Western Transportation Co. v. Pac-Mar Service, Inc.

547 F.2d 97
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 6, 1976
DocketNos. 75-1408, 75-1758 and 75-1785
StatusPublished
Cited by1 cases

This text of 547 F.2d 97 (Western Transportation Co. v. Pac-Mar Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Western Transportation Co. v. Pac-Mar Service, Inc., 547 F.2d 97 (9th Cir. 1976).

Opinion

PER CURIAM:

This four party action in admiralty is before us on appeals from judgments rendered by the district court for the District of Oregon. The facts are set forth in the district court opinion published in Western Transportation Co. v. Pac-Mar Services, Inc., 376 F.Supp. 530 (D.Or.1974). Our examination of the record convinces us that the trial judge accurately determined the facts and applied the correct legal principles, and we therefore affirm his disposition. The oral argument and additional cases cited prompt us to make some further comments.

Briefly, Western Transportation Co. (Western) owned house Barge 37 (Barge). Guy F. Atkinson Co. d/b/a Willamette Iron & Steel Co. (WISCO), engaged in making extensive repairs on a large tanker, employed Pac-Mar Services, Inc. (Pac-Mar) to perform sandblasting work on the craft. Pac-Mar rented Barge in order to fill it with the sand to be used in the sandblasting. Although Barge was delivered to PacMar on December 28,1972, it was entrusted to WISCO, whose employees were responsible for its care and inspection. During the next several days, two or three feet of water entered Barge, and on January 6, 1973, between 10:00 p.m. and 11:00 p.m., Barge floated down the Willamette River in a capsized condition. It was intercepted and towed to waters in a slip area at Portland where soon thereafter it sank, coming to rest against the after section of the SS Turandot, owned by Wilh. Wilhelmsen A/S (Wilhelmsen), and blocking its departure scheduled for the following day. Western soon raised and removed Barge.

Western filed suit against Pac-Mar, its bailee, Pac-Mar impleaded WISCO, pursuant to Fed.R.Civ.P. 14(c), as a third party defendant and sought indemnity for such damages as Western might recover from it. Wilhelmsen intervened and sought damages against all three parties for blocking the scheduled departure of the Turandot.

Based upon the significant relationship of those events to traditional maritime activity, we affirm the trial court’s finding of admiralty jurisdiction. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 856-59 (9th Cir. 1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975). The fact that the court below also found that the use of Barge as a floating warehouse was “non-maritime” does not preclude the finding of admiralty [99]*99jurisdiction. Admiralty jurisdiction was based upon the presence of traditional maritime issues such as the cause of a vessel’s sinking, the liability for its recovery, and the responsibility for the detention of a vessel. The question of jurisdiction was not even raised below either by pleading or by pretrial order. In the pretrial order, the parties agreed that “[t]his court has admiralty jurisdiction under 28 U.S.C. § 1333(1).” We also agree.

The trial court also found that the capsizing and sinking of Barge proximately resulted from WISCO’s negligent failure to take appropriate action as soon as it learned that water was seeping into Barge’s compartments. The court foui|d no negligence by Pac-Mar except that based upon the obligation of a bailee to use reasonable care and return its bailment in good order and condition, regardless of whether the bailment is entrusted to a third party and injured by the latter’s negligence. Washington Tug & Barge Co. v. Weyerhauser Timber Co., 22 F.2d 665, 668-69 (9th Cir. 1927); Shamrock Towing Co. v. Tully & DiNapoli, Inc., 91 F.Supp. 239, 244-45 (E.D. N.Y.1950), aff’d, 187 F.2d 872 (2d Cir. 1951). It therefore determined that WISCO was liable to Western for damages Western had sustained by the loss of Barge. As to these losses it found that Pac-Mar was secondarily liable. See James McWilliams Blue Line, Inc. v. Esso Standard Oil Co., 245 F.2d 84 (2d Cir. 1957); Washington Tug & Barge Co. v. Weyerhauser Timber Co., supra; Shamrock Towing Co. v. Tully & DiNapoli, Inc., supra. The court also found that WIS-CO’s negligence carried with it liability to Pac-Mar for the value of a scoopmobile lost when the barge sank and to Wilhelmsen for the detention of and damage to the Turandot.

“The findings of a district court sitting without a jury in admiralty are tested by the clearly erroneous standard.” Midland Enterprises, Inc. v. Notre Dame Fleeting & Towing Service, Inc., 538 F.2d 1356, 1357 (8th Cir. 1976). See also United States v. Babbs, 483 F.2d 308, 311 (9th Cir. 1973); Ramos v. Matson Navigation Co., 316 F.2d 128, 131 (9th Cir. 1963). Here, a careful review of the record convinces us that the findings of the trial court are supported by the evidence, and we therefore adopt those essential findings and the law as applied to them.

Pac-Mar contends that the trial court’s failure to find negligence on its part exonerates it from all liability. As the trial court held, however, Pac-Mar was obligated to have the barge properly cared for by any person to whom it was entrusted, and risked liability for damage caused by the negligence of a third party. George Bohannon Transportation, Inc. v. Davis, 323 F.2d 755, 756 (10th Cir. 1963); Shamrock Towing Co. v. Tully & DiNapoli, supra; The Comet, 66 F.Supp. 231, 233 (E.D.Pa.1946). We have considered the additional authorities submitted by Pac-Mar and do not find them persuasive. Midland Enterprises Inc. v. Notre Dame Fleeting & Towing Service, Inc., supra, was a case of an unexplained sinking of a barge under charter, in which the district court was unable to determine the cause of sinking. The charterer relied upon the rule that failure of a bailee to return the barge after bailment raised an inference of negligence on the bailee’s part. Recognizing the validity of such an inference, the court held that it had been overcome by the bailee’s proof that it had exercised reasonable care, thereby dispelling the inference and requiring the bailor to sustain its continuing burden of persuasion, which it had failed to do. See Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 110-11, 62 S.Ct. 156, 86 L.Ed. 89 (1941); Chanler v. Wayfarer Marine Corp., 302 F.Supp. 282, 285 (D.Me.1969). Midland Enterprises is not contrary to our holding here.

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