Petition — Chevron International Oil Co. v. Fairmont Shipping Corp.

IN THE

Supreme Court of the United States

OctoBer Term, 1974

\4

CHevron INTERNATIONAL O1L Company, INC.,

Petitioner,

—_—V—

FarrMont Suipprnc Corp. and Farrwinps

Ocean Carriers Corp.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS»

FOR THE SECOND CIRCUIT

Ricuarp G,. ASHWORTH

One State Street Plaza

New York, N. Y. 10004

Attorney for Petitioner,

Chevron International Oil Co., Ine.

Haicut, GarpNER, Poor & Havens

Ricuarp L. JARASHOW

Of Counsel

INDEX

RESIN AAAS OMNI rater ia eect Ror Reet AeE

ERE SERRE SBA eRe ORM ene Ae

IN UI ati a a

II UN i

Inne ir CO ad

REASONS FOR GRANTING THE WRIT

The decision below constitutes a significant depar-

» ture from: established maritime law with respect

to responsibility for the performance of tug ser-

vices and extends the concept of an implied war-

ranty of workmanlike performance far beyond the

purposes for which it was developed ......0.00..0..0........

(1) The Fifth Cireuit has properly limited the

warran.s of workmanlike performance to the

circumstances for which it was developed by

this Ceurt, where control of a shipboard

operation is surrendered to a subcontractor ....

(2) The Second and Fourth Circuits have improp-

erly extended the implied performance war-

ranty to towage contracts contrary to this

Court’s holding in Stevens v. The White City

that a tug owner is not lable without proof

BS I iriiinishaceicreicenssaateiniipeiianeliniabeeatines

PAGE

(3) The decision below further improperly ex-

tends the warranty concept to tug assistance

contracts, despite the fact that the tugs are

not in control of such operations, and imposes

an insurer’s liability contrary to established

maritime law principles .....................--.eccscsscsseees 9

IIIT cccicnarctmnncntetinsiiiscisibdemamiencddaninbaniimesiniddianiiniie ll

APPENDIX:

Opinion of the Court of Appeals -................-ccsseceeeeee la

Opinion of the District Court -22.0.............:ccccecceseeeeee 23a

Cases CITED

Central Stikstof Verkoopkanter, N.V. v. Walsh Steve-

doring Co., 380 F.2d 523 .0.......... iat 5

Dunbar v. Henry Dubois Sons, Co., 275 F.2d 304 ........ 6

Hobart v. Sohio Petroleum Co., 445 F.2d 435.000.0000... 4)

Italia Societa per Azione di Navigazione v. Oregon

Mtevedorimg Co., S76 UB. BUG nan cescesccsseesescetencecsed 4,10

James McWilliams Blue Line, Ine. v. Esso Standard

earns MUNIN PUI TIUTD sceeinlsemcessaetttahuliietisieslaiitindenslabeteadecds 6

Ryan Stevedoring Co., Inc. v. Pan Atlantic Steamship

MOOG TI I vrcc eect Ak 4,8, 10

PAGE

Smith Petroleum Serviee, Ine. v. Monsanto Chemical

I, Sir tI IIE eeeeerchiaiectncesiecisereteseieenieielionnica 6

Stevens v. The White City, 285 U.S. 195 - 6, 7, 10

Tebbs v. Baker-Whitely Towing Company, 407 F.2d

IT scascadiccdcannedeanidehaiatmenadelalemmeunieemsicammeniaiaaiamadimadsiibiceiaiien: 6

The West Eldara, 101 F.2d 45 ooo. ceccecceeeeeee 9

Todd Shipyards Corp. v. Moran cians & Transporta-

ee 6,9

TREATISES, LAW REVIEWS AND

OrHER AUTHORITIES

Davies, “Tugs, Stevedores, and the Warranty of Work-

manlike Performance,” 44 Indiana L. Journal 135

ERITREA SEES SE Pa ra RAL CS Ra SL eR cane WT WEY 8

Griffin, The American Law of Collision (1949) 000.0... 6

Parks, The Law of Tug, Tow and Pilotage (1971) ... 7

Poor, American Law of Charter Parties and Ocean

Bills of Lading (5th ed., 1968) .......-.cccssss-cccssssssesceesesenes 9

Underwood, Address to Association of Average Ad-

justers of the United States, 1970 Annual Report .. 7

IN THE

Supreme Court of the United States

OcroBer Term, 1974

Cuevron INTERNATIONAL Ow Company, INc.,

Petitioner,

-—-\V.-—

F’ainMONT Suippinc Corr. and Farrmwinps

OceAN CARRIERS CoRP.,

Respondents.

oe

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Chevron International Oil Company, Inc.,

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Second Circuit entered in this proceed-

ing on February 4, 1975.

Opinions Below

The opinion of the Court of Appeals is reported in 511

F.2d 1252 and 1975 American Maritime Cases 261 and ap-

pears in the Appendix hereto. The opinion of the District

Court for the Southern District of New York is reported

in 371 F. Supp. 1191 and 1974 American Maritime Cases

608 and appears in the Appendix hereto.

Jurisdiction

The judgment of the Court of Appeals was entered on

February 4, 1975. A timely petition for rehearing en banc

was denied on March 28, 1975, and this petition for cer-

tiorari is being filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. Whether a contract to supply bunker fuel to a vessel,

and to arrange and pay for tug assistance at the bunkering

facility, includes an implied warranty of the workmar''ke

performance of the assisting tugs and, if so,

2. Whether such warranty is breached by the tugs’ non-

negligent performance in assisting a vessel which is navi-

gating under her own power.

Statutory Provisions

No statutory provisions are involved in this case.

Statement of the Case

Chevron International Oil Company, Inc., petitioner

herein, contracted to supply bunkers at Flushing, a port on

the River Scheldt in The Netherlands, to the S/S Western

Eagle, owned by respondents, Fairmont Shipping Corp.

and Fairwinds Ocean Carriers Corp. The contract provided

that Chevron would provide ordinary tug assistance needed

in docking, which was arranged through its local sub-con-

tractor at Flushing.

3

Because the river pilot was late in boarding the West-

ern Eagle on her arrival at the River Scheldt, he did not

order tugs until the vessel was already past the place where

assisting tugs usually meet arriving vessels. The pilot

undertook to turn the vessel around upstream, above Flush-

ing, and she was half way around before the two tugs ar-

rived on the scene. It was foggy, and a stiff wind and

strong flood tide were setting the Western Eagle down

toward the river dike. The pilot ordered the tugs to make

fast at the vessel’s bow and stern, but before they could do

so, two downbound coasting vessels came out of the fog

close at hand, and fearing collision, the tugs moved away

from the ship’s side. Without tug assistance, the Western

Eagle was unable to hold her position against the wind and

tide. After the coasters had passed, the tugs came back

alongside the Western Eagle, but before they could make

fast, she went aground, suffering extensive damage.

The Western Eagle’s owners brought suit in admiralty

against Chevron in the Southern District of New York, and

after trial District Judge Lloyd F. MacMahon held that a

warranty of workmanlike service by the assisting tugs was

implied in the bunkering contract and that the warranty had

been breached by the tugs’ failure to arrive on time and to

make fast in time to prevent the stranding. The tugs’ per-

formance was not found negligent. The Court of Appeals

for the Second Circuit affirmed, in an opinion by Judge J.

Joseph Smith which noted that the Court would have had

difficulty in affirming a finding of negligence. Judge Walter

R. Mansfield dissented from the imposition of liability with-

out fault on one who provides tug services. Petition for re-

hearing en banc was denied without opinion.

REASONS FOR GRANTING THE WRIT

The decision below constitutes a significant departure

from established maritime law with respect to responsi-

bility for the performance of tug services and extends

the concept of an implied warranty of workmanlike per-

formance far beyond the purposes for which it was de-

veloped.

In Ryan Stevedoring Co., Inc. v. Pan Atlantic Steamship

Corp., 350 U.S. 124 (1955), this Court held that a warranty

of workmanlike performance was implied in a contract to

perform stevedoring services, because control of the opera-

tion was surrendered to the stevedore, whose defective per-

formance would impose liability on the shipowner. Re-

linguishing control to the contractor was again emphasized

by this Court in Italia Societa de Navigazione v. Oregon

Stevedoring Co., 376 U.S. 315 (1964), as a prerequisite to

implying the warranty in a contract to perform services:

“Oregon, a specialist in stevedoring, was hired to

load and unload the ... vessels... Not only did the

agreement between the shipowner place control of the

operations on the stevedore company, but Oregon was

also charged under the contract with the supervision

of these operations.” 376 U.S. at pp. 322-323.

(1) The Fifth Circuit has properly limited the warranty of

workmanlike performance to the circumstances for which

it was developed by this Court, where control of a ship-

board operation is surrendered to a subcontractor.

The Court of Appeals for the Fifth Cireuit has been

careful to limit the implied warranty of workmanlike

performance to shipboard service contracts where control

is surrendered to the contractor.

5)

“When a shipowner has turned his vessel over to a

stevedoring company, however, and shipboard injuries

result, it obviously seems unjust to hold the shipowner

absolutely liable when he was, at the time of the acci-

dent, in no position to prevent the injuries. It is to

alleviate the harshness of Sieracki absolute liability

against shipowners in situations when the shipowner

has relinquished control of his vessel and another party

is better situated to prevent losses caused by shipboard

injuries that Ryan indemnification is imposed. This,

at least, is the message of Supreme Court opinions fol-

lowing Ryan. See, e.g., Italia Societa, ete. v. Oregon

Stevedoring Co., 376 U.S. 315, 84S. Ct. 748, 11 L.Ed.2d

732 (1964).” Hobart v. Sohio Petroleum Co., 445 F.2d

435, 438 (Sth Cir., 1971), cert. denied, 404 U.S. 942

(1971).

“The Ryan doctrine establishes a severe and harsh

rule which imposes a substantial and heavy burden on

the stevedore or one similarly situated ... Because of

the weight of this burden, and because of the far-reach-

ing implications of the doctrine if applied outside its

original context, we have been slow to expand the scope

of the doctrine beyond the original factual cireum-

stances in which it arose.” Central Stikstof Verkoop-

kanter, N.V. v. Walsh Stevedoring Co., 380 F.2d 523,

529 (Sth Cir., 1967).

“Law review writers have characterized the indem-

nity theory announced in Ryan as a concept designed to

meet special admiralty law problems involving ship-

owners and stevedores. In the words of one commenta-

tor, Ryan must be viewed in the light of ‘the never-

ending dispute between shipowners and their contract-

ing stevedores as to which party ultimately is to re-

spond in damages, assuming that the longshoreman’s

cause of action for personal injuries against the vessel

6

owner is a meritorious one.” Bue, Admiralty Law in

the Fifth Cireuit—A Compendium for Practitioners:

I, 4 Houston L. Rev. 347, 408 (1966).” Smith Petroleum

Service, Inc. v. Monsanto Chemical Company, 420 F.2d

1103, 1109 N. 9 (5th Cir., 1970).

(2) The Second and Fourth Circuits have improperly ex-

tended the implied performance warranty to towage con-

tracts, contrary to this Court’s holding in Stevens y. The

White City that a tug owner is not liable without proof

of negligence.

The Courts of Appeals for the Second and Fourth

Circuits have extended the doctrine of implied war-

ranty of workmanlike performance to contracts to tow a

“dead” ship (i.e., a ship not using her own power), Tebbs

v. Baker-Whitely Towing Company, 407 F.2d 1055 (4th

Cir., 1969), Dunbar v. Henry Dubois Sons Co., 275 F.2d

304 (2d Cir., 1960), cert. denied, 364 U.S. 815 (1960), and

to contracts to tow a “dumb” (i.e., unmanned) barge, James

McWilliams Blue Line, Inc. vy. Esso Standard Oil Co., 245

F.2d 84 (2d Cir., 1957), Todd Shipyards Corp. v. Moran

Towing & Transportation Co., 247 F.2d 261 (2d Cir., 1957).

At first blush such limited extension of the doctrine may

seem appropriate, because control over the dead ship or

dumb barge is relinquished to the towing company, anal-

ogous to surrendering control of loading operations te a

stevedore. But the interpretation of the nature of the war-

ranty, to impose upon the tug company liability without

fault, runs afoul of the principle of maritime law enunci-

ated by this Court in Stevens v. The White City, 285 U.S.

195 (1931), that in the absence of proof of negligence on

the part of a tug, her owner is not liable for damage to the

tow, even if it was unmanned and under the exclusive con-

trol of the tug. See Griffin, The American Law of Collision

(1949), (179 “Tug’s Liability to Tow.”

7

Commentators have pointed out and criticized the anom-

aly of imposing liability without fault by implying a

performance warranty in a towing contract.

o * ~

“a warranty of workmanlike service is not

applicable to a towage situation and, if extended by

an erroneous belief in its applicability, would fly in

the face of the rule in The White City, supra; would

preclude limitation of lability under the ‘personal

contract’ doctrine; and create confusion in the indus-

try which has come to rely upon the principle that

damage actions under towage contracts are ex delicto

and not ex contractu. * * *” Parks, The Law of Tug,

Tow and Pilotage, 13 (1971).

Parks’ warning as to the loss of the tug owner’s right to

limitation of liability as a result of implying a perform-

ance warranty in a towing contract, was echoed by the

Chairman of the Association of Average Adjusters of the

United States in the Annual Address to the Association in

1970; Mr. Underwood expressed the view that the judicial

creation of such an implied warranty is not only “bad law”

because it departs from the long line of decisions, including

Stevens, holding that “a tug’s liability for damage lies in

negligence only,” but also “seriously dangerous,” in that

it would deprive a tug owner of the right to limitation of

liability, to which it would be entitled if the claim sounded

in negligence (1970 Report of the Association of Average

Adjusters of the United States, p. 817).

Another commentator emphasized the point made by

Judge Mansfield in his dissent below (App. p. 19a) against

“invocation of the term ‘warranty’ as if it were some sort

of magical talisman, particularly when the policy reasons

a EE

8

for the judicially created Ryan-type ‘warranty of work-

manlike service’ are not present.”

“And so the words of Ryan, transposed to tug-tow

situations without any apparent consideration for the

relevance of the policies and history behind their in-

ception in stevedoring or for the factual and legal dif-

ferences between stevedoring and towing have the

potential of very radical effects if pressed to their

full logical extent or very modest effects if adopted

to coniorm to existing law.

“Placed against Stevens’ attempt to define a legal

relationship between tug and vow, the Ryan words must

be either restricted to indemnity cases, an approach

which fits the present cases but is illogical; treated

as merely a rephrasing of the Stevens’ dictum, an

approach which is uncharacteristic of the radicalism

of Ryan; or used to overrule Stevens in its entirety,

which no court citing Ryan in a towing ease has indi-

cated that it thought it was doing. Alternatively, tow-

age operations could be divided on their facts between

those in which the tug and tow are partners, governed

by Stevens, and those under the tug’s sole control, gov-

erned by Ryan, though possibly a Ryan doctrine modi-

fied in its consequences to reflect the realities of tugs

and towing.

“Until a court critically examines what it does by

venerally applying /@yan in the substantially different

context of towing, such application at best reflects

fascination with words in preference to the ideas that

they are meant to convey. At its indiscriminate worst,

it has a potential for substantial unfairness.” Davies,

“Tugs, Stevedores and the Warranty of Workmanlike

Performance,” 44 /ndiana L. Journal, 135, 158 (1969).

9

(3) The decision helow further improperly extends the war-

ranty concept to tug assistance contracts, despite the fact

that the tugs are not in control of such operations, and

imposes an insurer’s liability contrary to established mari-

time law principles.

Still further basic changes in established maritime law

result from implying a warranty in a contract to furnish

tug assistance, such as in the present case, as distinguished

from towage of a dead ship or dumb barge. Firstly, the

element of control, fundamental to an implied warranty

of workmanlike performance, is absent where the assisted

vessel is navigating under the command of her own

officers with a pilot in charge of the operation. Sec-

ondly, it has until now been unquestioned that the

customary timecharter provision whereby a charterer

arranges and pays for tug assistance does not impose

liability for damage done by the tugs, even negligently,

The West Eldara, 101 F.2d 45, 47 (2nd Cir. 1939), modi-

fied, 104 F.2d 670, cert. denied, 308 U.S. 607 (1939); Poor,

American Law of Charter Parties and Ocean Bills of Lad-

ing, 26 (Sth Ed. 1968), any more than in the ease of a

broker or agent who arranges for tug assistance, Todd

Shipyards Corp. v. Moran Towing & Transportation Co.,

supra, 247 F.2d at pp. 647-8. To read a warranty of work-

manlike performance into a contract to arrange and pay

for a subcontractor’s tugs to assist a vessel, as does the

decision below, thus gives a wholly unanticipated effect

to a standard maritime commercial arrangement. It shifts

the risk of navigational error from the shipowner to a

bunkers supplier (or timecharterer), making it the insurer

of accidents involving tugs, when previously there was no

liability even for tug negligence, and all that was intended

was that the supplier (or charterer) would simply pay for

the tug assistance to the vessel.

10

The decision below is thus doubly in error: by imposing

liability without fault on the part of a tug, it conflicts

with the rule of Stevens v. The White City, and by imply-

ing a performance warranty in a contract for tug assistance

to a vessel navigating under her own power, it fails to

recognize that Ryan and /talia establish that surrender

of control to the contractor is a necessary element of

an implied warranty of workmanlike performance. Under

Stevens a tug owner is not liable for damage to an un-

manned tow in the absence of fault on the part of its

tug; a fortiori the decision below errs in holding that one

who contracts to arrange for tug assistance to a navigating

vessel is liable for damages resulting from non-negligent

performance by its subcontractor’s tugs.

The extension by the Second and Fourth Circuits of

implied warranties into tug assistance contracts in situ-

ations wholly dissimilar to the stevedore cases in which this

Court evolved the Ryan warranty, and in which new situ-

ations the warranty conflicts with established principles

of maritime law, should be reviewed by this Court. Only

this Court has the power to determine whether the basis

for liability for damage caused by tugs should be changed

by overruling Stevens or whether the warranty should be

limited to its own context.

11

CONCLUSION

For the foregoing reasons the petition should be

granied and a writ of certiorari issue to review the judg-

ment and opinion of the Court of Appeals for the Sec-

ond Circuit.

Respectfully submitted,

Ricuarp G. ASHWORTH

One State Street Plaza

New York, N. Y. 10004

Attorney for Petitioner,

Chevron International Oil Co., Ince.

Haicut, Garpner, Poor & Havens

Ricnarp L. JARASHOW

Of Counsel

APPENDIX

APPENDIX

Opinion of the Court of Appeals—February 4, 1975

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Before:

HonoraB_e J. JosepH SMITH

HonoraBLe Pavut R. Hays

HonoraBLeE Water R. MANSFIELD

Docket No. 73-1667

—f—

FairMONT SuHippinc Corp. and Farwinps Ocean CARRIERS

Corp., Owners of the Steamship Western Eac.e,

Plaintiffs-Appellees,

—against—

CHEVRON INTERNATIONAL O1L Company, INC.,

Defendant-A ppellant.

Sairn, Circuit Judge:

Fairmont Shipping Corp. and Fairwinds Ocean Carrier

Corp. (collectively referred to as Fairmont) brought this

action against Chevron International Oil Company, Ine.

seeking to recover for damage suifered by their vessel, the

steamship Western Eagle, when she fetched up against a

dike in Flushing Roads at the port of Flushing, The Nether-

lands. Chevron contracted with Norland Shipping &

Trading Co., Fairmont’s agent, to supply bunkers (fuel

oil) to the Western Eagle at Flushing. The contract stip-

ulated that Chevron would also provide tug assistance; it

did so through its sub-contractor or agent, Steenkolen

Handelsvereeniging (SHV). The tugs, however, did not

make fast to the Western Eagle when directed to do so

by the pilot, and the vessel, unable to make headway on

her own against the prevailing wind and current, drifted

into the dike as a result. The United States District Court

for the Southern District of New York, Lloyd F. Mac-

Mahon, Judge, sitting without a jury, found that a war-

ranty of workmanlike service was implied in the contract

to provide tug assistance and that the tugs’ failure to make

fast constituted a breach of that warranty, and directed

that a special master be appointed to ascertain damages.

371 F. Supp. 1191 (S.D.N.Y. 1974). We affirm.

I. Tue Facts

Since Chevron does not challenge on appeal the district

court’s finding that under the bunker supply contract

3a

Chevron was obligated to provide tug assistance,’ we may

proceed directly to the facts as they unfolded at Flushing

in the early morning hours of December 14, 1969. At 3:00

a.m. the Western Eagle entered the Scheldt River, east-

bound for Buitenhaven, the harbor of Flushing, located on

the river’s north bank. She took on a loeal pilot, L. J.

Pennarts, at 3:45. Pennarts met the Western Eagle ap-

proximately a mile upriver from the pilot station, the

normal boarding area, beeause the pilot boat was late in

leaving the harbor. Thus, when Pennarts came on board,

the Western Eavle was almost abeam of Buitenhaven. The

visibility at that time was poor, but not bad enough to

prevent Pennarts from seeing the lights of the pilot sta-

tion, the lights of the British Statesman (a tanker an-

chored nearby), and the fog lights on shore, half a mile

away. A stiff wind (19-31 m.p.h.) was blowing out of the

south, and a flood tide was moving upriver at 2 to 214 m.p.h.

As soon as Pennarts got on board, he radioed for the

tugs. In the meantime, since the Western Eagle had gone

past Bnitenhaven, and since the normal practice was for

tugs to meet ships over a mile to the west of Buitenhaven,

Pennarts decided to turn the Western Eagle hack down-

river by swinging her to starboard, around the British

Statesman, and to wait for the tugs at the normal meet-

ing place in Flushing Roads. But the wind pushed the

ship to port, and Pennarts’ corrective steps brought him

close to a buoy marking the south side of the channel.

Rather than risk leaving the channel, Pennarts decided to

abandon the attempt to turn the ship by itself; he stopped

the engines, and then put them full speed astern, waiting

for the tugs.

1 In the district court, Chevron denied “the existence of any contract

between it and plaintiffs, or the existence of any clause in the contract

for pilotage or towage.” 371 F. Supp. at 1192.

4a

When the tugs—the Sophia and the Frederik Hendrik—

arrived, the Western Eagle was thus considerably upriver

from the normal meeting place. Pennarts ordered the tugs

to make fast as soon as possible, the Frederik Hendrik to

the port bow and the Sophia to the stern. The Frederik

Hendrik took a heaving line, but before it could make

fast both it and the Sophia suddenly moved out of posi-

tion at the approach of a downriver coasting vessel. A

few minutes later, a second downriver coaster approached,

and again he tugs left the ship; this time, the Frederik

Hendrik unfastened the heaving line. The Western Fagle

was approximately 1800 feet from the northern shore when

the coasters passed, port to port, between her and that

shore.

Without the tugs, the Western Eagle was _ helpless

against the wind and the tide. As she drifted toward the

northern bank of the Scheldt, the tugs returned to her, but

they were not in position to make fast. Despite Pennarts’

efforts to keep her from stranding, the Western Eagle ran

azround on the dike at 4:15. Later in the day, at high

tide, she was refloated and towed to drydock where exten-

sive damage was discovered.

Il. Tae Existence or a Warranty oF

WoRKMANLIKF SERVICE

The district court held that, hecause the tugs were in

the best position to adopt measures to prevent the acci-

dent, but failed to do so and thereby cansed the accident,

there was a breach of Chevron’s implied warranty of

workmanlike service. Chevron argues that there was no

such warranty in this case hecause a contract for tug

assistance does not entail the relinquishing of control

over the vessel’s navigation to the tugs. It claims that con-

trol is a sine qua non to a warranty of workmanlike service.

5a

The landmark case involving warranties of workmanlike

service in maritime contracts is Ryan Stevedoring Co. v.

Pan-Atlantic S.S. Corp., 350 U.S, 124 (1956). Ryan was

the culmination of a series of cases involving the interlock-

ing relationship among shipowners, stevedoring companies

and longshoremen, and must he read with that backdrop

in mind.2 In Seas Shipping Co. v. Sieracki, 328 U.S. 85

(1946), longshoremen were held to be seamen insofar as

that status made them persons to whom shipowners owe

the duty-——an absolute duty, not turning on fault—to pro-

vide a seaworthy ship.2 And in Halcyon Lines v. Haenn

Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952), it

was held that, where the unseaworthy condition was the

result of the combined fault of the shipowner and the

stevedoring company (the longshoreman’s employer), the

shipowner was not entitled to contribution from the steve-

dore as a joint tortfeasor.‘ The rationale for the holding

was that the creation of a rule for contribution among

joint tortfeasors was a matter for legislative, not judicial

action.

After Sieracki and Halcyon, shipowners were in an un-

enviable position: A longshoreman might be injured as

a result of an-unseaworthy condition caused wholly by

the stevedore’s negligence, and yet the shipowner, wholly

without fault, could be held liable for the entire amount

of compensatory damages. .\nd this potential liability was

made even more painful by the fact that the longshoreman

would, in every case, sue the shipowner for unseaworthi-

: The discussion we set forth is limited to essentials. The history is

recounted in detail in G. Gilmore and C. Black, The Law of Admiralty

§§6-53-6-57, at 358-374 (1957).

3 Compare, Swanson v. Marra Bros., 328 U.S. 1 (1946), decided the

same day as Sieracki, holding that longshoremen are rot seamen for

purposes of the Jones Act, 46 U.S.C. $688.

+ Under the particular facts in Halcyon, the stevedore was found to

he 75% at fault, the shipowner only 25%.

6a

ness rather than the stevedore for negligence because

the latter cause of action had been abolished by the Long-

shoremen’s and Harbor Workers’ Compensation Act of

1927, 33 U.S.C. § 901 et seg. (LHWCA).° The shipowner’s

plight was “a situation which cried out for relief,” H.

Baer, Admiralty Law of the Supreme Court §2-8, at 183

(1963), and that relief was granted in Ryan.’ A long-

shoreman named Palazzolo was injured by a roll of pulp-

board which had been improperly stowed by his employer,

Ryan Stevedoring Company. He recovered damages from

Pan-Atlantic Steamship Corporation, the shipowner, on

an unseaworthiness claim under Sieracki and Pan-Atlantie,

barred from seeking contribution by Halcyon, sought in-

demnity from Ryan on the contractual theory that Ryan

had implicitly agreed to perform its stevedoring services

in a workmanlike manner, and that this warranty entailed

an agreement to indemnify Pan-Atlantie for any liability

which it might incur by reason of an unseaworthy condi-

tion created by Ryan’s unworkmanlike performance. The

Supreme Court, after holding that Pan-Atlantie’s action

was not barred by the exclusivity provision of the LHWCA,

agreed that there was indeed such a warranty, and that

Pan-Atlantic was entitled to indemnification from Ryan

on account of Rvan’s breach tliereor:

The shipowner here holds petitioner’s uncontroverted

agreement to perform all of the shipowner’s steve-

5 The LHWCA made employers liable without fault to compensate

employees for work-connected injuries in amounts determined by sched-

ules of benefits for various types of injuries, and it made that liability

exclusive.

6 The commentators are in agreement that Ryan was designed to meet

this specialized need of shipowners. Stover, Longshoreman-Shipowuer-

Stevedore: The Circle of Liability, 61 Mich. L.Rev. 539, 562 (1963);

White, 4 New Look at the Shipowner’s Right-Over for Shipboard In-

juries, 12 Stan. L.Rev. 717, 739 (1960); 44 Calif. L.Rev. 800, 804

(1956); 32 Geo. Wash. L.Rev. 893, 894 (1964); 6 N.Y.L. Forum 168,

185 (1960); 66 Yale L.J. 581, 584-85 (1957).

7

7a

dering operations at the time and place where the

cargo in question was loaded, That agreement neces-

sarily includes petitioner’s obligation not only to stow

the pulp rolls, but to stow them properly and safely.

Competency and safcty of stowage are inescapable

elements of the service undertaken. This obligation

is not a quasi-contractual obligation implied in law

or arising out of a noncontractual relationship. It

is of the essence of petitioner’s stevedoring contract.

It is petitioner’s warranty of workmanlike service

that is comparable to a manufacvirer’s warranty of

the soundness of its manufactured product.

350 U.S. at 133-34,

Subscquent decisions filled in the details of the nature

and scope of the Ryan warranty. It was established that

a stevedore’s warranty to indemnify extends not only to

its handling of cargo, as in Ryan, “but also to the use of

equipment incidental thereto,” Weyerhaeuser S.S. Co. v.

Nacirema Operating Co., 355 U.S. 563, 567 (1958); that

it runs not only to the shipowner, but to the ship as well,

Crumady v. The J.H, Fisser, 358 U.S. 423 (1959), regard-

less of whether the stevedore was engaged directly by

the shipowner, by a time charterer, Crumady, or by the

consignee of the ship’s cargo, Waterman S.S. Corp. v.

Dugan & McNamara, lie., 364 U.S. 421 (1960); and that

it can be breached not only by negligently creating an

unseaworthy condition, but by negligently bringing into

play a pre-existing unseaworthy condition, Crumady, as

well as by the non-negligent supplying of defective equip-

ment. Italia Societa per Azioni di Navigazione v. Oregon

Stevedoring Co., 376 U.S. 315 (1964). In Italia, the Court

set forth the rationale for requiring indemnification in

such situations—the same rationale that had prompted

Ryan:

8a

Where the shipowner is liable to the employees of

the stevedore company as well as its employees for

failing to supply a vessel and equipment free of de-

fects, regardless of negligence, we do not think it

unfair or unwise to require the stevedore to indem-

nify the shipowner for damages sustained as a result

of injury-producing defective equipment supplied by

a stevedore in furtherance of its contractual obliga-

tions. [Citation omitted. ]

... [We deal here with a suit for indemnification

based upon a maritime centract ...in an area where

rather special rules governing the obligations and lia-

bility of shipowners prevail, rules that are designed

to minimize the hazards encountered by seamen, to

compensate seamen for the accidents that inevitably

occur, and to minimize the likelihood of such accei-

dents. By placing the burden ultimately on the com-

pany whose default caused the injury [citation omit-

ted], we think our decision today is in furtherance

of these objectives.

376 U.S. at 324.

This court has more than once recognized that it is the

shipowner’s strict liability for unseaworthiness that rests

at the heart of Ryan indemnity. Schwartz v. Compagnie

General Transatlantique, 405 F.2d 270, 276 (2d Cir. 1968)

(“[Alny equitable considerations underlying the decision

of courts to require indemnity by applying the implied

warranty of workmanlike service are ultimately derived

from a shipowner’s liabilities under the seaworthiness

guarantee .. ”); DiGioia v. United States Lines Co., 304

F.2d 421, 425 (2d Cir. 1962) (“The primary source of a

shipowner’s right to indemnity, as a practical matter, is

his nondelegable duty to provide a seaworthy ship. ...”)

Accord: Liberty Mutual Insurance Co. v. Fruehauf Corp.,

9a

472 F.2d 69, 70-71 (6th Cir. 1972); Barr v. Brezina Con-

struction Co., 464 F.2d 1141, 1145 (10th Cir. 1972), cert.

denied, 409 U.S. 1125 (1973); Hebart v. Sohio Petroleum

Co., 445 F.2d 435, 488 (Sth Cir.), cert. denied, 404 U.S.

942 (1971).’ A striking example of the application of this

principle may be found in Davis v. Chas. Kurz & Co., 483

F.2d 184 (9th Cir. 1973). The shipowner’s vessel was in

a repair facility, and not in navigation. The general con-

tractor for repairs (Northwest) hired a subcontractor

(Pacific), one of whose employees was injured on the

ship. He sued the shipowner and Northwest, and North-

west impleaded Pacific, seeking indeminity. One who con-

tracts to perform repairs on a ship is generally consid-

ered bound by the Ryan warranty, Booth Steamship Co.

v. Meter & Oelhaf Co., 262 F.2d 310 (2d Cir. 1958); here,

however, the district court’s findings that the vessel was

a dead ship, and that the owner was therefore relieved

of the duty to provide a seaworthy vessel, were not chal-

lenged on appeal. The Ninth Circuit held that Ryan was

therefore inapplicable, because the shipowner’s liability

for unseaworthiness was removed from the case:

The rationale underlying Ryan and the later cases

is that when a shipowner owes a duty of seaworthi-

ness to an injured party (and consequently its liabil-

‘ty is not dependent on a finding of its fault) a cor-

responding duty of indemnity should devolve upon a

stevedore whose failure to perform with reasonable

safety caused the injury. [Citations omitted.]

7 Hobart is one of a series of Fifth Circuit cases steadfastly refusing

to extend Ryan indemnity to situations other than those involving a

shipowner’s liability for unseaworthiness. Smith Petroleum Service, Inc.

v. Monsanto Chemical Co., 420 F.2d 1103, 1109 n. 9 (5th Cir. 1970);

Loffand Brothers Co. v. Roberts, 386 F.2d 540, 549 (5th Cir. 1967),

cert. denied, 389 U.S. 1040 (1968); Centraal Stikstof Verkoopkanter,

N.V. vy. Walsh Stevedoring Co., 380 F.2d 523, 529 (5th Cir. 1967);

Ocean Drilling ¢ Exploration Co. v. Berry Brothers Oilfield Service,

Inc., 377 F.2d 511, 513 (5th Cir.), cert. denied, 389 U.S. 849 (1967).

10a

Northwest argues that the existence of the warranty

does not depend on a corresponding existence of a

duty of seaworthiness. We think that it does. The

circumstance which gives rise to the implied war-

ranty is the duty of seaworthiness owed by the party

seeking indemnification.

483 F.2d at 187.

Other decisions—including that of the district court in

this case, 371 F. Supp. at 1194-95—have rested Ryan on

the elements of expertise, control, supervision and ability

to prevent accidents: The shipowner, relying on the

stevedore’s expertise, entrusts loading operations to its

supervision and control, thereby putting the stevedore in

the best position to prevent accidents. The same reason-

ing has been applied to “dead tows,” Tebls v. Baker-

Whiteley Towing Co., 407 F.2d 1055, 1058 (4th Cir. 1969) ;

and ship repairs, 1] & H Ship Service Co. v. Weyerhaeuser

Line, 382 F.2d 711, 712-13 (9th Cir. 1967). While these

factors are certainly important, Italia, supra, 376 U.S. at

322-28, they omit the most significant aspect: the fact

that the absolute duty of seaworthiness requires shipown-

ers, regardless of their fault, to pay for accidents caused

by stevedores. It is doubtful that Ryan would have been

necessary were it not for Sieracki; the pre-Ryan situa-

tion would not have been so inequitable had the shipown-

er’s liability to the longshoreman turned solely on a negli-

gence standard, rather than on the absolute seaworthiness

standard imposed by Sieracki.’ Therefore, we find the

8 The 1972 amendments to the LHWCA, P.L. 92-576, 33 U.S.C. §901

et seq., provide that shipowners can be held liable to longshoremen

only for negligence, and not for unseaworthiness. By thus overruling

Sieracki, the Congress intended to overrule indemnity to stevedores

under Ryan. Travelers Insurance Co. v. United States, 493 F.2d 881,

885 n. 6 (3d Cir. 1974); Brock v. Coral Drilling, Inc., 477 F.2d 211,

213 n. 1 (Sth Cir. 1973). This view is confirmed by the legislative

lla

crucial elements of Ryan to be as follows: a shipowner,’

relying on the expertise of another party (the contrac-

tor),’° enters into a contract whereby the contractor agrees

to perform services without supervision er control by the

shipowner; the improper, unsafe or incompetent execu-

tion of such services would foreseeahly render the vessel

unseaworthy or bring into play a pre-existing unseaworthy

condition: and the shipowner would thereby be exposed

to lability regardless of fanlt. Where these elements are

present, there will be implied in the contract an agree-

ment by the contractor to indemnify the shipowner for

any lability it might ineur as a result of an unseaworthy

condition cansed or brought into play by the improper,

unsafe or incompetent performance of the contractor.”

history: “Sinee the vessel's lishility is to be based on its own reg-

ligence, and the vessel will no longer be liable under the seaworthiness

doctrine for injuries which are really the fault of the stevedore, there

is no longer anv necessity for permitting the vessel to reeover the

damages fr which it is linh's to the injured worker from the stevedore

or other employer of the worker.” H.R. 92-1441 (92d Cong., 2d Sess.),

quoted at 1972 U.S. Code Cong. & Ad. News 4698, 4704.

9 This ineludes a time charteror. Crumady v. The J.H. Fisser, 358 U.S.

423 (1959), or the consignee of the ship's cargo, Waterman 8.8. Corp.

v. Dugan & McNamara, Inc., 364 U.S. 421 (1960), or another in a

similar position.

19 That Ryan no longer applies to stevedores and other employers covered

by the LHWCA, sce note 8, supra, does not necessarily mean that it

is inapplicable to other contractors. Ryan has been held to apply to

eases involving ship cleaning, H & H Ship Service Co. v. Weyerhaeuser

Line, 382 F.2d 711 (9th Cir. 1967); ship painting, Mortensen v. A/S

Glittre, 348 F.2d 383 (2d Cir. 1965); shipyard services, American

Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525

(4th Cir. 1964); towage services, Dunbar v. Henry DuBois’ Sons Co.,

275 P.2d 304 (2d Cir.), cert. denied, 364 U.S. 815 (1960); and repair

work on a ship’s engines, Booth Steamship Co. v. Meier & Oelhaf Co.,

262 F.2d 310 (2d Cir. 1958).

11 There is authority for applying Ryan to situations where the in-

demnitee’s liability is predicated on some non-fault basis other than

unseaworthiness. Cameco, Inc. v. S.S. “American Legion,” —— F.2d

——, slip op. 785 (2d Cir. Dec. 16, 1974) (earrier’s liability to con-

12a

A standard essentially equivalent to that articulated

here was applied in Hartnett vy. Reiss Steamship Co., 421

F.2d 1011 (2d Cir.), cert. denied, 400 U.S. 852 (1970).

That case involved the issue of whether the consignee of

the cargo, which unloaded the cargo itself, could be held

liable to indemnify the shipowner under Ryan. The con-

signee argued that, since it was merely accepting deliv-

ery of the cargo, it could not be held to the same standard

of care applicable to a stevedore. This court rejected the

argument, stating:

We feel that the concept of stevedore should embrace

anyone who by his acts can create—or avoid the crea-

tion of—those special risks which justify holding a

stevedore to a warranty of super-carefulness to a ship,

whose own liability to injured workers approaches

strict liability.

421 F.2d at 1016 (emphasis added).

With this background in mind, it can be seen that the

instant case is not really a Ryan case at all. The primary

issue in Ryan was the indemnity problem, and the Court

used the warranty of workmanlike performance as a vehicle

signee under contract of carriage); United States v. Tuq Manzanillo,

310 F.2d 220 (9th Cir. 1962) (shipowner’s liability to seaman for main-

tenance and cure); James McWilliams Blue Line v. Esso Standard Oil

Co., 245 F.2d 84 (2d Cir. 1957) (time charterer’s vicarious liability to

shipowner for negligence of third party to whom charterer entrusted

vessel). In Tebbs v. Baker-Whitely Towing Co., 407 F.2d 1055 (4th

Cir. 1969), however, Ryan was held applicable in a situation where the

negligent bailee of a tow sought indemnity on its warranty from the

tug (which could have acted to compensate for the other party’s neg-

ligence). It may be that indemnity under Ryan should not be available

to a party whose liability is based solely on negligence. The result in

Tebbs might be justified, however, under a theory of last clear chance.

See, Petition of Marina Mercante Nicaraguense, S.4., 364 F.2d 118,

124 (2d Cir. 1966), cert. denied, 385 U.S. 1005 (1967); Petition of

Kinsman Transit Co., 338 F.2d 708, 720 (2d Cir. 1964), cert. denied,

380 U.S. 944 (1965).

13a

on which to base the stevedore’s liability to indemnify the

shipowner. Ryan's recognition of the existence of a war-

ranty of workmanlike performance in a maritime service

contract was merely incidental to its particularized hold-

ing that the shipowner in the circumstances there presented

was entitled to indemnity. Thus, the factors to be con-

sidered in determining whether a contract includes a war-

ranty of workmanlike performance are entirely separate

from the factors that go into the determination of whether

that warranty encompasses an obligation to indemnify.

The arguments advanced by the parties here, as well as

those relied on by the district court, are more properly

directed to the latter issue. That, however, is not the issue

in this case, which involves no indemnity problem. This

case involves only the much simpler issue of whether

Chevron’s contract to provide tug assistance imposed on

Chevron" an obligation to perform in a workmanlike man-

ner. We perceive that as a simpler issue because in our

view Ryan, by necessary implication, confirmed the ap-

plieability to maritime service contracts of the hornbook

rule of contract law that one who contracts to provide

services impliedly agrees to perform in a diligent and

workmanlike manner. 9 S. Williston, Contracts §1012C,

at 38-39 (2d ed. Jaeger 1967). This obligation has been

implied in contracts ranging from an ordinary construc-

tion contract, //enggeler v. Jindra, 191 Neb. 317, 214 N.W.

2d 925 (1974), to a contract to install plumbing, In re

Estate of Talbott, 184 Kan. 501, 337 P.2d 986 (1959), to

a contract to tan goat skins, William Beadenkopf Co. v.

Henwood d’ Nowak, Inc., 14 F.2d 125 (D. Mass. 1926), and

there is no reason why it should not be implied in maritime

service contracts as well. Accordingly, we hold that there

12 And upon Chevron’s subcontractor or agent. Todd Shipyards Corp. v.

Moran Towing & Transportation Co., 247 F.2d 626 (2d Cir. 1957).

l4a

should be implied in Chevron’s contract to provide tug

assistance™ an obligation to perform in a workmanlike

manner-—that is, a warranty of workmanlike performance.

Ill. Tur Breacn or THE WaRRANTY

The district court found that the stranding of the

Western Eagle was caused by the late appearance of the

tugs on the scene and by the failure of the tugs to make

fast when directed to do so by Pennarts. Chevron claims

that neither finding ean support the holding that the

warranty of workmanlike performance was breached: the

former, because the tugs were under no duty to come out

until called for by the pilot: the latter, because the tugs

acted reasonably in order to avoid collision with the other

traffie on the river. We need reach only the latter con-

tention, however, because it does not appear that the find-

ing of breach of warranty rested on the tugs’ late arrival.

The district court. relying on Pennarts’ statement that

“if the tugs had made fast. ‘] was out of the trouble,’ ”

371 F. Supp. at 1196, s;eeifieally found that “[dJespite

13 More accurately, Chevron’s contract was of a hy >rid variety, for

Chevron agreed to sell bunkers, a product, as well as to provide the

accompanying serviees. This does not change the applicability to the

serviee portion of the contract of the warranty of workmanlike per-

formance, however. In cases involving warranties of fitness of goods,

courts at one time based the applicability of the warranty on whether

the contraet was one to provide goods or services, and in cases of hybrid

contracts the characterization was likely to be result-oriented. Perl-

mutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954)

(contract to provide hospital eare held to be contract for services, not

goods, and therefore hospital did not breach any implied warranty of

fitness when it transfused hepatitis-contaminated blood into patient).

The current trend, however, is to treat hybrids for what they are,

applying the warranty of fitness to goods sold or provided in conjunc-

tion with services. Newmark v. Gimbels, Inc., 54 N.J. 585, 258 A.2d

697 (1969) (patron of beauty salon injured by solution applied while

receiving permanent wave): Hoffman v. Misericordia Hospital of Phil-

adelphia, 439 Pa. 501, 267 A.2d 867 (1970) (patient contracted illness

from contaminated blood supplied by hospital).

15a

the tugs’ late arrival . . . the accident could have been

avoided if the tugs had made fast to the Western Eacue

and assisted her in turning.” Jd. at 1197.4 Thus, the

erucial question in determining whether the warranty was

breached is whether or not the tugs were justified in

leaving the Western Eagle at the approach of the down-

river coasters.

The testimony in this regard is inconclusive. On the one

hand, the coasters no doubt did pass in close proximity to

the Western Eagle, and Pennarts did state that he was

fearful of a collision. On the other hand, it seems clear

that there was a distance of 1800 feet between the Western

Eagle and the northern bank of the Scheldt—ample room

for the coasters to pass. It is uncontradicted that the

coasters did in fact pass without incident. And it also

seems to have been the case that the Frederik Hendrik

was close enough to the Western Eagle to take a heaving

line, but unfastened it at the approach of the second coaster.

As for visibility, while there were some indications that

the fog was dense, Pennarts stated that he could see lights

on shore—one half mile away—when he boarded the West-

ern Eagle.

If this were a case turning on a negligence standard, we

might find it more difficult..*> But a warranty of workman-

14 The dissenting opinion states that the Sophia did in fact make fast

after the coasters had passed, but the line parted. However, Schuiling,

the Sophia's es» ain, stated that he first made fast at “exactly” 4:20

a.m. Sinee the Western Eagle went aground at 4:15, it would appear

that, even if the Sophia did manage to make fast, she did so after the

stranding, too late to be of assistance. The tow rope evidently parted

because it was not strong enough to pull the Western Eagle off the dike.

15 Possibly a finding of negligence based on the abandonment of Western

Eagle by the tugs under the circumstances would have been sustainable,

but this is not before us.

l6a

like performance may be breached by non-negligent as well

as by negligent conduct. Jtalia, supra, 376 U.S. at 324. We

are not prepared to hold that the district court’s finding

of breach under the conditions outlined above is clearly

erroneous. According!y, we affirm the holding that the

tugs breached their warranty of workmanlike performance.

Chevron presses on us one final argument: It claims that

the Western Eagle’s own conduct in putting herself in a

position of danger under conditions of adverse visibility,

wind and current should bar Fairmont from recovery.

Again, if this were a negligence case, we might have more

difficulty. But negligence alone will not bar a plaintiff from

recovering for breach of warranty of workmanlike perform-

ance, “Merely concurrent fault is not enough”; there must

be “active ‘hindrance. ” Albanese v. N.V. Nederl. Amerik

Stoomev. Maats., 346 F.2d 481, 484 (2d Cir.), rev’d on other

grounds, 382 U.S. 283 (1965). There was no such hindrance

here. Defendant’s own expert testified that if, as Pennarts

stated, visibility was half a mile at the time Pennarts

boarded the Western Eagle, then the Western Eagle was

“entitled to proceed.” And even after the Western Eagle

had gotten into trouble, she could have made it safely to

port had the tugs not left her when Pennarts directed them

to make fast. It can hardly be said that at that time the

Western Eagle actively hindered the tugs from making

fast. We therefore reject Chevron’s contention that Fair-

mont should be harred from recovery by reason of the

Western Eagle’s own conduct.

In sum, we hold that the contract contained an implied

warranty of workmanlike service, that the tugs breached

the warranty, and that the Western Eagle did nothing to

bar Fairmont’s recovery. We therefore uphold the inter-

17a

locutory order of the district court, and remand for an

assessment of damages."

Affirmed.

oe

MansFIELD, Circuit Judge (Dissenting) :

Judge Smith’s thorough and scholarly analysis of the

historical development of the Ryan-type warranty dem-

onstrates that we are not here confronted with such an

indemnity but with an implied obligation arising out of

Chevron’s contract to provide tug assistance. However, I

do not agree with the majority’s interpretation of the na-

ture and extent of that implied obligation. Furthermore the

proof is overwhelming that there was no breach of it.

Chevron did not contract to assume control over a dead

ship. See, e.g., Tebbs v. Baker-Whitely Towing Co., 407

F.2d 1055 (4th Cir. 1969); Todd Shipyards Corp. v. Moran

Towing & Transportation Co., 247 F.2d 626 (2d Cir. 1957) :

James McWilliams Blue Line, Inc. v. Esso Standard Oil

Co., 245 F.2d 84 (2d Cir. 1957). It contracted merely to

provide “ordinary tug assistance if required” to the West-

ern Eagle as a live ship under its pilot’s control. This

is not, therefore, a case of the type referred to by the

district judge where “[{t]he shipowner turns his vessel

over to the tug’s control, depending on the latter’s ex-

pertise in conducting safe towing operations.” (App. 298a).

Were control of the ship to be with Chevron, it might have

16 We have decided this case on the basis of United States law. The

contract was entered into in New York, but the place of performance

was The Netherlands. We have not considered whether choice of law

rules would require application of Dutch law because, in view of the

fact that neither party has suggested that the foreign law would differ

from United States law, we are not required to conduct an independent

investigation of foreign law. Fed. R. Civ. P. 44.1; Bartsch v. Metro-

Goldwyn-Mayer, Inc., 391 F.2d 150, 155 n. 3 (2a Cir.), cert. denier,

393 U.S. 826 (1968).

18a

insisted upon taking greater precautions than those ob-

served by one rendering “assistance.” Indeed the tugs

hired by Chevron could justifiably have refused to accept

control initially unless they were given ample advance op-

portunity to exercise control effectively, which was not

the case here sinee there was a dense fog and the pilot

did not ask for tug assistance until the ship had gone past

Buitenhaven and was in danger Were the tugs in control,

they night have demanded that the Western Eagle drop

anchor until they could navigate safely; or, in the alterna-

tive, they might have decided upon a different and safer

course to pursue up the Scheldt River.

3ut control of the Western Eagle remained with the

pilot and Chevron was not required to take these precau-

tions. It bound itself merely to provide “ordinary tug

assistanee.” Regardless whether that obligation is labelled

a contractual promise or a warranty, it did not convert

(‘hevron into an insurer against accidents, see Sterens v.

The White City, 285 U.S. 195 (1932). Nor did it relieve

the shipowner of responsibility for accidents occurring

while the ship was within its control, The McCaldin

Brothers, 213 Fed. 211 (2d Cir. 1914). The contract obli-

gated the tugs to render such assistance as could reason-

ably be expected of them under all of the cireumstances

that might be confronted, see Stevens v. The White City,

supre, ineluding the position in which the vessel might

place itself prior to calling for assistance and the pos-

sibility that if the tugs should, in the course of rendering

assistance, be faced with imminent peril to themselves and

their crews they could not reasonably be expected to de-

stroy themselves. Faced with imminent peril to t)iemselves

or the ship, their contractual duty to assist would not pre-

elude their exercise of reasonable diseretion in determining

whether to carry out dangerous orders from the pilot. see

oe

19a

The Edward G. Murray, 278 Fed. 895 (2d Cir. 1922); ef.

Esso Standard Oil, S.A. v. S.S. Gasbras Sul, 387 F.2d 573,

980 (2d Cir. 1967), cert. denied, 391 U.S. 914 (1968). Surely

these time-honored principles of reasonableness in constrn-

ing the term “assistance” cannot be repealed or negated by

invocation of the term “warranty” as if it were some sort

of magical talisman, particularly when the policy reasons

for the judicially created Ryan-type “warranty of work-

manlike service” are not present. With the shipowner in

command of the ship, the need for saddling the tugs with

strict liability is certainly less than where they are in

control. In my view a tug obligated to render “assistance”

is held to neo more than a standard of reasonable care in

the rendition of that assistance, whether or not the obliga-

tion is labelled contractual or given the more exacting

term “warranty.”

Regardless whether Chevron’s obligation rose to the level

of a warranty, the proof was clearly insufficient to sup-

port a finding that Chevron breached its obligation. Since

the key witnesses, the pilot of the ship (Pennarts) and

the captains of the two tugs (Schuiling and Bout) tes-

tified by deposition, we are in as good a position as the

trial judge to assess their testimony. The record reveals

that the two tugs (the Sophia and the Frederik Hendrik)

proceeded from port to assist the Western Eagle as soon

as they were called upon to do so. However, this may

well have been too late because, as both tng captains

testified, it was dark, there was a “dense fog,” with

“visibility ... [that] varied from thirty to forty meters,”

there was a strong flood tide and a force 5 to 6 wind

sweeping the ship east and northward toward the rocky

dike. The Hendrik, which was the first tug to arrive

near the ship, went to the port side of the bow of the

Western Eagle as directed by its pilot and was unsuc-

a

20a

cessful in picking up the ship’s tow rope because the

ship was going astern and moving away as the tug lay

dead in the water. At that point, with the Hendrik under

the ship’s bow, the tug captain (Bout) saw the mast head-

lights of two coasters bearing down on his position from

the eastward. The Western Eagle swung violently to the

port. The Hendrik, fearing that one of the coasters would

collide with it, then moved to the starboard side of the

Western Eagle. The Hendrik’s captain testified that “his

first duty was to get himself into safety, when he saw

that coaster.”

In the meantime the tug Sophia arrived on the scene

and, according to the testimony of her captain (Schuiling)

found the ship “at a distance of about a hundred to one

hundred fifty meters away from the coastline” upon which

the ship was soon to strand. The captain further testified

that as his tug was located about 30 meters from the

stern of the Western Eagle he was instructed by its pilot

to stand by so that he could make fast by tow line to

the aft of the ship. At that point he observed two

coasters coming down the river from the east, one on

the right side of the channel and the other to the left,

and “took for safety’s sake a position amidships of the

Western Eagle.” The Western Eagle was going astern,

located only a short distance from the north shore, and

the first coaster passed 30 to 40 meters off its port bow

toward the near shore. Immediately thereafter the sec-

ond coaster also passed along the port side of the Western

Eagle toward the north shore and only “a few meters”

from its stern. The Sophia then picked up the Western

Eagle’s tow rope and made fast to the ship but the line

parted. More tow ropes were then picked up and made

fast but by that time the Western Eagle was aground.

Thus, according to the testimony of the two tug cap-

tains, they had little or no time to make fast to the

sv ~

om aN gee

elie

2la

Western Eagle, one having been unable to pick up the

tow rope near the bow and the other having been ordered

by the pilot to stand by in readiness to pick up a tow

rope near the stern, when they saw the two coasters

bearing down on them and, apprehending a collision,

moved to a safer position. As it was, the second coaster

barely missed colliding with the Western Eagle.

That the tugs’ apprehension of an imminent collision

with the coasters was not unreasonable is attested to by

the following testimony of the pilot of the Western Eagle:

“Q. Were you concerned about a collision with the

second coaster, is that the reason you stopped your

vessel? A. Yes. I wanted to give her room.

“Q. So that the second coaster was close enough

that you were concerned about a possible collision and

that is the reason you gave stop? <A. Yes.” (App.

63a).

The vessel’s log contained the following entry:

“To avoid collision with two other vessels seaward

bound we were obliged to perform full astern and

whistled three short blasts.” (Ex. I; App. 113a).

Since the tugs measured 36 meters long by & meters in

the beam it appears that, if it had remained to the port

of the Western Eagle, the Hendrik would probably have

been struck by one of the two coasters, which passed only

a short distance away on the same side of the Western

Eagle.

Notwithstanding the foregoing, the district court found:

“Apparently, the tugs feared a collision with the coast-

ers, Which arrived on the scene as they were about

to make fast. The testimony and written statements

of Pennarts, however, who had the best vantage point

22a

to judge the situation, fail to show that he believed

there was any danger that the tugs and coasters would

collide. Rather, there was ample room between the

WESTERN EAGLE and the northern shore for the

coasters to pass, as they did, without incident.” (App.

306a).

The proof, including the testimony of the pilot of the

Western Eagle, however, shows that everyone, including

the pilot, feared a collision. Furthermore, if the Western

Iagle had been located 3 cables (i.e., approximately 1,800

feet) from the north shore, rather than 100 to 150 meters

as Captain Schuiling testified, the tugs would undoubtedly

have had ample time after the two coasters passed to make

fast and start towing the ship southward.

lu view of the foregoing undisputed evidence, the dis-

trict court’s finding that Chevron breached its obligation

to render tug assistance was clearly erroneous.

23a

Opinion of the District Court—March 8, 1974

UNITED STATES DISTRICT COURT

SoutTHERN District or New York

70 Civ. 3382-LFM

<>

Fairmont SuHippinc Corp. and Farrwixps Ocean CARRIERS

Corr., Owners of the S.S. Western Eac.e,

Plaintiffs,

—against—

CHEVRON INTERNATIONAL Ort Company, INc.,

Defendant.

—< p>

MacManon, District Judge.

In the early morning hours of December 14, 1969, the

S.S. WesTerN EaG_e, a vessel of Liberian registry, stranded

on a dike in I-lushing Roads, a body of water leading to the

port of Flushing, The Netherlands. Plaintiffs, the owners

of the Western EacG_e, seek to recover for the damage to

the vessel, claiming that the conduct of the tugs SopuHia

and Freperik Henprik caused the grounding and that de-

fendant is liable, in contract, for the breach by the tugs

of an implied warranty of workmanlike service. The case

was tried to the court, sitting without a jury, on the issue

of liability only.

Plaintiff’s theory of recovery is based upon an alleged

contract for bunkers’ between plaintiffs and defendant,

1“Bunkers” are fuel oil.

24a

whereby defendant promised, among other things, to pro-

vide the Western Eacie with pilotage and tugs at Flush-

ing. This contract, plaintiffs argue, contains an implied

warranty of workmanlike service, which was breached by

the tugs’ conduct, and defendant is therefore liable for

the fereseeable damages resulting from the breach. De-

fendant denies the existence of any contract between it and

plaintiffs, or the existence of any clause in the contract

for pilotage or towage, or of an implied warranty of work-

manlike service, or any conduct by the tugs amounting to

a breach of that warranty. We turn first to the question

of the contract, if any, and its terms.

The Western Eacue, a converted T-2 tanker, was bound

for the United States after discharging her carge at Bou-

logne and was in need of fuel. The only bunkers available

in Northern France in December 1969 were being sold at

excessively high prices and, therefore, Alex Pagel, an em-

ployee of Norland Shipping & Trading Co. (Norland),

which was acting as agent for the vessel’s owners, at-

tempted to acquire a more economical stem’ for the WeEst-

ERN Eac.e at other ports in Northern Europe. Pagel called

C. D. Mallory & Co., Ine. (Mallory), Norland’s regular

bunker broker, to discuss an economical stem. Pagel spoke

to Franz P. K. Werner of Mallory, who advised him that

a good bunkering port might be Flushing, Holland.

Pagel examined the bunker prices at Flushing and found

them to be slightly higher than at Rotterdam, where Nor-

land had a contract with Gulf Oil Co., so he asked Werner

why the Western Eacre should bunker at Flushing if it

were more expensive. Werner replied: “Ah, but there is a

gimmick to this one... . Chevron takes care of everything

2A “stem” is a contract for bunkers.

25a

there. They furnish the agents and the pilots and the tugs

and so forth.” Werner also pointed out that "lushing,

being located further south, would involve less steaming

than Rotterdam.

A few days later, Mr. Joyee and Mr. Johnson, sales rep-

resentatives for Chevron, met with Pagel and:

“{MJade a small pitch for us using Flushing so that

they would get the business rather than Gulf Oil and

the tenor of their pitch was fairly consistent, that if

we go to Flushing [they] take care of everything, they

said, they take care of the pilots, they take care of the

tugs, they take care of the agents and the only thing

we would have to do is send an ETA for themselves

there in Holland and they acted as agents for us. The

suppliers would be some company I believe called

SHV or PAM Oil.”

Werner testified that he made an offer to Pagel on be-

half of Chevron and that, during the negotiations with

Pagel, they referred to Chevron’s price list for “Marine

Marketing,” dated October 1, 1969 (PX 2). Werner stated

that this document “is sort of our booklet we go by.” On

page 9 of the booklet, under the column entitled “Remarks,”

for Flushing appears this language:

“Following included in the price: Pilotage, harbor dues,

clearance, quay hire, mooring, unmooring and ordi-

nary tug assistance if required, provided vessel enters

Flushing for purpose of bunkering only and lifts min.

150 tons.”

The agreement between Norland and Chevron was

finalized on December 8, 1969 and is contained in plaintiffs’

Exhibit 1, the “Bunker Confirmation.” This document is a

26a

Mallory standard form and lists Western Eacix as the

vessel involved, Norland as the buyer and Chevron as the

seller of 1,000 tons of bunkers. The “Readiness Date” is

listed as “December 12-16, 1969.” Chevron is alse listed

as “Vessel’s Agent.”

Pagel was aware that the bunkers would be supplied at

Flushing by Steenkolen Handelsvereeniging (SHY), a

local Dutch firm, but it was always his impression that

“Chevron was the person with whom we would have the

contract....”

There can be no doubt from the evidence that the con-

tract contained in Exhibit 1 was between Norland, as agent

for the owners of the Western Eacie, and Chevron, as

seller of the bunkers. Certainly this was the contemplation

of the parties, especially Pagel and Werner, who conducted

most of the negotiations. Werner made his offer to Nor-

land on behalf of Chevron, and it was always the parties’

understanding that Chevron would be the contracting party.

This view is amply supported by Exhibit 1, which lists

Chevron as the seller, as well as by the testimony of Werner

and Pagel. Chevron’s claim that it acted merely as agent

for SHV is not supported by the evidence. Rather, SHV

acted as a subcontractor to, or supplier for, Chevron.

Moreover, the contract negotiations reveal that the par-

ties believed the contract included a term requiring Chev-

ron to provide tug assistance and pilotage to the WEsTERN

Eacte at Flushing. Not only did Pagel and Werner rely on

the Chevron price list, which spelled out the “extras” avail-

able at Flushing, but Pagel discussed the pilotage and tug

provisions with Chevron’s employees‘ and with Werner

*SHV is listed on page 4 of the price list as the supplying

company at Flushing.

* Defendant failed to produce either of these Chevron repre-

sentatives at trial to dispute Pagel’s testimony.

27a

In fact, these special provisions were the motivation for the

vessel’s bunkering at Flushing rather than Rotterdam.

Thus, we find that a contract for bunkers existed between

plaintiffs, the owners of the Western Eacuie, and Chevron

and that the contract required Chevron to provide the

Western Eac ie with pilotage and tug assistance at Flush-

ing.

Plaintiffs contend that Chevron’s promise to provide tugs

contained an implied warranty of workmanlike service and

that this warranty was breached by the SHV tugs’ “negli-

gent” conduct.

The doctrine of the implied warranty of workmanlike

service in maritime contracts originated in the landmark

ease of Ityan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,

350 U.S. 124 (1956) (Ryan). There, the Supreme Court

sustained a claim for indemnity against a stevedoring firm

by a shipowner which had paid a substantial judgment to

a longshoreman injured while unloading cargo improperly

stowed by the stevedore. The Court reasoned that it was

“of the essence of [the] stevedoring contract” that the

stowage of cargo be performed competently and safely and

likened the stevedore’s warranty of workmanlike service

“to a manufacturer's warranty of the soundness of its manu-

factured product.” 350 U.S. at 133-34. The Court em-

phasized that the shipowner’s action was in contract, not

in tort.

Similar warranties have been implied in other maritime

service contracts involving comparable expertise, control

and supervision to that of the stevedore in Ryan. Tebbs v.

Baker-Whiteley Towing Co., 407 F.2d 1055, 1058 n.1 (4th

Cir. 1969) ; Great American Ins. Co. v. Bureau Veritas, 338

F. Supp. 999, 1014 (S.D.N.Y. 1972). A contract of towage

also gives rise to an implied warranty of workmanlike ser-

28a

vice. Dunbar v. Henry Dubois’ Sons Co., 275 F.2d 304, 306-

O7 (2d Cir. 1960); James McWilliams Blue Line, Ine. v.

Esso Standard Oil Co., 245 F.2d 84, 87 (2d Cir. 1957);

Tebbs v. Baker-Whiteley Towing Co., supra, 407 F.2d at

1058-59; A/S Atlantica v. Moran Towing & Transp. Co.,

360 F. Supp. 1225, 1227 (S.D.N.Y. 1973); 7. J. Stevenson

€ Co. v. George W. Whiteman Towing, Inc., 331 F. Supp.

1038, 1043 (E.D. La. 1970); Farreli Lines, Inc. v. Birken-

stein, 207 F. Supp. 500, 507 (S.D.N.Y. 1962).° The ship-

owner turns his vessel over to the tug’s control, depend-

ing on the latter’s expertise in conducting safe towing

operations.

The presence and extent of the warranty and its breach,

if any, depends upon the circumstances of the particular

ease relating to control, supervision and expertise. H d H

Ship Service Co. v. Weyerhaeuser Line, 382 F.2d 711, 713

(9th Cir. 1967); Tebbs v. Baker-Whiteley Towing Co.,

supra, 407 F.2d at 1059. The Supreme Court in the steve-

dore cases, established the rule that “liability should fall

upon the party best situated to adopt preventive measures

and thereby to reduce the likelihood of injury.” Italia

Societa per Azione di Navigazione v. Oregon Stevedoring

Co., 376 U.S. 315, 324 (1964) (/talia). Thus, the burden

should be placed, ultimately, upon the party whose default

caused the injury. Reed v. The Yaka, 373 U.S. 410, 414

(1963) ; Italia, supra, 376 U.S. at 324.

This brings us to the question of control. Chevron claims

that the tugs were never in a position of control and that,

therefore, no implied warranty of workmanlike service

°> See also, Singer v. Dorr, 272 F. Supp. 931, 934-35 (E.D. La.

1967); United States v. Tug Manzanillo, 310 F.2d 220, 222 (9th

Cir. 1962). This line of cases has been criticized in A. L. Parks,

Law of Tug, Tow and Pilotage (1971), at 13, 500-01.

iene

29a

arose. This point is well taken, but this case does not turn

on the narrow issue of control. Even if the tugs were not

technically “in control,” they may still have been the party

best situated to prevent the accident, /talia, supra, 376 US.

at 324, and therefore liable for breach of the warranty of

workmanlike service.

We wish to emphasize that this is a case in contract,

not tort, Ryan, supra, 350 U.S. at 134, and that non-negli-

gent as well as negligent conduct may breach the warranty.

lialia, supra, 376 U.S. at 315.° Thus, we must determine

which party, if any, was in the best position to prevent the

stranding of the Western Eacie and whose conduct caused

the damage to the vessel. We now turn to the events of the

stranding.

The Western Eacue, under the command of its master

and a Belgian sea pilot, steamed into the Scheldt River,

heading east for Buitenhaven, the harbor of Flushing, about

3:00 A.M. on December 14, 1969. At 3:45, L. J. Pennarts,

an experienced Dutch river pilot, boarded the Western

EaGue, replacing the sea pilot. At that time, the visibility

was poor but sufficient to enable Pennarts to see the lights

of the pilot station, the tanker British StaresMay, which

was anchored nearby, and the fog lights of Flushing, one-

half mile away. The wind was from the south at a force

of 5-6 on the Beaufort scale (19-31 mph). A flood tide, or

“run of the tide,” was moving upriver, from west to east,

at 2 to 244 mph.

Because the pilot boat was late leaving the pilot station,

Pennarts did not board until the Western EacLe was al-

*This disposes of Chevron’s contention that misfeasance, not

nonfeasance, is required to breach the warranty. Italia was a

classic case of nonfeasance, i.c., a failure to discover defective

equipment. 376 U.S. at 321.

30a

most abeam of Buitenhaven, nearly a mile upriver from

the pilot station, where he had intended to board. Immedi-

ately after boarding, at 3:50 A.M., Pennarts called Flushing

radio and announced his intention to take the ship into

Buitenhaven. He then ordered the SHV tugs to come out

and make fast to the Western Eacie. The tugs had, until

this time, not proceeded out from Buitenhaven because the

sea pilot had not ordered them to do so and because their

captains thought the Western Eacie would anchor in

Flushing Roads due to the unfavorable weather.

The presence of the anchored tanker, British StaTesMaN,

on the south side of the Scheldt, opposite Buitenhaven,

prevented Pennarts from making a starboard turn there,

thus maneuvering the WesTeERN EaGLe’s head into the flood

current. Therefore, the pilot continued upriver past the

tanker, where he attempted to turn the ship to starboard

by ordering the engines full speed astern. Since the West-

ERN EaGue has a right-handed screw, this maneuver would

normally turn the ship to starboard, but the wind was blow-

ing so powerfully from the south that the ship swung to

port from a heading of 90° to one of 60°. Pennarts cor-

rected the ship’s course to 95° at 3:58 A.M. by ordering a

hard starboard rudder and the engines slow ahead, but this

brought the vessel dangerously close to running over Buoy

No. 1, located on the south side of the channel. To avoid

steaming over the buoy, Pennarts, at 4:05, stopped the

ship’s enginess and then put them full speed astern.

By this time, the SHV tugs Sopnia and FREDERIK

Henprik had arrived. Pennarts ordered the tugs to make

fast to the WesteRN EaGue as soon as possible. The FRep-

ERIK HENDRIK was to make fast to the port bow, and the

Sopuia to the stern of the ship, so that the Western EaGLe

3la

could be swung to starboard, with its bow facing south.

The Sopuia, however, instead of going to the vessel's stern,

went amidships. The crew of the Western Eac ie threw a

heaving line to the Frepertik Henprik, but this tug sud-

denly moved across the ship’s bow to starboard. This sud-

den movement was caused by the approach of a coaster (a

small river and coastal craft) moving down-river from

Antwerp. The coaster sounded three short whistle blasts,

and the WestTerN EacLe responded with three short blasts

and moved full speed astern. The coaster passed the ship

on the port side, between the northern shore and the West-

ERN Eacie. At this point, the Western EaGLe was about

3 to 3% cables, or 1800 feet, from the northern shore.

A few minutes later, at 4:10, another downriver coaster

approached, this time from the starboard side. Pennarts

stopped the Western EacG_e’s engines, allowing the coaster

to pass on the port side. At the approach of the second

coaster, both tugs moved away from the ship, apparently

fearful of a collision with the coaster. The crew of the

Freperik Henprik unfastened a line connecting her aft

to the WesTerN EaGLe’s starboard bow, and the tug moved

away.

Abandoned by the tugs, the Western Eacie was unable

to combat the effect of the strong wind and the flood tide

which were pushing the ship in a northeasterly direction,

at a heading of 45°, towards the northern shore of the

Scheldt. The Sorpnia and Freperik Henprik were now near

the ship, but in the wrong position to make fast or otherwise

render any assistance to her. Pennarts attempted to pre-

vent the vessel from stranding, at 4:12, by ordering a hard

starboard rudder with engines full ahead, but this maneu-

ver was in vain and the vessel continued to drift towards

the northern shore. At 4:13, Pennarts tried to soften the

32a

impact of the imminent grounding by putting the engines

full speed astern, but the vessel was unable to make any

sternway, and the ship ran aground on the dike at 4:15,

about two cables to the west of Schone Waardin light, on

the northern shore of the Scheldt River.

The Soria and Freperik Henprik were then joined by

a third SHV tug, but together they were unable to pull the

WesTERN Eac_e off the shore. Later that day, at high tide,

the vessel was refloated by tugs furnished by a salvor pur-

suant to a Lloyd’s salvage agreement. The Western EaGLe

was then towed to drydock, where it was discovered that

she had suffered extensive damage.

The evidence shows that the stranding of the WesTERN

EaGLe was caused by the inadequate assistance rendered

to her by the SHV tugs. The tugs not only appeared late

(after the ship was well east of Buitenhaven) but, after

meeting the ship, failed to make fast and provide any as-

sistance to the WesterRN Eacue as she drifted towards the

northern shore.

Pennarts, who was in the best position to observe the

danger to the ship, testified that he was depending upon

the tugs to make fast and aid the ship in making a star-

board turn to stem the tide. He stated that if the tugs

had made fast, “I was out of the trouble.” He also said

that if no tugs had been available, he would have sailed

up the Scheldt to No. 5 buoy and turned the ship there.

In his written statement (DX A), Pennarts cited the late

arrival of the tugs, along with the speed of the vessel when

he boarded and his late boarding of the WesTeRN Eac.e,

as one of the causes of the stranding.

Thus, Pennarts depended on the SHV tugs to help the

Western Eacite combat the force of the southerly wind

33a

and the flood tide, and his decision to turn the ship just

after No. 1 buoy was based on his assumption that the tugs

would make fast and assist the ship. The evidence shows

that the Western EaGie was unable, by the force of her

own engines, to make progress against the wind and the

tide. Only with the aid of the tugs could the vessel have

avoided grounding.

Schuiling, the captain of the Sornita, testified that the

tugs’ normal practice was to meet ships over a mile to the

west of Buitenhaven. He stated that due to the flood tide,

it was especially important that the tugs meet the ship

before she reached the entrance to Buitenhaven because it

was easier to maneuver downriver. Although Schuiling

heard the sea pilot ask by radio for a river pilot and knew

that the Western EacGLte was bound for Buitenhaven to

bunker and that she required tug assistance, he assumed

that because the weather was bad the vessel would anchor

in Flushing Roads. Therefore, the Sopu1a and the Frep-

ERIK HeENpRIK did not come out into the Scheldt until

ordered to do so by Pennarts. The late arrival of the tugs

meant that the Western Eacie moved far upriver from the

safest and easiest place for the ship to maneuver and this

limited the effectiveness of the tugs’ assistance to the West-

ERN EAGLE.

Despite the tugs’ late arrival, however, we believe the

accident could have been avoided if the tugs had made fast

to the Western Eac_e and assisted her in turning. Unfor-

tunately, the tugs disobeyed the orders of Pennarts to make

fast to the ship and thus abandoned her to the mercy of the

wind and the tide. Apparently, the tugs feared a collision

with the coasters, which arrived on the scene as thev were

about to make fast. The testimony and written statements

34a

of Pennarts, however, who had the best vantage point to

judge the situation, fail to show that he believed there was

any danger that the tugs and coasters would collide. Rather,

there was ample room between the WesTerN EacLe and the

northern shore for the coasters to pass, as they did, with-

out incident. Both Captains Schuiling and Bout (captain of

the Freperik Henprik), acknowledged that they had re-

ceived Pennarts’ order to make fast and were in position

to do so when they left the ship. In fact, the crew of the

Freperik Henprik unfastened a line from the WeEsTERN

EacuLe which had been attached to the tug.

The tugs’ duty to perform under the contract included

the obligation to carry out, if possible, all orders given

them by the pilot during the performance of their duties.

Lykes Bros. S.S. Co. v. The A. W. Whiteman, 138 F. Supp.

725, 727 (E.D. La. 1956); Rawls Bros. Contractors, Ine.

v. United States, 251 F. Supp. 47, 52 (MLD. Fla. 1°66). This

the tugs failed to do.

Moreover, the evidence shows that the tugs, and only

the tugs, could have prevented the stranding. The WersTERN

EacLe was dependent on the tugs’ expertise to prevent her

from drifting towards the northern shore, since her en-

gines were unable to move the ship against the force of

the wind and tide. Applying the standard laid down by

the Supreme Court in /talia and Reed, (1) the tugs were

in the best position to adopt measures to prevent the acci-

dent, but did not, 376 U.S. at 324, and (2) the tugs caused

the accident, 373 U.S. at 414, and thus failed to fulfill their

warranty of workmanlike service.

Since Chevron is responsible under its contract with

plaintiffs for the performance rendered by its subcontrac-

tor or agent, SHV, Todd Shipyards Corp. v. Moran Towing

Bini. bates A

35a

& Transp. Co., 140 F. Supp. 107, 110 (F.D.N.Y. 1956),

aff'd, 247 F.2d 626 (2d Cir. 1957), the conduct of the SHV

tugs constituted a breach of Chevron’s implied warranty

of workmanlike service.

Chevron, however, seeks to place the blame for the acci-

dent on plaintiffs, citing as causes of the accident (1) the

failure of the Wester EacGie’s master to anchor his ship

in Flushing Roads and (2) the unseaworthiness of the

WesTEeRN EaG.e.

Before considering any alleged “fault” of the Westerx

EaGLr’s owners, we note that where a party has failed to

fulfill its duty under a warranty of workmanlike service,

mere concurrent fault of the shipowner will not exeuse the

breach of warranty. To be relieved of its breach, defendant

must show that the conduct of the shipowner prevented

or seriously handicapped the tugs in their attempt to per-

form in a workmanlike manner. Albanese v. N. V. Neder.

Amerik Stoomv, Maats., 346 F.2d 481, 484 (2d Cir. 1965);

Misurella vy. Isthmian Lines, Inc., 328 F.2d 40, 41 (2d Cir.

1964).

Defendant’s expert testified that because of the dense

tog conditions, the Wrsrern EacLe should have anchored

in I‘lushing Roads. He explained that there was no traffic

control at Flushing and that it was very easy for a ship

to collide with the port facilities and jetties. Therefore,

he said, “any ship of a size over 1000 tons will definitely

come at anchor in dense fog and will not try to enter Flush-

ing Harbor.”

The problem with this theory is that the evidence does

not show that dense fog conditions prevailed. Pennarts’

testimony was that when he boarded he could see lights on

shore, over half a mile away. Visibility on land was poor

and visibility on the Scheldt deteriorated as the Western

36a

EacLe moved upriver, but it appears that the fog was

scattered, heavy in some places but very light in others.

Defendant failed to produce any evidence showing that

Pennarts’ estimate of the visibility on the Scheldt at the

time he boarded the Western EacLe was inaccurate. Tjeed,

defendant’s expert, testified that if the pilot could see

shore lights, “so we have a visibility of half a mile, I think

he is entitled to proceed.” We find that dense fog conditions

were not present, and, therefore, the Western Face need

not have anchored in Flushing Roads.’

Defendant also claims that the Western EaGLe was un-

seaworthy and that, therefore, plaintiffs’ recovery is barred.

Specifically, Chevron claims that the Wesrern EaGLe was

unseaworthy because (1) her radar was not working prop-

erly and (2) the ship was improperly trimmed, being 8

feet light at the bow. We reject both allegations of un-

seaworthiness.

Defendant contends that the radar of the WesTeRN EaGLe

was cluttered and that the faulty radar, combined with the

inattentiveness of the master and crew, led to the near

collision of the SHV tugs with the downriver coasters and

the subsequent stranding of the vessel. This theory is not

supported by the evidence. Pennarts testified that he was

able to read the radar and that the clutter presented no

problems in maneuvering the vessel. And both the pilot

and Captain Schuiling observed the coasters on their radar

minutes before they arrived. Thus, the approach of the

coasters came as no surprise to either the tugs or the

Wesvern Eacie, and the radar clutter played no part in

the stranding.

"Our finding that dense fog conditions were not present simi-

larly disposes of Chevron’s contention that the WersTERN EAGLE

was derelict in not sounding proper fog signals.

37a

Chevron also contends that the Western Face was im-

properly trimmed and that this caused her to follow the

wind, swinging her bow to port when her engines were

full astern. Pennarts found nothing unusual about the

vessel's trim, however, and defendant's expert stated that

a ship might well act unpredictably, as the Western EacLe

did, in a strong wind. We think it obvious that a wind of

force 5-6 on the Beaufort scale would have interfered with

the navigation of any vessel, whether trimmed properly

or improperly. In addition, defendant has failed to show

by any convincing evidence that the trim of the Western

Eacue, rather than the failure of the SHV tugs to assist

her, led to the stranding.

In short, defendant has utterly failed to demonstrate that

the condition of the Western EaGLe, or any conduct by

her master or crew, hindered or prevented the tugs from

performing in a workmanlike manner.

Accordingly, we find defendant is liable to plaintiffs

for breach of its warranty of workmanlike service and for

any foreseeable damages suffered by the Western EacLr

caused by that breach. A Special Master will be appointed,

pursuant to Rule 53(a), Fed.R.Civ.P., to determine dam-

ages. The parties are directed to submit an order, not

inconsistent with this opinion, within ten (10) days. The

foregoing constitutes this court’s findings of fact and con-

clusions of law, as required by Rule 52(a), Fed.R.Civ.P.

So ordered. |

Dated: New York, N. Y.

March 8, 1974

~Lioyp F. MacManon

United States District Judge