King Fisher Marine Service, Inc. v. NP Sunbonnet

• Decision Date: 13 February 1984
• Docket Number: No. 82-3697,82-3697
• Citation: 724 F.2d 1181
• Parties: KING FISHER MARINE SERVICE, INC., Plaintiff-Appellee, v. The NP SUNBONNET, Her Engines, etc., et al., Defendants, and Newpark Marine Services, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1181

724 F.2d 1181

1984 A.M.C. 1769

KING FISHER MARINE SERVICE, INC., Plaintiff-Appellee, v. The NP SUNBONNET, Her Engines, etc., et al., Defendants and Newpark Marine Services, Inc., Defendant-Appellant.

No. 82-3697.

United States Court of Appeals Fifth Circuit.

Feb. 13, 1984.

J. Fredrick Kessenich, New Orleans, La., for defendant-appellant.

George J. Fowler, III, New Orleans, La., for plaintiff-appellee.

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

Before GEE, TATE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Newpark Marine Services, Inc. appeals from a judgment entered after a bench trial in favor of King Fisher Marine Service, Inc. for the value of a King Fisher barge sunk while in tow by Newpark. The district court awarded damages for the total loss of the barge plus interest. Newpark argues that King Fisher Marine failed to prove Newpark's liability, that the district court awarded excessive damages and interest, improperly modified its opinion and that King Fisher furnished an unseaworthy vessel. Finding the court's modification appropriate and its findings not clearly erroneous, we affirm.

I

For several years King Fisher, president of King Fisher Marine, had been looking for a barge suitable for use as a platform for a drydock. In early February 1979 King Fisher, accompanied by the seller's representative, Jessie Pruitt, inspected a barge which had been advertised in the Waterways Journal. Once an undersea mat for a drilling rig, the barge was basically a large steel box with four internal compartments and two attached pontoons. The barge was capable of carrying 180 tons per foot of depth and when empty had approximately two to three feet of freeboard. According to King Fisher, he inspected both pontoons through open manhole covers and found them filled with Styrofoam and evidently he was told that the internal compartments were empty but that the pontoons were filled with Styrofoam. Pruitt's men then cut a hole in one of the internal compartments and King Fisher found only about one inch of condensation inside. Pruitt testified that all eight manhole covers to the barge had been unbolted by his crew, that King Fisher opened manholes in the center of the barge, and that he and King Fisher inspected the barge for two to three hours. Pruitt and King Fisher told McMenany's men to reweld the hole and manhole covers. When Pruitt and King Fisher left the men were preparing to do so but had not yet begun. King Fisher was satisfied that the barge had internal integrity due to the small amount of water they found, the fact that the barge was sitting level and that it had recently carried a large quantity of steel.

Newpark's representative, Wayne Martin, testified that King Fisher told him that the barge could not sink because of the Styrofoam. King Fisher denied making such a statement. Rene LeBouef, captain of Newpark's tug the Sunbonnet, and the ship's mate, Donald Theriot, inspected the barge on February 13, 1979. LeBouef noted that at least one of the barge hatches was loose and that the compartment underneath it contained Styrofoam. LeBouef also found a narrow two-foot crack on the barge. Theriot found a hole three feet in diameter covered with a plate. When he lifted the plate four to five inches Theriot could see Styrofoam underneath. Although Theriot reported this to LeBouef, LeBouef did nothing about any of the findings and failed to report them to Newpark's office.

Because of fog, the Sunbonnet did not go into the Gulf for another day and a half. During that time, LeBouef noticed no loss of freeboard, indicating to him that there were no holes in the bottom of the barge and he testified that the barge was seaworthy. Although LeBouef and Theriot were not licensed to command an offshore towing tug, on February 14th the Sunbonnet, with the barge in tow, sailed into the Gulf. At midnight Theriot took over the helm and LeBouef went to sleep. Theriot thought the tug's speed was six to seven miles per hour while LeBouef recalled that when he left the helm the tug was at a three quarter speed of four miles per hour. Theriot testified that when he took over the helm the swells were to three feet and were breaking over the barge. LeBouef testified that he thought the swells were smaller when he relinquished command but that later that morning they increased.

The barge was being towed directly astern with a 300 foot line. Theriot relied on several lights attached to the barge to keep sight of it, but was unable to see its freeboard because the tug's spotlight would not rotate a full 360?. After a while Theriot could not see the lights of the barge. Still later he turned the tug to reach the barge with the spotlight. Only then did he realize that its bow was under water and only the starboard stern was visible. Theriot then woke LeBouef who on calling Newpark's office was told to head slowly toward more shallow water. LeBouef gave this order and went back to sleep. After about an hour Theriot again awakened LeBouef and informed him that the barge was completely submerged and water was entering the stern of the tug. LeBouef ordered the line cut.

At trial LeBouef conceded that had he to do it over again he would have let out more line instead of cutting the line so quickly. The barge sank in approximately thirty feet of water. No buoy was attached to the line before it was cut. Instead, LeBouef read his location and dropped a buoy to mark the site. Newpark reported the sinking to the Coast Guard stating that the hatch covers were not secured and recommended that they be secured in the future. The barge was never located.

II

The district court found that the barge was seaworthy and that Newpark's negligence caused the loss of the barge. The tow, King Fisher, warrants the seaworthiness of the vessel--that it is sufficiently staunch to withstand the pressures that ordinarily accompany the intended voyage. S.C. Loveland, Inc. v. East West Towing Inc., 415 F.Supp. 596, 605 (S.D.Fla.1976) aff'd. 608 F.2d 160 (5th Cir.1979), cert. denied 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980); Derby Co. Ltd. v. A.L. Mechling Barge Lines, Inc., 258 F.Supp. 206, 211 (E.D.La.1966) aff'd. 399 F.2d 304 (5th Cir.1967). Although a tug is neither a bailee nor an insurer of the tow it is obligated to provide reasonable care and skill "as prudent navigators employ for the performance of similar service." Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 350, 76 L.Ed. 699 (1932); Consolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077, 1081, (5th Cir.1983); Agrio Chemical Co. v. M/V Ben W. Martin, 664 F.2d 85, 90 (5th Cir.1981).

The law has harmonized the obligations of the tow and the towing vessel largely through burdens of proof. Where "a barge in tow sinks in calm water for no immediately ascertainable cause ... in the absence of proof that the barge was improperly handled, the vessel's sinking is presumed to be a direct result of her unseaworthiness," Consolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716 F.2d at 1081.

At the same time, the tug cannot complain about a condition of unseaworthiness or other weakness that caused the loss if it knew of the condition and failed to use reasonable care under the circumstances. Tidewater Marine Activities, Inc. v. American Towing Co., 437 F.2d 124, 130 (5th Cir.1970); Horton & Horton, Inc. v. T/S J.E. Dyer, 428 F.2d 1131, 1134 (5th Cir.1970); Bisso v. Waterways Transportation Co., 235 F.2d 741, 745 (5th Cir.1956). If the alleged unseaworthiness is so apparent that it would be negligent for the tow to attempt to proceed, it cannot disclaim responsibility for the loss. Damaron-White Co. v. Angola Transfer Co., 19 F.2d 12, 14 (5th Cir.1927); Otto Candies, Inc. v. Great American Insurance Co., 221 F.Supp. 1014, 1018 (E.D.La.1963) aff'd. 332 F.2d 372 (5th Cir.1964). As the district court recognized, King Fisher had the burden of proving Newpark negligent. See Consolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716 F.2d at 1082. Nat G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89, 94 (5th Cir.1975). In admiralty, findings of proximate cause and negligence are reviewed under the clearly erroneous standard. Consoldiated Grain & Barge Company v. Marcona Conveyor Corp., 716 F.2d at 1082.

Because Newpark knew of the open manhole and cracks on the ship's surface and there is no other evidence that the barge was unseaworthy, the district court's refusal to find King Fisher negligent was not clearly erroneous. The barge had carried a heavy load of steel without apparent difficulty. An internal compartment checked by King Fisher looked fit and the barge was not heeling. LeBouef watched the barge for a day and a half and found no change in its freeboard and thought her seaworthy. While the district court necessarily found that the water entered the unbolted manhole and assorted cracks on the barge's surface, these cracks cannot be relied upon as breaches of the warranty that the barge was seaworthy because Newpark, through LeBouef, was aware of the condition.

Theriot and LeBouef testified that water could have entered the manhole cover and cracks that they had seen. Newpark in its brief admits that it is not known whether water which might have seeped into the pontoons could fill the barge. Newpark's own statement to the Coast Guard stated "barge sank-no hatch covers in place" and recommended "secur[ing] hatches on barges before moving." It appears that Newpark knew it was possible for water to seep into the manhole and cracks even though there was Styrofoam below. Newpark then took the barge into the Gulf of Mexico in tow of a tug whose spotlight could not accurately focus on the barge's freeboard unless the tug altered its course. Moreover, the Sunbonnet towed the barge at speeds which caused water to cover the deck of the barge. It was not until the...