Florida East Coast Ry. Co. v. Revilo Corp.
| Decision Date | 26 February 1981 |
| Docket Number | Nos. 79-1950,79-1951,s. 79-1950 |
| Citation | 637 F.2d 1060 |
| Parties | FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. REVILO CORPORATION, a corporation et al., Defendants-Appellees. EXXON CORPORATION, a New Jersey corporation, Plaintiff-Appellee, v. FLORIDA EAST COAST RAILWAY COMPANY, Etc. et al., Defendants, Florida East Coast Railway Co., Etc., Defendant and Cross-Claimant-Appellant, Revilo Corporation, Etc., Defendant and Cross-Defendant-Appellee. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
James F. Moseley, Jacksonville, Fla., for plaintiff-appellant.
Smathers & Thompson, Richard G. Rumrell, Jr., Alan Benes Vlcek, Jacksonville, Fla., for defendants-appellees.
Wahl & Gabel, George D. Gabel, Jr., Jacksonville, Fla., for Exxon Corp.
Appeals from the United States District Court for the Middle District of Florida.
Before GODBOLD, Chief Judge, and HATCHETT, Circuit Judges and MARKEY *, Chief Judge.
This appeal presents this circuit's first opportunity to decide whether the Pennsylvania rule, The Steamship Pennsylvania v. Troop, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), applies to a vessel/bridge allision, and if so, how the rule is to be applied. We hold that it applies and affirm.
These consolidated admiralty actions arose out of an allision between barge NBC 922 (barge), owned and operated by Revilo Corporation (Revilo) and a single span drawbridge which spans the St. Johns River, and is owned and operated by Florida East Coast Railway Company (FEC). The allision occurred while the barge was being assisted up the St. Johns River in Jacksonville, Florida, by Revilo's tug, St. Johns. FEC initiated this action in the trial court against Revilo for damages to its bridge. Revilo, filed a counterclaim against FEC for damages to its barge and tug. In a separate suit, Exxon Corporation (Exxon), owner of the cargo contained within Revilo's barge, brought an action against FEC and Revilo seeking compensation for its damaged cargo. FEC and Revilo filed cross claims against each other for indemnity, and/or contribution.
The actions were consolidated, and a trial by the court without a jury followed. The trial court awarded Exxon damages for loss of its cargo. It held that FEC was 80% responsible and Revilo was 20% responsible for damages. In this appeal, FEC assigns error to various phases of the trial court's findings of fact and conclusions of law.
The findings of fact and conclusions of law pertinent to this appeal are as follows.
1. The Florida East Coast Railway Bridge is a double track, single span drawbridge. The FEC bridge is located on a curve in the St. Johns River and is immediately adjacent to the Acosta State Highway Bridge and 2,000 feet from the Main Street Bridge.
2. The draw span of the FEC bridge can be raised or lowered by remote control from the bridge tender's house on the bridge.
5. The plaintiff Exxon Corporation (hereinafter "Exxon") owned the 15,205 barrels of Bunker C oil on board the barge NBC 922 at the time of the collision with the FEC bridge.
6. The communication systems available at the bridge tender's house on the FEC bridge consisted of a direct telephone line to the various centers of railroad operations and a standard commercial telephone, the number for which was listed in the Jacksonville Telephone Directory. Consequently, river traffic could communicate with the FEC bridge tender by telephoning before leaving land or, while in transit, by contacting the marine operator.
7. There was no radio-telephone communication system allowing for direct communication between river traffic and the bridge tender installed on the FEC bridge prior to April 1, 1975.
8. Since 1973, the United States Coast Guard had been discussing with FEC the advisability of installing radio-telephone communication equipment in the FEC bridge tender and river traffic.
9. At approximately the same time as these discussions between the FEC and the Coast Guard were taking place, Revilo offered to install radio-telephone communication equipment on the FEC bridge, free of charge to FEC. This offer was rejected.
10. The failure of FEC to install a radio-telephone communication system in the FEC bridge tender's house for communication between the bridge tender and river traffic was a contributing cause-in-fact of the collision that occurred on April 1, 1975.
11. On April 1, 1975, at approximately 2:00 a. m., the tug St. Johns and the barge NBC 922 departed from the Eastern Seaboard Terminal in Jacksonville, Florida, with a load of 15,205 barrels of Bunker C fuel oil owned by Exxon.
12. The tug and barge departed on flood tide and proceeded upriver toward Sanford, Florida. Neither the Main Street Bridge nor the Acosta State Highway Bridge were required to be raised to permit the passage of the tug St. Johns and the barge NBC 922.
13. As the tug and barge passed beneath the Main Street Bridge, the tug St. Johns properly gave three signals of its whistle to the bridge tender of the FEC bridge, then some 2,000 feet upriver, thereby requesting that the bridge be raised. The FEC bridge tender did not give the required whistle responses to the tug's signals, and the bridge remained closed.
14. Since the FEC bridge remained closed after the tug and barge had passed through the Main Street Bridge, the tug was forced to "round up" (turn to port and circle around) in order to maintain a holding position. While the tug and barge were rounding up, the tug twice again repeated the three whistle signals to the FEC bridge. The bridge failed to respond to these signals and remained closed.
15. In the bridge tender's house, the FEC bridge tender maintained a daily handwritten log noting the passage of vessels beneath the bridge and of trains over the bridge. The log contained a column entitled PSG (Proper Signal Given), which was marked with an "X" when a passing vessel gave the three whistle signals prior to passage beneath the bridge. Said log reflected the passage of the tug St. Johns with a barge on April 1, 1975, and the PSG column was marked with an "X" indicating that the proper whistle signals had been given by the tug.
16. As a result of the hazardous position of the tug and barge in the river and the futility of using whistle signals to have the FEC bridge opened, the captain of the tug radioed the Jacksonville pilot station and asked the dispatcher to telephone the FEC bridge tender and request that the bridge be opened.
17. The dispatcher from the pilot station radioed back to the tug St. Johns that the FEC bridge tender had indicated that the bridge would be opened.
18. Consequently, the tug and barge made a second approach to the bridge; however, since the bridge was not fully open, the tug and barge had to be rounded up again in order to return to a holding-type position.
19. Once the FEC bridge had fully opened, the tug and barge made a third approach to the bridge.
20. These repeated approaches and rounding-ups, plus the effects of the tide, gradually placed the tug and barge out of position for clear passage through the Acosta and FEC bridges. Consequently, the port bow of the barge struck the south draw support of the Acosta Bridge, and the corner of the starboard bow of the barge hit the north draw support of the FEC bridge.
21. The collision of the tug and barge with the Acosta and FEC bridge punctured the barge, causing Exxon's oil to be spilled into the river and causing the remaining oil in the barge to be contaminated by water that entered the barge. As a result of the loss of this cargo, Exxon suffered total damages in the amount of $34,963.35.
22. The failure of the FEC bridge tender to open the bridge in response to proper whistle signals from the tug St. Johns, or to indicate by whistle signals that the bridge would not open, and the failure of FEC to install radio-telephone communication equipment proximately contributed, to the degree of 80% to the various damages that resulted from the collision.
23. Prudent upriver navigation on the St. Johns River requires that a tug and tow be maintained in full control both before and after passing beneath the Main Street Bridge. The navigational difficulties posed by flood tide conditions, in fact, mandate an even greater degree of care and control than might be otherwise necessary. When the tug St. Johns was in the vicinity of the Main Street Bridge, her captain failed to maintain control of her in a manner fully sufficient to enable him to anticipate the maneuvers that might be necessary to avert a collision when the FEC bridge is in a closed position. As a result, the court finds that Revilo proximately contributed, to the degree of 20%, to the damages that resulted from the collision in question.
4. By failing to open the draw span of the FEC bridge in response to the whistle signals by the tug St. Johns, FEC, as the owner and operator of the bridge, violated its statutory duty to raise the draw span of the bridge promptly after reasonable signals were given by an approaching vessel. 33 U.S.C. §§ 494, 499 (1976). FEC also violated various duties created by the federal regulations promulgated pursuant to 33 U.S.C. § 449. These regulations require the bridge to respond to the whistle signals of an approaching vessel, thereby indicating that the bridge will not open. 33 C.F.R. § 117.240 (1976). Additionally, the federal regulations require the bridge owner to provide a drawbridge with the necessary tenders and the proper mechanical appliances for the safe, prompt, and efficient opening of the draw. 33 C.F.R. § 117.240(a) (1976). As imposed on bridge owners, this duty has been interpreted to make such bridge owners proportionately liable under the "Pennsylvania Rule", see, The Pennsylvania, 85 U.S. (19 Wall.) 125 (22 L.Ed. 148), (1874), if such bridge owners fail to provide the bridge with "competent and attentive tenders to...
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