# Sabine Towing Co. v. Brennan > Court of Appeals for the Fifth Circuit · July 17, 1934 · 72 F.2d 490 URL: https://www.frixlaw.com/law-library/cases/9651505 ## Case - **Full name:** SABINE TOWING CO., Inc., v. BRENNAN Et Al. - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** July 17, 1934 - **Citations:** 72 F.2d 490; 1934 A.M.C. 1122; 1934 U.S. App. LEXIS 4600 - **Precedential status:** Published - **Opinion:** Dissent by Foster - **Judges:** Foster, Bryan, Hutcheson - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651505 ## Opinion text FOSTER, Circuit Judge (dissenting). The most important question presented for decision in this case is whether a shipowner acting in good faith is entitled to rely upon a certificate of inspection issued under authority of the United States as showing' prima facie that his vessel is seaworthy. The majority opinion apparently is based upon the theory that an official inspection certificate is entitled to no weight at all. The navigation laws of the United States (46 USCA § 361 et seq.) require every steam vessel to be inspected once a year by local inspectors, who shall satisfy themselves that she is of a structure suitable to the service for which she is employed and may be navigated with safety to life. Section 391. If so satisfied, they issue a certificate under oath which must be posted in a conspicuous place on the vessel for the information of passengers and crew. Section 400. If an inspector willfully certifies falsely, he is subject to fine and imprisonment. Section 403'. Local inspectors are appointed by the Secretary of Commerce. They are required by law to be persons of good character and qualified to perform their duties from their practical knowledge of shipbuilding and navigation. Section 384. There is no provision of law requiring local inspectors to be naval architects or of any other class of experts. If Congress had deemed that essential to safety of navigation, no doubt the law would have so required. As the majority opinion does not review all the facts I consider pertinent I will briefly restate them. The Coney was a tug of typical model of 153 gross tons, registered tonnage. According to Hoel, the expert who supervised her inclining test, she was of 325 tons displacement, could be safely loaded to a mean depth of 19 feet 5 inches, and would then have 13 *495 inches freeboard. Other evidence in the record fixes a safe freeboard at about 11 inches. Freeboard is the distance from the water* to the nearest point of the top of the weather deck, about amidships. Petitioner, the Sabine Towing Company, is engaged in the business of towage at Port Arthur, Tex. It owns a fleet of seven ocean and five harbor tugs, nine ocean barges, fourteen harbor barges, and one or two steamships. The Coney was purchased at Tampa, Fla., in 3929, for ifSO.OOO1. Before purchasing her the managing officers of petitioner consulted Bads’ Marine Journal, a standard maritime publication, as to her history. She was hauled out and thoroughly inspected before her purchase, and after that was navigated by a crew under her own power from Tampa to Port Arthur. At the time of her purchase she had on board an inspection certificate issued by the local inspectors at Tampa expiring June 26, 3930, which permitted her to navigate the waters of the Atlantic Coast, Gulf of Mexico, Caribbean Sea and connecting waters. This certificate is in the record and is erroneously interpreted in the majority opinion to be merely permission to navigate coastwise waters, perhaps because she was authorized to navigate inland waters with a single crew, not to be on duty more than 13 hours in any 24 hours. With a. full crew she was authorized to navigate any* where in the waters named, say as far as the Panama Canal. No exceptions were noted on the certificate, and it contained no memoranda to indicate that she had ever been submitted to an inclining tost. The managing officers of petitioner did not know she had ever been submitted to an inclining test and made no inquiry along those lines. She had bn board a government publication which contained a list of ships that had been subjected to an inclining test but which gave no information regarding the result of the tests. Conceding that petitioner was charged with knowledge that the Coney had been subjected to an inclining test, I consider that nevertheless petitioner was entitled to rely upon the certificate of inspection on board as showing prima facie that the tug was seaworthy when it was issued. Had petitioner’s officers examined the records of the United States Inspection Service at Tampa and in Washington, D. C., they would have discovered that she was given the inclining test in 19'20, had passed it successfully as to stability but was found to be deficient in reserve buoyancy. Her after fuel tank was ordered to be cut down 24 inches. There is a conflict of testimony as to whether the tank was in fact eut down 24 inches as ordered or only 12 inches, but it is certain the order was complied with to the satisfaction of the local inspectors and she was thereafter passed for ocean navigation. There was nothing in the government records to impeach the inspection certificate. After her purchase by petitioner the Coney was overhauled and extensively repaired under the direct supervision of Guy, petitioner’s port engineer. Guy knew nothing about an inclining test, but be had been in charge of repairs to petitioner’s entire fleet for 7 years and it had not lost a vessel before the Coney. Guy was licensed as chief engineer of ocean going vessels, had many years practical experience at sea and as an engineer, and had at times acted as master of small boats. I consider tliere was no negligence in having him superintend the work. It is not questioned that the repairs made the ship as seaworthy as possible unless her reserve buoyancy was seriously impaired by the additional weight added through the instalment of the' new equipment in place of the old. This added some 13,000' pounds to the dead weight she carried. The local inspectors noticed the progress of the work from time to time until it was completed. She made a trial trip around the harbor and a certificate of inspection authorizing her to engage in ocean navigation was issued. She was also inspected by an inspector representing the underwriters and a policy in the amount of $30,000 was issued. Thereafter she made two trips through the Gulf from Port Arthur to Galveston, Tex., hauling barges loaded with oil. Guy made one of these trips as second engineer to observe how the boat performed. lie was entirely satisfied. On this trip she encountered some heavy weather. The tug left port on January 2.7, 3930, towing a barge loaded with gasoline, destined for Pensacola, Fla. This barge was strongly built, of the whale back type and of 3,500 tons, registered tonnage. The tug had on board the same crew that had navigated her on the two trips to Galveston. She crossed the bar at about 9:45 o’clock in the morning-. The weather was somewhat foggy but the sea was calm and only a light breeze was blowing. About 2 o’clock that afternoon she encountered a strong wind in the Gulf, which steadily increased in force. About 10 o’clock that night she foundered and all hands on board were lost. After the tug foundered the barge dropped anchor and successfully rode out the storm. It is reasonably certain the tug did not capsize as divers found her resting on an even keel at the bottom in some 42 *496 feet of water. This would, indicate she was not lost because of instability. The majority holding is that petitioner was negligent in adding the additional weight of equipment and that in consequence the tug did not have sufficient freeboard. A number of witnesses, experienced seamen, testified that the tug in the water appeared to be about the same as other tugs of the same size and character, and there is evidence that she had sufficient freeboard. The majority opinion disregards all the other testimony and is based on an excerpt from the testimony of Barrios, the captain of the barge, given before the United States Board of Inspectors investigating the disaster. Barrios testified that the tug looked to him like a good seaworthy tug and he had heard no one complaining about her condition. The following was brought out in the course of his testimony: “Q. How much freeboard had she? A. The top guard was on top of the water. “Q. How much? A. About one-half a foot.” I consider this testimony entirely consistent with that of the other witnesses. The guard rail on a tug is a timber bolted fore and aft to her side to serve as a fender. On a tug the size of the Coney unless it were at least 4 inches thick it would not be strong enough to be of any service. It might have been 5 or 6 inches thick. It is obvious that the top of this guard rail would not be placed above the deck of the vessel. Noel testified that on the Coney it was placed “a couple of inches below the deck.” If the bottom of this guard rail were 6 inches above the water the tug had freeboard of at least 12 to 13 inches, which would be sufficient according to all the evidence in the record. It is evident that the experienced seaman who superintended the repairs of the tug and the local inspectors regarded the addition of say 6% tons of weight to her equipment as negligible. According to Noel’s testimony, 7.34 tons added weight would put her down in the water 2 inches. On this basis her added depth was about 1% inches. There is no exact mathematical formula for determining the safe load line and freeboard of a vessel. Much depends upon the opinion of experienced seamen in determining these factors. See discussion by Walton in “Know Your Own Ship” p. 330 et seq. The load line of a vessel varies from time to time according to her cargo, and whether she is in fresh, brackish, or salt water. The freeboard of the Coney must have appreciably increased with the consumption of fuel over the period of 12 hours before she foundered. I am convinced that the additional weight of equipment placed upon the tug did not materially affect her reserve buoyancy. The majority holding is that the tug was lost in weather she might have been expeeted to encounter. There is uneontradicted evidence in the record, from masters of vessels who were in the vicinity, that at the time the tug was lost the wind was blowing at a rate of from 60 to 65 miles an hour, with occasional gusts of greater intensity. A wind of 75 miles an hour is rated a hurricane. The puffs might have easily been of that force. Again all other testimony is disregarded by the majority, and the conclusion that the weather was such as ordinarily to be expeeted is based upon the testimony of Barrios, the master of the barge. Again I am forced to disagree with the conclusion of the majority from my construction of Barrios’ testimony. It is apparent that Barrios was illiterate. Under careful leading on cross-examination he testified that he frequently encountered bad weather and expeeted to encounter it every trip. But he repeatedly stated it never broke anything on his boat, and that night it was “bad, bad weather.” It is undisputed that the force of the gale broke every window in the pilot house on the barge, which was located some 15 feet above the water line. Several planks-were carried away from the pilot house, and one-half of the bridge running forward from it was also carried away. The extreme severity of the weather is conclusively shown by the fact that the barge was unable to launch its lifeboat to go to the rescue of the crew of the tug. The barge was deeply loaded which made her steadier, brought her boat deck closer to the water, and made the launching of her lifeboat easier than if she were light. The fact that the barge rode out the gale at anchor is not evidence that the weather was ordinary. She was more than twenty times the size of the tug, and the very reason for anchoring a boat in a storm is because she is safer than if under way. The tug successfully weathered the storm for some eight hours. It might well have been that laboring in the storm caused her to spring a leak; or that a door in the house was carelessly opened, permitting a wave to inundate the hold; or that it was an error of navigation on the part of her master not to turn back or anchor. The bodies of the crew picked up had on life preservers, showing that the foundering was not sudden and unanticipated. The circumstances of the case in my opinion do not show that the boat was lost in ordinary weather through a defect of construction. On the contrary I am inclined to believe that the storm was severe *497 enough to have caused a perfectly seaworthy tug of her size to founder. The management of ships is a matter of practical business. Vessel owners are not required to employ experts and may rely upon men of practical experience in the making of repairs and alterations. 1 think petitioner when purchasing the Coney was entitled to rely upon the certificate of inspection as prima facie evidence that she was then seaworthy for the purpose of ocean navigation. Petitioner was not required in the exercise of reasonable care to make inquiry beyond the certificate. Had its managing officers done so they would have found nothing in the records of the inspection service that would have affected the certificate of inspection in any way. It was not incumbent upon petitioner to require an inclining test after they liad completed their repairs to the Coney. The government inspectors had authority to order it if they thought it necessary. The inspectors wore charged with knowledge of all the facts relating to the boat’s history. Petitioner was not guilty of concealment or fraud and acted in good faith throughout. Petitioner was also entitled to rely upon the last certificate issued to the boat unless the defect was apparent ,to an unskilled person. The Annie Faxon (C. C. A.) 75 F. 312 . If the Coney was unseaworthy by reason of deficiency in buoyancy, that fact was not ascertainable by ordinary inspection. It was the duty of petitioner to the crew to use reasonable care to furnish a seaworthy ship, but there was no absolute warranty of seaworthiness and. it was not an insurer of their lives. It is perfectly plain that every person of nautical experience, who had anything to do with the Coney after she became the property of petitioner, believed her to he seaworthy. Members of the crew who were unfortunately lost had been on her sufficiently long to become familiar with her behavior. It is unbelievable that they would have continued on her if they had had the slightest suspicion that it was dangerous to their lives to do so. On the whole case I am convinced that petitioner was not guilty of negligence that would bar the relief of limitation of liability. Por these reasons I respectfully dissent. On Petition for liehearing. PER CURIAM. As neither of the judges who concurred in the decision of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be, and the same hereby is, denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651505. Public record. Not legal advice.