the barge contended that the filling of the after peak did not make the barge
    unseaworthy although, after the tug became aware of it, it imposed upon her the
    duty of added care which did not permit towing her at a right angle.
    2

    The barge produced elaborate computations as to the effect upon her stability of
    water in her after peak, and put in testimony that, if the tug had pulled her
    around on a circle of wide radius she could have returned to New Haven or have
    been put aground in shallow water without serious damage. Judge Clancy heard
    most of the witnesses and was informed by experts of much experience how
    much water would have entered through the hole when the barge capsized. It
    was common ground that by 6 a. m. it was apparent to those on board the tug
    that the barge's stern was awash and that some action had to be taken. The
    barge's witnesses said that in such a predicament the one worst expedient was
    to pull on the barge's hawser at an angle of 90, although by a wide enough turn
    she could have been brought back safely. The tug's witnesses contradicted this
    reasoning. They thought that as the after peak filled with water and brought the
    barge's after deck under water, "that destroys the vessel's stability."

    Obviously the subject matter was one as to which we have no personal opinion
    but must be guided by those who had. Cobb, the tug's master, and Moebus, her
    second mate, both agree that the tug did pull the barge, but on a slow swing,
    which might have changed her course by 90, but that this was wholly different
    from towing at full speed at the same angle. Judge Clancy found that the master
    "shortened the hawser to three hundred feet and ran north at or almost at a right

    angle to the barge. When the traction was applied to the hawser as it extended,
    the barge capsized at about 6:15 o'clock." This finding it would be wholly
    improper for us to set aside as "clearly erroneous," supported as it is by the
    testimony of Nielson, who said he was on deck at the time.
    4

    It is indeed true that the barge was at fault as well as the tug, but the tug's fault
    occurred after the consequence of the barge's fault had become apparent. That
    is to say though we were to concede that the tug did not know of the existence
    of the hole at any time before the barge capsized, it had become altogether
    aware that for some reason the barge was in serious trouble and needed
    immediate attention. So far as concerned the tug's duty, it was of no importance
    what the cause of this was; she was bound to adapt her navigation to the
    emergency so presented to her, even though it was not of her own doing.

    The tug was therefore guilty of negligence and was liable; and the question
    arises whether the case does not fall within the ordinary doctrine that damages
    are divided when both parties are at fault. Neither party has raised the point in
    the case at bar, but we will pass on it now because the answer is clear, at any
    rate in this court. In at least four decisions we have passed upon carelessness of
    a tug that caused damage to another vessel, which was herself also guilty of an
    earlier fault, contributing to the result; and we have held that, if the fault of the
    earlier vessel was obvious to the tug in time for the tug to accommodate her
    own navigation to the emergency, the tug alone was liable. Henry Du Bois
    Sons Co. v. Pennsylvania R. Co., 2 Cir., 47 F.2d 172; The Perseverance, 2 Cir.,
    63 F.2d 788; The Sanday, 2 Cir., 122 F.2d 325; Sternberg Dredging Co. v.
    Moran Towing & Transp. Co., 2 Cir., 196 F.2d 1002. In The Cornelius
    Vanderbilt, 2 Cir., 120 F.2d 766, we assimilated this situation to that of the "last
    clear chance," and, indeed, that is what it is. When the fault of the first vessel
    appears or should be evident to the second early enough for the second to
    escape injury to the first vessel and herself, she must do so, if no more is
    required than a change in the navigation of the second vessel which involves no
    further burden than inconvenience. We can see no reason why because the first
    vessel has imposed so trifling a burden upon the second, she should be punished
    by the loss of relief for the injuries which the second has caused her. We do not
    mean to question the validity of dividing the damages when the faults are
    simultaneous, or substantially so, but cases such as that at bar demand a
    different treatment.

    Decree affirmed.

    Notes:

    Notes:
    *

    United States District Judge for the Northern and Southern Districts of West
    Virginia, sitting by designation

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