Central Barge Co. v. City of Minneapolis

• Decision Date: 28 June 1954
• Docket Number: Civ. No. 4023.
• Citation: 123 F. Supp. 275
• Parties: CENTRAL BARGE CO. v. CITY OF MINNEAPOLIS.
• Court: U.S. District Court — District of Minnesota

123 F. Supp. 275

CENTRAL BARGE CO. v. CITY OF MINNEAPOLIS.

Civ. No. 4023.

United States District Court D. Minnesota, Fourth Division.

June 28, 1954.

Clyde F. Anderson, O. C. Adamson II (Meagher, Geer, Markham & Anderson), Minneapolis, Minn., for libelant.

John F. Bonner, City Atty., D. J. Shama, Asst. City Atty., Carsten L. Jacobson, Asst. City Atty., Minneapolis, Minn., for respondent.

NORDBYE, Chief Judge.

The above cause came before the Court for trial without a jury.

This is a proceeding in admiralty and arises out of the breaking away of a barge owned by the libelant from respondent's wharf on the Mississippi River at Minneapolis. Respondent is a municipality and charges a fee for its services in the unloading and the storage of the cargoes delivered at the wharf. The wharf is concrete and from above its outline forms a trapezoid with its base and two sides — extending north and south — along the shore line of the river. These walls are used for the mooring of vessels. Vessels docking at the wharf are moored to castiron kevels about three feet in length which look somewhat like an anvil and are anchored by six one-inch bolts set eighteen inches into the concrete and bent on the bottom. There are also a few bollard-type kevels, which are eight-inch pipes set in and filled with concrete and through the tops of which pass cross arms.

Libelant is a private carrier and owner of the barge called the "C.B. 208" which carried a cargo of coal to the Minneapolis wharf on Friday, the 6th of April, 1951. The barge was delivered to the wharf by Captain Moll, an employee of the libelant, at about midnight when no one was at work on the wharf. The men on his tug tied up the C.B. 208 on the southern end of the center wall of the wharf, using two two-inch manila lines — one running from the bow timberhead and another from a stern timberhead — both tied to horned kevels on the wharf so that about one foot remained between the barge and the wharf. The closest kevels on the wharf were chosen, so that the ropes when tied formed right angles with the wharf and the barge. At this time there were no abnormal conditions in the river.

The employees of the City first discovered the barge when they reported to work on the morning of Monday, April 9th. They did not work on Saturday or Sunday, April 7th and 8th. They added to the ropes affixed by the tug, two 5/8 inch, six by nineteen steel cables which ran from the timberheads, around the kevel on the wharf and back to the timberheads on the barge. In addition, they added a 2¾ inch manila rope at the center of the barge running to a kevel about six feet south of the point of fixture on the barge. Some time that morning, Torman, the City harbor master, was warned by Cutter, a local agent of the libelant, that the river looked angry and that the barge should be made snug. And about 1:25 P.M., on April 9th, Torman was notified by the Northern States Power Company that its dam at Coon Rapids would be opened to let ice and water come through. Although Torman relayed this information to the dock workers, they regarded the moorings they had already added as sufficient and therefore took no further action with respect to the barge.

The C.B. 208 broke away from its moorings at about 3:15 on the afternoon of the 9th. By that time the river had become filled with ice to the extent that it appeared to be almost a solid mass from shore to shore. The kevel around which the bow lines were tied sheared off first, the bow swinging out with the current and causing the manila rope from the center of the barge to break. The weight of the barge and the force of the current next wrenched the stern kevel off the wharf, twisting and pulling the anchoring bolts from the concrete. The barge floated downstream until it came to rest on U.S. Dam and Lock No. 1. This action was instituted to recover for loss to the barge and its cargo, but pursuant to pre-trial order, libelant seeks at present only an interlocutory decree of liability.

The libelant relies on two claims, the first predicated upon negligence and the second upon the theory of bailment. The libel alleges eighteen grounds of negligence which can be summarized as charging first, that the respondent failed to exercise due care to provide a safe berth for vessels docking at its wharf; second, that it unreasonably failed to take steps to protect the barge after notice of the impending danger, and finally, that it negligently failed to retrieve the C.B. 208 after the said barge broke adrift. The bailment claim is substantially a reallegation of the several grounds of negligence alleged under the first claim.

There is no dispute between the parties as to the existence of a duty upon the part of the respondent wharfinger to exercise care to provide a safe berth. Nor is there any real controversy over the standard of care owed. It is well settled that a wharfinger does not guarantee the safety of vessels coming to his wharves, but he owes a duty to use ordinary care and diligence to furnish a safe berth or to discover the existence of dangerous conditions and to give notice thereof to vessels about to use the wharf. Smith v. Burnett, 1899, 173 U. S. 430, 19 S.Ct. 442, 43 L.Ed. 756; Norfolk Tidewater Terminals, Inc. v. Wood Towing Corp., 4 Cir., 1938, 94 F.2d 164; Morey v. City of New Rochelle, 2 Cir., 1918, 254 F. 425; Tracy Towing Line, Inc. v. City of Jersey City, D.C.N.J. 1952, 105 F.Supp. 910. And the standard of care is no different although the claim rests upon bailment. Clark v. United States, 1877, 95 U.S. 539, 24 L. Ed. 518. The libelant contends, however, that since the respondent wharfinger was a bailee, the burden of proof on the issue of reasonable care rests upon the respondent. The evidence here is perhaps sufficient to sustain the finding of a bailment. The City's control over the barge was unconditional. It could use any means available to move the barge whither and when it chose without asking leave of the barge company. Some courts have held that under these circumstances the burden of proof shifts to the bailee to show that he exercised due care toward the bailed property. Lake Union Dry Dock & Machine Works v. United States, 9 Cir., 1935, 79 F.2d 802; The John Carroll, 2 Cir., 1921, 275 F. 302. And see C. F. Harms Co. v. Erie R. Co., 2 Cir., 1948, 167 F.2d 562; Newport News Shipbuilding & Dry Dock Co. v. United States, 4 Cir., 34 F.2d 100, 103-105, certiorari denied, 1929, 280 U.S. 599, 50 S.Ct. 69, 74 L.Ed. 645; The Dupont, D.C.Md.1936, 14 F.Supp. 193; Berwind-White Coal Mining Co. v. Central Coal Co., D.C.S.D.N.Y.1948, 81 F. Supp. 655.

However, the correct view seems to be that proof of damage to bailed property while it is in the bailee's hands does not shift the burden of proof to the bailee, but merely a burden of going forward with the evidence. In Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89, suit was brought in admiralty against a bargee by the owner of cargo lost when the barge had sunk. The issue was whether the barge had sunk because of unseaworthiness, and the question before the Court was which party had the burden of proof on that issue. The Court held that, although the respondent was a bailee, yet the burden of proof was on the bailor and did not shift in the course of the trial. As necessary support for its decision, the Court likened the situation to litigation between any other bailee and bailor on the issue of negligence. It held that the burden of proof rests upon him who asserts breach of a duty and that that burden does not shift during the trial. It observed that in determining whether that burden has been satisfied, the law takes into account the relative opportunity of the parties to know the facts, and therefore in the case of bailees, commands that they come forward with information explanatory of the loss or suffer the trier of fact to draw an inference against them. It pointed out at 314 U.S. at page 111, 62 S.Ct. at page 161 that:

"Whether we label this permissible inference with the equivocal term `presumption' or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence. It does not cause the burden of proof to shift, and if the bailee does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start."

It has been suggested that the inference or presumption raised by the failure to return bailed property in good condition is one which necessarily disappears whenever the bailee offers evidence...