General Intermodal Logistics Corp. v. Mainstream Shipyards & Supply, Inc.

• Decision Date: 20 January 1982
• Docket Number: No. 80-3572,80-3572
• Parties: GENERAL INTERMODAL LOGISTICS CORPORATION, Plaintiff-Appellee, v. MAINSTREAM SHIPYARDS & SUPPLY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 129

666 F.2d 129

GENERAL INTERMODAL LOGISTICS CORPORATION, Plaintiff-Appellee, v. MAINSTREAM SHIPYARDS & SUPPLY, INC., Defendant-Appellant.

No. 80-3572.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1982.

Rhesa H. Barksdale, W. Scott Welch, III, Jackson, Miss., for defendant-appellant.

Lake, Tindall, Hunger & Thackston, Greenville, Miss., Goldstein & Price, Hubert I. Binowitz, St. Louis, Mo., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BROWN, COLEMAN and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

Mainstream appeals the judgment in favor of General Intermodal Logistics (Gilco) in the sum of $79,444.38 with interest at the rate of eight percent per annum from December 20, 1976 until paid. The District Court, 502 F.Supp. 38, sitting in admiralty, found that Mainstream was negligent in its failure to install oil filter elements, in its failure to remove slag from the lubrication system of the newly installed engines of the M/V JANE T, and in its failure to align properly the intermediate and tail shafts, plus a failure to set the foundations of both engines, all charged to negligence.

I The Findings Against Mainstream

Mainstream, which operated a shipyard for the repair of commercial towboats, on June 13, 1974, made a contract to repower the JANE T, with the owner furnishing the two engines.

Pursuant to that contract Mainstream installed two 12-567 C engines, converted to 645 E-2 units, modified the bases to suit the new engines and reduction gears, furnished and installed two main engine lube oil priming pumps, two new intermediate shafts with bearings, fitted the old couplings with the new fitted bolts, as well as furnished and installed reduction gear, oil coolers, filters, and relief valves. National Marine Service provided the engines. Since certain parts of the engines were welded, National Marine Service was to remove welding slag from the engines. However, Mainstream's fabrication of piping for the lube oil system also required welding which would cause slag.

A new filter case was to be installed by Mainstream as part of the external lube system for each engine. In addition, Mainstream undertook the alignment of each engine with its propeller shafts.

After the completion of Mainstream's work in early December, 1974, dock and river trials were held. During the dock trial, the engines were run for four hours. No problem, such as heat in the bearings which could be a sign of misalignment, was noted. Also, during a trial on the Mississippi, there appeared to be no problems of any consequence. The vibration felt during the trial was thought to be normal. After the trials, Joe Williams, then Executive Vice-President of Mainstream, gave no instructions to remove the lube oil filters and has no knowledge of any repair work that would have necessitated their removal. Mainstream did inspect and clean the Y-dump strainers, filters through which the Shortly after acceptance, Skelton and others ran the JANE T for 10-11 hours to and from Mayersville on the Mississippi River, pushing a barge on the return trip. Two Mainstream employees assisted, including checking the lube system and alignment. After the Mayersville run, there was no complaint to Mainstream concerning either the lube oil system or the engines. Due to lack of business for the JANE T, soon renamed the JANE ELIZABETH, the vessel was moored for six months in Lake Ferguson at Greenville, Mississippi. A watchman was on the vessel from mid-March until mid-May, 1975. Except for a brief period in May, logs were not kept until June 10, 1975. In mid-May, the vessel was moved from Greenville to Memphis, Tennessee.

lube oil passes before going back to the engine.

M. L. Brison, chief engineer of the JANE ELIZABETH, testified that he sensed extreme vibration during the vessel's first voyage in June, 1975. The inside of one of the searchlights vibrated loose and shorted out. On June 18, 1975, as the result of these difficulties, Gilco called National Marine Service for assistance. It was discovered that the canisters in both the starboard and port engines lacked oil filter elements. In addition, excessive welding slag, lock washers, bolts, and burnt welding rods were found in the base of the starboard engine and slag was found in the Y-dump strainer. The system was drained and fresh oil and filters were installed.

After the service of June 18, 1975, the vessel proceeded up the Ohio River and experienced engine problems and excessive vibration, causing it to be drydocked at Gallipolis, Ohio, on or about August 28, 1975. Prior to this time, on August 11, 1975, the lube oil filters were changed after approximately 823 hours of engine operation. In September, 1975, the engines and alignment were checked by B & Q. Mr. Balch, president of B & Q, stated that the alignment problems resulted from misalignment of the shafts by Mainstream, which opinion was confirmed by Captain Clark.

During the time that the vessel was in drydock, the vessel's engineers checked the engines and found them to be seriously damaged as a result of slag entering the system. National Marine Service sent its service engineer to the site and it was noted that all bearings of the engines were scarred with imbedded slag or foreign material and required replacement. Other elements of the engines needed replacement or repair.

On September 2-3, 1975, Mainstream was advised by telegrams of the events which had occurred during the past six weeks, including the extent of damage caused by the absence of oil filters and the required realignment of the tail shafts and engines. No response was made by Mainstream to these communications and no representative attended the vessel while in drydock.

The District Court found that the aforesaid repairs performed by National Marine and B & Q Machine & Repair, Inc., were necessitated by Mainstream's negligent failure to install oil filter elements in the lube oil systems of the two engines, to remove any welding slag left from its operation, and to align properly the intermediate and tail shafts. The Court found as a fact that the oil filter elements, which Mainstream was obligated to furnish, were not provided upon delivery of the vessel as repaired. Prior to the discovery of the absence of the filter elements no reason existed for their removal or inspection by crewmembers in view of protracted period when the boat was not in use. The Court also found as a fact that the intermediate and tail shafts and the engines aboard the JANE ELIZABETH were misaligned so as to cause excessive vibration during normal operations. Such misalignment, as well as the failure to install oil filter elements and to remove welding slag, constitute a failure to exercise ordinary care by Mainstream. The owner was awarded damages in the amount of $79,444.38.

As an admiralty and maritime claim, this action falls within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. "In appeals of admiralty cases, as in other On the facts, this was a close case, hard fought, the litigants on both sides having the benefit of able counsel who loaded the record with every conceivable fact, or inference to be drawn from such a fact, which might support their position. It was just such cases as this that gave birth to the clearly erroneous rule and which necessitate its continued use as a firmly entrenched part of our federal jurisprudence. This was just the kind of case which supports the rule that credibility choices must be left to the trier of the fact where he or she sees and hears the witnesses. It can make no difference that if we had been sitting in the first instance, rather than in review, we would have found the facts differently. This record will not allow us to confidently say that the District Court could not permissibly have found the facts as it did. Doubtful though...