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First National Bank of Chicago v. Material Service Corp.

November 5, 1976


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 C 1967 - Richard B. Austin, Judge.

Author: Bauer

Before CUMMINGS and BAUER, Circuit Judges, and JAMESON, Senior District Judge.*fn*

BAUER, Circuit Judge. The disposition of this admiralty collision case depends on whether the rule of The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148 (1873), should have been applied by the district court. The rule shifts the burden of proof in collision cases to the defendant if its vessel was in violation of a statutory navigation rule at the time of the collision.


On April 20, 1973, at about 8 p.m., appellant's decedent, Wayne J. Hart, was approaching the Congress Street Bridge in the South Branch of the Chicago River from the south in his 16-foot long motorboat. The defendant's barge tow, consisting of two barges, each 195-feet long and 35-feet wide, lashed abreast of each other and being pushed by a towboat, was traveling southbound to Lockport, Illinois. When the pilot house of the towboat was about 50 feet north of the Congress Street Bridge, the tow's pilot saw the red (port) running light of the decedent's boat approximately 800 to 1000 feet away. He blew his whistle once to signal that he would direct his course to starboard for a port-to-port passing. As the pilot steered starboard, he noticed the green (starboard) light of the decedent's boat as well as the red (port) light. This indicated that the small boat was proceeding directly toward the tow. The pilot then steered hard to starboard, eventually driving the bow of the starboard barge into the west wall of the river about 40 feet south of the Congress Street Bridge. Seconds later the decedent's boat crashed into the bow of the port barge and capsized, throwing its occupants into the water. The decedent and one of his passengers drowned.

At the time of the collision, the barge had red and green directional lights at the corners of its bow and a flashing amber light at its center head. The towboat had red and green directional lights on the roof of its pilot house. The forward-facing white light on its pilot house was not illuminated. The motorboat was illuminated by a combination red and green light on its bow and a white light mounted atop a pole in the center of its stern.

A few moments prior to the collision, the mate on the tow barge who was acting as a lookout on the bow of the port barge started to walk back to the towboat to obtain a jackstaff, a device used to gauge the wind's velocity and direction. The mate did not see the decedent's boat before the collision.

Plaintiff, the executor of the decedent's estate, filed this action in admiralty for damages arising from the decedent's wrongful death allegedly caused by the defendant's violation of maritime duties, an action recognized by the Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). The case was tried by the district court without a jury. Following the receipt of evidence, the court entered judgment for the defendant after finding that the plaintiff bore the burden of proving that the defendant's negligence was a contributing cause of the accident; that the burden was not met; and that the plaintiff's negligence was the sole cause of the accident.

On appeal, the plaintiff argues that the district court erred by placing the burden of proof on the plaintiff. It maintains that the rule of The Pennsylvania should have been applied to shift the burden of proof to the defendant because the defendant was operating its vessel at the time of the collision in violation of the applicable navigation rules. As a consequence, plaintiff asks us to reverse the decision below because the defendant did not present evidence to meet the strict burden of proof mandated by The Pennsylvania rule.


As this Court noted in Complaint of Wasson, 495 F.2d 571, 580 (7th Cir. 1974): "The Pennsylvania rule is long-settled law and should be strictly applied." In The Pennsylvania the Supreme Court stated the rule as follows:

"The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute." 86 U.S. at 136.

The statutory rules "intended to prevent collisions" that the Supreme Court alluded to in The Pennsylvania are the four sets of navigation rules in the United States Code and the "Pilot Rules" issued by the Coast Guard to supplement the statutory enactments. The navigation rules are the Great Lakes Rules, 33 U.S.C. §§ 241-95, applicable to vessels on those lakes and their connecting and tributary waters; the Western Rivers Rules, 33 U.S.C. §§ 301-56, applicable to vessels on the Mississippi River and its tributary waters; the International Regulations, 33 U.S.C. §§ 1051-94, applicable to United States vessels on the high seas; and the Inland Rules, 33 U.S.C. §§ 151-232, applicable to vessels on all other inland waters under United States jurisdiction. Pilot Rules have been promulgated for each set of statutory navigation rules. 33 C.F.R. §§ 80.01 to 96.10-1. Because they have been promulgated pursuant to authority delegated in the statutory rules, see, e.g., 33 U.S.C. § 243, the Pilot Rules have the same ...

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