How hard can it be to pull a floating object on water with a powered boat? Many towing companies have learned the hard way that it is not as easy as it might appear.
A Towing Company’s Liability Basics
A towing company is not strictly liable for the loss of or damage to its tow. Its liability depends on whether it exercised reasonable care under the circumstances. And of course, the circumstances of each tow are different. What is reasonable one day may not be reasonable the next day.
A towing company does not have a duty to conduct a comprehensive and detailed inspection of the tow before departing. It may rely on the obligation of the tow owner to tender a seaworthy tow, namely, one that is structurally sound and in good repair to withstand the expected rigors of the voyage. However, the towing company does have a duty to visually assess the basic characteristics of the tow to determine if it is suitable for the trip given the anticipated conditions. It is also charged with knowledge of obvious unseaworthy conditions. It must monitor the tow reasonably closely during the voyage but is not required to provide constant surveillance.
The basic rule is relatively simple. A towing company must plan a safe route, furnish a towing vessel with a competent crew and functioning equipment, and engage in reasonable conduct. Nonetheless, the interpretation of that simple rule has been difficult for some towing companies.
Jockeying for Position on Newtown Creek
Russell Dry Docks, Inc. v. Steamtugs W. A. Forman and Wonder, 1931 AMC 1796 (E.D.N.Y.1931) involved two tugs, each towing a vessel from the mouth to the head of Newtown Creek, an estuary between Brooklyn and Queens in New York. On the way, they had to pass under a bridge. The Wonder and its tow went through the starboard draw. The W. A. Forman and its tow went through the port draw, and drew ahead of the Wonder and its tow. The master of the Wonder did not want the W. A. Forman and its tow to get ahead. As the W. A. Forman pulled ahead, the master of the Wonder brought the port bow of the Wonder’s tow against the W. A. Forman’s tow and attempted to push her. As a result of that maneuver, the Wonder put its own tow against an abutment and inflicted damage on it. The Wonder then abandoned its tow and headed up Newtown Creek to overtake the W. A. Forman and its tow. The Wonder’s master ordered a deckhand to put a line on the W. A. Forman and then told the W. A. Forman’s master to go back on his engines. He also told the W. A. Forman’s master that he did not belong on Newtown Creek and would be driven out.
The district court found the Wonder’s master had been “moved by some personal feelings” when he made a deliberate attempt to prevent the W. A. Forman and her tow from getting ahead of the Wonder and her tow, and imposed full liability on the Wonder’s owner for the damage inflicted on its tow.
Competent Crew and Operative Equipment Lacking
Chesapeake Bay Bridge & Tunnel District v. O. S. Prince, et al., 1968 AMC 1427 (E.D. VA 1968) involved a barge that became adrift from the towing tug Prince and struck concrete pilings supporting the Chesapeake Bay Bridge Tunnel complex, inflicting damage on herself and the pilings. The ill-fated voyage began at Curtis Bay, Maryland where the Prince picked up an unmanned barge laden with sulphuric acid, for a tow to Norfolk, Virginia. The crew of the Prince consisted of an unlicensed master, an unlicensed mate, two engineers, and a deckhand with only three weeks of experience who suffered from seasickness. The towing equipment on the tug was a 1,200-foot long 7-inch inch nylon hawser and a stern capstan which the tug’s owner knew had been inoperative for several weeks.
During the evening after the flotilla departed, small craft warnings effective at 9:00 PM had been broadcast with north to northwest winds increasing to 20-30 knots. At 9:30 the tug master reported to the tug’s owner that all was in order. Two hours later, the weather broke sharply and the wind increased, causing the tug and barge to surge together and necessitating the tug to move to the other side of the barge. The wind continued to increase and the tug master decided to put the barge astern on a hawser. The mate boarded the barge but was only able to make the towing bridle fast to the bitt on the port bow of the barge. While aboard the barge, the mate did not consider dropping the barge’s anchor because neither he nor the tug’s master had been instructed how to use the barge’s anchor, and no one else aboard the tug knew how to drop the anchor.
A few hours later, when the tug was unable to make headway with the barge, a call was made to the Coast Guard. A small cutter and a Navy tug responded but were unable to provide effective assistance. A larger cutter, Mohican, was sent to the scene. At the time of its arrival, the tug master estimated the winds at 75 mph and the seas at 30 feet.
A plan was made under which the Mohican would take over the tow. A messenger line would be passed to the tug and the bitter end of the tug’s nylon hawser would be brought back to the Mohican. After the end of the hawser was aboard the Mohican and secured, the hawser aboard the tug would be released. After one unsuccessful attempt, a heaving line was passed from the Mohican to the tug. Without hauling in the heaving line and retrieving the messenger line, the tug’s master tied the heaving line to the end of the towing hawser and released the towing hawser from the tug’s towing bitt. The heaving line snapped before the towing hawser could be brought aboard the Mohican, and the barge became adrift. The Mohican managed to “lasso” a bitt on the stern of the barge. However, when it could not stem the drift of the barge as it approached the concrete pilings of the Chesapeake Bay Bridge Tunnel complex, the line was cast off to prevent the cutter from being dragged into the pilings.
The district court entered judgment against the tug and her owner finding multiple bases for liability, including the lack of an operative capstan, the negligence of the tug’s master when attempting to transfer the barge to the Mohican, and the entire tug crew’s lack of knowledge about the barge’s anchor.
Weather Warning Ignored
DiMillo v. Sheepscot Pilots, Inc. 870 F.2d 746 (1st Cir. 1989) involved the tow of a barge that DiMillo wanted to convert into a floating hotel in Portland, Maine. The barge was in Detroit and at considerable expense, DiMillo arranged for a two-part tow. One company would tow the barge from Detroit to Montreal, and Sheepscot Pilots [SPI] would tow it from Montreal to Portland.
The tow to Montreal was successful. The SPI crew inspected the barge in Montreal and found it to be in good condition. The tow began without incident and arrived safely in Port Hawkesbury, Nova Scotia. A weather advisory was broadcast the following morning noting “Winds light increasing to southeast 15 knots late this morning and to southeast 15-25 this evening. Winds veering to southwesterly 20 to 30 Wednesday morning and to westerly 15-25 Wednesday afternoon.”
Even though he later admitted he would not have departed if the forecast was for winds from the south, southeast or southwest up to 25 knots, and even though the mate expressed concern about departing in light of the forecast, the SPI tug master ordered the tow to depart Port Hawkesbury. The weather forecast had been accurate. The weather then worsened. Seas reached 17-20 feet and winds exceeded 30 knots. The barge suffered severe pounding in the seas. Eventually, the SPI tug master ordered the tow back to Port Hawkesbury.
When the weather had calmed, the tow resumed. Two days after the tow resumed, the frontmost rake section of the bow collapsed, leaving a gaping hole in the barge’s bow. With jury-rigging, the tow was completed but the barge was badly damaged.
The district court held SPI liable for the damage suffered by the barge. The court recognized that a tug master has considerable discretion in the tug’s operation. But that discretion is not unbridled. Rather, a tug master must exercise “reasonable care and maritime skill with respect to the vessel in tow.” Among other things, the court held a tug master has a duty to monitor and take weather conditions into account. It found the SPI tug master departed Port Hawkesbury “in utter disregard of” the forecast weather and then stayed too long in worsening seas before turning back, which it characterized as “negligence of a rather egregious sort.”
A towing company is not strictly liable for damage to or the loss of its tow. However, it will be held liable if it fails to provide a competent crew and seaworthy tug or fails to exercise reasonable care for the tow under the existing circumstances.
Marilyn Raia is of counsel in the San Francisco office of Bullivant Houser Bailey. She has been certified as a specialist in admiralty-maritime law by the State Bar of California. She may be reached at email@example.com.