Humble Oil & Refining Company v. Tug Crochet

• Decision Date: 27 February 1970
• Docket Number: No. 27118.,27118.
• Citation: 422 F.2d 602
• Parties: HUMBLE OIL & REFINING COMPANY, Plaintiff-Appellee, v. The TUG CROCHET, her engines, etc., and M. L. Crochet Towing Co., Inc., Defendants-Appellants. UNITED STATES of America, Defendant-Appellee, v. CARGILL, INC., Third Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.2d 602 (1970)

HUMBLE OIL & REFINING COMPANY, Plaintiff-Appellee, v. The TUG CROCHET, her engines, etc., and M. L. Crochet Towing Co., Inc., Defendants-Appellants.

UNITED STATES of America, Defendant-Appellee, v. CARGILL, INC., Third Party Defendant-Appellant.

No. 27118.

United States Court of Appeals, Fifth Circuit.

February 5, 1970.

Rehearing Denied February 27, 1970.

Tom F. Phillips, Frank M. Coates, Jr., Baton Rouge, La., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for Cargill, Inc.

Charles E. Lugenbuhl, New Orleans, La., Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., of counsel, for M. L. Crochet Towing Co., Inc.

Walter Carroll, Jr., Benjamin W. Yancey, New Orleans, La., Terriberry, Carroll, Yancey & Farrel, New Orleans, La., of counsel, for Humble Oil & Refining Co.

Alan S. Rosenthal, Norman Knopf, Atty., Dept. of Justice, Washington, D. C., William D. Ruckelshaus, Asst. Atty. Gen., Alfred M. Farrell, Jr., New Orleans, La., Louis C. LaCour, U. S. Atty., Thomas F. McGovern, Trial Atty., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for the United States.

Before WISDOM, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

These appeals come from an action in admiralty for damage to a tug-pushed barge and its cargo resulting from a collision at a crossing on the Mississippi River with the wreck of a sunken barge which had been buoyed and lighted by the United States. The Court below¹ affixed liability against the pushing tug, its owner and the owner of the sunken barge. It exonerated the United States. We affirm.

Numerous negligence issues were joined by the pleadings. Humble Oil & Refining Company filed a libel in rem against the Tug CROCHET, and in personam against her owner, M. L. Crochet Towing Co., Inc. and against the United States, for damages received on August 27, 1964, when libelant's ESSO BARGE No. 261 struck the projecting portion of barge L-1 which had long been sunk in navigable waters of the Mississippi River in the vicinity of Mile 224 above Head of Passes at a point commonly known as Red Eye Crossing. Libelant alleged the tug and its owners were negligent in allowing the tow to strike a known, fixed object, and that the United States was negligent in failing to properly light or, in the alternative, to remove the wreck from the navigable portion of the river. Crochet Towing Co., individually and as claimant of the tug, admitted the collision but denied it was due to any act of negligence charged to it. It alleged that the collision occurred solely as a result of the joint negligence of the United States in failing to properly light and mark or to remove the sunken wreck and in failing to notify mariners that the marker light at the site of the wreck was inoperative, and of Cargill, Inc., as the owner of L-1, in failing to properly light and mark or to remove or destroy the wreck. A 56th Rule Petition was also filed by Crochet Towing Co. against the United States and Cargill, Inc. The United States denied in every particular the charges of negligence alleged against it and also cross-claimed against Cargill. Cargill denied any fault in connection with the original sinking of L-1 and claimed an abandonment of the barge. It further claimed that the United States was exclusively responsible for the buoying and marking of the wreck and that the collision sued on was solely the fault of the Tug CROCHET.

The pertinent facts center about, not one but, two collisions, separated in time by about three and one-half years. In March of 1961 Cargill, Inc., through its wholly owned subsidiary, Cargo Carriers, Inc., operated a general fleeting service at a point known as Red Dog No. 1, located at Jackson's Landing (Mile 227.5 AHP). At about 9:00 P.M. on the evening of March 30, 1961 the barges L-1 and M-65, then owned pro hac vice and operated by Cargill, were moored into this fleet by the Tug ISABEL GARRETT, which was then being operated under a fully found charter to Cargo Carriers. The fleet was serviced at that time by a harbor tugboat, the JOHN E. COON, also operated under a fully found charter to Cargo Carriers. In the regular course of their day to day management of the fleeting service, personnel of Cargo Carriers wrote both standing orders and special orders which were to govern operations. The standing orders required clean, filled, brightly burning kerosene lanterns to be placed and securely tied at the bow and stern of each outboard barge, and required inspections of the fleet to be made as frequently as possible but never less frequently than twice a night. The special orders for the fleet for the night of March 30 stated, in part, "* * * we do not want any barges in the position of W-2, last high water. So be sure that the barges are properly tied and afloat. The water is expected to rise another foot over the weekend. * * *" Cargo Carriers' manager, who had charge of the fleet on the night of March 30, appeared as a witness in the court below. To the best of his knowledge no inspection was ever made of the manner in which L-1 and M-65 were tied off or equipped — assertedly because just after they arrived fog set in "and no one could get to them". The events which took place in Cargo Carriers' fleet during the rest of this evening and the early morning hours of March 31, if known, are not shown in this record, but at approximately 6:00 A.M. on March 31 the harbor tug, JOHN E. COON, notified the fleet manager that the ESSO ZURICH had collided in the night with the barges L-1 and M-65 at Red Eye Crossing. The statements of the pilot and captain of the ESSO ZURICH showed the barges were not sighted and no lights or other indication of their presence was detected by her lookouts prior to the collision. When the manager then inspected the shore barge which remained in his fleet he found remnants of broken mooring lines hanging from this barge. The wreck of the barge L-1 came to rest approximately one hundred feet east of the east edge of the fifteen hundred foot channel regularly maintained by the United States in Red Eye Crossing, in water estimated to be between sixteen and twenty feet deep — obviously navigable in fact even at low water. It was marked and lighted by Cargill from the date of this sinking until April 1962. From April 28, 1962, L-1 was marked and lighted by the U.S. Coast Guard. A new, properly equipped, lighted marker buoy was placed on location near L-1 on July 15, 1964 by Coast Guard personnel. This buoy was on its proper station at the time of the collision.

The circumstances surrounding the collision giving rise to the present litigation were established by the testimony of the Captain and the relief pilot of the Tug CROCHET. On August 27, 1964, the CROCHET left the Humble Oil Company's Esso dock about 5:00 P.M. headed down river, bound for Mobile, with ESSO BARGE 261 loaded with asphalt made up ahead. The tug's crew consisted of a captain, a relief pilot and a deckhand-cook; there was no crew on the barge. The captain was at the wheel of the tug. When the flotilla reached a point just above and within sight of Red Eye Crossing, a radio message recalled the tug to the Esso dock for further testing of the cargo, but before returning the captain pointed out the red buoy marking the location of the sunken barge L-1 to the relief pilot, Gillis Naquin. The sun was shining brightly enough so that it was not possible to then tell whether the light on the buoy was operating. The flotilla returned to the Esso dock and remained there until the requested testing procedures had been completed. About 10:00 P.M., CROCHET, made up as before, again headed down river bound for Mobile. The captain and the deckhand-cook went to bed, and when the flotilla arrived at Red Eye Crossing, Relief Pilot Naquin was the only person on the vessels who was awake.

Naquin estimated he had been through Red Eye Crossing about seven times previous to this night. This trip, however, was his first service aboard the CROCHET other than as a deckhandcook. Before this trip he had had approximately six hours total experience in piloting towboats. Just before he reached the vicinity of Red Eye Crossing Naquin completed a starboard to starboard pass with an upbound tow. Visibility in this immediate area was then impaired by a low haze upon the river. Naquin could not readily sight the red flashing buoy light which marked the location of the wrecked barge so he reduced his speed while attempting to locate the buoy, which he said he planned to use in navigating the crossing. Even though he couldn't see the buoy or its light, Naquin was able to see the two range lights on the west bank of the Mississippi River which marked the center of the channel through Red Eye Crossing, and he was also able to see the lights on an illuminated overhead power line which he knew to be a very short distance upstream of the barge wreck and its buoy. He also could see the lights of two upbound boats in Missouri Bend, below Red Eye Crossing. He stated it was his intention to make starboard to starboard passes with these tows also; presumably this was to explain why he was on the east side of the river. Yet, on his initial cross-examination as an adverse witness, Naquin testified that when he got to the illuminated overhead power line crossing he ran straight for the range light on the west river bank and that this placed him a little bit upstream from the center of the channel. However, he subsequently testified that he spent between 25 and 30 minutes drifting at reduced speed and searching for this buoy, both with and without the help of the tug's searchlight, and that while vainly searching for the wreck buoy, he knew he had allowed the current to take his flotilla down river well below the illuminated overhead power crossing and beyond the shore-based range lights. It is also obvious from the undisputed physical facts that the current must have moved...