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OHIO RIVER COMPANY v. CONTINENTAL GRAIN COMPANY

December 19, 1972

THE OHIO RIVER COMPANY, PLAINTIFF,
v.
CONTINENTAL GRAIN COMPANY, DEFENDANT, THIRD PARTY PLAINTIFF, V. OIL TRANSPORT COMPANY, INC., AMERICAN COMMERCIAL BARGE LINES, INC., THE M/V CHICAGO TRADER AND THE M/V BAYOU LA REINE, THIRD PARTY DEFENDANTS. AMERICAN COMMERCIAL BARGE LINES, INC., CROSS-PLAINTIFF CROSS-DEFENDANT, V. OIL TRANSPORT COMPANY, INC., CROSS-DEFENDANT CROSS-PLAINTIFF. CONTINENTAL NAVIGATION COMPANY, PLAINTIFF, V. OIL TRANSPORT COMPANY, INC., ET AL., DEFENDANTS. AMERICAN COMMERCIAL BARGE LINES, INC. OWNER OF THE M/V CHICAGO TRADER, CROSS-PLAINTIFF, V. OIL TRANSPORT COMPANY, INC., OWNER OF THE M/V BAYOU LA REINE, CROSS-DEFENDANT. OIL TRANSPORT COMPANY, INC., CROSS-PLAINTIFF, V. AMERICAN COMMERCIAL BARGE LINES, INC., CROSS-DEFENDANT.



The opinion of the court was delivered by: Edwin A. Robson, Chief Judge.

MEMORANDUM OPINION AND DECREE

The Ohio River Company (Ohio River) and the Continental Navigation Company seek to recover in these suits in admiralty damages to their barges, OR-55 and CNC-195B, respectively. Oil Transport Company, Inc. (Oil Transport) and its towboat, the M/V Bayou La Reine, and American Commercial Barge Lines, Inc. and its towboat, the M/V Chicago Trader, were impleaded as third-party defendants in 69 C 2294. The jurisdiction of this court pursuant to 28 U.S.C. § 1333(1) is apparent from the pleadings and is undisputed.

This court is of the opinion that both Continental Grain Company (Continental) and Oil Transport were at fault and are liable for the damages to the barges. This court is also of the opinion that the complaints against American Commercial Barge Lines, Inc. must be dismissed with costs taxed to the plaintiff and to the third-party plaintiff.

FINDINGS OF FACT

There is general agreement among the parties as to the events which form the base of this litigation although there is considerable dispute as to their causes. On February 2, 1968, the Bayou La Reine and the Chicago Trader were pushing their tows in an upbound direction (towards Chicago) in the Sanitary and Ship Canal. At about 4:30 p.m. both ships passed through the then existing 9th Street Bridge located at mile point 292.7 on the canal. The elevator and facilities owned by Continental are located just above the bridge on the west (left ascending) bank. At mile point 293 above the Continental facilities the canal is divided into two channels by a butterfly dam.

Both tows were proceeding against a strong current caused by the heavy discharge of water at the Lockport Dam at mile point 291, and the water level in the two miles of the canal above the dam was below normal. The Chicago Trader proceeded close alongside the east (right ascending) bank at a speed of less than one-half mile per hour and prior to 5:00 p.m. entered the east draw of the butterfly dam. At about 4:35 p.m., the Bayou La Reine had signalled her intention to overtake and pass the Chicago Trader, which had assented to the maneuver. While the Chicago Trader was in the east draw of the butterfly dam, the tow of the Bayou La Reine went aground in the west draw of the dam. The Bayou La Reine worked her engines in reverse for some time at full power in order to free her tow. While both tows were in the dam, three barges moored at the Continental elevator broke loose from their moorings, drifted out into the canal, and eventually struck the center pier of the bridge. The barges then separated. Barges OR-55 and CNC 195-B drifted under the bridge and were damaged.

The evidence regarding the first element of the libellants' case, that the swells and suction created by the passing vessels caused the barges to break away from their moorings, is somewhat conflicting. Both the bridgetender and the manager of Continental observed the water directly behind the towboats churning severely and the resulting turbulence flowing downstream from the vessels past the dock area toward the bridge. The manager also noticed that all six lines connecting the barges to the shore fixtures had snapped. There was expert opinion testimony that under the circumstances the wheel wash from the vessels would have some effect upon the barges moored at Continental. And there is no dispute that the water level in the canal was extremely low at the time of the breakaway, thus causing the current to be stronger than usual.

Conversely, employees of the Bayou La Reine testified that they did not observe any wheel wash from the towboat during the time that it was working its engines astern and that the wheel wash would emerge in front of the vessel, but their testimony was qualified. There was also expert testimony that a vessel moving forward through the butterfly dam would throw its wheel wash against the opposite wall of the canal from the Continental docks and that the cause of the accident was the recurrent changes in water level and the "traffic back and forth all day long" which caused the barge lines to finally wear and break.

This court concludes that the turbulence created in the canal by the passing vessels caused the barges moored at the Continental facility to break away and to be damaged. There is credible evidence that turbulence was indeed created at the Continental docks and expert testimony that such turbulence could affect barges moored there. In view of the narrow waters involved and the unusual conditions (low water and one vessel aground and straining to free herself) at the time of the accident, the evidence that the vessels could not or did not create sufficient turbulence to cause barges moored at the Continental facility to break free is unpersuasive. Furthermore, the suggested alternative causes of the mishap, variations in water level and the cumulative effect of canal traffic, are not directly supported by any evidence and are unlikely considering the routine precautions of Continental.

The second element of libellant's case is whether the barges were moored so as to resist ordinary turbulence which should normally be anticipated. The practice followed when mooring barges on the canal is for the towboat leaving an empty barge at an elevator to moor the barge with two lines. Continental's practice is to check the lines on all barges, loaded or empty, both in the morning and the evening. Lines which have a strand broken are replaced, and lines which have worked loose are tightened. Sometimes lines left to secure an empty barge are inadequate for use upon a loaded barge and are replaced with Continental's own lines. The manager of Continental made his usual inspections on the day before the breakaway and on the day of the accident itself, walking on the barges and inspecting all six lines each time. All the lines were in good condition. The water level in the canal did fluctuate somewhat during the previous night, but it remained relatively constant and dropped less than one foot during the working day preceding the accident. The records of the bridgetender show that fifteen other vessels passed through this portion of the canal under these relatively constant conditions on the day of the accident without causing any undue disturbance. Under these circumstances this court is of the opinion that the barges were moored in the usual and customary manner employed by Continental and were moored in a manner calculated to resist ordinary and normal swells which might reasonably be anticipated.

Furthermore, the court is of the opinion that the inspection of the mooring of the barges at reasonable intervals by Continental met the requirement of properly watching over the barges "to look, think, and act, that is to look for apparent or threatened danger and once discovering it, to think how to avoid or meet the danger, and to act to avoid or meet its effect." Mulzer v. J. A. Jones Construction Co., 397 F.2d 498, 500 (7 Cir. 1968). In Mulzer the danger to a barge was allowed to develop slowly over a long weekend and could have been discovered by periodic inspections. The lack of such care, not the failure to post a lookout who would watch over the barge continuously, constituted the negligent act of the bailee in Mulzer.

However, the fact that the barges were moored in a manner calculated to resist swells and turbulence normally to be anticipated does not mean that they could not have been better secured to meet the somewhat unusual conditions which occurred on the day of the accident. There was expert testimony that the three barges at the Continental docks could have been better moored in three respects: a breast line could have been used as well as the two end lines which were actually used, all three barges could have been each moored directly to the shore instead of two barges being moored abreast, and lead lines could have been used on each barge.

The Continental elevator has three cells located in the canal to which barges may be moored and a sunken barge immediately to the north of the cells which is also used for mooring. On the day of the accident the barge RBL-115 was moored between the center and the south cells. The barge CNC-195B was touching the RBL-115 and was tied to the sunken barge. The barge OR-55 was parallel to and tied to the CNC-195B. Although no barges were being loaded that day due to low water, Continental moored the barges in this manner in order that the OR-55 could be passed downstream underneath the grainspout without disturbing the other barges.


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