MISSISSIPPI VALLEY BARGE L. CO. v. INLAND WATER. SHIP. ASS'N

• Decision Date: 22 May 1961
• Docket Number: No. 16587.,16587.
• Parties: MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. INLAND WATERWAYS SHIPPERS ASSOCIATION, INC., a Corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

289 F.2d 374 (1961)

MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. INLAND WATERWAYS SHIPPERS ASSOCIATION, INC., a Corporation, et al., Appellees.

No. 16587.

United States Court of Appeals Eighth Circuit.

April 26, 1961.

Rehearing Denied May 22, 1961.

Charles Kohlmeyer, Jr., New Orleans, La., for appellant. George B. Matthews and Lemle & Kelleher, New Orleans, La., and John O. Hichew and Thompson, Mitchell, Douglas & Neill, St. Louis, Mo., were with Charles Kohlmeyer, on the brief.

Wilder Lucas, St. Louis, Mo., for appellees. Jack R. Mandel, St. Louis, Mo., was with Wilder Lucas, on the brief.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This action for damage to goods shipped on two separate occasions was instituted in two counts in the Circuit Court of the City of St. Louis, Missouri, and because of diversity of citizenship and the amount involved, was removed by the defendant Mississippi Valley Barge Line Company, hereinafter referred to as "Valley" or "appellant", to the United States District Court, where, on trial by the court, a judgment was rendered in favor of plaintiffs on Count I in the amount of $3,386.31 and interest, and on Count II in the amount of $2,986.84 and interest. On this appeal we have for disposition the primary question of whether plaintiffs, under the relevant undisputed facts and under controlling legal principles, are barred from recovery.

Valley is a common carrier by water and operates barges in the transportation of property. Plaintiff L. B. Foster Company, hereinafter called "Foster", purchased 620 bundles of new, galvanized iron prime fence pipe and employed plaintiff Inland Waterways Shippers Association, Inc., hereinafter called "Inland" (Foster and Inland, sometimes referred to as "appellees") to arrange for the transportation of the pipe from the manufacturer's plant in Pennsylvania to Foster's plant in Texas, and Inland, in turn, made arrangements for river shipment with Valley.

This pipe, which is the subject of Count I, was transported by rail from Sharon to Pittsburgh, Pennsylvania. Valley maintained no loading facilities at Pittsburgh and the actual loading was done by Marion Coal and Transfer Company, whose loading terminal was opposite Valley's fleet at the river in Pittsburgh. When a shipper had no loading terminal at Pittsburgh, Valley would notify Marion, and Marion would contact the shipper and make proper arrangements to act as stevedores. The shipper paid Marion's charges. In July of 1954, this pipe was loaded in Barge CTC-412, an open hopper type, by Marion. Valley's general freight agent at Pittsburgh testified that the barge was properly loaded "or we wouldn't have taken it out." Valley made up a loading diagram showing the position of the pipe after it was loaded on the barge. The 620 bundles were designated as Item 7, and constituted only a part of the entire cargo. On July 14, 1954, while the barge was being loaded, Valley's Pittsburgh office received a telegram from Valley's Houston, Texas office, advising that the barge was to stop at Cincinnati for additional tonnage. No covering was placed over the cargo in the barge and it was exposed to the weather. However, it was customary to ship galvanized pipe uncovered as it is not susceptible to damage from exposure to the elements.

Barge 412 as loaded by Marion, was moved by Valley to Cincinnati, where it was placed at Valley's own terminal and on July 27, 1954, under the personal direction and supervision of Valley's terminal manager, 281,990 pounds of old, rusty, muddy, dirty pipe were loaded and stowed by Valley on Barge 412, and admittedly a portion thereof was placed above and on top of the new galvanized pipe. This scrap pipe had been purchased by Foster at Cincinnati and was to be delivered to Foster in Texas. Valley placed no covering over the new pipe prior to placing the old and rusty pipe on the barge. The barge with its entire cargo exposed to the elements was then transported to New Orleans, Louisiana, arriving there August 10, 1954. During this transportation, at least one heavy rain fell. Another carrier transported the new pipe from New Orleans to Houston Texas, where it was unloaded, placed on a Missouri-Pacific railroad car and moved about 16 miles to the Pasadena Fence Company of Pasadena, Texas, which had purchased it from Foster while the shipment was en route. While the pipe was being transferred from the railroad car to trucks for further delivery, it was discovered that the galvanized pipe was damaged by stain caused by rust drippings. Pasadena refused to accept the shipment in the damaged condition and Foster was required to and did expend $3,386.31 in re-galvanizing the pipe. In summary, the foregoing constitutes the factual basis for Count I.

Count II grows out of the transportation by Valley of 10,000 feet of new prime electric-weld steel pipe purchased by Foster from Youngstown Sheet and Tube Company of Ohio in 1955. Again Inland was employed to arrange for transportation from the manufacturer's plant to Foster in Houston, Texas, and Inland made all arrangements with Valley for river shipment. The pipe was loaded by Marion Coal and Transfer Company from railroad cars at Pittsburgh, Pennsylvania, into Valley's barges. Lot 9, consisting of 29 pieces of pipe, Lot 10-35 pieces, and Lot 11-29 pieces, the lots which turned out damaged, were, according to Valley's barge loading diagram, placed in Barge MV-618. This loading diagram shows no damage to any of the cargo at the time of the loading, except Lot 20, owned by other parties not involved in this action, which, according to the diagram, showed "bent tubing humped." Barge 618 was moved by Valley to Owensboro, Kentucky, where an additional 96,820 pounds of iron or steel billets were placed on board the barge, but the position of these iron or steel billets in the barge is not clear from the record. The loading diagram does reveal, however, that Lots 12 and 13, also the property of other parties, weighing a total of 204,090 pounds and including 22 bars weighing 4,209 pounds each, were placed immediately on top of Lots 9, 10 and 11, in Barge 618.

Barge 618 arrived at New Orleans, Louisiana and on June 9, 1955, it was transported from there to Houston, Texas, by another water carrier, where the cargo of pipe was placed on railroad cars and moved to Foster's plant. Upon arrival there, it was inspected and long dents were found in the walls of 43 pieces of pipe. The dented pipe was unusable and it was sold for scrap, resulting in a loss of $2,986.84, the amount of appellees' claim as incorporated in Count II of the complaint.

Three principal points are advanced in brief by appellant: Point I, "The Court erred in overruling defendant's motion for a judgment at the close of all the evidence"; Point II, "The exceptive clauses in the bill of lading validly exculpate Valley from liability herein"; Point III, "The Court erred in ruling that defendant had a common law and statutory duty to properly load, stow, and discharge the cargo."

Three contentions are made to support Point I: (a) that appellees failed to meet the burden of proving damage to the shipment on outturn; (b) appellees failed to prove the shipments were in good order and condition at the time they were received by Valley; (c) the carrier is not liable where improper loading of barge is done by the shipper under a "shippers load and count" bill of lading.

There is no question of appellees' burden of proof. Concededly, in order to present a prima facie case, appellees here were required to establish that the goods were handed over to Valley in good condition and outturned in a damaged condition. Valley's contentions of error in this regard turn simply on questions of fact. Under this circumstance, the findings of the trial court cannot be disturbed on appeal unless they are shown to be clearly erroneous. Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Cleo Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 417, 418, certiorari denied 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074; Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136, 137, 138. The record conclusively convinces that there was adequate factual support for the trial court's finding that both shipments were in good condition and order when received by Valley and that they were damaged as claimed on outturn.

The galvanized iron fence pipe, subject of Count I, was new and had been purchased from a reputable manufacturer; the damage resulted from rust drippings and rust stains — not from rusting of the pipe. The loading diagram prepared by Valley contained no notation that the pipe was damaged in any respect when received and placed on the barge. Scrap pipe was loaded on Barge 412 by Valley above and on top of the new galvanized pipe, which was not protected by covering or otherwise. Atmospheric conditions, such as dew, rain and fog, while the pipe was on the barge, were such as to cause rust to drip from the old pipe upon the galvanized pipe. An expert witness was of the opinion that the rust stains occurred while the pipe was in possession of Valley. Except while the galvanized pipe was on Valley's barge, it was not susceptible to rust stains as it was the only cargo on railroad cars.

The contention respecting the large steel pipe, subject of Count II, is equally untenable. The pipe was new when purchased. Valley made no record on the loading diagram that the pipe was dented or damaged as was done with respect to Lot 20 (not involved here). The testimony of Valley's own expert witness convincingly refutes any argument that the pipe was not received in good condition or that it was not damaged when outturned. Mr. Schiffman, Vice-President of St. Louis Terminal Distributing Company, an expert in matters of barge-loading, after examination of the diagram showing the manner of stowing the cargo in Barge 618, and being apprised of...