Louisville and N. R. Co. v. M/V Bayou Lacombe

• Citation: 597 F.2d 469
• Decision Date: 20 June 1979
• Docket Number: No. 77-1917,77-1917
• Parties: LOUISVILLE AND NASHVILLE RAILROAD CO., a corporation, Plaintiff-Appellant, v. The Tug M/V BAYOU LACOMBE, her engines, boiler, hull, tackle, appurtenances, etc., In Rem, and Oil Transportation Company, Inc., a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 469

597 F.2d 469

LOUISVILLE AND NASHVILLE RAILROAD CO., a corporation, Plaintiff-Appellant, v. The Tug M/V BAYOU LACOMBE, her engines, boiler, hull,

tackle, appurtenances, etc., In Rem, and Oil

Transportation Company, Inc., a

corporation, et al.,

Defendants-Appellees.

No. 77-1917.

United States Court of Appeals, Fifth Circuit.

June 20, 1979.

Patrick W. Richardson, Schuyler H. Richardson, III, Hunstsville, Ala., for plaintiff-appellant.

Charles E. Lugenbuhl, W. J. Larzelere, Jr., New Orleans, La., Gorman R. Jones, Jr., Sheffield, Ala., Thomas W. Thorne, Jr., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, CLARK, and FAY, Circuit Judges.

WISDOM, Circuit Judge:

This appeal raises the question whether a railroad company has a cause of action enforceable in admiralty for damages for the loss of use of a bridge negligently struck by a vessel.

On the morning of March 18, 1975, the tugboat M/V Bayou Lacombe struck a swingspan railroad bridge crossing the Tennessee River at Decatur, Alabama. The Louisville and Nashville Railroad Co., forced to reroute its trains until repairs to the bridge were completed, sued under the Admiralty Extension Act, 46 U.S.C. § 740, to recover damages for the loss of the use of the bridge. The plaintiff appeals from the grant of summary judgment in favor of the tugboat and its owner, Oil Transportation Co.

Louisville & Nashville had a contractual right to use the bridge under a 1907 agreement with its owner, Southern Railway Co. Decisions of the Supreme Court and this circuit, applying maritime law, constrain us to deny recovery of pecuniary losses to a plaintiff who is deprived of a contractual benefit by the negligent acts of a defendant. We affirm.

I.

Twenty years ago The plaintiff sued a different tugboat for damages resulting from the temporary loss of the use of the same bridge. Louisville & Nashville Railroad Co. v. Arrow Transportation Company, N.D.Ala.1959, 170 F.Supp. 597. ¹ The district court dismissed the complaint on the authority of Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290. The plaintiff in Robins was a time-charterer of a steamship which had been negligently damaged by a dry dock. The plaintiff sued the owner of the dry dock for damages suffered as a result of the steamship's unavailability on the charter date. In an opinion by Justice Holmes, the Court held that a time-charterer, who is without any property interest in the vessel, cannot recover economic losses sustained as a result of the unintended injury inflicted upon the vessel. "The damage (to the vessel) was material to the (time-charterer) only as it caused the delay in making the repairs, and that delay would be a wrong to no one except for the petitioner's contract with the owners. . . . Their loss arose only through their contract with the owners and . . . as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. . . . The law does not extend its protection so far." 275 U.S. at 308-09, 48 S.Ct. at 135.

Scrutinizing the agreement between Louisville & Nashville and Southern Railway, the Arrow court held that the plaintiff was in the same position as the time-charterer in Robins. The district court relied on the Alabama Supreme Court's construction of the 1889 predecessor agreement to the 1907 agreement between the two railroads in a suit brought by Louisville & Nashville to reduce its rent base after Southern abandoned several tracks. Southern Railway Co. v. Louisville & Nashville Railroad Co., Ala.Sup.Ct.1941, 241 Ala. 691, 4 So.2d 400. In a key paragraph, the Alabama court expressed its view of the agreement:

The Contract is sui generis. It conferred on the appellee and its predecessor, the right of joint user with the owner, in consideration of payment of rent, and an agreement to contribute, on a basis of wheelage, to the upkeep and maintenance of the line and its facilities. While the right it confers may not be, strictly speaking, an easement, it is a right of user in the nature of an easement, and the agreed rent and the obligation to contribute to upkeep is based on the right of user. (Emphasis added).

4 So.2d at 405-406. A right of joint user in the nature of an easement, the Arrow court concluded, is not a possessory interest. Like time charters, trackage agreements conferring a right of joint user to a railroad to operate its trains over the facilities of another railroad had been construed, in other contexts, as creating a personal obligation, not an estate in the property of the owner. Union Pacific Ry. Co. v. Chicago, Rock Island and Pacific Ry. Co., 1895, 163 U.S. 564, 582-583, 16 S.Ct. 1173, 41 L.Ed. 265; Thompson v. Texas Mexican R. Co., 1945, 328 U.S. 134, 140, 66 S.Ct. 937, 90 L.Ed. 1132. Because the plaintiff's loss from the damage to the bridge arose only through its contract with the owner to use the bridge, the Arrow court found that the plaintiff was barred from recovering damages under Robins.

II.

The railroad's basic argument is that, in spite of Robins, Southern, and Arrow Louisville & Nashville can recover its losses because its right to use the bridge is, indeed, a "property" interest. The plaintiff takes the position (a) that the rule of Robins is irrelevant in suits brought under the Admiralty Extension Act, 46 U.S.C. § 740, which, according to the plaintiff, permits recovery of damages for all injuries to property; and (b) that the agreement between the two railroads, Louisville & Nashville and Southern, grants the plaintiff either an easement in the bridge or "a right of user in the nature of an easement", an interest sufficient to constitute a property right under Alabama law and, therefore, a basis for recovery under the Admiralty Extension Act.

Neither the Supreme Court's decision in Robins nor the Alabama Supreme Court's decision in Southern can be brushed off so lightly.

The Admiralty Extension Act, the asserted source of the plaintiff's right of recovery, provides in part:

The admiralty and maritime jurisdiction of the United States shall extend to and include All cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. (Emphasis added).

46 U.S.C. § 740 (1975). The Act, however, does not create new causes of action; it merely expands the locality rule of admiralty jurisdiction to encompass "ship-to-shore" torts. See Gebhard v. S.S. Hawaiian Legislator, 9 Cir. 1970, 425 F.2d 1303; Gilmore & Black, The Law of Admiralty, § 7-17 (2d ed. 1975). As a result of the Act, a plaintiff is no longer precluded from suing in admiralty when a vessel collides with a land structure, such as a bridge. The question before us now is not one of jurisdiction but of the plaintiff's right to recover losses for the kind of harm it has sustained.

That question is governed by Robins. Whatever the wisdom of the traditional rule of nonliability for negligent acts causing economic loss, Robins reflects the state of the law in this circuit. ² We have denied recovery to a plaintiff whose gas supply was cut off when a barge injured a gas pipeline owned by a third party who had contracted to supply the gas to the plaintiff. Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5 Cir. 1972, 455 F.2d 957. More recently, we refused to permit a plaintiff to recover pecuniary losses for the damage caused by a vessel to a lock owned by another. Dick Meyers Towing Service, Inc. v. United States, 5 Cir. 1978, 577 F.2d 1023. In that case, we explained that "the basis for denial of recovery in the cases following Robins (is the law's traditional reluctance) to recognize claims based solely on harm to the interest in contractual relations or business expectancy". 577 F.2d at 1025.

Nevertheless, because the critical factor in applying Robins is "the character of the interest harmed", Dick Meyers, supra, 577 F.2d at 1025, we must address the plaintiff's contention that the loss of the use of the bridge was a deprivation of tangible property rather than a deprivation of a contract right. The plaintiff insists, first, that Southern gave it an easement in the bridge, pointing out that the agreement contains language of grant and of inheritance and that the agreement technically suffices as a conveyance of an interest in real property.

Alabama courts consistently hold that an easement can be created in only three ways: by deed; by prescription; or by adverse use for the statutory period. Camp v. Milam, Ala.Sup.Ct.1973, 291 Ala. 12, 277 So.2d 95. We find that the agreement between the two railroads was not a deed. There is no language purporting to convey an interest in real property, the appellant pays a quarterly rental, and the right to use the bridge is terminable, after the expiration of an initial term, at the will of both parties upon notice. The bridge is used jointly and while Alabama courts have ruled that an easement need not be exclusive, a persuasive factor that two parties share an easement is the joint obligation of the easement holders to contribute to its upkeep. Duke v. Pine Crest Homes, Inc., Ala.Sup.Ct.1978, 358 So.2d 148. Under the agreement with Southern, Louisville & Nashville has no obligation to repair the bridge; it merely contributes to the upkeep of the tracks on the bridge computed on the basis of "wheelage", the number of its trains that pass over the tracks.

We are convinced, moreover, that the Alabama Supreme Court's opinion fully disposes of the plaintiff's contention that it has an easement in the bridge. The Alabama Court treated the agreement as a contract and not as a conveyance of real property. The Court specifically noted that the right...