Nunley v. M/V Dauntless Colocotronis

• Decision Date: 19 March 1984
• Docket Number: No. 81-3366,81-3366
• Citation: 727 F.2d 455,1984 A.M.C. 2920
• Parties: Walter Douglas NUNLEY, Plaintiff, v. M/V DAUNTLESS COLOCOTRONIS, et al., Defendants, UNITED STATES of America and Combi Lines, Defendants-Appellants, v. POINT LANDING, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 455

727 F.2d 455

1984 A.M.C. 2920

Walter Douglas NUNLEY, Plaintiff, v. M/V DAUNTLESS COLOCOTRONIS, et al., Defendants, UNITED STATES of America and Combi Lines, Defendants-Appellants, v. POINT LANDING, INC., et al., Defendants-Appellees.

No. 81-3366.

United States Court of Appeals Fifth Circuit.

March 19, 1984.

Debra J. Kossow, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for U.S.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Fred E. Salley, Estelle E. Mahoney, New Orleans, La., for Combi Lines.

G. Hamp Uzzelle, III, Alex Lankford, III, Mobile, Ala., for Dravo Melching Inc.

Reuter & Reuter, Normand F. Pizza, New Orleans, La., for Zito Fleeting, Inc.

J. Walter Ward, Jr., New Orleans, La., for Zito Fleeting, Zito Towing and Highlands Ins. Co.

John B. Gooch, Jr., New Orleans, La., for Point Landing.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, and BROWN, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges ^*.

E. GRADY JOLLY, Circuit Judge:

This appeal comes to us from a judgment on the pleadings in favor of appellees who were defendants and third-party defendants in six consolidated admiralty cases intertwined in a 1977 collision of the M/V DAUNTLESS COLOCOTRONIS (DAUNTLESS) with a sunken wreck. The appellees are alleged to have caused the sinking three years before the DAUNTLESS collided with the wreck, unmarked by its owner or the United States, each of whom is alleged to have been responsible for marking or removing the wreck under the Wreck Act. ¹ The ruling appealed from is the district court's holding that "the Wreck Act makes the only proximate cause of a collision between a wreck and another vessel, the failure to mark and/or remove the wreck." Nunley v. M/V Dauntless Colocotronis, 513 F.Supp. 720, 726 (E.D.La.1981). A divided panel of this court vacated the judgment and remanded. 696 F.2d 1141 (5th Cir.1983). Finding that the district court has made an erroneous interpretation of law, the court en banc vacates the district court's judgment and remands.

I.

The facts underlying this litigation are adequately set forth in the district court's opinion. See Nunley, 513 F.Supp. at 721-22. Assuming that the allegations of the complaint can be proved, as the motion for judgment on the pleadings requires, a Combi Lines barge (the COMBI) was sunk in 1974, through the negligence of the appellees (the upriver defendants). ² Three years later, the unmarked wreck was struck by the DAUNTLESS. The owners of the COMBI allege in turn that they were not negligent in failing to mark the wreck. Multiplicitous litigation followed each event. The litigation arising from the original 1974 sinking was settled in October 1979 without any finding or admission of guilt on the part of any of the parties.

The 1977 collision spawned the six consolidated cases which were before the district court. The parties to the consolidated actions included the DAUNTLESS's captain, Nunley; Tenneco, the owner of the DAUNTLESS's cargo; the DAUNTLESS's owners; the United States; the COMBI's owners; and the alleged sinkers of the COMBI, the upriver defendants. The upriver defendants filed a motion for judgment on the pleadings, claiming that, even if they had caused the original sinking of the COMBI, under no set of facts could they be liable to any of the claimants, cross-claimants, or third-party claimants for damages resulting from the collision of the DAUNTLESS with the sunken wreck. The basis for this argument is that the Wreck Act obligates the owner of a sunken vessel and, in some circumstances the United States, to mark or remove the wreck, and, since the upriver defendants (the actual sinkers of the vessel) have no similar obligation, they have no liability arising out of the DAUNTLESS's allegedly striking the COMBI. While the owners of the COMBI plead that they were not negligent, and therefore are not liable, they tender to the DAUNTLESS as defendants under Fed.R.Civ.P. 14(c) the upriver defendants. They also assert that, if they are found at fault and hence liable to the DAUNTLESS, they are entitled to indemnity or contribution from the upriver defendants.

Section 15 of the Rivers and Harbors Act, also known as the Wreck Act, provides in pertinent part:

It shall not be lawful ... to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels.... And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411 to 416, 418, and 502 of this title.

33 U.S.C. Sec. 409. The district court found that the Wreck Act made the failure to mark or remove the wreck the sole proximate cause of a subsequent collision with the sunken vessel as a matter of law and dismissed the claims against the upriver defendants. It is this holding which we consider en banc. If this is correct, then judgment was properly rendered in favor of the upriver defendants. If not, then we must consider the effect of the COMBI's alternative pleadings, that either (a) it was entirely free of fault and it tenders the upriver defendants to the DAUNTLESS, or (b) it may have been legally at fault as to the DAUNTLESS but entitled to indemnity from the upriver defendants; or (c) it may have been jointly at fault with the upriver defendants and entitled to contribution. We reverse the dismissal because: (1) if either the COMBI or the United States, or both, were entirely free of fault in failing to mark, the upriver defendants may be liable to the DAUNTLESS directly; (2) though the DAUNTLESS is entitled to recover from the COMBI or the United States if either was negligent, the party liable to the DAUNTLESS may be entitled to contribution from the upriver defendants.

II.

A.

The Wreck Act declares that it is illegal voluntarily or carelessly "to sink, or permit or cause to be sunk vessels or other craft in navigable channels...." 33 U.S.C. Sec. 409. The statute's prohibition and scope apply to both owners and non-owners of vessels who intentionally or negligently cause them to sink. University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438, 444 (5th Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1977). The statute further requires the owner of a sunken wreck, whether at fault or not in causing the sinking, immediately to mark the wreck and subsequently to commence the removal of the wreck, failure of which shall constitute an abandonment of the vessel, which shall then be subject to removal by the United States. However, the United States Supreme Court has held that the enactment was not intended to make the statutory remedies exclusive, and that under principles of tort liability the negligent non-owner is subject to liabilities and obligations not provided for by the statute, such as reimbursement for the costs of removing the wreck or the obligation, through injunctive relief, to remove the sunken vessel. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 200-05, 88 S.Ct. 379, 385-87, 19 L.Ed.2d 407 (1967).

This circuit has previously delineated the obligations and duties of the various parties to a sinking under the Wreck Act. We summarize those obligations and duties here.

The Wreck Act is not a liability without fault statute. It first imposes liability on a person whose fault causes a wreck. It next requires the owner of a sunken vessel, regardless of his fault or lack thereof in causing the sinking, immediately to mark the wreck. 33 U.S.C. Sec. 409. ³ In re Marine Leasing Services, Inc., 471 F.2d 255, 257 (5th Cir.1973).

Thus, when a danger to navigation is established in the form of a sunken vessel, the statute places a duty on an easily determinable figure, the owner of the wreck, to ensure that the danger of the obstruction is immediately lessened by its marking or removal. In this way, the wreck may be marked and removed quickly, thus reducing the chance that it will cause injury to others. We have judged performance of this duty in terms of negligence. For the duty to arise in the first instance, the owner must be notified of the sinking and be given a reasonable time in which to accomplish the marking. Berwind-White Coal Mining Co. v. Pitney, 187 F.2d 665, 668 (2d Cir.1951); Red Star Towing & Transportation Co. v. Woodburn, 18 F.2d 77, 78 (2d Cir.1927). Moreover, if the United States itself lights and marks the wreck, this relieves the owner's duty to mark. Humble Oil & Refining Co. v. Tug Crochet, 422 F.2d 602, 609 (5th Cir.1970). Finally, we have held that, if an owner diligently and in good faith searches for his sunken vessel but cannot find it, he has fulfilled his obligations to mark under the Wreck Act. Allied Chemical Corp. v. Hess Tankship Co., 661 F.2d 1044, 1061 (5th Cir.1981). Nevertheless, in keeping with the general principles of maritime tort that an innocent party should not be made to suffer while the party at fault escapes liability, Wyandotte, supra, 389 U.S. at 204, 88 S.Ct. at 387, the jurisprudence permits the party that incurs the marking and removal expenses to recover these from the party whose negligence caused the sinking.

A vessel owner who negligently causes the sinking of his vessel may not thereafter abandon his vessel...