Daniels Towing Serv., Inc. v. Nat Harrison Associates, Inc.

• Decision Date: 17 November 1970
• Docket Number: No. 29623 Summary Calendar.,29623 Summary Calendar.
• Citation: 432 F.2d 103
• Parties: DANIELS TOWING SERVICE, INC., a Florida corporation and the TUG SALLY MAC and Osceola Trading Company, Claimant Owner, Plaintiffs-Appellants, v. NAT HARRISON ASSOCIATES, INC., a Florida corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 103 (1970)

DANIELS TOWING SERVICE, INC., a Florida corporation and the TUG SALLY MAC and Osceola Trading Company, Claimant Owner, Plaintiffs-Appellants, v. NAT HARRISON ASSOCIATES, INC., a Florida corporation, Defendant-Appellee.

No. 29623 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 11, 1970.

Rehearing Denied November 17, 1970.

Reginald M. Hayden, Jr., Miami, Fla., for appellants, Fowler, White, Humkey, Burnett, Hurley & Banick, Miami, Fla., of counsel.

Raymond T. Greene, Miami, Fla., for appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

In this maritime action involving claims against a tug for damage to three scows, the district judge had to base his award of damages upon a reasonable estimate in a complex fact situation where the determination of the precise amount of the damages which were attributable to the negligence of the tug was not possible. Justice will not allow the inability of a claimant to furnish an exact measure of the damages resulting from a tortious wrong to defeat all right of recovery. We affirm.

Daniels Towing Service, Inc. (Daniels), commenced this suit against Nat Harrison Associates, Inc. (Harrison), for towing and lay-time charges of the tug SALLY MAC, owned by Osceola Trading Company and chartered to Daniels. The parties stipulated that the towage and lay-time amounts sued for were due and payable to Daniels by Harrison. Harrison, however, filed a cross-complaint against Daniels and the tug SALLY MAC for damage to the chartered barges SEA SCOW 1500 (SEA SCOW), HUGHES 46, and ANDROS.

Daniels and the SALLY MAC denied any liability. Befitting the maritime character of the case, the suit was tried before the district judge without a jury.

The basic facts relating to the suit are not in dispute. Harrison had chartered the barges to carry rock and heavy cargo from Miami to Autec, a Harrison project in the Bahama Islands and had contracted with Daniels to perform towage. On a number of occasions pertinent to this action the SALLY MAC towed the SEA SCOW to its Bahama destination, whereupon Harrison tugs would moor her and move the barge about.

During the period of Harrison's charter the SEA SCOW went aground during Hurricane Betsy while in the control of Harrison and was grounded on several other occasions — some attributable to Daniels and others attributable to Harrison.

The liability ultimately fixed by the district court with respect to the SEA SCOW flowed from incidents occurring on July 5 and 6, 1965. At those times the SEA SCOW, while being towed by the SALLY MAC, was grounded five times, once upon a coral reef which tore a hole in the after starboard side. Surveyors in Miami assessed this latter item of damage alone at 2,163.00 dollars. Upon returning the SEA SCOW to its owners, Harrison was required to pay 75,704.00 dollars for damages sustained during the charter period. In its counterclaim Harrison sought indemnity from Daniels and the SALLY MAC for 72,663.00 dollars of this SEA SCOW loss.

The facts with respect to the barge HUGHES 46 are substantially the same, showing numerous reports of groundings, some while the barge was in the charge of Daniels and under tow by the SALLY MAC and others while the barge was within the exclusive care and control of Harrison. However, after an initial hearing the court found that on December 1, 1965, the HUGHES 46 grounded while in the tow of the SALLY MAC and that the damages due to this single incident were reasonably established at 8,350.00 dollars.

The district court also found at its initial hearing that the ANDROS broke loose from its moorings and sustained the damages sued for in its name. But the court further found that the proof adduced to that point in the trial process did not establish, with sufficient clarity to support a verdict, whether this negligent mooring was the fault of Harrison or the SALLY MAC. The court also initially concluded that on four occasions the SALLY MAC had damaged the SEA SCOW but that the evidence then before the court was insufficient to determine what part of the claimed SEA SCOW damages were attributable to these incidents.

After taking additional evidence the trial court supplemented its prior findings by adjudicating the liability of Daniels and the SALLY MAC flowing from damages to the SEA SCOW at 40,000.00 dollars. It also absolved them of any liability with respect to the barge ANDROS.

Daniels and the SALLY MAC appealed on the grounds that the trial court erred as a matter of law in finding any liability at all with respect to the SEA SCOW and HUGHES 46 claiming that there was insufficient evidence to support the verdict and that the attribution of any part of these damages to them was based upon inexact estimates and speculation.

We begin our reasoning with the well settled admiralty rule that the clearly erroneous stricture of Rule 52(a), F.R.Civ.P. binds the appellate court. In McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954) the Supreme Court described our role thus:

In

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