489 F.2d 152 (5th Cir. 1974), 73-1651, In re Motor Ship Pacific Carrier

Docket Nº:73-1651.
Citation:489 F.2d 152
Party Name:In the Matter of The Complaint of Gypsum Carrier, Inc., Bareboat Charterer, and Oceanic Carrier, Inc., Owner of the MOTOR SHIP PACIFIC CARRIER, for exoneration from or limitation of liability. v. UNION CAMP CORPORATION, Third Party Defendant-Appellee. GYPSUM CARRIER, INC., Third Party Plaintiff-Appellant,
Case Date:February 08, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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489 F.2d 152 (5th Cir. 1974)

In the Matter of The Complaint of Gypsum Carrier, Inc., Bareboat Charterer, and Oceanic Carrier, Inc., Owner of the MOTOR SHIP PACIFIC CARRIER, for exoneration from or limitation of liability.

GYPSUM CARRIER, INC., Third Party Plaintiff-Appellant,

v.

UNION CAMP CORPORATION, Third Party Defendant-Appellee.

No. 73-1651.

United States Court of Appeals, Fifth Circuit.

February 8, 1974

George H. Chamlee, Gustav R. Dubus, III, Savannah, Ga., for Gypsum Carrier, Inc.

Kirk M. McAlpin, Atlanta, Ga., Stanley R. Wright, Jacksonville, Fla., for Union Camp Corp.

Spencer Connerat, Jr., Savannah, Ga., for the Seaboard Coast Line Railroad Co.

Fred S. Clark, Savannah, Ga., Manuel A. Sequeira, Jr., New York City, for Underwriters of Seaboard Coast Line Railroad Co.

Edward T. Brennan, Savannah, Ga., for M/V Mariner & M/V Costos Frange.

W. J. Snowden, Moore-McCormack Lines, Inc., New York, City, Courtney W. Stanton, Asst. Atty. Gen. of Ga., Atlanta, Ga., for Ga. Ports Authority.

Thomas S. Gray, Jr., Savannah, Ga., for Hamburg-Suderamerikanische Dampschiffahrts Gesellschaft.

Gignilliat & Abbott, Savannah, Ga., for Aztec Trading Co. S.A.

Julian F. Corish of Corish, Smith, Remler & Moore, Savannah, Ga., for American Oil Co.

Appeal from the United States District Court for the Southern District of Georgia.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

The question for decision in this matter is whether there is jurisdiction in admiralty of claims of the bareboat charterer and the owner of a vessel against a shore-based paper mill, engaged

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in a non-maritime manufacturing activity, on allegations that smoke emitted from the mill so obstructed navigation as to cause the vessel to collide with a railroad bridge spanning the waterway on which it was proceeding to sea.

On April 23, 1971, the M/S PACIFIC CARRIER, owned by Oceanic Carrier, Inc., and under bareboat charter to Gypsum Carrier, Inc., appellants herein, discharged a cargo of gypsum rock at Savannah, Georgia, and was proceeding downstream on the Savannah River ship channel bound for Halifax, Nova Scotia. As the vessel approached a railroad Bridge spanning the channel, it suddenly became engulfed in smoke, fumes and gases emanating from the smokestacks of a pulp and paper mill owned by Union Camp Corporation, situated on the bank of the channel immediately upriver from the bridge, causing loss of all visibility by the vessel's crew and resulting in a collision by the vessel with the bridge. Both bridge and vessel sustained heavy damage.

Seaboard Coast Line Railroad Company, owner of the bridge, immediately filed an in rem action for damages against the vessel and caused its seizure. Gypsum Carrier, Inc. thereafter instituted the present exoneration and limitation of liability proceeding (pursuant to 46 U.S.C. §§ 183-189), in which Oceanic Carrier, Inc., the shipowner, intervened. Gypsum and Oceanic later filed in this limitation proceeding a third-party complaint and cross-claim, respectively, under Rule 14(c), Fed.R.Civ.P., 1 against Union Camp, the allegations contained therein charging that the smoke emitted by the paper mill interfered unreasonably with the vessel's use of the waterway and constituted a nuisance and an obstruction to navigation. In the cross-claim of Oceanic there were further allegations that Union Camp's activities violated the Georgia Air Quality Control Act (Chapter 88-9, Code of Georgia) as well as federal regulations pertaining to navigation lights and signals (33 C.F.R. §§ 68.01-10 et seq.). The acts complained of were said to be the proximate cause of the collision. The parties sought damages and recovery over, and that all judgment of claimants in the limitation proceeding be entered against third-party defendant Union Camp under Rule 14(c), Fed.R.Civ.P.; and Oceanic sought in the event of a finding of mutual fault divided damages in accordance with the admiralty rule.

This appeal arises out of the district court's order sustaining Union Camp's motions to dismiss for lack of admiralty jurisdiction, the third-party complaint and cross-claim of shipowners against it. 2 An interlocutory appeal was authorized under 28 U.S.C. § 1292.

We have carefully analyzed the order of the district court which dismissed the impleader and cross-claim for lack of admiralty jurisdiction over Union Camp, as well as the two decisions on which the district judge apparently justified his conclusions, namely, Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) ,

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and Peytavin v. Government Employees Insurance Company, 5 Cir., 1972, 453 F.2d 1121. In our view, the cited cases not only do not support the conclusion reached by the district court, but to the contrary sustain admiralty jurisdiction herein. Accordingly, we reverse the order of the district court dismissing the impleader and cross-claim of shipowners against Union Camp.

A secondary issue raised below is whether the doctrine of ancillary jurisdiction extends to admiralty as well as to civil impleader so as to dispense with any requirement of an independent basis of admiralty jurisdiction to implead a third party under Rule 14(c), Fed.R.Civ.P. We do not reach this question inasmuch as the maritime nature of the claims herein furnishes the independent basis required for admiralty jurisdiction under the rule.

In Executive Jet, supra, a jet airplane, taking off from an airport adjacent to Lake Erie in Cleveland, Ohio, struck a flock of seagulls, causing it to crash and sink in the...

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