67 F.3d 1200 (6th Cir. 1995), 93-1925, In re Cleveland Tankers

Docket Nº:93-1925.
Citation:67 F.3d 1200
Party Name:In re CLEVELAND TANKERS, INC., as owner and operator of the M/V
Case Date:October 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1200

67 F.3d 1200 (6th Cir. 1995)

In re CLEVELAND TANKERS, INC., as owner and operator of the

M/V "'JUPITER," for exoneration from or limitation

of liability.

NEW CONNECTICUT BANK & TRUST, et al., Plaintiffs,

v.

Abdul MUSSA, et al., Appellees,

Cleveland Tankers, Incorporated; Total Petroleum,

Incorporated, Defendants-Appellees,

American Steamship Company, Defendant-Appellant.

No. 93-1925.

United States Court of Appeals, Sixth Circuit

October 19, 1995

Argued April 10, 1995.

Rehearing Denied Nov. 21, 1995.

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[Copyrighted Material Omitted]

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C. Peter Theut (briefed), Butzel, Long, Gust, Klein & Van Zile, Detroit, MI, Warren J. Marwedel, Chicago, IL, for Fireman's Fund Ins. Companies.

Paul D. Galea (argued and briefed), Foster, Meadows & Ballard, Detroit, MI, for Cleveland Tankers, Inc.

Richard J. McClear (briefed), Dykema & Gossett, Detroit, MI, for Total Petroleum, Inc.

Daniel S. Saylor (briefed), Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit, MI, Thomas W. Emery (argued), Detroit, MI, for American S.S. Co.

Before NELSON, BOGGS, and GIBSON, [*] Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

American Steamship Company, owner of the bulk carrier ship, the Buffalo, appeals from a judgment holding it liable for fifty percent of the damages from an explosion that occurred when the Buffalo passed the Jupiter, a tankship that was moored and unloading its cargo of gasoline. As the Buffalo passed, the Jupiter swung loose from its dock, rupturing both the hose transferring the gasoline to the shore and an electrical cord leading from shore to the ship. A spark from the ruptured cord ignited the spilled gasoline and caused the Jupiter 's cargo of gasoline to explode. American Steamship argues that the district court 1 used a legal standard of care applicable only to passing a properly moored ship, whereas the Jupiter was improperly moored. American Steamship also claims that the district court erred in apportioning liability between American Steamship; Total Petroleum, Inc., the wharfinger; and Cleveland Tankers, Inc., owner of the Jupiter. 2 Finally, American Steamship

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contends that the district court erred in excluding from evidence the analysis and conclusions section of the Coast Guard report on the accident. We affirm.

On September 16, 1990, at 1:45 in the morning, the Jupiter moored at the Total Petroleum facility on the Saginaw River in Bay City, Michigan to unload its cargo of 56,000 barrels of gasoline.

The Jupiter 's crew moored the ship with six lines: four wire rope cables attached to winches on the Jupiter and two polypropylene lines. The crew began unloading the gasoline to Total's shore facility by pumping it through a hose running from the ship to a pipe on shore. The Jupiter 's crew monitored the progress of the cargo transfer by means of "ullage pipes," openings from the deck to the hold that permitted the crew to gauge the contents of the hold. There was a "motor-operated valve" to shut off the pipeline on shore from the tanks behind it; the controls to the motor-operated valve were at the end of an electrical cord that was draped over a rail on the Jupiter.

During the early morning hours of September 16 another ship, the Clymer, passed the Jupiter without incident.

Later that morning, the Buffalo entered the Saginaw River from Lake Huron and started upstream toward the Jupiter. The speed at which the Buffalo was going as it approached and passed the Jupiter is the subject of a great deal of conflicting testimony, both eyewitness and expert. As the Buffalo approached the Jupiter, the water level rose about four feet, causing the Jupiter to surge forward slightly, then backward. As the Buffalo passed abeam of the Jupiter, the Jupiter surged forward so that the hindmost mooring wire (the "number four" wire) tautened. The number four wire was moored to the center piling (the "kingspile") on the "number four" cluster of pilings. When the number four wire grew too taut, the number four kingspile snapped, releasing both the number four wire and one of the polypropylene lines and leaving the Jupiter without any moorings at its stern. The stern swung out away from the dock, stretching the cargo hose until it also broke, spilling its contents (120-300 gallons of gasoline) on the pier and on the Jupiter 's deck. At the same time, the electric cord for the motor-operated valve stretching from the wharf to the ship broke and spewed sparks that ignited the spilled gasoline on the pier. Fire quickly spread from the pier along the cargo hose to the Jupiter 's deck. The fire traveled through the ullage pipes to the cargo, causing three explosions.

Several men were injured and one drowned. The Jupiter and her cargo were lost and the Total Petroleum pier was damaged in the fire.

American Steamship and Cleveland Tankers both filed for limitation of, or exoneration from, liability under 46 U.S.C.App. Sec. 183(a) (1988), the Limitation Act. Under the Limitation Act, a ship owner is entitled to exoneration if he, his vessel, and crew are found to be completely free of fault. In re Complaint of Caribbean Sea Transport, Ltd., 748 F.2d 622, 626 (11th Cir.1984), modified on other grounds, 753 F.2d 948 (11th Cir.1985). Even if not completely free from fault, the ship owner is entitled to limitation of liability if the ship owner had no knowledge of or privity to the ship's negligence or unseaworthiness. S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 642 (6th Cir.1982); Matter of M/V Sunshine, II, 808 F.2d 762, 764 (11th Cir.1987). The burden of proving negligence lies on the person claiming to be injured, but once negligence is established, the vessel's owner must prove lack of knowledge or privity to the negligence. Id.

After a twenty-nine-day trial, the district court held that the Buffalo was negligent in going too fast as it passed the Jupiter and that the surge due to the excessive speed caused the accident. The district court held that Total Petroleum and Cleveland Tankers were also negligent and that their negligence contributed to the accident. Total Petroleum owned and maintained the pier. The pier's number four kingspile, which broke, was 90-95% rotten. The court specifically found that the dry rot in the kingspile was a proximate cause of the accident and that Total had unreasonably failed to discover the dry rot before the accident. The court also found

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the Jupiter was unseaworthy because the flame screens in the ullage pipes, which were intended to protect the cargo from fire on deck, were not fitted closely enough in the pipe to carry out their intended function. Furthermore, the court found that the Jupiter 's crew was negligent in failing to close the caps on the ullage pipes while the Buffalo passed, and that this failure contributed to the accident by providing a pathway for the flames from the deck to the cargo. The court found that neither Cleveland Tankers nor American Steamship had borne its burden of proving it had no privity to its vessel's negligence.

The district court apportioned liability on the basis of fault under United States v. Reliable Transfer Co., 421...

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