American Commercial Lines, Inc. v. Silver Creek Coal Co., 16180.

• Decision Date: 25 March 1968
• Docket Number: No. 16180.,16180.
• Parties: AMERICAN COMMERCIAL LINES, INC., a corporation, Libelant-Appellant, v. SILVER CREEK COAL COMPANY, a corporation, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 178 (1968)

AMERICAN COMMERCIAL LINES, INC., a corporation, Libelant-Appellant, v. SILVER CREEK COAL COMPANY, a corporation, Respondent-Appellee.

No. 16180.

United States Court of Appeals Seventh Circuit.

March 25, 1968.

Harvey Wienke, Elmer Michael Walsh, Jr., Chicago, Ill., McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel, for appellant.

Herbert C. Loth, Jr., Gene A. Knorr, Peterson, Lowry, Rall, Barber & Ross, Chicago, Ill., Timothy G. Lowry, Richard V. Henry, Jr., Chicago, Ill., Sheribel Rothenberg, of counsel, for appellee.

Before HASTINGS, Chief Judge, and CASTLE and CUMMINGS, Circuit Judges.

HASTINGS, Chief Judge.

Libelant-appellant American Commercial Lines, Inc. appeals from a judgment entered December 29, 1966 in favor of respondent-appellee Silver Creek Coal Company. The libel, filed April 17, 1963, charged that appellee negligently caused the sinking of appellant's barge BL-469 on February 3, 1958.

There is little dispute concerning the facts prior to the day of the sinking. Appellant had used the barge to transport coal on the Illinois Waterway since the mid-1940's. The age of the barge was not in evidence. The barge was a steel-hulled open hopper with a wood floor. It had a length of 175 feet, a beam of 26 feet and a draft of 11 feet when fully loaded. There was no evidence of its involvement in an accident.

Between January 2 and 10, 1958, shortly before the sinking, the barge was in drydock at appellant's Alton, Illinois shipyard for repairs. Cracks in the hull of the barge were welded and damage to its cargo floor was repaired.

After completion of the repairs, the barge was loaded with 837.25 tons of coal at an Alton coal dock. The coal was consigned by Peabody-Southern Coal Company to Swift & Co., in care of appellee Silver Creek Coal Company at Chicago, Illinois. From January 18 until January 22 the barge was in tow, moving up the Mississippi River and the Illinois Waterway to Lemont, Illinois. It remained at Lemont until January 28, when it was towed to appellee's dock in Chicago for unloading. Appellant's towboats were used the entire journey.

Appellee removed coal from the barge on January 29 and 30, using a diesel railroad crane that ran alongside the slip where the barge was tied. On January 30,¹ appellee notified appellant that the partially unloaded barge contained water. Appellant sent two men with equipment to pump the barge. Water was pumped continuously for five or six hours, although there was no evidence of the volume of water pumped. No work was done on January 31 or February 1 or 2, a weekend period.

The unloading operation was resumed on Monday, February 3. There is disagreement concerning the amount and placement of coal remaining in the barge. Water was nearly knee-deep in the north (stern) end of the barge. At approximately 9:30 a. m. both sides of the barge broke amidships and the floor buckled between the breaks. The south (bow) end quickly sank below the surface in sixteen feet of water, while the north end remained awash. About fifty tons of coal had been removed from the barge on February 3 before the sinking.

After hearing and examining the evidence, the trial court received proposed findings by both parties and entered findings submitted by appellee. Findings prepared and submitted by partisans and adopted by the trial court will stand if supported by the evidence; findings "drawn with the insight of a disinterested mind are, however, more helpful to the appellate court." United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964).

Appellant challenges several of the trial court's findings as unsupported by the evidence. The scope of our review of the findings of a district court sitting in admiralty is the same as that we exercise under Rule 52(a), F.R.Civ.P., 28 U.S.C.A. We may not set aside the trial court's findings unless they are clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Commercial Transport Corp. v. Martin Oil Service, Inc., 7 Cir., 374 F.2d 813 (1967); In re Rapp's Petition, 7 Cir., 255 F.2d 628 (1958).

Appellant first challenges the court's finding that "The evidence does not show that the barge was seaworthy when delivered to the dock." Appellant concedes that it had the duty to furnish a seaworthy barge. Cf. Commercial Transport Corp. v. Martin Oil Service, Inc., supra. It also concedes that it had the burden of proving the seaworthiness of the barge. Cf. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941).

To prove seaworthiness, appellant introduced evidence that the barge was inspected and found seaworthy after repairs at Alton and before it was loaded with coal, that it had never been involved in an accident and that its journey to appellee's coal dock was eventless. This evidence, appellant contends, raised a presumption that the seaworthy condition of the barge continued until appellee began unloading it. Cf. 2 Wigmore, Evidence § 437 (3d ed. 1940). Assuming appellant's evidence was credible, it gave rise to a presumption of continued seaworthiness. The strength of the presumption depended upon the probability that intervening circumstances impaired the seaworthiness of the vessel, and appellee could rebut the presumption by evidence of such a probability. Ibid.

We conclude that the presumption of seaworthiness, if it was raised, was rebutted by appellee's evidence that the barge contained water two days after its delivery to appellee's dock and had to be pumped for five or six hours. Appellant's explanation of the presence of the water, attributing it to snow and condensation, is inadequate. There is undisputed evidence that appellant's towboat crews had orders to inspect barges in tow every six hours for presence of water and to pump out any water discovered. The barge was in tow for eleven hours on January 28, the day it was delivered to appellee's dock. If the towboat crews followed their orders, the barge should have been substantially dry when delivered. There was irrefutable evidence that between January 28 and February 3 there was negligible precipitation in Chicago and that the temperature did not rise above freezing. This evidence would have supported a strong inference that the water pumped from the barge on January 30 had leaked in after delivery of the barge on January 28.

Appellant also introduced the testimony of Thomas Bown, a marine surveyor who examined and raised the barge. He had conducted about 200 salvage operations involving barges or towboats. He testified that in his opinion appellant's barge was seaworthy when delivered to appellee's dock and that the breaking of the barge could only have been caused by improper unloading that placed disproportionately great load stresses on the ends of the barge. His inspection of the barge immediately after sinking and in drydock revealed no cracks or holes other than the tears and buckles amidship. The edges of the torn steel when examined immediately after the sinking were shiny, indicating their freshness. Inspection revealed a thirteen inch streak of dark rust along the tear on the inside of the hopper wall and along the top of the gunnel deck on one side of the barge. Bown testified that the streak was probably caused by appellee striking the barge with its discharge bucket during unloading operations. In his opinion the crack, assuming it was a crack, did not contribute to the breaking of the barge.

Even accepting Bown's expertise and the correctness of the physical principles he applied, the trial court's rejection of his opinion on seaworthiness was not clearly erroneous. Bown's opinion that the barge was seaworthy was based on the assumption that the barge did not leak after it was pumped out on January 30 until it sank on February 3, and on the further assumption that at the time of the sinking there were 50-140 tons of coal in the "extreme" north end of the barge. Both of such assumed facts were disputed in the evidence. The trial court reasonably could have found the facts to be other than Bown assumed them to be. For that reason, if none other, the trial court's finding that the barge was unseaworthy is not clearly erroneous.

Bown testified that in his opinion a clean break of the character here shown could only have been caused by placing disproportionately great load stresses on the ends of the barge. However, we are not persuaded by his major premise that a barge which sinks only because of the concentration of load stresses at its ends is seaworthy. It would appear that a seaworthy barge should be capable of withstanding the stress of a reasonable load imbalance. As Bown testified, the breaking force at the middle of a barge with such a load concentration is a function of the weight at the ends and the distance of the weight masses from the middle or focal point. It could vary from slight to...