Consolidated Grain & Barge Co. v. Marcona Conveyor Corp.

• Citation: 716 F.2d 1077
• Decision Date: 11 October 1983
• Docket Number: No. 82-3534,82-3534
• Parties: , 14 Fed. R. Evid. Serv. 504 CONSOLIDATED GRAIN & BARGE COMPANY, Plaintiff-Appellant, v. MARCONA CONVEYOR CORPORATION, et al., Defendants-Appellees. MARCONA SALES, INC., Plaintiff-Appellee, v. CONSOLIDATED GRAIN & BARGE COMPANY, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1077

716 F.2d 1077

1985 A.M.C. 117, 14 Fed. R. Evid. Serv. 504

CONSOLIDATED GRAIN & BARGE COMPANY, Plaintiff-Appellant, v. MARCONA CONVEYOR CORPORATION, et al., Defendants-Appellees.

MARCONA SALES, INC., Plaintiff-Appellee, v. CONSOLIDATED GRAIN & BARGE COMPANY, Defendant-Appellant.

No. 82-3534

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 11, 1983.

Hebert & Abbott, Andre J. Mouledoux, New Orleans, La., for plaintiff-appellant.

Phelps, Dunbar, Mark, Claverie & Sims, James H. Roussel, Christopher O. Davis, New Orleans, La., for Marcona.

Bernard, Micholet & Cassisa, Paul V. Cassisa, Metairie, La., for Hollywood Marine.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, POLITZ and JOHNSON, Circuit Judges.

PER CURIAM:

At about 6:40 a.m. on March 25, 1977, Barge BUNGE-28, loaded with aragonite, a fine sand, buckled in the middle and sank, carrying its cargo to the bottom of the Mississippi River. In the proceedings below, the legal owners of Barge BUNGE-28, Consolidated Grain and Barge Company (Consolidated), ¹ sued for the loss of the barge, alleging that Barge BUNGE-28 sank because its cargo was improperly concentrated in the center of the hopper compartment; the owners of the conveyor ship, Marcona Conveyor Corporation and Marcona Ocean Carriers, Ltd. (hereinafter jointly referred to as Marcona), and the stevedore in charge of the loading, Hollywood Marine, Inc. (Hollywood), countered that Barge BUNGE-28 sank because it was unseaworthy. At the conclusion of a four-day bench trial, the district court ruled that Consolidated had failed to rebut the presumption of unseaworthiness which arises when a barge in tow sinks in normal use for no apparent reason and had failed to establish that negligent loading caused the sinking of Barge BUNGE-28. Accordingly, the district court rendered judgment for the defendants. Consolidated appeals, arguing that the trial judge misapplied the presumption of unseaworthiness, that his findings as to the proximate cause of Barge BUNGE-28's sinking and as to defendant's negligence are clearly erroneous, and that he abused his discretion in not allowing Consolidated to put into evidence the complete loading records of Barge BUNGE-28 and evidence as to the loading of all 38 of the barges loaded contemporaneously with Barge BUNGE-28. For the reasons set out below, we find Consolidated's arguments to be without merit and accordingly affirm the judgment of the trial court.

I.

On March 22-23, 1977, the M/V MARCONA CONVEYOR, a 32,607 gross ton self-discharging bulk carrier owned and operated by Marcona, ² was anchored in the Mississippi River near Davant, Louisiana, laden with a cargo of aragonite. ³ The cargo owner, Marcona Sales, Inc. (Marcona Sales), had contracted with Consolidated to transport a portion of the ship's cargo of aragonite from the side of the vessel to various points of destination upriver. In order to comply with this contract, Consolidated assembled a fleet of 26 barges, one of which was Barge BUNGE-28, together with several tugs owned and/or operated by T. Smith & Son, Inc. (T. Smith) which would tow the barges from various fleeting facilities in the New Orleans area to the "staging" or loading point, and tow the barges back up to various fleeting facilities in the New Orleans area once they had been loaded.

Marcona Sales also contracted with T. Smith to shift 38 barges (including the 26 barges provided by Consolidated) alongside the M/V MARCONA CONVEYOR as they were being loaded "mid-stream" in the Mississippi River. The loading operation was under the supervision of Hollywood, an expert loading stevedore under contract to Marcona Sales to unload the cargo of aragonite into the barges.

During the morning of March 23, each of the 38 barges, including Barge BUNGE-28, was brought alongside the M/V MARCONA CONVEYOR and loaded under the supervision of Hollywood personnel. According to the barge capacity tables furnished by Bunge Corporation, the owner of Barge BUNGE-28, the cargo of aragonite aboard Barge BUNGE-28 was well within the cubic capacity and weight capacity listed for that particular barge.

No witness who testified at trial could recall the exact cargo distribution of the aragonite loaded aboard the Barge BUNGE-28; however, no witness could recall anything unusual about the way in which the barge was loaded. ⁴

On the morning of March 24, Barge BUNGE-28 was taken in tow by the M/V LADY HAZEL, a vessel under contract to T. Smith, and was towed upriver approximately 65 miles to Triangle Fleeting Corporation's (Triangle) fleeting area in New Orleans, Louisiana. That evening, Barge BUNGE-28 was placed into a tow at the Triangle fleeting area for subsequent towage to its final destination upriver. When Barge BUNGE-28 was placed into its northbound tow, the barge appeared to be in good shape, it was on an even keel with adequate freeboard, and was even with the other barges in the tow.

At approximately 6:00 a.m. on March 25, 1977, the tow was made up to the M/V MABA KELCE tug owned by Mid-America Transportation Company (Mid-America). The M/V MABA KELCE was faced up to the Barge BUNGE-28 and the barge to its immediate starboard side. The captain of the M/V MABA KELCE backed the stern of the tow away from the fleet and was about to push ahead on the tow when, at approximately 6:40 a.m., the Barge BUNGE-28 buckled in the center without warning and sank.

Consolidated subsequently sued Marcona and others for loss of the barge. ⁵ At trial, Consolidated attempted to prove that Barge BUNGE-28 was improperly loaded by introducing survey reports of 25 of the 38 barges loaded alongside the M/V MARCONA CONVEYOR with Barge BUNGE-28. ⁶ The trial court received ten representative survey reports into evidence. These surveys showed that on some of the other barges there was as much as 21 feet of bare metal at either end of the hopper compartment. The parties' experts disagreed as to whether this would be an acceptable cargo distribution. ⁷

Defendants Marcona and Hollywood contended that Barge BUNGE-28 sank because it was unseaworthy--i.e. unfit for normal use. ⁸ They pointed specifically to the fact that the barge, at 15 years of age, was approaching the end of its useful life, that its transversal frame construction made the barge more susceptible to buckling with age, and that the barge had an extensive history of repairs, including an improperly fused double V butt on its starboard midship side.

At the close of the evidence, the trial court concluded that "[t]here has been no evidence ... to establish what was the proximate cause of the sinking of the barge." ⁹ The court concluded that "when there is a sinking of the barge as this barge did with no apparent reason in normal use, there is a presumption that it is unseaworthy and the obligation is on the plaintiff to overcome that presumption." The trial court found that Consolidated had failed to overcome that presumption of unseaworthiness and also found that Consolidated had failed to establish that any alleged negligence in loading the barge was the proximate cause of its sinking.

II.

On this appeal, Consolidated raises several challenges to the judgment below. First, Consolidated challenges the district court's interpretation and application of the presumption of unseaworthiness. Next, Consolidated challenges the district court's findings of fact: that Consolidated failed to overcome this presumption, and that Consolidated failed to prove that the proximate cause of the sinking was any alleged negligence in the loading of the barge. Last, Consolidated challenges the district court's exclusion of certain evidence. Our review of Consolidated's arguments reveals that each is without merit.

The Presumption of Unseaworthiness.

Under general maritime law, in a towage situation such as that involved in this case the owner of the barge is responsible for the seaworthiness of his vessel, while those responsible for the handling (e.g. towing, loading, etc.) of the barge are obligated to perform these tasks using such care as a prudent person would under similar situations. Derby Company v. A.L. Mechling Barge Lines, Inc., 258 F.Supp. 206, 211 (E.D.La.1966), aff'd, 399 F.2d 304 (5th Cir.1968) (and cases cited therein); Massman Construction v. Sioux City & N.O. Barge Lines, 462 F.Supp. 1362, 1369 (W.D.Mo.1979). See Winn v. C.I.R., 595 F.2d 1060 (5th Cir.1979) (barge owner has non-delegable duty to furnish seaworthy vessel in contract of towage). Where, as here, a barge in tow sinks in calm water for no immediately ascertainable cause, the law translates these duties into burdens of proof: in the absence of proof that the barge was improperly handled, the vessel's sinking is presumed to be a direct result of her unseaworthiness. Derby, 258 F.Supp. at 211. Here, the district judge found there was no evidence that the Barge BUNGE-28 was improperly loaded or otherwise improperly handled. Accordingly, he applied this presumption of unseaworthiness against Consolidated, the legal owners of the barge. This application of the presumption was correct. The cases applying this presumption of unseaworthiness to allocate burdens of proof in litigation between owners and handlers of a barge ¹⁰ make clear that the burden is on the owner of the tow to establish any alleged negligence on the part of the handler; if he cannot do so, the tow "simply cannot recover." Massman, 462 F.Supp. 1362 at 1369.

Consolidated relies heavily on a 1940 case from the Second Circuit: Commercial Molasses Corporation v. New York Tank Barge Corporation, 114 F.2d 248 (2d Cir.), aff'd, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1940). This reliance is misplaced. The principles enunciated in Commercial Molasses derive from the relationship of bailor-bailee which existed in that case. ¹¹ Such a relationship does not exist here ¹² and those principles are, therefore, not applicable. The...