Nunley v. M/V DAUNTLESS COLOCOTRONIS
| Decision Date | 08 June 1987 |
| Docket Number | 78-0214,Civ. A. No. 77-3886,78-1040,78-2306 and 78-2548. |
| Citation | 661 F. Supp. 1096 |
| Parties | Walter Douglas NUNLEY, et al., v. M/V DAUNTLESS COLOCOTRONIS, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
COPYRIGHT MATERIAL OMITTED
W.E. Noel, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for Nunley.
John N. Cahppuis, Lafayette, La.
John E. Galloway, Galloway, Johnson, Tompkins & Burr, for Tenneco Oil.
Alfred M. Farrell, Hugh Straub, Terriberry, Carroll, Yancey & Farrell, New Orleans, La., for Sea Unity Shipping, S.A.
Brendon Connolly, Dennis Costigan, Mendes & Mount, New York City.
Christopher Kosciuk, Normann & Normann, New Orleans, La.
John B. Gooch, Jr., Montgomery, Barnett, Brown & Read, New Orleans, La., for Point Landing.
William M. Bass, Voorhies & Labbe, Lafayette, La.
Charles Hanemann, Henderson, Hanemann & Morris, Houma, La., for Tenneco Oil.
Alex F. Lankford, Hand, Arendall, Bedsole, Greaves & Johnson, Mobil, Ala., for Dravo Mechling, Inc.
Fred E. Salley, Jack R. Salley, Salley & Associates, New Orleans, La., for Combi Lines.
Debra J. Kossow, Richard Cole, U.S. Dept. of Justice, Admiralty & Shipping Section, Washington, D.C., for U.S.
Robert E. Winn, Sessions, Fishman, Resenson, Snellings & Boisfontaine, New Orleans, La.
Normand F. Pizza, Broadhurst, Brook, Mangham & Hardy, for Zito Fleeting.
J. Walter Ward, Christovich & Kearney, New Orleans, La., for Zito Fleeting, Zito Towing and Highland Ins.
Raymond J. Burke, Burke & Parsons, New York City.
René S. Paysse, Leach, Paysse & Baldwin, New Orleans, La.
FINDINGS AND CONCLUSIONS
This action began as five consolidated cases which originated when the M/V DAUNTLESS COLOCOTRONIS (the DAUNTLESS) allegedly struck the sunken Combi Line barge CBLL-01315 (the Combi barge) on July 22, 1977, resulting in constructive total loss of the former vessel. The Combi barge had been one of over one hundred and thirty vessels involved in what is locally known as The Great Barge Breakaway, a major breakaway of barges at locations along the east and west banks of the Mississippi River on January 16, 1974. Unlike the majority of barges involved in that incident, the Combi barge was not recovered; it had sunk at mile point 88.4 above the Head of Passes (AHP), approximately 200 feet off the left descending bank of the river.
The Great Barge Breakaway itself spawned litigation which was settled in October 1979, without any finding or admission of guilt on the part of any of the parties.
The present litigation originally involved a motley cast of characters. Captain Walter Nunley filed in rem claims for salvage against the DAUNTLESS and Tenneco Oil Company's cargo, which was on board. Combi Line, a joint service engaged in by Hapag-Lloyd, A.G. and Holland American Lines Freight B.V., now International Transport, B.V. (Combi), filed for limitation of or exoneration from liability. The owners and operators of the DAUNTLESS, Estrella Leal Navagacion, S.A., Sea Unity Shipping, S.A., and Assuranceforeninger Gard (the DAUNTLESS interests), and Tenneco filed a complaint against the United States and the "upriver defendants" — Point Landing, Inc., Zito Fleeting, Inc., Zito Towing, Inc., Federal Barge Lines, Inc., Lykes Bros Steamship Co., Dravo Mechling, Inc., and their respective insurers — alleging that the negligent sinking of the Combi barge by the upriver defendants and/or the failure to mark or remove the barge by the United States led to the destruction of the DAUNTLESS and loss of cargo. The DAUNTLESS interests and Tenneco also filed a claim against Combi Lines and its insurer, the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited (the U.K. Club), in the limitation action, alleging that Combi was responsible for the damage to the DAUNTLESS and its cargo due to its negligence in the sinking of the barge and its failure to mark and remove it. The DAUNTLESS interests also sued Tenneco Oil Company as wharfinger under the warranty of safe berth. The United States cross-claimed against Combi for pollution related expenses and for wreck marking and removal expenses. Both Combi Line and the United States brought claims against the upriver defendants for indemnity and/or contribution should judgment be entered against them in favor of the DAUNTLESS.
The upriver defendants then obtained a judgment on the pleadings on the ground that they were not liable for the damage to the DAUNTLESS occasioned by its striking the Combi barge, even if they were negligent in the barge's sinking, because Section 15 of the Rivers and Harbors Act, 33 U.S.C. § 409, places responsibility for marking and raising a sunken vessel on the owner of the vessel, or, when read with § 414, on the United States. Their negligence, if any, could not have been the proximate cause of the wreck, they maintained. See Nunley v. M/V DAUNTLESS COLOCOTRONIS, 513 F.Supp. 720, 726 (E.D.La.1981). The Fifth Circuit, sitting en banc, disagreed. It held that the responsibility of either Combi or the United States to mark and remove the vessel could not be regarded, per se, as a superseding cause exonerating the upriver defendants from liability for damages primarily resulting from their negligence. Finding that negligence of the upriver defendants in the 1974 breakaway could have contributed to the later accident, making them liable for their apportioned share of the loss, the Court of Appeals reversed and remanded. Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455, 467 (1984).
As trial of this matter approached, the DAUNTLESS interests and Tenneco Oil Company (as cargo plaintiff) entered into a settlement of the type affirmed in Leger v. Drilling Well Control, Inc., et al., 592 F.2d 1246 (5th Cir.1979) with the United States of America, Tenneco Oil Company (as defendants), and the upriver defendants and their insurers. This settlement resulted in dismissal of the claims by the DAUNTLESS interests and Tenneco against these defendants. The DAUNTLESS interests, Tenneco, the United States of America, and all upriver defendants brought motions to dismiss Combi Line's claims for indemnification and attorney's fees under Fed.R.Civ.P. Rule 12(b)(6). These motions were granted. The United States of America's pollution claim was subrogated to the DAUNTLESS interests. Tenneco as cargo plaintiff assigned its claim to Combi Line. Following this massive flight from the courtroom, the following claims remained to be adjudicated:
Jurisdiction lies with this Court under 28 U.S.C. § 1333 and Fed.R.Civ.P. 9(h).
A. The Loss of the CBLL-01315.
As Chaucer's friar observed, "This is a long preamble of a tale." The following facts were adduced from testimony and exhibits introduced at trial, and the depositions submitted.
The testimony of Donald Wood, vice president, in 1974, of Point Landing, Inc., a public fleeting business, and that of Charlton Nettles, Jr. of the U.S. Army Corps of Engineers, established that during the winter of 1973 and 1974, conditions on the Mississippi River were the most precarious that had ever existed. Because of large grain shipments, high water, a longshoremen's strike, and the inaccessibility of upstream ports because of heavy ice on the river, over 3,000 barges were fleeted in the Port of New Orleans. These unusual circumstances set the stage for the Great Barge Breakaway on the night of January 16, 1974. At that time, Combi Line had a fleeting and shifting agreement with Point Landing, Inc., for its LASH barge operations. The LASH fleet, along with a fleet of Lykes Seabee barges, was fleeted at a Point Landing facility on the west bank of the Mississippi River at mile point 101.1 AHP. According to the testimony of Anthony Valence, Jr., the Point Landing dispatcher at that time, the upstream fleet consisted of Lykes Seabee barges. Located immediately downstream was Combi Line's LASH fleet. Although Donald Wood testified that Point Landing had requested that Combi move its barge fleet out of the bend in the river, the evidence supports Combi's contention that Combi Line did not select the location of its fleeting facility. Instead, the facility was chosen by the Port of New Orleans Dock Board. The permit for the fleeting facility was issued to the New Orleans Dock Board, according to the testimony of Charlton Nettles, Jr. and Combi Line representative Bastiaan Boll. (See Estrella Exhibit 152). Moreover, according to Mr. Nettles, this fleeting facility had been approved by the United States Corps of Engineers, which had the authority to reject its location. It was in this facility that the CBLL-01315 was located on the night of the breakaway, the innermost barge along the bank on the second tier of barges in the fleeting facility. (Estrella Exhibit 2). The barge had been loaded aboard the M/S Bilderdyk in Antwerp, Belgium, with a cargo of steel consigned to Kurt Orban & Company, Inc. (Combi Exhibit 25). The freight on the cargo had been prepaid, and there were no further charges due and owing to Combi Line, according to the testimony of Harry A. Ahner, who was then employed by Biehl & Co., Combi's general agent in New Orleans.
There is nothing to indicate that the location of the LASH barge fleet, and that of the CBLL-01315 itself,...
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