PASCO MARKETING, INC., a corporation, Appellee, v. TAYLOR TOWING SERVICE, INC., a corp., Appellee, and Security Barge Line, Inc., a corp., Appellant.
No. 76-1350
United States Court of Appeals, Eighth Circuit
Submitted Jan. 11, 1977. Decided March 11, 1977.
As Amended on Denial of Rehearing and Rehearing En Banc May 13, 1977.
554 F.2d 808
6. Publications issued and filed hereunder shall be exempt from the supplemental and volume limitations of the tariff circulars, shall contain no other matter and shall bear the following notation: “Issued on one day‘s notice; I.C.C. permission No. 74-2525”
7. That the authority granted by Special Permission No. 74-1825, as amended, be, and it is hereby, rescinded, to the extent it applied to motor common carriers, except to the extent that supplements filed thereunder and which provide increases of 6 percent or more, the rule relief granted therein shall remain in effect until March 16, 1974; on or before that date any motor common carrier maintaining such a surcharge must obtain separate special permission authority from this Commission to continue the effectiveness of such surcharge.
8. Any surcharge of less than 6 percent filed under authority of Special Permission No. 74-1825, as amended, regardless of whether presently in effect, or filed but not yet effective, may be retained and incorporated, but such new surcharge including that retained may not exceed 6 percent.
9. Any surcharge which exceeds 6 percent may not be filed until separate special permission authority from this Commission is obtained; if such special permission application requests authority to file a surcharge on less than lawful notice, appropriate data, properly explained and supported, must accompany the application.
10. Only one surcharge as to a tariff may be in effect at one time, and any surcharge filed under authority of this permission shall not provide for any exceptions (non-application) with respect to any particular tariff.
11. All outstanding orders of the Commission are hereby modified to the extent necessary to permit the filing of the tariffs authorized herein. Increases filed hereunder shall not be deemed general increases or general adjustments as defined in
12. The requirement of following rate bureau procedures provided in agreements approved by this Commission under
13. Notice of this permission shall be given to the general public by mailing a copy of this order to the Governor of each State and to the Public Utilities Commissions or Boards of each State having jurisdiction over transportation, by depositing a copy in the Office of the Secretary, Interstate Commerce Commission, Washington, D. C., for public inspection, and by delivering a copy to the Director, Division of the Federal Register, for publication therein.
C. Perry Bascom (argued), Robert G. Brady and David S. Slavkin, St. Louis, Mo., on brief, for appellee, Pasco, Inc.
Bryon D. Luber, Caruthersville, Mo., made argument and filed appearance for appellee, Taylor Towing; James E. Reeves, Caruthersville, Mo., on brief.
Before LAY, ROSS and WEBSTER, Circuit Judges.
LAY, Circuit Judge.
A dock near New Madrid, Missouri, owned by Pasco Marketing, Inc., was damaged when two barges (CW-7 and SR-354) owned by Security Barge Line, Inc., struck it on January 29, 1973. Security had contracted with Taylor Towing Service, Inc., to tow the barges to Noranda Aluminum Company‘s dock at New Madrid. If the Noranda dock was full Taylor Towing would tie the barges to a tree downstream and move them at Noranda‘s order to the latter‘s dock. Security paid Taylor Towing $125 for the first tow. When it was necessary to moor the barges to a tree and later move them to the Noranda dock, Noranda paid Taylor Towing an additional $75. If Security so requested Taylor Towing would return the barges to Security for another $125.
On January 26, 1973, Taylor Towing took the two barges off of Security‘s tow. Noranda‘s dock was not available so Taylor Towing moored the barges to trees along the riverbank. On January 29, 1973, for some unexplained reason, the cable broke and the two barges drifted downstream where they collided with Pasco‘s dock.
Pasco brought suit in admiralty claiming damages to its dock. It named both Security and Taylor Towing as defendants. Security cross-claimed for indemnity from Taylor Towing alleging that Taylor Towing warranted that it would detach and fleet the barges in a workmanlike manner and therefore any damage was caused by Taylor Towing‘s negligence and breach of its warranty of workmanlike service.
The district court found no fault on the part of Taylor Towing and awarded judgment for Pasco and against Security in the sum of $36,250. The district court denied Security‘s claim for indemnity against Taylor Towing. Pasco Marketing, Inc., v. Taylor Towing Service, Inc., 411 F.Supp. 808 (E.D.Mo.1976).
On appeal Security argues that its arrangement with Taylor Towing was a bailment and Security was therefore not liable to Pasco, or, if liable, that Taylor Towing should indemnify Security. It also contends that the district court‘s assessment of damages was erroneous. Pasco has not appealed the finding of no fault on the part of Taylor Towing.
Security‘s Liability.
The district court found that when a collision is caused by a vessel drifting from her moorings, the moving vessel is presumed to be at fault until the presumption is offset by affirmative proof that absolves her. See The Louisiana, 70 U.S. (3 Wall.) 164, 173, 18 L.Ed. 85 (1865). Under the presumption all parties agree that Security had the burden of proving exoneration from liability.
Security attempted to offset the presumption by establishing that Taylor Towing was a bailee, not a contractor for towage, and that reasonable implications from the agreement required Taylor Towing‘s continuing care of the barges while they were tied to the trees because they were still waiting their final destination.
The district court found no bailment because Taylor Towing did not assume con-
Security, an absent owner, was in constructive custody of the barges. It failed to come forward with any evidence to exonerate it from responsibility from the broken mooring, and it remains liable to Pasco for the damage caused.
Taylor‘s Liability.
Since Pasco has not appealed the exoneration of Taylor Towing from liability, we do not discuss the evidence as it affects this finding.
Security‘s Cross-claim.
By reason of the failure of Pasco or Security to prove any negligence of Taylor Towing, the district court reasoned that Taylor Towing was not liable to Security on the latter‘s cross-claim for indemnity. We cannot agree.
The evidence is undisputed that broken cable, not improper mooring, caused the barges to break loose. The seven-eighths or one inch cable used was allegedly owned by Security, but Taylor Towing admitted it had taken it from other Security barges and had used it in the past to moor tows. The barges here had been secured on January 26, 1973, and the cable broke three days later. There was no evidence of high water or inclement weather which may have caused the barges to break loose.
It is true that there is no affirmative evidence that Taylor Towing was negligent. There is no evidence that the barges were improperly moored to the tree (cf. Dow Chemical Co. v. Barge UM-23B, 424 F.2d 307 (5th Cir. 1970)), or that Taylor Towing had any continuing duty to exercise due care to safeguard the barges while they were temporarily moored at the trees. Cf. Thorne, Neale & Co. v. Reading Co., 87 F.2d 694 (2d Cir. 1937). Nor is there affirmative evidence that Taylor Towing improperly in-1spected the mooring after it was secured. In fact, the trial court specifically found that Taylor Towing had properly inspected the mooring. However, we think this latter finding crucial to the question of whether Security may obtain indemnity against Taylor Towing.
A tug, of course, would be at fault if it inadequately secured a barge. This would be so whether it was performing under a towage contract or under a bailment. In this context, a tug using a cable which it knew was defective or weak, and regardless of who owned it, would be responsible for its tow going adrift just as if it had failed to tie or secure the tow. The recognized rule has long been that a tug is bound to properly moor and make fast an unmanned barge it delivers, and that drifting which occurs within a short time thereafter, presumptively establishes fault on the part of the mooring vessel. See Monsanto Co. v. Edwards Towing Corp., 318 F.Supp. 13 (E.D.Mo.1969); The Norwich Victory, 77 F.Supp. 264 (E.D.Pa.1948), aff‘d sub nom., United States v. Dump Scows No. 116, No. 120 and No. 122, 175 F.2d 556 (3d Cir.), cert. denied, American Dredging Co. v. United States, 338 U.S. 871, 70 S.Ct. 147, 94 L.Ed. 534 (1949). When this presumption operates the duty of producing evidence shifts to the mooring vessel to show that it exercised the due care required of it.1
Thus, as we view the record, as between Security, the owner, and Taylor Towing, the mooring vessel, this presumption of fault is applicable unless, as the trial judge found, the barges were properly secured and the moorings inspected before Taylor Towing left them unmanned.
The difficulty we have with the present record is that Paul S. Taylor, the owner of Taylor Towing, was the only witness for the tug and his proof is highly inconclusive as to whether on January 26, 1973, the mooring was secured and whether the cable was adequate to hold the barges.
Under the circumstances, although in its defense against Pasco, Security failed to prove that Taylor Towing was at fault, nonetheless as between the tug and the tow, under the cross-claim, the mooring tug was required to show that it was not at fault. Since it failed in this, we find that Security may hold Taylor Towing for indemnity. Security‘s fault, as the distant owner, is merely passive in comparison to the more active role of the tug. Under the circumstances, as between the two, the mooring vessel is the best party to assume the ultimate fault.
We find the trial court‘s award of damage not clearly erroneous.
The judgment against Security and for Pasco is affirmed; the judgment on the cross-claim against Security and for Taylor Towing is reversed; and the cause is remanded to allow indemnity for the amount of the judgment against Taylor Towing and for costs and attorney fees.
WEBSTER, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority that the judgment in favor of Pasco, the injured dock owner, against Security, owner of the barges, should be affirmed.
I disagree, however, with its conclusion that Security is entitled to indemnity from Taylor Towing. The majority opinion states:
Under the circumstances, although in its defense against Pasco, Security failed to prove that Taylor Towing was at fault, nonetheless as between the tug and the tow, under the cross-claim, the mooring tug was required to show that it was not at fault.
I respectfully disagree.
The District Court found that the barge had been moored to the shore in a workmanlike manner. It is undisputed that the barge was moored to a tree and that it remained at its mooring for three days. There is simply no basis for holding the District Court‘s finding to be clearly erroneous. There was no evidence to the contrary unless it be found in a presumption arising from the barge going adrift.
Cases relied upon by the majority are not persuasive and are readily distinguishable. In Monsanto Co. v. Edwards Towing Corp., 318 F.Supp. 13 (E.D.Mo.1969), the barge came adrift in less than five hours. In The Norwich Victory, 77 F.Supp. 264 (E.D.Pa.1948), aff‘d sub nom., United States v. Dump Scows No. 116, No. 120 and No. 122, 175 F.2d 556 (3d Cir.), cert. denied, American Dredging Co. v. United States, 338 U.S. 871, 70 S.Ct. 147, 94 L.Ed. 534 (1949), the time interval was three or four hours. The majority cites no authority for extending a presumption of fact arising from drifting “a short time” after mooring1 to a period of three days. The functional reliability which might support a presumption for four hours is certainly dissipated after three days. Once the barges had been properly moored, the duty of the tower was at an
I would affirm the District Court in all respects.