                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2007

In Re: Moran Towing
Precedential or Non-Precedential: Precedential

Docket No. 06-2099




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Recommended Citation
"In Re: Moran Towing " (2007). 2007 Decisions. Paper 509.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/509


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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 06-2099


        IN THE MATTER OF THE COMPLAINT
        OF MORAN TOWING CORPORATION,
     AS OWNER OF THE TUG JOHN TURECAMO,
  FOR EXONERATION OR LIMITATION OF LIABILITY

        JOMAR SHIPPING & TRADING, INC. & KRISTEN
                   NAVIGATION, INC.,

                            Appellants.




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                     (D.C. No. 01-cv-06410)

          District Judge: Honorable Clifford Scott Green


         Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                         March 13, 2007

Before: FUENTES, VAN ANTWERPEN, and SILER,* Circuit
                      Judges.

                      (Filed: August 7, 2007)

Stephen J. Galati
George R. Zacharkow


    *
      The Honorable Eugene E. Siler, Jr., Senior United States
Circuit Judge for the Sixth Circuit, sitting by designation.
John Mattioni
Mattioni Limited
399 Market Street
Suite 200
Philadelphia, PA 19106

       Counsel for Moran Towing.

Stephen M. Calder
Palmer, Biezup & Henderson
620 Chestnut Street
956 Public Ledger Building
Philadelphia, PA 19106

       Counsel for Appellants.




                  OPINION OF THE COURT




SILER, Circuit Judge.

       In June 2001, the M/V Astro Libra (“Astro Libra”), a Greek
flag tanker owned by Jomar Shipping & Trading, Inc. (“Jomar”)
and managed by Kristen Navigation, Inc. (“Kristen”), attempted to
dock at the Fort Mifflin Terminal in the Port of Philadelphia, with
assistance contractually provided by Moran Towing Corporation
(“Moran”). As the Astro Libra neared the Mifflin Terminal, the
assigned docking pilot, Thomas Sullivan, boarded the vessel to
execute the required docking maneuvers. Sullivan immediately
noted that the vessel was traveling faster than appropriate and he
attempted to slow the vessel in order to perform the docking
maneuvers.

      While the Astro Libra attempted to slow and dock, the John
Turecamo, one of the assisting tugs that Sullivan positioned around

                                 2
the Astro Libra, began to take on water as a result of the Astro
Libra’s movements. Captain Dominic Rizzo, the John Turecamo’s
pilot, took emergency corrective action by moving the tug to the
rear of the Astro Libra. However, the forces from the Astro Libra’s
movements overwhelmed the tug and it eventually collided with
the Astro Libra’s propellers, resulting in extensive damage to the
propellers of both the John Turecamo and the Astro Libra.

       Jomar and Kristen (collectively “Claimants”) sought
monetary damages from Moran, in personam, as well as the tug
John Turecamo, in rem, for damages caused in the collision.
Moran filed this admiralty action under the Limitation of
Shipowners Liability Act, 46 U.S.C. § 183 et. seq., repealed by
Pub. L. No. 109-304, § 19, 120 Stat. 1485, 1710 (October 2006),
requesting exoneration from, or a limitation of liability for, claims
arising out of the collision. Moran also filed a counterclaim for
damages to the John Turecamo.

       Following a bench trial, the District Court issued a
memorandum opinion, including findings of fact and conclusions
of law which addressed the issue of liability. It concluded that: (1)
the collision was caused solely by the negligence of the Astro
Libra’s pilots;1 (2) the negligent pilots were not employees of
Moran; (3) neither Captain Rizzo nor other Moran employees acted
negligently; (4) the John Turecamo was seaworthy; and (5) the
Claimants were liable for damages caused to the John Turecamo.
The Court entered an order exonerating Moran and the John
Turecamo from all claims and scheduled a hearing on the issue of
damages.

        Claimants assert five grounds on appeal, all of which they
contend are subject to plenary review. However, Claimants seek
to set aside the judgment of the District Court, and we may do so
only if we conclude that the court’s findings of fact are clearly
erroneous or its conclusions of law are erroneous. See Fed. R. Civ.

    1
      The District Court found that Sullivan was an independent
contractor who was under the control of the Master of the Astro
Libra. Therefore, for purposes of liability, the court concluded that
Sullivan was not an employee of Moran.

                                 3
P. 52(a); McAllister v. United States, 348 U.S. 19, 20 (1954).

        The Claimants challenge the District Court’s conclusion that
the negligence of the Astro Libra’s pilots was the sole cause of the
collision. Essentially, this claim has two components: (1) that
Sullivan was a Moran employee, not an independent contractor,
and that his negligence should be imputed to Moran as his
employer; and (2) that Captain Rizzo, a Moran employee, was
negligent in piloting the John Turecamo. In neither of these
arguments, however, do Claimants identify a finding of fact that is
clearly erroneous.

        First, the District Court’s conclusion that Sullivan was an
independent contractor subject to complete control by the Astro
Libra’s Master, and not Moran, is amply supported by the record.
Sullivan was a self-employed pilot affiliated with the Docking
Pilots Association (“DPA”), whose members provided docking
pilot services to companies other than Moran. Sullivan’s charges
were invoiced to Claimants’ local agent through DPA, not Moran.

       Moreover, Claimants contracted directly with Sullivan, and
all contracts and invoices between the parties included a pilotage
clause stating that the docking pilots were “borrowed servants” of
the contracting ship. In upholding a similar clause relieving a tug
operator from liability for negligent pilotage in Sun Oil Co. v.
Dalzell Towing Co., 287 U.S. 291 (1932), the Supreme Court noted
that such a provision “is an application of the well-established rule
that when one puts his employee at the disposal and under the
direction of another for the performance of service for the latter,
such employee while so engaged acts directly for and is to be
deemed the employee of the latter and not the former.” Id. at 294-
95 (citing Denton v. Yazoo & M.V.R. Co., 284 U.S. 305, 308
(1931)).2 Therefore, the District Court’s imputation of Sullivan’s
negligence to the Astro Libra, and not Moran, is not clearly




 2
   This rule applies with even greater force here because Sullivan,
the “borrowed servant,” was not an employee of Moran.
                                 4
erroneous.3

        Similarly, the Court’s conclusion that Captain Rizzo’s
piloting of the John Turecamo was not negligent is not clearly
erroneous. The sheer,4 which was a contributing factor in the
collision, indicates to the contrary: that the operation of the Astro
Libra, not the John Turecamo, was the negligent force in this
collision. In Atkins, the court held that “[a] sheer by one vessel into
another resulting in collision raises a presumption of negligence on
the part of the sheering vessel,” and that “the presumptively
negligent party has the burden of coming forward with proof that
the cause of accident in no way resulted from a failure of due care
on its part.” Atkins, 328 F.2d 68-69. The court noted that “a full
showing of due care rebuts the presumption of negligence.” Id. at
69. In this case, Claimants could not make a showing of due care
because the District Court expressly noted that the Astro Libra was
negligently operated.

        Additionally, Captain Frank Reinbold, Moran’s expert in
tugboat handling and piloting, testified that Sullivan, who was
under the control of the Astro Libra’s Master, should not have pre-
positioned the John Turecamo in the manner in which he did, and
that once he realized the Astro Libra was traveling too fast, he
should have ordered the tug to clear away. Captain Reinbold also
testified that Captain Rizzo’s maneuvering the tug to the stern of
the Astro Libra during the chaotic sequence was likely the best
alternative. This testimony alone is sufficient to preclude a finding
of clear error.

       Lastly, Claimants’ attempt to bring this case in line with The


   3
    Because the District Court’s conclusion that Sullivan was not
an employee of Moran is not clearly erroneous, Claimants’
arguments that Moran breached the warranty of reasonable care
and that it may not recover because it supplied the employee who
caused the damage are meritless.
  4
   “Sheer, in nautical meaning, is a deviation from the line of the
course in which a vessel should be steered . . . .” Atkins v.
Lorentzen, 328 F.2d 66, 68 (5th Cir. 1964).

                                  5
Olympic, 224 F. 436 (2d Cir. 1915), is unpersuasive. In The
Olympic, the master of an assisting tug voluntarily positioned the
tug’s bow approximately 100 feet in front of one of the Olympic’s
propellers. Due in part to suction created by the Olympic’s
maneuvers in the berthing process, the tug came into contact with
one of the Olympic’s propellers. Id. at 436-37.

        The court imposed liability on the tug because it concluded
that the Olympic was not at fault for the damage. Id. at 437.
Central to that determination was that the Olympic was berthing in
the usual way and that the tug should have been aware of the risks
involved in the usual berthing process of such a large steamship.
Id. Moreover, the court noted, “The Olympic did not order or
invite the tug to put herself in position to push at any particular
place. The tug master selected what he thought would suit, and
hailed some one at that part of the steamer to throw him a line.” Id.

        However, The Olympic is inapplicable because the
presumption of fault and causation applied against the tug in that
case are simply not present in this case. Whereas the court in The
Olympic noted that the vessel was operated non-negligently
because it “undertook not to expose the tug to any extraordinary
risk while engaged in the service,” id., the District Court in this
case explicitly found that the Astro Libra’s operators were
negligent because the Astro Libra was traveling faster than
appropriate for the impending docking maneuvers. An additional
point of distinction from The Olympic is that the tug in this case did
not voluntarily position itself alongside the Astro Libra. Instead,
Sullivan, as pilot of the Astro Libra, ordered the tug to its location
at the vessel’s starboard quarter.

       AFFIRMED.




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