Southern Ry. Co. v. Waddell, 7611.

• Decision Date: 06 June 1935
• Docket Number: No. 7611.,7611.
• Citation: 77 F.2d 903
• Parties: SOUTHERN RY. CO. v. WADDELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

77 F.2d 903 (1935)

SOUTHERN RY. CO. v. WADDELL et al.

No. 7611.

Circuit Court of Appeals, Fifth Circuit.

June 6, 1935.

Harry H. Smith, of Mobile, Ala., for appellant.

Harry T. Smith, of Mobile, Ala., for appellees.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

The Warrior Packet Line, a private contract carrier by water, accepted a shipment of cotton at Tuscaloosa, Ala., under a contract of affreightment which provided for safe delivery at Mobile. It loaded the larger portion of the cargo on a steel barge and the rest on a smaller wooden barge, and then placed both barges in tow of its river steamer, the Mamie D. In the course of the voyage, the wooden barge sank in the Tombigbee river just above the Southern Railway Company's drawbridge, which crosses that river at McDowell, with the result that some of the bales of cotton which had been loaded on it were lost and others were damaged. To recover for the damages which they thus sustained, the shippers filed a libel in personam against the Packet Line and in rem against the Mamie D, alleging that the wooden barge was unseaworthy, in that its timbers were decayed. The Packet Line, after appearing as claimant and answering the libel, vouched in, under Admiralty Rule 56 (28 USCA following section 723), the Southern Railway Company, which it alleged was responsible for the loss and damage complained of, in that it so negligently delayed the opening of the drawbridge as to prevent the flotilla from passing through without stopping, and as to render it necessary for the pilot of the tugboat, in the exercise of due caution, to land up against the bank of the river and wait there until the drawbridge should be opened; and that, in attempting to make the forced landing, the wooden barge was placed against a tree standing in the swollen water along the left river bank, and, being unable to withstand the strain thus put upon it, broke partially open, filled with water, and sank. After all the testimony was in, the shippers amended their libel so as to allege also that the Railway Company, as well as the Packet Line, was responsible for the damages claimed, on the ground that the drawbridge was not promptly opened. The trial resulted in a decree for the libelants, half the damages being awarded against the Packet Line and the other half against the Railway Company; subject however to the provision that the libelants should, if unable to collect in full from either respondent, have the right over to collect the deficiency from the other.

A clear case was made out against the tugboat and its owner, since it is undisputed that the wooden barge was unseaworthy, in that its timbers were so decayed as to render it unfit to carry the load that was placed upon it. We therefore are called upon to consider only the liability of the Southern Railway Company, which alone appeals. In making up the flotilla, the steel barge was placed directly in front of the tugboat, and the forward end of the wooden barge was lashed to the middle of the steel barge on the latter's port side, so that the wooden barge extended back opposite the port side of the tugboat, but about 4½ feet away, since the steel barge was some 9 feet wider than the tugboat. The flotilla, as thus made up, was proceeding down the river, making, with the aid of the swift current, about 10 miles an hour overground, when, about 3½ miles above the drawbridge, the regulation whistle signal to open the draw was given. This signal was twice repeated before arriving at a bend on the left bank about two-thirds of a mile above the drawbridge. This bend was rounded about dusk, and the red lights on the drawbridge indicated that it was not open. But the flotilla was carried by the current as usual over toward the right bank, and, also as usual, it was necessary for the tug to back up with its tow against the current and flank over under the point so as to get in line with the east span of the draw near the left bank before the flotilla would be ready to pass through the drawbridge. The pilot testified that when he rounded the point and saw the bridge was not open he made up his mind then and there to tie up on the left bank as soon as he could get the flotilla over there from the other side of the river. He admitted that he intentionally forced the rear port side of the wooden barge against the tree, and that he did this for the purpose of tieing up to it. He did not claim that he lost control of the tug or the tow, but said that, after getting out of the swift current over toward the right bank and coming down under the point in comparatively still water, he had the flotilla under complete control. He admitted also that after passing the point he did not again look to see whether the drawbridge was open. A deck hand named Williams testified that the forward end of the wooden barge...