Delta Transload, Inc. v. Motor Vessel, Navios Commander, 86-3296

• Citation: 818 F.2d 445
• Decision Date: 08 June 1987
• Docket Number: No. 86-3296,86-3296
• Parties: DELTA TRANSLOAD, INC., Plaintiff-Appellee, v. The MOTOR VESSEL, "NAVIOS COMMANDER", Its Engines, Apparel, Tackle, Etc., In Rem, Defendant, Navios Commander, Inc., et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 445

818 F.2d 445

1988 A.M.C. 1155

DELTA TRANSLOAD, INC., Plaintiff-Appellee, v. The MOTOR VESSEL, "NAVIOS COMMANDER", Its Engines, Apparel, Tackle, Etc., In Rem, Defendant, Navios Commander, Inc., et al., Defendants-Appellants.

No. 86-3296.

United States Court of Appeals,

Fifth Circuit.

June 8, 1987.

Ashton R. O'Dwyer, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot,

Terry A. McCall, New Orleans, La., for defendants-appellants

W.J. Larzelere, Jr., Lugenbuhl, Larzelere & Ellefson, New Orleans, La., for plaintiff-appellee.

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

Before WISDOM, JOHNSON, and GARWOOD, Circuit Judges.

WISDOM, Circuit Judge:

I.

Delta Transload, Inc. (Delta) brought suit against Navios Commander, Inc., Navios Corporations, and Navios Ship Management Services, Inc. (sometimes hereinafter collectively referred to as Navios) for the loss of its mooring buoy and buoy chain. ¹ The defendants, respectively, are the owner, charterer, and husbanding agent of the M/V NAVIOS COMMANDER (COMMANDER) which allegedly fouled the Delta buoy with her starboard anchor. The district court entered judgment against Navios on the question of liability. Navios appeals the judgment, asserting that the district court was wrong on the facts and wrong on the law.

In an unreported opinion the district court adequately described, as follows, the mooring berth and the COMMANDER's anchoring procedure. Soon after midnight on December 23, 1982, the COMMANDER moored at the berth of the Archer-Daniels-Midland Company (ADM) on the Mississippi River at Mile 121.3 near Destrehan, Louisiana. ADM hired Delta to load ADM products at the ADM berth. On this occasion, the COMMANDER was to be loaded by the DELTA TRANSLOAD NO. 1 (TRANSLOADER), a bulk commodity midstream transfer vessel owned by Delta and moored near the berth.

The ADM berth, located on the east bank of the Mississippi River, is 1,500 feet long with three upriver and two downriver ship mooring buoys. The upriver mooring buoys, each measuring eight by ten feet, line up perpendicular to the shore, 150 feet apart. In the berth, the ship must position her bow upriver in line with the center buoy and hold her position with anchors and mooring lines. In this case, the mooring lines were attached to the ship by T. Smith and Son, Inc. (Smith) line handlers who work in small aluminum boats among the buoys.

As a transfer vessel, the TRANSLOADER waits near the shore until the vessel to be loaded is berthed. Tugboats move the TRANSLOADER alongside the vessel. It is moored in place by attaching its lines to two floating buoys, one upriver and one downriver, each measuring six by eight feet. The upriver Delta buoy is in the line of the ship buoys, between the middle and shore-most ship buoys. A chain connects the buoy to a concrete piling embedded in the river bottom.

ADM warranted the ownership of the Corps of Engineers permit for the berth in the name of Tulane Fleeting, Inc. (an ADM subsidiary and operator of the berth), and agreed to "execute all documents as may be required to authorize the operation of the rigs by Delta under the terms of the permits". The permit for the Delta buoy shows the buoy located on the shore side of the shore-most ship buoy, not between the first and second buoys where it was actually located.

On the evening of December 22, 1982, the river was high and the current fast. The TRANSLOADER finished loading the FAIRWIND VENTURE and, still attached to its buoys, moved back towards the shore to wait for the COMMANDER. The derrick barge W-701 was a short distance upriver of the buoys, apparently there for structural modifications to be made to the Delta buoy. It is disputed whether the W-701 was also attached to the Delta buoy when the COMMANDER berthed. ² An illustration The COMMANDER's pilot, Otis Robichaux, had maneuvered vessels of similar size into this berth previously and was familiar with its mooring system. The COMMANDER is a vessel of 115,000 gross tons and measures approximately 900 feet. The COMMANDER had one port and two starboard tugs assisting. Due to its large size, Robichaux could not see the river surface in front of the ship for a distance of one-quarter of a mile. Because of this "blind-spot" Robichaux maintained constant radio communication with the Smith line handlers on whom he relied to report the position of the vessel with regard to the ship buoys. He also kept constant radio contact with the COMMANDER's bow crew who relayed their observations and dropped the anchors on the pilot's order.

of the layout of the vessels and the buoys is reproduced in the Appendix to this opinion.

Only two witnesses testified regarding the anchoring process, Robichaux and Keith Tamplain, Delta's supervisor who was aboard the W-701 at that time. Robichaux testified that when the COMMANDER was between one hundred to two hundred feet upriver of the buoy line and entirely on the channel side of the buoys, according to the line handlers, he gave the order to the ship's crew to drop the port anchor. As the ship fell back, the line handlers and bow mate told the pilot the port anchor had fouled the channel-most ship buoy. After the entanglement was cleared and the port anchor relocated, Robichaux positioned the ship to drop the starboard anchor "coming in at a more controlled rate of speed". He ordered the starboard anchor dropped when the line handlers told him the ship was halfway between the center and shore-most buoys, about fifteen to thirty feet below the buoy line, while the ship was "dead in the water".

Robichaux testified the ship never went into the buoy line but he could not see the buoys and relied on the Smith line handlers for his position. Tamplain, the Delta supervisor, testified that although the anchors were dropped in the usual place, the ship travelled thirty feet past the buoy line after dropping the starboard anchor. Tamplain, however, was near the W-701 directly upriver from the COMMANDER and in his prior written statement he stated that he did not see the buoys because the W-701 blocked his view.

As the vessel dropped back on its anchors, Tamplain saw the TRANSLOADER's bow mooring cable tighten and bounce, and the bow of the TRANSLOADER move towards the COMMANDER. He ordered slack in the cable, then radioed the ship's tugs and determined that they had not fouled the Delta buoy. Tamplain communicated to Robichaux that the Delta buoy had been fouled. Tamplain suspected the ship had fouled the buoy by surmising that only something large could cause the TRANSLOADER's movements despite the tugs holding it in position. Robichaux did not believe the anchor fouled the buoy but this could not be confirmed until the anchor was raised, which Robichaux refused to do until daylight. Robichaux left the vessel about 2:00 a.m.

The ship's master reported the alleged fouling of the Delta buoy to the ship's agent, George Duffy, who met with the owner's attorney and Hector Pazos at the ship at daybreak. When Delta's general operations manager, George Poprick, relieved Tamplain at 6:00 a.m., he spoke to Duffy who was already onboard the COMMANDER. The parties decided to move the TRANSLOADER clear of the COMMANDER so the anchor could be raised to determine whether it had fouled Delta's buoy. To move the TRANSLOADER the bow mooring cable connected to the buoy had to be severed.

Before Poprick cut the cable he moved the TRANSLOADER toward the ship reeling in as much cable as possible. When the TRANSLOADER was about eight feet from the anchor chain Poprick observed the cable heading in the direction of the anchor chain, not towards the Delta buoy and he pointed this out to Duffy and others standing on the ship. Duffy recalled Poprick pointing out the cable. Ronald Drez, a Delta supervisor, observed the activities After cutting the cable, Duffy asked Poprick if he saw the buoy surface. Duffy testified Poprick answered that they had not seen the buoy for several days and did not know where it was. Poprick testified that he had seen the buoy periodically "come up with a wave" and could not recall telling Duffy they had not seen the buoy for a number of days. Drez testified Duffy told him they would not have cut the cable if they had known Delta had not seen the buoy for several days. That afternoon the COMMANDER attempted to raise its starboard anchor but the anchor winch did not operate. When the COMMANDER raised its anchor the next day, the anchor was "clean"; neither the chain nor the buoy were entangled in the anchor.

from a boat near the TRANSLOADER, and testified that when the TRANSLOADER was about halfway between the shore and the ship he could see the cable heading in the direction of the anchor chain, not the buoy.

II.

The district court did not make a definite finding as to whether the COMMANDER had crossed the buoy line. Nevertheless, the court found that the COMMANDER had fouled the Delta buoy, accepting as credible Tamplain's observation of the TRANSLOADER's cable tightening and jerking, and the TRANSLOADER being pulled towards the COMMANDER after she dropped the starboard anchor. "As Tamplain surmised only a very strong force could pull the TRANSLOADER into the channel." ³ The district court accepted the testimony of Poprick and Drez that the TRANSLOADER's cable headed in the direction of the anchor chain, not the Delta buoy, and noted that Duffy who also observed the cable did not comment on this testimony. The court's finding that the COMMANDER had fouled the Delta buoy is not clearly erroneous.

The district court rejected Navios' argument that the events described by Delta's witnesses were caused by the W-701 which was allegedly attached to the Delta buoy when the COMMANDER dropped anchor. Navios' expert witness, Hector Pazos, suggested that the attempt of the W-701 to detach itself from the buoy when Tamplain asked it to move caused the bouncing of the cable...