Hercules, Inc. v. Stevens Shipping Co.

• Decision Date: 16 July 1985
• Docket Number: No. 84-8198,84-8198
• Citation: Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069 (11th Cir. 1985)
• Parties: HERCULES, INC., Plaintiff-Appellee, v. STEVENS SHIPPING CO., et al., Defendants-Appellants, Aetna Casualty & Surety Company, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1069

765 F.2d 1069

HERCULES, INC., Plaintiff-Appellee, v.STEVENS SHIPPING CO., et al., Defendants-AppellantsAetna Casualty &SuretyCompany, Third Party Defendant-Appellee.

No. 84-8198.

United States Court of Appeals Eleventh Circuit.

July 16, 1985.

Gustave R. Dubus, III, Savannah, Ga., for Detco.

Robert S. Glenn, Jr., Savannah, Ga., for Stevens Shipping Co.

Edwin D. Robb, Jr., Savannah, Ga., for Hercules, Inc.

Allen F. Campbell, New Orleans, La., for Aetna Cas. & Sur. Co.

Appeals from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

On June 29, 1975, the barge Herwood capsized in the Caribbean Sea, losing its cargo of some 4,350 telephone poles and sustaining substantial damage to its hull.The parties then embarked upon an odyssey of litigation, which, ten years after the capsize, finally has culminated in the instant appeal.Stevens Shipping Co., Inc., the stevedoring firm that loaded the poles onto the barge, appeals from a judgment holding it liable to Aetna Casualty & Surety Co., the cargo owner's subrogated insurer, for 35% of the damages sustained by the cargo owner plus prejudgment interest.We affirm.¹

I.FACTS AND PROCEDURAL HISTORY

In early 1974, Escambia Treating Co., Inc.("Escambia") entered into a contract for the sale and delivery of telephone poles from Brunswick, Georgia to Puerto Rico.On April 25, 1975, Escambia chartered the barge Herwood from its owner, Hercules, Inc.("Hercules"), for the purpose of delivering the poles to Puerto Rico.Two days earlier, Hercules had amended a long-term contract with Detco Towing Co.("Detco") to provide for towage of the Herwood by Detco's tug, the Tracy D.

The Herwood was a flush-deck barge, approved for oceangoing service by the American Bureau of Shipping and measuring 200 feet long, 45 feet wide, and 14 feet, 6 inches from keel to main deck.On the main deck, Hercules had constructed, from highway guard rails and chain link fence, a cargo pen measuring 185 feet long, 35 feet wide, and 12 feet high.Below the main deck, the barge was divided into 24 compartments, consisting of eight wing compartments along each side of the barge and eight center compartments.Each wing compartment was connected to the opposite wing compartment by a four-inch pipe.

In the charter party with Hercules, Escambia agreed to transport no more than 2000 short tons of telephone poles on the Herwood at a time.To accommodate the maximum number of poles, and with Hercules' permission, Escambia welded three feet of pipe to the top of the existing stanchions enclosing the cargo pen, extending the height of the cargo pen to 15 feet.Escambia hired Stevens Shipping Co., Inc.("Stevens"), a stevedoring firm, to load the poles onto the barge and stow and lash the poles.In the spring of 1975, Stevens loaded approximately 1950 short tons of poles onto the Herwood for shipment from Brunswick to Puerto Rico.This trip was completed without incident.

In early June, 1975, preparations began for another delivery of telephone poles to Puerto Rico.²Escambia secured from Aetna Casualty & Surety Co.("Aetna") a marine open cargo insurance policy for $409,990.49, to cover this second shipment.Escambia transported the poles to Brunswick by rail, and both the railroad freight bills and stevedoring charges reflect that 2,056 short tons of poles were delivered and loaded onto the barge.³

Stevens loaded the poles onto the barge in a pre-slung condition, that is, in bundles of four to six poles.Although a marine surveyor had recommended that at least three wires be run across the top of each draft, or bay, of poles, Stevens used only two wires across most of the drafts.In addition, although the most secure method of lashing the poles onto the barge would have been to run wires at approximately every other tier with double turns in the wire, Stevens ran only one series of wires several feet above the deck and then added only one other series of wires on top of the cargo.Stevens did not loop the lashings to prevent movement of the cargo.The piles of poles reached a height of fifteen feet or more above deck.

During the loading, one of Escambia's marine surveyors, Harry Jennings, noticed that the International Load Line Certificate for the barge referred to stability restrictions contained in a Coast Guard Stability Letter, which should have been but was not attached to the certificate.Jennings checked with Hercules and discovered that the recommended vertical center of gravity for the barge was some four feet lower than that resulting from Stevens' loading of the poles.Because the barge already had successfully completed one voyage, however, Jennings took no action.

After the poles were loaded onto the barge, Escambia's marine surveyors inspected both the barge and cargo and approved them to proceed to Puerto Rico.The Herwood left Brunswick on July 11 with a two- or three-inch port list, which the captain of the Tracy D indicated would present no problems.On June 23, however, when the tug and tow arrived at Puerto Plata, Dominican Republic, for refueling, the barge's port list was quite severe, with only three-and-a-half inches of freeboard remaining on the port side.This severe list had been caused by a shifting of the cargo.⁴

The tug captain notified Detco and Hercules of the problem, and Hercules' naval architects proposed three solutions.The first two solutions, restowing the cargo and towing the barge backwards, proved impractical.⁵The third solution was to pump water into one of the starboard compartments to balance the weight of the shifted poles.The architects cautioned, however, that the crossover pipes had to be capped to prevent the water from moving across into the port compartments, and that the cargo had to be secured to prevent it from re-shifting to the starboard.

Hercules directed Detco to have the tug captain cap the pipes, put fourteen feet, two-and-a-half inches of water in the number five starboard compartment, and tighten the lashings of the cargo.The captain followed these directions, except that he mistakenly put the water in the number four starboard compartment.The barge returned to a level position.The captain felt that the situation was less than desirable, and he so informed Detco and Hercules.Nevertheless, Detco and Hercules agreed that the tug and tow should proceed to Puerto Rico.

The flotilla departed Puerto Plata on June 27 and encountered rough weather.By the next day, when the weather cleared, the barge had begun to list to starboard.On June 29, the list worsened, and at 8:10 a.m., the barge slow-rolled over to the starboard, losing the cargo and sustaining severe structural damage.The barge was towed in its capsized condition to Puerto Rico, where, upon inspection, an 18-inch crack was discovered seven feet below the water line in the center forward area of the barge.The marine growth near the crack had not been disturbed and there was bright rust around the crack, indicating it was of recent origin and had been caused by, rather than the cause of, the capsize.

Hercules filed suit against Detco, the Tracy D, Stevens, and Escambia, seeking to recover for the damage to the Herwood.Aetna paid Escambia for the loss of the telephone poles and intervened in Hercules' lawsuit to pursue its subrogated cargo claim against Detco and Stevens.Stevens impleaded the National Cargo Bureau ("NCB") and Charles T. Theus, Inc.("Theus"), the marine surveyors hired by Escambia to inspect the barge and cargo.The parties also filed numerous cross-claims and counterclaims.After several years of litigation concerning issues unrelated to this appeal, ⁶the case went to trial in late 1983.During the first day of trial, Hercules' claims were settled, leaving Aetna as the only remaining party-plaintiff.

After hearing the evidence, the district court concluded that the shifting of the cargo while the barge was en route between Brunswick and Puerto Plata was caused by "the improper lashing and loading of the cargo."The court found that:

STEVENS was negligent in failing to properly secure the cargo.It should have provided bracing or shocks on the lower layer of the stow to prevent the possibility of the shifting of the cargo.Stevens should have utilized more wires in, through, and around the stow in order to hold it tight and secure, and was negligent in that respect.Stevens was negligent in failing to use at least three wires per bay of the poles in order to secure them.Stevens was negligent in failing to see that the wires were secured with the proper and sufficient number of clips adequately fastened in an appropriate manner.Stevens was negligent in loading and stacking the cargo too high on the barge when it knew, or should have known, that it was improper and dangerous to do so.

With respect to the eventual capsizing of the Herwood, the court concluded that:

The barge ultimately capsized because the righting of the barge by the addition of water ballasts caused some shifting of the cargo toward the starboard side, increasing the barge's instability and causing it to capsize.The excessive load and its too high center of gravity and the improper lashing contributed to the casualty.

...

The loss of the cargo was proximately caused by the joint and concurrent negligence of Hercules, Detco, Stevens, and Escambia.

The Court finds as a matter of fact that the negligence shall be apportioned as follows:

STEVENS--thirty-five percent;

HERCULES--thirty-five percent;

DETCO--twenty percent; and

ESCAMBIA--ten percent.

The court held that Aetna, as subrogee, could not recover against Escambia.The court also held that the contract between Hercules and Escambia precluded Aetna from recovering against Hercules, and that the limitations contained in the Carriage of Goods by Sea Act ("COGSA")...