Sheridan Transp. Co. v. U.S.

• Decision Date: 05 April 1990
• Docket Number: No. 89-3270,89-3270
• Citation: 897 F.2d 795
• Parties: SHERIDAN TRANSPORTATION COMPANY and TUG NEW YORK COMPANY, Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 795

897 F.2d 795

1990 A.M.C. 2978

SHERIDAN TRANSPORTATION COMPANY and TUG NEW YORK COMPANY Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 89-3270.

United States Court of Appeals Fifth Circuit.

April 5, 1990.

David V. Hutchinson, Asst. Director, Admiralty--Torts Branch, Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Scott R. Wheaton, Jr., Nathan P. Horner, Lugenbuhl, Burke, Wheaton, Peck & Rankin, New Orleans, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

Facts and Proceedings Below

The barge SHERIDAN struck a submerged wreck in the Mississippi River on September 29, 1983. The owner of the barge, the Tug New York Company, and its charterer, the Sheridan Transportation Company, filed a complaint on July 18, 1984 against the United States under the Suits in Admiralty Act (SIAA), 46 U.S.C.App. Sec. 741 et seq., for failure to properly mark the wrecks. The district court entered judgment for $478,429 in favor of the SHERIDAN together with interest from the date of the accident. The United States appeals. We modify and affirm.

The facts of this case were established, to a large extent, in the first appeal of this case--Sheridan Transportation Co. v. United States, 834 F.2d 467 (5th Cir.1987)--and are in part repeated here because the findings and conclusions we reached in Sheridan I play a large role in shaping the present appeal:

During Hurricane Betsy in 1965, the partially completed steamships GENEVIEVE LYKES and LETITIA LYKES were blown upriver from their moorings at Avondale Shipyards and sank in the Mississippi River at about Mile 115.4 above the Head of the Passes [AHP], approximately two miles south of New Orleans International Airport. The two sunken wrecks, extending some 540 feet in length, lie roughly parallel to the left descending bank of the river.... The wrecks have not changed location since coming to rest on the river bottom.

The U.S. Army Corps of Engineers ... maintains a dredged channel known as the Fairview Crossing, some 500 feet wide and 40 feet deep, farther into the river, some 300 feet beyond the wrecks. Shortly after the sinking of the wrecks, the Coast Guard established a lighted quick-flashing red wreck buoy 60 feet channelward of the wrecks, according to the Coast Guard's notice to mariners published September 21, 1965....

In 1976, the Corps granted Point Landing, Inc. a permit to operate a barge fleeting facility on the left descending bank of the river central to a point about 116 miles above the Head of the Passes.... A barge fleet, known as Flowers Fleet ..., was subsequently established along the bank behind the wrecks.... Apparently neither the Coast Guard nor the Corps considered the wrecks a hazard to navigation for traffic coming in and out of the Fleet.

National Ocean Service nautical chart 11370, 10th Edition, dated January 1, 1983, shows the Wreck buoy, WR4, just outside (to the north of) Fairview Crossing; immediately behind the buoy symbol there is a single, black visible wreck symbol. There is no sunken wreck symbol in the immediate vicinity of the buoy symbol on the chart.... A notation on the chart specifically refers to 'Lighted Wreck Buoy WR4 at Mile 115.4' and advises: 'Consult the U.S. Coast Guard Light List and the Local Notice to Mariners for additional information.' The 1983 Light List describes WR4 as a 'Mississippi River Wreck Lighted Buoy,' and states that it is '[c]hannelward of last reported position of wrecks, left bank mile 115.4' at Lat. 29-58-ON. and Long. 90.17.3W, and that it '[m]arks wrecks of GENEVIEVE LYKES and LETITIA LYKES.' The Light List does not otherwise describe the location of the wrecks or indicate the distance between them and the buoy....

On September 29, 1983, Federal Pilot Russel Belsome was the helm of the ... SHERIDAN tug which was pushing the SHERIDAN barge upriver towards the Flowers Fleet. The oceangoing barge ... was then drawing 23'6" of water. The SHERIDAN tug was 100 feet long; the SHERIDAN barge was 350 feet long. Pilot Belsome ... discussed the approach to the Fleet with the SHERIDAN tug captain, Richard A.J. Bernier, and recommended to him a straight line or standard approach. As the tow approached the designated docking space at the Fleet, Pilot Belsome turned the controls over to Captain Bernier, in accordance with customary procedure under which a tug captain, who is more familiar with his vessel, maneuvers it in close quarters. Having consulted the chart, Captain Bernier altered course slightly toward the river bank, in order to achieve greater distance from WR4, which he assumed marked the approximate location of the wrecks. The WR4 was positioned some 650-700 feet from the bank.... The SHERIDAN tow's course was well to [the] port of the buoy.

At a point some 100 feet downriver from WR4 and 410 feet from it ..., the SHERIDAN barge suddenly rose three or four feet.... Inspection disclosed that the SHERIDAN barge had sustained considerable damage.... It is not disputed ... that the SHERIDAN barge had struck the wrecks.

Sheridan I, 834 F.2d 469-71.

In Sheridan I we remanded the case for further fact-finding. Id. at 469. The district court was directed to determine the position of the Flowers Fleet in relation to the LYKES wrecks; the position of the wreck buoy with respect to the LYKES wrecks; whether the government gave notice of the repositioning of WR4; and whether the PENNSYLVANIA rule should be applied to either the SHERIDAN or to the government. Id. at 473-74.

On remand the district court found that a buoy was established 60' channelward of the LYKES wrecks in 1965 and was moved 250' channelward in 1974. The buoy was moved not to better mark the wrecks but so that it would better mark the Fairview Crossing. The Coast Guard introduced into evidence for the first time a notice that the WR4 was relocated. Local Notice to Mariners No. 23 of June 5, 1974 gave the new position of the buoy. This position is also given by the 1983 Light List but neither the list or the 1974 notice indicate where the wrecks lie in relation to the buoy. Nor can the precise relationship between the buoy and the wreck be gleaned from chart no. 11370. The district court concluded, therefore, that the government failed to provide adequate notice that the wreck buoy was situated approximately 300 feet channelward of the wrecks.

The PENNSYLVANIA rule states that if a party violates a statute which is designed to preclude an accident from occurring, that party bears the burden of proof in showing that its fault did not contribute to the accident. Some time after the buoy was established to mark the LYKES wrecks, the Flowers fleet was established. The LYKES wrecks are located at Mile 115.4 AHP whereas the fleet facilities extend from Mile 115.2 to Mile 115.7 AHP. The wrecks, therefore, are approximately at the midpoint of the fleet. The district court concluded that this rule did not apply to the SHERIDAN because a barge could not approach the Flowers fleet without going in the forbidden zone on the port side of the buoy. The court held that the government, on the other hand, ran afoul of this rule because the buoy was not placed " 'as near to the wrecks as conditions will permit.' " R. vol. 2 at 545 (quoting 33 C.F.R. Sec. 62.25-40).

The government raises three issues on appeal. First, it argues that the buoy provided adequate notice of the position of the LYKES wrecks. Second, it argues that the PENNSYLVANIA rule should be applied to the SHERIDAN but not to the Coast Guard. Third, it contends that interest should run only from the date of judgment. In deciding this appeal we are mindful that the district court's factual findings may be set aside only if they are clearly erroneous whereas its legal conclusions are reviewed de novo. Fed.R.Civ.P. 52(a). ¹

Notice

Before we may decide whether the district court was correct in concluding that the government failed to provide adequate notice of the position of the wreck buoy in relation to the LYKES wrecks, we must deal with the government's contention that its decision to move the WR4 300 feet channelward of the wrecks enjoys immunity from suit. In Sheridan I we held that the discretionary function exception did not immunize the government. ² Id. at 473. This decision is, of course, the law of the case and may not now be disturbed absent a change in the law. See Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989) and White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).

The appellant argues that Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) has worked a change in the law of the discretionary function exception and, therefore, our decision in Sheridan I should be re-examined. We do not need to decide today whether there is tension between Sheridan I and Berkovitz. ³ Even if the government had the discretion to move the buoys to a position where it no longer adequately marked the wrecks, ⁴ it could not do so without providing notice. See Sheridan I, 834 F.2d at 473. The discretionary function exception "protects only governmental actions and decisions based on considerations of public policy." Berkovitz, 108 S.Ct. at 1959. We are aware of no consideration of public policy which is involved in a decision to place a wreck buoy in a position where it does not indicate the location of the wreck it purportedly marks without providing notice of this fact.

The aids to navigation do not exist in a vacuum and there are various documents which a mariner must use to determine whether he is justified in relying on an aid. See e.g., SCNO Barge Lines v. Sun Transportation Co., 775 F.2d 221, 225-26 (8th Cir.1985). The government argued that there are three documents which supplied the requisite notice: chart no. 11370; the 1983 Light List; and the Local...