Bunge Corp. v. Agri-Trans Corp., GC 79-106-WK-O

• Citation: 542 F. Supp. 961
• Decision Date: 04 August 1982
• Docket Number: GC 80-224-WK-O.,No. GC 79-106-WK-O,GC 79-106-WK-O
• Parties: BUNGE CORPORATION, Plaintiff, v. AGRI-TRANS CORPORATION, Defendant. AGRI-TRANS CORPORATION, Plaintiff, v. GLADDERS BARGE LINE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

542 F. Supp. 961

BUNGE CORPORATION, Plaintiff, v. AGRI-TRANS CORPORATION, Defendant.

AGRI-TRANS CORPORATION, Plaintiff, v. GLADDERS BARGE LINE, INC., et al., Defendants.

Nos. GC 79-106-WK-O, GC 80-224-WK-O.

United States District Court, N. D. Mississippi, Greenville Division.

July 15, 1982.

As Amended August 4, 1982.

COPYRIGHT MATERIAL OMITTED

Frank S. Thackston, Jr., Greenville, Miss., for Bunge.

Terry A. McCall, New Orleans, La., for Agri-Trans.

Joel J. Henderson, Greenville, Miss., for Gladders.

Debra Kossow, Dept. of Justice, Washington, D. C., for the U. S.

MEMORANDUM OPINION

KEADY, Chief Judge.

In these consolidated admiralty actions, three questions arise. First, may the non-negligent owner of an abandoned sunken vessel obtain "prospective" indemnity against the negligent sinker for claims of third parties that might be asserted at some future date because of the presence of the sunken vessel in navigable waters? Second, may the non-negligent owner of an abandoned sunken vessel obtain declaratory relief against the government's demand that it remove the wreck? Third, whether the government in one case established the sunken vessel to be a hazard to navigation or obstruction to the navigable capacity of the Mississippi River so as to require removal? For reasons that follow, we answer no to the first and third questions and yes to the second.

On April 25, 1979, the M/V JEAN GLADDERS, owned and operated by Gladders Barge Line, Inc. (Gladders), was proceeding downbound on the Mississippi River in the vicinity of Vicksburg, Mississippi, with a tow that included two barges of Bunge Corporation, Bunge 107 and Bunge 408, and two barges of Agri-Trans Corporation, AT-73 and AT-104. The voyage proved to be ill-fated in that the JEAN GLADDERS and its tow first struck the Vicksburg bridge, causing the sinking of the two Bunge barges and AT-73, and three days later collided with U. S. Highway 190 bridge at Baton Rouge, Louisiana, which caused the sinking of a fourth barge, AT-104. No one has attempted to remove any of the wrecks and they remain on the bottom of the river.

On June 14, 1979, Bunge filed suit against Agri-Trans, GC 79-106, for its cargo, barge and other losses, alleging that the latter company had orally agreed to tow the Bunge barges and was, therefore, responsible for the loss. Agri-Trans impleaded Gladders since the JEAN GLADDERS, at the time of the Vicksburg casualty, was being operated under a fully found charter from its owner, and asserted that Gladders was responsible for Bunge's loss as well as Agri-Trans' own loss. On November 29, 1979, Agri-Trans filed its complaint in the United States District Court for the Eastern District of Louisiana against the M/V JEAN GLADDERS in rem and Gladders in personam. By agreement of the parties, the cause was on October 1, 1980, transferred to this court, and docketed as GC 80-224. Shortly thereafter the two cases were consolidated. Agri-Trans later amended its suit adding the Secretary of the Army, United States Army Corps of Engineers and the United States as additional defendants in its original action to seek declaratory relief against the government as the result of its abandonment as owner of AT-104. The United States and its officers counterclaimed against Agri-Trans demanding that it abate the nuisance created by the sunken barge AT-104, and be required to remove the wreck or else be held liable to the government for removal costs. The federal defendants cross-claimed against Gladders for the same relief.

At a pretrial conference before the United States Magistrate on January 12, 1982, Bunge, Agri-Trans and Gladders disclosed that Gladders had discharged all claims of Bunge and Agri-Trans for money damages sustained when their barges and cargo sank in the collisions with the Vicksburg and Baton Rouge bridges. The essential facts, which were largely stipulated by the parties, are set forth below.

I.

(a) Vicksburg Bridge Collision.

The sole cause of the collision of the JEAN GLADDERS and her tow on April 25, 1979, which resulted in the sinking of the two Bunge barges and the one Agri-Trans barge in the navigable channel of the river below Vicksburg, was the negligent operation, fault and/or unseaworthy condition of the JEAN GLADDERS and her crew. No negligence or fault of Bunge or Agri-Trans, or unseaworthiness of their barges, caused or contributed in any way to the collision, or subsequent sinking of the three barges. As conceded by the parties, Gladders was the "negligent sinker," Bunge the "non-negligent owner" of Barges 107 and 408, and Agri-Trans the "non-negligent owner" of AT-73, for the purposes of this collision and sinking of the barges. On May 2-3 the stabilized locations of the three sunken barges were ascertained. Bunge 107 was found to be at a water depth of 76 feet near mid-river, abreast the fueling dock of the Baxter Wilson Steam Plant on the left descending shore, at mile 433.2. The highest point of the wreck as disclosed by profile was 68 feet below the river's surface on the Vicksburg river gauge of 49.6 feet. Bunge 408 was located at mile 435.5, about 1180 feet off the left descending shore, with the highest protrusion of the wreck 81 feet below the water surface. Immediately following the collision, Barge AT-73 was seen partially sunk and grounded at mile 426.5 on the left descending shore; a day or two later it became entirely submerged. This sunken barge was last determined to be 1000 feet off the left bank and 47 feet below the surface of the river at a Vicksburg river gauge reading of 47.2 feet. Although the lowest Vicksburg water stage in the last 10 years has been minus 2 feet, which would expose above water a portion of AT-73, the barge is so positioned on a sandbar, in `sanded-in' fashion so as to cause a shallow draft vessel operating in the area at a water stage of minus 2 feet or less to strand on the sandbar before reaching any exposed portion of the barge AT-73.

On July 11, 1979, Bunge tendered written abandonment of its two sunken barges to the Army Corps of Engineers at Vicksburg, which on July 20 acknowledged the notice as follows: "This acknowledgement should in no way be construed as acceptance by the United States of an abandonment of such vessels, nor of waiver of any right to enforce liability for any damage caused by its sinking or cost of removal." This decision was, of course, mandated by federal regulation.¹ On April 19, 1980, Agri-Trans tendered written abandonment of Barge AT-73 to the Army Corps of Engineers at New Orleans, which merely acknowledged receipt of the communication. Also, Agri-Trans advertised notice of abandonment in the Vicksburg newspaper over a four-week period.² After the receipt of these communications, the Corps of Engineers made no effort to commence removal of the wrecks or to mark any of the sunken vessels other than to temporarily mark Bunge 408. This marking was discontinued on July 11, 1979; since that time no further marking has been made by anyone. At trial, neither Bunge nor Agri-Trans tendered credible evidence that the wrecks at Vicksburg have been or presently are either an obstruction to the navigable capacity of the river under 33 U.S.C. § 403,³ or a hazard to navigation under 33 U.S.C. § 409.⁴ Upon the conclusion of their case, Gladders moved for directed verdict, which motion was overruled without prejudice to later disposition. Gladders then offered Austin Smith, a civil engineer and expert hydrologist, who testified that the three sunken barges were grain hopper barges which appeared to be stabilized on the river bottom from a silting-in process. In Smith's opinion they presented no reduction in the navigable capacity nor a hazard to safe navigation. L. C. Fumbanks, III, Chief of the Vicksburg Navigation Section of the Army Corps of Engineers, detailed efforts made to locate the barges following the collision and testified that the Corps made no reports to mariners after April 20, 1979, concerning interference to navigation by the sunken barges. No complaints from navigators in the area had been received at any water stage, and river traffic continues to move without incident over the unmarked submerged barges.

(b) Baton Rouge Bridge Collision.

As at Vicksburg, the sole cause of the collision of the JEAN GLADDERS and her tow on April 28, 1979, with the U. S. Highway 190 bridge at Baton Rouge, and the sinking of AT-104, was the negligent operation, fault and/or unseaworthy condition of the JEAN GLADDERS and her crew. No negligence or fault on the part of Agri-Trans or unseaworthiness of its barges, including the AT-104, caused or contributed in any way to the collision and subsequent sinking of the AT-104. As conceded by all parties, Gladders was the negligent sinker, Agri-Trans the non-negligent barge owner for the purpose of this collision and wreck.

This barge sank at mile 233.1 near midstream. When located on August 7, 1979, the wreck was buried underneath the river bottom with 46 feet of water above the river bed on a local river gauge reading of 20.3 feet. Five months later, January 3, 1980, the barge was found to be exposed above the river bottom due to the scouring action of silt, and 49 feet of water covered the highest portion of the barge while 55 feet covered the river bottom adjacent to the barge. The Baton Rouge river gauge on that date was 20.9 feet. From mile 233.1 upriver to the U. S. Highway 190 bridge, the project depth of the Mississippi River which the Corps maintains is 40 feet, with a minimum width of 500 feet in the ship channel. The barge was positioned 500 feet west of the western line of the ship channel which is approximately 1100 feet wide in this immediate area. The width of the navigable water at and below Baton Rouge, however, varies, depending on the stage of the river. Agri-Trans' surveyor obtained data respecting the underwater location of several Monterey Pipeline Company pipelines running near the right...