U.S. v. Republic Marine, Inc.

• Decision Date: 27 November 1987
• Docket Number: Nos. 86-1574,86-1676,CCT-124,s. 86-1574
• Citation: 829 F.2d 1399
• Parties: , 1988 A.M.C. 2507 UNITED STATES of America, Plaintiff-Appellee, v. REPUBLIC MARINE, INC., in personam, M/V C.R. CLEMENTS, in rem, Defendants- Appellants. UNITED STATES of America, Plaintiff-Appellee, v. CONTICARRIERS AND TERMINALS, INC., in personam, and BARGE, in rem, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1399

829 F.2d 1399

95 A.L.R.Fed. 209, 1988 A.M.C. 2507

UNITED STATES of America, Plaintiff-Appellee, v. REPUBLIC MARINE, INC., in personam, M/V C.R. CLEMENTS, in

rem, Defendants- Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. CONTICARRIERS AND TERMINALS, INC., in personam, and BARGE

CCT-124, in rem, Defendants-Appellants.

Nos. 86-1574, 86-1676.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 1987.

Decided Sept. 1, 1987.

Rehearing Denied Nov. 27, 1987.

C.W. Walker, III, Lake, Tindall, Hunger & Thackston, Greenville, Miss., Michael A. Snyder, Snyder & Gerard, Chicago, Ill., for defendants-appellants.

L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This appeal presents the question of whether the strict liability provisions of 33 U.S.C. Secs. 408, 412 require that a vessel be held liable for damage to a lock wall even though the government may have been the sole cause of the damage. We conclude that it does not, and will reverse and remand to the district court to provide the defendants with an opportunity to attempt to show that the government's maintenance of the lock was the sole cause. The appeal also questions the district judge's assumption of jurisdiction over Barge CCT-124. On that question we will affirm.

I

We recite the facts as found by the district court in a trial to the bench. On August 17, 1979, the tow boat M/V C.R. Clements was pushing a tow of fifteen empty barges up the Mississippi River toward Lock and Dam 21, which was constructed and is operated by the U.S. Army Corps of Engineers. Defendant-Appellant Republic Marine owns and operates the M/V C.R. Clements. One of the barges in the tow was Barge CCT-124. Defendant-Appellant Conticarriers and Terminals, Inc., is the owner of Barge CCT-124 pro hac vice.

The width of Lock 21 required the tow boat to divide the barges into two groups, the first of which passed safely through the lock. Prior to pushing the second group of barges into the lock, the lockman advised the tow boat captain to keep the barges close to the east wall of the lock because repairs were being conducted on the west wall. Because the group of barges was only five feet less wide than the lock the tow had to be aligned virtually parallel with the lock wall. The best way to accomplish this alignment and avoid the west wall was to slide along the side of the east wall. To allow this ordinary sliding procedure to be accomplished safely, barges are built with "rub bars" and the lock wall is protected by armor plate. As the tow boat pushed this second set of barges into the lock, Barge CCT-124 caught on the armor plate of the lock wall; the armor plate and some attached concrete tore loose from the wall.

The United States made repairs to the wall and brought suit in a verified complaint in rem against the M/V C.R. Clements and Barge CCT-124 and in personam against Republic Marine, as owner of the tow boat, and Conticarriers, as owner of the barge. The suit was premised on sections 408 and 412 of Title 33. The complaint also alleged negligence on the part of Republic Marine in its operation of the M/V C.R. Clements and negligence on the part of both Republic Marine and Conticarriers in operating Barge CCT-124 "without a chamfered rub plate." Republic Marine filed a cross-claim against Conticarriers for indemnity and contribution, alleging that Conticarriers had breached a warranty of the barge's seaworthiness. Conticarriers filed a cross-claim against Republic Marine, alleging that M/V C.R. Clements was not seaworthy, and a third-party complaint against the manufacturer of the barge, Dravo Corporation, alleging that the barge's construction had made it unseaworthy and had caused the damage to the lock wall.

The government dropped the negligence charges on the morning of the trial and proceeded on the statutory claims alone. After a one-day bench trial, the district court found that "the M/V C.R. Clements approached Lock and Dam No. 21 in a prudent and seamanlike manner and Pilot Keel followed all orders given by the lockman. There was nothing negligent about the manner in which he approached and entered the lock chamber with the second cut of barges." 627 F.Supp. 1425, 1431. The court also found that Barge CCT-124 and its rub plates were not defective. After the incident, the tow boat captain observed two burrs protruding from the edge of the armor plate. The captain also observed fresh scratch marks on "the side of the barge which had apparently been made when the rub bar passed up against the burrs...." Id. at 1428. Finally, the court found that "but for the protrusion of the burrs into the lock chamber, the accident would not have happened...." Id. at 1435. The district court also held that the "M/V C.R. Clements and its barges were an active cause of the collision." Id. at 14. The court did not inquire into whether the burrs were the result of negligence on the part of the government. The court held the in rem defendants liable under sections 408 and 412 for the $29,944.41 claimed as the cost of repairs to the wall, and also awarded prejudgment interest. The court dismissed the cross-claims and the third-party complaint based on its findings that the barge and the M/V C.R. Clements were seaworthy. The court also awarded against the vessels the minimum pecuniary penalties allowed by section 411, noting that there was no negligence in their operation.

II

A. In Rem Jurisdiction over Barge CCT-124

On appeal Conticarriers objects to the judgment against Barge CCT-124 on the ground that the barge was not served with the process required by Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims. The barge was never brought within the jurisdiction of the court by means of process under Rule C. ¹ The government and Republic Marine contend, nevertheless, that the barge appeared generally in an answer to Republic Marine's cross-claim and waived its right to challenge jurisdiction over the party by failing to raise it as an affirmative defense until after the trial in its proposed findings of fact. The district judge concluded that the barge had so waived its defense of a lack of jurisdiction over the party.

The government in its complaint styled the action as against Republic Marine and Conticarriers in personam and as against the M/V C.R. Clements and the barges in the second group to pass through the lock in rem. The government phrased its complaint in terms alleging that the M/V C.R. Clements and the barges were defendants, and the complaint prayed that process in rem issue against the tow boat and the barges, "citing any claimant thereto to appear and answer the allegations of this Complaint." The complaint also prayed that judgment of condemnation and sale issue against the tow boat and the barges.

While the complaint was fashioned in a manner consistent with the requirements for attaching a vessel under Supplemental Rule C, process was never issued or served on the Barge CCT-124. Thus there is no doubt that jurisdiction was never gained over Barge CCT-124 by the supplemental admiralty rules of attachment. This alone, however, is not enough to prove lack of jurisdiction over the vessel. Recent cases have reasoned that, as with other forms of jurisdiction over the party, see Fed.R.Civ.P. 12(h)(1), a vessel may waive jurisdiction in rem by appearing in the action and failing to raise the defense of lack of jurisdiction over the party in a timely fashion. Cactus Pipe and Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1107-11 (5th Cir.1985) (holding that such a waiver occurred); Pacific Employers Insurance Co. v. M/V Gloria, 767 F.2d 229, 234 (5th Cir.1985) (implicitly recognizing the possibility of such a waiver but holding that it had not occurred); Associated Metals and Minerals Corp. v. SS Portoria, 484 F.2d 460, 461-62 (5th Cir.1973) (same). The Fifth Circuit has explicitly likened such waiver in the admiralty and maritime context to that for other forms of jurisdiction over the party under Rule 12(h)(1), Cactus Pipe, 756 F.2d at 1107-08; see also Cavcar Co. v. M/V Suzdal, 723 F.2d 1096, 1102 n. 14 (3d Cir.1983) (suggesting same analysis in dicta), and one district court has explicitly held that Rule 12(h)(1) reaches waivers regarding jurisdiction in rem, although the court was not applying this analysis in an admiralty case, Fish v. Bamby Bakers, Inc., 76 F.R.D. 511, 513 (N.D.N.Y.1977); see also 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1351, at 563 (1969 & Supp.1986).

Of course, the general rule in civil actions is now (and has been for some time) that any appearance in an action is a general appearance, e.g., Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.1972); Bjorgo v. Weerden, 342 F.2d 558, 560 (7th Cir.1965), Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir.) (en banc), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944), and although the special appearance has not been abolished with respect to admiralty and maritime claims, its preservation requires explicit affirmative acts restricting its appearance. ² In this case the barge appeared and never explicitly attempted to restrict its appearance in any fashion.

In its answer to the complaint Conticarriers admitted that it was the "charterer" of Barge CCT-124 and that both it and Barge CCT-124 would be within the Central District of Illinois during the pendency of the suit. The answer denied the allegations of the complaint in Conticarriers' behalf and also denied several paragraphs of the government's allegations with regard to the barge. The answer, for example, averred that "[t]his Defendant denies that either it or Barge CCT-124 caused injury or damage to Lock 21 or violated 33 U.S.C. Sec. 408." Conticarrier's...