Nunley v. M/V DAUNTLESS COLOCOTRONIS

• Decision Date: 20 April 1981
• Docket Number: Civ. A. No. 77-3886.
• Citation: 513 F. Supp. 720
• Parties: Walter Douglas NUNLEY, Plaintiff, v. M/V DAUNTLESS COLOCOTRONIS, her engines, tackle, apparel, etc., and 364,321 Barrels of Arabian Light Crude Oil in rem, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

513 F. Supp. 720

Walter Douglas NUNLEY, Plaintiff, v. M/V DAUNTLESS COLOCOTRONIS, her engines, tackle, apparel, etc., and 364,321 Barrels of Arabian Light Crude Oil in rem, Defendants.

Civ. A. No. 77-3886.

United States District Court, E. D. Louisiana.

April 20, 1981.

Alfred M. Farrell, Jr., Hugh R. Straub, Terriberry, Carroll, Yancey & Farrell, New Orleans, La., for Sea Unity Shipping, S.A.

Charles Hanemann, Henderson, Hanemann & Morris, Houma, La., for Tenneco Oil Co.

Debra J. Kossow, Washington, D. C., for United States.

Fred E. Salley, New Orleans, La., for Combi Lines.

Alex F. Lankford, III, G. Hamp Uzzelle, III, Mobile, Ala., for Dravo Mechling.

Machale A. Miller, New Orleans, La., for Point Landing, Inc.

J. Walter Ward, Jr., New Orleans, La., for Zito Fleeting, Inc. & Zito Towing, Inc.

Lemle, Kelleher, Kohlmeyer & Matthews, W. E. Noel, New Orleans, La., for Walter Douglas Nunley.

McGlinchey, Stafford & Mintz, John E. Galloway, New Orleans, La., for Tenneco Oil Co.

CASSIBRY, District Judge:

MOTION FOR JUDGMENT ON THE PLEADINGS

This motion raises the intriguing question whether the negligent parties responsible for the sinking of a vessel can be made responsible for the damage resulting from subsequent collisions with the sunken wreck. In particular, it raises the question of the effect of the Wreck Act,¹ a statute recently described in a Fifth Circuit opinion as "impossibly obscure",² upon an already complicated tortious causation problem. I conclude that notwithstanding its drafting handicaps, the Wreck Act does relieve the negligent non-owners of responsibility for any subsequent collisions with the wreck.

The tortured chain of events in this case began on or about January 16, 1974 when there was a major breakaway of barges at locations along the east and west banks of the Mississippi River. As a result of this breakaway the Combi Lines Barge, CBLL-01315 (hereinafter referred to as the Combi barge) sank at approximately mile 88.4. On July 22, 1977 over three years later, the M/V Dauntless Colocotronis (hereinafter referred to as the Colocotronis) allegedly struck the Combi barge, resulting in a constructive total loss of the ship. The owners and operators of the Colocotronis filed a complaint against the United States and several of the upriver defendants including movants. They alleged 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 Colocotronis. The owners and operators also filed a claim against Combi Lines in its limitation action alleging that it was responsible for the damage to the Colocotronis due to its ownership of the barge and its failure to mark or remove it. Finally, both Combi Lines 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 Colocotronis.

The upriver defendants have brought this motion for judgment on the pleadings on the ground that they are not responsible for the damage to the Colocotronis occasioned by the Colocotronis striking the Combi barge. They do not contest at this time the separate claim by the United States for reimbursement of expenses allegedly incurred in connection with marking and removing the Combi barge. Nor do they contest at this time Combi Lines' claim for the loss of its barge and the claim of the owner of the cargo on the barge arising from the original barge breakaway. Instead, for purposes of this motion they admit the well-pleaded averments of the United States and Combi Lines — i. e., that the upriver defendants negligently caused the sinking of the Combi barge which was later struck by the Colocotronis.³

Any consideration of this question must begin with an analysis of Section 15 of the Rivers and Harbors Act, 33 U.S.C. § 409, part of the Wreck Act, which specifically considers the problems of sunken vessels in navigable channels. It provides in relevant part:

... 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.

Although the Wreck Act itself is a criminal statute, Section 409 also represents a legislative determination of the standard of care placed on the owner of a wreck in a civil action. Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78 (2d Cir. 1962); American Commercial Barge Line Company v. Eagle Marine Industries, Inc., 1977 A.M.C. 475 (E.D.Mo.1976). It clearly places the responsibility for marking and raising the sunken vessel on the owner of the vessel.⁴ Sections 409 and 414 of the Wreck Act also charge the Coast Guard and the Corps of Engineers with certain duties and responsibilities with regard to marking and removing wrecks.

Although the language of Section 409 does not specifically relieve the party responsible for the original sinking of subsequent damage occasioned by a later collision with the wreck, every court that has considered the issue since the inception of the Act has reached such a conclusion. The Anna M. Fahy, 153 Fed. 866 (2d Cir. 1907); The R. J. Moran, 299 Fed. 500 (2d Cir. 1924); Red Star Towing & Transportation Co. v. Woodburn, 18 F.2d 77 (2d Cir. 1927); Lowery v. The Tug, Ellen S. Bouchard, 128 F.Supp. 16 (N.D.N.Y.1955), affd. on opinion of trial court, 229 F.2d 436 (2d Cir. 1956); American Commercial Barge Line Company v. Eagle Marine Industries, Inc., 1977 A.M.C. 475, supra. Those cases indicate that under the Wreck Act, the only relevant duty to the victim of a subsequent collision with a sunken wreck is the duty of the owner to mark and remove the wreck. The preceding breach of duty by the original tortfeasor which led to the sinking of the wreck is irrelevant for purposes of determining liability for the later accident.

In the Anna M. Fahy, supra, the canal boat FAHY sank at 9:30 a.m. when the tugs OVERBROOK and MEDIA negligently towed her upon the rocks. Subsequently, at 6:00 p.m. the same day, the tug BULLEY ran upon the sunken wreck, which had not been removed or marked, and was damaged. On these facts, the court exonerated the tugs and their owners that negligently caused the canal boat to sink, and held the canal boat's owner solely responsible for plaintiff's tow. In reaching this result the court observed that § 15 of the Wreck Act (subsequently codified as 33 U.S.C. § 409) placed the duty to mark and remove on the owner of the wreck. In construing the statute to exculpate the owners of the vessels responsible for wrecking the FAHY, the court stated:

The Tugs Overbrook and Media are undoubtedly liable to the owner of the Fahy for their negligence in towing her upon the rocks, but are they liable to the Bulley for failure to mark the wreck? The district judge thought not and we are inclined to agree with him.

The statute places the duty to mark upon the owner and no one else; there is no divided responsibility and, if the statute is to be effectual, there cannot be. Id. 153 F. at 867-68.

The court did discuss the possibility that under extraordinary circumstances the parties responsible for the sinking might have a duty to mark the wreck:

We do not intend to hold that conditions may not arise where a duty is imposed upon a tug to mark a wreck caused by her negligence. It may well be, where all representatives of the owner are drowned or where communication with him is impossible from any cause, that a duty rests upon the tug to mark the wreck. No such situation arises in the case at bar. There was nothing to prevent the owner from marking the wreck; the tugs knew this and were justified in assuming that the owner would act as he was commanded to act by law. Id. at 868.

However, it never considered the possibility that in the absence of negligence by the owner to mark his vessel, the original tortfeasors would be held liable because of their responsibility for the original sinking.

In the R. J. Moran, supra, the factual situation was substantially more complex, but the legal holding pertinent to the present motion was the same. The scow 9-S, in tow of the tug R. J. Moran, collided with a steamship and sank. Fifteen minutes later, the tug J. C. Hartt struck the sunken scow and was damaged. The owner of the tug J. C. Hartt filed suit against the sunken scow and against the tug R. J. Moran. The owner of the scow impleaded the steamship and her tugs, and the owner of the tug R. J. Moran successfully petitioned for limitation of liability. The district court concluded that the R. J. Moran had been solely at fault for the collision and the sinking, and divided the limitation fund between the owner of the scow and the owner of the tug J. C. Hartt which struck the scow.

The Second Circuit affirmed the decree in favor of the owner of the J. C. Hartt against the owner of the scow, but reversed the judgment dividing the limitation fund for the tug R. J. Moran. The court held that the owner of the R. J. Moran, which had negligently sunk the scow, was not liable to the owner of the tug J. C. Hartt which hit the scow after the sinking. The court concluded:

It was not the duty of the tugs towing the steamship to mark the wreck of the sunken vessel. That obligation was placed by statute on the owner of the sunken craft. 30 Stat. 1152; Compiled Statutes, § 9920 Now 33

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