River Terminals Corp. v. Southwestern Sugar & M. Co.

• Decision Date: 19 January 1960
• Docket Number: No. 16699.,16699.
• Citation: 274 F.2d 36
• Parties: RIVER TERMINALS CORPORATION, Appellant, v. SOUTHWESTERN SUGAR AND MOLASSES COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F.2d 36 (1960)

RIVER TERMINALS CORPORATION, Appellant, v. SOUTHWESTERN SUGAR AND MOLASSES COMPANY, Inc., Appellee.

No. 16699.

United States Court of Appeals Fifth Circuit.

January 19, 1960.

Selim B. Lemle, New Orleans, La., Carl G. Stearns, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., Lemle & Kelleher, New Orleans, La., for River Terminals Corp., appellant.

Amos L. Ponder, Jr., P. M. Flanagan, New Orleans, La., George L. Varian, New York City, for appellee.

Before HUTCHESON, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a decree holding appellant, River Terminals Corporation (hereafter, sometimes, for convenience, R.T.C.), liable to appellee, Southwestern Sugar and Molasses Company, Inc. (hereafter Southwestern) for damages to the barge Peter B and a cargo of molasses. This is the second appearance of the case here. Formerly we held, 5 Cir., 253 F.2d 922, that if there was fault on the part of R.T.C., such fault was excused under the terms of the tariff on file with the Interstate Commerce Commission; that such exculpatory clause of the tariff was valid unless effectively set aside by appropriate proceedings before the I.C.C.; that, therefore, the case should be remanded to the district court to permit an attack to be made on the tariff by Southwestern, in default of which the decree should be set aside. The Supreme Court granted certiorari, 358 U.S. 811, 79 S.Ct. 38, 3 L.Ed.2d 55. It affirmed the view of this court that liability could not be decreed against R.T.C. in the teeth of the exculpatory clause in the tariff, without first submitting the matter to the Interstate Commerce Commission but remanded the case to this Court to pass on the other grounds of appeal since a resolution of any one of them adverse to Southwestern would obviate the necessity for testing out the validity of the tariff provisions, 360 U.S. 411, 79 S.Ct. 1210, 3 L. Ed.2d 1334.

We, therefore, turn our attention to the basic question: Was the River Terminals Corporation guilty of negligent towage in the movement of the Barge Peter B with its cargo of molasses or in the disposition of the barge and cargo at its destination?

Appellee contends that R.T.C. accepted the barge after receiving notice that there were leaks in the No. 2 hold; that it towed it to its destination, and delivered it substantially in a sinking condition and left it without proper safeguards, and that when it sank some 24 to 30 hours later this casualty resulted from the negligent conduct of the towers.

Appellant contends that it received the barge in damaged condition; that the damage of which it was put on notice did not contribute to the sinking of the barge; that in any event it delivered the barge to the designated slip of Southwestern; that it was then afloat and was seen by two employees of Southwestern afloat, but in a dangerously low condition at a time when an election to pump the cargo would admittedly have saved both barge and cargo; that therefore the damage and loss must be attributed to the acts of the shipper and were not the result of any negligent act of the carrier.

We approach the fact questions relating to liability reluctantly. Not only does McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 8, 99 L.Ed. 20, expressly hold that "in reviewing a judgment of a trial court sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous" but this Court had before the McAllister case recognized that the standard of review in such a case is the same as for review of a law case under Rule 52(a), F.R.Civ. P. 28 U.S.C.A. See C. J. Dick Towing Co. v. The Leo, 5 Cir., 202 F.2d 850; Colvin v. Kokusai Kisen Kabushiki Kaisha, 5 Cir., 72 F.2d 44, 46. Nevertheless, when, as is here the case, the party held at fault vigorously challenges the finding of liability we must accept our "eventual responsibility for the facts as well as for the law." Deep Sea Tankers v. The Long Branch (Rincon Hills) 2 Cir., 258 F.2d 757, 759, Thorne, Neale & Co. v. Reading Co., 2 Cir., 87 F.2d 694, 696. We have, therefore, carefully reviewed the record, and conclude that the trial court's finding that the sinking of the barge resulted from R.T.C.'s negligent towage was clearly erroneous.

Taking the evidence adduced most strongly against the carrier, we find that the libellant proved that while its old barge was being filled at Reserve, Louisiana, for carriage of some 155,000 gallons of molasses in its eleven tanks, Frieler, agent for libellant, discovered that there was a leak in the No. 2 tank; No. 1 tank was opposite No. 2 tank and in order to keep the barge in trim no additional molasses was pumped into No. 1 tank; these were bow tanks, and a small amount of molasses already pumped into No. 1 and No. 2 tanks was left there; forward of these two tanks was the bow rake, designed to give forward buoyancy; a similar rake was at the stern, which also had the buoyancy of a large pump room; Frieler notified R.T. C.'s Houston office of this leak after the barge had been moved from the dock; during the several days during which R.T.C. moved the Peter B downriver and west through the intercoastal canal, the Peter B lost some freeboard forward; at the time she was taken in tow by R.T.C.'s tug Dottie D to proceed across open water to Texas City, Texas, the only evidence in the record is that she had freeboard of from nine inches to a foot at the bow; the Peter B was pushed stern first to Texas City after the Dottie D's captain and mate both sounded the forward and aft rakes and found them dry.¹ The Dottie D tied up the Peter B at the slip of Southwestern where designated by the watchman on duty at 12:01 A.M. Saturday. At that time the freeboard forward was the same as when the Dottie D took the barge in tow; at about 8:00 A.M. Saturday morning, one Garcia, an employee of Southwestern whose duties had included the pumping of the cargo from this barge on prior occasions, saw the barge and noticed that it was low in the water at the starboard bow; that the water was going over the right hand corner of the bow and going some two or three feet on deck; Garcia notified a Mrs. White, an office employee who had been left in charge by Frieler, who had left for the week-end on other business. Both Garcia and Mrs. White testified that they could have pumped out the cargo if they had been instructed to do so; Mrs. White called the office of R.T.C. and reported the condition of the barge; and one Stovall told her the captain of the tug was then in his office and that this was the same...