Inland Oil and Transport Co. v. Ark-White Towing Co.

• Decision Date: 24 January 1983
• Docket Number: No. 81-3532,ARK-WHITE,81-3532
• Citation: 696 F.2d 321
• Parties: INLAND OIL AND TRANSPORT CO., Plaintiff-Appellee Cross-Appellant, v.TOWING CO., et al., Defendants, Murphy Marine Service, Inc., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 321

696 F.2d 321

INLAND OIL AND TRANSPORT CO., Plaintiff-Appellee Cross-Appellant, v. ARK-WHITE TOWING CO., et al., Defendants Murphy Marine Service, Inc., Defendant-Appellant Cross-Appellee.

No. 81-3532.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1983.

Johnson & McAlpine, Ronald A. Johnson, New Orleans, La., for defendant-appellant cross-appellee.

Lugenbuhl, Larzelere & Ellefson, Scott R. Wheaton, Jr., New Orleans, La., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This admiralty case arose out of an early-morning collision between two tows on the Mississippi River. After a bench trial the district court apportioned fault, awarded damages for repairs and loss of use, and expressly denied prejudgment interest. ¹ Concluding that the apportionment of fault was not clearly erroneous, that the award of damages was supported by the evidence with one exception, and that the denial of prejudgment interest was within the trial court's discretion, we affirm the judgment in all respects save one.

Early on the morning of October 14, 1978, an empty five-barge tow was being propelled down the Mississippi toward Baton Rouge by the M/V LADY KIMBERLY. At the same time, a tow consisting of eight barges and two survey boats was being propelled upriver toward Memphis by the M/V GEORGE B. CUMMINGS and the M/V VANCE M. THOMPSON. The CUMMINGS, which had the greater horsepower, was the lead tug, and the THOMPSON was the helper tug.

At around 3:40 a.m., the CUMMINGS flotilla approached Thomas Point, a hairpin turn in the Mississippi about ten miles above Baton Rouge. William Sheeks, the captain of the CUMMINGS, initiated radio communications with three downbound vessels, reaching agreements to hold against the red buoys along the left descending shore below the Point while all three vessels passed. The LADY KIMBERLY followed and Sheeks initiated radio contact with Glen Wilson, its pilot. With a passing agreement reached, the KIMBERLY tow proceeded around the Point.

As the KIMBERLY rounded the Point, Wilson observed the amber light on the bow of the lead barge in the CUMMINGS tow. At about the same time, Sheeks sighted the KIMBERLY tow. Realizing that a collision was imminent, both started an unsuccessful effort to back their vessels down. The lead barge on the CUMMINGS tow collided with the first two barges on the port side of the KIMBERLY tow.

Inland Oil and Transport Co., the owner of the five barges on the KIMBERLY tow, filed suit on August 23, 1979, against Ark-White Towing Co. and Augusta Barge Co., the owners and operators of the THOMPSON, and against Murphy Marine Service, Inc., the owner and operator of the CUMMINGS. The parties stipulated at trial that the THOMPSON had been under the control of the CUMMINGS and that Murphy Marine would assume liability of Ark-White Towing Co. and Augusta Barge Co.

Wilson testified that he had reached a passing agreement with Sheeks before rounding Thomas Point. According to Wilson, Sheeks said, "I'm on the red buoys below Thomas Point for the one whistle, is that okay?" and Wilson replied, "Okay, see you on the one whistle." Wilson testified that as he rounded the Point, his tow was in the middle of the river, with his lead barge about 500-600 feet off the left descending shore, and that when the collision occurred, his tow was still about 500-700 feet off the left descending shore. ² According to Wilson, the KIMBERLY tow was stopped at the time of the collision, but the CUMMINGS tow was moving forward.

Sheeks and Wilson differed in their recollection. Sheeks admitted radio contact with Wilson and the passing agreement to hold up along the buoys below the Point. According to Sheeks, though, his tow remained against the red buoys, which were 100 yards or so from the shore, moving little if at all. Sheeks testified that when he saw the KIMBERLY tow, it was near the left descending shore 300-400 yards above his tow. Sheeks testified that Wilson came on the radio and said, "Thought you were holding up," and he replied, "I am." Later on Sheeks testified that he never heard Wilson say anything to him about holding up below the Point. According to Sheeks, the head of his tow was less than 100 yards from the left descending bank at the time of collision.

Richard Coley, pilot of the THOMPSON, generally confirmed Sheeks' account as to the location of the two tows at the time of collision, but in a key passage disputed Sheeks' version of his conversations with Wilson. According to Coley, after the KIMBERLY tow had rounded the Point, Wilson said, "I thought you were going to hold up," and Sheeks replied, "You told me to keep coming." ³

The parties stipulated as to the cost of the repairs to Inland Oil's two barges but tried damages for loss of use. Inland Oil put into evidence two towing orders: one, dated October 9, 1978, included the two barges; the other, a revision dated October 16, 1978, omitted the two damaged barges but listed another smaller barge that was not on the earlier order. Because of the revision Inland Oil lost revenue since it was being paid a predetermined rate per net ton per mile. An assistant treasurer of Inland Oil testified that the lost revenue was equivalent to lost profits, because virtually all the costs of the Chevron towing contract were fixed costs, but could not say why the contract had been modified.

The district court found that the CUMMINGS had violated the passing agreement by failing to maintain its position along the left descending bank. 514 F.Supp. at 502. It also found that the KIMBERLY was "somewhat negligent" in navigating its tow too close to the left descending bank. Id. at 503. It apportioned 75 percent of the fault to the CUMMINGS and 25 percent to the KIMBERLY. Id. at 502.

In supplemental findings of fact and conclusions of law, 517 F.Supp. 651, the district court calculated damages for loss of use by adding $26,516.08, the lost revenue under the revised Chevron contract, to $16,515.98, an amount it obtained by prorating the Chevron contract rate over the additional days the two barges were in repairs, then rounding this sum off to $40,000, and multiplying it by 75 percent. When the district court entered judgment it crossed out terms in a draft judgment submitted by Inland Oil that ordered interest to be paid from the date of the collision, and instead ordered interest to be paid only from the date of judgment. This appeal and cross-appeal followed.

Apportionment of Fault

Murphy Marine challenges the district court's apportionment of fault. It argues that the district court erred in not finding the KIMBERLY negligent for negotiating Thomas Point at an excessive speed, in not finding that the KIMBERLY's failure to post a lookout on its lead barge was negligent and a contributing cause of the collision, and in not placing greater fault on the KIMBERLY for navigating too close to the left descending shore.

These challenges must surmount the clearly erroneous rule. See Allied Chemical Corp. v. Hess Tankship Co., 661 F.2d 1044, 1057 (5th Cir.1981); Movible Offshore, Inc. v. M/V WILKEN A. FALGOUT, 471 F.2d 268, 272-273 (5th Cir.1973). ⁴ We hold that they have not done so.

Murphy Marine points out that Wilson told the Coast Guard he had been approaching Thomas Point at 12.5 miles per hour. Murphy Marine argues that this was an excessive rate of speed under the circumstances and a violation of Rule 21 of the Western Rivers Rules of the Road. 33 U.S.C. Sec. 346. ⁵ See In re M/V FAY BLACKMAN, 437 F.2d 542, 546 (5th Cir.1971) (district court did not err in finding that tow violated Western Rivers Rules by travelling with the current at 12 to 14 miles per hour when aware that its contemplated course would require it to pass in close proximity to Big Black Point and another tow). At trial, however, Wilson explained that the statement referred to his average speed for the four hours prior to the collision and that he had actually cut his speed to half speed a mile above the Point.

Murphy Marine also contends that the KIMBERLY violated Rule 26, 33 U.S.C. Sec. 351, in failing to post a lookout at the front of the tow. Wilson was stationed on the tug itself. He testified that the collision could have been avoided had he stopped 300 or 400 feet earlier. Since the head of the KIMBERLY tow was over 700 feet ahead of the tug, Murphy Marine argues that a lookout would have spotted the CUMMINGS tow in time to prevent the accident.

In order to be guilty of a statutory fault, however, the KIMBERLY must have been negligent in failing to provide a lookout at the head of the tow. "The question of a proper lookout is one of fact to be determined from all of the circumstances." China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769 (5th Cir.1966), cert. denied, 386 U.S. 933, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967). Murphy Marine offered no evidence as to whether posting a lookout at the head of a tow when entering a blind bend was customary. Inland Oil argues that given the clear weather Wilson had an excellent view from the wheelhouse, thirty-six feet above the deck level. Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d at 1053, in which this court affirmed a lower court finding that a tow had failed to post a proper lookout by not having anyone outside the pilot house in a thick fog, is distinguishable on its facts. Savoie v. Apache Towing Co., 282 F.Supp. 876, 878 (E.D.La.1968), in which a tow was held at fault for not having a lookout stationed at the head of the tow when it came around a blind bend, indicates only that on similar facts one district court disagreed with the court below. We cannot say that the trial court's implicit finding of no negligence was clearly erroneous.

Murphy Marine also argues that the district court erred in...