St. Philip Offshore Towing Co. v. Wis. Barge Lines, Civ. A. No. 77-1541

• Decision Date: 07 March 1979
• Docket Number: 77-2051,77-2050,78-1579 and 77-2660.,Civ. A. No. 77-1541
• Citation: 466 F. Supp. 403
• Parties: ST. PHILIP OFFSHORE TOWING COMPANY, INC. v. WISCONSIN BARGE LINES, INC., in personam, and the M/V JIM BERNHARDT, her engines, tackle, apparel, furniture, etc., in rem.
• Court: U.S. District Court — Eastern District of Louisiana

466 F. Supp. 403

ST. PHILIP OFFSHORE TOWING COMPANY, INC.

v.

WISCONSIN BARGE LINES, INC., in personam, and the M/V JIM BERNHARDT, her engines, tackle, apparel, furniture, etc., in rem.

Civ. A. Nos. 77-1541, 77-2050, 77-2051, 78-1579 and 77-2660.

United States District Court, E. D. Louisiana, New Orleans Division.

March 7, 1979.

COPYRIGHT MATERIAL OMITTED

James M. Tompkins, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, La., for plaintiff.

W. J. Larzelere, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

COLLINS, District Judge.

This case arises out of a maritime collision which occurred on May 16, 1977 in the area between Miles 144 and 143 of the Lower Mississippi River. The collision involved two vessels and their respective tows: The M/V JIM BERNHARDT, owned by Wisconsin Barge Lines, Inc. and The Tug ANTHONY P. ST. PHILIP, owned by St. Philip Offshore Towing Company, Inc. The owners of the barges in tow of The M/V JIM BERNHARDT have brought various claims for hull and cargo losses. St. Philip Offshore Towing Company, Inc. has brought a claim for damage to its tow, the Barge PIERCE, which was owned by Agrico Shipping Company and under bareboat charter to St. Philip Offshore Towing Company, Inc.

The trial was before the Court without a jury on the issue of liability only with the issue of damages reserved for a later trial. After having heard the evidence and considering the briefs and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. At all material times, Agrico Shipping Company was the owner of the seagoing tug and tow, ANTHONY P. ST. PHILIP and Barge PIERCE, both of which vessels were under bareboat charter to, and operated by, St. Philip Offshore Towing Company, Inc.

2. The tug ANTHONY P. ST. PHILIP hereinafter ST. PHILIP, measuring approximately 145 ft. × 35 ft. × 18 ft. and generating approximately 5700 to 6000 horsepower from her twin engines, was equipped with a "model" or V-shaped bow which fit into the notch at the stern of the Barge PIERCE during push-towing of the latter vessel. The Barge PIERCE measured approximately 495 ft. long by 89 ft. wide and, on the date of the incident in suit, was loaded with approximately 27,000 tons of phosphate rock so that her fresh water draft was approximately 32 ft. at her bow and 33 ft. at her stern. The overall length of the ST. PHILIP's flotilla was approximately 644 ft. The tug's navigation is controlled from the wheelhouse. However, due to the varying heights of the barges which are towed, the ST. PHILIP has two wheel-houses. The upper wheelhouse is positioned on a mast estimated to be 40-50 feet above the surface of the river. Both wheelhouses contain various navigational aids, including VHF radio sets, radar and a gyro compass.

3. Wisconsin Barge Line, Inc. was, at all material times, the owner of The M/V JIM BERNHARDT hereinafter JIM BERNHARDT, a triple-screw, 10,500 horsepower pushboat, measuring 195 ft. × 54 ft. × 10.6 ft. At the time of the incident in suit, she was pushing ahead 29 loaded barges made up six wide by five long with a "notch" or empty space at the starboard stern of the tow. Each barge was 195 ft. long by 35 ft. wide, so that the total length and width of the JIM BERNHARDT's flotilla was approximately 1170 feet by 210 feet. The tug's wheelhouse, which provides the navigator with an eye level 40-50 feet above the River surface, is equipped with various navigational aids, including two radar sets and two VHF radios.

4. Other plaintiffs in this case, Mid America Transportation Company, Continental Marine Corporation, Zito Barge Line, Inc., and ContiCarriers & Terminals, Inc., were owners of those barges in JIM BERNHARDT's tow which the parties have stipulated were damaged as a result of the collision hereinafter described. These plaintiffs suffered both hull and cargo damage.

5. A specific location on the Mississippi River can be described by two distinct methods. The first method utilizes the distance from the foot of Canal Street in New Orleans to the specified location on the River. Using this method in the present case, the collision occurred between 48-Mile Point and 50-Mile Point or at a place on the River between 48 and 50 miles from Canal Street. Because there is a bend in the River at each of these points, the bends have become known as 48-Mile Point and 50-Mile Point. The Court hereinafter will use these two terms to identify the bends in the River between which the collision occurred.

The second method utilizes the number of miles that a location is from the mouth of the Mississippi River. Using this method, the Court can more precisely indicate the location between 48-Mile Point and 50-Mile Point where the collision occurred. Thus, the collision occurred in the area of the River between Miles 144 and 143 or approximately 143 to 144 miles from the mouth of the River.

6. When the downbound JIM BERNHARDT was above Mile 145, the ST. PHILIP was upbound below Mile 142. At this time, the navigators of the two vessels were in radio communication with each other and agreed to meet and pass each other port-to-port. The Master of the ST. PHILIP, Captain Houston, asked for such a passing in order to keep its heavily loaded barge in the deepest part of the channel which, in this area, favors the east bank of the River between Miles 145-142. On other occasions Captain Jones, the Master of the JIM BERNHARDT, had passed vessels port-to-port in this reach of the River and therefore agreed to the proposal. The passing agreement was never changed before the collision.

7. Captain Houston, Master of the ST. PHILIP, is a licensed, experienced ocean operator and has often navigated this area of the Mississippi River. He testified that he made the right hand bend at 48-Mile Point as he always did, "hugging the point and the east bank shore." At all times during his navigation from Belle Point Light (approximately Mile 142.5) until he reached an area just below the revetment at Marquez Light (approximately Mile 143.4) he kept his tug and barge 40 to 100 feet off the east bank. He followed a compass heading of 316° or 318°.

8. Captain Jones, navigator of the JIM BERNHARDT, has held a first class pilot's license for unlimited size vessels on the Mississippi River since 1970. He had been piloting river towboats in this reach of the River since 1963. His experience includes considerable time navigating large tow-boats and tows and he has been captain of the JIM BERNHARDT since June, 1976. While the ST. PHILIP was proceeding around 48-Mile Point, the JIM BERNHARDT was preparing to make the right hand bend at 50-Mile Point. The JIM BERNHARDT had also arranged to pass an upbound towboat, the M/V DAN C. BURNETT hereinafter BURNETT, on a starboard-to-starboard passing. The BURNETT was at this time proceeding upriver favoring the west bank below the bend at 50-Mile Point.

9. Dan Burnett, Captain of the BURNETT, was also an experienced river navigator. His vessel was pushing 15 barges, three wide and five long. The tug BURNETT was 162 ft. long and 45 ft. wide giving the entire flotilla a length of approximately 1100 ft.

10. Fifty-Mile Point forms an approximately 90° right hand bend for downbound vessels, while 48-Mile Point forms an approximately 90° right hand bend for upbound vessels. The river is approximately 2500 ft. wide at 50-Mile Point, and gradually narrows to approximately 2000 ft. at Mile 143.4, below which it generally widens again to approximately 2500 ft. at 48-Mile Point. Along the right-descending (west) side of the River between 50-Mile Point and 48-Mile Point, there were three barge-fleeting areas which extended approximately 400 ft. to 500 ft. out into the River from the west bank. Several fleets of barges were moored in this area. The water along the right-ascending (east) side of the River at that location is generally much deeper than it was along the opposite side of the River. During at least the 20-30 minutes or so preceding and including the incident, there was a 35 ft. to 50 ft. high fog bank enshrouding the river from approximately 50-Mile Point to 48-Mile Point.

11. At approximately 6:30 a. m. on May 16, 1977, the JIM BERNHARDT and its tow collided with the Barge PIERCE which was being push-towed by the ST. PHILIP. The collision occurred just north of Mile 143.4 on the lower Mississippi River approximately midway between 50-Mile Point to the north and 48-Mile Point to the south. The movements of each vessel in the moments prior to 6:30 a. m. must be reconstructed in order to understand the cause of the collision.

12. By agreeing to a starboard-to-starboard passing with the BURNETT and a port-to-port passing with the ST. PHILIP, Captain Jones needed to round the bend so that the JIM BERNHARDT could pass between the other two vessels. The BURNETT was proceeding upriver toward the JIM BERNHARDT approximately 400 ft. away from the barges moored on the west bank. Since the fleets of barges extended out 400 ft. to 600 ft. from the west bank, the navigable channel between the BURNETT and east bank was approximately 1000 ft. to 1200 ft. The ST. PHILIP was a short distance behind the BURNETT, but was travelling 40 ft. to 100 ft. off the east bank. Therefore, the portion of the River through which the JIM BERNHARDT had to navigate was approximately 900 ft. to 1100 ft. wide.

13. The JIM BERNHARDT rounded 50-Mile Point at full throttle and was moving at approximately 10-12 mph. Because of its speed, the current of the River and the starboard-to-starboard passing agreement with the BURNETT, the vessel was strongly favoring the east bank when it came out of the bend. Captain Houston described the movement of the BERNHARDT as "sliding into the bend," and Captain Burnett testified that it was "two-thirds over in the river."

14. Captain Jones was alone at the wheel of the JIM BERNHARDT. H...