Mississippi Valley Barge Line Co. v. TL James & Co.

• Decision Date: 25 June 1957
• Docket Number: No. 16469,16470.,16469
• Citation: 244 F.2d 263
• Parties: MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. T. L. JAMES & CO., Inc., et al., Appellees. MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. T. L. JAMES & CO., Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

244 F.2d 263 (1957)

MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. T. L. JAMES & CO., Inc., et al., Appellees.

MISSISSIPPI VALLEY BARGE LINE COMPANY, Appellant, v. T. L. JAMES & CO., Inc., et al., Appellees.

Nos. 16469, 16470.

United States Court of Appeals Fifth Circuit.

May 3, 1957.

Rehearing Denied June 25, 1957.

Selim B. Lemle, New Orleans, La., Lemle & Kelleher, New Orleans, La., of counsel, for appellant.

Charles E. Dunbar, III, John W. Sims, New Orleans, La., Jas. Hy. Bruns, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

These two appeals from judgments in related actions, arising out of the sinking of the LaBelle and consolidated for trial, present for our decision two primary questions: one, whether the district judge correctly held¹ that the sinking was due to the negligence and fault of the appellant; the other, if so, whether the appellant was entitled to invoke the exoneration afforded by Section 3 of the Harter Act and the defensive clauses of the bill of lading.

The answer to the first question depends merely upon an appraisement of the facts in evidence. The answer to the second question depends upon whether the transportation involved was carriage or towage, and whether if it was carriage, Valley was entitled under the circumstances to invoke Section 3 of the Harter Act. The overall answers to both questions depend upon whether the district judge was correct in his determination of fact and of law as to Valley's liability in connection with the sinking of the barge.

This is the origin of the two actions. In December of 1954, T. L. James & Co., Inc., hereafter called "James", engaged in the general contracting and construction business with offices at Houston, Texas, and Kenner, Louisiana, and Mississippi Valley Barge Line Co., hereafter called "Valley", a common carrier by water, which holds an Interstate Commerce Commission certificate,² entered into an agreement that Valley would transport the Barge LaBelle, supplied and loaded by James with a bulldozer and other miscellaneous contractors' equipment, from New Orleans, La. to Cheatham Dam, Tennessee, for an agreed upon charge, and would return the barge to New Orleans empty without charge. En route the barge careened and dumped its load and then sank in the Mississippi River, thereby precipitating this litigation.

It was initiated by a suit at law filed by Valley against James for the freight money and the Federal transportation tax due thereon for transporting the cargo of contractor's equipment pursuant to a provision in Valley's tariff on file with the Interstate Commerce Commission for the collection and payment of the transportation charges, notwithstanding the fact that the cargo was lost en route.

Subsequently James, as bareboat charterer of the Barge LaBelle, sued in admiralty for its damages allegedly incurred because of the sinking of the barge, and James, together with Brown & Root, Inc., doing business under the name of Louisiana Bridge Company, (hereinafter called "Shippers"), alleging that they were the owners of the contractors' equipment laden on the Barge LaBelle, joined in this admiralty action claiming the damages allegedly sustained by them as such cargo owners resulting from the sinking of the barge. Valley filed a 56th Rule Petition against James alleging that James had warranted that the Barge LaBelle was seaworthy and the cargo properly stowed thereon and demanded that in the event Valley be held liable for loss of or damage to the Barge LaBelle or its cargo, due to unseaworthiness of the barge or improper storage of cargo thereon, Valley be awarded a decree for a similar amount over against James.

In the suit by James and Shippers against Valley for their damages, the District Court entered an interlocutory decree holding that the transportation of the contractors' equipment on the Barge LaBelle constituted towage, and not carriage, and that Valley was liable for damages for negligent towage. The district judge dismissed Valley's 56th Rule Petition against James for alleged breach of warranty of the seaworthiness of the Barge LaBelle and the propriety of the stowage of the cargo thereon. In the suit by Valley against James for its freight money, the district judge held that the question had become moot by reason of his holding that Valley was at fault for negligent towage, since permitting it to recover its freight charges and the transportation tax thereon would simply increase the Shippers' damages. Accordingly, he dismissed Valley's suit against James.

Appealing from these decrees in Docket Nos. 16469 and 16470 of this court, Valley is here thus presenting, under six specifications of error³ the two prime questions with their corollaries:

"The principal question presented is whether contract for the transportation by Valley of the contractors\' equipment laden by the Shippers on board its barge LaBelle was carriage or towage. While corollaries to this principal question are:

"(1) If the movement was carriage and the defense of the exoneration of the carrier afforded by Section 3 of the Harter Act is available, then was there any failure in care and custody of cargo which would render the carrier liable for damage thereto?

"(2) If the transportation of the contractors\' equipment constituted towage, was there any negligence on the part of the tower which renders it liable for damage to cargo?

"The second question involved, which necessarily arises if your Honors determine that the transportation of the cargo was carriage, is the status of the movement of the Barge LaBelle. Was it carriage or towage, and what is Valley\'s liability, if any, for the sinking of the barge?"

In support of its contention that the transportation of LaBelle with its cargo in tow of a tug is carriage and not towage, appellant plants itself firmly on Sacramento Navigation Co. v. Salz, 273 U.S. 326, 47 S.Ct. 368, 369, 71 L.Ed. 663, a case where, unlike here, the carrier was the owner and operator of both barge and tug. There the Supreme Court, reversing the opinion of the Ninth Circuit, 3 F.2d 759, and saying: "Towage service is the employment of one vessel to expedite the voyage of another", went on to say: "Here, while there was towage service, the contract actually made with respondent was not to tow a vessel, but to transport goods, and plainly that contract was the contract of affreightment."

Based on this decision and arguing that the line of demarcation between carriage and towage is definite and unmistakable, appellant urges upon us that, in disregarding the Sacramento case as controlling and supporting his opinion by citing Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978, the district judge erroneously rejected an opinion which is controlling on its facts and law, on the basis of an opinion which is without pertinence to the question dealt with here, whether the contract was one of towage or one of carriage.

Realizing the pinch of the argument that in the Sacramento case both barge and tug were owned by the carrier, whereas in this case the towed vessel was not owned by it, appellant seeks to avoid the force of the argument based upon this fact by pointing out that in performing inland water carriage of cargo, a shipper may supply an instrumentality used in the carriage, and, of course, a barge is such an instrumentality, and cites and relies on In re O'Donnell, 2 Cir., 26 F.2d 334 where the court applied the doctrine of the Sacramento case to a case in which, while there was no common ownership of the tug and barge, the tug owner and the barge owner were sharing expenses and profits, and, if not actually partners, were participating in a joint venture.

On the question whether there was negligence in the handling of the barge, as the district court held, appellant argues vigorously and long that there was no negligence, and that irrespective of the terms of Valley's tariff, Valley is not liable.

Recognizing that both carriers and towers which tow interstate are subject to regulation under Part III of the Interstate Commerce Act, 49 U.S.C.A. § 901 et seq., Cornell Steamboat Co. v. United States, supra, and that all common carriers, whether engaged in the carriage of cargoes, are required to file with the commission their tariffs and to include therein any rules or regulations which in anywise...