Texaco, Inc. v. Universal Marine, Inc.
| Decision Date | 01 August 1975 |
| Docket Number | Civ. A. No. 72-825. |
| Citation | 400 F. Supp. 311 |
| Parties | TEXACO, INC. v. UNIVERSAL MARINE, INC., in personam, the M/V UNIVERSAL NOMAD, its engines, tackle, apparel, etc., in rem, and the BARGE UMI-1650, its tackle, apparel, etc., in rem. |
| Court | U.S. District Court — Eastern District of Louisiana |
COPYRIGHT MATERIAL OMITTED
Alfred M. Farrell, Jr., Terriberry, Carroll, Yancey & Farrell, New Orleans, La., for plaintiff, Texaco, Inc.
James G. Burke, Jr., Burke & Ballard, New Orleans, La., for Universal Marine Inc., defendant.
Glenn C. Goodier and Robert B. Acomb, Jr., Jones, Walker Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Ins. Co. of North America, defendant.
The nature of this case is better described by a brief compendium of occurrences so as to provide a much needed overview before engaging in a definitive discussion of the facts.
Pursuant to a charter party entered into by Texaco, Inc., the plaintiff herein, and Universal Marine, Inc., the defendant, Texaco became the time charterer of a tugboat and tank barge. The purpose of the charter party was to acquire means of transporting hot roofing asphalt from Port Neches, Texas, to Mobile, Alabama. During the life span of the charter party, many trips had been made between these two ports without incident, but on December 15, 1970, while in route to Mobile, the barge, laden with its cargo of asphalt, sank in the Mississippi Sound.
Sometime after the sinking, the barge was struck by another vessel, the identity of which remains unknown. Thereafter, the barge was salvaged and transported to Mobile, Alabama, where two-thirds of its cargo was sold to the original buyer, but this buyer refused to accept delivery of the other one-third of the cargo, claiming that the remainder had been damaged by water and oil contamination.
The parties involved and their respective claims are more orderly summarized by a cursory review of the pleadings. The plaintiff, Texaco, Inc. (hereinafter referred to as Texaco), has filed the original complaint in this case against Universal Marine, Inc. (hereinafter referred to as Universal Marine or Universal), in personam, and against the M/V UNIVERSAL NOMAD and the Barge UMI-1650 in rem, seeking damages it sustained when the barge sank while carrying asphalt owned by Texaco. Universal Marine filed, in response, a counterclaim against Texaco seeking to recover its expenses of salvaging the sunken barge, claiming that the charter party between Texaco and Universal contained provisions requiring Texaco to contribute in General Average. Subsequently, Universal Marine filed a third party complaint against Insurance Company of North America (INA) upon being informed that INA was refusing coverage under the existing Hull and P & I policies on the tugboat and barge. Universal claims that it is entitled to recover from INA the salvage costs and indemnification for any judgment rendered against it. Finally, in its answer to the third party complaint, INA filed a counter claim against Universal claiming the aggregate amount it spent in salvaging the barge in question. In response to Insurance Company of North America becoming a party, Texaco amended its Complaint to include INA as a party defendant.
The trial of this matter began on April 1, 1974, with only the issue of liability being before the Court. The issue of damages was reserved for further proceedings. After considering the evidence adduced at trial, the arguments of, and briefs submitted by counsel, the Court makes the following findings of fact and conslusions of law.
Plaintiff, Texaco, Inc., is a corporation organized under and existing by virtue of the laws of the State of Delaware. Defendant, Universal Marine, Inc., is a corporation organized under and existing by virtue of the laws of the State of Delaware, with its principal Louisiana place of business in New Orleans, Louisiana.
The M/V UNIVERSAL NOMAD and the Barge UMI-1650 are both owned and operated by the defendant and are now or will be during the pendency of this litigation, within this district.
The relationship between Texaco and Universal was established via charter party. Under the terms of this time charter Universal Marine was to provide a tank barge and a fully found tow-boat to Texaco for the transportation of hot roofing asphalt refined in Texaco's Port Nechez, Texas, facilities. The cargo was to be delivered to the GAF Corporation, Ruberoid Division, in Mobile, Alabama. The nature of the charter party was such that Universal Marine was to make as many round trip voyages as possible within the one year life span of the contract, which began on the date of first loading which was on or about January 20, 1970.
The M/V UNIVERSAL NOMAD, the tugboat pushing the UMI-1650 when it sank, was owned and operated by Universal Marine, Inc. The vessel was 54 feet long, 22 feet wide, and was powered by two engines combining to develop a total of 400 horsepower. The compliment of the vessel consisted of four men, two of whom played significant roles in this cause of action. Mr. Keith T. Taunton was the Captain aboard the M/V UNIVERSAL NOMAD and was the acting pilot at the time of the sinking. W. E. Hill, Jr. was the tankerman and as such had the responsibility of loading and unloading the UMI-1650.
The Barge UMI-1650 was basically an open hopper barge measuring 190 feet long and 50 feet wide, with a forward rake and an after rake section, a center-line bulkhead and a bulkhead athwartship. In order to carry liquid cargo, six cylindrical tanks had been built into the open hopper compartment and were arranged with three tanks lying abreast in the forward half of the compartment, and three abreast in the after portion of the barge. All tanks ran fore and aft. The barge was also equipped with the necessary valves and hose connections used to facilitate loading. However, before the barge entered the service of Texaco, it had to undergo certain modifications before it would be acceptable for hauling liquid asphalt. First a piping system had to be installed for the purpose of heating the asphalt to a temperature which would keep it in a liquid state, and, second, a pump had to be installed on the foredeck of the barge to provide the capability of unloading its cargo.
Other features of the barge include a splashboard or coaming rising approximately two and one-half feet above the deck, the purpose of which was to prevent wavewash from entering the open hopper compartment.
Other characteristics of both the M/V UNIVERSAL NOMAD and the UMI-1650 have been reserved for a discussion of the alleged unseaworthy conditions of these vessels.
Pursuant to the contractual arrangement as described in the charter party, Universal Marine had made numerous round trips from Port Neches, Texas, to the GAF Plant in Mobile, Alabama, each of which took approximately ten to twelve days. In the early hours of December 11, 1970, the flotilla (the M/V UNIVERSAL NOMAD and the UMI-1650) was preparing for another routine trip. Loading operations began at 0015 hours on December 11, with tankerman W. E. Hill, Jr. supervising the pumping of asphalt into the barge. Although Hill had valves which allowed him to load any cylindrical tank to a desired level, he still had to work in close harmony with the employees of Texaco, as the shore side pumping operation had to terminate before the valves on the UMI-1650 were closed. A reversal of this order would result in bursting the pumping hoses. Accordingly, the tankerman would transmit an order to the Texaco employees to halt pumping actually prior to filling the barge to the desired draft.
At 4:50 the loading operations had been completed, but not before a spill had occurred while loading the starboard bow tank. In his routine report to Captain Taunton, who had been asleep during the entire process, Hill explained that the barge had a draft of eight feet at each corner, but that a spill had occurred resulting in some asphalt settling to the bottom of the barge at the starboard bow corner. Sometime after 7:00 a. m. on the 11th of December, the flotilla broke ground and proceeded toward Mobile. According to Mr. Walter Searcy, the operations manager of Universal Marine, the M/V UNIVERSAL NOMAD reported the spill of asphalt to Mr. Treschwig the morning after loading was completed. At approximately 0600 a. m. on December 15, 1970, the flotilla entered the Mississippi Sound. Three hours later, at 0900, the flotilla began encountering north-northeast winds of approximately 15 miles per hour. According to Captain Taunton, whitecaps had developed, and the UMI-1650 began taking sea water in its open hopper compartment. Before Taunton was able to get pumps on the barge, it sank in about twelve feet of water, some forty minutes after first encountering the change of weather.
After the barge sank on December 15, 1970, both Universal Marine and Neare-Gibbs, the insurance underwriter, recognized that the sunken condition of the UMI-1650 presented a serious obstruction to navigation and hence both undertook to raise the barge. Unfortunately, their efforts were less than coordinated. Under the impression that it was acting for the joint account of Universal Marine and Neare-Gibbs, Neare-Gibbs immediately contacted the marine surveying company, Bachrach & Wood Assoc. Inc. to request their assistance and advice in raising the barge. When Captain Bachrach tried to send men to the site, however, he encountered resistance from Walter Searcy who was already attempting to raise the UMI-1650. After Searcy's attempt on or about December 27, 1970, met with unfavorable results, Bachrach & Wood Assoc. Inc. was allowed to solicit bids for the needed salvage job. As a result, Southern Shipyard agreed to salvage the barge, but only with Neare-Gibbs guaranteeing the salvage contract. Southern Shipyard commenced operations on or...
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