Tug Raven v. Trexler, 13216-13220.

Decision Date31 October 1969
Docket NumberNo. 13216-13220.,13216-13220.
Citation419 F.2d 536
PartiesTUG RAVEN and Vermillion Towing Corporation, Appellants, v. Mrs. Myrtle Lucille Goodman TREXLER, Administratrix of the Estate of Robert W. Trexler, deceased, Crown Central Petroleum Corporation, et al., Appellees. BARGE #104 and Southern Transportation Co., Inc., Appellants, v. Mrs. Myrtle Lucille Goodman TREXLER, Administratrix of the Estate of Robert W. Trexler, deceased, Crown Central Petroleum Corporation, et al., Appellees. Richard S. SMITH, Appellant, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees. Margaret R. CAVEDO, Mary A. Cavedo, John and Joyce Mae Fulton, and Mr. and Mrs. Edward L. Butts, Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees. J. B. MORRIS and William H. Clark, Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

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Waverly L. Berkley, III, Norfolk, Va., and Eli Ellis, New York City (R. Arthur Jett, Jett, Sykes & Berkley, Norfolk, Va., and Hill, Betts, Yamaoka, Freehill & Longcope, New York City, on brief), for appellants.

Robert M. Hughes, III, and Harry E. McCoy, Norfolk, Va., for appellee Crown Central Petroleum Corporation.

Sidney H. Kelsey, Norfolk, Va. (Kelsey & Owens, Norfolk, Va., on brief), for appellee Trexler.

Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

These appeals flow from the extensive litigation which resulted from an holocaust on the James River and adjacent shore facilities in the City of Richmond. In the early morning hours of July 5, 1961, Tank Barge #104, with the Tug RAVEN alongside, was moored at the dock of Crown Central Petroleum Company ("Crown"), discharging gasoline into Crown's storage tanks ashore. A fire erupted which brought about the death of a crew member of the tug — Robert W. Trexler. The tug and the barge were totally destroyed. Crown's dock and shoreside facilities were severely and extensively damaged. Nearby homes and other property were also damaged or destroyed.

William W. Marshall was the master of the tug. Richard S. Smith was a mate on the tug and also served as a licensed tankerman for the barge which was unmanned. The barge was owned by L & L Towing Corporation ("L & L") and, at the time of the fire, was operated under charter by Southern Transportation Company, Inc. ("Southern"). The tug RAVEN was owned and operated by Vermillion Towing Corporation ("Vermillion").

Myrtle L. G. Trexler, the widow and administratrix of the deceased seaman, sued first, naming as defendants Crown, the tug and barge, Vermillion, L & L, Southern, and the stockholders and chief executive officers of L & L, Southern and Vermillion. The barge owner and charterer, the tug owner, and their chief executive officers and stockholders then instituted proceedings for exoneration from or limitation of liability. Crown filed claims in each proceeding. The tug owner and barge owner then counter-claimed against Crown, asserting that Crown was solely responsible for the widespread damages which had been suffered. In this proceeding a number of individual property owners in the area of the Crown terminal intervened, claiming against the tug and the barge. They also impleaded Crown to claim recovery against it should Crown be held responsible. Trexler's administratrix also entered the proceeding, claiming against the vessel owners. The tug owner claimed for its hull loss in the barge owner's proceeding, and the barge owner claimed for its hull loss in the tug owner's proceeding.

Crown also filed suits against Marshall and Smith, and similar suits were also filed by several of the individual property owners.

All cases were consolidated for trial. Succinctly stated, the district court in its memorandum opinion concluded that the fire and resulting damages were attributable to the tug's mate Smith's negligent use of a Coast Guard unapproved flashlight during the discharging operations. The district court held the tug and barge liable in rem, the tug owner and barge charterer liable in personam, and denied to them the right of limitation. It also held Smith liable individually to those parties who had sued him. In the district court's view the barge's in rem liability arose from the fact that it was unseaworthy since it was not equipped with explosion-proof flashlights. The barge owner was exonerated, but the barge charterer was held liable in personam, because it failed to exercise due care to determine if Smith possessed an approved flashlight. The barge charterer was denied limitation because of its knowledge that the barge was not equipped with explosion-proof flashlights. Smith was determined to be the mutual employee of the tug owner and barge charterer and, hence, his negligence was attributable to both.

The tug owner was held liable because it had assumed the responsibility of furnishing proper flashlights and had only furnished one. Because the tug owner had privity and knowledge of the negligence and unseaworthiness of the barge, the district court denied it the right of limitation.

Crown was exonerated and awarded judgment against the tug, barge, tug owner, barge charterer and Smith. The individual property owners also obtained judgment against this group. The damages resulting from Trexler's death were assessed in the amount of $96,388.59 plus interest, and judgment entered against the tug owner under the Jones Act. The barge charterer was also held liable to Trexler under the Virginia Death by Wrongful Act statute, in the amount of $30,000.00. Execution was allowed, however, only in the event that this Court reversed the district court and exonerated the tug, or if the tug owner did not satisfy the full award made under the Jones Act.

The barge, tug, barge charterer, tug owner and Smith have appealed. We conclude that the finding of the district judge that the catastrophe was precipitated by Smith's use of an unapproved flashlight was clearly erroneous. We conclude that on this record Crown was solely responsible for the tragic events, and that it is liable to Trexler's estate, the barge owner, the tug owner, and the various owners of property which was damaged or destroyed. We remand the case for the entry of a decree in conformity with our views and further proceedings to terminate the litigation.

- I -

We must first state the general circumstances of what transpired in order to place our analysis of the district court's findings and our own conclusions in the proper context.

At the time of the fire the barge was moored to the terminal dock, about 110 feet from the storage tanks which were located well up a hillside. Houses were behind the tanks on the other side of a public street. The barge was moored roughly parallel to the shoreline with its aft end north. The tug was moored outboard at the bow end of the barge and facing in the opposite direction. At the time the fire started, the barge was discharging gasoline from its aft tanks (No. 4) into Crown's shoreside tank No. 19.

The barge was a steel tank barge 194.7 feet long and 39.4 feet wide, having eight cargo compartments, four each on the port and starboard sides. At the aft deck of the barge was a pump with a capacity of 1,100-1,200 gallons per minute (66,000-72,000 gallons per hour) at 350 RPM's. The barge had been previously owned by Crown and sold to the barge owner about three months before the fire. At that time it had been equipped with a pump having a pumping capacity of 35,000 gallons per hour.

The tug, 54.4 feet long and constructed of wood, was arranged with a raised pilot house forward, followed by a cabin with four berths, engine room and galley at the after end of the house. In addition to Marshall (captain) and Smith (mate), the tug's crew was composed of Grady Carter (cook) and Robert Trexler (deckhand).

The Crown terminal was in charge of Clarence C. Price, a watchman. Price notified Clinton B. Chadwick, Crown's assistant plant supervisor, of the barge's arrival, and Chadwick came to the terminal to attend to the discharge of the barge. Seventeen days after the catastrophe, Chadwick committed suicide, and the only statement of his observations and his part in the events leading up to the fire was the testimony which he gave at a Coast Guard investigation shortly after the fire occurred.

The barge was loaded at Norfolk on July 3-4, 1961, with gasoline to be delivered to Crown and others, and each of the two No. 4 tanks contained 52,777 gallons of gasoline. The discharge to Crown began at approximately 12:15 A.M. on July 5, 1961. The barge's cargo hose was connected to the Crown manifold on the dock by the tug crew and checked by Chadwick prior to the commencement of the pumping operation. Leads from this manifold were controlled by valves and connected by pipes to the Crown shore tanks.

It was intended to pump gasoline into Crown's tanks Nos. 18 and 19. At the beginning of discharge, tank No. 18 could accommodate 56,498 gallons, and tank No. 19, 61,887 gallons. After the fire the valves on tank No. 19 were found to be open and the valves on tank No. 18 closed.

There was evidence that the discharge was carried on at a rate of 66,000 gallons per hour. It continued without interruption or difficulty for approximately one hour until the pumping was shut down by Tankerman Smith upon his becoming aware of the fire. According to Smith, he had been engaged in checking the No. 4 tank on the stern of the barge. The check of the tank was made by using an ordinary metal cased Coast Guard unapproved flashlight. Smith had previously found that the two Coast Guard approved flashlights to which he had access were inoperative, and he had dropped and broken a third unapproved flashlight which he had borrowed from Chadwick. While checking the tank, he heard a shout behind him, turned...

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