# Petition for Writ of Certiorari — Gray v. Johansson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0134%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 368 U.S. 835 ## Text uTice-supreme Vour., U.S. FILED JUL 31 1961 ‘RE Cm pry Ec no_2.7 7% IN THE Supreme Court of the United States October Term, 1961 G. & H. TOWING COMPANY, Petitioner VERSUS EDWIN E. JOHANSSON, KANSAS CITY BRIDGE CO., MERRITT-CHAPMAN & SCOTT CORP., AND PELICAN ISLAND DEVELOPMENT CORP., Respondents PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Fifth Circuit ROYSTON, RAYZOR & COOK Cotton Exchange Building Galveston, Texas ROBERT EIKEL 1910 Tennessee Building ROBERT EIKEL, Houston 2, Texas Of Counsel Attorneys for Petitioner Alpbs Lew Brief Co., 402 M & M Bidg., Houston 2 a SUBJECT INDEX OPINIONS BELOW JURISDICTION s THE QUESTIONS PRESENTED FOR REVIEW STATEMENT REASONS FOR GRANTING THE WRIT ARGUMENT CONCLUSION 4 APPENDICES I. Opinion of Court of Appeals II. Opinion of District Court II]. Judgment of the Court of Appeals IV. Pertinent Provisions of the Contract for Tug Hire V. The Entire Contract for Tug Hire PAGE LIST OF AUTHORITIES CASES PAGE Bisso v. Inland Waterways Corporation, 1955, 349 U.S. 85 a 3, 12, 13, 15, 19, 22 Charente Steamship Co. v. United States, 5 Cir., 1926, 12 F.2d 412 . 14, 26 Dampskibsselskabet Atalanta A/S v. United States, 5 Cir., 31 F.2d 961, 1929 A.M.C. 855 4, 14, 26 Dougall v. Spokane, P. & S. Ry. Co., 9 Cir., 207 F.2d 843, cert.den., 347 U.S. 944. 29 Fries v. United States, W.D. Ky., 76 F.Supp. 36, aff. 170 F.2d 726, cert.den., 336 U.S. 954 29 Gray, et al. v. Johansson, et al., 287 F.2d 852 2 Guy v. Donald, 203 U.S. 399 4, 14, 26 Homer Ramsdell Transportation Co. v. La Compagnie Generale Transatlantique, 182 U.S. 406 . 26 Luria Bros. & Co., Inc. v. Eastern —— Co., 2 Cir., 1937, 89 F.2d 900... ; 18 McAllister v. United States, 348 US. 19 25 Moran Towing & Transp. Co. v. Nav. Lib. Triestina, 2 Cir., 1937, 92 F.2d 37, 1937 A.M.C. 981, cert. den. 302 U.S. 744 24 Pennsylvania Railroad v. The Beatrice, 2 Cir., 1960, 275 I te ee er Se eva w pane cou ; 3, 13, 21, 24 Sherlock v. Alling, 93 US. 99 ° 14, 26 Standard Oil Co. v. Anderson, 212 US. 215 4,14, 29 States Marine Corporation of Delaware v. Victory Carriers, Inc., 9 Cir., 1959, 272 F.2d 463 . 3, 13, 21, 24 Sun Oil Co. v. Dalzell — Co., 287 U.S. 291 24, 3, 4, 12, 13, 14, 15, 19, 23, 28 The China, 7 Wall. 53. 26 The Etona, S.D. N.Y., 64 F. 880, aff. 2 Cir., 71 F. 895 18 The Oregon, 158 U.S. 186 . 26 United States v. Chris Nielson, 349 U.S. 129 21, 3,18, 15, 22 UNITED STATES STATUTES 28 U.S.C. 1254(1) 2 FRERTS IN THE Supreme Court of the Anited States October Term, 1961 G. & H. TOWING COMPANY, Pefitioner VERSUS _ EDWIN E. JOHANSSON, KAI-SAS CITY BRIDGE CO., MERRITT-CHAPMAN & SCOTT CORP., AND PELICAN ISLAND DEVELOPMENT CORP., Respondents -PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Fifth Circuit G. & H. Towing Company, respondent, prays that a writ of certiorari issue to review the judgment of the , United States Court of Appeals for the Fifth Circuit, affirming the interlocutory decree of the United States District Court for the Southern District of Texas in favor of. the libellants-Edwin E. Johansson, Kansas City Bridge Co., Merritt-Chapman & Scott Corp., and Pelican Island Development Corp, and remanding the cause for proof of damages. , - OPINIONS BELOW The opinion of the Court of Appeals is reported at 287 F. 2d 852 and appears infra Appendix, p. 33, et seq. The opinion is reported also at 1961 A.M.C. 793, but in- accurately in its original version, which was iater corrected - by order of the Court of March 27, 1961. The unreported opinion of the United States District Court, its Findings of Fact and Conclusions of Law, is printed infra Appendix, p. 39, et seq., and at R. 874-887. JURISDICTION The judgment of the Court of Appeals for the Fifth Circuit was entered on March 15, 1961, and copy thereot is printed infra Appendix, p. 51. Thereafter petitioner presented to the Court of Appeals petition for rehearing, which was denied without further opinion on May 3, 1961. Jurisdiction of this Court is invoked under the Act of June 25, 1948, c. 646, 62 Stat. 928, 28°U.S.C., Sec. 1254 (1). THE QUESTIONS PRESENTED FOR REVIEW This petition presents the following questions: I. Whether the “pilotage clause” generally agreed upon be- tween ships and their towing tugs in American harbor movements is lawful, particularly under these circum- stances: An ocean-going vessel with her master in command upon her bridge and with a full crew at their stations but without motive power, was being shifted by tugs within the confines of Galveston harbor. A licensed pilot, but an 3 employee of the company which was the charterer and operator of the tugs, was on the bridge as “dead-ship” pilot. On the advice of this pilot, the master ordered the ship’s crew to drop the vessel’s anchor, clearly an act ot pilotage or vessel management and not of towage. The anchor struck a submerged pipe line. The tugs were in no way involved and were absolved from any liability. The contract between the vessel’s operator and the tug owner contained no words attempting to relieve the tugs or those connected with them for responsibility for negli- gent fowage, but it did provide that any pilot upon a towed vessel was the servant of the vessel, and that neither the tugs nor their owners or agents or charterers would be liable for any acts of the pilot. Did your Honors hold in Bisso v. Inland Waterways Corporation, 1955, 349 U. S. 85, that such a pilotage clause was invalid, as the Courts below have held, or is such a pilotage clause valid particularly where the negligence claimed is an act of pilotage, as your Honors have held in Sun Oil Company v. Dalzell Towing Co., 287 U. S. 291, and in United States v. Chris Nielson, 349 U. S. 129, de- cided on the same day as Bisso, and as has also since been held in States Marine Corporation of Delaware v. Victory Carriers, Inc., 9 Cir., 1959, 272 F. 2d 463, and Pennsylvania Railroad v. The Beatrice, 2 Cir., 1960, 275 F. 2d 209, and in all other decisions where a pilotage clause similar to the one in the contract here was at issue? II. The operators of an ocean-going vessel desire to shift her from one harbor berth to another. Although her full crew is aboard, the vessel has no motive power, her engines undergoing routine repairs. The operators have a contract 4 for tugs with one towing company, but another company actually operates the tugs which on request are sent to shift the vessel. By the contract the first towing company also offers to provide a pilot for such a shift, but it has no pilot in its employ and the tug operating company sends to act as pilot a regular salaried employee, its port captain, who is licensed by the United States Government to pilot vessels in these waters, The pilotage fee charged the vessel is paid to the contracting towing company, which pays part thereof to the tug operating company, which in turn pays part to the pilot. With the pilot on the bridge during the shift are the vessel’s master and third officer, and when told by the pilot it was time to do so, the master has the crew drop anchor. A pipe line is damaged by the anchor. The towing tugs are held in no way to‘ blame. The contracting towing com- pany, as owner of one of these tugs, is held not liable. Is the tugboat operating company whose regular em- ployee he is responsible as his employer for any negligence of the pilot in the dropping of the anchor, as the Court below holds; or is the pilot an independent contractor for whuse acts such company is not responsible while he acts as pilot, in accordance with the holding of Guy v. Donald, 203 U.S. 399, and the holding of the Court below in Damp- shibsselskabet Atalanta A/S v. United States, § Cir., 31 F. 2d 961, 1929 A.M.C. 855, and a borrowed servant of the ship or contracting towing company, in accordance with the rule of Sun Oil Compapny v. Dalzell Towing Co., 287 U.S. 291, and Standard Oil Co. v. Anderson, 212 U.S. 215? STATEMENT This is a suit for damages to one of the two submerged pipe lines caused by its being struck by an anchor dropped 5 from a vessel being turned to enter a slip of the Port of Galveston, Texas. The slip was known as Slip “A.” The suit was in admiralty, and jurisdiction in the Dis- trict Court for the Southern District of Texas lay under the Act of June 25, 1948, c. 646, 62 Stat. 931, Title 28, U. S. Code, Sec. 1333(1), amended Act of May 24, 1949, c. 139, Sec. 79, 63 Stat. 101, and Act of June 19, 1948, c. 526, 62 Stat. 496, Title 46, U. S. Code, Sec. 740. Suit for damages in excess of $280,000 was brought by libellants as those at interest upon the pipe line against the M/V HAR CANAAN, from which the anchor was dropped, and her operator, and against the assisting tugs and their owning and operating companies, and by later amend- ment against the pilot of the M/V HAR CANAAN, petitioner Emmett Gray. Cross-pleadings were filed. The evidence was largely without dispute, and with the exception of the facts surrounding the issuance of the order to drop the anchor, is with reasonable accuracy though it is respectfully submitted too briefly summarized by the District Court in its Findings of Fact, printed below at Appendix, p. 40. “Briefly, these are the controlling facts: Pursuant to a permit issued by the United States Corps of Engineers, on January 27 and 28, 1958, libellants laid two pipe lines in a dredged trench on the bottom of Gal- veston harbor. On the Galveston Island end, the lines came out of the water about eighteen feet from the eastern side of Slip “A.” From this point at the entrance to Slip “A” the pipe lines ran almost at a right angle to the center line of the channel directly across Galveston harbor to a point opposite Slip “A” on Pelican Island. The last of three Notices to Mariners relative to the pipe lines was issued on January 16, 1958, and it notified 6 navigation interests of the location of the pipe lines, stat- ing that the lines would run between Pier 41 (which is immediately adjacent to and to the east of Slip ““A”) and Pelican Island, and that “the location of the pipe lines is marked by warning signs on Pier 41 and on Pelican Island.” Instead of the location being so marked, the sign on Pier 41 was in fact placed at its nearest point to them some thirty-one feet east of the end of the pipe lines, and the sign on the Pelican Island side across the harbor was placed on a platform in the water east some one hundred fifteen feet from the pipe lines. The two pipe lines were laid on January 27 and 28, and at no time between the time of their laying and the time of the casuzlty on March 21 were the pipe lines ever found to be farther apart than ten feet and actually were crossed and had to be pulled apart on March 3, R. 596, $99, and were pulled farther apart also on March 16 near their Galveston Island end when found there to be only one and one-half feet apart. R. 601-603. The anchor struck the westernmost of the two pipe lines. Since there was no evidence that the other line was touched by the anchor, and since this line as stated lay no more and probably less than ten feet from the one struck by the anchor, it is manifest that had the pipe lines lain between the warning signs neither would met have been struck. On the morning of March 21, the M/V HAR CANAAN was performing routine maintenance work upon her en- gines and had no motive or rudder power, but in order that her loading could continue it was desired to shift her from the berth where she then lay about two miles through Gal- veston harbor waters to another berth in Slip “A.” Her agent notified the tug company, that the vessel was to be shifted “dead-ship,” by the course of dealing it being un- 7 derstood that she had no motive power and that tugs and a pilot were to be sent to her. Respondent Emmett Gray was sent to act as pilot along with three tugs for power. ‘When he went aboard the vessel Captain Gray explained to the master that it would be necessary to drop the ship’s anchor to assist in turning the vessel when Slip “A” was reached, and the master approved this planned maneuver, giving orders to his crew to have the anchor ready. The vessel was then moved by the tugs through the harbor to Slip “A.” During the entire time of this shifting, the tugs were directed by the pilot Captain Gray, but the master was in command and hed with him on the bridge was the third officer, her full crew was aboard the vessel, and the vessel’s chief officer with the required number of seamen were manning their deck stations. When the vessel was near Slip “A,” the pilot told the master the anchor should be dropped. The master testified that he then checked the prominent signs warning of the pipe line crossing and only after making sure the anchor would drop well clear of any lines did he permit the ship’s third officer to transmit the order to the chief officer and crew forward, who dropped the anchor. R. 681-683. Captain Gray testified that he knew generally that pipe lines were being laid across the harbor between Pier 41 and Pelican Island but had not actually sighted them nor while they were being worked on had before this time piloted a ship in their vicinity nor had read the Notices to Mariners dealing with them. In giving the order or advice to the master to drop the anchor he relied on the warning signs as to the location of the lines. (Captain Gray’s recollection was that the master gave the order to drop the anchor before Gray pointed out the signs to him; the master testified positively, however, that he asked Gray about the signs and himself checked them to be sure the anchor would fall clear before giving the order to his crew to drop the anchor. R. 681-683.) There was no evidence that the three tugs furnishing the motive power for the movement of the vessel were in any way at fault. For sometime prior to the day of the casualty, those tugs which assisted in the movement of ocean-going vessels with- in the harbors of Galveston and some other Texas ports, i.e., which were used in the harbor towing of deep-sea vessels such as the M/V HAR CANAAN, were owned by three separate towing companies. One of these was Bay-Houston Towing Company, whom the operator of the M/V HAR CANAAN by signed contract engaged to provide all the tugboat power it required. These three owning companies made all agreements with ship operators requesting the services of towboats, but did not actually operate the tugs. The tugs were chartered bare- boat 19 an operating company, petitioner G. & H. Towing Company, that manned and operated them, so as regardless of ownership to utilize the tugs most efficiently in assisting vessels needing tugboat power. Only at Galveston, where the state-licensed bar pilots before the time of this casualty did not offer pilotage ser- vices for such ships, did the three towing companies offer to furnish pilotage for ships without motive power. But these owning companies did not themselves employ any pilot to perform such services; they requested petitioner G. & H. Towing Company to furnish a pilot to perform their con- tracts. To act as such pilot for a ship without motive power, G. & H. Towing Company designated its port captain, respondent Emmett Gray. Captain Gray was licensed by the United States Government to act as pilot for the waters of Galveston harbor, but he held no license as a bar pilot from * ee Oe Re ay et eg Sa 9 ' the State of Texas and was not a member of the Galveston Pilots Association. While, as stated, the operation of the tugs was done only by G. & H. Towing Company, their charterer, the three owning companies maintained separate soliciting cflices and were actively competitive with each other, for they and not G. & H. Towing Company made the contracts with steamship operators for tug services and billed for the services, and only the company having such contract re- ceived thirty-five per cent of the amounts paid. Even if it owned the tug which performed the service unless it had the contract with the steamship operator the owning company received none of the revenue derived from that particular towing job. In each instance the charterer, petitioner G. & H. Towing Company, received sixty-five per cent of the revenues earned, being paid by the con- tracting owning company and not by the steamship oper- ator. R. 784-785. Where in Galveston harbor pilotage services were fur- nished a ship without motive power, the contracting tow- ing company kept thirty-five per cent of the charge made the ship, paid G. & H. Towing Company sixty-five per cent, and out of its sixty-five per cent G. & H. Towing Company paid Captain Gray $20.00. R. 787. There is not an iota of evidence that to secure tug services in Galveston or elsewhere steamship operators were in any way required to sign any agreement with any of the towing companies as a condition of receiving the services of tugs, but if a steamship operator did sign an agreement by whch it agreed to obtain all of the tug services it needed only from the one owning company with which it con- tracted, it obtained the tug services at a ten per cent discount off the tariff rates. Appendix IV, p. 52. 10 The charterer of the M/V HAR CANAAN, Maritime Overseas Corporation, had before the casualty signed such an exclusive contract with Bay-Houston Towing Com- pany, and it received the ten per cent discount for the tug hire and the pilotage furnished the vessel on the day in question, paying the sums due to Bay-Houston Towing Company. R. 727-729. There were no material differences between the contracts offered steamship operators. Each contained a provision allowing the use of tugs other than those owned by the contracting towing company like this: “Should Bay-Houston Towing Co. tugs be not con- veniently available for the required services, the said Bay-Houston Towing Co. shall have the right to designate or engage the tugs, and such other tugs and their owners or operators shall be covered by this con- tract as though they were Bay-Houston Towing Co. tugs. And each contained a “pilotage clause,” as follows: “Whenever any pilot goes on board a vessel to assist her movement or handling, he becomes and continues to be solely the servant, agent and employee of said vessel, and her owners and/or charterers in respect of all acts done by him, or all omissions, and all orders given by him to any tugs engage or to said vessel or otherwise, in the movement or handling of said vessel, or in connection with any decisions made by said pilot as to the manner or method of handling said vessel, and néne of the tugs or their owners, agents, Masters, servants, employees or charterers shall be responsible or liable for any act or omission of said pilot, or for any claims or damages caused by or resulting for any act, omission or order of said pilot.” 11 Each contract also contained as part of the tariff for Galveston-Texas City the provision: “Pilotage-Shifting Vessels Without Own Power. . . $60.00.” Nowhere in the tariffs, nor in the contract signed by Maritime Overseas Corporation with Bay-Houston Towing Company covering the movement of the M/V HAR CANAAN on the day of the casualty, is there any language which could conceivably be read to mean that the towing companies contracted to move vessels from one location to another. The company offered and agreed only to pro- vide tugboat power, and the rates charged were only for each tug furnished, though these rates of course varied with the distance the tug assisted the vessel. Appendix V, p. 55. The Trial Court found that Captain Gray was negli- gent in giving the order to drop the anchor, which fell on the pipe line, the “presence” of which he should have known from other sources and from the prominent warn- ing signs but as to the location of which he was not mis- led by the position of the warning signs. The master of the M/V HAR CANAAN was found not at fault because “the pilot’s lack of knowledge was not manifest so as to warrant intervention by the Master.” Gray was held liable personally for his negligence and found not to be a loaned servant to the vessel, and G. & H. Towing Conspany liable because he was its employe acting in the scope of his em- ployment, and the M/V HAR CANAAN liable in rem for the negligence of Gray “as her pilot.”” The vessel was allowed indemnity from both Gray and petitioner G. & H. Towing Company. —_ eee he” a 12 The towing tugs and their owners were found not liable. The exculpatory provisions of the pilotage clause of the eontract with the vessel’s operator were held to be void, «ance being placed upon Bisso v. Inland Waterways Corporation, 349 U. S. 85, on the ground that the mono- polistic situation in Galveston harbor gave no freedom of choice to vessels in the type of towing contract offered and to secure tugs vessels had to agree to such exculpatory provisions. Sun Oil Company v. Dalzell Towing Co., Inc., 287 U. S. 291, was distinguished. The Court of Appeals affirmed, petitioner Gray’s neg- ligence being found to be a failure to use due care “to find out just where the pipe lines were, in that, without soundings or otherwise taking adequate precautions to precisely locate the pipe lines he dropped the anchor on them.” No mention is made of the master of the M/V HAR CANAAN. After thus imposing upon petitioner Gray an absolute duty to know the exact location of the pipe lines, and holding petitioner responsible as his employer, the Court below agreed the pilotage clause was invalid under the Bisso decision and distinguished the case of Sun Oil Company v. Dalzell Towing Company as one dealing “with pilotage in its real sense of service rendered by publicly licensed involuntary or compulsory pilots” and stated Gray was not such a pilot, the case really being merely one where G. & H. Towing Company furnished a towing service to a dead ship and its port captain conducted it. The liabilities of the M/V HAR CANAAN and of Maritime Overseas Corporation were then affirmed under the law governing pilotage. (The Court of Appeals by its order of March 27, 1961, cor- rected its statement that Maritime Overseas Corporation had been found liable in personam.) Oceana “gue Eee Lt 13 REASONS FOR GRANTING THE WRIT Your Honors should grant writ of certiorari in this cause for the following reasons: (1) To correct the manifest error of the Court of Appeals in refusing to follow the settled law that an exculpatory pilotage clause such as that in the contract here is valid and not contrary to public policy and un- enforceable, there being not a single other American decision so holding, and your Honors having expressly upheld as valid such a clause in Sun Oil Company v. Dalzell Towing Co., 287 U.S.291, and having as recently as 1955 affirmed the validity of such a clause in United States v. Chris Nielson, 349 U.S 129, decided the same day as Bisso v. Inland Waterways Corporation, 349 U.S. 85. We respectfully submit that the Court is in plain error in holding applicable to this case of pilotage the decision in Bisso v. Inland Waterways Corporation, which only held invalid a broad towage freedom-from-liability clause, and in declaring the Sun Oil Company v. Dalzell Towing Co., case inapplicable as one of “publicly licensed involuntary or compulsory pilots,” that Dalzell case being clearly one where no compulsory pilot was at all in- volved and being instead one where the captain of one of the assisting tugs directed the ship maneuver. We further earnestly submit the decision below is in direct conflict with the recent decisions in Sfates Marine Corpo- ration of Delaware v. Victory Carriers, Inc., 9 Cir., 1959, 272 F. 2d 463, and Pennsylvania Railroad v. The Beatrice, 2 Cir., 1960, 275 F. 2d 209, and with all other decisions where the pilotage clause has been directly at issue. Since a similar pilotage exculpatory clause is, as far as peti- tioner can tell from the decisions, at use in every American port, this decision if left unreversed would tend to upset "Th tie STb AS RE i SENAY 6, Cisune ane 7S ee ee 14 an important segment of American maritime law and contracts under which most ocean-going vessels are ‘moved in American harbors. ‘2) To correct the error of the Court in holding that where an employee of a towing company is aboard a fully manned vesscl under the command of her master acting a3 the vessel’s pilot and held by the Court to a standard of care even greater than that lawfully required of pilots, and voluntarily engaged by the vessel’s operator, his reguiar employer is responsible forkis negligent pilotage acts, the holding of the Court of Appeals being directly contrary to the maritime law that pilots are independent contractors ‘subject only to the control of the vessel’s master, as held in many cases, including Guy v. Donald, 203 U.S. 399, Sherlock v. Alling, 93 U.S. 99, and two cases decided by the Court below, namely Charente Steamship Co. v. United States, 5 Cir., 12 F. 2d 412, atid Dampskibsselskabet Atalanta v. United States, 5 Cir., 31 F. 2d 961. (3) To correct the error of the Court below in holding that a pilot, normally employed in another capacity, fur- nished to a contractor so that it can perform its contract to provide a pilot for a fully manned vessel in command of its master though without motive power, remains in the employment of his regular employer during all the time he is aboard the vessel acting as pilot and does not become the servant of the vessel or the contractor, so that his general employer is liable for his negligent pilotage acts, the holding of the Court below being directly contrary to the decisions of Sun Oil Company v. Dalzell Towing Co., 287 U.S. 291, and Standard Oil Co. v. Anderson, 212 US. 215. 15 ARGUMENT I. With all respect, petitioner respectfully submits that the Court below has confused the decisions which hold invalid clauses exempting companies and tugs from liability for negligent towage with the decisions which uphold the validity of exemptions from liability for acts of pilotage. We submit that this is abundantly clear from a careful reading of Bisso v. Inland Waterways Corporation, 349 U.S. 85, striking down towage exemptions and carefully affirming the correctness of decision of Sun Oil Company v, Dalzell Towing Co., 287 U.S. 291, where the exemption is a pilofage exemption as here, and a careful reading of United States v. Chris Neilson, 349 U.S. 129, which also affirms the validity of pilotage exemptions and states Bisso voids only fowage exemptions, The consequences of this mis-reading of those decisions are that petitioner, while not even a party to the contract under the terms of which the tugs and the pilot were furnished the vessel, and engaged only in the business of operating tugboats, is denied the protection of the pilotage exemption expressly set forth in the contract and to which the Court of Appeals acknowledges it would otherwise be entitled since the Court helds “in effect that neither Gray nor the Towing Company, his employer, would be liable for the negligence of Gray, its employee, indeed its port captain.” Petitioner is therefore held liable for damages stated to be in excess of $280,000.00, and instead of being allowed indemnity from the vessel operator as it would be had the case been correctly decided in accordance with numerous decisions, particularly those decided by the Court RBA SRRR A of. EY 16 of Appeals for the Second Circuit, is instead required to indemnify the vessel! Petitioner respectfully submits that this decision is con- trary to the settled American maritime law governing in circumstances such as these. The Contract Afforded Petitioner Exemption for Pilotage Faults, Though Not for Towage Faults The contract between Bay-Hovuston Towing Company and Maritime Overseas Corporation, operator of the M/V HAR CANAAN, is reproduced at Appendix V, p. 55, below. It will be noted that petitioner G. & H. Towing Com- pany is not a party to this contract and not named therein, though the pilotage clause clearly exempts petitioner G. & H. Towing Company because it exculpates the charterers of the tugs furnished the vessel and the contract. Nowhere in the contract is any language exempting the tugs or those at interest upon them for any faults of towage or tug operation. On the oth: hand, the contract in several places -ex- pressly says that the company only agrees to furnish ‘ug power, and expressly provides against liability for the acts of “any pilot” on board an assisted vessel. This clause reads: “Whenever any pilot goes on board a vessel iv assist her movement or handling, he becomes and continues to be solely the servant, agent and employee of said vessel, and her owners and/or charterers in respect of all acts done by him, or all omissions, and all orders given by him to any tugs engage or to said vessel or otherwise, in the movement or handling of said vessel, 17 or in connection with any decisions made by said pilot as to the manner or method of handling said vessel, and none of the tugs or their owners, agents, Masters, servants, employees or charterers shall be responsible or liable for any act or omission of said pilot, or for any claims or damages caused by or resulting for any act, omission or order of said pilot.” It will have been noted that the Court of Appeals has by implication held that had this clause been valid, it would have protected petitioner G. & H. Towing Company. There can be no doubt that petitioner comes within the language of the clause even though not a party to the contract. The contract was between Bay-Houston Towing Company, a tugboat owner and a respondent herein, and Maritime Overseas Corporation, the charterer and claimant and operator of the M/V HAR CANAAN, a respondent herein. The contract expressly permitted the towing com- pany to furnish tugs other than its own, and it called upon petitioner G. & H. Towing Company, charterer of the tugs furnished the M/V HAR CANAAN to tow it, to supply the tugs. By the contract Bay-Houston Towing Company also agreed in Galveston harbor to furnish a pilot for 2 ship which was to be shifted without its own motive power. There is nothing in the contract which required Bay-Hous- ton Towing Company to furnish any particular pilot, and it secured the pilot for the vessel from petitioner, the tugs’ charterer. The pilotage clause is not restrictive, and it expressly exempts the tug charterer, petitioner, from any liability for the acts of any pilot. It is therefore clearly established here that by the express terms of the pilotage clause of the contract petitioner is exempted from liability 18 for the acts of the pilot Gray while aboard the vessel per- forming pilotage duties. Dropping the Anchor Was an Act of Pilotage It is certainly clear that dropping the ship’s anchor can- not rightfully be deemed an act of towage. It was clearly an act in the navigation and management of the vessel, accomplished by the ship’s crew on the command of the ship’s master and at the suggestion, advice, or order of the ship’s pilot on the bridge. The towing tugs obviously had nothing to do with the dropping of the anchor, as is clearly demonstrated by the fact that the District Court dismissed the libel as to them and their owners and absolved them from liability. Decided cases likewise hold that the dropping of a ship’s anchor is an act in the management of a vessel. Please see The Etona, §.D. N.Y., 64 F. 880, affirmed 2 Cir., 71 F. 895, and Luria Bros. & Co., Inc, v. Eastern Transp. Co., 2 Cir., 1937, 89 F. 2d 900, both Harter Act cases. And finally, petitioner Gray has been held by both Courts below to the high standard of care required of pilots, he was sent aboard the vessel as pilot and acted under his government license of pilot, and the District Court held him as pilot and held the vessel in rem “for the negli- gence of Captain Gray as pilot.” The contract of course called him a pilot. Pilotage Exemption Clauses Are Valid Petitioner believes that there have been no previously decided cases in which the applicability of a like pilotage clause has been directly at issue that have held such a clause 19 invalid. The decided cases have so uniformly upheld the validity of such clauses that Mr. Justice Frankfurter in his dissenting opinion in Bisso v. Inland Waterways Cor- poration, 349 U.S. 85, at 98, e¢ sey., was able to assert on a review of the authorities that all exemption clauses in towing contracts had theretofore been found to be valid. The decision in Bisso 1. Inland Waterways Corporation, at page 92, clearly holds pilotage exculpatory clauses valid, citing Sun Oil Company v. Dalzell Towing Co., in the fol- lowing language: “It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S. Ct. 135, 77 L. Ed. 311. We disagree. Unlike the Steamer Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage. Sun Oil construed this contract as relieving the tug- boat owners from all liability for negligence of the tug captain while piloting Sun Oil’s vessel and held the contract valid as thus construed. But both the Court of Appeals and this Court recognized that hold- ing the pilotage contract valid did not conflict with The Steamer Syracuse or The Wash Gray. Indeed, this Court express!y stated that the Sun Oil decree was ‘not in conflict with the decisions’ in The Steamer Syracuse and The Wash Gray. It is of course possible that the Court found an absence of conflict in the casessbecause of a different construction given the dif- 20 ferent contracts involved. We doubt this, but how- over this may be there are more basic differences upon which we prefer to rest this Court’s statement that Sun Oil did not conflict with the two prior cases. “There are distinctions between a pilotage and a towage exemption clause which make it entirely rea- sonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of pilots only; a towage clause exempts from all negligence of all towage employees, Pilots hold a unique position in the maritime world and have been regulated exten- sively both by the States and Federal Government. Some state laws make them public officers, chiefly re- sponsible to the State, not to any private employer. Under law and custom they have an independence wholly incompatible with the general obligations of obedience normally owed by an employee to his em- ployer. Their fees are fixed. by law and their charges ‘must not be discriminatory. As a rule no employer, no person can tell them how to perform their pilotage duties. When the law does not prescribe their duties, pilots are usually free to act on their own best judg- ment while engaged in piloting a vessel. Because of these differences between pilots and towage employees generally, contracts stipulating against a pilot’s negli- gence cannot be likened to contracts stipulating against towers’ negligence. It is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another com- pany’s vessel on that vessel’s own power. That was the Sun Oil case. It is quite a different thing, however to permit a towing company to exempt itself by con- tract from all liability for its own employees’ negli- gent towage of a vessel. Thus, holding the pilotage contract valid in the Sun Oil case in no way conflicts with the rule against permitting towers by contract 21 wholly to escape liability tor their own negligent tow- a ing.” Petitioner respectfully submits that your Honors af- firmed this validity on the same day in the following por- tion of your decision in Unit:d States v. Chris Neilson, 349 U.S. 129, 130: *. . ; We granted certiorari to consider the meaning and validity of the pilotage clause, 348 U.S. 811, 75 S. Ct, 59, and at the same time granted certiorari in two other cases, today decided. which involve validity of contracts exempting towers from liability for negli- gent towage. Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 §. Ct. 629; Boston Metals Co, v. The Winding Gulf, 349 U.S. 122, 75 S. Ct. 649. “4¢Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, §3 §. Ct. 135, 77 L. Ed. 311, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being ‘liable for any damage’ caused by the negli- gence of one of its captains in piloting Sun Oil’s ves- sel and construed the contract there as having that ad That petitioner’s reading of these decisions is correct is further established, it is respectfully submitted, by the decisions in States Marine Corporation of Delaware v. Vic- tory Carriers, Inc., 9 Cir., 1959, 272 F. 2d 463, and Penn- sylvania Railroad v. The Beatrice, 2 Cir., 1960, 275 F. 2d 209. 22 Petitioner therefore respectfully submits that the Court below is clearly in error in its interpretation of Bisso v. Inland Waterways Corporation, Sun Oil Company v. Dal- zell Towing Co., and United States v. Chris Neilson, and that its decision is clearly in conflict with the two last cited cases decided by the Courts of Appeal for the Ninth and Second Circuits. No Circumstances Here Justify Denying Validity to the Pilotage Clause The trial Court found that public policy required the pilotage clause to be denied validity because under the monopolistic situation prevailing in the port of Galveston a vessel had no freedom of choice in the type of towing contract offered and must accept a contract with the ex- culpatory provisions to secure tug assistance. While it is not admitted that where as here three separate owning companies charter their tugs to an operating com- pany to secure efficient service there is any monopolistic situation, nevertheless the Court is in plain error .in stating that a vessel had to agree to a contract with the exculpa- tory clause to secure tug assistance. There is absolutely no evidence that vessels were under any requirement to sign the contract, as the operator of the M/V HAR CANAAN did here, in order to obtain tug assistance, As an examination of the contract shows, the inducement to sign it and agree to the contract is the ten per cent discount afforded those signing the contract. This was so testified to. R. 803. And please see Appendix IV, p. 52, and particularly the closing sentence of the of- fer, “All charges are net, except when services are per- formed under contract, then a discount of 10; is to ap- ply on all tariff rates.” 23 This clearly shows ships could secure tugs without having to sign the contract, and there is as stated no evidence to the contrary. Further, none of the cases, which uniformly uphold the validity of pilotage clause exemptions, and which are from the great breadth of decisions found in harbor towing contracts in similar terms ir practically all American ports, have ever intimated that because towing services are not furnished by numerous companies the pilotage exemption is invalid. And in the exemption clause employed in the greatest American port, New York, the exemption is ac- corded from acts of the captains off the tugs, a much broader exemption chan the one here of a licensed pilot, even though an employee of the towing company actually furnishing the tugs. Nor does reason support this view why such a clause should be held invalid. Pilots are licensed by governmental authority and exercise independent judgment and are not subject to supervision and control, except on occasion by the master of the vessel. And why should an assisting tug be obligated to assume the ship’s responsibility for the acts of the pilot? The ship is a common carrier, the towing tug not. If the towing tug diligently performs its towing du- ties, why should it be burdened with an added responsibility for the pilot? The Court of Appeals did not base its decision holding the clause invalid upon the ground stated by the District Court, but instead preferred to affirm on the ground that petitioner was in fact not a pilot but simply one in charge of a dead-ship towing operation. (Of course, its characterization of the Dalzell case as one of true pilotage by publicly licensed compulsory or in- 24 voluntary pilots is manifest error; in that case the piloting was done by a captain from one of the assisting tugs, and the exculpatory clause was one stating a captain off a tug became an employee of the vessel being assisted.) Since the exculpatory clause generally used in New York, and held valid in Sun Oil Company v. Dalzell Towing Co., deals with a tug captain and not a pilot, as do many such clauses held valid, the reason given by the Court of Ap- peals is without support in the adjudicated cases. Its description of the facts here is in error also, it is sub- mitted with all respect: the contract, which cannot right- fully be ignored as the Court apparently does, nowhere provides that a complete towing service was to be pro- vided the ship. The contract provided only for tug power, which was furnished, and entirely independently had a clause agreeing in Galveston harbor to provide a pilot on request where the vessel was to be shifted without motive power. : And of course, finally, the acts of negligence charged in this vase were acts of pilotage, not towage, and the Bisso case reference is in error also. Petitioner respectfully submits, therefore, that the Court of Appeals is in clear error in denying the validity of the pilotage clause under the circumstances of this case, and that he is by such clause in accordance with the settled law enforced in Moran Towing & Transp. Co. v. Nav. Lib. Triestina, 2 Cir., 1937, 92 F. 2d 37, 1937 A.M.C. 981, cert. den. 302 U.S. 744, and Pennsylvania Railroad v. The Beatrice, 2 Cir., 1960, 275 F. 2d 209. and States Marine Corporation of Delaware v. Victory Carriers, Inc., 9 Cir., 1959, 272 F. 2d 463, entitled to be indemnified by the M/V HAR CANAAN and its operator Maritime Overseas 25 Corporation from any liability to respondents the pipe line owners. II. The M/V HAR CANAAN here, though without mo- tive power, was fully manned, and throughout the maneu- vering of the vessel her master and third officer were upon the bridge along with the pilot and her deck crew were at their proper stations. Captain Gray undoubtedly was the vessel’s pilot, though a pilot voluntarily engaged by the vessel’s operator. The Trial Court in conformity with the evidence found him to be a pilot, held him liable for what are clearly acts of pilotage and not towage in accordance with standards of care imposed on pilots, and held the vessel liable in rem for his acts “as pilot.” Of course such fact findings are under the rule of McAllister v. United States, 348 U.S. 19, binding upon the Court of Appeals, but nevertheless that Court has at least inferentially accepted the finding that Captain Gray was a pilot by holding him to a standard of care even greater than that imposed upon pilots. The contract between Bay-Houston Towing Company and respondent Maritime Overseas Corporation denomi- nated him a pilot, and the master of the vessel considered Captain Gray to be the vessel’s pilot. Under such circumstances there can be no doubt of the error of the Court of Appeals in holding petitioner G. & H. Towing Company liable for Captain Gray’s acts simply because it was his normal or general employer. It has long been settled maritime law that a pilot aboard a navigated and manned vessel is an independent contractor, eh a ae eat SS 26 himself responsible for his acts, Guy v. Donald, 203 U.S. 399, even though the vessel and its operators are as his employer also responsible. Sherlock v. Alling, 93 U.S. 99, and please see the statements to that effect also in Homer Ramsdell Transportation Co. v. La Compagnie Generale Transatlantique, 182 U.S. 406. The Court of Appeals below has itself expressed the rule clearly in Dampskibsselskabet Atalanta v. United States, 5 Cir, 31 F. 2d 961, 962, in the following language: “The fundamental principle underlying the exemp- tion of pilots’ associations from liability for negligence in performing their duties as pilots is that the associa- tion exercises no control over the manner in which those duties are to be performed, and therefore a pilot cannot be said to be an agent of the association in that respect.” While the pilot is an independent contractor he never- theless is subject to the master’s control and does not relieve the master of his command of the vessel. This is of course settled maritime law, as held in The China, 7 Wall. 53, The Oregon, 158 U.S. 186, and many other cases, including the decision of the Court below in Charente Steamship Co. v. United States, § Cir., 12 F. 2d 412, at p. 413. Can there be any doubt that if in the course of the move- ment on this occasion the pilot had given orders imperiling the vessel itself or other vessels using the harbor it would have been the duty of the master upon the bridge with Captain Gray to have countermanded the order or relieve him from acting as pilot? And how could any control over Captain Gray have been exercised by petitioner G. & H. Towing Company? Do eS AIA TLIC IRE TH UCR IS ary Oe enn | 4 . *. 27 Peitioner respectfully submits that holding it as the gen- eral employer of the pilot for his acts while serving aboard the vessel as pilot is clearly wrong and directly contrary to the settled law and such holding should be reversed. iil. Peiuioner G. & H. Towing Company respectfully submits further the Court below was clearly in error likewise in holding it as the employer, just as the trial Court was in clear error in so holding petitioner and in finding that while acting aboard the vesse! as its pilot Captain Gray was not a borrowed or loaned servant. It is of course true that while Captain Gray was in the regular employment of G. & H. Towing Company neither he nor G. & H. Towing Company were parties to the contract between Bay-Houston Towing Company and respondent Maritime Overseas Corporation, under which the vessel requested his services and under the terms of _ which he went aboard the vessel. The contract of course did not obligate Bay-Houston Towing Company to obtain a pilot from petitioner: it could have furnished any person qualified to act as pilot, its own employee or any other person. Without a doubt, in securing the pilot from petitioner to fulfill its con- tractual obligation, Bay-Houston Towing Company made the person furnished to that extent its own agent or servant so far as this could lawfully be done. Of course it is clear Bay-Houston Towing Company was paid for the pilot’s services in accordance with the contract at the contract rate, and it retained a portion of the amounts paid. How can it be found if the evidence is given its lawfu' effect that Bay-Houston Towing Company was not there- 28 fore the special employer of the pilot and that while aboard the vessel Captain Gray was certainly no longer the em- ployee of G. & H. Towing Company? It is of course noteworthy that Pay-Houston Towing Company was dismissed from this cause and held not |.2ble, along with its tug and the other tugs and their owners, and while this was done because there was no proof at all the towing services were negligently performed, it is sub- mitted such dismissal effectively results in finding that actually, as is of course the law, pilot Gray was the servant of the vessel and its operators while aboard it as pilot. Certainly the pilot Gray while aboard the vessel and acting as pilot was the loaned employee of the vessel and its operator Maritime Overseas Corporation, if regard is paid to the settled law. This is certainly the holding of your Honors in Sun Oil Company v. Dalzell Towing Co., 287 U.S. 291, where it is said: “Respondent’s responsibility is not to be extended beyond the service that it undertook to perform. It did not furnish pilotage. The provision that its tug captains while upon the assisted ship would be the servants of her owner is an application of the well- established rule that when one puts his employee at _ the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly ior and is to be deemed the employee of the latter and not of the former. Denton v. Yazoo & M.V.R. Co., 284 U.S. 405, 308, §2 S. Cr. 141, 76 L. Ed. 310. It would be unconscion- able for petitioner upon occurrence of a mishap to repudiate the agreement upon which it obtained the service.” 29 As has been pointed out above, certainly no one other than the master of the vessel had any control over Captain Gray while he was upon this manned vessel performing his duty as pilot. Within the tests laid down by your Honors in Standard Oil Co. v. Anderson, 212 U.S. 215, and those in Fries v. United States, W.D. Ky., 76 F. Supp. 396, affirmed 170 F. 2d 726, cert. den. 336 U.S. 954, and Dougall v. Spokane, P. & S. Ry. Co., 9 Cir., 207 F. 2d 843, cert. den. 347 U.S. 904, certainly Captain Gray was the em- ployee of the vessel and nof of petitioner. As the rule is put in the Dougall case, at page 846: “The test is not for whose benefit the workman is performing services but who had the right to control him in the performance of his duties.” Furthermore, the holding of the Court of Appeals that this maneuver after all was simply a towing operation of petitioner's under the direction of its employee Captain Gray 1s clearly wrong. This holding of course first of all ignores completely the contract and the contractual relationships here. The ‘contract between Bay-Houston Towing Company and Maritime Overseas Corporation did not call for anything more than the furnishing of tugs and a pilot: it did not in any way call for Bay-Houston Towing Company to take charge of and to move the ship as an entire job. Nor was of course petitioner a party to that contract, as has been pointed out. Conclusively to the contrary of the Court’s holding, it is respectfully submitted, is the fact that the vessel was fully manned, and the vessel and its movements were in direct charge of the vessel’s master, who never either in law or in fact relinquished his command to Captain Gray. woe 30 CONCLUSION For the reasons set forth above, it is respectfully prayed that this petition for writ of certiorari be granted and that the judgment of the Court of Appeals be reversed and the ___petitioner freed from liability and indemnified from any liability by the vessel and its operator respondent Maritime Overseas Corporation, and petitioner be held not required to indemnify the claimant of the M/V HAR CANAAN. Respectfully submitted, ROYSTON, RAYZOR & COOK Cotton Exchange Building Galveston, Texas ROBERT EIKEL 1910 Tennessee Building Houston 2, Texas By Attorneys for Petitioner ROBERT EIKEL, Of Counsel 31 CERTIFICATE OF SERVICE I hereby certify that service of the within petition for writ of certiorari was made upon McLeod, Mills, Shirley & Alexander, 801 Santa Fe Building. Galveston. Texas. attorneys for respondents, and Eastham, Watsor, Dale & Forney, 538 Mellie Esperson Building, Houston. Texas, attorneys for respondent Maritime Overseas Corporation, claimant of the M/V HAR CANAAN, by mailing copy of the same to them at their addresses shown, this day of July, A. D. 1961. — Se ee ROBERT EIKEL NS PEEP Se A ot ea ee eee 33 APPENDIX I. IN THE Anited States Court of Appeals FOR THE FIFTH CIRCUIT No. 18619 EMMETT GRAY, G & H TOWING COMPANY and MARITIME OVERSEAS CORPORATION, Appellants, Vv. EDWIN E. JOHANSSON, KANSAS CITY BRIDGE COMPANY, MERRITT-CHAPMAN & SCOTT COR- PORATION, and PELICAN ISLAND DEVELOP- MENT CORPORATION, Appellees. Appeal from the United States District Court for the Southern District of Texas. (March 15, 1961.) Before TUTTLE, Chief Judge, HUTCHESON, Circuit Judge, and CLAYTON, District Judge. HUTCHESON, Circuit Judge: This appeal is from findings and a judgment in admiralty in favor of the libeliants, in a suit brought by them as owners of pipe fines, for damages resulting from their negligent destruc- tion in the course of shifting the M/V Har Canaan as a dead ship to a slip in Galveston Harbor. 34 A great deal of testimony was taken on the issue of fault, and the district judge made full findings in effect that the destruction of the pipe lines was due to the negligence of the respondent, Emmett Gray, port cap- tain for G & H Towing Co., who was furnished by it as a pilot for the dead ship movement. Based on these findings, the court adjudged: (1) Gray liable; (2) the Har Canaan liable in rem; (3) Maritime Overseas, owner of the Har Canaan, not liable in per- sonam; and (4) G & H Towing Co., the employer and furnisher for the movement of Emmett Gray, its port cap- tain liable in personam. He also denied and awarded in- demnity as follows: “Thus, as to the liability over between the several respondents, the following conclusions are made. “6. G & H Towing Company and Captain Emmett Gray are not entitled to indemnity from Maritime Overseas Corporation, or from the Har Canaan, for any payment they may be required to .make under the decree to be entered herein. “7. Maritime Overseas Corporation, as claim- ant of the Har Canaan, is entitled to indemnity from Captain Emmett Gray, individually, and from G & H Towing Company for any liability it will have to libellants under the decree to be entered herein, The liability of Captain Gray and G & H Towing Company to Maritime Over- seas will be joint and several.” Gray, as the respondent held primarily liable, here insisting that the findings and conclusions, that he was negligent in handling the ship so as to cause injury to the pipe lines, are clearly erroneous, launches massive attacks upon the findings, that he was negligent, and urges upon 35 us that the cause of the injury to the pipe lines was negli- gence not on his part but on the part of the pipe line owners in not properly laying and maintaining the lines in place and in not clearly and properly marking their location. The other appellants icin him in this attack and argue mightily that the district judge has misconceived what actually occurred and that the findings of negligence are against the truth and right of the case. The G & H Towing Company, in addition to its attack upon the negligence findings of the court, strongly attacks the court’s conclusion, that the clause in its contract pro- viding in effect that it would not be liable for the acts of pilots furnished by it would not avail it, as an erroneous ‘conclusion of law, and urges that, because of that clause, Gray’s negligence would not be imputed to it, and it could not, therefore, be held liable for it. The Har Canaan and Maritime Overseas Corporation, its owner, argue vigorously that they were not responsible and cannot be held liable for the negligence of the pilot. Each of these argue that the conclusions on idemnity are wrong. For the reasons hereafter stated, we are of the opinion: that the district judge was right throughout in his findings of fact and in his conclusions of law, that Gray was guilty of negligence in causing the anchor to be dropped upon the pipe line, and that, as a result of his negligence, he and the other respondents found liable are liable to the pipe line owners for the damage done them; and that the right of exoneration, action over, or indemnity is as he concluded it to be. Taking up first the primary question of whether the findings of fact as to fault should be set aside, we think 36 it sufficient to briefly say that the matter of fault or negligence is a disputed issue, and that, on the record as a whole, there was ample evidence for the district judge to find, as he did: that Gray and, therefore, the Har Canaan and its owners, and the G & H Towing Company knew that the pipe lines were laid in the slip under permit; that the burden was heavily upon them to show, in defense of their act in dropping the anchor, that they had made proper inquiries as to just where they were laid; and that due care had been used in dropping the anchor to avoid striking and injuring them in the course of the ship’s movement; that, in short, Gray and the other respondents could not shift liability for the affirmative acts causing injury to the pipe line as a result of dropping the anchor on the lines by complaining here that, as matter of law, the pipe line owners were at fault in not marking more precisely the position of the lines, or that the findings that they were not are clearly erroneous, In declaring these views, we are not holding chat the district judge could not have found the fault and re- sponsibility as these contend he should have. We are hold- ing, though, that it was entirely proper for the. district judge to find, as he did, upon the whole facts, that the proximate cause of the injury sued for was the failure of Gray to use due care to find out just where the pipe lines were, in that, without soundings or otherwise icking adequate precautions to precisely locate the pipe lines, he dropped the anchor on them with damaging results. With the highly important question of primary fault for the injury thus disposed of by our holding that the court’s findings as to Gray’s negligence are not clearly erroneous and must be approved, we turn to the other questions raised by the several appellants. 2 Reais TE f 37 The first of these is the complaint of all the appellants, including Gray, that the district judge erred in refusing to give effect ro the pilotage clause' in the towing contract, providing in effect that neither Gray nor the Towing Com- pany, his employer, would be liable for the negligence of Gray, its employee, indeed its port captain. Of this, we think it sufficient to say that we agree: with the district judge’s conclusion that the libellants, strangers to the contract, cannot, of course, be held bound, or in any way affected, by its terms; and also with his conclusions with respect to actions over for exoneration or indemnity that appellants are bound and precluded by the decision and holding in Bisso v. Inland Waterways Corporation, 349 U.S. 85, that such a clause is invalid. In addition, we think it clear that respondents’ reliance on Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, will not at all do there, both because of the decision in the Bisso case, which, on full consideration, rejected the Dalzell case as authority for the position here taken, and because the Dalzell case dealt with pilotage in its real sense of service rendered by publicly licensed involuntary or com- pulsory pilots, and Gray in the case was not such a pilot. Though called a pilot, he was merely the person in direct command with respect to a dead ship towing operation 1 “Whenever any pilot goes on board a vessel to assist her movement or handling. he becomes and continues to be solely the servant. agent and employee of said vessel, and her owners and/or chirterers in respect of all acts done by him, or ail omissions, and all orders given by him to any tugs engaged or to said vessel, or otherwise, in the movement or handling of said vessel. or in connection with any decisions made by said pilot as to the manner or method of handling said vessel, and none of the tugs or their owners, agents, masters, servants, employees or charterers shal! be responsible or liable for any act or omission of said pilot, or for any claims or damages caused by or resulting for (sic) any act. omission or order of said pilot.” +. East gt 38 who, as such, conducted the operation by coming on board. Look at it as one will, nothing more can be made of this case than that it is a mere case of a towing service furnished by G & H Towing Company and pe-formed by its port captain who. though denominated “pilot”, was merely the one in charge of a dead ship towing operation who con- ducted it by coming on board the dead ship, and the effort to limit the liability of the towing company for the acts of those furnished by it to conduct the towing maneuver must fail here, just as it failed in the Bisso case, and the judgment denying effect to the invoked clause of the con- tract must be affirmed. We are also of the opinion that there is no merit what- ever in Gray’s claim that he is protected from liability for his own fault by the terms of the contract, even if it were otherwise regarded as valid. Neither is there any merit in the claim of Maritime Overseas Corporation and Har Canaan, that they are not liable for Gray’s acts because, under the law governing pilotage, they could not be held liable for the pilot’s negligence. We find nothing in the cases cited by them, nothing in the cases generally, which supports this claim. Indeed, we chink the cases have settled the law to the contrary, even in a case of true in- voluntary or compulsory pilotage. Cf. Publicker Industries, Inc. v. Tug Boat “Neptune” Company et al, 171 F(2) 48; United States v. Chris Nielson, 349 U.S. 129. We are, there- fore, of the clear opinion that the court’s findings of fact as to fault in the injury to the pipe lines cannot be set aside as clearly erroneous; that his conclusions. that the respondents held liable were in fact and in law responsible to the libelants, are correct and may not be set aside; and that all questions as to actions over for exoneration and/or indemnity were correctly decided, and the decree is in all things AFFIRMED. SE ae Se A RG Se PA 0 ra Reiita FF ‘ 39 APPENDIX II FINDINGS OF FACT AND CONCLUSIONS OF LAW STATEMENT OF THE CASE This proceeding is brought in rem against the Israeli vessel] HAR CANAAN, claimed by Maritime Overseas Corporation; in rem against the Tug J. R. GUYTON, owned by Bay-Houston Towing Company; in rem against the Tugs JUNO and ALBATROSS, owned by Suderman & Young Towing Company; and in personam against Bay- Houston Towing Company; Suderman & Young Towing Company, and G. & H. Towing Company, the charterer and operator df the three tugs named. and Emmett Gray, an individual, employed as Port Captain by G. & H. Tow- ing Company. The Libellants are Pelican Island Develop- ment Corporation, the owner of the pipeline work which was damaged in this casualty; Merritt-Chapman & Scott Corporation, general construction contractor for the Peli- can Corporation; Edwin E, Johansson, sub-contractor un- der Merritt-Chapman & Scott for construction of water and sewer pipelines between Galveston Island and Pelican Island; and Kansas City Bridge Company, sub-contractor under Johansson for the cross channel portion of this con- struction which was immediately involved. By impleading petition of cross-libel, Maritime Overseas Corporation asks indemnification from the Tugs J. R. GUYTON, JUNO, and ALBATROSS, and from all the named respondents, for any recovery libellants may obtain against the HAR CANAAN or her claimant, and by smpleading petition or cross-libel, those same respondents jointly and severally ask indemnification from Maritime Overseas Corporation for any recovery libellants may obtain against them. 40 A trial having been had on the issues of liability alone, and having received and considered the evidence and the briefs and arguments of the proctors for the respective parties, these Fndings and Conclusions are made by me pursuant to Admiralty Rule 461. FINDINGS OF FACT 1. The channel between Galveston Island and Pelican Island is a part of the Galveston harbor. Slip A is im- mediately west of Pier 41 on the Galveston Island or southerly side of this channel. The width of the channel at this point is approximately 1400 feet, and the channel at this point is dredged to a depth of approximately 35 feet between the harbor lines, a distance of 1125 feet. 2. On April 12, 1956, a permit was issued to libellants through the office of the United States Corps of Engineers for the construction of water and sewer mains, each ap- proximately 12 inches in diameter, to be laid in a trench across the Galveston channel, and at a depth not less than $0 feet below mean low water. By amendment of thie per- mit on December 16, 1957, the center line for this cross- ing, at the southerly or Galveston Island end, was estab- lished at a point which the evidence shows to be approxi- mately 18 feet eastward from the northeast corner of Slip A, and the line of bearing for the crossing from that point was N 10° 23’ 25”, or almost directly across the channel to a point opposite on Pelican Island. 3. Acting under this permit, as originally issued and so amended, Merritt-Chapman, as general contractor for the Pelican Corporation, contracted with Johansson for the construction of these pipelines, and Johansson in turn sub- contracted to Kansas City Bridge Company that part of the work which involved laying the sub-aqueous lines. A 41 ‘trench was dredged across the channel to the necessary depth of 511% feet, which was approximately 16 feet deeper than the normal depth of the channel between the harbor lines. The dredged trench followed the center line of the crossing as established by the amended permit, and extended about 50 feet to either side of that centerline. This portion of the work was completed prior to November 27, 1957, and soundings of the trench were made by the United States Corps of Engineers on that date. Late in 1957, Kansas City Bridge Company began receiving sections of the steel pipe to be laid at a job site-at the Pelican Island end of the cross- ing, and for sometime thereafter was engaged in welding short sections of this pipe into 400 foot lengths, testing the welds, and covering this pipe with a protective wrap- ping. Meanwhile, in December, 1957, and January, 1958, a large “whirley” or crane barge was used to dredge the ends of the trench, outside of the harbor lines. A cavein of the bulkhead at the northeast corner of Slip A, caused by this dredging, was repaired in December, 1957. In January, 1958, a bulldozer was used to cut a 400 foot ditch on Pelican Island into which the long sections of pipe could be placed preparatory to their being drawn into the water. 4. On January 27, 1958, pulling cables were stretched across the channel, and the leading section of each pipeline was hung below a barge at the Pelican Island end. On the ensuing four days, the two p’pelines were drawn behind this barge and laid in the trench across the channel which had been dug to receive them. On January 31, 1958, the channel was cleared again for marine trafic. Between February 6 and February 25, 1958, the whirley barge wa; employed as riser sections were welded to the two pipe- lines, first at the Galveston Island end, then the Pelican Island end. Between February 27 and March 4, 1958, divers 42 were used to walk the pipelines and ascertain their position and alignment. The whiriey barge was used to uncross the lines at one point in mid-channel during this work. On March 5, the lines were filled with water for hydrostatic pressure tests, and they remained filled with water until the later casualty. §. The remaining work on the pipelines prior to the casualty in suit, which occurred on March 21, 1958, was concerned with the construction of a thrust block over the risers at the Galveston Island end, just east of the entrance to Slip A, and itnmediately in front of the bulkhead be- tween Slip A and Pier 41. Sleeves were welded around the risers where they passed through the bulkhead, a wooden form was constructed for the thrust-block, and this was lowered into place over the risers after the ground had been cleared by a diver. On the morning of March 21, and at the time of the casualty, concrete was being poured for this thrust-block. A diver was then below directing this work, and his tenders were on the deck of the whirley barge which lay at the northeasterly corner of Slip A, and partly into that Slip. The crane of the whirley barge ex- tended over the work area. On the channel side of the bulkhead, a small “sea mule” and a larger flat barge were immediately above and adjacent to the work area, and per- sonnel employed by Kansas City Bridge Company were on these work boats as well as upon the bulkhead. 6. In addition to the physical evidence already related showing the construction and placement of these pipelines across the channel, and to the notice thereof contained in the permit issued by the United States Corps of Engineers, at least three “Notices to Mariners” had been issued by the Corps of Engineers, on November 15, 1957, December 25, 1957, and January 16, 1958, advising of this construc- 43 tion. On December 30, 1957, double signboards, measuring 7 feet 10 inches, by 16 feet. on each face, and bearing large letters reading “WARNING. -PIPL CROSSING— DO NOT DRAG ANCHOR” were placed on either side of the channel, the sign on the Galveston side being centered about 31 feet east of the center line established for the crossing, and the sign on the Pelican side being centered about 115 feet east of this center line. The legend of either sign was easily visible to any ship proceeding up or down the channel. 7. The Israeli ship HAR CANAAN is a dry-cargo ves- sel of 10,311 gross tons, Her length is 515 feet 2 inches, and her beam is 66 feet 7 inches. She carried two anchors forvard, each weighing approximately 8900 pounds. Ac— the time of this casualty the ship was light and drawing approximately 10 feet. Her forecastle deck was approxi- mately 40 feet above the water line, her bridge deck was approximately 60 feet above the water line, and the hori- zontal distance from the hawse-pipes in the bow of the ship to the bridge was about 200 feet. 8. On the morning of March 21, 1958, the HAR CANAAN was fully manned, equipped and seaworthy excepting that her main engines were shut down for re- pairs. Her agents at Galveston, Strachan Shipping Com- pany, gave an order to Bay-Houston Towing Company to furnish three tugs and a pilot to move the HAR CANAAN as a “dead” ship from Pier 15, where she was then lying, to Sunset Grain Elevator at the inner end of Slip A. The distance between these points was approxi- mately two miles. 9. Bay-Houston Towing Company held a contract with Maritime Overseas Corporation, operator of the HAR CANAAN, to move its vessel on stated rates and terms. 44 10. The only towing companies offering tug service for shifting ocean going vessels in the port of Galveston at the time in question were Bay-Houston Towing Company, Suderman & Young Towing Company, and Intracoastal Towing & Transporation Company. Each of these com- panies owned a nuraber of harbor tugs. These three “‘own- ing companies” competed with one another in the sense that they solicited their own business, made their own contracts, and invoiced the towed vessels for the service performed, However, the services which were available to the owners and operators of ocean going vessels in the port of Galveston from the three “owning companies” were identical. This comes about in that the three “owning com- panies” did not 6perate their own tugs, bur all three chartered, bareboat, their tugs to G. & H. Towing Com- pany, an operating Company, which was owned jointly by the three “owning companies”. In carrying out the orders for towing service, G. & H. Towing Company would use the tugs which were most readily available and convenient, without regard to the ownership, and regardless of which of the three “owning companies” may have had the con- tract with the vessel to be towed. The contracts between the “owning companies” and the vessels (or their owners or charterers) expressly allowed for performance in this manner. The contracts offered by the three “owning com- panies” (their owners or charterers) were identical in terms, and upon a single printed form. The rates too were the same, save for an exclusive contract a ten percent (10‘, ) reduction was allowed. The contract with Maritime Over- seas was of this nature, and carried the ten percent (10°, ) discount. 11. Among the other provisions of this contract, to which reference is made for all purposes, was the following 45 provision, which by reason of its significance is quoted here: “Whenever any pilot goes on board a vessel to assist her movement or handling, he becomes and continues to be solely the servant, agent and employee of said vessel, and her owners and/or charterers in respect to all acts done by him, or all omissions, and all orders given by him to any tugs engaged or to said vessel or otherwise, in the movement or handling of said ves- sel, or in connection with any decisions made by said pilot as to the manner or method of handling said vessel, and none of the tugs or their owners, agents, Masters, servants, employees or charterers shall be re- sponsible or liable for any act or omission of said pilot, or for any claims or damages caused by or resulting for any act, omission or order of said pilot.” 12. Captain Emmett Gray, one of the respondents, is full time ‘and salaried employee of G. & H. Towing Com- pany. Prior to March 1, 1958, he had served for several years as night dispatcher for G. & H., and on that date he became Port Captain for G. & H., and was placed in full charge of the dispatching office. Since 1932, he has held an unlimited pilot’s license covering Galveston harbor, as well as other adjacent waters. As Port Captain for G. & H., he was the “dead ship” pilot assigned by his employer for all shifting of dead ships within Galveston harbor when the tugs operated by G. & H. were employed. Out of the fixed charge made for shifting a vessel without her power, Captain Gray received a percentage of this charge (in addi- tion to his salary from G. & H.), with the balance of the charge going to the company owning the contract (one of the three “owning companies”), and G. & H. as the operating company. In this regard, it should be noted that Captain Gray’s duties with G. & H. did not contemplate, 46 nor did he accept, employment as a harbor or branch pilot (meeting incoming vessels at the sea buoy, and bringing them, usually under their own power, into Galveston har- bor, with converse seivice for out going vessels.) 13. On the morning of March 21, 1958, Captain Gray boarded the HAR CANAAN as she lay at Pier 15, and assumed the conning of the vessel. He informed her Master ot his intention to use the port anchor in turning the ship into Slip A. and the First Mate of the HAR CANAAN, with a deck crew, was stationed in her bow and the anchor made ready for use on orders from the bridge. Thereupon, the HAR CANAAN was moved westerly down the chan- nel toward Slip A, with the Tugs JUNO, ALBATROSS, and J. R. GUYTON, made up alongside and providing the only motive and directional power for the vessel under orders given directly to them by Captain Gray from the bridge of the HAR CANAAN. The Master of the HAR CANAAN was also upon the bridge of his vessel at all times during the maneuver, and he relayed to the First Officer in the bow and the crew orders as received from Captain Gray during the maneuver, including the order to let go the port anchor. The helm of the HAR CANAAN was lashed, as her propelling machinery was shut down, and she had no steerageway of her own. 14. Shortly after noon, as the HAR CANAAN reached the vicinity of Pier 41, she was navigated by the tugs at an angle from the center of the channel toward the open- ing of Slip A. Captain Gray then ordered the port anchor to be dropped, with one shot of chain, and this order was promptly executed. Subsequently, the bow of the ship, with anchor down, continued to move toward the north- east corner of Slip A and came within about 10 feet of con- tact with the whirley barge in that position before the anchor was heaved in some five minutes later. Almost im- 47 mediately after the anchor was dropped, violent move- ments of the sewer pipe, which was westerly of the two pipes being laid, were perceptible to the workmen on shore as well as to the diver working underwater. Sounds such as would have been caused by the breaking of the pipe- line were also heard by the workmen on shore when the anchor of the HAR CANAAN was heaved in. Subsequent investigations did show that the sewer line was badly bent or broken, but still in the trench, at a point approxi- mately 250 feet out in the channel, and was completely broken at a point only 90 feet from the bulkhead, with the ends of the pipe at this point pulled out of the trench and lying in front of the opening to Slip A. 15. Immediately prior to the arrival of the HAR CANAAN at Slip A on the 21st of March, 1958, the water and sewer lines were being constructed Ly libellants in accordance with the permit duly issued for that pur- pose, and these two pipelines were properly situated at the depth and in the position prescribed in such permit, as amended December 16, 1957. 16. The port anchor of the HAR CANAAN was dropped on, or dragged over, one, or perhaps both of said lines, on March 21, 1958, breaking the sewer line, the more westerly of the two, and causing damages to each of the libellants in amounts to be determined. 17. Captain Gray was neg'igent in giving the order to drop the anchor when he shou!d have been aware of the construction and presence of the pipelines from general knowledge, the Notices to Mariners, and the prominent warning signs which were plainly visible. 18. Captain Gray was not misled by the position of the warning signs, and was negligent in giving the order to drop the anchor without regard to the presence of the pipe- lines, 48 19. The tide was nearing the end of the ebb, and the wind was from the southeast at force three, although neither weather, wind nor tide were factors of any con- sequence in the handling of the HAR CANAAN at the time, and no emergency or necessity required that the anchor be dropped at the place where it was dropped. 20. Captain Gray was acting within the scope and course of his employment by G. & H. Towing Company at all times material hereto, and was not a loaned servant to the vessel or her operators at such times. 21. The Master of the HAR CANAAN was not nezgli- gent in failin, to intervene, or displace, the pilot when the order to drop the anchor was issued by Captain Gray, because the situation was not one of obvious danger, and the pilot’s lack of knowledge was not manifest so as to warrant intervention by the Master. 22. Neither the Master nor crew of the HAR CANAAN was negligent, or at fault, in any particular. 23. The assisting tugs were properly maneuvered by their crews in accordance with orders given them, and were in no way at fault. CONCLUSIONS OF LAW 1. Captain Emmett Gray is personally liable for his own acts of negligence. 2. G. & H. Towing Company is liable for the negligence of Captain Gray as its employee. 3. The HAR CANAAN is liable, in rem, for the negli- gence of Captain Gray as her pilot. 4. Libellants are entitled to recover their provable dam- ages, as their interests may appear, from the HAR CANAAN, in rem, from G. & H. Towing Company, in personam, and from Emmett Gray, individually. The lia- bility so decreed shall be joint and several. 49 §. Libellants are not entitled to recover from che tugs J. R. GUYTON, JUNO, or ALBATROSS, in rem, or from Bay-Houston Towing Company or Suderman & Young Towing Company, in personam. The foregoing Conclusions dealing with the liability of the respondents to libellants, in my judgment, follow quite readily from the Findings of Fact set out above, and pre- sent no serious question of law. The libellants obviously were not parties to the contract of towage between Maritime Overseas ind Bay-Houston, and the liability of respondents to libellants has been deter- mined without regard to the provisions of such contract. In considering the question of liability over between’ the various respondents,, however, the validity of the so- called “pilotage” clause (Finding No. 11) is placed in issue. Maritime Overseas contends such provision is void, as contrary to public policy, relying primarily on Bisso 1. Inland Waterways Corp., 349 U.S. 85, and the related Opinions immediately following. Respondents G. & H. and Captain Gray in supporting the validity of the exclupatory provisions rely primarily on Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291. Under the facts found above, in my judgment, Bisso is controlling, by reason of the following circumstances, which I consider to have been stressed by the Court; (a) the vessel was being moved entirely under the power of the furnished tugs, and without power or control of her own; and (b) by reason of the monopolistic situation which prevailed in the vicinity of Galveston harbor, where- by a vessel had no freedom of choice in the type of towing contract offered, but must accept a contract with such exculpatory provisions if in fact it was to secure the assist- ance of tugs in its movement. Here, as in Bisse, the vessel was under complete control of Captain Gray, as an em- . 50 ployee of the towing company, and such towing company did “have power to drive hard bargains.” The instant case is distinguished from Dalzell in these same particulars, for there the Court points out (a) “It was not shown that respondcnt was to have or at any time did have control of the tanker or that it agreed or under- took to co more than to furnish tugs to assist her while using her own propelling power.”; and (b) “Respondent had no exclusive privilege or monopoly in respect of the services that petitioner desired to have performed for its CONE 6-6 2 There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm's length.” Thus, as to the liability over between the several respond- ents, the following Conclusions are made. 6. G. & H. Towing Company and Captain Emmett Gray are not entitled to indemnity from Maritime Overseas Corporation, or from the-HAR CANAAN, for any pay- ment they may be required to make under the decree to be entered herein. 7. Maritime Overseas Corporation, as claimant of the HAR CANAAN, is entitled to indemnity from Captain Emmett Gray, individually, and from G. & H. Towing Company for any liability it will have to libellants under the decree to be entered herein. The liability of Captain = Gray and G. & H. Towing Company to Maritime Overseas will be joint and several. The Clerk of the Court will furnish counsel of record a copy hereof. Counsel will present appropriate order promptly. Done at Houston, Texas, this 24th day of December, 1959. BEN C. CONNALLY United States District Judge 51 APPENDIX III No. 18619 JUDGMENT Extract from the Minutes of March 15, 1961 EMMETT GRAY, G. & H. TOWING COMPANY, and MARITIME OVERSEAS CORPORATION, Appellants v. EDWIN E. JOHANSSON, KANSAS CITY BRIDGE COMPANY, MERRITT-CHAPMAN & SCOTT CORPORATION and PELICAN ISLAND DEVELOPMENT CORPORATION, Appellees This cause came on to be heard on the transcript of the record from the United States District Court for the Southern District of Texas, and was argued by counsel; ON CONSIDERATION WHEREOF, It is now here ordered, adjudged and decreed by this Court that the decree of the said District Court in this cause be, and the same is hereby, affirmed; It is further ordered, adjudged and decreed that the appellants, Emmett Gray and G. & H. Towing Company, be condemned to pay the costs of this cause in this Court for which execution may be issued out of the said District Court. $2 APPENDIX IV PERTINENT CONTRACT PROVISIONS BAY-HOUSTON TOWING CO. * *# * “The rates quoted herein, and the furnishing of tug power for harbor or other towage undertaken hereunder, are founded on the consideration that this agreement shall not be construed to be a personal contract, and it is under- stood that BAY-HOUSTON TOWING COMPANY and the parties at interest with us shall have the benefit of the exemption from liability contained in the United States Limitation of Liability Statute, Title 46 U.S.C.A. 181 to 184, both inclusive. , , 195 “The Bay-Houston Towing Co. offers to meet your steamers upon arrival at Galveston, Houston, Texas City, Corpus Christi, or Port Aransas, and provide tugboat power for your steamers while in port, in accordance with tow- boat tariff shown herein and conditions named therein. “Should Bay-Houston Towing Co. tugs be not con- veniently available for the required services, the said Bay- Houston Towing Co, shall have the right to designate or engage the tugs, and such other tugs and their owners or operators shall be covered by this contract as though they were Bay-Houston Towing Co. tugs. 53 “Whenever any pilot goes on board a vessel to assist her movement or handling, he becomes and continues to be solely the servant, agent and employee of said vessel, and her owners and/or charterers in respect of all acts done by him, or all omissions, and all orders given by him to any tugs engage or to said vessel or otherwise, in the move- ment or handling of said vessel, or in connection with any decisions made by said pilot as to the manner or method of handling said vessel, 1nd none of the tugs or their owners, agents, Masters, servants, employees or charterers shall be res ,onsible or liable for any act or omission of said pilot, or for any claims or damages caused by or resulting for any act, omission or order of said pilot. “This contract to become effective on the date shown above and to remain in force until — and to continue thereafter from year to year until cancelled by either party on an anniversary date of this contract. After written notice, rates named herein may be adjusted in the light of increase or decrease in operating expenses due to changes in laws or regulations and changes in work- ing conditions of labor and labor co's in all branches. “All charges are net, except when services are performed under contract, then a discount of 10‘, is to ipply on all tariff rates. BAY-HOUSTON TOWING COMPANY abide cic setdeasseatcencla slit satcanaladeairaaieie Se ee ee ee eee ee ee ee a es 54 ACCEPTANCE “We accept the offer of the Bay-Houston Towing Co. for all tug power our steamers, or steamers operated for our account, unless otherwise bound by charter may require at the Ports of Galveston, Houston, Texas City, Corpus Christi and Port Aransas, in accordance with the rates and conditions named in tariff shown herein. By ” (In the provisions covering Assisting Vessels, at Galves- ton-Texas City, but not under the provisions for services at other named ports, the contract had a provision “Pilot- age-Shifting Vessels Without Own Power..... 60.00”) - 55 APPENDIX V B H | TUGS: Cc. R. HADEN LAURA HADEN H. 0. WEATHERBEE LUCY HADEN J. R. GUYTON R. T. McDOW JENNIFER GEORGE R. J. WALES W. A. WANSLEY Pa BARBARA GEORGE J. HARRIS MASTERSON TUG BOAT HARBOR TARIFF EFFECTIVE APRIL 10, 1957 BAY-HOUSTON TOWING CO. GALVESTON HOUSTON 504 National Hotel Bidg. 811 Cotton Ex nange Building Phone 5-9381 Phone: CApitol 2-6231 Pier *. Wharf Phone: 3-4673 Dock Phone: W Ainut 8-5406 83-4673 - 5-7534 JAckson 4-8635 Night Phones :{ 5-6542 Night Phones :{ UNderwood 9-2701 CORPUS CHRISTI Ore Dock Phone: TUlip 4-8791 & TUlip 3-7843 Night Phone: 53 Ingleside Gelf Coast Towing, Harbor Towing, 08 Lightering and Transportation OIL BARGE IFS 201 CORRESPONDENCE AND WORK SOLICITED B Teg Calls: diols (Leng, Short, Leng) H Teg Cals: aaictesn ____( Leng, Short, Leng, Shert) SRA SSN ER He Ast tae EPS oe newer ee MICRO ¢ TRADE M 56 TOWBOAT HARBOR TARIFF GALVESTON, TEXAS CITY AND HOUSTON SIIP CHANNEL GALVESTON — TEXAS CITY “lovking or Off Docking. at Gatvston. per tug $190 60 Stifung Dock to Dock per tag 205 00 Off docking and to Botwar Reads. per tug 230 00 Off docking and to Texas City and Decking. per tug 330 00 BKonvar Roads to Texas City or vice versa per tag 230 00 Dorking Off Docking, or Shifting at Texas City, per tus nw oe Towing vessels oc ocean barges from Gaivestor Bart) Hel.var Roads Texas (ty or Galves ton Docks, per tug 1 hour or fractional part 105 Ov Running time chargeabie Shifting derrick barges —Gaeivesten Harbor &S 00 Galveston to Bolivar Roads BS 06 Galveston te Texas City 135.00 Vietage Shifting Vessels Without Own Power 60 OH SPECIAL SERVICES Vultiag on Cay aground When tug is engaged in assisting vease!. one-half hour free pulling time each succeeding hour or fractiona| part s wor When Tug not engaged in assisting vesse! Ver howr or fractions) part 95.00 Running time chargeabic Purnm@iing and dehvernng water tc ships at anchorage Per Trp 200 00 IN TOWING VESSELS OF BARGES TOWED VESSELS TO FURNISH HaWwSERS When Tug ordered to certain points to perform services and ordess cancelied after Tug jenves berth minimum charges of $6000 at Galveston and $9000 at Texas City wii he made Detention caused by vease! not being ready at time specified when tug ordered to be charged for a! $60.00 per hour with one-half hour free time allowed HOUSTON SHIP CHANNEL BETWEEN Morgans Pout and Ordnance Depot, Shel), Port Adams. Todd Shipyards or Sheffield $380 OF Morgans Pont and Baytown 220 OF Helivar Roads and Morgans Pomt or Baytown 430.00 Bolivar Roads and Ordnance Depot. Shell, Port Adams. Todd Shipyards or Sheffiek 455.00 Galveston and Baytown 440 0H inne City and Baytown Ra 440.00 ouston ant Noreworthy, Crown, Galena or Sinco 240 00 one and — Shipyards, Port Adams, Sheffield, Shel) or Ordnance Depot 330 00 (alveston and Housten 580 OF Bolivar Roads and Houston S80 00 Texas City and Houston 580 00 Morgan's Point and Houston 430 00 Hw Bay 405 OF Baytown and Ordnance Depot. Sheil, Port Adams. Tedc SSipyards or Sheffield 3RO 00 (Norsworthy Crown Galena Sinco Clinten Manchester take same rates as Houston from above points | : Above charges ieciuding Docking of Off Docking TOWBOAT HARBOR TARIFF GALVESTON, TEXAS CITY AND HOUSTON SHIP CHANNEL HOUSTON SHIP CHANNEL DOCKING AND OFF DOCKING Deeting of Off Docking at all pont: between Manchester Terminal and Turn ng Hasin Goth melusive Simo Oe Decking of OE Dorking at pont. telow Manenester to Norsworthy imelusis. 19 OF Dorking of Off Decking a! pornts below Norswerthy to Ordnance Depot ineiusics 240 Decking or Off Dorking af Baytown a Oe SH'FTING Shifting vessel. between ducts at Manchester Terminal an! Turning tas beth onelasce per tug $20. 00 Shifting vessels between points teiow Manchester to Norsworthy onectusrw: per tug 20 Ow Shifting veasets from one pont & another on the same dock between port. Selow Norsworthy to Ondnanes Depot metus: ve 20 08 Shifting vesseis between ports below Norsworthy to Shei inciusive per tug 380 00 Shiftang from on berth to another at Bayt en 230 MISCELLANEOUS SERVICES Pulling on ships aground When tug is engaged! in assinting vesse! one half heur free pulling time ach succeeding hour or fractiona! part 80 00 When tug is not engaged in assisting vesse! per hour or fractional part oo Running time chargeable The above rates to a for a mingle tug vgs to stand by but not put tc work wil! be charged for the same as if pulling Kates for tow dead ships between points on Houston Ship ( hanne other than above speefied. will be charged for on “pulling ume basis ~ All towed vessels to furnish towing hawsers Holding vessels off dock and redocking shifting rates to apply Standing by or hoiding vesse! in stream or alongmide bank waiting for berth pulling time rate will apply When T ordered to certain points to perform services and onmters caneriied after Tug leaves berth minimum ree of $60.00 w)\\ be made Pemunibien and delivenng water to ships Ver Trip 200 Ov letention caused by vesee! not being ready at time specified wher tug ordered tbe charged for at $60.00 per hour with one half hour free time allowed PORT ARANSAS— CORPUS CHRISTI Decking off docking or shifting at Harber isiand S2R0 Aamsting between ‘Harter Istand and Corpus Chrvet 430 U0 Sea to Ingleside BRO 00 To dock at ingtenae When tug is at Ingiemde 290 Oo When tug is not at Ingiesmde 380 00 Asmeting between ingieeids and Harte: tolan! 2RO 00 A between ingie de and Corpus Christ. pe 380 OO Sea to Chrmat: and dock “3 430 00 From bridge at Corpus Christ: and to dock at Turning Hasin wharves 210 00 To dock at wharves in ( . nest. Turning Hasire 180 00 “Sh in Corpus Chovat) Turti.g Basin 205 00 Sea to Termina! of the Reynolds Meta! (ompany (Near ingi side) 395 © Decking or undo-king at Terminal of the Keynolds Meta) Company (Near Ingieside) 395 00 Prom outesde bridge to al! points between Sunray Dock ane ()) Docks | & 4 inciunive 230 66 From Turmng Basin inside the bridge to above docks 220 00 Te decking or off docking at above dorks 220 08 To shiftang between above docks or between above docks and docks in Corpus Christ) Turning Basin 220 00 Puthng on ships aground When tug i engaged ir asaiatin. «esse! one half nour free puiling time each sucereding hour or fractiona! par #0 00 When tug i net engaged m assisting vesse) per hour or fractional part 95 00 ume When Tug ordered to certain points to perform services and orders canceiied after Tug leaves berth min imum charges of $60 00 at Corpus ( hmst: and Harber Isiand and 89°06 at Ingiemde wil) be made The above rates t apply for « single tug Detention (ne half hour free time ye oer hour 60 00 Furneshing and deliwernng water to ships at Harbor sian’ Ingiesse or ‘ orpus Chet) Per Trp 200 06 OVERTIME RATE 20% will be added to the anf! rates for al! work performed between Ue nours of © IM and ° AM ais for work performed on Sundays and Holiday» and Mondays folowing Holdays ‘rvertome Rate to apply when service ix started and of completed in an overtime Nour Starting time wri! be the time Tug leaves berth and time of compietion wo be the tome Tug returns te berth 58 FORCE MAJEURE e Neither party shall be responsible for delays, failures or omission hereunder due to strikes. jockouts. labor disturbances, cots, fire, earthquakes, storm, hghtning. epidemics, war disorders, acts of God, etc The rates quoted herem. and the furnishing of tug power for harbor or other towage under- taken hereunder, are founded on the consideration that this agreement shali not be construed to be a personal contract, and it is understood that BAY-HOUSTON TOWING COMPANY and the parties at interest with us shall have the benefit of the exemption from lability contained in the United States Limitation of Liability Statute, Tithe 16 [ S.C.A. 181 to 184, both inclusive iene ~ %... The Bay-Houston Towing Co offers to meet your steamers upon arrival at Galveston, Hous ton, Texas City, Corpus Christi. or Port Aransas, and pros ide tugbeat pewer for your steamers while in pert, in accordance with towboat tariff shown herein and conditions named therein Should Bay-Houston Towing Co tugs be not convementls available for the required services. the said Bay-Houston Towing Co. shall have the right te designate or engage the tugs, and such other tugs and their owners or operators shall be covered by this contract as though they wer: Bay Houston Towing Co tugs Whenever any pilot goes on beard a vessel te assist her movement or handling, he becomes and continues to be solely the servant, agent and emplovee of said vessel, and her owners and/or charterers in respect of all acts done by him, or all emissions, and all orders given by him te any tugs engage or te said vessel or otherwise in the Movement or handling Of said vessel, or in con nection with any decisions made by said pilot as te the manner or method of handling said vesse., and none of the tugs or their owners, agents, Masters, servants, employees or charterers shall be responsible or lable for any act or omission of sard print, or for any claims or damages caused by or resulting for any act, omission or order of said pilot This contract to become effective on the date shown above and to remain in foree until and te continue thereafter from vear to vear until cancelled by either party on an anniversary date of this contract After written notice, rates named herein may be adjusted in the light of increase or decrease in operating expenses due te changes in laws or regu jations and changes tn working conditions of laber and labor costs in all branches All charges are net. except when services are pe rformed under contract, then a discount of 10%. is to apply on all tariff rates BAY HOUSTON TOWING COMPANY ACCEPTANCE We accept the offer of the Bay-Houston Towing Co for all tug power our steamers, or steamers operated for our account, unless otherwise bound by charter may require at the Ports of Galveston, Houston, Texas City, Corpus Christ: and Port Aransas, in accordance with the rates and conditions named in tariff shown hereim Oye --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0134%3A1. Public record. Not legal advice.