Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva

• Decision Date: 22 July 1982
• Docket Number: No. 81-7458,SP-3 and SP-4,81-7458
• Citation: 680 F.2d 1374
• Parties: ORANGE BEACH WATER, SEWER AND FIRE PROTECTION AUTHORITY, Plaintiff-Appellee, v. M/V ALVA, in rem, Barges,, in rem, Atlas Southern Corporation, McKenzie Services Company, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1374

680 F.2d 1374

ORANGE BEACH WATER, SEWER AND FIRE PROTECTION AUTHORITY Plaintiff-Appellee, v. M/V ALVA, in rem, Barges, SP-3 and SP-4, in rem, Atlas Southern Corporation, McKenzie Services Company et al., Defendants-Appellants.

No. 81-7458.

United States Court of Appeals Eleventh Circuit.

July 22, 1982.

Charles J. Fleming, M. Kathleen Miller, Mobile, Ala., for defendants-appellants.

Alex F. Lankford, III, George M. Walker, Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, Chief Judge, MERRITT ^* and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

This is a suit in admiralty, in personam and in rem, arising out of damage to the plaintiff's submarine water pipeline when it was struck by an unidentified vessel passing on the Gulf Intracoastal Waterway (the Waterway) near Mobile, Alabama. In its complaint the plaintiff, Orange Beach Water, Sewer and Fire Protection Authority (Orange Beach), charged the defendants (collectively, the ALVA) with obstruction of navigation in violation of 33 U.S.C. § 409 and applicable regulations by mooring the M/V ALVA and her tow at or near the pipeline crossing. The ALVA responded that the tug and tow did not obstruct navigation, and that Orange Beach was negligent in not complying with the permit issued by the United States Army Corps of Engineers, in failing to maintain the pipeline, and in not marking the location of the pipeline properly. In a bench trial, the district court found the ALVA liable and awarded damages. The ALVA appeals this adverse judgment.

The ALVA contends that the district court erred in applying the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1873), which shifts the burden of proof on the issue of causation upon a showing of a statutory or regulatory violation, and, urges in the alternative that she met this burden. She further disputes the district court's finding of no contributory negligence on the part of Orange Beach, and in computing damages. We affirm in part, reverse in part and remand for further findings of fact.

In October 1974 Orange Beach completed construction of a fresh water pipeline buried under the Waterway at Mile 157.9, some seven miles east of Mobile Bay. The pipeline was constructed of ten-inch ductile iron pipe, in eighteen-foot sections connected by ball and socket joints. Installation was accomplished in compliance with a permit issued by the United States Army Corps of Engineers (Corps), number SAMOP-SP 74-231. Under the terms of the permit, Orange Beach is authorized to

Install and maintain a 10-inch water line across the Gulf Intracoastal Waterway, Mile 157.9. Top of pipe will be no less than -19 ft. mean sea level. The trench will be excavated by dragline and the excess spoil not used for covering the pipe will be compacted in a spoil area on the adjacent bank. Work per attached plans (2 sheets).

Plaintiff's Exhibit 5. The plans contain a cross-sectional diagram depicting a 210-foot waterway with a flat bottom and a mean sea level depth of fifteen feet, and indicating a nineteen-foot depth from the mean sea level to the top of the pipeline beneath the waterway. The diagram has no indicated amount of cover for the pipeline in those stages at which it rises from the bottom of the waterway to the north and south banks. The permit further provides, in paragraph I.u.,

That there shall be no unreasonable interference with navigation by the existence or use of the activity authorized herein.

A four-by-four foot sign on the south bank of the Waterway, facing in each navigational direction, contained the following notice to mariners:

DANGER

NO ANCHORAGE

PIPELINE CROSSING

U S C E

During the four and one-half year period from the 1974 installation to the 1979 allision, there was a great deal of erosion in the Waterway at and around the pipeline crossing, due mainly to wheel wash and wave action caused by passing traffic. Erosion was aggravated by some mariners' practice of tying off to trees on the south bank, destroying the trees and their roots' support of the bank. By March 1979, the banks had eroded to such an extent that the pipeline had become exposed at the points where it originally descended on both the north and the south banks. Orange Beach was aware of this condition for at least two years prior to the incident involved in this case. ¹ The authority officials had discussed methods by which the problem could be remedied and had contacted the Corps about the erosion. At a meeting only 17 days prior to the incident, the board members agreed to seek bids for permanently correcting the problem. The minutes of this meeting report: "O. M. Ryan stated that our canal crossing had washed out the past four or five years to the point where it was vulnerable to being hit by a barge and immediate action should be taken." Def. Exh. 5.

At 11:20 p. m. on March 28, 1979, the 63-foot ALVA, pushing the empty barges SP-3 and SP-4, departed Pensacola, Florida for Houston, Texas. The barges, each 521/2 feet wide and 298 feet long, were abreast in front of the tug, or "doubled up." The entire tow was some 105 feet wide. When small craft warnings were issued for Mobile Bay on March 29, 1979, at about 5:30 p. m., the ALVA moored very close to the pipeline crossing between five and twenty feet off the south bank. Although there was room to "single up" the barges, which would have taken about 45 minutes, this was neither discussed nor considered by the crew, and the barges remained moored abreast of one another. The ALVA could have moored further west, away from the pipeline. On March 30, 1979, the ALVA and tow were moved west to a point approximately 500 feet from the pipeline, where they remained all day. The next day the tug and tow tied off still further west at Mile 156.5 on the north bank, where the crew then singled up the barges.

The Waterway was between 275 and 300 feet wide at the pipeline crossing in March 1979. The project width of the channel, where a twelve foot depth is assured by the Corps, was 125 feet. Outside that channel there was a gradual rise on the south bank, while the north bank elevated more in the configuration of steps. The area is located on a straight stretch of the Waterway with a sharp bend to the west within one-half of a mile, and with a smaller bend to the east within the same distance.

At some time between 1:00 and 3:00 a. m. during the night on March 30, 1979, an unidentified westbound vessel struck the pipeline at a depth of eight to nine feet, between 25 and 50 feet off the north bank of the Waterway, resulting in a twelve-by-eighteen inch hole in more than one-third the circumference of the pipe. It is unknown whether the pipeline was exposed at the point of impact before the allision, or whether the force of the blow and the escape of pressurized water caused the pipe to become exposed at the time it was inspected during the daylight hours of March 30, 1979.

There was evidence that other flotillas were experiencing difficulty navigating in the area of the pipeline on the day it was struck, and before the ALVA moved to the north bank and singled up its barges. Neither party produced any evidence concerning the navigation of vessels passing in the night. We quote at length from the district court's detailed findings regarding the circumstances surrounding the ALVA's mooring:

The Court is persuaded that the presence of the ALVA and her tow obstructed navigation by taking up over 40% of the entire bank-to-bank width of the Waterway, and by blocking off some portion of the 12 foot navigation channel. Vessels rounding the bends from either direction could pass, but only by steering to the north side of the Waterway at a point in time when they normally would be straightening out their tows and lining up for the next bend. Obviously, navigation in hours of darkness in close quarters could prove hazardous. The problem is heightened on those flotillas with two or three barges singled up because the tow could already be in the straightaway before the tug rounded the bend. While the obstruction vel non created by a moored tow in a waterway is a circumstantial fact question involving a case-by-case determination, this Court finds that considering the width of the navigation channel, the width of the tow, the proximity of the pipeline crossing, and the characteristics of the Waterway at that location that the ALVA and her tow obstructed navigation in violation of 33 U.S.C. § 409.

Applying the rule of The Pennsylvania, the district court further found:

The defendants fail in their effort to demonstrate that their statutory fault could not have been the cause of the incident. The only witness produced on this point was Captain Sheffield, who testified that his opinion was that other vessels had plenty of room to pass the ALVA and her tow moored on the south side of the Waterway. Such opinion evidence is strongly contradicted by the linear width figures and other evidence such as the difficulty other boats and tows were having the same day of the striking navigating this particular pipeline area. While this testimony may suggest some negligence on the part of another vessel, it does not prove that the statutory fault of the ALVA and her tow could not have been the cause of the accident. And the fact that this pipeline was not struck in the four and a half years before the ALVA moored with her barges doubled up nor was it struck in the subsequent four months it remained in the same position after the incident, certainly indicates otherwise. The Court is not persuaded by the unsupported suggestion of negligence by a third party and concludes that the statutory fault of the defendants could have been the cause of the damage to the pipeline.

Turning to the ALVA's contention that the negligence of the unidentified vessel was a supervening cause of the damage to the pipeline, the...