Bisso v. Inland Waterways Corp.

Decision Date26 March 1954
Docket NumberNo. 14802.,14802.
PartiesBISSO v. INLAND WATERWAYS CORP.
CourtU.S. Court of Appeals — Fifth Circuit

Francis Emmett, Eberhard P. Deutsch, Rene H. Himel, Jr., John W. Sims, Deutsch, Kerrigan & Stiles, New Orleans, La., Phelps, Dunbar, Marks & Claverie, New Orleans, La., of counsel, for appellant.

M. Hepburn Many, Asst. U. S. Atty., New Orleans, La., Leavenworth Colby, Sp. Asst. to Atty. Gen., Warren E. Burger, Asst. Atty. Gen., George R. Blue, U. S. Atty., New Orleans, La., John J. Cound, Attorney, Department of Justice, Washington, D. C., for appellee.

Selim B. Lemle, Charles Kohlmeyer, Jr., George B. Matthews, New Orleans, La., Lemle & Kelleher, New Orleans, La., of counsel, amici curiæ.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

This is an appeal from a final decree dismissing appellant's libel in personam against Inland Waterways Corporation, owner of the Towboat Cairo, to recover for loss of appellant's Steel Tank Barge Bisso No. 9 while in tow of the Cairo, by the latter's negligence.

On December 1, 1943, National Oil Transport Corporation, charterer of appellant's barge, entered into a contract with appellee for towage of a number of National's barges, including the Bisso No. 9, on the Mississippi River. This contract provided:

"The movement contemplated will be done at the sole risk of the `craft to be towed\' and its cargo, and neither the boats and/or any other equipment used in said service nor the owner, charterer or hirer thereof shall be liable for any loss or damage to the `craft to be towed\' or its cargo nor for any damage done by the `craft to be towed\' however occurring.
"The masters and crews and employees of all boats and/or other equipment assisting the `craft to be towed\', shall, in the performance of said service, become and be the servants of the `craft to be towed\', regardless of whether the `craft to be towed\' assists in the service in any way and irrespective of whether they be aboard the `craft to be towed\' or in command thereof."

In May, 1944, appellee's Towboat Cairo took in tow eight unmanned barges belonging to various persons, and proceeded up the Mississippi River from New Orleans. The Bisso No. 9 was one of these barges. None of the barges had any motive power or steering mechanism.

Because of high water and dangerous conditions prevailing in the Mississippi River above Vicksburg, the Cairo's tow was split up near that point, and moved alternately in groups of four barges, of "doubles tripped".

While attempting to negotiate the center span of the Greenville Highway Bridge, the Cairo negligently brought her tow of four barges into collision with a bridge pier; and appellant's barge was lost in the collision as a direct result of the Cairo's negligence.

The District Court, making full findings of fact and conclusions of law, and filing an opinion,1 held that the collision was attributable to the negligence of the Cairo; that the "release towage agreement" in question did not relieve the Cairo from liability for negligence; but that the "pilotage clause" was broad enough to make the Cairo's crew appellant's servants and to free appellee from responsibility for their negligence. The libel was accordingly dismissed.

Appellant raises no question of fact. It rests its case on the facts found by the district judge and his conclusion that the first clause, "sole risk and release clause", of the towage contract was, under The Syracuse, 12 Wall. 167, 79 U.S. 167, 20 L.Ed. 382, and The Wash Gray, (Compania De Navegacion, Interior, S. A., v. Fireman's Fund Ins. Co.) 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787, cases invalid. So resting it, it is here insisting that the court erred in holding the second clause, the so-called "pilotage clause", in the contract, providing that the personnel of the tug are to be deemed "the servants of the tow", releases the tug from liability for loss of the tow by negligence of the master of the tug.

Appellee, opposing this view, urges upon us that, far from its being clear, as appellant argues, that a pilotage clause finds justification only where the tow is manned and under its own...

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4 cases
  • Bisso v. Inland Waterways Corporation
    • United States
    • U.S. Supreme Court
    • 16 Mayo 1955
    ...towboat owner from liability for negligence and entered judgment accordingly. 114 F.Supp. 713. The Court of Appeals affirmed. 5 Cir., 211 F.2d 401. We granted certiorari to settle the question. 348 U.S. 811, 75 S.Ct. The record including the findings of fact shows: Petitioner's oil barge Bi......
  • Bisso v. Inland Waterways Corporation
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 23 Marzo 1956
    ...upon reproduction cost.14 Decree accordingly. 1 Bisso v. Inland Waterways Corp., D.C., 114 F.Supp. 713, 1953 A.M.C. 1664, affirmed, 5 Cir., 211 F.2d 401, reversed 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 2 The complete Commissioner's Report reads as follows: "On Monday, July 25, 1955, pursuant t......
  • Andros Marine Chartering Co. v. Tug Gladiator
    • United States
    • U.S. District Court — District of Puerto Rico
    • 16 Diciembre 1969
    ...fee for the JESSE JAMES despite the fact that said tug never left drydock. 4 Conclusion of Law number 6. On appeal this case was affirmed, 211 F.2d 401, but then reversed by the Supreme Court, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911. However, conclusion number 6 was not involved or consider......
  • Fischer & Porter Co. v. Brooks Rotameter Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Abril 1954

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