Slade, Inc., Successor to Higman Towing Company, Appellant, v. Mississippi Valley Barge Line Company and Dixie Carriers, Inc., Appellees, 296 F.2d 188 (5th Cir. 1962)

Appellant Slade, Inc.¹  appeals from an interlocutory decree by the court below holding the Tug Moir and Slade, Inc., its owner, solely at fault for a collision occurring between the tow of the Tug Moir and the tow of the Tug George Peterkin. The action was commenced by appellee Mississippi Valley Barge Line Company, which filed a libel in rem and in personam against the Tug Moir and appellant to recover damages inflicted upon its barge M/V 717 in said collision. In order to prevent the arrest of the Tug Moir, appellant filed a claim, a combined stipulation for costs and for value, and also filed an answer to the libel, together with an impleading petition against the Tug George Peterkin and its owner, Dixie Carriers, Inc. The trial court entered its interlocutory decree, based upon detailed findings of fact, adjudicating that the damage to the barge was due solely to the fault of the Tug Moir, and not to any fault of the Tug George Peterkin and her tow. This appeal tests the correctness of the decree and the findings of fact upon which it was based, the appellant charging that the findings were clearly erroneous in concluding that the Tug Moir was solely at fault and that the Peterkin did not have the last clear chance to avoid the collision.² 

We do not agree that the findings of the trial court were clearly erroneous, McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20. From the pleadings, the testimony, the charts and exhibits and admissions in the briefs of the parties, the court below was justified in finding the facts set out below. Indeed, most of the controlling facts are admitted by appellant either in the pleadings or the briefs.

In the mid-afternoon of December 22, 1957, the Tug Peterkin was proceeding in an easterly direction in the Gulf Intracoastal Waterways with a hawser tow of five barges, the total length of the flotilla being 1,111 feet. A 15 mile per hour wind was blowing from the southwest, and a current of approximately 3 miles per hour was flowing from east to west. When about one-half mile west of Mud Bayou Railroad Bridge, the pilot of the Peterkin called on his radio to ascertain what shipping was east of him before he would undertake to pass under the railroad bridge and the adjacent highway bridge and traverse the rather sharp northward bend lying just east of those structures.

The only response he got was from the Tug Moir, which was at Mile Post 315.³  Appellant's brief states: "As a result of this radio conversation with the Tug Moir,⁴  it was agreed between the pilots of the two tows that the Tug Moir would wait for the Peterkin to come through the bridge." At the time the agreement was made the two tugs were slightly more than five miles apart. The parties agree in their briefs that, as found by the trial court, the point of collision was approximately opposite Mile Post 319.

The Peterkin, with its loose-jointed tow, kept to the center of the channel, which was about 125 feet wide, so as to avoid collision with the supports of the two bridges whose span was about 100 feet. When her pilot had seen the last barge through the abutments of the two bridges and was able to give his entire attention to what lay ahead, he discovered the Moir and her tow moving along the north bank of the waterway. There was a bend in the canal for the entire distance between the two tugs, which reached its sharpest point approximately at Mile Post 319, where the collision occurred. As the Peterkin approached around the bend, the leading barge of the Moir tow sheered off the north bank of the canal, and the pilot of the Moir put the tug under a double hook-up astern in an effort to break the sheer. This maneuver caused the stern of the singlescrew tug to move out into the canal. In an effort to minimize the gravity of the collision — which to the pilot of the Peterkin seemed inevitable — as much as possible, the pilot tripped the Peterkin around her tow and began to break its headway. The result was that Moir's lead barge collided with M/V 717, middle barge of the Peterkin tow, causing the damage here sued on.

The Peterkin had moved approximately one mile after obtaining assurance from the Moir that she would await Peterkin's maneuver in passing the bridge abutments and turning the sharp bend, which was a move necessarily involved. The Moir had moved four miles during the interval, all along a straight reach of the canal, and had reached and rounded the point of the bend.

Under the language of appellant's brief and all of the proof, it had been agreed that the Moir would wait for the Peterkin. She did not wait, but moved four miles while the Peterkin was moving one. Instead of holding back along the straight course of the canal where she was in a safe position, the Moir had taken a position in the sharp bend, which the court below evidently concluded was the point of greatest danger. The court manifestly concluded that the Moir, with its lighter and more maneuverable tow, ought, in the exercise of reasonable care, to have waited at a point where the canal was straight, advised as she was of the difficult maneuvering which the Peterkin had to accomplish in avoiding the bridge abutments and negotiating the sharp bend. We think its findings were amply supported by the evidence.

The appellant, though admitting that the pilot of the Moir had agreed to wait while the Peterkin brought its unmaneuverable tow through the bridge and around the sharp bend, takes the position that the Peterkin had no right to rely on the agreement.⁵  No convincing authority is cited for such a contention; and cf. J. S. Gissel & Co., et al. v. Dixie Carriers, Inc. et al., 5 Cir., 1955, 219 F.2d 233, affirming the District Court's decision, 117 F. Supp. 612. Under the facts before the court below, it was justified in finding that the Moir was required to exercise ordinary care in selecting a spot for the meeting which would afford reasonable protection to the two tows. With full knowledge of the problems with which the Peterkin was dealing and of the character of its tow, the Moir selected a point of meeting which made it inevitable that the resulting collision would ensue.

Finding no reversible error in the interlocutory order of the trial court, it is affirmed and the cause is remanded for other proceedings consistent with this opinion.

Affirmed and remanded.