COMPLAINT OF WASSON
| Decision Date | 17 April 1974 |
| Docket Number | No. 73-1225.,73-1225. |
| Citation | 495 F.2d 571 |
| Parties | Complaint of Charles N. WASSON, doing business as Wasson Towing Company, owner of the MOTOR VESSEL DEL RIO, and Wasson Towing Service, Inc., Bareboat Charterer of the Motor Vessel Del Rio, for exoneration from or limitation of liability. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William K. Johnson, Stuart B. Bradley, Chicago, Ill., for appellant.
William J. Voelker, Jr., John E. Cassidy, Jr., Peoria, Ill., for appellee.
Before SWYGERT, Chief Judge, STEVENS, Circuit Judge, and PERRY, Senior District Judge.*
This is an appeal from the decision of the District Court in an admiralty action for exoneration from or limitation of liability, founded upon 46 U.S.C. §§ 183-189 and brought by Charles N. Wasson as owner of the motor vessel DEL RIO and by Wasson Towing Service, Inc., as bareboat charterer thereof (collectively called "Wasson"), with respect to a casualty which occurred in the Illinois River at Peoria, Illinois, when a grain-loaded barge being pushed by the DEL RIO collided with a pier of a railroad bridge which spans the river between Peoria and East Peoria and is owned by the Toledo, Peoria and Western Railroad Company (called "T P & W" or "railroad company").
The complaint alleged that on February 12, 1970 the DEL RIO was proceeding down the Illinois River, pushing a tow of barges, when it collided with a pier of a railroad bridge of the T P & W at Peoria, Illinois, causing severe damage to the bridge pier, Pier No. 3, and moderate damage to the port lead barge, BARGE M-4.
The complaint alleged that the DEL RIO was free from fault, and that Wasson was free from privity and knowledge; and prayed for relief under applicable statutes and rules.
Claims were filed by the bridge owner (T P & W, the railroad company) and by the barge owner (Cargo Carriers, Inc). The proceeding was tried without a jury. The active parties in the trial were Wasson and T P & W. Cargo Carriers, Inc., took no part, electing to abide the outcome.
At the conclusion of the trial the District Court found what he called "all of the essential issues" in favor of the railroad company. The court then entered judgment in favor of the railroad company and against the petitioners (Wasson) in the sum of $878,650; and in favor of Cargo Carriers, Inc., and against the petitioners, in the sum of $13,993.90.
At the conclusion of the trial on July 19, 1972, the District Court made findings pertinent to this appeal summarized as follows:
(1). On February 12, 1970 at about 6:05 A.M., the tow of the DEL RIO,— specifically BARGE M-4, the port lead barge of the tow,—came into contact with the left descending, or east pier, of the railroad bridge, with resulting damage to the barge and to the bridge.
(2). As known to the management of its owner and its charterer, on February 12, 1970 the DEL RIO was pushing 12 grain-loaded barges arranged 3 barges wide and 4 barges long. The total length of the tow was 785 feet for the starboard and center strings and 780 feet for the port string. The total length of the DEL RIO and its tow was 896.3 feet. The width of the tow was 105 feet.
(3). In such configuration, this vessel or tow was too wide at that length to be safely navigated through the various bridges at Peoria without damage to the bridges or to their appurtenances.
(4). The Franklin Street Bridge is located immediately upriver from the T P & W railroad bridge. Because the railroad bridge crosses the river at an angle rather than directly perpendicular to the river, the distance between the east channel pier of the Franklin Street Bridge and the east channel pier of the railroad bridge is approximately 350 feet.
(5). The railroad bridge was originally built in the mid-eighteenth century. Pier No. 3 of the railroad bridge (the east channel pier here involved) was renewed in 1906 or 1907.
(6). On February 12, 1970, the date of the collision, Pier No. 3 was not protected by previously-existing guidewall, —sheer fencing,—or by timber wale protection, such previously-existing protection having been destroyed by numerous prior hammerings of river traffic, primarily large tows of steel barges.
(7). The towboats LA SALLE and KAY-A and their respective tows had collided with the sheer fencing protecting Pier No. 3 on February 4th and February 19th, respectively, in 1969. The sheer fencing was not repaired or replaced following those collisions.
(8). When the port lead barge of the DEL RIO tow, the M-4, came into contact with the substantially-unprotected Pier No. 3 on February 12, 1970, the pier broke off, causing the fixed bridge span resting thereon to collapse.
(9). Immediately following the collision, BARGE M-4 rode up onto the stub of Pier No. 3 a distance of approximately the width of the pier and came to rest on top of the pier stub about one foot above the then-existing river level.
(10). The claim of Cargo Carriers, Inc., the owner of BARGE M-4, in the sum of $13,993.90 shall be allowed as damages payable only in case of liability of the DEL RIO or its owners or operators, and subject to the court's determination of the possible proportionate liability or limitation of liability as sought by Wasson.
(11). The primary and effective cause of the collision on February 12, 1970 between the DEL RIO and the railroad bridge was the excessive width of the tow of 3 barges of a total width of 105 feet, in conjunction with a length of four barges and a weight in excess of 40 million pounds, in conjunction with the known opening between bridge piers of successive bridges not over 400 feet apart involving openings of about 120 feet, leaving less than 15 feet for lateral maneuvering between those bridges and the spans of the bridge piers, requiring maneuvering close to the shore with the recognized possibility of unfavorable navigational conditions developing therefrom and the inability of the vessel, rigged as aforesaid, to stop forward motion when the danger of collision became apparent.
(12). Under these conditions the vessel in that configuration was not seaworthy, and that lack of seaworthiness under the conditions then known to exist, was with the knowledge and privity of both the owner and the charterer of the vessel.
(13). There was no contributory negligence on the part of the railroad company in permitting its bridge to exist on February 12, 1970 under the circumstances here otherwise found.
In addition to the foregoing findings, the District Court made, inter alia, the following findings in its Decision And Order On Damages, entered November 16, 1972:
The District Court concluded as a matter of law, that there could be no exoneration, and that petitioners Wasson were liable for the damages to the T P & W Railroad Company and to Cargo Carriers, Inc., without limitation.
At the time of the occurrence herein there was in existence an Illinois statute, Chapter 121, Section 193a, Illinois Revised Statutes, 1969, which reads as follows:
§ 193a. Bridge pier protections, construction of. § 1. Every person, firm or corporation owning, leasing or managing any bridge over a navigable portion of the Illinois River shall construct and maintain in good repair, contiguous to the channel of the river, adequate pier protection for the piers of such bridge, of modern construction, and adequate to meet navigation requirements existing at the time or reasonably to be expected in the future during the life of such piers.
At the trial the petitioners introduced the following evidence which was not contradicted or impeached:
(1) By a War Department permit signed April 22, 1936 by the Chief of Engineers, the T P & W Railroad was authorized to reconstruct the timber guide walls (sheer fencing) at its bridge. As of August 31, 1936, the reconstruction work had been completed in substantial accordance with the plans and the provisions of the War Department permit.
(2) Prior to the issuance of the permit, Lt. Col. Connolly, District Engineer, Corps of Engineers, wrote the following letter to the Superintendent of the T P & W Railroad Company:
T. P. & W. R. R. Co. Union Station Peoria, Illinois Attention: Mr. O. W. Limestall, Superintendent
Gentlemen:
Very truly yours Donald H. Connolly Lt. Col., Corps of Engineers District Engineer
(3) In 1936, subsequent to the issuance of the permit, Captain Karrick, Acting District Engineer, wrote the following letter to the Superintendent:
May 29, 1936 Toledo, Peoria & Western Railroad Union Station Peoria, Illinois Attention: Mr. O. M. Limestall, Superintendent
Gentlemen:
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