Nunley v. M/V Dauntless Colocotronis
| Citation | 863 F.2d 1190 |
| Decision Date | 23 January 1989 |
| Docket Number | 87-3506,Nos. 87-3121,s. 87-3121 |
| Parties | Walter Douglas NUNLEY, et al., Plaintiffs-Appellees, v. M/V DAUNTLESS COLOCOTRONIS, etc., et al., Defendants-Appellees, v. COMBI LINES, Defendant-Appellant, Walter Douglas NUNLEY, Plaintiff-Appellant, v. M/V DAUNTLESS COLOCOTRONIS, Defendant-Appellee. ESTRELLA LEAL NAVEGACION S.A., Sea Unity-Shipping S.A., and Assurance Foreningen Gard, Plaintiffs-Appellants Cross-Appellees, v. TENNECO OIL COMPANY and United States of America, Defendants-Cross-Plaintiffs-Appellees, Cross-Appellants, v. COMBI LINES (Hapag-Lloyd A.G., Holland American Lines Freight B.V and International Transport B.V.) and its insurer, The United Kingdom Mutual Steamship Assurance Assn (Bermuda) Ltd., Defendants-Appellees Cross-Appellees, and Combi Lines (Hapag-Lloyd A.G., and the United Kingdom Mutual Steamship Assurance Assn (Bermuda), Ltd., Defendants-Appellees Cross-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Sheri L. Orlowitz, Atty., Debra J. Kossow, Admiralty & Shipping Section, U.S. Dept. of Justice, Washington, D.C., William F. Baity, Asst. U.S. Atty., New Orleans, La., for U.S.A.
Hugh Ramsay Straub, L.R. DeBuys, IV, New Orleans, La., for Estrella & Sea Unity.
Rene S. Payssee, New Orleans, La., Mendes & Mount, New York City, for Underwriters.
Cornelius, Sartin & Murphy, Russell Cornelius, New Orleans, La., for Employers Ins. of Wausau.
John B. Gooch, Jr., Frederick T. Haas, III, New Orleans, La., William M. Bass, Lafayette, La., for Point Landing, Inc., et al.
Reuter, Reuter, Reuter & Pizza, New Orleans, La., for Federal Barge Lines, et al.
G. Hamp Uzelle, III, Alex F. Lankford, III, Mobile, Ala., for Dravo.
John E. Galloway, New Orleans, La., for Tenneco.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, KING and JONES, Circuit Judges.
All voyages, whether uneventful or calamitous, must eventually complete their course, bringing their passengers to a final destination. To say that the journey of the M/V DAUNTLESS COLOCOTRONIS through the judicial system has been lengthy is an understatement. This case has dropped anchor before our court on two previous occasions, most recently before the court en banc. Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455 (5th Cir.1985) ("Nunley I"). In the interest of simplicity, we have consolidated the two sets of appeals in this matter. Today's decision should allow the M/V DAUNTLESS COLOCOTRONIS to dock and allow the parties to this suit to disembark with their disputes finally resolved.
The journey began on the night of January 16, 1974 in the Port of New Orleans with what has been called the "Great Barge Breakaway." The district court found that during the winter of 1973-74, conditions on the Mississippi River were extremely precarious. Because of large grain shipments, high water, a longshoremen's strike, and the inaccessibility to upstream ports, over 3,000 barges were fleeted in the Port of New Orleans. Combi Line's (Combi) fleet was docked on the west bank at an approved fleeting site at a bend in the river (mile point 101.1 AHP). In all, more than 130 vessels broke from their moorings that night, cascading down the river. Combi's fleet was struck by some of these drifting barges. One of the barges torn from its moorings was Combi Line's LASH Barge CBLL-01315. Although attempts were made, as detailed below, this barge was never recovered.
Following the January 16 breakaway, a Combi representative accompanied the United States Coast Guard in a helicopter search for its missing barges. In a relatively short period of time, Combi, through several means, had located twenty of its twenty-one errant barges. The CBLL-01315, however, still remained at large. Next, Combi hired a magnetometer operator to search for the missing barge. Combi's search, which included the area of the Algiers Lock Forebay 1 and the area in front of the Tenneco Oil docks 2, used both a magnetometer and a fathometer. The search revealed an object with the characteristics of a LASH barge, 67 feet below the water surface in the vicinity of the Algiers Lock Forebay. Further searching revealed another object in the area of the Tenneco Oil dock. At its highest point, this object was covered with only 37 feet of water, thereby constituting a hazard to navigation. The size of this second object, as estimated from the nautical readings on the instruments, indicated that the object resembled a river barge. Unfortunately, weather conditions and the river stage precluded Combi from engaging a diver to go down and positively identify either object. According to the record, Combi concluded, largely from the difference in the size estimates, that the object found near the Algiers Lock Forebay was more likely to be the Meanwhile the United States Army Corps of Engineers (COE) conducted its own fathometer search on January 17, 1974 and located an object near the left descending bank in the vicinity of the Tenneco docks at approximately mile point 88.4. The Corps requested that the U.S. Coast Guard mark the object with a buoy. According to the record, the Coast Guard did mark the object on two separate occasions in early 1974, but after the second buoy disappeared in February 1974, it discontinued marking the object.
missing Combi barge. As this object posed no hazard to navigation, Combi never attempted to mark or raise this vessel.
As the district court noted, "For three and one-half years, the CBLL-01315 rested unmarked, its ownership and, after July of 1974, it [sic] exact location unknown, in the Mississippi River Channel." 661 F.Supp. 1096. The next phase of the saga occurred on July 22, 1977, when fire broke out on the M/V DAUNTLESS COLOCOTRONIS (DAUNTLESS) as it was approaching the Tenneco Oil Refinery. Investigators later determined that the DAUNTLESS had suffered some damage to her hull from an external object. A subsequent river search discovered the missing Combi barge in the area of the DAUNTLESS mishap. The district court concluded from the evidence before it, that the DAUNTLESS had struck the sunken Combi barge.
The district court found that By the evening of July 22, the United States Coast Guard had extinguished the fire aboard the DAUNTLESS.
Meanwhile during that afternoon, ChemLink contracted with the United States Coast Guard to provide equipment and manpower to remove water, slops and oil from the DAUNTLESS. ChemLink--chartered tugs, barges and pumps came alongside the DAUNTLESS later that same day, but ChemLink did not engage in any pumping at that time. That evening, dewatering began with Coast Guard equipment under the direction of Captain ter-Meulen.
On the evening of Sunday July 24, before ChemLink had begun its dewatering efforts, the DAUNTLESS began losing freeboard. The Coast Guard resumed its efforts in dewatering the ship. During Sunday evening and Monday morning, Captain Walter Nunley, vice president of ChemLink, was also engaged in securing pumps for dewatering the DAUNTLESS. Although the exact time is in dispute, at some time on Monday morning, Nunley's pumps began to contribute to the dewatering effort.
Nunley subsequently brought a salvage claim against the DAUNTLESS arguing that his dewatering efforts on the night of July 24 and the morning of July 25 were performed by him in his personal capacity, as opposed to his role as a vice president of ChemLink.
The DAUNTLESS interests (Estrella Leal Navegacion S.A., Sea Unity Shipping S.A., and Assurance Foreningen Gard) brought suit against the barge owner, Combi Line, and the barge P & I underwriter, the U.K Club, alleging that Combi was negligent in locating its barge fleet in a vulnerable position and in maintaining tier lengths exceeding those allowed by its COE permit. The DAUNTLESS interests also allege that Combi was negligent in its search for the barge, and in failing to mark or remove the barge from the river.
Combi, in turn, filed a complaint for exoneration from, or limitation of, liability. Tenneco Oil Company (Tenneco) filed a claim against Combi Line for the loss of the DAUNTLESS's cargo. The United States brought suit against Combi for its marking and removal expenses. Combi then brought in the Upriver Defendants 3 as third-party defendants to the suit under Fed.R.Civ.P. 14(c) alleging that they were at fault in the original barge breakaway. Combi also filed counter-claims against the owners of the DAUNTLESS, the United Prior to trial, the DAUNTLESS interests, Tenneco, the United States, and the Upriver Defendants filed motions to dismiss Combi Line's claims for indemnity and attorney's fees in accordance with Fed.R.Civ.P. 12(b)(6). The district court granted the Rule 12(b)(6) motion with respect to both the indemnity and attorney's fees claims.
States, and Tenneco for costs, expenses, and attorneys' fees incurred in defending itself.
With Combi's tort and contract claims still in issue, the case proceeded to trial on liability issues, with the Upriver Defendants excused. The district court found that Combi was innocent of fault in the sinking of the CBLL-01315, that it was not negligent in its subsequent search for the barge, that it reasonably concluded that the object near the Tenneco docks was not its barge, and that it was not liable for any government expenses incurred for the marking or raising of the vessel under the Rivers and Harbors Act of 1899, as amended. 33 U.S.C. Secs. 401-467. The district court also concluded...
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