Melbourne Bros. Const. Co. v. Gnots-Reserve

• Decision Date: 11 December 1984
• Docket Number: GNOTS-RESERV,No. 83-CA-816,INC,83-CA-816
• Parties: MELBOURNE BROTHERS CONSTRUCTION COMPANY v.and Mid-Stream Transfer, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 1145

461 So.2d 1145

MELBOURNE BROTHERS CONSTRUCTION COMPANY v. GNOTS-RESERVE, INC. and Mid-Stream Transfer, Inc.

No. 83-CA-816.

Court of Appeal of Louisiana Fifth Circuit.

Dec. 11, 1984.

Darryl J. Foster, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for plaintiff-appellant.

John Poitevent, Poitevent & Acomb, Stanley McDermott, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.

Before KLIEBERT, GAUDIN, and MARCEL, JJ.

CLEVELAND J. MARCEL, SR., Judge Pro Tem.

This appeal by plaintiff, Melbourne Brothers Construction Company (Melbourne), results from a judgment dismissing plaintiff's suit for property damages filed against defendants, Gnots-Reserve, Inc. (Gnots-Reserve) and Mid-Stream Transfer, Inc. (Mid-Stream).

Plaintiff, Melbourne, a subcontractor to Williams Brothers Construction Company, was hired to erect the structural steel above the piers and related cable work on the Luling-Destrehan bridge project in St. Charles Parish. In order to accomplish this task, Melbourne had to have scaffolding under the bridge at certain periods during the project.

Defendant Mid-Stream was the owner of the barge Gemini, a floating grain elevator lacking independent power. On two separate occasions, April 2, 1982 and April 12, 1982, while the bridge was under construction, plaintiff alleges that the superstructure of the Gemini contacted and damaged their scaffolding attached to the underside of the Luling-Destrehan bridge. On each occasion, the Gemini was in tow of three tugboats owned and/or operated by defendant Gnots-Reserve.

Plaintiff instituted the action in state court on December 21, 1982, under the savings to suitor's clause, 28 U.S.C. Sec. 1333. Following trial on the merits, on September 27, 1983, the court rendered judgment in defendants' favor, dismissing plaintiff's suit. Plaintiff thereupon perfected an appeal of that judgment alleging as error:

that (1) the trial court erred in holding plaintiff failed to provide appropriate notices concerning its scaffolding; that

(2) the trial court erred in admitting hearsay evidence concerning guaranteed clearances; that

(3) the trial court erred, under applicable admiralty principles, in failing to find defendants negligent in the operation of the tow which negligence was the cause of plaintiff's damage; and that

(4) the trial court erred in barring all recovery by plaintiff by failing to invoke admiralty law's comparative negligence doctrine.

At the outset, it should be noted that this case involves two separate incidents in which the M/V Gemini struck and damaged plaintiff's property. The trial court found that plaintiff was not entitled to relief because plaintiff failed to warn those traversing the river of the placement of the scaffolding which was necessitated by the ongoing construction of the bridge. The placement of scaffolding, in turn, reduced the clearance under the bridge in those specific areas. The trial court found, in addition, that the second accident on April 12, 1982 was plaintiff's fault in that a safety net connected to the scaffold was improperly loaded with equipment and material, causing it to sag several feet below the scaffold which reduced the clearance even further.

In regard to the notice question, appellant concedes that there is a duty upon those who obstruct navigable waterways to warn the users of the activity. Appellant asserts, however, that they provided the necessary information to the Coast Guard who apparently failed to include the information in the local Notice to Mariners, a publication relied upon by users of the river to indicate obstructions and other information pertinent to the operation of vessels on navigable waterways. That failure, appellant claims, cannot be attributed to them as they did all that was required. Further, appellant asserts that even if the notice was inadequate, the lack of notice was not a contributing cause of the accidents.

The evidence presented by appellant consisted solely of the testimony by Mr. T.L. Woodard, Erection Manager for Melbourne, whose responsibility extended to all steel erection work done by the company, including the Luling-Destrehan bridge. His office and base of operations was in Ohio, but he travelled to this area two or three times a month to check on the progress of the job. He testified the Luling-Destrehan job required Melbourne to erect all the structural steel above the piers and the cables to complete the Luling-Destrehan bridge. He was not present at the scene of either accident, but received reports from the Luling office of the collisions, and subsequently received reports of the repair costs, etc. He did not supervise nor did he actually see the damages claimed to the structure on either occasion. He did testify that six diagrams of the construction phases were sent to the Coast Guard indicating two locations of the bolt scaffolding, which were to be attached to the underside of the bridge spans located on either side of the river as the construction of the spans progressed toward the middle of the river. Clearances on the diagrams were clearly marked including the area beneath the location of the scaffolding. He admitted, however, that he was not the actual person responsible for either the preparation of the diagrams or for sending those documents to the Coast Guard; but that it was the responsibility of the engineer, Mr. Gordon Tumbleson. Mr. Tumbleson, at time of trial, was deceased. Mr. Woodard further testified that he did not personally speak with anyone from either defendant's offices regarding the clearances. The superintendent in charge of the site, at time of trial, was no longer employed by Melbourne, and was not brought as a witness nor were any other witnesses presented by appellant.

Appellees, on the other hand, presented testimony indicating that the river pilots relied upon the Notice to Mariners publication to inform them of necessary information regarding vessel operations on the river. The documents introduced were from February to September, 1982. While several mention the Luling-Destrehan bridge construction, no warning notice of the scaffolding creating an obstruction and reducing clearance appears until the September issue. In February, however, prior to the accidents, a warning was issued related to the falling of a bolt scaffolding into the river and was subsequently noted again after salvage operations failed to retrieve the entire structure. Appellee's witnesses also testified that prior to both accidents, they telephoned Melbourne's office and received a clearance report from a Mr. Hanson with no mention of the scaffolds or their placement. In appellant's second assignment of error, he complains that the testimony regarding Mr. Hanson is inadmissible as hearsay. Mr. Hanson, according to appellant, was the state representative on the job and not an employee.

As to the hearsay objection, we do not agree with appellant's contention as a review of the testimony reveals that the testimony presented by Mr. Dan Wise, Vice-President of Gnots-Reserve, was not elicited for the truth of the matter asserted, i.e., the actual clearance, but for the proposition that appellee acted reasonably in attempting to discover from Melbourne whether the Gemini could move under the bridge without difficulty on both occasions.

Based on the foregoing evidence, we find that the trial judge was not clearly wrong in determining that appellant failed to provide adequate notice. In the absence of such, this court is precluded from disturbing those findings under both the state and federal jurisprudence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A.; George W. Bennett Bryson & Company, Ltd. v. Norton Lilly & Company, Inc., 502 F.2d 1045, 1975 AMC 1732 (5th Cir.1974). However, that finding does not automatically preclude appellant's recovery under applicable admiralty principles.

Appellant, in its third and fourth specifications of error, complains that the trial judge erred in failing to find defendant solely at fault or mutually at fault in applying the comparative negligence doctrine applicable in admiralty actions.

In this regard, appellant argues the well established admiralty rule that there is a presumption of fault or negligence on the part of a moving vessel which strikes a fixed object. As stated in Brown & Root Marine Operators, Inc. v. Zapata Off-shore Company, 377 F.2d 724 (5th Cir.1967):

"When a moving vessel collides with an anchored vessel or a fixed object, there is a presumption the moving vessel is at fault. (Citations omitted). The presumption suffices to make a prima facie case of negligence against the moving vessel."

However, a tow lacking independent motive power which is under the sole control and management of a towing vessel is not responsible for damages occasioned by the navigation of the towing vessel. Sturgis v. Boyer, 24 How. (65 U.S.) 110, 16 L.Ed. 591 (1861), Walker v. Tug Diane, 350 F.Supp. 1388, 1389 (D.V.I.1972).

In a flotilla arrangement (tug and tow) in which the tug is in sole control, the tug is presumably at fault in a collision with a stationary object. Ryan Walsh Stevedoring Company, Inc. v. James Marine Service, Inc. et al, 557 F.Supp. 457 (E.D.La.1983); Bunge Corporation v. M/V Furness Bridge, 558 F.2d 790 (5th Cir.1977). As stated in Gilmore and Black, The Law of...