Lone Star Industries, Inc., Appellee/cross-Appellant v. Mays Towing Company, Inc., Appellant/cross-Appellee

927 F.2d 1453, 1991 A.M.C. 1540, 1991 U.S. App. LEXIS 4444, 1991 WL 36635
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 21, 1991
Docket89-2869, 89-2982
StatusPublished
Cited by27 cases

This text of 927 F.2d 1453 (Lone Star Industries, Inc., Appellee/cross-Appellant v. Mays Towing Company, Inc., Appellant/cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lone Star Industries, Inc., Appellee/cross-Appellant v. Mays Towing Company, Inc., Appellant/cross-Appellee, 927 F.2d 1453, 1991 A.M.C. 1540, 1991 U.S. App. LEXIS 4444, 1991 WL 36635 (8th Cir. 1991).

Opinions

BEAM, Circuit Judge.

This appeal arises from a judgment of the district court, sitting in admiralty, in favor of Lone Star Industries, a cement producer whose barges Mays Towing Company transports on the Mississippi River between Cape Girardeau, Missouri, and Memphis, Tennessee. At issue is the sinking of the barge LS 1501, taken in tow on December 23, 1983, by a Mays Towing tugboat and delivered to Lone Star at Memphis on December 25, 1983. The LS 1501, full of cement, sat at Lone Star’s dock for three days, and then, during unloading on December 28, 1983, with most of its cargo still onboard, it sank. Following a seven-day bench trial, the district court found that both parties were negligent, attributed fault at sixty percent to Mays Towing, forty percent to Lone Star, and awarded damages of $162,236.49 to Lone Star. We reverse.

I. BACKGROUND

Lone Star produces cement in Cape Gir-ardeau and ships some of it by barge to its Memphis facility. For this purpose, Lone Star maintains a fleet of double-raked, self-unloading cement barges, a rare commodity among inland river barges. The cement barge that sank, the LS 1501, was manufactured in 1949, and, by the testimony of several experts at trial, was, in December of 1983, at or near the end of its useful life. Mays Towing, which itself owns no barges, regularly transported cement barges for Lone Star between Cape Girardeau and Memphis. It used two of its tug boats, the M/V Sherry K. Mays and the M/V Peggy Mays, to tow the LS 1501.

The district court found that the barge was undamaged when received by the Sherry K. Mays on the evening of December 23, 1983, at Cape Girardeau. The LS 1501, loaded with approximately 1,400 tons of cement, was placed in tow together with the LS 1502 and LS 1503 for the trip to Memphis on an icy Mississippi River. From Cape Girardeau almost to Memphis, the LS 1502 was the lead barge, with the LS 1503 to the port side of the LS 1501, behind the LS 1502. At Cairo, Illinois, the Peggy Mays joined the tow; the Sherry K. Mays faced up to the stern of the LS 1501 and the Peggy Mays to the LS 1503. At Columbus, Kentucky, the Sherry K. Mays left the tow, and the Peggy Mays moved over, facing up to the stern of the LS 1501, where the Sherry K. Mays had been.1 The barges remained in the same configuration until they reached Island 39, fifteen miles [1455]*1455above Memphis. There the Peggy Mays turned the entire tow around, so that the 1501, stern first, was at the front of the tow. The barges reached Memphis in the early afternoon on December 25, 1983. All crew members testified that nothing unusual occurred en route.

Unloading was the responsibility of Lone Star employees, so the Peggy Mays left the barges moored at the dock while it remained nearby, as it was required to do until the barges were unloaded. The LS 1501 sat at the dock without listing, in normal trim, covered with ice and snow (up to ten or twelve inches on its stern), until December 27. On that day, Lone Star employees attempted to conduct a standard pre-unloading inspection, which normally involved opening all the hatches and entering the void compartments to look for water or hull damage. Because the barge is unloaded bow to stern, so that part of the stern necessarily submerges during unloading, an inspection of the stern compartments is especially critical. While they did open the forward hatches, as a result of accumulated ice, which they attempted to chip away from the hatches with sledgehammers, Lone Star employees were unable to open the stern hatches. They waited until the next day, December 28, but the weather did not relent, and they were still unable to inspect the stern compartments. Under some financial pressure to unload the barges, and knowing that the LS 1502 had been unloaded without incident, Lone Star took, by its own admission, a calculated risk, and decided to unload the LS 1501 without inspection of the stern compartments.

Unloading began at mid-afternoon on December 28 with one employee present, as was Lone Star’s practice. That employee worked inside the pump room of the barge, located at the bow and from which location he could not see the stern during unloading. Testimony at trial suggested that other cement companies used two or three people to supervise unloading, and one expert called Lone Star’s practice of unloading with only one person “ludicrous.” By 8:00 p.m., Lone Star was aware that the barge was taking on water at the stern, and by 10:00 p.m., water was covering the stern deck, something that should never happen. The cold, icy conditions hampered rescue efforts, and the barge sank. The LS 1503 was not unloaded until the ice on its stern melted, on January 5, 1984.

Later, when the LS 1501 was raised, marine surveyors found a vertical crack in its stern log — the heavy steel at the stern of the barge to which tugboats face up. The crack was eight or ten inches above the waterline, but, because the barge is unloaded bow to stern, it became submerged during unloading. No one disputes that the barge sank because water entered the stern compartments through the crack.

Because the barge was undamaged when picked up by the Sherry K. Mays, the district court concluded “that the negligence of Mays Towing Company caused the damage to the LS 1501, resulting in the loss of the barge and its cargo.” Lone Star Indus. v. Mays Towing Co., 725 F.Supp. 440, 444 (E.D.Mo.1989). The district court also held that Lone Star was negligent in failing to inspect the stern compartments prior to unloading and in employing only one person during unloading. Thus, the district court determined the fault of Mays Towing to be sixty percent, and that of Lone Star to be forty percent. The court valued the barge at $35,000, its cargo at $55,000, and awarded an additional $180,394.15 in necessary expenses. Total damages were then reduced by the comparative fault of Lone Star. Id. at 444-45. Both parties appeal.2

II. DISCUSSION

A. Res ipsa loquitur

As indicated, the district court found that the barge was undamaged and seaworthy when it left Cape Girardeau. Id. at 443. It also found that the barge sank because of the fracture in its stern log. Id. at 441. The district court opinion does not, how[1456]*1456ever, recite any instances of negligent conduct by Mays Towing, nor does it suggest any actions that may have caused the fracture. Indeed, our review of the record discloses nothing that might explain when the barge was damaged. Given this uncertainty, the district court relied on res ipsa loquitur to raise an inference that Mays Towing was negligent in its care of the barge. “This is the very type of case in which the doctrine of res ipsa loquitur was intended to apply.” Id. at 443-44. From its premise that the damage to the barge must have occurred en route to Memphis, the district court moved to a conclusion that the elements of res ipsa loquitur were met: the barge was in the exclusive control of Mays Towing, Lone Star could not have caused the damage en route, and “the damage to the LS 1501 is of a type that ordinarily does not occur in the absence of negligence.” Id. at 444. The court held that Mays Towing did not rebut the inference of negligence.

We may not set aside the judgment of the district court sitting in admiralty unless it is clearly erroneous. McAllister v. United States, 348 U.S.

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927 F.2d 1453, 1991 A.M.C. 1540, 1991 U.S. App. LEXIS 4444, 1991 WL 36635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lone-star-industries-inc-appelleecross-appellant-v-mays-towing-ca8-1991.