624 F.2d 643 (5th Cir. 1980), 78-2966, Commercial U. Ins. Co. v. M/V Bill Andrews

Docket Nº:78-2966.
Citation:624 F.2d 643
Party Name:COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellee Cross-Appellant, v. M/V BILL ANDREWS, its engines, tackle, apparel, etc., in rem and Canal Barge Company, Inc., Defendants-Appellants Cross-Appellees.
Case Date:August 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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624 F.2d 643 (5th Cir. 1980)

COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellee Cross-Appellant,

v.

M/V BILL ANDREWS, its engines, tackle, apparel, etc., in rem

and Canal Barge Company, Inc.,

Defendants-Appellants Cross-Appellees.

No. 78-2966.

United States Court of Appeals, Fifth Circuit

August 21, 1980

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[Copyrighted Material Omitted]

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Donald L. King, Christopher A. Helms, New Orleans, La., for defendants-appellants cross-appellees.

Monroe & Lemann, Nigel E. Rafferty, New Orleans, La., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before MORGAN, CHARLES CLARK and TATE, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

The diesel tug M/V COLONEL NEAL sank into the Mississippi River on July 23, 1976 after it was buffeted by wheel wash from the M/V BILL ANDREWS during a refueling operation in which the two vessels were engaged. Commercial Union Insurance Company, insurer of the COLONEL NEAL's owner, paid $32,000 on the loss, and as subrogee filed this suit against the BILL ANDREWS and its owner, Canal Barge, Co., Inc. The district court found the BILL ANDREWS seventy-five percent at fault and the COLONEL NEAL twenty-five percent at fault, and awarded Commercial Union damages reduced proportionately to $24,000. Both parties appealed, disclaiming any fault in causing the accident. Canal Barge also contends on appeal that the district court's valuation of the COLONEL NEAL at $32,000 was erroneous, and that the district court abused its discretion in disallowing the testimony of one of their witnesses.

I. BACKGROUND.

Port Marine Service, Inc. purchased the COLONEL NEAL in 1965 at a cost of $32,000 for use as a pusher for a fuel flat in the fueling of large tow boats in the Mississippi River. The tug was affixed to the fuel flat by three sets of steel wire cables. As diesel fuel was discharged from the flat, the wire cables were adjusted to prevent the flat's changing draft from lifting the bow of the COLONEL NEAL.

Typically, fuel flats and their tugs are sent downriver to meet vessels headed upriver. The fueling operation is then carried out as both vessels move slowly upriver, saving the serviced vessel the delay of a full stop. Underway fueling occurs primarily in the servicing of vessels headed upriver, because the slower speed of the vessels makes the operation safer.

The BILL ANDREWS, a large diesel pushboat, was headed upriver on July 23 with a crew of ten captained by Billie Smith and a flotilla of eight barges arranged in two lines of four. It met the COLONEL NEAL early in the morning of July 23, 1976 just south of Baton Rouge and continued upriver as the COLONEL NEAL began to load the barges with diesel fuel. The COLONEL NEAL was manned by fueling operator Jessie Callahan and deckhand Henry Simpson.

Under instructions from the BILL ANDREWS, the COLONEL NEAL moved its fuel flat into fueling position alongside the flotilla's starboard lead barge and was affixed there by soft rigging tying the vessels together. Callahan and his deckhand then left the deck of the COLONEL NEAL and went to the fuel flat to operate the valves. When the tanks of the first barge were filled, the COLONEL NEAL and its fuel flat dropped back to fuel the barge astern, and then to each following barge until all of the starboard barges were loaded with fuel. Twice during the loading of the starboard barges Callahan asked the pilot of the BILL ANDREWS to slow down, as the speed of the flotilla was causing the fuel flat to dive.

After the fueling of the starboard barges, the COLONEL NEAL dropped behind and around the BILL ANDREWS to begin fueling the port tier of barges. By 6:00 A.M. the fueling of the port tier of barges was completed, and Captain Smith instructed

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the COLONEL NEAL to bring the fuel flat around to the BILL ANDREWS' starboard side to fill the tanks of the BILL ANDREWS. Callahan moored the fuel flat just behind the face wires leading from the BILL ANDREWS to the starboard barge, leaving the stern of the fuel flat slightly astern of the BILL ANDREWS.

The fuel flat was connected to the BILL ANDREWS by three sets of lines running from the...

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