Harbor Tug & Barge, Inc. v. Belcher Towing Co.

• Decision Date: 04 June 1984
• Docket Number: No. 82-5729,82-5729
• Citation: 733 F.2d 823
• Parties: HARBOR TUG & BARGE, INC., a corporation, Plaintiff-Appellee, v. BELCHER TOWING COMPANY, Defendant-Appellant. BELCHER TOWING COMPANY, Third Party Plaintiff-Appellant, v. Carl N. BROWN, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 823

733 F.2d 823

HARBOR TUG & BARGE, INC., a corporation, Plaintiff-Appellee, v. BELCHER TOWING COMPANY, Defendant-Appellant.

BELCHER TOWING COMPANY, Third Party Plaintiff-Appellant, v. Carl N. BROWN, Third Party Defendant-Appellee.

No. 82-5729.

United States Court of Appeals Eleventh Circuit.

June 4, 1984.

William G. Cooper, Jacksonville, Fla., for defendant-appellant.

Gary A. Bubb, Jacksonville, Fla., W.B. Ewers, Fort Lauderdale, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

SIMPSON, Senior Circuit Judge:

On April 15, 1979, the barge San Juan crashed into a concrete bulkhead while attempting to dock in the Port of Miami, Florida. Harbor Tug and Barge, Inc., the barge owner, sued the tug operator, Belcher Towing Company, in personam. Belcher, in turn, named Captain Carl N. Brown, the local pilot who planned and directed the docking operation, as a third party defendant. After hearing a day and a half of testimony and receiving into evidence documents and transcribed depositions, the district court issued the opinion attached as an appendix. The facts appear sufficiently from the district court's opinion. Belcher appeals the accompanying judgment. Though it admits some negligence on its part, it contests the holding that it was liable for seventy-five percent of the damages. ¹

A judgment of a trial court, sitting without a jury in admiralty, may not be set aside unless it is clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954). This limitation on review extends to all findings of fact including the apportionment of damages. Gele v. Wilson, 616 F.2d 146 (5th Cir.1980); Allied Chemical Corp. v. Hess Tankship Co., 661 F.2d 1044 (5th Cir.1981). ²

Belcher's first argument is that the court erred in failing to divide damages equally among the three parties because no fair measurement of comparative fault was possible. In adopting the law of comparative negligence the Supreme Court stated:

An equal division of damages is a reasonably satisfactory result only where each vessel's fault is approximately equal and each vessel thus assumes a share of the collision damages in proportion to its share of the blame or where comparative degrees of fault cannot be measured and determined on a rough basis.

United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). We find that sufficient evidence to sustain the implicit finding that there were sufficient differences in the parties' circumstances so as to allow a rough comparison of their relative culpability was presented to the district court and is recited in its opinion.

Belcher's second argument is that the district court committed legal error in apportioning damages on the basis of cause contrary to the holding in Reliable Transfer that "damage is to be allocated among the parties proportionately to the degree of their fault ". 421 U.S. at 411, 95 S.Ct. at 1716. [emphasis supplied]. In support of this argument, Belcher cites Gele v. Wilson, supra. In that case, a wrongful death action, decedent was a passenger in a motor boat traveling at a speed excessive for the night-time conditions. The fatal injury occurred when the boat struck a dark flare pipe that defendant Chevron Oil Company had failed to mark with a light or reflectors as required by Department of Transportation regulations. The trial judge found Herr, the operator of the boat, liable for twenty percent of the damages and Chevron liable for the remaining eighty percent. On appeal, Chevron challenged the apportionment of damages. The former Fifth Circuit examined the circumstances surrounding the negligence of each defendant and affirmed the apportionment. Herr could see dark objects about one hundred yards ahead and light sources at a distance of five or six miles. The boat was capable of stopping within seventy-five feet. Unless the boat was traveling at a speed near that at which it was driven at the time of the collision, its bow would rise slightly and thereby obscure the operator's forward vision. Herr's actions were found "regrettable in retrospect", but not "totally devoid of reason". Chevron's failure to mark the pipe was unexplained.

"The violation of a safety provision designed to prevent collisions has always been viewed harshly in admiralty. See The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874) (imposing on one shown to have violated such a rule the burden of proving that its fault "could not have been" one of the causes of the collision).

The respective transgressions of Herr and Chevron may have been equally responsible for the collision. Liability however, "is to be allocated among the parties proportionately to the degree of their fault," not according to their degree of causation....

"... Herr's fault lay solely in maintaining an immoderate speed; there is no indication that he failed to keep a proper look or was otherwise inattentive to his duties. In light of Chevron's unexcused dereliction of an express statutory duty, we cannot say that the trial court's allocation of fault in this case was clearly erroneous."

Gele v. Wilson, 616 F.2d at 148.

We do not interpret Gele as requiring a trier of fact to disregard all issues of causation and apportion on the basis of abstract fault. Fault which produces liability must be a contributing or proximate cause of the collision. Tringali Bros. v. United States, 630 F.2d 1089, 1090 (5th Cir.1980), Valley Towing Service, Inc. v. S.S. American Wheat, 618 F.2d 341 (5th Cir.1980); Board of Commissioners v. M/V Farmsum, 574 F.2d 289, 297 (5th Cir.1978); See also Hess Tankship Co. v. Allied Chemical Corp., 526 F.Supp. 1333, 1346 (E.D.La.1979) aff'd 661 F.2d 1044, 1052 (5th Cir.1980). Neither do we agree with Belcher's assertion that the district court deviated from fault-based analysis merely because its opinion states that "The main cause of the accident ... was Belcher supplying an underpowered tug without disclosing its failing." The evidence presented and the preceding recital of facts must be considered in placing the phrase in its proper context. We interpret "main cause" as a shorthand reference to the fact that Brown relied upon his experience in working with Belcher tugs in formulating the docking plan and Harbor Tug relied upon Brown's expertise and familiarity with the harbor and the equipment Belcher provided. Belcher's failure to inform the other parties that the Edwin Belcher could not deliver full power necessarily clouded their judgment. The inherent risks in the docking plan would be more easily perceived by and seem more serious to anyone who knew that one tug could not perform as could be reasonably expected.

Though we would prefer the comparison of fault in more direct language, we are more concerned with the substance of the opinion than "beating around the semantical bush," see, Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129, 1139 (9th Cir.1977). We find no departure from the standards of apportionment set forth in Reliable Transfer, supra.

Belcher's third argument is that the judge failed to assign fault to Harbor Tug and Brown for attempting to dock the San Juan without the aid of a seagoing tug, for failing to anticipate the effect that current and a dragging tow chain would, and did, have on the docking operation and in failing to abort the maneuver prior to the allision. In addition, Belcher alleges that it should be relieved of liability because Brown's negligence "actually [sic] hindered" the tugs from meeting their duty of workmanlike performance, citing Compagnie Generale Transatlantique v. United States, 522 F.2d 148 (2d Cir.1975).

Belcher's argument necessarily assumes Brown knew that the Edwin Belcher was unable to deliver full power. At trial, Brown testified that he first became aware of the engine trouble when the San Juan was in a difficult situation and the tug was unable to move the barge as expected. Belcher tried to impeach Brown by introducing a log entry made by its dispatcher before Belcher tugs attempted the tow:

Captain request (sic) Smith instead of E.N.B. Because Smith has more power than Edwin now. Right engine on E.N.B. won't run up high now.

Though Belcher opines that "it is almost inconceivable that the dispatcher was referring to anyone other than Captain Brown", the trial judge did not so find. Belcher never called the dispatcher as a witness but relied instead on another employee to interpret the entry. We find no grounds for overturning this credibility choice. Nor do we find clear error in failing to find additional fault on the part of Brown or Harbor Tug. "The determination of negligence is ordinarily within the province of the trier of fact because of the peculiarly elusive nature of negligence and the necessity that the trier of fact assess the reasonableness of the conduct under all the circumstances." Decker v. Gibson Products of Albany, Inc., 679 F.2d 212, 216 (11th Cir.1982).

Belcher raises two final issues on appeal each of which, it admits, presents insufficient grounds for reversal. Belcher argues, however, that these issues are sufficient indicia of prejudice by the trial judge to overcome any presumption that the opinion below was the correct result of fair proceedings before an impartial trier of fact and requests that the court consider the cumulative effect of all error argued in the brief and grant a new trial to assure fundamental fairness.

Belcher complains of a failure to grant a continuance to allow it to produce a witness who had failed to honor a subpoena on the last day of trial. The witness, Ollie Dan Taylor, had testified for Harbor Tug on the previous day and had been extensively cross-examined by both defendants. When Belcher requested a continuance, the judge inquired what...