Hartford Accident & Indemnity Co. v. Gulf Refining Co.

• Decision Date: 06 April 1956
• Docket Number: No. 15593-15598.,15593-15598.
• Citation: 230 F.2d 346
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY v. GULF REFINING COMPANY and Villa LeBlanc. Villa LE BLANC v. BLACK WARRIOR TOWING COMPANY. BLACK WARRIOR TOWING COMPANY v. Villa LE BLANC. GULF REFINING COMPANY v. BLACK WARRIOR TOWING COMPANY. BLACK WARRIOR TOWING COMPANY v. GULF REFINING COMPANY. GULF REFINING COMPANY v. George L. CURRY. George L. CURRY v. GULF REFINING COMPANY and Villa LeBlanc. GULF REFINING COMPANY v. John THOMAS. John THOMAS v. GULF REFINING CO., and Villa LeBlanc. Martha Jane MORRISSETTE v. GULF REFINING COMPANY and Villa LeBlanc.
• Court: U.S. Court of Appeals — Fifth Circuit

230 F.2d 346 (1956)

HARTFORD ACCIDENT & INDEMNITY COMPANY v. GULF REFINING COMPANY and Villa LeBlanc.

Villa LE BLANC v. BLACK WARRIOR TOWING COMPANY.

BLACK WARRIOR TOWING COMPANY v. Villa LE BLANC.

GULF REFINING COMPANY v. BLACK WARRIOR TOWING COMPANY.

BLACK WARRIOR TOWING COMPANY v. GULF REFINING COMPANY.

GULF REFINING COMPANY v. George L. CURRY.

George L. CURRY v. GULF REFINING COMPANY and Villa LeBlanc.

GULF REFINING COMPANY v. John THOMAS.

John THOMAS v. GULF REFINING CO., and Villa LeBlanc.

Martha Jane MORRISSETTE v. GULF REFINING COMPANY and Villa LeBlanc.

Nos. 15593-15598.

United States Court of Appeals Fifth Circuit.

February 20, 1956.

Rehearing Denied April 6, 1956.

COPYRIGHT MATERIAL OMITTED

Selim B. Lemle, George B. Matthews, Lemle & Kelleher, New Orleans, La., for Black Warrior Towing Company, Hartford Accident & Indemnity Co., Martha Jane Morrissette, George L. Curry and John Thomas.

Leon Sarpy, E. A. Carrere, Jr., New Orleans, La., Frederick E. Greer, Alex F. Smith, Otis J. Dillon, Shreveport, La., May & Carrere, Chaffe, McCall, Phillips, Burke & Hopkins, Henry H. Chaffe, New Orleans, La., Archie D. Gray, Pittsburgh, Pa., of counsel, for Gulf Refining Co.

Fred J. Cassibry, New Orleans, La., for Villa LeBlanc.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

These libels, combined for trial below and for argument on appeal here, present common questions of fact and law arising out of a single incident, an explosion aboard barges of the Black Warrior Towing Company while they were discharging their cargo of gasoline at the Gulf Refining Company dock terminal near Gretna, Louisiana. The various parties raise issues concerning negligence, Section 3 of the Harter Act, 46 U.S.C.A. § 192, Section 1 of the Limited Liability Act, 46 U.S.C.A. § 182, and the effect of an exculpatory clause in the transportation contract between the two companies principally involved here.

The facts leading up to within a very few minutes of the explosion are not greatly disputed. In the early morning hours of May 11, 1952, Black Warrior's integrated oil tow, consisting of the towboat Rebel Warrior and the barges RTC-107, RTC-109, and RTC-112, arrived at the Gretna dock with a cargo of gasoline. The barges had been loaded at the Sidney Richardson Oil Refinery in Texas City, Texas, under the direction of the pilot, Walter Kirk. The tow was brought as far as the Harvey Locks under the command of its master, Captain Peden. When the tow came through the locks, at approximately 2:00 A. M., Captain Taylor came aboard and relieved Captain Peden as master. Captain Taylor stayed in the pilot house of the Rebel Warrior until the tow reached the Gulf landing, about an hour later, when he went to bed. He was not awakened until the explosion. By that time, Captain Peden had gone ashore and the towboat, at least, was under the command of the pilot, Kirk.¹

Kirk directed the mooring of the barges at the Gretna dock, which is on the west side of the Mississippi river, across from New Orleans. The 107 was placed at the upper end of the dock, with the 109 alongside it, and the 112 moored about 175 feet to the rear. Both the 107 and the 112 were spotted opposite 8-inch pipelines on the dock which come to within fifteen feet of the water's edge. Each of these lines is controlled by a gate valve and leads to the Gulf line which runs the length of the dock and then turns inland to the Gulf storage tanks there.

At about 4:00 o'clock, Lamey, Black Warrior's port engineer, came aboard the barge 112 to begin cargo discharge operations. He was aided by Curry, the tow's relief engineer, Dunaway, its tankerman, and Thomas and Easterling, deckhands. Gulf employees, notably LeBlanc, cooperated by readying the dock facilities to receive the gasoline.

They began with the 112. Gulf employees gauged the barge's tanks, attached a bonding wire from the dock to the vessel, and removed the plate, or flange, bolted across the face of the dock pipeline. They then checked the flanges, including the flange on the outboard end of the 112's discharge line. Curry, with Thomas's help, furnished compressed air from the towboat's engine room to start the barge's pump. Lamey and Dunaway primed the pump and helped Gulf employees attach a flexible rubber hose from the pipeline on the dock to the barge's discharge line, which extends across the stern of the vessel. They next opened valves leading from the barge's eight tanks into the cargo header line, which is a longitudinal pipe connecting compartments and running perpendicularly into the discharge line; and also opened two valves on the header line between the discharge line and the cargo intake line, which is parallel to and forward of the discharge line, but which plays no part in the discharge operation. Then after having started the pump engine and signalled the Gulf employees to open the dock valve, they began pumping gasoline into the Gulf line on the dock.

It was now about daybreak. The towboat, with Kirk in charge,² moved up to the 109 to give air to start the pumps on the 109 and the 107. It made fast to the 109 with a two-inch rope, the door to the towboat's galley being eight to ten feet upstream from the end of the discharge line on the 109. By this time, all of Gulf's employees except LeBlanc had left the dock, and Lamey and Dunaway helped him fasten the rubber line from the dock to 107's discharge line. Dunaway, together with Thomas and Easterling, fastened another length of rubber hose from the discharge line of the 107 to the discharge line of the 109.

The cook, Morrissette, then called from the galley that breakfast was ready, and Thomas and Easterling went in to eat. Shortly thereafter, Curry, having finished hooking up the air hose to furnish air to the pumps on the 109 and the 107, also went into the galley to eat breakfast.

Lamey and Dunaway continued readying the barges for discharge. Moving from stern to bow on the 107, they opened valves leading from the tanks to the cargo header line, and then, with Lamey about ten feet in the lead, crossed over to the bow of the 109. Going from bow towards the stern on the 109, they continued to open the corresponding valves on that barge. At this point, Thomas and Easterling, and then Curry, finished eating and stepped back out on the barge. According to Thomas's and Curry's testimony, they saw gasoline running from the open end of the discharge line on the 109 in a stream filling about a third of the eight-inch opening of the pipe, and spilling out on the deck of the 109. Thomas testified that he shouted to a man on the dock to turn off the dock valve, and that the man began to do so. In a moment, however, there was a flash across the stern of the 109, and then an explosion. Thomas was thrown alongside Dunaway on the barge and Curry was also knocked down. Thomas and Dunaway ran up on the dock to the levee runway, where Dunaway saw LeBlanc. Curry went up on the dock, where — he testified — he saw LeBlanc closing the dock valve; then, stopped by flames from following Dunaway and Thomas, he ran to the end of the dock and jumped into the river, from whence he was rescued. The bodies of Morrissette and Easterling were found several days later. Lamey's body has never been recovered, and he is presumed dead.

The trial court found that the explosion was touched off by gasoline fumes arising from the spillage on the barge's deck and ignited by the fire in the galley stove. This gasoline, it found, came originally from the 112, passed down the Gulf line and escaped through the partially opened dock valve into the discharge line of the 107 and the 109, and thence out the open end of that line. It found that LeBlanc opened the valve prematurely, without having received the customary signal from the workers on the barge that they were ready to begin discharging, and that this negligence contributed 50% to the accident; that Black Warrior's employees were negligent in commencing the discharge operation without the blind flange on the outboard end of the line, and that Curry and Thomas were negligent in this respect and each contributed 5% to the accident; that Lamey was negligent in allowing the discharge operations to begin without checking the outboard end of the discharge line to be sure it was closed by a flange; and that Morrissette was negligent in keeping, and Lamey in allowing, an open burner in the galley stove while discharge operations were going on.

LeBlanc and the Gulf Refining Company attack these findings on the ground that there is no evidence to support the finding that LeBlanc opened the dock valve, and in the alternative, that if he did, this was not a proximate cause of the accident. The evidence clearly supports the trial court's finding in both respects. No gasoline was seen coming from the end of the discharge line until Curry and Thomas came out of the galley of the Rebel Warrior. All of Gulf's employees had by that time left the dock, except LeBlanc, and he was later seen by these same witnesses, according to their testimony, in the act of closing the valve. In addition, a Coast Guard Board of Investigation after the accident found a quantity of gasoline in the dock line outside of the valve, tending to negate the contention of Gulf and LeBlanc, because of the physical arrangement of the barges and dock facilities, that the gasoline causing the explosion came from the 109 or the 107.

Regarding causation, Gulf and LeBlanc argue that in view of the gross negligence of Black Warrior in permitting a fire in the galley during discharge operations and in leaving the outboard end of the discharge line unflanged, LeBlanc's negligence was de minimis. The trial court found LeBlanc's negligence to be a 50% factor in causing the accident, and we cannot set aside this finding of fact unless it was clearly erroneous. Consumers Import Co. v. Kawasaki Kisen Kabushiki Kaisha, 2 Cir., 133 F.2d 781, affirmed 320 U.S. 249, 64...