Monsanto Chemical Co. v. NO. 3 BULL TOWING COMPANY

• Decision Date: 18 December 1963
• Docket Number: No. 15057,15058.,15057
• Citation: 326 F.2d 18
• Parties: MONSANTO CHEMICAL COMPANY, Libelant-Appellee, v. NO. 3 BULL TOWING COMPANY, THE BULL DURHAM, and BARGE NBC 965, Respondents-Appellants. MONSANTO CHEMICAL COMPANY, Libelant-Cross-Appellant, v. NO. 3 BULL TOWING COMPANY, The Bull Durham, and Barge NBC 965, Respondents-Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

326 F.2d 18 (1963)

MONSANTO CHEMICAL COMPANY, Libelant-Appellee, v. NO. 3 BULL TOWING COMPANY, THE BULL DURHAM, and BARGE NBC 965, Respondents-Appellants.

MONSANTO CHEMICAL COMPANY, Libelant-Cross-Appellant, v. NO. 3 BULL TOWING COMPANY, The Bull Durham, and Barge NBC 965, Respondents-Cross-Appellees.

Nos. 15057, 15058.

United States Court of Appeals Sixth Circuit.

December 18, 1963.

Charles Kohlmeyer, Jr., New Orleans, La., and John B. Mack, Memphis, Tenn., Clarence Clifton, Memphis, Tenn., on the brief; Clifton, Mack & Kirkpatrick, Memphis, Tenn., Lemle & Kelleher, New Orleans, La., of counsel for Monsanto Chemical Co.

W. Emmett Marston, Memphis, Tenn., Martin, Tate & Morrow, Memphis, Tenn., of counsel for No. 3 Bull Towing Co., and others.

Before WEICK and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal in an admiralty case in which the Monsanto Chemical Company,¹ hereinafter called plaintiff, sought damages from No. 3 Bull Towing Company, the Bull Durham, and Barge NBC 965, hereinafter called the defendants. The District Court found that the barge was unseaworthy because of a faulty valve, and that plaintiff's damages were directly and proximately caused by such unseaworthy condition.

The damages resulted from the contamination of ethyl gasoline by kerosene during the unloading of Barge NBC 965, at Memphis, Tennessee, on April 26, 1957. The barge in question has a ten-inch pipe, or header line, running longitudinally along its bottom, and is connected with each of ten large cargo tanks, or compartments. At the bottom of each of the tanks, there is a valve, with the stem of such valve running through the top of the tank and adjacent deck, above which there is a wheel that controls the opening and closing of the valve. When the valve of a tank is open, the petroleum product in the tank runs into the ten-inch pipe, or header line. To discharge the cargo, this header line is connected to a hose from the shore or dock, and the oil or gasoline, or other petroleum product, is pumped through the hose to tank cars, or storage tanks, or pipelines, on shore. In this case, while the valves on tanks 1 and 2, port and starboard, were open, and the ethyl gasoline from those tanks was running into the header line and being discharged through the hose to storage facilities on shore, it was discovered that the valve of No. 5 starboard tank, containing kerosene, was open, and that kerosene was leaking into the header line and contaminating the ethyl gasoline as it was being discharged to the shore.

The way in which it was first discovered that the kerosene was contaminating the ethyl gasoline was when Wiley Warren, a member of the crew of the Bull Durham tow, in charge of the pumping engine, noticed that, a couple of hours after the gasoline commenced to be discharged, the barge was listing. He told the dock man and shut off the pump under orders from plaintiff's representatives. They then looked into the No. 5 starboard tank of kerosene and found that the kerosene was down some three feet, which represented a discharge of approximately 14,000 gallons of kerosene which had been pumped out along with approximately 125,000 gallons of ethyl gasoline. It was then discovered that the valve of the No. 5 starboard kerosene tank was open — or not completely closed. One of the members of plaintiff's crew and one of the members of defendants' crew then prepared to close the No. 5 starboard valve by using a steel bar inserted in the wheel, but Captain Bull of the tug ordered them not to use the bar for fear of breaking the stem of the valve. At that time the regular mate of the tug, Marion Warren, came aboard, asked what was wrong, and succeeded in completely closing the valve.

The testimony is somewhat confusing as to the checking of the valves of the various tanks or compartments, before the unloading operations commenced. Edgar Miles, the superintendent of plaintiff's Memphis terminal, testified that before the unloading operation, he went aboard the barge to ascertain, among other matters, that all the valves were in a closed position; that, in doing so, he was working in cooperation with Wiley Warren, a member of the crew of defendant Bull Durham's tow; that Miles started at the port side, and Wiley Warren at the starboard side; that they proceeded walking side by side down the barge toward the stern; that when they came to the No. 5 compartments, in which the kerosene was being carried, they found that both port and starboard valves were open; that Miles closed the No. 5 port valve, and Wiley Warren went through the motion of closing the starboard valve, and appeared to close it at that time. After all the valves were apparently closed, Robert Wages, plaintiff's senior terminal operator, came along behind Wiley Warren and checked all the valves by putting some pressure on the wheels in the closing position. He testified that the valves "seemed to seat properly" and appeared to be tight. The No. 5 starboard valve, as far as he could determine, was working properly and appeared to be closed, with the normal pressure he put on it. Captain Cobb, of the tow boat, testified that he checked the valves with Mr. Miles at the latter's request. He checked the No. 5 starboard valve without using any extra force, "Normally, like I normally close the valve, like it should be closed." He testified that he thought what he did was sufficient, but that it turned out that apparently it was not sufficient to close the valve.

When it was discovered that the kerosene was getting low in the No. 5 starboard tank, and was leaking into the header line, contaminating the ethyl gasoline that was being discharged, Marion Warren, the mate of the tow boat, as has been said, happened to come aboard the barge. When he was told about the situation, he proceeded to force the No. 5 starboard valve completely closed by throwing all his strength into turning the wheel to the closed position. He testified:

"Q. Did you use any instrument or bar or anything to assist you? A. No, just my hands, with quite a bit of force, in fact, all I was able to do.

"Q. By jerking? A. Yes, sir, by jerking I did turn it down some. * * * I would say between a quarter and a half a turn."

Afterward, and subsequent to a return trip to Helena, Arkansas, the barge was loaded with petroleum products which it then carried to Chicago. Both the loading at Helena and the unloading at Chicago were uneventful, and no difficulty was found with the valve in question. Upon completion of the Chicago trip, the barge was taken to defendants' dock at its headquarters in Joliet, Illinois. Following its arrival there the port engineer made an inspection of the No. 5 starboard valve of said barge. In doing this, the valve and valve stem were removed, and there was revealed therein a cotton cord of the type used by petroleum inspectors. The cord was tied to the neck of a broken sample bottle and a metal nut. The cord, which was approximately fifteen feet long, had become entwined around and in the threads of the valve. It was an internal type valve, and the cord could not be seen by visual inspection either from the hatch on the deck or by examination from within the compartment. It was removed from the valve threads and the valve was replaced without any repairs being required. Prior to removal of the cord, it could not be determined by turning the valve wheel whether there was a cord therein.

The Trial Court found that due to the malfunctioning of the valve, brought about by the cord being entwined around and in the threads of the valve, the barge was unseaworthy, and that its unseaworthy condition was the direct and proximate cause of the damages resulting to plaintiff company from the contamination of the kerosene with the ethyl gasoline.

It is clear that the valve with the cotton cord in its threads did not operate properly. That is seen from the fact that it was leaking kerosene into the other petroleum products until Marion Warren, the mate of the tug, came aboard and succeeded in forcing it closed by jerking the valve wheel with all the force of which he was capable. The valve did not properly seat with the ordinary force with which valves are closed. The barge was unseaworthy. With the cord intertwined in the threads of the valve, so that it would leak kerosene while the gasoline from other compartments was being pumped out through the shore hose, the barge was not reasonably fit for its intended use. The duty to furnish a seaworthy vessel is absolute. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941.

After the gasoline and kerosene were contaminated, plaintiff company sold the contaminated product at the best possible price to the Triangle Refineries at Houston, Texas, at a loss, and this loss with expenses of transportation to Memphis, and from Memphis to Houston, constitute the damages which plaintiff seeks to recover.

A difficult problem in the case arises out of the proof of damages.

No question is raised but what the measure of damages is the difference between the wholesale market of the uncontaminated gasoline and kerosene, and the highest price that could be, and was, received by plaintiff, when it sold the contaminated products at the best available market value. Counsel for defendants, in a colloquy stated: "I understand the market value is the rule, certainly. I am trying to find out whether or not this is the market value."

There are three conclusions drawn by one or the other party as to the damages in this case, or by the Trial Court in its findings:

(1) That the market value of the ethyl gasoline, which was contaminated, was never legally proved by the Monsanto Chemical Company. This was the contention of defendants.

(2) That the market value of the ethyl gasoline, if it had not been contaminated when sold at Houston, would be 15.929 cents per gallon. This was the

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