Opinion
CIVIL ACTION NO: 99-2748 SECTION: "D" (2)
August 1, 2001
ORDER MID REASONS
The Trial of this matter was held before this court, without a jury, on Monday, July 16, 2001, and post-Trial briefing was completed on Monday, July 23, 2001. Now, after considering the parties' Joint Stipulations and the evidence, assessing the credibility of the witnesses, and reviewing the parties' Post-Trial memoranda, the court makes the following findings and conclusions.
I. Factual Findings
North American Shipbuilding, L.L.C. constructs, refurbishes and repairs vessels within the fleet of Edison Chouest of f shore. On September 17, 1998, Edison Chouest Offshore also had a contractual relationship with Ingalls Shipyard in Pascagoula Mississippi, which would construct vessels for Edison Chouest until they were 80-85 percent complete, and thereafter, those partially completed hulls would be towed from Ingalls (in Pascagoula, Mississippi) to North American Shipbuilding (in Louisiana) for completion. Hull 180, which is now the M/V C-ENDEAVOR and the subject of this lawsuit, was one such hull.
Hull 180 was part of a fleet of 240' offshore supply vessels, which were built with retractable bow thrusters. In 1998, such retractable bow thrusters were apparently not everyday equipment found on offshore supply boats. When retracted, the thruster's propeller and shroud fit into a chest in the bottom of the bow and become flush with the keel. When deployed, the thruster protrudes down approximately nine to ten feet below the keel.
Indeed, as discussed later in this Opinion, the captains at the helm of the Crosby tugboats involved with the towing and maneuvering of the Hull 180 when it went aground in Cat Island Pass, were well seasoned m the maritime industry with some 75 years between the two of them, and they had never even heard of retractable bow thrusters on offshore supply boats before the subject incident. See infra, nn. 10-11 and accompanying text at pp. 5-6.
On September 17, 1998, the Hull 180 left Ingalls on the first leg of its towage to Fourchon, Louisiana being towed by the tug TODD DANOS of Danos Tugs. Mr. Abram Hunt, the Edison Chouest/North American Shipbuilding Project Manager for the construction of these vessels, testified that Ingalls prepared the Hull 180 for the towage and that when Hull 180 departed Ingalls, her retractable bow thruster was improperly in the down position . Mr. Hunt could not recall if North American or Edison Chouest had a representative on the scene when the Hull 180 was being prepared to be towed from Ingalls.
During the towage from Pascagoula to Fourchon, the tow line of the TODD DANOS parted and the Hull 180 drifted and struck a fixed platform, causing damages to the exterior of the vessel. The TODD DANOS eventually resecured the tow line and completed the voyage to Fourchon at 1330 hours on September 18, 1998. At Fourchon, a marine surveyor and a port captain inspected the vessel's exterior damage for Chouest. The interior of the hull was not inspected, and Plaintiffs' marine surveyor, admitted in his Trial testimony that the survey at Fourchon was "not a complete survey" as there was some urgency in getting the hull to Houma, and a more complete survey was deferred until the vessel arrived there.
See Exhibit 3, Logs of the SUSAN MARIE, p. 1.
Had the interior of the vessel been inspected at Fouchon, it would have been apparent that the thruster was in the deployed position.
Defendant, Crosby L.L.C., was retained to tow Hull 180 from Fourchon to Houma, Louisiana. Approximately two hours after arriving in Fourchon, the Hull 180 departed on its second leg of its towage to Houma, being towed by Defendant Crosby's tugs, the CROSBY QUEST (acting as lead tug) and the SUSAN MARIE (acting as a tail vessel). Prior to this towage, the owner of the Hull 180 requested that Crosby commence the tow with all dispatch because of the approach of Tropical Storm Frances. Most importantly, prior to this towage, the owner of the Hull 180 never advised Defendant Crosby and the captains of the Crosby tugs that the hull was even equipped with a retractable thruster, or much less that the hull's retractable thruster was in the down position. Neither North American shipbuilding nor Edison Chouest had any representatives aboard the Hull 180 or the Crosby towing vessels.
See Stipulation No. 2.
See Stipulation No. 1.
Before reaching the Cat Island sea buoy, at approximately 2100 hours on September 18, 1998, the CROSBY QUEST began having steering problems and switched places with the SUSAN MARIE — the SUSAN MARIE became the lead tug with the CROSBY QUEST tailing. Kurt Crosby in the Crosby office was notified of the switch, and he told the Crosby tugboat captains to take their time with the tow. Captain Eschete, the captain of another Crosby tug, the AARON JOSEPH, testified that he was dispatched by the Crosby office to assist with the towing because the CROSBY QUEST had developed the steering problems.
As tail tug, the CROSBY QUEST did not require the same degree of steering capability.
With the SUSAN MARIE leading, the tow proceeded slowly towards Cat Island Pass at 3 to 4 knots. But at approximately 2400 hours on September 18, 1998, Captain Ougel of the SUSAN MARIE noticed that the tow was not making any headway and was apparently aground. Captain Ougel did not know why the tow was stuck. It should have been an "easy tow" as there was at least twenty feet of water in the channel. Captain Ougel could only opine that the hull went aground on "a little reef or something, a little sandbar." Unfortunately, Captain Ougel knew "nothing about this z-drive."
Ouegel Dep. at 43-44.
Ougel Dep. at 16; see also Ougel Dep. at 29.
Ougel Dep. at 43. When Captain Ougel testified about the "Z-drive" on the Hull 180, he was referring to the retractable bow thruster. See Ougel Dep. at 19-22.
When Captain Ougel notified the Crosby office of the grounding problem, the Crosby office instructed him to stand-by for the arrival of the AARON JOSEPH for assistance. The AARON JOSEPH arrived on the scene at approximately 0200 hours and took over the role of lead tug. Captain Eschete of the AARON JOSEPH testified that when he arrived, the draftmarks of the Hull 180 indicated that she was drawing around 14 to 15 feet. Neither Captain Eschete nor Captain Ougel believed that the Hull 180 was sinking at that time, i.e., at 0200 hours.
Captain Eschete has worked in the marine industry for 45 years and has held a United States Coast Guard master's license for 41 years.
Captain Ougel has been in the marine industry for 30 years and has held a United States Coast Guard master's license for 24 years.
However, the hull was actually drawing some 23 feet forward because of the deployed bow thruster. Unfortunately, like Captain Ougel, Captain Eschete testified that at the time, he had no idea about the existence of the retractable bow thruster and had never even heard of such a thing. Thus, the Crosby tugboat captains did not know and had no way of knowing that, because of the deployed bow thruster, the draft marks on the hull did not accurately show her draft.
Between 0200 hours and 0400 hours on September 19, 1998, the SUSAN MARIE and the AARON JOSEPH, rigged up in tandem and both supplying full power, attempted to pull the Hull 180 in a northerly direction (for approximately 30-40 minutes) without any success. The captains then decided to attempt to tow the Hull 180 southbound in deeper water back to Fourchon to further investigate. However, while they were able to turn the bow of the hull approximately 180 degrees (without difficulty) heading it southbound, they were unsuccessful in towing it southbound after attempting to do so for another 30-40 minutes, pulling in tandem and at full power.
At approximately 0400 hours on September 19, 1998, Captain Eachete released his towline and circled the Hull 180 to get a closer look. He noticed that the draft of the Hull 180 had changed to 18 feet. He then sent his deckhand aboard the Hull 180, and the deckhand reported that the Hull 180 was flooded. Captain Eschete immediately called Crosby who then contacted Edison Chouest.
Captain Ougel testified that he was over 200' from the bow of the supply boat when he was towing her. So it was difficult to read the draft marks on the supply boat from that distance, plus it was dark and the water was getting choppier. (Ougel Dep. at 47). By 1445 hours on September 19, 1998, there were 7-9' seas. (Ougel Dep. at 51).
Edison Chouest instructed Crosby to quit towing and stand-by until Edison Chouest could get another vessel and personnel on scene to evaluate the situation. When Edison Chouest personnel arrived at the scene approximately eight hours later (12:00 noon on September 19, 1998), salvage operations began and it then was determined that the retractable thruster was mistakenly in the "drop down" position, which was the position the thruster was in when Ingalls released the vessel from its shipyard in Pascagoula. Again, neither Captain Ougel not Captain Eschete had ever heard of a retractable bow thruster until the Hull 180 was salvaged and the grounding was explained.
As a result of the grounding incident in the Cat Island Pass and subsequent attempts by the Crosby tugs to move and turn Hull 180, Hull 180 sustained approximately $7,000,000 in physical damages. On the date of the casualty, Plaintiffs Zurich Insurance Company and Marine Office of American Corporation, had in effect a Builder's Risk insurance policy with North American and Edison Chouest as named assureds. Claims by North American and Edison Chouest were asserted under the Builder's Risk policy, and those claims were ultimately settled by Plaintiff s for $2,140,000. In this lawsuit, Plaintiffs seek to recover that amount from Crosby.
II. Legal Analysis
In a towage situation, the owner of the tow is responsible for the seaworthiness of the tow, while those responsible for the towing "are obligated to perform that task using such care as a prudent person would under similar situations." Consolidated Grain Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077, 1081 (5th Cir. 1983)
The owner of a tug is not responsible for the nonapparent unseaworthiness of the tow, and it has no duty to make a detailed examination of the tow either prior to or during the voyage itself. National G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89, 94 (5th Cir. 1975) (citations omitted); Associated Dredging Co., Inc. v. Continental Marine Towing Co., 617 F. Supp. 961 (E.D.La. 1985)
Thus, in resolving the matter before this court, the court must make two inquiries:
(1) Was the Hull 180 unseaworthy when it was tendered to Defendant Crosby for towing?; and
(2) Did Crosby act as a reasonably prudent tug company when the Hull 180 became stuck in Cat Island Pass?
As the court discusses below, the answer to both questions is "yes", and thus there can be no liability cast on Crosby for its actions in attempting to free the grounded Hull 180 and resume towing.
A. Was the Hull 180 unseaworthy?
The owner of a tow (here, Edison Chouest) warrants the seaworthiness of its vessel — "that it is sufficiently staunch to withstand the pressures that ordinarily accompany the intended voyage." King Fisher Marine Service, Inc. v. The NP SUNBONNET, 724 F.2d 1181, 1183 (5th Cir. 1984)
At the inception of the subject tow from the Ingalls Shipyard in Pascagoula, Mississippi, and continuing until the Hull 180 went aground in Cat Island Pass, the Hull 180 (now the M/V C ENDEAVOR) was unseaworthy because its retractable bow thruster was deployed. Indeed, plaintiffs admit that "[t]here is no question that the retractable thruster should not have been in the down position when the Crosby towing vessels took over the care, custody and control of Hull 180." "It is also undisputed that Hull 180 would not have become stuck in the deep water of Cat Island Pass if the retractable thruster had not been in the down position." B. Did Crosby act reasonably?
The court need not consider Crosby's additional argument that the condition of the watertight doors, manholes and ballast tanks on the Hull 180 also made the Hull 180 unseaworthy, because such conditions (which may be relevant to the overall damages ultimately sustained by the Hull 180) had nothing to do with the grounding in Cat Island Pass. Further, there is no evidence that the damage sustained by the Hull 180 when it struck a fixed platform on the first leg of its towage from the Ingalls' shipyard to Fourchon had any causal relationship to the subsequent grounding.
Plaintiffs Post-Trial Memo., p. 12.
Id.
While a tug is obligated to provide reasonable care and skill "as prudent navigators employ for the performance of similar service", it is neither a bailee nor insurer of the tow. King Fisher Marine, 724 F.2d at 1184. Unless there is actual knowledge of an unseaworthy condition existing in the tow, or unless the unseaworthiness is so apparent that it would be negligent to proceed, the tug's obligations are determined in reference to a seaworthy tow. Id.
Here, Edison Chouest undisputably failed to notify anyone from Crosby that the Hull 180 was equipped with a retractable thruster, much less that it was in the deployed position. Further, the Crosby tugboat captains (Captains Ougel and Eschete) were well experienced in the marine industry and had not even heard of such a retractable thruster at the time of the subject tow. Further, the deployed thruster (which extended 9-10' from the bottom of the Hull 180) was certainly not apparent to them, and they were under no obligation to make a detailed inspection of the vessel in order to find this deployed thruster. Thus, the Crosby tugboat captains reasonably concluded that the Hull 180 had the ususal and customary characteristics of a conventional supply boat (in particular, a "clean bottom"), and they were entitled to assume that the Hull 180 was tendered for towing in a seaworthy condition with draft marks accurately reflecting the actual draft of the vessel.
With the reasonable assumption that they had a seaworthy tow and under extenuating circumstances when the tow went aground (i.e., in the middle of the night, in water at least 20' deep, with 14-15' draft marks on the Hull 180, and with increasingly choppy conditions), these seasoned captains demonstrated prudent maritime skill in their ensuing efforts to free the Hull 180 (i.e., the SUSAN MARIE and AARON JOSEPH initially attempted to pull her northward in tandem at full power for approximately 30-40 minutes, then turned her 180 degrees one time without difficulty, and finally attempted to pull her southward in tandem at full power for another 30-40 minutes). The Crosby tugboat captains stopped their attempts to move the Hull 180 when it became reasonably apparent that the Hull 180 was sinking, and the owner was promptly notified at that time.
Plaintiffs' marine surveyor testified that in his opinion, the hull had to be turned 360 degrees around the thruster tube several times to explain the "grinding away" of the thruster tube. However, both Captain Ougel and Captain Eschete testified that the hull was only turned once at 180 degrees, and according to Captain Eschete, she turned "beautifully"; and the court finds this testimony credible.
Plaintiff argues that had Crosby, instead of attempting to free the Hull 180, first made a phone call to Edison Chouest in the middle of the night notifying Chouest that the Hull 180 had gone aground, the casualty would not have occurred. However, under all the circumstances presented here, the court rejects this argument as too speculative and anchored on 20/20 hindsight.
The court concludes that plaintiff failed to tender a seaworthy tow because the retractable thruster was in the deployed position (unknown to Crosby), and Crosby used reasonable care and maritime skill in attempting to move her after she went aground. Unfortunately, it was the nonapparent unseaworthiness of the Hull 180 that caused its own demise in Cat Island Pass. Accordingly, Judgment will be entered in favor of Defendant and against Plaintiff.