Nat G. Harrison Overseas Corp. v. American Tug Titan
| Decision Date | 21 July 1975 |
| Docket Number | No. 74-2149,74-2149 |
| Citation | 516 F.2d 89 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | NAT G. HARRISON OVERSEAS CORPORATION, Plaintiff-Appellant-Cross Appellee, v. AMERICAN TUG TITAN etc., Defendant, Triangle Towing & Transportation Co., Inc., Claimant Owner Appellee-Cross Appellant. Thurston CRAWFORD d/b/a River Transit Co., et al., Plaintiffs-Appellees-Cross Appellant, v. NAT G. HARRISON OVERSEAS CORPORATION, Defendant-Appellant-Cross Appellee. TRIANGLE TOWING & TRANSPORTATION CO., INC., Plaintiff-Appellee-Cross Appellant, v. Thurston CRAWFORD d/b/a River Transit Co., Defendant-Appellee-Cross Appellant, Nat G. Harrison Overseas Corporation, Movant-Appellant-Cross Appellee. NAT G. HARRISON OVERSEAS CORPORATION, Plaintiff-Appellant-Cross Appellee, v. JACKSON MARINE SALES, INC., Defendant-Appellee-Cross Appellant. |
Steven R. Berger, Wesley G. Carey, Fred Lewis, Miami, Fla., for Nat harrison.
Arthur Roth, Miami, Fla., for Triangle Towing & Trans. Co., Inc.
Frank J. Marston, Miami, Fla., for Thurston Crawford.
Reginald M. Hayden, Jr., Miami, Fla., for Jackson Marine Sales.
Roland R. Parent, George O. Mitchell, Miami, Fla., for appellees.
George E. Patterson, Jr., Donald M. Coon, Miami, Fla., Alfred H. O. Bourdreau, Jr., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., Stanley Haves, Stanley A. Beiley, Miami, Fla., for other interested parties.
Appeals from the United States District Court for the Southern District of Florida.
Before BELL, DYER and SIMPSON, Circuit Judges.
This is an appeal and cross-appeals from an amended final judgment in four consolidated cases, all of which arose out of the capsizing of the barge Suncoaster while it was being towed from Miami, Florida to Guantanamo, Cuba. On the complaints, counter-claims and cross-claims of the various parties the district court found that the cargo had been negligently loaded and stowed, that the barge was unseaworthy, and that the tug was not negligent. We are in accord with these ultimate findings and disagree with its disposition of the case in only two minor respects: the sufficiency of the proof of damages awarded to the Jackson-Triangle joint venture against Harrison based upon loss of future earnings under the contract between them, and its allocation of damages for demurrage and extra towage.
Because the district court's extensive findings of fact on all issues except as noted above, are not only not clearly erroneous, McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, but have abundant support in the record, we allude to only so much of the evidentiary background of the case as is necessary for a frame of reference to discuss the respective contentions of the various parties.
Thurston Crawford, d/b/a River Transit Co., is the owner of the barge Suncoaster. He bare boat chartered the barge to Jackson Marine Sales, Inc. for 60 days with an option to purchase for $400,000. Jackson entered into a joint venture with Triangle Towing & Transportation Co., Inc., owner of the tug Titan, by the terms of which Jackson was to receive the revenue for ocean transportation of cargo and, after paying the crew's wages, fuel, food and other expenses incurred by the tug, the profits were to be divided with Triangle.
Jackson entered into a contract with Nat G. Harrison Overseas Corporation to provide ocean transportation for 30,000 net short tons of concrete aggregate from Miami, Florida to Guantanamo, Cuba, for $4.50 per ton, with stevedoring and port charges to Harrison's account. Demurrage was to be compensated at $1,200 per day for the Titan and $400 per day for the Suncoaster, or a total of $1,600 per day.
Jackson took delivery of the barge from Crawford in New Orleans and had it towed to Key West where it was taken over by Triangle and towed to Miami. The first voyage of the barge was without incident except for unloading difficulties in Guantanamo caused by Harrison. A claim for demurrage was made at the rate of $1,600 per day for the 5 days, 9 hours and 5 minutes for a total of $8,650.03. Due to a loading delay of some 37 hours in Miami, Florida for the second voyage, an additional demurrage claim of $2,127.86 was made.
Upon the barge's return to Miami from its first trip to Guantanamo, Harrison's stevedores loaded it in such a manner that the cargo was peaked in hatches Nos. 1 and 2 and there were void spaces in the wings of those hatches.
On the second voyage the Titan, with the Suncoaster in tow, encountered rough weather. Five days out the barge capsized. She returned to the surface in an upside down position and was towed back to Miami where she was delivered to a salvor retained by Jackson. At this time the barge had sustained damage in the amount of $133,500.
An underwater survey disclosed that four caps to the six-inch sounding tubes which connected with the flotation wing tanks were missing. The threads on the inside of the caps had wasted away with rust. This destroyed the watertight integrity of the barge. Moreover, improper installation of the doors in the flotation wing tanks permitted water to flow freely between the tanks although they were supposed to be watertight. Finally, because of prior improper repairs to the slope sheets in the main hopper compartment there was no watertight integrity between the main hopper and the wing walls. As a result of these conditions an excessive amount of water entered the barge and the absence of watertight doors and compartments permitted the water to shift and cause a list.
The district court found that neither the improper loading nor the unseaworthy condition of the barge would alone have caused the capsizing of the barge and the loss of the cargo, but that the concurrence of each was an equal proximate causative factor resulting in the disaster.
Salvage work was done, off and on for almost seven months, under a no-cure, no-pay contract. The barge was deliberately sunk. Further and extensive damage resulted, and when the barge was finally refloated and righted it was a constructive total loss. The court found that the period of time utilized by the salvors was unreasonable and could not have been reasonably anticipated by any of the parties to the consolidated actions.
In Harrison's suit against the tug Titan and her owner Triangle, the court denied Harrison's claim based on negligent towage; however, it awarded Triangle $24,887.50 on its counterclaim against Harrison, that being one-half share of the lost earnings of the Jackson-Triangle joint venture caused by Harrison's negligent stowage of the barge, reduced 50 per cent by reason of the unseaworthiness of the barge, which was chargeable to Triangle as a party to the Jackson-Triangle joint venture.
In Crawford and Jackson's suit against Harrison, the court awarded Crawford $66,750 against Harrison for negligent stowage of the cargo resulting in the loss of the barge, and $5,543.73 for salvage towing charges, both items having been reduced one-half by reason of the unseaworthiness of the barge. Jackson recovered $10,783.89 for demurrage on the first and second trips from Harrison. Jackson also recovered $24,887.50 from Harrison for its share of lost earnings caused by the negligent stowage of the barge, and $8,000 as salvage expenses, both items having been reduced one-half by reason of the unseaworthiness of the barge. Harrison was awarded $18,885.55 against Crawford and Jackson, which represented its damages caused by the unseaworthiness of the barge as reduced one-half by reason of negligent stowage. The claim of Triangle against Crawford and the claims of Crawford against Triangle were each dismissed.
In Harrison's suit against Jackson apparently no judgment was entered. It is of no moment, however, because the issues raised there were raised and disposed of in Crawford and Jackson's suit against Harrison.
Harrison appealed, while Crawford, Jackson, and Triangle cross-appealed. We treat their contentions seriatim.
Harrison attacks the findings of the district court that a major proximate cause of the capsizing of the Suncoaster was Harrison's failure to adequately and properly stow the cargo aboard the barge; that the barge could not have capsized solely as the result of being unseaworthy; and that the tug had no responsibility for the improper loading, and was not negligent in the management of the tow, on the grounds that these findings are individually and collectively clearly erroneous.
It would serve no useful purpose to detail the evidentiary basis for the court's findings. Suffice it to say that it was undisputed that Harrison had the obligation to load and stow the cargo and that it undertook that obligation. There was abundant evidence that the cargo was not leveled into the wings of Nos. 1 and 2 hatches, but was wet and was peaked in those hatches leaving a void of approximately 25 per cent of the barge's cargo capacity which, because of the prevailing wind and sea conditions, permitted the cargo to shift to the port side of the cargo spaces causing a list to port and the barge's eventual capsizing.
Harrison never really confronts this objective evidence. Its assertion that it had no duty to insure the Suncoaster's safe passage misses the mark. The only obligation charged to Harrison by the district court was to properly load and stow the cargo. Harrison had undertaken this duty under its contract with Jackson and was obliged to carry it out in a reasonably safe manner.
It is well established that a stevedore is under a contractual duty of workmanlike performance. . . . This Court has repeatedly held that the question of whether a stevedore was negligent so as to breach his warranty of workmanlike performance is a question of fact to be determined by the trier of fact.
Southern Stevedoring and Contract Co. v. Hellenic Lines, Ltd., 5 Cir. 1968, 388 F.2d 267, 270.
We also reject Harrison's attack on the district court's...
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