United Barge Co. v. Notre Dame Fleeting & Towing Service, Inc.

• Decision Date: 12 January 1978
• Docket Number: Nos. 77-1259,77-1292,s. 77-1259
• Parties: UNITED BARGE COMPANY, Appellee, v. NOTRE DAME FLEETING & TOWING SERVICE, INC., and Smitty's Harbor Service, Inc., Appellants, Cross-Appellees, v. INGRAM BARGE CO. and Ingram Corporation, Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 599

568 F.2d 599

UNITED BARGE COMPANY, Appellee, v. NOTRE DAME FLEETING & TOWING SERVICE, INC., and Smitty's

Harbor Service, Inc., Appellants, Cross-Appellees, v. INGRAM BARGE CO. and Ingram Corporation, Appellees, Cross-Appellants.

Nos. 77-1259, 77-1292.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1977.

Decided Jan. 12, 1978.

Joseph M. Kortenhof, St. Louis, Mo., for Notre Dame and Smitty's.

Fritz G. Faerber, St. Louis, Mo., for Ingram Barge.

Elmer Price, St. Louis, Mo., for United Barge.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

WEBSTER, Circuit Judge.

This is an appeal from a judgment imposing liability upon appellants Notre Dame Fleeting & Towing Service, Inc., Smitty's Harbor Service, Inc., and Ingram Barge Company in connection with the sinking on January 10, 1973, of Barge DP-224. The District Court ¹ awarded the barge's charterer, appellee United Barge Company, damages of $71,926.73. The Court also granted Ingram Barge's cross-claim for indemnification against Notre Dame and Smitty's and no appeal was taken from that order. We affirm.

Originating in Havana, Illinois, Barge DP-224 arrived in St. Louis harbor on January 5, 1973, loaded with 47,500 bushels of corn. Upon its arrival, the barge was delivered to Notre Dame's Arsenal Island Fleet where it was moored until it sank on January 10, 1973. During this period, heavy ice was floating in the Mississippi River, rendering navigation and maintenance of barges extremely hazardous. While the DP-224 was moored at Notre Dame's, ice began to accumulate under the barge's hull.

On January 9, 1973, four days after the barge had arrived, the National Weather Service and Corps of Engineers notified Notre Dame that the river would drop approximately four feet in the next twenty-four hours. ² In response to the warning, Notre Dame closed its fleets to incoming barges and attempted to move the barges already on hand to deeper water. At about this time, Notre Dame became aware of the ice that had been building under the hull of the DP-224 and that the barge was aground on ice in about four feet of water. ³

Notre Dame then employed the services of Smitty's to rescue and remoor the barge. Captain Smith, president of Smitty's, supervised the operations and hired the M/V O. H. Ingram, a tug boat, to remove the barge. After an unsuccessful attempt by the O. H. Ingram to "pull" the barge off ground, a wheelwashing process was employed. Water was produced from the Ingram's engines and directed underneath the barge in an effort to free her. ⁴ The District Court found that the water was aimed only at the barge's downstream end. As a result, large chunks of ice were washed out only from one-half of the barge thus removing the support on its downstream end. With its upstream half still hard on ice, the barge's own weight, together with that of the cargo, caused it to break in half. It immediately sank.

In this appeal, appellants allege that (1) the District Court erroneously held that appellee had established an unrebutted prima facie case under the maritime law of bailment, and (2) the District Court's findings of actual negligence were clearly erroneous.

I.

United Barge, charterer of the DP-224, delivered the barge for storage to the custody and control of Notre Dame. A bailment relationship was thus established see Stegemann v. Miami Beach Boat Slips, 213 F.2d 561, 564 (5th Cir. 1954).

The District Court found that Notre Dame had failed to rebut the inference of negligence arising when a seaworthy vessel is delivered to a bailee in good condition but is returned damaged. ⁵ Appellants contend this inference was rebutted by evidence of the extraordinary circumstances leading up to the damage, and in any event, Ingram was not a bailee and thus not subject to an inference of negligence. It is unnecessary for us to decide the inference of negligence issue ⁶ because the District Court made specific findings that each of the defendants failed to exercise ordinary care and that their negligence proximately caused the damage.

II.

The findings of fact of a district court sitting without a jury in an admiralty case, while not explicitly reviewed under the "clearly erroneous" standard of Fed.R.Civ.P. 52(a), see Fed.R.Civ.P. 81(a), have been held to be reviewable under that standard, see Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1961), citing McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Midland Enterprises v. Notre Dame Fleeting & Towing Service, Inc., 538 F.2d 1356, 1357 (8th Cir. 1976); Movible Offshore, Inc. v. The M/V Wilken A. Falgout, 471 F.2d 268, 271 (5th Cir. 1973); Logan Charter Service, Inc. v. Cargill, Inc., 373 F.2d 54, 55 (8th Cir. 1967); Travis v. Motor Vessel Rapids Cities, 315 F.2d 805, 809 (8th Cir. 1963). "A finding is clearly erroneous when 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " McAllister v. United States, supra, 348 U.S. at 20, 75 S.Ct. at 8, citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1947).

In determining whether the District Court's findings are clearly erroneous, we must construe the evidence in a light most favorable to the appellee. Walker Transportation Co. v. Neylon, 396 F.2d 558, 565 (8th Cir. 1968), citing North American Van Lines, Inc. v. Brown, 248 F.2d 905, 914 (8th Cir. 1957). This Circuit has held that a district court's conclusions on negligence are reviewable under the clearly erroneous standard. See Massman Construction Co. v. Wayne B. Smith, Inc., 526 F.2d 242, 244 (8th Cir. 1975). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2590 (1971).

A.

The District Court found that Notre Dame should have become aware of the ice build-up under the barge's hull in time to have taken preventive action.

While not an insurer of the barge's safety, see Dow Chemical Co. v. Barge UM-23B, 424 F.2d 307, 311 (5th Cir. 1970); Sisung v. Tiger Pass Shipyard Co., 303 F.2d 318, 322 (5th Cir. 1962); cf. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 110, 62 S.Ct. 156, 86 L.Ed. 89 (1941) (vessel carrying goods not an insurer of their safety), Notre Dame concedes that as a fleeting operator, it had a basic responsibility to care for the barges in its custody.

The District Court found, and the parties do not dispute, that the river conditions in the St. Louis Harbor were hazardous between January 5, when the barge was delivered, and January 10, the date of the accident. Despite the abnormally heavy flow of ice, however, the barges were not inspected until January 9, when the Corps of Engineers notified Notre Dame of the expected drop in the river.

Appellants argue that an inspection would have been extraordinary under the circumstances because the barge could only have been adequately inspected if a diver had been utilized, an unlikely proposition. The testimony indicated, however, that proper sounding might have exposed the accumulated ice. We cannot say this negligence finding by the District Court is clearly erroneous. Cf. Monsanto Co. v. Port of St. Louis Investments, Inc., 350 F.Supp. 502, 519-20 (E.D.Mo.1972), aff'd per curiam, No. 72-1689 (8th Cir. Oct. 19, 1973) (failure to inspect moorings to determine their adequacy held negligent when barge broke loose). ⁷

B.

The District Court also found that, in their attempt to free the barge, appellants conducted the wheelwashing process in a negligent manner.

After an aborted effort to pull the DP-224 off ground, Smitty's and the O. H. Ingram attempted to free the barge by wheelwashing. The water was directed under the downstream end of the DP-224. This, the Court found, effectively loosened large chunks of ice from the barge's downstream end and removed the barge's support. With its upstream end still hard on ice, the weight of the barge caused it to break in half. The Court also found that Smitty's and the O. H. Ingram failed to make periodic inspections during the wash process to determine the effect the wash was having. In short, the Court held that the failure to direct the washing operations along the entire length of the barge, together with the omission of any inspections during the course of the wheelwashing, constituted negligence.

According to the record, no inspection was made prior to the wheelwashing other than some casual spike-poling. Captain Bowman testified that these inspections, which were limited to the barge's downstream end, were inadequate. In his view, before commencement of the washing, an all-around inspection should have been made and the barge should have been completely sounded. Nor did appellants inspect the barge during actual operation of the wheelwashing. Among the experts, Captain Smith testified that by walking out on the barge, one can tell how far upstream the wheelwashing is going by examining the amount of bubbling water that appears. Captain Barnes testified that he would have had a man out on the barge with a walkie talkie carefully listening for any movement and assisting in the direction of the washing operation. Captain Bowman would have had someone out on the barge to determine whether any ice was emerging from beneath the barge. He would have systematically sounded the sides of the barge to determine whether the wheelwashing was having any effect. He criticized appellants' failure to make any inspections during the washing process. Forty minutes of wheelwashing with a 4300 horsepower vessel is a rather long time to wash without inspection.

Captain Bowman further testified that the actual washing process was not performed with reasonable care. ⁸ In his view, appellants did not adequately utilize the current and improperly positioned the O. H. Ingram.

Q. Where would you have positioned the Ingram . . .?

A. I would have brought...