692 F.2d 412 (6th Cir. 1982), 81-5380, Complaint of Paducah Towing Co., Inc.

Docket Nº:81-5380.
Citation:692 F.2d 412
Party Name:In the Matter of the Complaint of PADUCAH TOWING COMPANY, INC., et al., Claimants-Appellees, UNITED STATES of America, Plaintiff-Appellee, v. PADUCAH TOWING COMPANY, INC., Defendant-Appellee, Exxon Corporation, Third Party Defendant-Appellant.
Case Date:November 02, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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692 F.2d 412 (6th Cir. 1982)

In the Matter of the Complaint of PADUCAH TOWING COMPANY,

INC., et al., Claimants-Appellees,

UNITED STATES of America, Plaintiff-Appellee,



Exxon Corporation, Third Party Defendant-Appellant.

No. 81-5380.

United States Court of Appeals, Sixth Circuit

November 2, 1982

Argued June 18, 1982.

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Robert L. Sloss, Francis J. Mellen, Jr., Wyatt, Tarrant & Combs, Bert Combs, Louisville, Ky., for third party defendant-appellant.

James L. Hardy (Paducah Towing), Hardy, Terrell & Boswell, Paducah, Ky., Gary T. Sacks (Paducah Towing), Goldstein & Price, St. Louis, Mo., for defendant-appellee.

Alexander P. Taft, Jr., U.S. Atty., Louisville, Ky., James A. Lewis, U.S. Dept. of Justice, Admiralty & Shipping Section, Washington, D.C., for plaintiff-appellee.

Richard Roberts (claimants) Mark Whitlow, Whitlow, Roberts, Houston & Russell, Paducah, Ky., for claimants-appellees.

Before MERRITT, Circuit Judge, and PHILLIPS and CELEBREZZE, Senior Circuit Judges.

CELEBREZZE, Senior Circuit Judge.

In this admiralty action, Exxon Corporation appeals from a decision of the district court for the Western District of Kentucky holding Exxon completely liable for the damages resulting from an accident on the Ohio River. Paducah Towing Co. filed a petition for exoneration from or limitation of liability for the occurrence. 46 U.S.C. Secs. 181-95. The district court exonerated Paducah Towing from liability and held that it is entitled to contribution or indemnity from Exxon for any damages it is required to pay. Exxon appeals the district court's decision pursuant to 28 U.S.C. 1292(a)(3). Because the district court erred in finding Exxon solely liable, we reverse and remand this case for further proceedings.


Paducah Towing's tow boat, the Endeavour, with a tow of the claimants' 1 barges, 2 was proceeding downstream on the Ohio River on June 3, 1977. The Endeavour, whose destination was Cairo, Illinois, arrived in the late morning of June 3 at the upstream side of Lock and Dam No. 53.

The lock is large enough to accommodate only tows less than 600 feet in length. If a tow boat and its barges exceed 600 feet, they must split and pass through the lock in separate "cuts." In order to handle large tows, the lock system requires a tie-off tow to act as a temporary mooring point above the lock. As tow boats and barges pass through the lock upstream in cuts, tugboats pick up the first cut and deliver it to the tie-off tow. After passing through the lock, the tow boat, with the second cut, must reassemble its entire tow and continue on its way. The United States Army Corps of Engineers designed the "self-help" procedure to improve passage through the lock system. 3 Two tugboats, the Southeastern and the Thomas W. Martin, assisted in the tow operation upstream from Lock 53.

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The Endeavour had a crew of seven men: Captain Charles Duncan, a mate named J.C. Bachuss, an assistant engineer named Reeves, and four deckhands. 4 Mark Metcalf, one of the deckhands, was eighteen years old and had only eight days of experience at the time of the accident. Two of the other deckhands had just joined the Endeavour's crew.

The Endeavour arrived at Lock 53 in the late morning of June 3. The lockmaster asked Duncan to allow the Endeavour to serve as a tie-off tow above the lock. Duncan moored the stern of the tow, with its starboard side facing the shore, to an unoccupied construction barge located approximately 2,000 feet above the lock. The construction barge, in turn, was moored to a tree on the right descending (Illinois) shore with a one-inch steel cable. Duncan and Bachuss examined the cable which held the construction barge from the Endeavour with a pair of binoculars. They were apparently satisfied that the cable was of sufficient strength to withstand the stress of mooring the construction barge, the Endeavour, its tow, and any other tow which might be attached pursuant to the self-help program. After tying off, Duncan ordered the crew to shut off the Endeavour's engines.

At some time between 9:00 p.m. on June 3 and 1:00 a.m. on June 4, a cut of barges from an unidentified tow was tied off to the Endeavour. The second cut then passed through the lock. The tow was reassembled, and continued on its way without incident. At approximately midnight on June 3, Duncan entrusted Metcalf with the pilothouse watch. Duncan instructed Metcalf to check the moorings periodically, to listen for radio communications, and to call in the event of a problem. 5 Duncan went off duty to sleep.

At approximately 1:00 a.m. on June 4, the Exxon-Tennessee, with a tow of eight fully-loaded barges, began to pass through Lock 53 in two separate cuts, heading upstream on the Ohio River. The Thomas W. Martin, the helper tow, took the first cut through the lock and tied it to the Endeavour. During this maneuver, the Tennessee took the second cut through the lock chamber and moved upstream to the Endeavour. As the Tennessee approached the Endeavour, the Thomas W. Martin was leaving, having finished tying off the first cut. The Tennessee assembled the two cuts 6 and moved sideways in the river from the Endeavour with the use of bow thrusters. 7 While it pulled away, the Tennessee's crew tightened the wires which connected the two cuts. The Tennessee then proceeded upstream. 8

Although the timing of the following events is disputed, the Endeavour and the construction barge broke loose from the mooring and began drifting towards the dam shortly after the Tennessee left the area. Duncan, who had arisen to go to the bathroom, looked out and realized that the

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Endeavour was adrift. He went directly to the wheelhouse and told Metcalf that the boat was adrift and that he should wake the crew. Duncan attempted to start the engines and radio for help. The Thomas W. Martin and the Southeastern attempted, but failed, to rescue the Endeavour. The Endeavour, the claimants' barges, and the construction barge went over the dam.

On September 20, 1977, the United States Coast Guard investigated the accident and recommended that license revocation proceedings be commenced against Duncan. In November, 1977, an administrative law judge held a license revocation hearing. A non-lawyer warrant officer represented the Coast Guard and Paducah Towing's attorney represented Duncan. The administrative law judge determined that Duncan had not improperly moored the Endeavour; he suspended Duncan's license for two months, with the suspension remitted for twelve months of probation, because of an improper posting of documents on the barges.

On December 1, 1977, Paducah Towing filed a petition for exoneration from or limitation of liability for the accident. Paducah Towing alleged that the Tennessee caused the accident and that Exxon should be required to indemnify Paducah Towing for all damages that it might be required to pay. The United States filed claims against Paducah Towing for damage to Dam No. 53; the claimants filed claims against Paducah Towing for damage to their barges and cargo. In May, 1978, the United States filed a separate action under 33 U.S.C. Sec. 408 against Paducah Towing for damage to Dam No. 53. Paducah Towing filed a third-party complaint against Exxon for indemnity.

The district court consolidated the two cases and then bifurcated the consolidated case for an initial trial on liability, reserving the determination of the damages issues. On January 19, 20, and 21, 1981, the district court heard the consolidated case. On January 29, 1981, the district court entered an order which held that the United States, based on a strict liability theory under 33 U.S.C. Sec. 408, was entitled to recover from Paducah Towing for all damage to the dam resulting from the collision. On April 15, 1981, the district court, in a memorandum opinion, held that Paducah Towing was entitled to indemnity from Exxon for the full amount of damages paid to the United States and that the claimants were entitled to judgment from Exxon for the full amount of damage to their barges and cargo. Exxon appeals the district court's order and argues that the district court improperly relied on inadmissible evidence and clearly erred in its decision to exonerate Paducah Towing.


At trial, the district court admitted a transcript of James Cole's 9 testimony at the license revocation proceeding. The district court also admitted the factual findings of the administrative law judge who presided at the revocation proceeding. Exxon objected to the admission of this evidence, asserting that the evidence was inadmissible hearsay. The district court concluded that Cole's testimony was admissible under Fed.R.Evid. 804(b)(1) and that the ALJ's findings were admissible under Fed.R.Evid. 803(8)(C).

At the license revocation hearing, Cole was called as a witness by Chief Warrant Officer Riggs, who represented the United States Coast Guard. On direct examination, Cole recounted the events he observed in the early morning hours of June 3, 1977. On cross-examination, Captain Duncan's counsel attempted to qualify Cole as an expert witness. Duncan's counsel questioned Cole, by means of hypothetical questions, regarding the reasonableness of Duncan's actions. Cole's responses were uniformly favorable to Duncan. On redirect examination, the ALJ refused to allow Riggs to impeach Cole's credibility. The district court admitted the transcript of this testimony under Fed.R.Evid. 804(b)(1). The ALJ's findings, which were based upon the testimony of Cole and other witnesses, indicated

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that Duncan, as captain of the...

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