Pillsbury Co. v. Midland Enterprises, Inc., Civ. A. No. 87-5041.

• Court: U.S. District Court — Eastern District of Louisiana
• Writing for the Court: PATRICK E. CARR
• Citation: 715 F. Supp. 738
• Decision Date: 21 June 1989
• Docket Number: Civ. A. No. 87-5041.
• Parties: The PILLSBURY COMPANY, Illinois Central Gulf Railroad Company, Burlington Northern Railroad Company, and ConAgra, Inc. v. MIDLAND ENTERPRISES, INC.; Orgulf Transport Company; and the M/V ROBERT N. STOUT, her tackle, etc., in rem.

715 F. Supp. 738

The PILLSBURY COMPANY, Illinois Central Gulf Railroad Company, Burlington Northern Railroad Company, and ConAgra, Inc.
v.
MIDLAND ENTERPRISES, INC.; Orgulf Transport Company; and the M/V ROBERT N. STOUT, her tackle, etc., in rem.

Civ. A. No. 87-5041.

United States District Court, E.D. Louisiana.

June 21, 1989.

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COPYRIGHT MATERIAL OMITTED

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John F. Fay Jr., T.A., and Elizabeth L. Rue, O'Neil, Eichin, Miller & Breckinridge, New Orleans, for plaintiffs

Fred E. Salley, T.A., and Stephen M. Wiles, Salley & Associates, New Orleans, for defendants.

OPINION

PATRICK E. CARR, District Judge.

This matter was tried before the Court sitting without a jury on Thursday-Friday, April 27-28, 1989. Having considered the evidence, the record, the arguments of counsel, and the applicable law, the Court now rules as follows. To the extent any of the following findings of fact constitute conclusions of law, the Court adopts them as such; to the extent any of the following conclusions of law constitute findings of fact, the Court adopts them as such.

This is a maritime property damage case under Rule 9(h). On October 28, 1986, defendants' vessel the M/V ROBERT N. STOUT picked up thirteen loosely-rigged barges in the Chain of Rocks Canal near St. Louis, Missouri. Without first having his crew completely tighten the rigging, the captain proceeded down the canal and into the Mississippi River, where eleven of these barges soon broke away in an unexpected current. One or more of these barges struck and severely damaged two of plaintiffs' marine structures in the river, namely, a mooring cell at the ICG/Peabody facility and a mooring dolphin at the Pillsbury Sauget facility. Plaintiffs seek to recover the replacement costs for these two structures, as well as certain incidental expenses relating to the damage.

I.

A. The parties

Plaintiffs in this action are The Pillsbury Company, Illinois Central Gulf Railroad Company (ICG), Burlington Northern Railroad Company, and ConAgra, Inc.

At all material times, ICG and Burlington Northern were and still are the owners of a barge loading facility commonly referred to as the ICG/Peabody facility or Peabody Coal Dock, which is located in East St. Louis, Illinois on the left descending (east) bank of the Mississippi at about UMR Mile 179.2 (i.e., Mile 179.2 of the Upper Mississippi River). At all material times up to January 31, 1989, this facility was under lease to Pillsbury. At issue in this matter is the northern, or upriver,

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most mooring structure located in the river at this facility, namely, a mooring cell

At all material times, Riverport Terminal and Fleeting Company was and still is the owner of another barge loading facility further downriver and commonly referred to as the Pillsbury Sauget facility, which is located in Sauget, Illinois on the left descending bank of the Mississippi at about UMR Mile 177.6. At all material times up to January 31, 1989, this facility also was under lease to Pillsbury. At issue in this matter is the northern, or upriver, most mooring structure located in the river at this facility, namely, a mooring dolphin.

On January 31, 1989, Pillsbury sold its grain merchandising division of about forty facilities to ConAgra, Inc. Included in this sale was Pillsbury's interest in these two facilities and in all assets thereon. As part of the sale, Pillsbury and ConAgra entered into a three-page ratification agreement concerning the mooring cell, the mooring dolphin, and this litigation; following a preamble, the agreement provides in whole as follows:

1. Pillsbury hereby retains the obligation to restore the above-described marine dolphin and cell to a condition so as to be in compliance with Pillsbury's repair and maintenance obligations under the applicable leases.

2. ConAgra hereby (1) ratifies the instant civil action instituted by Pillsbury, Burlington and Illinois for the recovery of damage to the marine dolphin at the Sauget Terminal and the marine cell at the ICG facility, (2) agrees to be bound by the decision of the United States District Court for the Eastern District of Louisiana in that action, and (3) forever waives any right it had, has or may have to pursue claims for damage to the above-described mooring dolphin and cell contained in the instant action instituted by Pillsbury, Burlington and Illinois. ConAgra further agrees that all sums recovered by Pillsbury, Burlington and Illinois relating to damage to the mooring dolphin and cell shall be retained by those parties.

Pillsbury hereby agrees to indemnify and hold ConAgra harmless from any and all damages, losses, costs or expenses it may suffer or incur which in any way result from the instant action instituted by Pillsbury, Burlington and Illinois including, without limitation, damages, losses, expenses or costs incurred as a result of any counterclaim(s) or crossclaim(s) filed in said action.

According to S. Vincent O'Brien, formerly with Pillsbury and now with ConAgra and who participated in the sale negotiations and closing, this ratification agreement is the sole agreement concerning these two facilities, other than the general sale agreement.¹

Defendants in this action are Midland Enterprises, Inc. and one of its subsidiaries, Orgulf Transport Company, in personam and the M/V ROBERT N. STOUT in rem. Both Midland and Orgulf admit that at all material times they were and still are

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doing business in this district. The vessel was never served or arrested, nor was a letter of undertaking, a notice of claim of owner, or any similar formal stipulation filed into the record; further, there is no evidence that the vessel was ever within the Eastern District of Louisiana during the pendency of this action. The pretrial order includes no mention of the vessel as one of the defendants before the Court. In two early, unverified documents in the record, however, defense counsel represented that they were appearing on behalf of not only Midland and Orgulf, but also the vessel itself.²

The ROBERT N. STOUT is a steel hull push boat (tug) measuring 152.5 feet long and 45 feet wide. It is equipped with two diesel engines and Kort nozzles that generate a total power of about 7,200 horsepower. The vessel is among the largest towing vessels on the Upper Mississippi. At all material times, Midland owned and Orgulf operated the vessel, which was in good operating condition.

B. The breakup

On Tuesday, October 28, 1986, the Mississippi River in the St. Louis area was at a river stage between 29 and 30 feet and rising. Under this near flood-stage condition,³ the river current, especially for the topwater, is faster than normal and lateral sets, or drafts or shears, are generally stronger.

On that same date, the ROBERT N. STOUT was under the command of Orgulf's employee Captain Jimmy Wolfe, a Coast Guard licensed river captain and pilot with over thirty years experience primarily on towing vessels. He was fully aware of the river condition that day. From around noon to 6 p.m., he was off-shift. During this period, the vessel proceeded up the Mississippi River through the St. Louis Harbor, then up the adjoining Chain of Rocks Canal (commencing at UMR Mile 184.1), through its lower-most lock (viz., Lock No. 27 at UMR Mile 185.5), and into the forebay (the northern, or upcanal, side) of the lock in order to exchange tows with another Midland/Orgulf vessel, the OMEGA, which had come southbound down the same canal.

The STOUT was to pick up the OMEGA's thirteen, fully loaded, unmanned, river hopper barges, which ranged from 195 to 200 feet long by 35 feet wide. These barges were joined three abreast by four deep, with a single lead, or spike, barge extending off the front of the group of twelve; together, the STOUT and tow had a total length of 1141 feet and a total width of 105 feet. According to Captain Wolfe, the odd barge was spiked, and not lashed abreast the other barges, in order that the tow could pass through the narrow locks. There were no lateral support, or wing, wires running from either the bow or the side of the spike barge to any of the other barges. Because of their lack of stability, especially without wing wires, Captain Wolfe prefers not carrying spike barges.

At some time during his off-shift and while these thirteen barges were still in the OMEGA's control, Captain Wolfe went for an afternoon exercise walk. During this long walk, he passed over both the STOUT's original tow and the OMEGA's original tow. He noticed that a significant portion of the rigging on the tow coming from the OMEGA to the STOUT was improperly rigged;⁴ specifically, he observed

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that, contrary to normal procedure, the rigging was "quite a bit loose" and that the ratchets "were run all the way up" (i.e., not properly adjusted). Nonetheless, he apparently said nothing to anyone at that time about his observation

After his walk, Captain Wolfe returned to the STOUT in order to eat his supper and to take a shower before his evening shift. According to the captain, the two vessels completed their tow exchange sometime during this period; according to the vessel log, the tow exchange was completed at 5:00 p.m.

At around 5:50 p.m. to 5:55 p.m., when the STOUT and its new tow were at or near the lockwall and waiting to enter Lock No. 27, the captain began his watch. Sometime before the vessels entered the lock, which according to the vessel log was at 6:30 p.m.,⁵ his mate on duty approached him to advise him of the loose rigging on the new tow; only then did the captain order the mate and the two deckhands on duty to tighten the rigging as much as possible before the STOUT and tow reached the river.

According to Captain Wolfe, it was Orgulf's policy that a captain had the complete discretion to order that a tow be rerigged if he was dissatisfied with the tow's rigging condition. No evidence was introduced of any...