Logan Charter Service, Inc. v. Cargill, Inc.

• Decision Date: 06 February 1967
• Docket Number: No. 18088.,18088.
• Citation: 373 F.2d 54
• Parties: LOGAN CHARTER SERVICE, INC., in personam and the TUG CITY OF JOLIET, Her Engines, Tackle, Furniture, etc., in rem, Appellant, v. CARGILL, INC., The Continental Insurance Company, United Barge Co., Inc., Dairyland Power Co-operative and the United States of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

373 F.2d 54 (1967)

LOGAN CHARTER SERVICE, INC., in personam and the TUG CITY OF JOLIET, Her Engines, Tackle, Furniture, etc., in rem, Appellant, v. CARGILL, INC., The Continental Insurance Company, United Barge Co., Inc., Dairyland Power Co-operative and the United States of America, Appellees.

No. 18088.

United States Court of Appeals Eighth Circuit.

February 6, 1967.

George B. Matthews, of Lemle & Kelleher, New Orleans, La., for appellant; Curtis L. Roy and Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn., were with him on the briefs.

T. C. W. Ellis, of Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, La., for appellees Cargill, Inc., Continental Ins. Co., United Barge Co. and Dairyland Power Cooperative; Richards, Montgomery, Cobb & Bassford, Minneapolis, Minn., were with him on the brief for those appellees.

Martin Jacobs, Atty., Dept. of Justice, Washington, D. C., for appellee United States; John W. Douglas, Asst. Atty. Gen., David L. Rose and Miles W. Lord, U. S. Atty., Minneapolis, Minn., were on the brief.

Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

This appeal is from a decree of the United States District Court for the District of Minnesota, sitting in admiralty, growing out of a collision of the tow M/V CITY OF JOLIET with Lock and Dam No. 3 on the upper Mississippi River. The District Court found the crew of the CITY OF JOLIET at fault for the collision and awarded damages for the loss of the barge and its cargo and for damage to the dam. We affirm.

A number of interests are involved. Dairyland Power Cooperative, a libelant-appellee, owned the sunken barge DP-223. Libelant-appellee, United Barge Company, Inc., was the owner pro hac vice of the sunken barge DP-223. Libelant-appellee, Cargill, Inc., owned the barge's cargo of rye. Respondent-appellant, Logan Charter Service, Inc., was the owner pro hac vice of the tug CITY OF JOLIET. Logan bareboat chartered the CITY OF JOLIET from the American Commercial Barge Lines and contracted with Cargo Carriers, Inc. to tow barges between specified points for a daily rate. The tow involved here was made up in St. Paul, Minnesota, and consisted of three tiers of two covered grain-carrying barges each, with barge DP-223 occupying the port side of the aft tier. The CITY OF JOLIET faced up to the stern of the tow.

On a voyage down the Mississippi River from St. Paul, a tow must transit a number of locks. The lock and dam involved is located near Red Wing, Minnesota and is owned by the United States and operated by its Corps of Engineers. The lock is on the right descending bank of the river and has a six hundred foot long guidewall on the up-river side. Opposite the guidewall is a shorter wall — a "bull nose" — which extends a short distance upstream from the lock's upper gate. Dam No. 3 is east of the lock. The current approaching the lock and dam flows into the right or west bank above the guidewall, and then moves to the left bank toward the dam, creating a strong "outdraft."

The crew of the CITY OF JOLIET consisted of Captain Radford, Pilot Houchins, Mate Rinehart, and deckhands Evans and Sellars. The locktenders were Hartnagel and Flynn, civilian employees of the Corps of Engineers. The record contains the testimony of each of the above except Rinehart, who did not testify. The accident occurred when the CITY OF JOLIET lost control of her tow while attempting to maneuver into position to negotiate the lock, resulting in the tow colliding with the up-river side of the dam causing the barge DP-223 and its cargo to sink. The CITY OF JOLIET, with the assistance of another tug which arrived from downstream, rescued the other five barges.

The following Findings of Fact of the District Court aptly describe the events occurring immediately before and resulting in the collision:

"12. Prior to 12:00 o\'clock midnight Captain Radford was the pilot on duty. He was relieved at midnight by Pilot Houchins. Prior to being relieved Captain Radford had experienced difficulty and had spent some time (30 to 45 minutes) in attempting to maneuver the tow into position to enter the lock chamber. About the time that Captain Radford was being relieved he told Pilot Houchins, `there is an awful outdraft here — we are having a little difficulty getting our tow in the chamber of the lock.\' After Pilot Houchins took over as pilot he attempted for a considerable time (30 to 60 minutes) to bring the tow into the guidewall. Both Captain Radford and Pilot Houchins were experienced river pilots.

"13. The Joliet in approaching the lock engaged in a flanking operation.

The head of the tow was pointed out in the river and the stern was placed next to the right descending bank. The tug continued to flank the stern starboard barge down on the upper guidewall. Nylon lines were placed on the buttons on the guidewall and on cavils on the stern starboard barge. The pilot then went ahead on the port engine and backed up slow on the starboard engine. The steering rudders were thrown hard down to starboard and the backing rudders were thrown down hard to port. The two lines on the starboard stern barge were being held. This involved a kind of pivoting operation. The head of the tow moved slowly to starboard and toward the guidewall. There was increasing strain on the stern lines caused by the outdraft and the movement of the engines. In a customary maneuver when the bow reaches the guidewall the stern of the tow will be close or against the guidewall and the stern lines will be cast off and the tow will proceed along the guidewall and into the lock chamber.

"14. Locktenders Hartnagel and Flynn were on duty at the lock at the time of the accident. Deckmen Rinehart and Evans were on the stern starboard barge. Deckman Sellars was at the bow of the tow. Evans was near the stern end of the stern starboard barge, and Rinehart was more forward of Evans on the same barge. Hartnagel threw heaving lines to Rinehart and Evans, who passed nylon lines back to Hartnagel who then put the nylon line on a button on the guidewall. Evans then wrapped the nylon line around the cavil on the barge and made it fast with a figure eight and three or four loops. The starboard side of the tow was then fifteen to twenty feet from the guidewall. The stern proceeded to go away from the lock wall and made the lines tighter. Evans made more loops and let the line play, but the line kept getting tighter and tighter. He let out as much line as he could to keep the line from breaking. The line got down to all that Evans could hold and all that he could wrap around, and at the time that he was holding only the end of the line he was forced to let go. Rinehart was doing the same thing with his line and he let go a few minutes later. The stern of the tow continued to fall off. The engines of the Joliet were reversing. After Evans and Rinehart let their lines go, the tow went cross-ways into the dam. The nylon lines, which were relatively new, did not part or break. Hartnagel told Evans to keep the lines tight. Evans heard no instructions of any kind from Pilot Houchins.

* * * * * *

"17. Locktender Flynn assisted at the guidewall near the bow of the starboard barge. Deckhand Sellars was at the forward end of the barges. Flynn tied a nylon line to the button on the guidewall. Sellars tied his line to the cavil on the barge and held it. Flynn said nothing to Sellars. The tow line did not break. Sellars could no longer hold the line and let go. Sellars received no instructions from Pilot Houchins.

"18. The tow moved ahead slowly. The stern was too far out. Pilot Houchins decided to go in. The two stern lines were slacked off and cast off. The tow moved forward but was swinging out. Hartnagel became concerned about the barge striking the upper right gate, which would cripple the lock for a month. Hartnagel told Pilot Houchins to back down. Houchins started backing, the stern kept swinging out, and the current again caught the tow. The bow of the barges cleared the bull nose. The crash of DP-223 into the pier nose of the dam occurred about 1:00 a. m. on June 8, 1963."

After finding that the testimony of Captain Radford and Pilot Houchins was "in many respects unworthy of belief and in some respects incredible," the court found that each was guilty of negligence.¹

The court also found that deckhands Rinehart and Evans were negligent in failing to hold the stern lines tight as ordered. Additionally, the court found that deckhand Sellars was guilty of some slight degree of negligence in his handling of the bow lines. The court ultimately found that the sole direct proximate cause of the collision was the negligent operation and navigation of the CITY OF JOLIET by employees of Logan Charter Service, Inc.

Appellant's principal argument for reversal is that the trial court erred in finding appellant, rather than the Government, at fault. The only witnesses to the collision were employees of appellant and the Government, who gave conflicting versions of how the collision occurred.

According to the Government's witnesses, the flotilla's approach to the guidewall was normal but the stern was never maneuvered closer than forty feet to the wall. Thus, the flotilla never achieved a proper position to transit the lock. Employing a "flanking maneuver," the flotilla approached the guidewall with the head barges angling out in the river. When the stern was fifty or sixty feet from the wall, mooring lines were secured from the aft starboard barge to the guidewall. The lines were tied so that the deckhands were able to control the lines, releasing them gradually, to help bring the tug closer to the guidewall. The tug pilot maneuvered the head of the tow from its outstream position into proper position near the wall, ready to negotiate the lock if the stern barges and the tug also had been brought into proper position alongside the wall. Thus, according to Government...