WG Bush & Co. v. SIOUX CITY & NEW ORLEANS BARGE

• Decision Date: 06 September 1977
• Docket Number: No. 76-6-NA-CV.,76-6-NA-CV.
• Parties: W. G. BUSH & COMPANY, INC., T. L. Herbert & Sons, Inc. v. SIOUX CITY AND NEW ORLEANS BARGE LINES, INC. v. Hubert R. BRUCE, d/b/a Ohio Valley Co. and Molloy Marine Service, Inc.
• Court: U.S. District Court — Middle District of Tennessee

474 F. Supp. 537

W. G. BUSH & COMPANY, INC., T. L. Herbert & Sons, Inc. v. SIOUX CITY AND NEW ORLEANS BARGE LINES, INC. v. Hubert R. BRUCE, d/b/a Ohio Valley Co. and Molloy Marine Service, Inc.

No. 76-6-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

August 23, 1977.

As Amended September 6, 1977.

Waller, Lansden, Dortch & Davis, H. Barton Williams, Gracey, Madden, Cowan & Bird, Nashville, Tenn., for plaintiffs.

Frank Gorrell, Bass, Berry & Sims, Nashville, Tenn., Richard C. Roberts, Threlkeld, Whitlow & Roberts, Paducah, Ky., Cornelius, Collins, Higgins & White, Nashville, Tenn., for defendants.

MEMORANDUM

MORTON, Chief Judge.

This is an in personam action in admiralty arising out of the transactions and events hereinafter detailed.

After seeing the witnesses and judging their credibility, the following facts are found.

Sioux City and New Orleans Barge Lines, Inc. ("Sioux City") entered into a contract with Phillip Brothers to transport phosphate from Nashville, Tennessee, to Cairo, Illinois, by barge over the Cumberland River, a navigable stream. Having a shortage of barges, Sioux City contacted a marine broker, Missouri Marine Service, and dealt with Thomas G. Ahillen ("the Broker"). The Broker then contacted a representative of Herbert R. Bruce, d/b/a Ohio Valley Co., who agreed to charter Barge OV-501B ("the Barge") to Sioux City. As was customary, an on-charter survey was made by a professional surveyor, Wayne Hendricks of Cairo Marine Service, Inc. ("Hendricks"). In addition, the Barge was inspected by Stan Kays ("Kays"), the marine superintendent of Sioux City. The two inspections revealed defects in the hull of the barge which were in most part above the water level on the barge when it was not loaded, but which would be below the loaded water level. However, at the time of the inspection, the floor of the hopper (the load carrying portion of the barge) was loaded with coal and could not be inspected. The defects so found were reported to Sioux City and Bruce. Bruce agreed to pay for the repairs to make the Barge seaworthy. Thereafter, a bare boat charter was prepared for execution by Sioux City, the Broker, and Bruce, all terms having been negotiated by the three. Prior to the sinking of the Barge as hereinafter described, Sioux City and the Broker had signed the charter but Bruce had not received the charter. After the sinking, Bruce refused to execute it. However, Bruce had authorized the Broker to sign the instrument and had fully agreed to its terms.

After the charter was negotiated, with the agreement of Sioux City, the Broker, and Bruce (acting through the Broker), the Barge was delivered to Molloy Marine Service, Inc. ("Molloy") near Paducah, Kentucky, for repair and cleaning of the hopper. Molloy was contracted by Sioux City and the Broker and advised as to the kind and extent of the work and repairs to be performed on the Barge. Kays, without any notes of his inspection, went to the facilities of Molloy and, relying only on his memory, advised its personnel of those defects in the Barge which needed repairs. He specifically advised of repairs in one wing tank. The Broker advised management personnel of Molloy in detail as to those items revealed by the marine inspection conducted by Hendricks. Molloy denies that it received this information. This court finds that Molloy was advised in specific detail.¹

Sioux City was most anxious to have the Barge in operation as soon as possible. T. L. Herbert & Sons ("Herbert") had a tugboat which was scheduled to pass by the facilities of Molloy on a certain day. The testimony showed that if that tug could pick up the Barge on its return trip to Nashville, Tennessee, several days' time would be saved. Sioux City contacted Molloy and was advised that the repairs could be completed in time for the tug to be used but that there was not sufficient time for cleaning the hopper. Sioux City made a contract with Herbert to clean the hopper when the Barge reached Nashville and so advised Molloy. Molloy then released the Barge as having been repaired, and it was pulled by tugboat up the Cumberland to Nashville and docked at the facilities of Herbert. Herbert then cleaned the hopper, but noticed no unusual leakage of water. The Barge was then taken to the docking facilities of W. G. Bush & Company ("Bush") for loading. The Barge was approximately one-half loaded when work ceased for the night. At 9:00 p. m. on October 16, 1975, the Barge was sitting in the water in apparent proper order. By daylight of the next morning the Barge had sunk. The sunken Barge blocked the facilities of Bush and constituted a navigation hazard. Bush and Herbert demanded that Sioux City, Bruce, and Molloy raise the Barge. On inspection, it was determined that the Barge had sunk as a result of Molloy's failure to make the specified and agreed-to repairs.

Before addressing the liability of the respective parties hereto, the court makes the following specific findings. First, the sole and proximate cause of the sinking of the Barge was the failure of Molloy to make the specified repairs which it had agreed to make. Second, neither Bush nor Herbert were guilty of any negligence which proximately or remotely contributed to the sinking.

As to the first finding above, there was no credible proof adduced at trial as to the competency of Molloy in its field. Nor was there any credible proof that Sioux City, the Broker, and Bruce were negligent in selecting Molloy to make the repairs necessary to put the Barge in seaworthy condition. There was no credible proof that Sioux City, the Broker, or Bruce were aware or should have been aware of Molloy's failure to fulfill its contract to make the necessary repairs. The fact that time was of the essence has no bearing on the failure of Molloy to perform its duty. In fact, Molloy, by releasing the Barge after its conversation with Sioux City, tacitly represented that the necessary repairs had been made.

As to the second finding above, there was no credible proof that Herbert should have, while cleaning the hopper, discovered the unseaworthiness of the Barge. Herbert was not hired to inspect or repair the Barge. It received the Barge after it had allegedly been made seaworthy by Molloy. It is significant that the major defects were located above the water line of the Barge when empty. It also is pertinent to note that cleaning a hopper is customarily a task performed by common labor and not by marine inspectors. No credible proof was offered that a contract to clean a hopper entails an inspection for structural defects by knowledgeable personnel. The court is likewise not convinced by the proof that any leak in the hopper could, or did, cause the sinking.

It has been asserted that Bush, as a bailee, was negligent in failing to inspect the Barge between 9:00 p. m. and daylight of the next day. No credible proof as to the standard of care for bailees in the marine industry in the Nashville or southeast area was introduced. Some general impressions of what was personally considered appropriate were offered but this court rejects them. What one person or one concern might or might not do does not constitute a custom, standard, or norm. There is nothing in the testimony which shows any negligence by Bush in its handling of the Barge. There is no evidence that Bush had knowledge of any facts which did or should have put it on notice of any impending problem with the Barge. This record reveals that it handled the Barge in its normal and customary manner. There is no evidence, as above stated, that this conduct did not meet the standard of the industry.

RELIEF SOUGHT

By the original complaint, Herbert sought recovery from Sioux City for the blocking of the Herbert terminal, the cost of raising the Barge, revenue loss and related expenses totaling $26,651.62, plus $25,000.00 in punitive damages. By amended complaint, Bush was joined as a party plaintiff upon the allegation that Herbert was the wholly owned subsidiary of Bush.

Sioux City filed a third-party complaint against Bruce (d/b/a Ohio Valley Company) and Molloy, seeking to pass to those defendants any liability attaching to Sioux City.

Sioux City also filed a counterclaim against plaintiffs, alleging that the loss was due to plaintiffs' negligence. Sioux City filed a cross-claim against Bruce and Molloy.

JURISDICTION

Jurisdiction of this court is not questioned by Bush, Herbert, Sioux City, or Bruce. However, Molloy questions the in personam jurisdiction.

To reach the issue raised by Molloy, certain basic determinations must be made.

A contract to repair a ship (barge) is maritime. Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Sicula Oceanica, S. A. v. Wilmar Marine Eng'r & Sales Corp., 413 F.2d 1332 (5th Cir. 1959); Alcoa S. S. Co. v. Charles Ferran & Co., 383 F.2d 46 (5th Cir. 1957), cert. denied, 393 U.S. 836, 89 S.Ct. 111, 21 L.Ed.2d 107; Houston-New Orleans, Inc. v. Page Eng'r Co., 353 F.Supp. 890 (E.D. La. 1972).

Courts sitting in Admiralty have personal jurisdiction over any defendant sued in personam whom the courts can reach by process. Since 1966, civil and admiralty practice have been united. Thus, Rule 4 of the Federal Rules of Civil Procedure applies to actions in personam. H & F Barge Co. v. Garber Bros., 65 F.R.D. 399 (E.D. La. 1974); Chilean Line, Inc. v. United States, 344 F.2d 757 (2d Cir. 1965); McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965); Bartlett-Collins Co. v. Surinam Navigation Co., 381 F.2d 546 (10th Cir. 1967); Nimpex Int'l, Inc. v. S. S. Monksgarth, 342 F.Supp. 510 (N.D. Ill. 1971).

Rule 4(c) encompasses service under the state "long arm" statute. In the case at bar, process was issued, served by the U. S. Marshal on the Secretary of State of Tennessee, and processed by that official pursuant to T.C.A. § 20-235. Molloy does not challenge the mechanics of service, but asserts that it did...