Walter Douglas Nunley v. M/v Dauntless Colocotronis, United States of America and Combi Lines v. Point Landing, Inc.

455 power being nection with new substation ee in question injured was was the sort of employer, project principal built an electrical which the coopera- usually em his ployed tive. own employees perform (e.g., The Louisiana Court found that new construction or routine design “trade, repair).” was Hall work not within the Corp., 983, 987 v. Crown Zellerbach 715 F.2d business, of occupation” the employer. (5th Cir.1983). Indeed, our cases have over Id. at 529. whelmingly upon relied indicating facts Appellant argues that Benson required principal its employees used own proof that the employees owner’s own actu- perform similar projects elsewhere within ally perform the work specific question in its operation validating the use of sum in order to find the existence the statuto- II, mary judgment. supra; Blanchard See ry employer relationship. We find Barrios, Darville, supra; Fomo, supra; be a misconstruction of Furthermore, supra. Hodges was not only considering Benson Court. In whether the engaged project in a work that Exxon’s performed work part Benson was employees per had on other occasions trade, business, employer’s or occupation, themselves, but formed as we previously Supreme Louisiana Court focused out, pointed project itself was the fact the employer that had no employee “trade, within the occupation” business or done, of its own who had ever capa- was plasticizer Lewis, of Exxon’s facility. See ble of doing, the work performed by Ben- 441 supra, So.2d at 197. Benson, supra, son. 436 at 529. Far So.2d from requiring actual performance of Conclusion work in question, the pointed Benson Court We find no material fact in dispute here. out that because there no employee grant The District Court’s summary the principal who could have done or had judgment in favor of appellee Exxon was work, ever done the no employee “custom- correct. arily” did the work. Id. AFFIRMED. Our justifi- conclusion this case is also able under Corp., Forno v. Gulf Oil (5th Cir.1983), where we found that

employees a painting contractor were

statutory employees of the principal despite

the fact no principal employed painters of its own at the facility ques- NUNLEY, Plaintiff, Douglas Walter tion. upheld summary We grant v. the principal, finding it suffi- cient that employed painters Gulf Oil COLOCOTRONIS, M/V DAUNTLESS various throughout other facilities the coun- al., Defendants, et try. Id. at 797. UNITED STATES of America and Combi recognize We showing that Lines, Defendants-Appellants, particular performed task al by the v. leged statutory employee could have been LANDING, INC., al., POINT et performed own principal’s employees Defendants-Appellees. would inadequate itself justify finding employ No. 81-3366.

er relationship existed. Penton v. Crown United States of Appeals, Corp., Zellerbach Fifth Circuit. Cir.1983); II, supra, Blanchard at 71. See March Inc., also Guinn Progress Drilling, (La.App.1981). Rather, So.2d

more inquiry relevant centers around project

“whether the employ- on which the Div., Branch, Kossow, Civ. Torts

Debra J. D.C., Justice, Washington, Dept, U.S. U.S. Poitevent, Walker, Waechter,

Jones, Salley, Fred E. Estelle Denegre, Carrere & La., Orleans, E. Combi Mahoney, New Lines. Uzzelle, III, Lankford, III,

G. Hamp Alex 1983). Finding that the district court has Mobile, Ala., for Melching Dravo Inc. made an interpretation law, erroneous en court banc vacates the district Reuter, Pizza, Reuter & F. Normand New court’s and remands. Orleans, La., Fleeting, for Zito Inc. Ward, Jr., La., J. Orleans, Walter New I.

for Zito Fleeting, Towing Zito High- and facts underlying litigation The are lands Ins. Co. adequately set forth in the district court’s Gooch, Jr., Orleans, John La., B. New opinion. Nunley, See 513 F.Supp. at 721- Landing. Point the Assuming 22. allegations the

complaint can be proved, as the motion for on judgment pleadings requires, Com- barge (the COMBI) bi Lines was sunk in 1974, through appel- of the CLARK, Before Judge, Chief and (the lees upriver defendants).2 years Three GEE, BROWN, RUBIN, GARZA, REAV later, the unmarked wreck was struck LEY, POLITZ, RANDALL, TATE, JOHN The DAUNTLESS. owners SON, WILLIAMS, GARWOOD, JOLLY allege COMBI in turn that were they not HIGGINBOTHAM, and Judges*. Circuit failing in to mark the wreck. JOLLY, E. GRADY Judge: Circuit Multiplicitous litigation followed each litigation event. The arising orig- from appeal comes to us from a judgment inal 1974 sinking settled in October on pleadings of appellees favor who finding 1979 without any or admission of were defendants and third-party defend- guilt part any parties. on of the ants six admiralty consolidated in- cases tertwined in a 1977 collision of the M/V spawned The 1977 collision the six consol- (DAUNT- DAUNTLESS COLOCOTRONIS idated cases were which before the district LESS) with a sunken wreck. The appellees court. The to the parties consolidated ac- alleged are to have the sinking caused three tions included the captain, DAUNTLESS’s years before the Tenneco, DAUNTLESS collided Nunley; owner of with the by its or unmarked owner cargo; DAUNTLESS’s the DAUNTLESS’s States, owners; the United each whom alleged States; the United the COMBI’s have responsible owners; to been or marking alleged and the sinkers of the removing COMBI, the wreck under the Wreck Act.1 the upriver upri- defendants. The The ruling appealed from is the district ver defendants a motion filed court’s holding that “the that, Wreck Act makes pleadings, claiming if they even only proximate of a collision be- had caused the original sinking of COM- tween a vessel, BI, wreck and another the fail- they under no set of facts could ure mark and/or remove the claimants, wreck.” liable to of the cross-claim- Nunley Colocotronis, ants, M/V Dauntless or third-party damages claimants for F.Supp. 720, (E.D.La.1981). A resulting divided from the collision of the DAUNT- panel this court the judgment vacated with the sunken LESS wreck. basis remanded. 696 F.2d 1141 Cir. argument for this is that the Wreck Act * Judge Garza, circuit, judge portions pertinent now a senior of this Act. For the to this participating panel as a member of the ini- 459, pp. opinion, see infra 460 & notes 3 & 4. tially deciding appeal subject now en Judge banc not a review. Davis was member upriver 2. are defendants this case Point of the court when this case was submitted Inc., Inc., Landing, Fleeting, Barge Zito Federal participate the court en and did banc not Inc., Co., Lines, Lykes Steamship Brothers Mid- of this consideration decision. Inc., Enterprises, Inc., Mechling, land Dravo Towing respective Admiral River and their Sections & 20 Rivers and companies. insurance (33 Harbors Act of 1899 U.S.C. §§ 415) collectively are & known as and, the effect of the COMBI’s of a must consider sunken vessel

obligates the States, (a) it was pleadings, in some circumstances either alternative wreck, and, since mark or remove the and it tenders the free of fault entirely (the actual sinkers upriver defendants DAUNTLESS, defendants upriver they vessel) obligation, no similar legally as to (b) may have been at fault it arising out the DAUNT- have no indemnity but entitled to the DAUNTLESS the COMBI. allegedly striking LESS’s defendants; (c) may upriver from plead While owners COMBI jointly at fault with the have been are therefore they negligent, were not entitled contribution. defendants and liable, DAUNTLESS they tender (1) if reverse the dismissal because: We 14(c) the as defendants under Fed.R.Civ.P. the COMBI or either that, They assert upriver defendants. also failing both, free of fault in entirely were are at fault hence liable they if found mark, may be defendants DAUNTLESS, to they are entitled to directly; (2) to the DAUNTLESS liable upriver indemnity contribution from the or is entitled to re- though the DAUNTLESS defendants. or the United States cover COMBI Act, Rivers 15 of the and Harbors Section liable to negligent, if either was Act, provides also known as the Wreck to con- may be entitled the DAUNTLESS pertinent part: upriver defendants. tribution from voluntarily It shall be lawful ... to not sink, permit or or cause to be carelessly or II. sunk, navigable vessels or other craft in vessel, channels.... And whenever A. raft, or other craft is wrecked and sunk is Act it The Wreck declares channel, accidentally in a or navigable sink, or voluntarily carelessly “to illegal otherwise, duty it shall be the sunk or other permit or to be vessels owner sunken immediate- of such craft to ” craft in channels.... 33 U.S.C. navigable during mark ly buoy it with a or beacon prohibition scope and statute’s § day lighted night, at and lantern and apply to both owners non-owners and to maintain such marks until intentionally vessels who abandoned, sunken craft is removed or Texas University cause them to sink. the neglect and of the said failure Medical Branch at Galveston v. United unlawful; shall be and so to do States, 438, (5th Cir.), 557 444 cert. F.2d duty shall be the owner such denied, 820, 84, 439 99 58 L.Ed.2d S.Ct. U.S. sunken craft commence the immediate (1977). requires 111 The statute further same, removal of the and such prosecute wreck, the owner of a sunken whether removal and to do so diligently, failure immedi causing sinking, fault or not in shall be as an considered abandonment of subsequently wreck and ately to mark the re- craft, subject such and the same wreck, removal of the to commence the moval by provided the United States as constitute an aban 416, 418, 502 failure of which shall sections 411 to and vessel, which shall title. donment then subject States. removal 33 found U.S.C. 409. The district court § However, the Supreme United States the Wreck Act made the failure intend has held that the enactment was not proxi- mark or sole remove wreck the exclu make remedies ed to subsequent with mate cause of a collision sive, principles of tort liabil that under sunken as a of law and vessel matter subject ity the non-owner is dismissed the claims obligations provided liabilities and It is this which we defendants. statute, by the such as reimbursement correct, If this then consider en banc. removing the or the the costs of wreck properly rendered in favor relief, re- injunctive not, obligation, through defendants. If then we 459 move Wyandotte the sunken vessel. duty Trans- of negligence. terms For duty portation v. 191, Co. United 389 U.S. instance, to arise in the first the owner 200-05, 379, 385-87,19 88 L.Ed.2d S.Ct. 407 must be notified of the sinking and be (1967). given a reasonable time in which to accom- plish marking. Berwind-White Coal previously circuit has delineated the Mining obligations Pitney, (2d and duties of the Co. 187 F.2d parties various 668 to a sinking Cir.1951); under the Wreck Towing Act. We Red Star & Transporta- summarize those obligations Woodburn, duties tion Co. v. 18 (2d F.2d here. Moreover, Cir.1927). if the United States lights itself and marks the this re- Act is not a duty lieves the owner’s to mark. Humble without fault statute. It imposes first lia Crochet, Oil Refining Tug & Co. v. 422 F.2d on a bility person whose fault causes a (5th Cir.1970). Finally, we have requires wreck. It next the owner of a that, held if an owner diligently good vessel, regardless sunken of his fault or lack faith searches for his sunken vessel but thereof in causing sinking, immediately it, cannot to mark the find he has obliga- wreck. 33 U.S.C. 409.3 fulfilled his In re Services, Inc., Marine Leasing tions to under the mark Wreck Act. Allied (5th Cir.1973). Chemical Corp. Tankship v. Hess (5th Cir.1981). Neverthe- Thus, when a danger navigation less, in keeping general with the principles established in the vessel, form of a sunken of maritime tort that an innocent party places statute a duty easily on an deter- should not be made to suffer while the minable figure, wreck, owner of the to party at escapes liability, fault Wyandotte, ensure that the danger of the obstruction is supra, at U.S. 88 S.Ct. at immediately by lessened its marking or re- jurisprudence permits party moval. In this that incurs wáy, may wreck be the marking expenses marked and removed and removal quickly, thus to recov- reducing the chance that it will injury to oth- er these from the party negligence whose ers. We have judged performance of this caused the sinking. regulations enforcing

3. The right this section are removed of the owner to abandon provide perti- found at 33 legally C.F.R. 64.01 and in § established and has been exercised. part: nent Marking by 64.01-10 § the U.S. Coast Guard. 64.01-1 § General. (a) When the District Commander within (a) The owner of a vessel sunk in the navi- jurisdiction whose a sunken vessel is located gable waters of the United States who fails to suitably determines that the wreck is not immediately protec- mark the wreck for the protection marked the owner for the navigation buoy daymark tion of with a navigation, may he mark the wreck in such during day light night may, and a at in long manner and for so as in his being addition to in violation of 33 U.S.C. navigation require. the needs of maritime resulting damages be liable for marking by public.... costs of such the Coast charged Guard will be (b) to the owner of the The Coast Guard is authorized to mark protection wreck. navigation any for the sunken (b) When the District vessel Commander within or other obstruction that is not suit- jurisdiction ably Marking by whose a sunken obstruction oth- marked. the Coast Guard er than a any vessel is located determines that does not relieve the owner of such ob- suitably duty responsibility the obstruction is not struction from marked for the and - protection suitably navigation, may to mark he mark the the obstruction and remove required by long it as obstruction as, such manner and for so law. Marking by judgment, 64.01-5 his the needs of maritime § owners. Buoys, daymarks, lights navigation require. and established The costs of such mark- ing charged owners of sunken vessels will or other obstruc- be to the owner of the ob- pro- navigation per- tions to mark such obstructions for the struction. When the needs of mit, navigation tection of shall conform to the the owner will be informed that system buoyage prescribed by lateral part Sub- obstruction should be marked will and chapter. markings opportunity 62.25 of this Such afforded reasonable to mark the shall be maintained until the obstruction obstruction. in terms of duty response owner thereto vessel who causes A good his and in may diligently vessel not thereafter the owner sinking gence. If vessel carry duty, his to the United States. If abandon to out faith endeavors subsequently fails to remove sunken he he has find that circuit has refused wreck, is liable for the owner injured statutory duty. A breached a subsequent cost of removal and for all dam- failure to mark need look by the owner’s resulting vessel’s continued ages from the The owner only recovery. owner for navigation. with Humble Oil interference however, by showing himself may, absolve 608; Refining 422 F.2d at Tennessee & to mark was not due the failure Delta, Valley & Gravel Co. v. M/V Sand part. It is not free- fault on his whatever (5th Cir.1979). As with the causing sinking dom from mark, however, duty when scrupu- only but that relieves the owner good diligently owner has faith fault of his without duty lous observance for his but cannot searched sunken vessel mark the vessel. it, find our case has refused find that law remove a breach of failure to constitutes B. Act duty. the Wreck Allied Chemical ves- of a sunken non-negligent 661 F.2d at Corp., 1061. his craft to the sel choose to abandon A vessel owner whose craft is sunk under the Wreck Act. See United States through no fault of his own is still under a Valley, 598 F.2d at 934. When Tennessee duty remove the Ten so, subject to he the wreck becomes does Valley, nessee but he has government. U.S.C. removal option raising of either him vessel determining government’s 409. In § recovering the costs of removal self duty at we have scrutinized oth- point, party responsible sinking, and 14 er of the Wreck Act U.S.C. sections abandoning the vessel to responsibility which then bears the removal; deciding upon if the Secretary Section 409 authorizes remove, may does recover removal States discretion, to remove a the in his Army, negligent party. costs from the Tennessee the has failed to sunken vessel when owner F.2d Valley, non-negli 598 at 934. If Bayou Transportation so. Co. v. do Buffalo option gent owner chooses the second States, (5th 677 Cir. United States, the vessel to the United he abandons 1967). 4144 authorizes the likewise Section is liable neither for the cost of removal nor discretion, up, at his to break Secretary, any damages for third parties suffered remove, dispose or otherwise an sell of the as a result wreck. Id. obstructing abandoned wreck is navigation navigable river. 33 Thus, circuit, of a U.S.C. diminishing while not Furthermore, navigation, 414. way duty protect any stringent which § Secretary of imposes, Act viewed the 14 865 authorizes the has owner’s U.S.C. § tion, any damage pertinent part: provides 4. 33 U.S.C. 414 without owners of the same.... river, lake, any navigation Whenever sound, harbor, canai, bay, navigable or other part: provides pertinent 14 86 5. U.S.C. § be waters of United States shall obstruct- Secretary may protection mark for the boat, endangered vessel, by any ed or sunken any navigation vessel or other ob- sunken craft, obstruction, raft, similar water or other existing navigable waters or struction longer existed and such obstruction has of the the continental shelf waters above long days, period thirty for so than or whenever in such manner and United States as, judgment, maritime the needs of in his abandonment of such can be le- obstruction require. navigation of such an time, The owner gally space of established in a less be to the United shall liable vessel, craft, obstruction boat, raft, sunken water or oth- marking such of such until for the cost subject er obstruction be to be broken shall or its obstruction is removed time as the removed, sold, up, disposed of or otherwise legally or until established abandonment Army Secretary at his discre- of the Secretary may deter- time as such earlier wreck, sunken an Transportation given option: to mark vessel but is he may existing or other on the naviga- obstruction either raise himself the vessel and seek ble waters “in such manner for so long recovery expenses of the from the party as, in his needs of judgment, maritime responsible sinking, for the or he may navigation require.” abandon the vessel and allow the United States to bear the burden removal and We have held that previously govern recovery of expenses ment no mandatory duty has to remove party. navigable “each sunken vessel” in waters. Buffalo Bayou Transportation, 375 F.2d at (citations Tennessee at 934 Valley, 598 F.2d 677. The discretion statutory granted to omitted). government determining whether to wreck, mark however, or remove a sunken II. requires Secretary utilize due care The statutory is language completely ab- remove, if he and, undertakes to mark or sent of any indication that either the failure perhaps, in the decision making whether or of or, the owner to wreck mark the in the to act. Canadian Pacific (Bermuda) so, event of his failure to do the expressly Ltd. v. F.2d 1168 discretionary power of the United States to (5th Cir.1976).6 The United States is also it, mark or remove was intended to relieve duty by liable if it regu assumes-a its own a negligent of its liability tortfeasor perform lation and fails to damages to causing others. In duty. Navigators Transorient S.A. v. holding that non-owner may Southwind, M/S Cir. be held removing liable for the costs of 1983). does Canadian Pacific not explicitly wreck principles, under ordinary Wyan- tort government’s determine the scope dotte, supra, Supreme Court has said and, duty, purposes determining the the Wreck Act’s language us, issue so, before not do we need in view legislative history devoid of intent of the allegations pleadings. In stat that, Act, party “a who negligently context, utory provisions the Wreck Act sinks a vessel shielded per- should be from merely authorize pro States to sonal responsibility.” 389 U.S. at ceed either to mark or remove the sunk Ct. at 385. en so, vessel when the owner fails to do but We here on the plead- review a they do not impose mandatory duty on ings, which insofar affirmed must as and, to remove the based therefore, upon premise that under no set of United States not liable to circumstances could the have a claim third for its failure do so. Buffa directly, lo defendants Bayou Transportation Company Unit States, 675, ed even if the (5th 375 677 owner and United Cir.1967). States Indeed, fault; that, now, until we described the were found free of if the owner fault, effect of the owner’s non-negligent aban is found at in no of circumstances set donment upon the States in only United could it be found entitled contribution defendants; terms of its granting that, from the if discretionary right remove the vessel and at fault United is found under no States recover the thereof from resulting costs right set of it have a circumstances would negligent tortfeasor: indemnity upri- or contribution ver jurispru-

The owner sunk defendant of a vessel without tortfeasors. any that, negligence exceptional dence part subject recognized on his is still has circumstances, the statutory may to remove obligation United States Act, 742, Admiralty shall 46 mine.... This section not be con- The Suits U.S.C. strued so as to relieve the owner of such be sued in under which the United States duty responsibility immunity obstruction from the admiralty, governmental disavows suitable to mark the same and remove it as such suits. required by law. 462 of a collision between proximate cause only damaged to third persons

held liable was the failure vessel a wreck and another an unmarked collision with subsequent 724. The F.Supp. 513 at Nunley, the circum to mark. familiar is readily wreck. Most Judge Learned ruling was basis for this has affirma the United States stance when Towing & in Red Star opinion Hand’s the wreck but to mark tively undertaken Woodburn, 18 F.2d 77 v. (a Co. Transportation do so negligently fails to thereafter read Red Star Cir.1927). We do not (2d here asserted of the cause of action premise than dis broadly. Rather so Towing Towing quite States). Indian against the United cause of a subse proximate 61, 69, cussing the sole States, 350 U.S. Company United wreck, the Second with the 126-27, (1955); quent collision 122, 100 L.Ed. 48 76 S.Ct. fail effect, the owner’s held, in States, 90, (5th Circuit 505 F.2d v. United Greer intervening superseding a effect, ure to mark was See, Cir.1974). general to similar on the any liability which eliminated (Bermuda) Limited v. Pacific Canadian tort-feasor, 1165, original part Cir. United Red sinking the vessel. See for responsible a claim 1976) (rejecting The court F.2d at 79. Towing, 18 in maintenance of Star negligence for its States a fault of potential of which further discussed the maintenance waterway, a the wreck after collided with vessel which because the Unit legally responsible, it was location. Id. the wreck’s being advised of knowledge of the prior ed had no States unneces would have been a discussion that caused an acci Such existence of a shoal cause of the noted, proximate sary we if the sole dent). already we have do As rested on the owner’s collision subsequent whether not undertake to determine remove the wreck. to mark or negligently failing failure government is liable for if it only a or is liable to mark negligently, and does so

undertakes to mark B. developed. yet the facts are not because ob- preventing purpose To further its waterways, see the nation’s structions in III. 385, 201, 88 at S.Ct. Wyandotte, U.S. either the owner or Should easily iden- duty places the Wreck Act however, liable, their be held sunken ves- the owner of a tifiable parties: se, regarded, per as su- gence cannot be wreck, and the mark the immediately to sel exonerating perseding cause to mark or in some cases United States whatsoever any liability tortfeasors from establishes duty wreck. That remove the resulting from their damages primarily ordinary mar- applicable standard of care ordinary admiralty negligence, and under The Bohemian actions. negligence itime initial principles tort the causal 464 n. 64 S.Ct. Club, 320 U.S. defendants that contributed policy of (1943). 226 n. 88 L.Ed. make them the later accident should responsibility and both the squarely placing share of the apportioned liable for their subsequent v. Reliable Trans- loss. United States See owner, responsibility on breach of that 397, 411, 95 S.Ct. fer U.S. States, serves cases the United or in some 1715-16, (1975). 44 L.Ed.2d 251 Act. the Wreck enforcement of to ensure A. Cir extent the Second To the liable, negli whether cuit holds the owner long a line interpreted court The district mark, disagree.8 we failing or not in gent cases7 as of Second Circuit court, opinion (N.D.N.Y.1955), of trial aff'd relied district court on which the 7. The cases Cir.1956). (2d (2d Fahy, 436 866 Cir. 229 F.2d M. 153 F. are: The Anna Moran, (2d 1907); 500 Cir. The R.J. 299 F. upon by district court all 8. The cases relied Transportation 1924); Towing Co. Red Star & failing Lowery who were Woodburn, Cir.1927); dealt with owners (2d 18 F.2d 77 v. Bouchard, F.Supp. sunken vessels. to mark the Tug 16 128 The Ellen S. 463 time that decision rectifying wrong was reached done to mari- Since governing responsi- the rules allocation of time commerce a 15 violation. De- for collision have been altered dra- bility a would remedy permit nial of such ... matically, by the institution of the principle result, extraordinary jurispru- in our fault, comparative replacing the doctrine dence, wrongdoer shifting responsi- of a major-minor fault. See United States v. for the his bility consequences negli- Co., 397, Transfer 421 95 Reliable U.S. S.Ct. It gence might onto his victim. some (1975). 44 L.Ed.2d 251 Because all of permit negligent party cases to bene- Act, imposed by the duties the Wreck fit from the commission of a criminal act. party whether on the who causes the sink- Wyandotte, 389 U.S. at 88 at 387. S.Ct. owner, ing, the or the United are If both the and the owner have negligence, based on the failure of the own- duties, party satisfied their who er, and in some circumstances the United gently caused the wreck is liable to the States, to mark or remove a sunken vessel injured party. per- If either has failed to injured does not render either liable to the duty, injured form its it is liable to the parties respective absent breach of their party, may but in turn seek contribution duties as we have outlined previously them. (or, perhaps, in the case of the United a determination must take into consid- Such States, indemnity) from the party originally eration all of the relevant circumstances negligent. perceive We do not in what and is a finding of fact to be made might circumstances the owner be entitled district court in the first instance. The indemnity. See Loose v. Offshore Navi- injured party may solely owner, look to the Inc., gation, Cir.1982) 670 F.2d or, alternatively, the government, in the (“the concepts passive negli- of active and may first instance. But neither be held in a gence place liability system have no a finding only liable without not that a that considers the facts of each case and marked, sunken vessel has not been but also apportions damages among joint tortfeasors finding that the failure to mark was the according degree responsibility owner, result of the negligence of wreck party”). each In view of the fact that this circumstances, some of the United briefed, has not been we intimate no issue States. opinion concerning it. corollary A to our for enforce- concern ment of the Wreck Act inequity C. requiring a non-negligent party pay consequences negligence. another’s The fact the owner or the United Supreme As the stated in Wyandotte, recoup later at may party although context, in another there is no their demonstrably fault does not lessen legislative indication in the history promptly incentive to mark the vessel and Act, statutes, predecessor in its or in possibility they thus to minimize the non-statutory “Congress might law that solely may be held liable or be found may party intended that a who mitigated damages. not to have sinks a vessel should shielded from per- sonal responsibility.” Wyandotte, 389 U.S. IV. at at 385. It further stated: S.Ct. mark, an To hold that failure to whether or Government .. . seek or- responsible negligent, superseding

der that a constitutes a lenth, Moreover, Anthony O’Boyle, was discussed at and it could well be that in Petition of (2d Cir.1947), sinking the Second had the owners not had notice of the although found that the owner had mark, Circuit and a reasonable time which to vessel, a sunken such failure failed to mark holdings e.g., would have been different. See negligence. The mark did not constitute court Towing Transportation Red Star & grossly negligent further held the sinker liable 78-79; Bouchard, Tug Ellen S. subsequent damages barge sustained F.Supp. at 24-25. which collided with the wreck. others. As we have seen cause, absolving negligence completely party whose fault, above, of reasonable conduct egregious, caused the sink- the standard however normal rules ing disregards protect of causation the defendant may require defining legal liability. negligence and their role against ‘that occasional plaintiff is “one of whether the defend- problem incidents of ordinary of the which is one injury for an ant is to be held liable life, anticipa- therefore to be human ” made a substantial which he has in fact at 274. ted.’ Id. contribution, brought it is about a when (Second) of Torts sets The Restatement independent origin, later cause of for which an determining whether principles forth Prosser, responsible.” Law of he is negli- prior intervening supersedes force Torts, essence, is a 4th ed. 270. In the issue They are: gence. obli- question original of the extent of brings that its intervention (a) the fact at fault. gation who was first that different in kind from about harm problem, properly speaking, is not one have resulted otherwise which would all, “since it does not arise of “causation” negligence; from the actor’s is established. It is rather until causation or the (b) operation fact that its legal re- policy imposing one of the as to after appear thereof consequences sponsibility.” Id. than extraordinary rather event to be person Prosser when a should be explains circumstances ex- normal in view of the act though liable for his acts the later even operation; time of its isting at the injury. of another contributes to intervening force (c) the fact that which in intervening If the cause is one independently situa- operating is reasonably ordinary experience human or, negligence, the actor’s tion created or one which the de- anticipated, be hand, a normal is or is not on the other anticipate has reason to under fendant situation; of such a result circumstances, may he be particular (d) operation fact reasons, negligent, among other because per- intervening force is due to a third it; he guard against he has failed to act; act or to his failure to son’s that reason. may negligent only be force intervening (e) the fact may required Thus one who sets a fire a third which is person is due to an act of ordinary, to foresee that an usual and as such toward the other and wrongful arising later will customary spread wind person the third subjects and therefore beyond property, his own him; prevent that event. precautions to take culpability (f) degree Id. at 272. person which sets wrongful act of a third negligently A sinks a vessel person who in motion. intervening force may the sunken vessel should foresee Id. 447 continues: Section the owner remain unmarked either because act of a intervening The fact that an effort or despite diligent could not locate it in itself or is person negligent third the owner failed to lo- because manner does not done in a In even to search for it. cate it or failed harm to superseding make it a cause of fashion, that the owner like it is foreseeable con- which the actor’s another and the United may abandon bringing duct is a substantial factor fail to mark it. In such may in turn about, if intervening cause com- case, “there is an at the time of his (a) the actor pro- the defendant’s conduct bining with should have realized that gent conduct result, and .. . the defendant’s duce the act, might so person third protect consists in failure to knowing man the situ- (b) risk.” Id. at 273. a reasonable very plaintiff when the act of the third existing created the defendant ation “The risk regard would not it as was done person intervention of the foreseeable include the

465 per- procedures specified by The remedies and extraordinary that the third highly acted, have held the son had so or the statute been United as “not intended to Supreme States (c) intervening act is a normal con- the exclusive,” at not insofar as least the a created sequence of situation is concerned. United the manner in which States actor’s conduct and 200-01, negligent. Wyandotte, supra, 389 U.S. at 88 extraordinarily it is is not done have, fact, per- at 385. The courts S.Ct. Id. recovery a tortfeasor against mitted not, to does By these criteria failure mark specified by those stat- beyond remedies se, “supersede” liability of per recovery ute. include from These original at fault. Indeed Allied Chemical expenses for incurred gent party Co., Tankship 661 Corporation v. Hess wreck, Id. removing at marking (5th Cir.1981), recently re- 1044 court 387, Valley Tennessee Sand 88 S.Ct. jected subsequent negli- a contention that Delta, v. 598 F.2d & Gravel Co. M/V cause, would, gence superseding as a excul- (5th Cir.1979), and no reason is shown 934 (Great pate negligent a non-owner sinker pur- why, statutory language under the Fortune) responsibility from causal should poses, the non-owner not subsequent with a collision sunken vessel. damages be held liable for result- similarly noted, although by way We there of dicta collision with a ing from a ves- subsequent (since ground), we affirmed on another through negligence. sunk initially sel his not subsequent negligent act does ex- “[a] prior negligence.” Chemical, cuse Allied tort principles General maritime also supra, 661 F.2d at 1060. liability, apportioned for at least support defendants for a rule argue damages resulting post-sinking from colli- consequences negligence of their wreck, part sions with stop their liability damages with for the to wrong-doer who caused it. negligently the sunken vessel itself and for the costs of navigable “[Njegligent conduct on the that, marking removing argue it. They waters that causes loss another consti- duty since themselves had no they mark tutes a maritime tort.” United States v. wreck, they should be liable for Sam, Big M/V Cir. damages subsequent caused by collisions Here, 1982). purposes where for with the unmarked wreck. a rule Such pleadings negligence on the supportable by indeed be sound rea- conceded, negligence the causal initial regard sons of with public policy allocat- defendants that contributed to ing risks of harm in commerce. maritime ordinarily require would later accident them share of the apportioned to bear their us, however, The issue before is whether loss, either the should the Wreck Act such rule —and imports we of the COMBI con- States statutory authority rule, find no for such tributed to accident. nor that such a jurispruden- rule either Reliable Transfer U.S. tially logically implicated by the reasons 1708, 1715-16, (1975). 44 L.Ed.2d S.Ct. for the owner’s liability his We do not find either lan- failure mark or remove. The Wreck Act guage legislative history pur- or in only duty itself refers of an poses of the Wreck Act—which in terms mark It does not refer to any a vessel. attaches, only places liability criminal those who upon liability subsequently because navigable cause a wreck in the failure to mark the sunken waters, well a vessel’s owner upon whether the be that of the owner as as liability any legislative pur- or of a causes who to mark negligent non-owner who fails it — who caused pose wreck. The Act not manifest to relieve the tort-feasor does his for the dam- intent the wreck of civil preempt any remedy ages negligence. Perhaps to his resulting consequent from an damages tortfeasor parties mark the unmarked wreck. failure other may sunken wreck in some DAUNTLESS,10 circumstances by the COMBI the claims be a the superseding subsequent of for indemnity, of the owners contri- COMBI collision, or the perhaps tort-feasor’s fault bution, apportionment judgment of fault or may compared be minimal with the fault of for the the plaintiffs in consolidated ac- These, the non-marking parties. however, tion and claims of the United States for are issues may that not be decided and in the indemnity contribution event judgment alone, on pleadings the as in this judgment against was entered the United case. addition, In there a tender States.12 was of upriver parties the defendants as liable to

This reasoning can also be seen in the 14(c). the DAUNTLESS under Rule circuits,9 case law in including other the Second Circuit on which the district court question properly Thus the before the relied. See Anthony Petition of Boyle, 161 court was whether under facts any set of (2d Cir.1947) supra 967-68 and postulated upriver the defendants could be note 8. held the any parties liable of for any damages the resulting striking from of the

V. the COMBI DAUNTLESS. A. We first note the alleged COMBI Having delineated the duties under that it was in either causing the Wreck Act and its relationship to a original sinking the the or in barge fail- normal negligence action, maritime we turn ing diligently to search for the sunken ves- to the case at bar and the district court’s sel in order to it.13 mark remove On ruling. however, defendants, appeal, upriver the urging A close of the reading judgment the affirmance the pleadings in the six consolidated pleadings, argue cases that for the issue of pending indicates that in- the arise, before court at the judgment demnity time that or contribution to the COM- on the was pleadings granted were BI must adjudged damages the fol- liable for lowing against upriver claims the first defend- instance. Thus for the claims of ants: claims of the indemnity against DAUNTLESS’s owners or contribution the upri- for damages resulting striking survive, of ver defendants to must COMBI 9. 14(c). plaintiffs See Lane v. United 529 F.2d 175 Civ.P. in the consolidated Cir.1975); Ingram Corp. v. River Ohio third-party complaint action when the was filed (6th Cir.1974); F.2d 1364 American Commer- captain, were the DAUNTLESS’s owners and Barge Eagle Industries, cial Line Co. v. Marine Tenneco, United States. Inc., (E.D.Mo.1976). 1977 A.M.C. 475 judgment pleadings 12. The motion for on the sought 10. The DAUNTLESS claimants to dis- did not seek to dismiss claims of prejudice miss these claims without one week removing for cost of the sunken hearing judgment after on the motion for a barge accomplished COMBI which was after pleadings. on the The motion to dismiss was the DAUNTLESS accident. granted plead- six weeks after on the ings granted. though Even the DAUNT- against upriver LESS’s claims upriver defendants 13. The defendants likewise claimed prejudice, were dismissed without and even liability sinking for the initial the COM- though judgment already granted had been for established, barge although BI had never been upriver pleadings, defendants on the settled, any that case had been denied upriver granting defendants did not contest liability sinking. initial The defendants of this motion. moreover denied that the DAUNTLESS struck barge damages COMBI or sunken third-party complaint against upri In its striking to the DAUNTLESS resulted from defendants, owners, petitioners ver the COMBI barge. motion, purposes sunken For exoneration, sought for limitation of however, upriver we assume that de- contribution, indemnity, apportionment sinking fendants caused of the COMBI fault from the defendants event barge, that the DAUNTLESS did in fact hit the they were held liable in of the consoli barge, damages sunken and that They COMBI all sought judgment cases. dated likewise striking. plaintiffs resulted from that favor in the action consolidated defendants under Fed.R. removing the but marking or negli to have been cost necessarily be assumed damages caused the colli- applies to the claims extend gent. likewise with COM- indemnity the DAUNTLESS or contri sion of the United States pleadings of both BI.14 bution. Because deny wrong COMBI all States and the district we REVERSE Accordingly, no to either in there can be relief doing, and REMAND the case court’s Al indemnity contribution. form consistent with proceedings further taken, well at though points may these be opinion. argument ig they go, far this least as as request for third-party COMBI’s nores WILLIAMS, Judge, Circuit S. JERRE Fed.R. plaintiffs the under for GEE; Judge, joins, dis- Circuit with whom of 14(c) original as the claims as well Civ.P. senting: pend which were DAUNTLESS owners the has stated the for the Court opinion The ing before the court. It hás also posture of this case. procedural the cause finding proximate that sole By is single the issue which carefully defined is with the wreck subsequent the collision of assumption, how- opinion’s us. The before mark, the district court effec- failure to the the issue is to ever, upon the which of facts the liability on tively placed strict legal conclusion to be the resolved and be II, in As noted Part duty. fulfill this we faulty leads from facts is and drawn those reading our Circuit neither Second result. to an incorrect nor court relied on which the district cases spell I do not undertake to opinion In this sup- of this circuit would jurisprudence the support my views. legal the full out holding. such a port my dissenting opinion to was done in be in this case cannot resolved The issues Nunley v. in this case. panel the decision on record. present a matter of law the as COLOCOTRONIS, 696 M/V DAUNTLESS court that either If the district determines 1141, (5th Cir.1983). States, both, COMBI or the United the of assume in the decision properly We in failing fault mark were without defendants, enu- upriver case that the this that the upriver remove the and the opinion 2 of the merated in note sinking negligently caused the defendants Court, p. supra, guilty were of COMBI, may upriver the defendants maritime acci- causing original in the gence the directly plaintiffs. to the If be liable accident, barge the in In that dent 1974. both, are or the United COMBI the barges when sank owned COMBI court, fault, the district determined to be floating in down broke loose and upriver law, of applying ordinary principles tort barge, hit the COMBI Mississippi the River their negligence determine whether should and sank it. moorings, it loose its tore from the absolving as a superseding acts own- that neither the also must assume We liability. If the dis- upriver defendants COMBI, the the nor barge, er of intervening negli- trict court finds the were in Government States the if the States or gence, any, of leading to the accident original maritime “reasonably have been antici- COMBI could barge. of the COMBI wreck defendants, upriver it should pated” the is correct as opinion for among all the defendants The

apportion liability the resolution of recognizing in that according their fault. well comparative upon dispute dependent issue in damages for which the defendants upriver Act, 15, 16,19, the Wreck application to the may §§ be held liable are not limited prove type litigation, parties Although this defendants ulti- all in proximate negligence mately damages cause of the liable to the be held accident; respect DAUNTLESS, true with liability the same would be will not such automati- or the United cally COMBI flow fact defend- to the perform sinking failing under causing their duties were ants must, must Wreck Act. The DAUNTLESS as the COMBI. submerged just Rivers and Harbors Act of a few later. days wreck (33 414, 415). U.S.C. applied statutory §§ Yet the Court the rule It is interpretation the Court’s of the Act liability on owner without its application the maritime events perpetrator sinking. of the negligent in this compels involved case which opinion Judge In the course of dissent. The opinion for the Court inter to the referring Learned Hand prets way the Act in a is contrary which Act said: every case which single litigated has aris- duty statute establishes a new issue which before this Court. ing sinking, demanding after the as While text of the critical nothing its the fact and condition but provision, Act, 15 of the 33 U.S.C. § Though it notice of to the owner. wreck clarity draftsmanship, is not a model of original tug guilty party yields proper interpretation mishap, ordinarily upon is not duty responsibility for eliminating hazard to loss; provide against her to further navigation created a sunken vessel lies imposes duty upon statute the owner the wholly the upon owner of the vessel or the alone, tug and absolves the from subse- regardless United States Government of quent conceivably which consequences, whose negligence sinking. caused Just the might thought otherwise be to be the eight years after passage the of the Wreck proximate original result her fault. Act, the in THE Second Circuit ANNA M. Id. at 79. FAHY, (2d Cir.1907), 153 F.2d 866 so inter- preted Act. placed the It full the burden to The for the is opinion correct mark necessary and if remove a sunken upriver stressing that the defend- vessel on owner of the vessel or on the marking ants were liable for the costs United States Government. The law as to removing. Wyan- And this is all that this developed issue then in the Second Transportation dotte Co. v. United through Circuit a series of decisions which 383 U.S. S.Ct. L.Ed.2d have challenged by never been a court deci- (1967), to held which is this case. relevant sion until this case. While isit true that all Obviously holding statutory this follows the of the interpreting law the Wreck onAct is scheme and consistent with the estab- developed this issue was in the Cir- Second beyond fallacy going lished rule. The is in cuit, it remained accepted through- as law sinking to make the non-own- out the United States until the DAUNT- ers to the responsible damage vessel LESS which be- COLOCOTRONIS case barge. which later collides with the sunken fore us. authority in For this there is no the law. The commonly quoted most statement of prior holding supports this No exists which the rule is found in Judge Learned Hand’s view taken the Court. All of de- decision in Red Towing Transpor- Star reasoning opinion tailed of the of the court Woodburn, (2d tation Co. 18 F.2d 77 skirts around this fundamental fact. Cir.1927). This was a case just as the case case involves judice sub in which the issue was whether a pleadings, but does not restrict tugboat which a sinking caused application principles the settled of the could still be held liable the vessel that Act. We need not what speculate Wreck hit the submerged opposed wreck as to might the situation be if the collision with sole liability flowing from owner submerged place vessel took af- shortly submerged wreck or the United States sinking. pleadings ter the The establish Government. As a remarkable factual place in this case the collision took strengthening ruling Court, of the sinking. more than three after the If tugboat years company which caused neg- ligent either the owner the United States sinking is the same one that success- fully recovery obligations achieved Government had carried its the owner out Act, when another one of its into under the Wreck there would tugboats ran event, no CO- In this defense of no been collision DAUNTLESS government It if the owner or the barge. liability with the sunken LOCOTRONIS proper gloss is a marked or removed and cannot find the wreck would have been by judicial de- Act inter- expense negligent upriver added to target far it is off to claim pretation. But under the Wreck Act But fendants. mark obligation it obligation defendants does establishes upon the beyond liability. placed does to remove the wreck not extend It an damage a later Government is obli- consequent not reach the United States gation grounded negligence. the sunken because of It strict- collision with vessel obligation regardless ly statutory the failure of the owner or the United gence. out its statuto- carry Government States obligations.

ry justifi- no opinion Court finds Act of “strict respect liability” The Wreck is obscure with cation for right and seems to view strict upon of the owner to abandon the owner wreck, thereby forcing obligation upon with distaste. cannot read the One it marking recognition take over and Wreck Act without calls liability upon carry if the sunken is an for strict the owner removing vessel obstruc- obligations regard But be- out without its navigation. dispute tion its Further, opinion rests its conclu- tween the owner and the United fault. upon development a later in the respective obliga- part as to their sion in Government negligence. Let comparative tions the statute is not before us. under law— said that noteworthy develop- their an pleading equally defendants in acceptance not to it ment the law is broad of defense did establish whether The Wreck concept liability”. of “strict was the United States Govern- they early example liability to Act is of a strict ment which was liable. All had an view with they hardly that But we can dis- plead was under Wreck Act statute. liability of strict may today application were not. statutory a justify nor novel and tortured assumption by opinion The avoid the of interpretation application to of liability Court that the the owner or liability. strict Government under States both government If and the upon negligence Act is based is the owner of they never knew quite upon prove not. could that clearly correct. It based they barge of the sunken and negligence as the statute itself reveals. location necessary good faith ef- opinion diligent of the stat- made and The the Court rewrites it, they be held locate could not neg- ute when it its on forts to interpretation bases Act. In that nar- liable under the Wreck ligence upon and the later rationalization majori- row upon development comparative of circumstance based If it would be correct. ty of the Court negligence. government for the owner or the impossible The creates a obli- Wreck Act Act, they could not be held obey to Corp. we Chemical gation, as held Allied possibility it. is not violating liable for TankShip v. Hess owner’s case because the present Cir.1981). as of de- Then a matter knowl- the likelihood of some brief reveals fense, (and only, the owner it and defense deny does not edge, government and the Govern- can be assumed the United States of the sunken knowledge the location ment) prove and that the loca- can come in barge. known and that wreck was not tion beyond opinion goes far majority dili- The the wreck was an to locate attempt under which circumstances By way analysis, these narrow pursued. Ibid. gently would not be establishing government the owner be said that perhaps could introducing concept non-negli- proof liable requires this defense marking requirements gence the wreck. into attempt locate in the gence Instead, removal under the Wreck Act. escape liability from under that isAct limit- GOVERNMENT INSUR EMPLOYEES wholly ed of proving defense a dili- COMPANY, Plaintiff-Appellee, ANCE gent good attempt faith to comply with

the Act by locating the wreck. excep- That Brown, Peggy Robert and Mrs. BROWN tion no more creates a base of Defendants-Appellants. the Wreck Act than would the defense of non-ownership by alleged our An- owner. No. 81-4241. other analogy would file failure to an income tax return United States Court of disputed Appeals, because of a conclusion Fifth there was no Circuit. obligation to so. right do try establish such a March defense does not convert the basic filing obligation to an negligence. issue of Harvey Barton, Hunter, W. John L. Pas- significant public Wreck Act has a Miss., cagoula, defendants-appellants. purpose. places It respon- the full and total Miss., Rainey, Gulfport, William M. sibility of protecting navigation from the plaintiff-appellee. hazards of sunken vessels the owners of those vessels or the United Govern-

ment. These two wholly entities failed to

carry out their responsibility under the stat- They

ute. now undertake to shift responsibility the upstream defendants. CLARK, Before Chief Judge, THORN- To allow them to negation do so BERRY, GARZA, Circuit Judges. important congressional policy designed to eliminate Allowing such collisions. PER CURIAM: owner or the shift back to the upstream defendants undercuts 3, 1982, On May this court certified the the statutory purpose, wholly independent controlling question appeal of law in this negligence, forcing Supreme Court Mississippi. carry the obligation out complete, 645. In a response, concise navigational abate hazards. been question definitively has answered. the opinion Pursuant of Justice Prather accept I cannot judicial legerdemain 53,996, for that styled Cause No. which creates this new rule of law and Employees Ins. Government Co. v. Robert overturns an statutory interpre- established Peggy Brown, Brown and Ann 446 So.2d tation. The district court was applying summary judgment of the United only the established law but also the mani- States District Court for the Dis- Southern congressional fest policy 9, 1981, of Mississippi, trict dated June collision of the DAUNTLESS COLOCO- reversed remanded for submerged TRONIS with the barge COMBI further proceedings not inconsistent with solely was caused by the failure opinion Supreme of the Mississippi owner or the United States Government to Court. carry out obligations recognized three-quarters for over a century. REVERSED REMANDED. decision of the district court should be af- firmed.

Case Details

Case Name: Walter Douglas Nunley v. M/v Dauntless Colocotronis, United States of America and Combi Lines v. Point Landing, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 19, 1984

Citation: 727 F.2d 455

Docket Number: 81-3366

Court Abbreviation: 5th Cir.