Wirth Ltd. v. S/S Acadia Forest, CG-204
| Decision Date | 30 August 1976 |
| Docket Number | No. 74-2871,No. CG-204,CG-204,74-2871 |
| Citation | 537 F.2d 1272,1976 A.M.C. 2178 |
| Parties | WIRTH LIMITED and Hoesch Siegerlandwerke A. G. Siegen, Plaintiffs-Appellees, v. S/S ACADIA FOREST and LASH Bargeet al., Defendants, Eurogulf Lines d/b/a Central Gulf Contramar Line, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert B. Acomb, Jr., Herschel E. Richard, Jr., John J. Broders, Ernest A. Carrere, Jr., New Orleans, La., for defendant-appellant.
Henry J. Read, A. Gordon Grant, Jr., New Orleans, La., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, Chief Judge, GEWIN and THORNBERRY, * Circuit Judges.
The ill-fated voyage of LASH 1 Barge CG-204 has given rise to important and yet unanswered questions under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.A. §§ 1300-1315. 2 Contrary to the holding of the trial court, we believe that LASH barges are "ships" as defined by COGSA and accordingly we reverse and remand.
Essential to the understanding of the legal issues spawned by the facts of this particular case is a familiarity with the innovative means of maritime shipment developed in the late 1960's and early 1970's which is referred to as the LASH system. The basic principle is that an ocean vessel is designed to lift on board and carry specially designed barges which are fully loaded with cargo. 3 The barges are loaded at remote points on inland rivers or other waterways which are inaccessible to deep draft ocean vessels. 4 The barges are then towed from the inland ports where they receive the cargo to the deep water port where they rendezvous with the ocean vessel and are loaded aboard for the ocean segment of the journey. At the deep water port of destination, the barges are unloaded and towed to inland ports or places for discharge at the agreed destination. A principal advantage of the concept is that throughout the course of the shipment the cargo never leaves the barge eliminating the cost, time and pilfering hazard of break-bulk handling. In an operational sense each stage of the process is a part of the integrated whole transportation system. To service its fleet of LASH mother ships the carrier built over 400 LASH barges which were deployed to effectuate loading or discharge of the contained cargo before or after the mother ship's arrival or departure.
The shipper's brief 5 succinctly describes the events leading to the collision with the lock. At the time of the collision, the LASH Barge CG-204 and five other LASH barges were being towed from Brake, Germany to a rendezvous or collecting point in Bremerhaven for eventual loading and carriage aboard the S/S ACADIA FOREST to the port of New Orleans. 6 In order to reach the collecting point, it was necessary for the tow to navigate the Nordschluese Lock in the lower reaches of the Wesser River. Three tugs, the HANSEAT II, the CITO, and the GUNTHER, were used for this tow. The CITO was attached to the lead barge CG-204 by means of a bridle and a tow line. The HANSEAT II, the steering tug, was secured to the starboard side of the last LASH barge by means of three lines. One line ran forward from the starboard forward side of the HANSEAT II to a bollard on the starboard forward end of the next-to-last LASH barge in the flotilla. A spring line ran from the port forward side quarter of the HANSEAT II to the after starboard bollard of the last barge in the flotilla. Another line ran from the port midship bollard of the HANSEAT II to the after port quarter bollard of the last barge in the flotilla. 7 This was the line that parted. The tug GUNTHER was secured to the port side of the last barge in the flotilla in a manner similar to that used to secure the HANSEAT II.
The trip from Brake to Bremerhaven was uneventful. As the tow approached the Nordschleuse Lock, the tide was ebbing. Approaching and entering the lock during ebb tide conditions was an intricate, but not an unusual, navigational maneuver. As the flotilla entered the fore-port of the lock, the ebbing tide began to swing the stern section of the tow to port. In order to correct this, Captain Kruse gave the HANSEAT II 30o to 35o port rudder and ordered his engines full ahead. The purpose of this maneuver was to check the swing of the tow. Contemporaneously, the Tug GUNTHER which was pushing the flotilla from the port side of the stern ordered full astern and the Tug CITO which was pulling the flotilla by a bridle turned hard to port.
In the course of these actions with the head of the tow swinging to starboard the stern line which connected the HANSEAT II to the starboard side of the last barge parted and the tug swung away from the barge. Shortly thereafter, the lead LASH Barge CG-204 struck the side of the mole sustaining damage which resulted in its sinking and the damage to the shipper's cargo.
The Carrier defended on the basis of § 1304(2)(a) of COGSA asserting that the injury to the cargo resulted from errors in navigation. 8 The Shipper, on the other hand, argues that (i) COGSA does not apply to this movement because this LASH Barge is not a ship engaged in foreign commerce, and (ii) in any event since the damage was caused by the unseaworthiness of the stern line running from tug HANSEAT II to the last barge, the Carrier is liable for the cargo damage. The District Court held that Barge CG-204 was not a "ship" and then proceeded to hold Carrier liable for unseaworthiness of the parted line.
Our principal task in this case is to determine what Congress would have thought about a subject about which it never thought or could have thought and one about which we have never thought nor any other Court has thought. 9 Technology has created a maritime transportation system unlike any which was in existence in 1936 when Congress enacted COGSA.
Before the enactment of statutes governing the relationship between carriers and shippers the general law of admiralty imposed upon the carrier the duty virtually to insure the safe carriage of the cargo. 10 All the shipper had to do to prove his case was to show that the carrier received the cargo in good order 11 and the carrier would be liable for damage to the cargo unless it resulted from an act of God, of the public enemy, or inherent vice of the goods and the carrier was not negligent or otherwise at fault. 12
This situation prompted carriers to try to limit contractually their liability 13 by inserting exculpatory clauses in the B/L, but unlike English courts, 14 United States courts voided clauses exempting carriers from liability for losses caused by their negligence 15 as against public public policy. 16
This state of the law put American shipowners at a great disadvantage, and to ameliorate this problem Congress in 1893 enacted the Harter Act, 46 U.S.C.A. §§ 190-96, which was designed to strike a balance between the interests that sought to fully exonerate the carrier from all claims based on his negligence and on the other hand, the shippers and commercial interests who wished to hold the carriers responsible for the consequences of any sort of negligence. 17
While the compromise reflected by the Harter Act served to protect cargo shippers' interest with respect to litigation in American courts, shippers in most 18 of the other countries of the world were still at the mercy of the stringent exoneration clauses or at least divergent judicial interpretation of them which carriers continued to carefully insert in Bills of Lading. This state of affairs spawned a demand by cargo and commercial, banking and underwriter interests at the World Shipping Conference of 1920 to put the Harter Act principle into effect generally. 19
The Hague Rules, promulgated by the Brussels Convention of August 25, 1924 after strenuous efforts by international legal and maritime groups beginning in 1921, 20 were the international adaptation of the Harter Act compromise, but the United States did not ratify the convention or enact COGSA, which was a statutory codification of the Hague Rules, until 1936. 21
COGSA has superseded the Harter Act with respect to foreign trade and is incorporated by reference in every B/L for foreign transport 22 to or from the United States. However, the Harter Act still applies in coastwise transport in the United States and to the period of time before loading or after discharge of the cargo. 23
Is a kangaroo any the less a kangaroo because during part of its existence it is carried in a specially adapted berth aboard another kangaroo? Our answer is no. And upon the same rationale we hold that a LASH Barge is no less a COGSA "ship" 24 engaged in foreign commerce simply because it is designed to be carried during part of the voyage by the mother ship.
The LASH Barges are designed to be carried by the mother ship. They are no less a part of it than its boilers or engines. And certainly without the barges the utility of the ocean vessel as an instrument of foreign trade would be substantially lessened.
Thus we have no difficulty in distinguishing on their facts the Harbor Lighter cases relied upon by the Shipper 25 for the proposition that lighters are not considered ships under COGSA. In those cases the courts were careful to point out that harbor lighters were not vessels used in foreign commerce but rather were utilized only for harbor transportation from the vessel to the dock. 26 Here, the LASH Barges are perhaps the most important link in this maritime transportation system engaging in foreign commerce. The cargo is loaded aboard the barge at the foreign port and never leaves it until it is unloaded at its final destination. From the beginning until the end of the voyage the barge is a carrying vessel, and as such, is involved in every stage of the foreign transport rather than merely performing a...
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