Rodi Yachts, Inc. v. National Marine, Inc.

• Decision Date: 02 February 1993
• Docket Number: 92-1867,Nos. 92-1717,s. 92-1717
• Citation: 984 F.2d 880
• Parties: RODI YACHTS, INCORPORATED, Tee Dee Enterprises, Incorporated, and Ron Kolosta, Plaintiffs-Appellees, v. NATIONAL MARINE, INCORPORATED, Defendant/Third-Party Plaintiff-Appellant. TRANSPORT DISTRIBUTORS, INCORPORATED, Third-Party Defendant/Fourth-Party Plaintiff-Appellee, v. LEMONT HARBOR AND FLEETING SERVICES, INCORPORATED, Fourth-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 880

984 F.2d 880

1993 A.M.C. 913

RODI YACHTS, INCORPORATED, Tee Dee Enterprises,Incorporated, and Ron Kolosta, Plaintiffs-Appellees, v.NATIONAL MARINE, INCORPORATED, Defendant/Third-Party

Plaintiff-Appellant.

TRANSPORT DISTRIBUTORS, INCORPORATED, Third-Party Defendant/Fourth-PartyPlaintiff-Appellee, v.LEMONT HARBOR AND FLEETING SERVICES, INCORPORATED,Fourth-Party Defendant-Appellant.

Nos. 92-1717, 92-1867.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1992.

Decided Feb. 2, 1993.

George A. Hesik, Willowbrook, IL (argued), for Rodi Yachts, Inc., Tee Dee Enterprises, Inc., and Ron Kolosta.

Paul McCambridge, Warren J. Marwedel, Dennis Minichello(argued), Keck, Mahin & Cate, Chicago, IL for National Marine, Inc., and Lemont Harbor and Fleeting Services, Inc.

Mark F. Devane(argued), Scott G. Reno, Menges, Mikus & Molzahn, Chicago, IL for Transport Distributors, Inc.

Before POSNER and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

POSNER, Circuit Judge.

A barge owned by National Marine, Inc., cast adrift when it slipped its moorings at a dock operated by Transport Distributors, Inc.(TDI), in the Chicago Sanitary and Ship Canal, collided with another dock and two boats, causing damages that have been stipulated in an amount slightly in excess of $100,000.The owners of the damaged property brought suit in admiralty against National Marine, which impleaded TDI, which in turn impleaded the subsidiary of National Marine that had operated the tugboat (Lemont Harbor and Fleeting Services)--but we can ignore that detail and treat parent and subsidiary as one.After a bench trial, the judge ruled that both National Marine and TDI had been negligent and assessed the former's fault at twice the latter's, meaning that National Marine would have to pay two-thirds of the damages.National Marine appeals, contending that TDI was solely at fault.TDI cross- appeals, arguing that National Marine was solely at fault.

The plaintiffs--oddly, it may seem--take no position on the merits of either the appeal or the cross-appeal, even though a conceivable outcome would be a ruling that neither defendant had been negligent.The defendants appear to agree, however, that at least one of them was negligent; and the plaintiffs must be satisfied that either one is good for the entire damages (which are relatively modest), so that if National Marine succeeds in shifting the entire burden of liability to TDI, or vice versa, the plaintiffs will be none the worse for it.It is true that TDI was not named as a defendant in the plaintiffs' complaint, or for that matter in any other pleading by the plaintiffs.But in an admiralty suit, once a defendant impleads a third party in an effort to shift the burden of liability in whole or part from its own shoulders, and demands judgment in favor of the original plaintiff against that third party, the suit proceeds as if the original plaintiff had sued the third party.Fed.R.Civ.P. 14(c), and Note of the Advisory Committee on the 1966Amendment thereto;Home Ins. Co. v. Puerto Rico Maritime Shipping Authority, 524 F.Supp. 541, 546(D.P.R.1981).So the plaintiffs in our case can recover their damages from TDI if the latter was negligent and its negligence a cause of the accident, and of course from National Marine on their original complaint if National Marine was negligent and its negligence a cause of the accident.

Although in form a tort case, in economic reality this is a contract case.It involves the respective duties to third parties(the plaintiffs) of two firms engaged in a voluntary undertaking to "park" the barge of one at the dock of the other.National Marine, which owns a fleet of barges, made a contract with a lumber company that is not a party to this case to transport a load of that company's lumber to TDI's dock.TDI is in the business of transloading bulk cargoes.It receives them by rail or barge, unloads them and stores them in its warehouse, and then reloads them onto trucks for further travel.Although at the time of the accident its place of business bordered on the canal and had a seawall at which barges could be moored, TDI received almost all cargo by rail.Only about once a year did it receive a shipment by barge.Because of its infrequent use of the dock, TDI did not have its own crew of maritime workers, and in fact had no maritime capabilities at all.When a barge arrived or was due, TDI would hire a maritime crane, complete with crew, to unload it.

National Marine notified TDI to expect a barge on April 22, 1988.A tugboat owned and operated by National Marine brought the barge to the dock that evening.The crew of the tug lashed the barge to the seawall with inch-and-a-half-thick hawsers made of braided plastic rope.It is unclear whether two, three, or four hawsers were used, but probably there were three because a photograph of the barge taken shortly after the accident showed three hawsers dangling from it.No one was at the dock when the tugboat's crew moored the barge.It was understood that when the barge had been unloaded, TDI would notify National Marine and the latter would send a tug to take the barge away.

Because of TDI's delay in obtaining a maritime crane and crew, the barge had not yet been unloaded when, in the early morning hours of April 27, almost five days after the barge had arrived, it broke from its moorings and began its fateful journey.During the period while the barge was moored at the dock no one inspected the moorings to make sure they were secure.

The cause of the barge's breaking free is unclear, although several hypotheses can be rejected.Apparently the lines broke, rather than being untied or unraveling.The one line that was recovered and is in the record is frayed at the point where it broke, rather than being cut through cleanly.So the hypothesis of intervention by mischievous boys or other vandals can pretty well be excluded, and anyway is not argued.Weather conditions were normal, though there was some wind blowing away from the dock; and there appear to have been no extraordinary perturbations, such as a huge wake stirred up by a passing ship, that might have imparted such force to the barge as to cause a normal line to break even in normal weather.Three hypotheses as to why the lines broke cannot be said to be excluded by the record, although they vary in their plausibility.One is that there were only two lines, and two is not enough--the force exerted by the barge even in a mild wind would cause them to snap.But there was expert testimony that two lines are enough, and anyway there appear to have been at least three.Another hypothesis, also pressed by TDI, is that the line was composed of a type of plastic that if used too long eventually decays from exposure to sunlight, and that the flecks of powder that come off on one's hand when one touches the rope in the record are the telltale clue that the rope had indeed been used too long and had decayed.Still another theory, this one pressed by National Marine, is that the breaking of the lines was caused by chafing, that is, by their rubbing against the seawall.But against this there was evidence that the seawall and the barge were at the same height, rather than the barge's being lower, which would be necessary to generate friction between the seawall and the ropes.

Unfortunately the district judge's findings of fact do not resolve the disputed questions bearing on the cause of the accident.The entirety of the relevant discussion is as follows:

National Marine was negligent because its employees failed to moor Barge NL264 safely.Ropes provided and tied to the dock by National Marine parted, thus causing the subsequent crash between Barge NL264 and the property of each of the three plaintiffs.

Third-party defendant, TDI, was negligent because its employees failed to inspect the barge moored at its dock.Had employees of TDI inspected the moored barge on a regular basis, it is possible that they would have detected unsafe mooring, such as chafing of the ropes, too few ropes or improperly tied ropes, and that the breakaway would have been prevented.

Notice that the judge is noncommittal as to whether the accident occurred because of improper mooring, which would be National Marine's responsibility, or because of chafing, which would seem to be TDI's responsibility, not only because chafing would be detectable by even a superficial inspection but also because the effect of chafing is gradual, so presumably would not have caused the rope to part had it not been for TDI's delay in unloading the barge.Therefore if chafing was indeed the cause of the accident it is hard to see why two-thirds of the liability should come to rest on the barge's owner.Moreover, the first paragraph that we quoted suggests that the judge may have thought that the fact that the ropes broke demonstrated without need for any more evidence that the barge had been negligently moored--a conclusion that would equate negligence to strict liability.

Although the findings are deficient, both National Marine and TDI believe that we can resolve the case without a remand for better findings.Each believes it demonstrable from the legal authorities and the trial record that the other is solely responsible for the accident.National Marine, claiming that the facts demonstrate that TDI was the bailee of the barge, argues that when a barge breaks away from its moorings the bailee is presumed to be negligent and that TDI has not rebutted the presumption.TDI claims that it has rebutted the presumption, that anyway it was not a bailee, and that the relevant presumption is that the owner of a vessel is presumed negligent if the vessel drifts out of control.

The language of presumptions and bailments obscures rather than illuminates the ultimate question, which is that of the relative fault of the parties and cannot be answered without a remand for...