Dow Chemical Company v. Dixie Carriers, Inc.

• Decision Date: 26 August 1971
• Docket Number: Civ. A. No. 69-H-214.
• Citation: 330 F. Supp. 1304
• Parties: DOW CHEMICAL COMPANY, Plaintiff, v. DIXIE CARRIERS, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

330 F. Supp. 1304

DOW CHEMICAL COMPANY, Plaintiff, v. DIXIE CARRIERS, INC., Defendant.

Civ. A. No. 69-H-214.

United States District Court, S. D. Texas, Houston Division.

August 26, 1971.

COPYRIGHT MATERIAL OMITTED

Robert Eikel, Eikel & Davey, Houston, Tex., for plaintiff.

C. L. Solomon, Hinds & Meyer, Houston, Tex., for defendant.

BUE, District Judge.

MEMORANDUM OPINION

This is an admiralty collision action for damages resulting from three separate incidents, all of which occurred when a barge in the tow of the tug, DOW HUSTLER, collided with a railroad bridge's fender system at a point where the bridge crosses diagonally over a privately owned barge canal. The tug was owned and demise chartered by Dow Chemical Company (Dow) to Dixie Carriers, Inc. (Dixie), and it was then operated by Dixie for the exclusive use of Dow in and around Dow's barge canal pursuant to a time charter. The barge canal which is more than five miles long, approximately 100 feet wide and 12 feet deep is located at Freeport, Texas, and it connects the two Dow plants located at opposite ends of the canal with the Intracoastal Waterway which, in turn, gives access to the Gulf of Mexico. A "skimmer gate" separates the Dow barge canal from the Intracoastal Canal. This "skimmer gate" is visible above the water when the gate is raised or closed, and it is dropped a number of feet below the surface when it is opened to permit barges and other vessels to enter or leave the barge canal.

The plaintiff seeks to recover damages in the amount of $17,305 which reflect the total costs allegedly incurred by Dow in repairing and replacing the damaged fender system. The parties have stipulated that the barges actually did strike the fender system at the bridge site on the three occasions. It is uncontested that this cause is within the admiralty and maritime jurisdiction of this Court pursuant to 46 U.S.C. § 470. What is contested is Dow's contention that Dixie's negligence caused the collisions and Dixie's position that Dow's bridge system is an unlawful obstruction to navigation and that Dow has no valid basis for recovery anyway, either as a consequence of its own negligence or under the terms of the charter party. As is frequently the case in maritime collision litigation, there is considerable inconsistency in the testimony obtained from certain of the witnesses. Accordingly, this Court has been obligated to weigh carefully the credibility of the witnesses rendering such disparate versions and to select the more probable account in the light of the other proof forthcoming at the trial.

Dow initially relies upon the well established presumption in admiralty law that a moving vessel which strikes a vessel at anchor or a fixed object is presumptively at fault. The Oregon, 158 U.S. 186, 187, 15 S.Ct. 804, 39 L.Ed. 943 (1895); The Victor, 153 F.2d 200, 202 (5th Cir. 1946); Placid Oil Co. v. S. S. Willowpool, 214 F.Supp. 449, 451 (E.D. Tex.1963); Continental Oil Co. v. M. S. Glenville, 210 F.Supp. 865, 867-868 (S.D. Tex.1962). However, Dixie counters with the assertion that since the fender system is an unlawful obstruction to a navigable waterway pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, Dow is presumptively at fault and must prove, as owner of the unlawful obstruction, that the statutory violation could not have caused or contributed to the collision. Dow openly admits that no permit was sought from any governmental agency for construction of the questioned structures, but it contends that the Rivers and Harbors Act does not apply to privately owned artificial waterways such as its barge canal which it owns, maintains and exclusively operates.

Sections 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401, 402, recite that it is unlawful to construct a bridge or create any other obstruction to the navigable capacity of any of the navigable waters of the United States which is not authorized by Congress and for which structural plans have not been approved by the Chief of Engineers and the Secretary of the Army. The purpose of this statute can be stated thusly:

The requirement of the various statutes in this respect is based upon the theory that the public highways and navigable streams belong to the public, and it is to protect the public in the enjoyment of such right that it is made unlawful to obstruct either a navigable stream or a public highway. Any obstruction not authorized by legislative authority is therefore deemed a nuisance.

F. S. Royster Guano Co. v. Outten, 266 F. 484, 486 (4th Cir. 1920). The Act is premised on the constitutional power of Congress to regulate interstate commerce. See Leovy v. United States, 177 U.S. 621, 632, 20 S.Ct. 797, 44 L.Ed. 914 (1900). A privately owned canal is within the term "navigable water of the United States" if it, in fact, supports interstate commerce. See United States v. Banister Realty Co., 155 F. 583 (C.C.E.D. N.Y.1907); United States v. Doughton, 62 F.2d 936 (4th Cir. 1933); 33 Op.Atty. Gen. 428 (1923). See also United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); The Montello, 20 Wall. 430, 22 L.Ed. 391 (1874); McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953); Gulf & I. Ry. Co. of Texas v. Davis, 26 F.2d 930 (S.D.Tex.1928), aff'd, 31 F.2d 109 (5th Cir. 1929); The Lucky Lindy, 76 F.2d 561 (5th Cir. 1935); North American Dredging Co. of Nevada v. Mintzer, 245 F. 297 (9th Cir. 1917); D'Albora v. Garcia, 144 So.2d 911 (La. Ct.App.1962). Compare United States v. President, etc., of Jamaica & R. Turnpike Co., 204 F. 759 (2d Cir. 1913).

In the present case, supplies and goods were constantly being transported by barge to and from the two Dow chemical plants with all such movements being made through the sole use of Dow owned tugs. There was testimony that the DOW HUSTLER made from two to six or eight trips per day on the canal pushing shell and chemical or other barges. These included transporting the finished products of a second concern, located on the waterway, The A. P. Green Co., which were also moved by barge on the waters of the canal to and from the Intracoastal Waterway and thus into interstate commerce. Although there is surprisingly little case authority on the precise point, this Court can reach only one considered conclusion — that the Dow barge canal by virtue of its link with interstate commerce and as a consequence of the character of its commercial use at all times material to this suit is subject to the Rivers and Harbors Act and that the bridge and fender system, because of Dow's failure to satisfy the statute (33 U.S.C. § 401 et seq.), is an unlawful obstruction to the navigation of the canal. Both parties cite the 1923 opinion of the Attorney General as supportive of their respective positions. However, a close reading of that opinion clearly reveals that approval by the Secretary of War was viewed as necessary for construction of a bridge when erected over private canals on which interstate commerce moves. That being so, certain consequences follow insofar as the burden of proof in a collision case involving such an alleged obstruction is concerned.

In United States v. Norfolk-Berkley Bridge Corp., 29 F.2d 115, 125 (E.D.Va.1928), the applicable rule was stated as follows:

While such an unlawful structure may not be injured negligently by a passing vessel with impunity, nevertheless the vessel which strikes it is not presumptively negligent or careless, but the bridge owner is presumptively at fault, unless he can show that the failure to comply with the requirements was not one of the factors or causes which contributed to the injury.

As a result, the usual presumption which dictates that a moving vessel striking a fixed object is at fault is of no avail to Dow in this instance, and it must establish affirmative acts of negligence, or inferences thereof, of the tug's crew in order to recover from Dixie. See Savannah & N. Y. Transp. Co. v. Klaren Bridge Co., 252 F. 499 (4th Cir. 1918). Additionally, Dow must overcome the presumption against it by affirmative demonstration as a consequence of all of the proof at the trial that its statutory violation (failure to obtain a permit pursuant to the Rivers and Harbors Act) could not have contributed to the collision.

Dixie contends that its motion for judgment at the close of the plaintiff's case should have been granted, since Dow failed to satisfy its burden of making out a prima facie case as to the tug crew's negligence. Were Dow relying solely on the presumption of fault normally arising to implicate a vessel when it strikes a fixed object, there would be merit to this position, as Dow's own statutory violation stripped it of any access to or benefit from such a presumption. However, the plaintiff's case as a whole, while admittedly not extensive, goes further than that and sufficiently satisfies its burden of going forward. This is done by raising the issue of the crew's negligence, particularly through the introduction into evidence of the entries in the tug's logbook:

0025 hit R. R. bridge fenderworks with sic barge MS607 when generator on boat went dead leaving no lights or steering power.¹

A tug does not lose its generator capacity and concurrently its rudder power to control its tow in the absence of extraordinary circumstances compelling the offering of some rational explanation. Such a prima facie showing of fault was thereafter firmly established as the negligence of Dixie through cross-examination of its witnesses. Similarly, the testimony of Dow's witnesses pointed up that its statutory violation did not contribute to the collisions, a factor which was amply corroborated by Dixie's witnesses as the proof developed. Accordingly, Dixie's motion for judgment which was repeatedly urged at the trial and thereafter scrutinized closely by this Court is found to be lacking in substance and is therefore denied.

The issue as to...