Bisso v. Waterways Transportation Company, 15464.

• Decision Date: 20 September 1956
• Docket Number: No. 15464.,15464.
• Citation: 235 F.2d 741
• Parties: William A. BISSO, Jr., Receiver of New Orleans Coal and Bisso Towboat Company, and Moran Towing & Transportation Company, Inc., and THE MARION MORAN, Inc., Claimant of THE KEVIN MORAN, Appellants, v. WATERWAYS TRANSPORTATION COMPANY, Inc., Claimant of THE JAMES L. RICHARDS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

235 F.2d 741 (1956)

William A. BISSO, Jr., Receiver of New Orleans Coal and Bisso Towboat Company, and Moran Towing & Transportation Company, Inc., and THE MARION MORAN, Inc., Claimant of THE KEVIN MORAN, Appellants, v. WATERWAYS TRANSPORTATION COMPANY, Inc., Claimant of THE JAMES L. RICHARDS, Appellee.

No. 15464.

United States Court of Appeals Fifth Circuit.

June 30, 1956.

Rehearing Denied September 20, 1956.

Norman Stallings, Hervey Yancey, Tampa, Fla., John W. Sims, New Orleans, La., Adrian J. O'Kane, New York City, Shackleford, Farrior, Shannon & Stallings, Tampa, Fla., and Burlingham, Hupper & Kennedy, New York City, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., Fowler, White, Gillen, Yancey & Humkey, Tampa, Fla., of counsel, for appellants Moran Towing & Transp. Co., Inc., and Tug Kevin Moran.

Alfred M. Farrell, Jr., New Orleans, La., Christopher E. Heckman, New York City, Chester H. Ferguson, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., and Foley & Martin, New York City, for appellee.

Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

In a pleader's paradise of two hundred fourteen printed record pages of libels, cross-libels, impleading, petitions, answers, reconventions, and claims for contract and maritime salvage, towage, for damage and general average expense, the District Judge declared that The Kevin Moran, the command tug on a hawser ahead, and The Mary B., assisting on the starboard quarter, were liable for the stranding, in the entrance of Southwest Pass, Mississippi River, of The James L. Richards, a former vessel 359 feet long, 49-foot beam, operated as a seagoing barge without motive power but equipped with a steam steering engine actuated by a hydraulic telemotor system from the bridge. The case comes to us on a record of an additional twelve hundred one printed pages of testimony from some twenty-five witnesses, a good portion of whom gave evidence by deposition. The scope of this record, the somewhat complex technical problems involved, and the inevitable running advocacy to which a Judge is properly exposed as a case is being presented, whether with live or printed swearers, illustrates the inherent soundness in a rule which commits to Trial Judges the trying and finding of facts and those significant inferences which come from them. Whatever vestigial power remains to invoke trial de novo, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999; Taylor v. Crain, 3 Cir., 224 F.2d 237, 238, 1955 A.M.C. 1499; cf. Coyle Lines v. United States, 5 Cir., 195 F.2d 737, 1952 A.M.C. 715; Coryell v. Phipps, 5 Cir., 128 F.2d 702, 1942 A.M.C. 906, affirmed 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363, 1943 A.M.C. 18, this is certainly not a case in which to seek out or apply its limits. We start, therefore, with willing acceptance of the Trial Court's findings unless clearly erroneous. C. J. Dick Towing Co. v. Leo, 5 Cir., 202 F.2d 850, 1953 A.M.C. 498; Mississippi Valley Barge Line Co. v. Indian Towing Co., 5 Cir., 232 F.2d 750, 1956 A.M.C. 757; Societa Anonima Navigazione Alta Italia v. Oil Transport Co. (The Mongioia), 5 Cir., 232 F.2d 422; see, Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217.

The channel in Southwest Pass runs southwest-northeast between two long fingers. The East jetty ends at a point somewhat south of the end of the West jetty. Through this mouth the river floods out on the general course of the Pass. The entrance, however, from the Sea Buoy is on a course (Outer Range) of 0° (North). When just slightly above the end of the East jetty, the course (Inner Range) changes to 25°. At that point of course, the stream catches an ascending vessel's starboard bow and tends to set it to the west (port hand). Here, The Kevin Moran, running under full ahead with a hawser of 300 to 400 feet, had The James L. Richards dead on the Outer Range at the time the tug, arriving at the intersection of Outer and Inner Ranges, hauled well to the right (approximate heading 38°) to swing the tow into the turn. The James L. Richards, however, did not swing. Instead, she kept coming straight on (heading substantially 0°). This and the resulting action was described as a "sheer" — a subsidiary, semantic controversy of no substantial significance, since responsibility is fixed by the cause, not the label, cf. Baltimore & Boston Barge Co. v. Knickerbocker Steam Towage Co., D.C.Me., 159 F. 755, 766, 767, affirmed 1 Cir., 170 F. 442, 443; The Algic, D.C.S.D.Fla., 13 F. Supp. 834, 838; The Bulkcrude, D.C. Tex., 107 F.Supp. 771, 774, 1952 A.M.C. 1400; The Oscar B., 9 Cir., 121 F. 978; The Stranger, 23 Fed.Cas. page 220, No. 13,525. For however described, what happened was that the vessel merely forged ahead and, not turning as intended, she was almost immediately caught by the full flood of the river and, with considerable force, set over to the west, dragging The Kevin Moran astern with her, until she stranded on a mud lump where she remained for some thirteen days. When it was noticed that The James L. Richards was not following the turn, the tug Mary B., on the starboard quarter, was ordered to go full ahead with a hard right rudder, and simultaneously the pilot on The James L. Richards ordered the starboard anchor dropped, but the Barge's Captain (an unlicensed seaman) dropped the port anchor instead. The anchor was soon under foot causing substantial damage to the bottom plates.

One gets from an objective reading of this whole record the definite conviction that the stranding clearly ought not to have taken place. To be sure, there was a strong current of 4½ knots which would (and did) catch the starboard bow of the tow, but this was well known and its imminence was the reason the owners of The James L. Richards agreed expressly with Moran to provide a local assisting tug of adequate power. Except for this, the weather was calm and conditions were well nigh perfect.

This brought into play the sensible rule that, even though the engagement is in contract so that the duty of the tug toward the tow is that of due care only, with the consequent burden on the tow of establishing negligence, Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699; New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 86 F.2d 53, 1937 A.M.C. 86, certiorari denied St. Paul Fire & Marine Ins. Co. v. New Orleans Coal & Bisso Towboat Co., 300 U.S. 676, 57 S.Ct. 669, 81 L.Ed. 881; Stall & McDermott v. Southern Cross, 5 Cir., 196 F.2d 309, 1952 A.M.C. 876; The Clarence L. Blakeslee, 2 Cir., 243 F. 365, a stranding which occurs under circumstances which ordinarily results in no such casualty puts on the tug the obligation of some satisfactory explanation. "When an accident occurs to the tow the action is ex delicto and the burden is on the tow to show negligence on the part of the tug. However, circumstances may create a strong presumption of negligence. In that event the burden is on the tug to rebut the prima facie case or, at least, to show a reasonable excuse for the accident other than its own negligence. The Steamer Webb, 14 Wall. 406, 20 L.Ed. 774; The Clarence P. Howland, 2 Cir., 16 F.2d 25", Simkins v. R. L. Morrison & Sons, 5 Cir., 107 F.2d 121, 122, 1940 A.M.C. 24; The Marie Palmer, D.C.E.D.Ga., 191 F. 79, 86, affirmed per curiam 5 Cir., 202 F. 1023. "The burden of explanation was cast upon the tug to account for this apparently unnecessary grounding. The tug proved no fault in the management of the schooner, and gave no reasonable explanation why she did not keep the schooner under control. Upon this showing alone the libelant was entitled to a decree for damages", Burr v. Knickerbocker Steam Towage Co., 1 Cir., 132 F. 248, 250. "The grounding of the tow called for an explanation. The attempted explanation was the presence of a dense fog, but the tug had to meet the prima facie proof of fault occasioned by grounding her tow by showing now only that she was in a troublesome fog, but that her master did everything a skillful navigator should have done while in a fog to keep the tow in line and to keep it from sagging into the shore as it rounded the bend in the river and was subjected to the impact of an ebb tide." The Stirling Tomkins, 2 Cir., 56 F.2d 740, 742, 1932 A.M.C. 447; The Reichert Line, 2 Cir., 64 F.2d 13, 14, 1933 A.M.C. 785; The Evelyn v. Gregory, 4 Cir., 170 F.2d 899, 901, 1949 A.M.C. 22; The Anaconda, 4 Cir., 164 F.2d 224, 228, 1947 A.M.C. 1658; Coastwise Transportation Corp. v. United States, D.C.S.D.Me., 43 F.2d 401, 404, 1930 A.M.C. 1689.

The explanation could not be found in any providential act since what nature presented was neither sudden nor catastrophic, and, indeed, the expected current was about all that offered much challenge to the reputed professional skill of these towers. The Inca, 5 Cir., 148 F. 363, 365; The Algic, supra; Shasta Steamship Co. v. Great Lakes Towing Co., D.C.W.D.N.Y., 44 F.Supp. 572, 574, 1943 A.M.C. 1205; The Severance, 4 Cir., 152 F.2d 916, 1946 A.M.C. 128; McWilliams Bros. v. Director General of Railroads, 2 Cir., 271 F. 931, 932. If the explanation were to succeed, the tugs had virtually to pin it all on the acts of the tow.

This took the form of a joint attack made as true and faithful allies by The Kevin Moran and The Mary B. on the fitness of The James L. Richards' steering gear, claimed unseaworthiness of the barge for being loaded a few inches below her Plimsoll marks, 46 C.F.R., Chapter 1, Section 43.05-1 et seq., the dropping of the wrong anchor, and, as the exigencies of the case demanded, a three-cornered Donnybrook Fair in which The Kevin Moran, asserting that The James L. Richards had failed, as agreed, to supply an adequate helper tug of 1000 horsepower, got aid and comfort from this unexpected quarter as The James L. Richards echoed the...