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PETITION OF MIDWEST TOWING COMPANY

March 30, 1962

PETITION OF MIDWEST TOWING COMPANY, INC., A CORPORATION, FOR EXONERATION FROM OR LIMITATION OF LIABILITY.


The opinion of the court was delivered by: Juergens, District Judge.

On March 24, 1955, the Motor Vessel Anna S. Cooper was downbound in the Tennessee River, made up with a tow of four empty barges. Shortly after 9:30 p.m. she approached the so-called Hickman-Lockhart highway bridge at or near mile 100.5 in the Tennessee River. Attempting to pass under this bridge, she came into collision with the left channel span support pier, causing the tow to break up and the M/V Anna S. Cooper to sink.

Midwest Towing Company, Inc., the owner of the M/V Anna S. Cooper (hereinafter sometimes called the Cooper), has filed its petition for exoneration from or limitation of liability.

Claims were filed on behalf of the deceased parties; however, the claims made on behalf of William S. Yates and Dorothy Shirley have been resolved and are not now for consideration. Mary T. Lusk, administratrix of the estate of Pleasant M. Lusk, Jr., deceased, and Richard Anderson, administrator of the estate of Robert Anderson, deceased, have filed their complaints to recover from the petitioner for the wrongful deaths of the two seamen, based on petitioner's liability for negligence and breach of duty under the Jones Act, 46 U.S.C.A. § 688.

The petitioner asserts that it is entitled to exoneration from liability or to limitation of its liability for this occurrence.

It is elementary that any negligence on the part of a vessel resulting from imprudent conduct in her navigation generally or from the violation of a statute will defeat a petition for exoneration from liability if such negligence was a contributing cause to the accident. Petition of Oskar Tiedemann and Company, D.C., 179 F. Supp. 227.

Here the petitioner seeks to claim exoneration from or limitation of liability and argues that the captain of the vessel left a safe mooring at Pickwick Lock on the Tennessee River and attempted to navigate the Anna S. Cooper down the Tennessee River during a raging flood and states that as the result Captain Yates lost his gamble, his life, the lives of three other people and his owner's vessel in consequence. The petitioner seeks to relieve itself from liability in this case by condemning the navigation of the vessel by the captain. By the petitioner's own statements, it was not entitled to exoneration from liability in this case.

In its briefs and during the trial the petitioner attempted to show that the vessel was seaworthy and that loss of the vessel and the members of its crew was exclusively faulty navigation by the captain.

Before the petitioner is entitled to limit its liability, it must first be shown that the ship was seaworthy for it is clear that there can be no limitation of liability where the owner of a ship knew or should have known that a ship was unseaworthy due to some unsafe condition or was improperly equipped or manned and a loss of life or injury results therefrom.

    "It is elementary in Admiralty law that if,
  when a ship leaves port, the owner, master, etc.,
  knew or should have known that she was
  unseaworthy due to some unsafe condition, or was
  improperly equipped or manned, and loss of life,
  personal injury or property damage results
  therefrom, he is not entitled to limit his
  liability. * * * It is equally clear that such a
  petition should be granted where injury, death or
  loss of property results from unseaworthiness due
  to a defective ship, equipment or improper
  manning which is neither known nor with the
  exercise of care could have been ascertained
  prior to the ship's departure." Petition of Oskar
  Tiedemann and Company, D.C., 179 F. Supp. 227,
  236.

Under the Limitations Act (46 U.S.C.A. § 183) the shipowner is not chargeable with privity or knowledge or with design or neglect when he has used due diligence to furnish a seaworthy ship, but he is so chargeable when he has failed in his duty of due diligence and has sent out a ship unseaworthy in some respect that proximately contributes to the loss. States Steamship Company v. United States, 259 F.2d 458 (9 Cir. 1958).

The question this Court must first resolve is whether or not the Motor Vessel Anna S. Cooper was a seaworthy vessel when she departed downstream on the Tennessee River after leaving the Pickwick Landing; whether or not this unseaworthiness, if it existed, was within the knowledge of the petitioner; and whether or not the unseaworthy condition of the vessel contributed to causing the deaths of the claimants.

The petitioner asserts that there existed an unprecedented flood on the Tennessee River at the time of the collision; that the captain of the vessel had several days earlier tied the vessel up at Pickwick Landing because of the flood stage of the river; and that he had then communicated with the petitioner and had been instructed to remain at the landing until such time as, in his opinion, it was safe to proceed on the voyage. The petitioner asserts that at the point where the collision occurred there normally existed a current of approximately one-half mile, which flowed straight through the bridge; but that at the time of the collision, due to the flood stage of the Tennessee River, there was a substantial current of approximately eight to ten miles per hour; and that not only was this current greatly in excess of normal, but it likewise was a cross current which had a tendency to force downbound tows into the bridge pier. Petitioner further asserts that the captain of the vessel was familiar with and knew of the conditions that existed on the Tennessee River during flood stage. It asserts that the captain was negligent in attempting to navigate the Cooper and its tow downstream into what the petitioner asserts was a raging flood; that it was this negligence which caused the vessel to be lost, not any defect of the Cooper.

The evidence bears out the fact that the Tennessee River was at high water stage and that there was a substantial current passing under the bridge, where the collision occurred, at the time of, prior to, ...


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