Appendix — Gulf Refining Co. v. Black Warrior Towing Co.

Supreme Court brief1956

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APPENDIX A

DECISION OF THE UNITED STATES CIRCUIT

COURT OF APPEALS

(February 20, 1956.)

Before RIVES, TUTTLE and CAMERON,

Circuit Judges.

TUTTLE, Circuit Judge: These libels, combined for

trial below and for argument on appeal here, present com-

mon questions of fact and law arising out of a single in-

cident, an explosion aboard barges of the Black Warrior

Towing Company while they were discharging their cargo

of gasoline at the Gulf Refining Company dock terminal

near Gretna, Louisiana. The various parties raise issues

concerning negligence, Section 3 of the Harter Act (46

U.S.C.A. §192), Section 1 of the Limited Liability Act (46

U.S.C.A. §182), and the effect of an exculpatory clause in

the transportation contract between the two companies

principally involved here.

The facts leading up to within a very few minutes of

the explosion are not greatly disputed. In the early morn-

ing hours of May 11, 1952, Black Warrior’s integrated oil

tow, consisting of the towboat Rebel Warrior and the

barges RTC-107, RTC-109, and RTC-112, arrived at the

Gretna dock with a cargo of gasoline. The barges had

been loaded at the Sidney Richardson Oil Refinery in

Texas City, Texas, under the direction of the pilot, Walter

Kirk. The tow was brought as far as the Harvey Locks

under the command of its master, Captain Peden. When

the tow came through the locks, at approximately 2:00

A. M., Captain Taylor came aboard and relieved Captain

Peden as master. Captain Taylor stayed in the pilot house

of the Rebel Warrior until the tow reached the Gulf land-

ing, about an hour later, when he went to bed. He was

not awakened until the explosion. By that time, Captain

Peden had gone ashore and the towboat, at least, was

under the command of the pilot, Kirk.'

Kirk directed the mooring of the barges at the Gret-

na dock, which is on the west side of the Mississippi river,

across from New Orleans. The 107 was placed at the

upper end of the dock, with the 109 alongside it, and the

112 moored about 175 feet to the rear. Both the 107 and

the 112 were spotted opposite 8-inch pipelines on the dock

which come to within fifteen feet of the water’s edge. Each

of these lines is controlled by a gate valve and leads to

the Gulf line which runs the length of the dock and then

turns inland to the Gulf storage tanks there.

At about 4:00 o’clock, Lamey, Black Warrior’s port

engineer, came aboard the barge 112 to begin cargo dis-

charge operations. He was aided by Curry, the tow’s re-

lief engineer, Dunaway, its tankerman, and Thomas and

Easterling, deckhands. Gulf employees, notably LeBlanc,

cooperated by readying the dock facilities to receive the

gasoline.

They began with the 112. Gulf employees gauged the

barge’s tanks, attached a bonding wire from the dock to

1 Kirk testified that he came off duty at 5:45, about a half hour

before the explosion, and went to his quarters. However, he ex-

plained that he was waiting in his quarters for “orders” from the port

engineer, Lamey, to move the towboat off, after giving air to start

the barges’ pumps. He testified that he was in complete charge of the

towboat and barges “till the other man [Lamey] come on.” It is no

where contended, however, that Lamey, who was a shoreside employee

in charge of discharge operations, had authority over the towboat

superseding that of the master or pilot, even during those operations.

PE ee ee oe ne a es ss

the vessel, and remvved the plate, or flange, bolted across

the face of the deck pipeline. They then checked the

flanges, including the flange on the outboard end of the

112’s discharge line Curry, with Thomas’s help furnished

compressed air fron the towboat’s engine room to start

the barge’s pump. uamey and Dunaway primed the pump

and helped Gulf enployees attach a flexible rubber hose

from the pipeline on the dock to the barge’s discharge

line, which extends across the stern of the vessel. They

next opened valves leading from the barge’s eight tanks

into the cargo healer line, which is a longitudinal pipe

connecting compartments and running perpendicularly

into the discharge line; and also opened two valves on

the header line between the discharge line and the cargo

intake line, which is parallel to and forward of the dis-

charge line, but vhich plays no part in the discharge

operation. Then after having started the pump engine

and signalled the Gulf employees to open the dock valve,

they began pumping gasoline into the Gulf line on the

dock.

It was now about daybreak. The towboat, with Kirk

in charge,” moved up to the 109 to give air to start the

2 Kirk testified as follows:

“Q. What hapened, to your knowledge, after the towboat

went up alongside of 109?

Well, we just landed the boat there and tied it up with

one line »n the port quarter.

What tye line?

Well, it was just a two-inch line, a rope line—It was

about a two-inch line.

And—

We werethere to give air for the pumps.

What dic you do then, Captain?

It was jist about time then for me to come off duty.”

(Emphass supplied.)

POPO Pe

pumps on the 109 and the 107. It made fast to the 109

with a two-inch ope, the door to the towboat’s galley

being eight to ter: feet upstream from the end of the

discharge line on the 109. By this time, all of Gulf’s em-

ployees except LeBlanc had left the dock, and Lamey and

Dunaway helped him fasten the rubber line from the dock

to 107’s discharge line. Dunaway, together with Thomas

and Easterling, fastened another length of rubber hose

from the discharge line of the 107 to the discharge line

of the 109.

The cook, Morrissette, then called from the galley

that breakfast was ready, and Thomas and Easterling

went in to eat. Shortly thereafter, Curry, having finished

hooking up the air hose to furnish air to the pumps on the

109 and the 107, also went into the galley to eat breakfast.

Lamey and Dunaway continued readying the barges

for discharge. Moving from stern to bow on the 107, they

opened valves leading from the tanks to the cargo header

line, and then, with Lamey about ten feet in the lead,

crossed over to the bow of the 109. Going from bow to-

wards the stern on the 109, they continued to open the

corresponding valves on that barge. At this point, Thomas

and Easterling, and then Curry, finished eating and

stepped back out on the barge. According to Thomas’s

and Curry’s testimony, they saw gasoline running from

the open end of the discharge line on the 109 in a stream

filling about a third of the eight-inch opening of the pipe,

and spilling out on the deck of the 109. Thomas testified

that he shouted to a man on the dock to turn off the

dock valve, and that the man began to do so. In a mo-

ment, however, there was a flash across the stern of the

109, and then an explosion. Thomas was thrown alongside

Dunaway on the barge and Curry was also knocked down.

Thomas and Dunaway ran up on the dock to the- levee

runway, where Dunaway saw LeBlanc. Curry went up on

the dock, where—he testified—he saw LeBlanc closing the

Ve SERENE eT T

i“ |

dock valve; then, stopped by flames from following Duna-

way and Thomas, he ran to the end of the dock and

jumped into the river, from whence he was rescued. The

bodies of Morrissette and Easterling were found several

days later. Lamey’s body has never been recovered, and

he is presumed dead.

The trial court found that the explosion was touched

off by gasoline fumes arising from the spillage on the

barge’s deck and ignited by the fire in the galley stove.

This gasoline, it found, came originally from the 112,

passed down the Gulf line and escaped through the par-

tially opened dock valve into the discharge line of the 107

and the 109, and thence out the open end of that line. It

found that LeBlanc opened the valve prematurely, with-

out having received the customary signal from the work-

ers on the barge that they were ready to begin discharg-

ing, and that this negligence contributed 50% to the

accident; that Black Warrior’s employees were negligent

in commencing the discharge operation without the blind

flange on the outboard end of the line, and that Curry and

Thomas were negligent in this respect and each contrib-

uted 5% to the accident; that Lamey was negligent in al-

lowing the discharge operations to begin without checking

the outboard end of the discharge line to be sure it was

closed by a flange; and that Morrissette was negligent in

keeping, and Lamey in allowing, an open burner in the

galley stove while discharge operations were going on.

LeBlanc and the Gulf Refining Company attack these

findings on the ground that there is no evidence to sup-

port the finding that LeBlanc opened the dock valve, and

in the alternative, that if he did, this was not a proximate

cause of the accident. The evidence clearly supports the

trial court’s finding in both respects. No gasoline was

seen coming from tle end of the discharge line until

Curry and Thomas ame out of the galley of the Rebel

Warrior. All of Gul’s employees had by that time left

the dock, except LeBanc, and he was later seen by these

same witnesses, accorling to their testimony, in the act of

closing the valve. Ir addition, a Coast Guard Board of

Investigation after ‘le accident found a quantity of gaso-

line in the dock lineoutside of the valve, tending to ne-

gate the contention ¢ Gulf and LeBlanc, because of the

physical arrangemen of the barge’s and dock facilities,

that the gasoline cauing the explosion came from the 109

or the 107.

Regarding causation, Gulf and LeBlane argue that

in view of the grossnegligence of Balck Warrior in per-

mitting a fire in tk galley during discharge operations

and in leaving the atboard end of the discharge line un-

flanged, LeBlanc’s tegligence was de minimis. The trial

court found LeBlan’s negligence to be a 50% factor in

causing the accident and we cannot set aside this finding

of fact unless it wis clearly erroneous. Consumers Im-

port Co. v. Kawasdi Kisen Kabushiki Kaisha (2 Cir.),

133 F. 2d 781, aff’320 U.S. 249, 64 S. Ct. 15, 88 L. Ed.

30. The evidence, quite contrary to this contention of

Gulf and LeBlanc, is that LeBlanc’s negligence was not

de minimis. All wh testified regarding discharging pro-

cedures, including julf’s witnesses Yockman, the assist-

ant superintendentof its Gretna terminal, and Hepting,

its dock foreman, tated that it was the invariable cus-

tom in discharging to await a signal from the barges

before opening a dock valve. Moreover, it eannot be

argued, as Gulf an] LeBlanc urge, that his action is ex-

cusable because he was not required to foresee that the

other end of the dscharge line would be open. The gen-

eral rule is that ole may still be found negligent despite

the fact that the particular consequences of his negligence

are not foreseeable. Restatement, Torts, $435. Thus,

here, if LeBlanc could not be required to know of the

missing flange, he was at least chargeable with the knowl-

edge that releasing gasoline down lines not normally used

in receiving it, and in any event not even prepared to

discharge it, was an act likely to bring dire results.

Gulf and LeBlanc argue also that under the sine qua

non or “but-for” test of causation, LeBlane’s act cannot

be regarded as the proximate cause of the explosion.

They reason that if LeBlanc had waited for the proper

signal before opening the valve, gasoline would still have

spilled out the open end of the discharge line. This argu-

ment must be rejected on the evidentiary ground, as we

consider the trial court to have rejected it, that this re-

sult would not have occurred, in the light of Dunaway’s

testimony that he and Lamey inspected the flanges on the

112 before giving LeBlanc the signal to open the gate

valve there, and would have done the same on the 109 had

LeBlanc allowed them the opportunity.

Black Warrior, meeting the issue of negligence head

on, denies that it was negligent and contends that it

breached no duty of care owed to Gulf by the leaving off

of the flange from the outboard end of the discharge line

or even from the placing of the Rebel Warrior with an

open galley fire in such close juxta-position to the open

end during the preliminary stages of preparation for

actual discharge operations. This argument is similar to

that of Gulf, to the effect that these two circumstances of

open ended discharge line (unquestionably an abnormal

condition) and an open galley fire close by (the unques-

tioned activating cause of the explosion) were still wholly

innocuous and would have remained so but for the pre-

mature opening of the gate valve on the dock by LeBlanc.

Whether we view the relevance of these critical facts

from the viewpoint of negligence or causation we are con-

vinced that the existence of these conditions under all the

circumstances of an actual unloading operation are such

as would permit the inference by the fact finder that they

were both negligence and a proximate cause of the ex-

plosion. We cannot, therefore, hold that such finding by

the trial court was clearly erroneous. Neither can we

challenge the court’s assessment of fault as being equal

between Gulf and Black Warrior.

Agreeing, then, with the findings of fact of the trial

court regarding the circumstances of the explosion and

the assessment of fault equally between Gulf’s employee

and Black Warrior’s employees,’ we may proceed to con-

sider the separate libels filed in the court below.

The Personal Injury and Wrongful Death Libels.

The representative of Morrissette, and the Hartford

Accident & Indemnity Co., subrogee of the rights of La-

mey’s representatives, filed libels against Gulf and Le-

Blanc for the wrongful deaths of these men. The district

court, in applying the Louisiana death statute, held that

claims brought under that act in admiralty were subject

to all defenses against such claims, including contributory

negligence, available to a defendant in a suit at law. This

is, of course, the general rule. See Graham v. A. Lusi,

Ltd. (5 Cir.), 206 F. 2d 223, and cases cited therein.

3 The trial court found: “[The] explosion * * * would not have

occurred but for the premature opening of the ae valve by Gulf on

one hand and the failure of Black Warrior to blank off the outboard

discharge line of the 109 on the other. These concurring acts of neg-

ligence, equally effective, were the direct and proximate causes of the

damage in suit.”

We may inquire, however, in what respects Morris-

sette and Lamey were guilty of the negligence attributed

by the trial court to Black Warrior’s employees. There

can be no doubt that the discharge line on the 109 was

unflanged for some time prior to the morning of May 11,

and probably at least since the barges had been loaded at

Texas City.‘ The trial court characterized the beginning

of discharge operations without the flange in place as “the

grossest kind of negligence”’.°

4 Kirk testified that he never checked the flanges on the end of

the discharge lines at Texas City, but only the cargo intake lines

which were used in loading the barges. He stated:

“A. No, I didn’t check back of the pumps because it was—

Q. But you didn’t check, or you didn’t determine whether or

not it was blanked off with proper flanges?

A. No, I didn’t have to use it at all, and I didn’t brother

with it.

Q. You never thought about it?

A. I never bothered with it, because I didn’t have to use it.

> * > * *

And after you finished discharging, do you put the blank

flanges back on?

Well, sometimes I would and sometimes I wouldn’t.

You mean you would leave them open?

ta would have a valve there that would cut the whole

ine—

Regardless of any valve, you mean you would leave the

end of the line unflanged at any time?

You can do it, yes. You have a valve to cut it off— the

main valve to cut that off.”

5 The testimony of an oil chemist at the trial was as follows:

“Q. You have heard testimony that even under the most ideal

conditions there would be vapor in the header due to

normal loading procedures, isn’t that correct?

A. ~ - It is impossible to avoid having vapors in the

eader.

> © POP ©

* * * * .

Q. Now, Mr. Shilstone, are you familiar with the blank

flanges on the ends of the discharge line such as you

saw in those diagrams?

A. Yes, I am.

Q. If you have a blank flange which is properly affixed

with some sealing property, such as a gasket, is that

satisfactory to shut off gas fumes and to prevent their

escape?

i (Continued)

RE. TIS

‘a

Such a condition would warrant an additional find-

ing by the trial court that the 109 was unseaworthy, for

with the discharge line open, a spark could have at any

time ignited the gasoline vapors always present therein.

The fact that the barge’s owners had provided sufficient

flanges to blank off the open ends of all cargo lines did |

not render the vessei any the less unseaworthy. Jnterna- ;

tional Navigation Co. v. Farr & Bailey Mfg. Co., 181 US.

218, 21 S. Ct. 591, 45 L. Ed. 830. The ultimate responsi-

bility for making sure that all cargo lines were flanged,

before the tow left Texas City, lay with the tow’s master ~

or with its pilot, who supervised the loading operation

there.°

The trial court found, however, that Lamey also was

negligent, “for it was he who allowed the discharge oper-

ation to begin without blanking off the outboard end of

the 109.” On the other hand, as noted above, Dunaway’s

uncontradicted testimony was that he and Lamey checked

the flanges on the 112 before beginning the discharge

operation there, and were preparing to do the same on the

5 (Continued)

A. Yes, sir, The gasket is termed, in effect, a seal, and it

is — as satisfactory and has proven itself in prac-

tice to so.

Q. —do you consider it in your experience of having han-

died ali these barges over the period of years, safe or

unsafe practice to leave the blank flange off the end

thereof?

A. 1 would not provide a vessel a gas-free certificate, nor

would I be authorized to by the American Bureau of

| where a line is allowed to be open, such as

that.”

6 Kirk testified:

” Now, in departing from Texas City, whose job was that

to see that all lines were properly blanked off?

Well, whoever the loader was. I was the loader of that

one.

You were the loader?

Yes.”

best

;

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107 and the 109 when the explosion occurred.* There was

no evidence that Lamey knew of the absence of the flange,

but there is evidence that he would have checked it before

starting the pumps or authorizing LeBlanc to open the

dock valve. The trial court thus imposed a duty on Lamey

to make a complete inspection of the barges, for unsea-

worthiness, immediately on coming aboard to conduct dis-

charge operations. We cannot agree that it was a breach

of due care on Lamey’s part to postpone his inspection of

the equipment he was to use until immediately before he

was prepared to use it. He could not reasonably be re-

quired to foresee, in other words, that from the moment

he came aboard the barges in the morning, a condition

existed, and had existed before their arrival, which im-

7 Dunaway testified, regarding the 112:

“A, * * * Then we checked the flanges—

ya When you say ‘we’—

Mr. Lamey and I.

Q. You and Mr. Lamey?

A. Yes, we work right together until we get everything

going. We checked the flanges and then we opened up

the valve and we asked the dock man was he ready to

go, and told him that we were ready when he was and

he told us to go ahead and start pumping.”

Regarding the 109:

& What happened after you opened those four valves?

. We walked on back towards the engine, going back to

check for the flanges and all of that.

When you say ‘check for the flanges,’ who do you mean?

We were going to check your discharge line, and also

the intake line for flanges, all of them.

Up to this time, had you done any checking or prepara-

tions on the stern of 109?

No, I hadn't.

Other than crossing over the barges, had you been on

the stern of 109 up to this time?

Not behind the engine, not as I recall.

So. you were walking back to check your flanges, and

what did you do then?

Well, checked the two valves by the pump, and after we

see if it is—

I mean, what did you actually do this particular morn-

ing? What happened?

We were coming on back that far, and then a flash ran

over on us—in other words, the fire, and blazed up right

on us.”

> © > O> OP © PO

AER

periled the lives of the entire crew. The fault for leaving

the discharge line unflanged lay, as we have said, with

the master or the pilot; and in the light of the usual war-

ranty of a vessel’s seaworthiness at the beginning of a

voyage, The Caledonia, 157 U.S. 124, 15 S. Ct. 502, 39

L. Ed. 613, we see no reason why Lamey should have pre-

sumed the fact to be otherwise.

The trial court also found Morrissette negligent in

keeping, and Lamey in allowing, a fire in the galley stove

while the towboat was alongside the 109. It was sworn to

at the trial that it was the custom aboard the Rebel War-

rior to keep the galley fire going 24 hours a day. Coast

Guard regulations allow this, provided that “the senior

deck officer on duty” makes an inspection “to determine

whether in his judgment galley fires may be maintained

with reasonable safety.”* The pilot, Kirk, testified that

it was customary to douse galley fires when the towboat

went alongside the barges. However, he knew that break-

fast was being prepared, and that the order, if there was

such, was being violated, and admitted that he made no

846 C.F.R. 35.30-5

“(c) Galley Fires. Galley fires are normally permitted

during cargo transfer operations: Provided, That prior to

loading Grades A, B and C cargoes the senior deck o ficer on

duty, who shall be a licensed officer or certificated tanker-

man, shall make an inspection to determine whether in his

judgment cy fires may be maintained with reasonable

safety during the loading operation.”

Although the phrase “during the loading operation” might seem

to limit the application of this regulation to loading, as contrasted to

both loading and discharge operations, Lieutenant Commander Pearce

of the Coast Guard, when asked about the galley fire here, testified:

“The regulation in question is 35.30-5—The answer would be that cer-

tain officers in charge may make certain examinations to ascertain

that conditions are safe for the handling, and that is 35.35-20 of Sub-

chapter D.”

This provides that “Prior to the transfer of cargo, the senior deck

officer on duty, who shall be a licensed officer or certificated tanker-

man, shall inspect the vessel to assure himself that the following con-

ditions exist:

(i) In loading Grades A, B, and C cargoes, that an inspec-

tion has been made to determine whether galley fires can

be maintained with reasonable safety.”

attempt to enforce it. Moreover, the cook cannot be

charged with knowledge of the absence of the flange or

of the danger that would result therefrom. Kirk brought

the towboat alongside the 109, with the galley door rough-

ly opposite the open discharge line, and although he was

in his quarters reading a newspaper at the time of the

explosion, he was waiting to move the towboat downriver.

It is clear that it was his duty to ascertain the safety of

keeping a fire in the galley while the towboat was moored

to the 109, and that this matter of judgment under ap-

plicable regulations could not be tacitly delegated by him

to the cook. Nor can it validly be argued that during this

period the senior officer’s responsibilities for safe prac-

tices aboard the towboat devolved upon the port engineer,

to be resumed by the pilot only when the towboat moved

away from the 109. The port engineer was the shoreside

employee solely responsible for the discharge operations,

but although those operations required air from the tow-

boat, he at no time gave any order regarding its move-

ment or operation, and indeed, even if he had, this could

not have relieved the master or the pilot from their re-

sponsibilities to the vessel. The B.B. No. 21 (2 Cir.), 54

F. 2d 532.

In the libels for personal injuries brought by Curry

and Thomas against Gulf and LeBlanc, the trial court

found that the negligence of each of these libelants con-

tributed 5% to the accident, and thereby diminished their

rights of recovery to this extent. We cannot regard this

finding as clearly erroneous. Although Thomas was only

a deckhand, and Curry the relief engineer aboard the tow,

both of them came with the tow from Texas City, and

were aware, or should have been aware, of the fact that

the discharge line on the 109 was open, and therefore

likely to cause an explosion. The finding that LeBlanc’s

negligence was a 50% factor in the explosion is likewise

affirmed.

Gulf has filed, in each of the personal injury and

wrongful death libels, a petition under Admiralty Rule 56

to implead Black Warrior, on the ground that Black War-

rior’s negligence was the sole cause of the accident. The

finding of the trial court, which we affirm, that Black

Warrior and Gulf were equally negligent, forecloses any

right on the part of Gulf to indemnity. Moreover, Gulf

has no right to contribution from Black Warrior, its joint

tortfeasor in a non-collision maritime injury case. Hal-

cyon Lines v. Haenn Ship Corp., 342 U.S. 282, 72 S. Ct.

277, 96 L. Ed. 318.

Black Warrior’s Claim of Exculpation for Cargo Damage.

Black Warrior here urges three grounds for denying

Gulf’s claim for recovery for the cargo destroyed in the

explosion and resulting fire. The first is the release

clause in the transportation contract between the two

companies, which also incorporates Section 3 of the Har-

ter Act (46 U.S.C.A. §192). Regarding this defense, it

is important only to note that exemption both under the

clause in question and under the Act?® is predicated on the

® The clause reads:

“Release: The cargo shall be transported at the sole risk

of such cargo, in so far as loss or damage to such cargo is

concerned, and neither Owner nor any person employed by

Owner, nor any vessel, barge or other equipment used here-

under, shall be liable for any loss of or damage to such cargo

regardless of the causes of such loss or damage, provided

only that Owner shall have exercised due diligence to make

such vessel and other equipment seaworthy and_ properly

manned, equipped and supplied, and provided that reasonable

care shall have been exercised in the receipt, stowage, han-

dling, care and delivery of the cargo which shall be in the

possession of the tow from the time that the petroleum

products reach the barge pipe in loading until the products

reach the shore line hose connection in unloading. Owner

shall be entitled to the exoneration from liability under Sec-

(Continued)

owner’s exercising “due diligence” in making the vessel

seaworthy. The Act has been interpreted to require, for

exemption, not only that the owner furnish all proper

equipment for the vessel, but also that his servants exer-

cise due care in using such equipment before the com-

mencement of the voyage. International Navigation Co.

v. Farr & Bailey Mfg. Co., supra. This same qualification

for release must apply in the case of the contractual limi-

tation of liability, since it uses language substantially

similar to that of the statute.

Black Warrior also relies on the “Force Majeure”

clause in the contract, set out in a footnote below.” This

9 (Continued)

tion 3 of the Harter Act (46 U.S.C.A. 192). Nothing in this

contract shall be construed to deprive Owner of, or to limit

Owner’s rights to, any ner ag protection or limitation of

liability, which would otherwise by [sic] applicable.”

The Harter Act provides:

“$192. Limitation of liability for errors of navigation

dangers of the sea and acts of God. If the owner of any ves-

sel transporting merchandise or property to or from any port

in the United States of America shall exercise due diligence

to make the said vessel in all respects seaworthy and prop-

erly manned, equipped, and supplied, neither the vessel, her

owner or owners, agent or charterers, shall become or be held

responsible for damages or loss resulting from faults or

errors in navigation or in the management of said vessel nor

shall the vessel, her owner or owners, charterers, agent, or

master be held liable for losses arising from dangers of the

sea or other navigable waters, acts of God, or public enemies,

or the inherent defect, quality, or vice of the thing carried,

or from insufficiency of package, or seizure under legal pro-

cess, or for loss resulting from any act or omission of the

shipper or owner of the goods, his agent or representative, or

from saving or attempting to save life or property at sea, or

from any deviation in rendering such service.”

10“Force Majeure: Neither Owner, Charterer, the tow, her

master or owners, nor any other equipment used by Owner, shall be

responsible or liable in any way for any loss or damage, or for any

failure or delay in performance hereunder arising or resulting from:

Acts of God, Perils of the waters, or of navigation, strikes or stoppage

of labor for whatever cause, fire, explosion, neglect, default or bar-

ratry of the master or crew, enemies, pirates, assailing thieves, seiz-

ures, arrest or restraint of princes, rulers or people riots or civi) com-

motion, compliance with any law, rule, order, regulation, restriction,

recommendation or request of any government or agency thereof or

any person purporting to act under authority thereof or any other

cause, whether similar or dissimilar to the foregoing, which is beyond

their control.”

clause exculpates the owner from liability for damages

resulting from a number of causes, which might or might

not stem from the negligence of the owner or his servants,

but closes with the words “or any other cause, whether

similar or dissimilar to the foregoing, which is beyond

their control.” The trial court characterized the clause as

“but a mishmash of words,” and, while it is our duty to

construe it to the best of our ability, it is plain that in

order to give it meaning, we must regard the words “be-

yond their control” as indicating an exculpation only

when “fire, explosion” and other listed causes occur by

the acts of nature or of third parties. Such was not the

case. It is, therefore, not applicable.

Black Warrior’s final defense on Gulf’s claim for

damage to cargo is based on Section 1 of the Limited Lia-

bility Act (46 U.S.C.A. $182), the so-called fire statute.”

This grants a vessel-owner exemption from liability for

damage to cargo caused by fire, “unless such fire is

caused by the design or neglect of such owner.” It is

settled law that unseaworthiness in itself does not consti-

tute such neglect, and moreover, that to deny exemption

the negligence must be that of the owner himself or his

managing officers. Thus, while under the Harter Act,

the negligence of a ship’s employee is imputable to the

vessel owner, under the fire statute it is not. Earle &

Stoddart v. Wilson Line, 287 U.S. 420, 53 S. Ct. 200, 77

L. Ed. 403; Consumers Import Co., Inc. v. Kawasaki

Kisen Kabushiki Kaisha, supra.

11 This provides:

“182. Loss by five. No owner of any vessel shall be

liable to answer for or make good to any person any loss or

damage, which may happen to any merchandise whatsoever,

which shall be shipped, taken in, or put on board any such

vessel, by reason or by means of any fire opps to or on

board the vessel, unless such fire is caused by the design or

neglect of such owner.”

Gulf argues first, that Lamey’s negligence is im-

putable to Black Warrior—now an irrelevant contention

in the light of oir reversing the finding of negligence on

Lamey’s part—nd, second, that the defense cannot be

considered here because it was not urged below. It is

quite true that his is the general rule. Benton v. Blair

(6 Cir.), rine ..... Nevertheless, we are not bound

by it as an absoute principal, and since the case must be

remanded to the district court for the ascertainment of

damages, we ma here hold the defense available to Black

Warrior, reservng to the parties the right to introduce

further evidence below regarding the applicability of the

fire statute in tlis case. Cf. The I.S.E. 2 (9 Cir.), 15 F.

2d 749.

The followiig disposition is therefore made of these

appeals:

No. 15,593—-Reversed and Remanded.

No. 15,594—-Affirmed.

No. 15,595—-Reversed and remanded, with directions

to allow the introduction of evidence by

either party, or both, regarding the ex-

emption of liability provided by 46 U.S.

C.A. §182.

No. 15,596—-Affirmed.

No. 15,597--Affirmed.

No. 15,598-—-Reversed and Remanded.

CAMERON, Circuit Judge, Concurring in part and dis-

senting in pa‘t:

I agree with the conclusions reached by the majority

and set forth inthe able opinion except those resting upon

the premise tha: the Black Warrior was guilty of action-

bcd

{

ge.

®-

able negligence in leaving the outboard end of the dis-

charge line open during the activities incident to making

the pipelines of barge 109 ready for the beginning of un-

loading operations. Those preparatory steps were to be

completed entirely before the barge’s pumps were set in

operation and before the signal was given to LeBlanc that

the valve should be opened so that Gulf’s pipe line might

receive the gasoline propelled to it by the barge’s pumps.

But those preparatory steps had not been completed,

the signal had not been given to start the barge’s pumps

and the signal had not been given to LeBlanc that dis-

charge of the cargo was ready to begin. Until those sig-

nals were given and the pumps were started and Le-

Blanc’s valves were opened, no danger could arise from

the open-ended pipe. It was proper and without hazard,

under the evidence, that either or both ends of this dis-

charge line be left open until the beginning of discharge

operations. Indeed, it is logical that they should be left

open until it had been decided which side of the barge

should be placed next to the shore; and also, to the end

that the air in the pipeline might have a means of escape

during the other preparatory steps.

The situation of the Rebel Warrior with the fire in

the galley, of the two barges being prepared for cargo

discharge and with respect to all other relevant factors

had existed for more than twenty minutes without inci-

dent. It was only the introduction of large quantities of

gasoline into the discharge line of the 109 which caused

the explosion or created any hazard at all. The crew of

the Rebel Warrior had a right to perform their duties,

assured that Gulf would not turn down upon them a

column of gasoline until the signal was given. In fact, it

is evident that Gulf’s employees were keenly aware of the

Sa ah a ath

danger connected with opening the valve of its pipeline;

for, as shown by the majority opinion, they were not con-

tent to place complete reliance in the Rebel Warrior’s

crew, but, themselves, checked the flange on the outboard

end? of the 112’s discharge line before essaying to connect

up the flexible rubber hose between Gulf’s pipeline and

the discharge line of the 112.

It is clear to me that the open end of this discharge

line was a perfectly proper and harmless condition, which

could be made dangerous only by a wanton and unforesee-

able act by Gulf’s valve man. Without dispute, it would

have been closed before the pumps were started or the

signal given to Gulf to open the valve. The election by

the Rebel Warrior’s crew to defer closing the open pipe

until after other steps had been taken in preparing for

the beginning of the discharge operation, was not a neg-

ligent act and was not a proximate cause of the explo-

sion. In my opinion, the Court below committed an error

of law in judging this to be negligence. I dissent, there-

fore, from the portions of the majority opinion resting

upon the affirmance of this part of the finding and judg-

ment of the Court below.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Fifth Circuit.

1 Here is what the majority opinion states: “They began with

the 112. Gulf employees gauged the barge’s tanks, attached a bond-

ing wire from the dock to the vessel, and removed the plate or flange,

bolted across the face of the dock pipeline. They then checked the

flanges, including the flange on the outboard end of the 112’s dis-

charge line.” [Emphasis added.]

EY ETN e PORES

PRES

PUES LEONI NEP

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APPENDIX B

BLACK WARRIOR

TOWING COMPANY __

cecete za]

Houston, Texas Above DERE

February 18th, 1952 ; © EB 20 1952)

i : a

Qulf Refining Company . eae —4

Gulf Building fr me ‘i [. gine:

Pittsburgh, Pennsylvania ki ; ge ;

Gentlemen:

BLACK WARRIOR TOWING CO., INC., owner or chartered owner of the equipment

hereinafter described, (hereinafter called "Owner") hereby charters and

GULF REFINING COMPABY (hereinafter called "Charterer"), hereby hires, a tow

for the transportation of certain liquid petroleum products in bulk uponthe

following terms and conditions:-

1, BQUIPMERT: A tow comprised of one 700 h.p. towboat and three

9000 barrel tank barges, total capacity of tow 27,000

barrels.

2. IQADING POINT: Pert Arthur, Texas

3. DESTINATION: Various; see Item 13, "SPECIAL PROVISIONS", (c) and (4)

4. CARGO: Clean petroleum products.

5. APPROXIMATE

LOADING DATE: On or about February 18th, 1952.

6, PERIOD: Consecutive voyages for one year from date of initial

loadi ng.

7. YFREIGHT RATE: Various; see "SPECIAL PROVISIONS", (4)

8. LAYTIME; Three running hours freetime at loading port.

Three running hours freetime at discharging port.

LOADING RATE; Two thousand (2000) barrels per hour,

DISCHARGING RATE: Fifteen hundred (1500) barrels per hour.

9. DEMURRAGE RATE; Twenty ($20.00) dollars per hour

10. PREVIOUS CARGO; Clean petroleum products

ll. PUMPING: By and for account of Owner.

(continued on page 2)

TRS Lope OTH LAR PSM CRN IS,

ye ee

BLACK WARRIOR

COMPANY

GULF REFINING COMPANY/BLACK WARRIOR TOWING COMPANY TUG AND BARGE CHARTER -

FEBRUARY 15TH, 1952.

(page 2)

12, INSURANCE: Cargo insurance, if and, shall be procured by Charterer

for account of and at the expense of Charterer. If

insured, Charterer's underwriters shall extend waiver

of mbrogation to Owner.

13. SPECIAL

PROVISIONS: (a) Barges tendered will last have contained clean

petroleum products; and additional cleaning, if re-

quired or for change of cargo, will be for the

account of Charterer and time so used will be counted

as used laytine.

(>) Charterer may "split load" individual barges

with more than one grade of product, wer to be

held harmless in event of admixturs or contamine-

tion of grades, howsoever occuring.

destinations on Gulf Intracoastal Waterway (no further

Bast than Mobile) and Mississippi River, subject to

Previous arrangement with Owner.

(4) Freight rates:-

(1) Port Arthur, Texas to Mobile, Alabama:-

fwenty-one (Z1¢) per forty-two gallon barrel.

(2) Port Arthur, Texas to Baton Rouge, Louisians:-

Wineteen and one-half (191/2¢) cents per

forth-two gallon barrel.

(3) Port Arthur, Texas to Vicksburg, Mississippi:-

fwo dollars, fourteen cents ($2.14) per net

tom of 2000 pounds.

Port Arthur to Greenville, Mississippi:- Two

dollars, fifty-four cents ($2.54) per net

ton of 2000 pounds.

Om tow loaded for more than one discharge

destination, tow will earn freight rate on ’

total carg@ loaded to most distant port of

discharge.

14. LAYTIME, LOADING

AED DISCHARGING

RATES, EPC.: Charterer shall furnish tow with safe loading berth

and safe discharging berth promptly on arrival.

(continuea on page 3)

BLACK WARRIOR

COMPANY

bee ce

GULF REFINING COMPANY/ELACK MARRIOR TOWING COMPANY TUG AND BARGE CHARTER -

FEBRUARY 15TH, 1952.

TOWING

(page 3)

14, LAYTIME, LOADING

AND DISCHARGING

RATES, EEC.: Charterer is allowed the mumber of hours free tine

at loading port as stated in Item 8, after which

loading is to be accomplished at the minimus rate

of the number of barrels as stated therein, per

running hour, berth or no berth, dey er night,

Saturdays, Sundays m4 holidays not excepted.

Charterer is allowed the mumber of hours free tins

at discharging port as stated in Item 6, after

which discharging is to be accomplished at the

minimum rate of the number of barrels as stated scerein,

per running hour, berth or no berth, day or night, A

Saturdays, Sundays and holidays not excepted. ¥

15. DEMUBRAGE: In the event loading and/or discharging is not accom

plished at the minimus rates named through no fault

of the Owner or Omer's equipment, demurrage shall

accrue, and Charterer shall pay owner at the rate per

hour or fraction thereof for tow, as stated in Item 9.

SS OL ROE RRL | TN ON TSS ANNE TIER ST EAS

16, GENERAL AVERAGE; Ia the event of accident, danger, demage or disaster

before or after commencement of the vayage resulting

from any cause whatsoever, whether due to negligence

or not, for which, or for the consequence of which,

Owner is not responsible to Charterer by statute or

contract or otherwise, Charterer and other perties

having an interest in the cargo shall contribute in

general average to the paymentof any sacrifices,

losses or expenses of a general average nature that

may be made or incurred, and shall pay salvage md

special charges incurred in respect of the cargo.

General average, if any, shall be settled according

to York-Antwerp Rules, 1924, 1 to 15 and 17 to 22,

both inclusive, and as to matters not therein pro-

vided for, according to the usages and customs of the

Port of New York.

17, FREIGHT PAYMENT: Charterer will furnieh Owner, free of cost, copies of

loading certificates. Freight shall be paid on intake

7 quantity, barge guaces, in net cash upon presentation

; of documents. Freight shall be earned, cargo lost or

4 (continued on page 4)

TRADER Te Ph

CPN OEM RS

BHATT

BLACK WARRIOR

TOWING COMPANY

ee:

41; ogy ° ;

GULF REFINING COMPANY/BLACK WARRIOR TOWING COMPARY Bd iad tiarke -

17.

18:

19:

FEBRUARY 15TH, 1952.

(page 4)

FREIGHT PAYMENT: not lost. All charges for pumping, cleaning, demurrage,

(continued)

WHARFAGE AND

DOCEAGE:

FORCE MAJEUEE:

RELEASE:

if any, shall be payable upon receipt by Charterer of

Owner's invoice therefor.

Charterer, warrants that the Owner's equipment shall

be free of wharfage and dockage charges at loadng

and discharging ports.

Neither Owner, Charterer, the tow, her master or

owners, nor any other equipment used by Owner, sball

be responsible or liable in any way for any loss or

damage, or for any failure or deley in performance

hereunder arrising or resulting from: Acts of God,

Perils of the waters, or of navigation, strikes or

stoppage of labor for whatever cause, fire, explosion,

neglect, default or barratry of the master or crew,

enemies, pirates, assailing thieves, seisures, arrest

or restraint of princes, rulers or people riots or

civil commotion, compliance with any lav, rule, order,

regulation, restriction, recommendation or request of

any government or agency thereof or any person pur~

porting to act under authority thereof, or any other

cause, whether similar or dissimilar to the foregoing,

The cargo shall be transported at the sole risk of

such cargo, in so far as loss or damage t© such cargo

is conterned, and neither Owner nor any person e=ployed

by Owner, nor azy vessel, barge or other equipment used

hereunder, shall be liable for any less of or demage to

gach cargo regardless of the causes of mecb loss or

damage, provided only that Owner shall have exercised

in the receipt, stowage, handling, care and delivery of

the cargo which shall be in the possession of the tow

from the time that the petroleum products reach the

barge pipe in loading until the products reach the shore

line bose connection in unloading. Cwner shall be em

titled to the exoneration from liability under Sectioca

3 of the Harter Act (46 USCA 192). Nothing in this

(continued on page 5)

TT ee

BLACK WARRIOR

TOWING tel

Vii:

GULF REFINING COMPANY/ELACK WARRIOR TOWING sanen Sis 'inion 2

2. RELEASE:

(continued)

2, IsDBOITY:

22. VAPOR PRESSURE:

23, DEFINITIONS:

FEBRUARY 1571, 1952.

(page 5)

contract shall be construed to deprive Owner of, or to

limit Owner's rights to, any statutory protection or

limitation of liability, which would otherwise by

applicable.

If the tow comes into collision with another vessel as

@ result of the negligence of tha other vessel and any

act, neglect or defamlt of Owner or the master or crew

of the tow, for which, or for the consequence of which,

Owner is not responsible to Charterer by statute or

contract or otherwise, Charterer and the other parties

having an interest in the cargo shall, jointly and

sever’ ly, hold harnless and indemnify er against all

liatality to the other vessel or her owners or the

owners of the cargo of the other vessel with respe¢t to

any payment which Charterer or such other parties have

received or may be entitled to receive from the other

Vessel or her owners, or the owners of the cargo of the

other vessel.

Bo petroleum product shall be transported hereunder

with a vapor pressure exceeding 14 pounds at 100 degrees

Fahrenheit as determined by the Reid Method.

Wherever the word, "Barrel® appears herein it means a

barrel of 42 U.S.A. measured gallons at 60° F.

BLACK WARRIOR TOWIEG 00., INC,

AOONPTED THE 7th DAY OF March, 1952

were

nae

TAPE. SIGS NGI ae 5 a egg,

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APPENDIX C

U.S. FIRE STATUTE, 46 U.S. CODE 182.

Sec. 182. LOSS BY FIRE. No owner of any vessel

shall be liable to answer for or make good to any person

any loss or damage, which may happen to any merchan-

dise whatsoever, which shall be shipped, taken in, or put

on board any such vessel, by reason or by means of any

fire happening to or on board the vessel, unless such fire

is caused by the design or neglect of such owner. (R.S.

Sec. 4282).

a Aa SS

SRS SOY Rate

APPENDIX D

ART. 2315 LOUISIANA CIVIL CODE. LIA-

BILITY FOR ACTS CAUSING DAMAGE;

SURVIVAL OF ACTION.

Art. 2315. Every act whatever of man that causes

damage to another, obliges him by whose fault it hap-

pened to repair it; the right of this action shall survive

in case of death in favor of the children, including

adopted children and children given in adoption, or spouse

of the deceased, or either of them, and in default of these

in favor of the surviving father and mother or either of

them, and in default of any of the above persons, then in

favor of the surviving blood brothers and sisters, or

either of them, for the space of one year from the death.

However, should the deceased leave a surviving spouse,

together with minor children, the right of action shall

accrue to both the surviving spouse and the minor chil-

dren. The right of action shall accrue to the major chil-

dren only in those cases where there is no surviving

spouse or minor child or children.

If the above right of action exists in favor of an

adopted person, it shall survive in case of death in favor

of the children or spouse of the deceased, or either of

them, and in default of these in favor of the surviving

adoptive parents, or either of them, for the space of one

year from the death. However, this right of action shall

survive in favor of the blood parent or parents to the

exclusion of the adoptive parent or parents when at the

time of the adoption the adopted was a major, or eman-

cipated minor whose adoption was effected without the

consent of the blood parent or parents evidenced in the

Sa eT

act of adoption. In default of these, it shall survive in

favor of the surviving blood brothers and sisters of the

adopted person, or either of them, for the space of one

year from the death.

The survivors above mentioned may also recover the

damages sustained by them by the death of the parent or

child or husband or wife or brothers or sisters or adoptive

parent, or parents, or adopted persons, as the case may

be. (As amended by Acts 1948, No. 333, Sec. 1).

APPENDIX E

LIST OF CASES IN RECORD AND JUDGMENTS

In the first libel, Hartford Accident & Indemnity

Company vs. Gulf Refining Company and Villa LeBlanc,

No. 15,593 on appeal (District Court No. 2262), the

Longshoremen’s and Harbor Workers Compensation Act

insurer for Black Warrior sued for reimbursement of

compensation paid to William L. Lamey’s survivors. In —

the other death case, No. 15,598 (District Court No.

2330) by the survivors of the cook Nolan Morrissette, the

Court of Appeal reversed and remanded the District

Court’s dismissal of these suits on the ground of contrib-

utory negligence under the State law of Louisiana, Civil

Code Article 2315.

In No 15,595 (District Court No. 2313) Gulf sued

Black Warrior for property damage to its terminal, and

gasoline cargo, and Black Warrior cross libeled for prop-

erty damages to its tug and barges. The District Court

decreed divided damages. The Court of Appeal reversed

and remanded with directions to allow evidence regarding

the exemption under the Fire Statute.

In No. 15,596 and 15,597 (District Court No. 2328

and 2339 respectively) Black Warrior’s employees Curry

and Thomas sued Gulf and LeBlanc for personal injury

damages. Gulf and LeBlanc impleaded Black Warrior

under the 56th Admiralty Rule. The District Court dis-

missed both impleading petitions but allowed recovery to

libelant on an apportioned basis in view of contributory

negligence. The Court of Appeal affirmed.

The suit by LeBlane against Black Warrior (Court

of Appeal No. 15,594, District Court No. 2312) is not in-

cluded in this application.

JUDGMENT.

Extract fron the Minutes of February 20th., 1956.

No. 15593.

HARTFORD ACCIDENT & INDEMNITY COMPANY,

versus

GULF REFINNG COMPANY and VILLA LeBLANC.

This cause came on to be heard on the transcript of

the record fromthe United States District Court for the

Eastern District of Louisiana, and was argued by counsel;

On consideration whereof, It is now here ordered,

adjudged and ecreed by this Court that the Decree of

the said Distric Court in this cause be, and the same is

hereby, reversec and that this cause be, and it is hereby,

remanded to tle said District Court in accordance with

the opinion of tiis Court;

It is furthe ordered, adjudged and decreed that the

appellees, Gulf Refining Company and Villa LeBlanc, be

condemned, in slido, to pay the costs of this cause in this

Court for whicl execution may be issued out of the said

District Court.

ey LOVEE, 5

ng tee

JUDGMENT.

Extract from the Minutes of February 20, 1956.

No. 15595.

GULF REFINING COMPANY,

versus

BLACK WARRIOR TOWING COMPANY,

versus

GULF REFINING COMPANY.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by counsel ;

On consideration whereof, It is now here ordered,

adjudged and decreed by this Court that the decree of

the said District Court in this cause be, and the same is

hereby, reversed; and that this cause be, and it is hereby,

remanded to the said District Court with directions to

allow the introduction of evidence by either party, or

both, regarding the exemption of liability provided by 46

U.S.C.A. $182;

It is further ordered, adjudged and decreed that the

appellant and appellee, Gulf Refining Company, and the

surety on its appeal bond herein, Federal Insurance Com-

pany, be condemned, in solido, to pay the costs of this

cause in this Court for which execution may be issued out

of the said District Court.

“Cameron, Circuit Judge, dissenting.”

JUDGMENT.

Extract from the Minutes of February 20, 1956.

No. 15596.

GULF REFINING COMPANY,

versus

GEORGE L. CURRY,

versus

GULF REFINING COMPANY and VILLA LeBLANC.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by counsel;

On consideration whereof, It is now here ordered,

adjudged and decreed by this Court that the decree of

the said District Court in this cause be, and the same is

hereby, affirmed;

It is further ordered, adjudged and decreed that the

appellant and appellee, Gulf Refining Company, and the

surety on its appeal bond herein, Federal Insurance Com-

pany, be condemned, in solido, to pay the cost of this

cause in this Court for which execution may be issued out

of the said District Court.

“Cameron, Circuit Judge, dissenting.”

;

JUDGMENT.

Extract fron the Minutes of February 20, 1956.

No. 15597.

GU_F REFINING COMPANY,

versus

JOHN THOMAS,

versus

GULF REFIN-'NG COMPANY and VILLA LeBLANC.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern Districi of Louisiana, and was argued by counsel;

On consideation whereof, It is now here ordered,

adjudged and «ecreed by this Court that the decree of

the said Distric Court in this cause be, and the same is

hereby, affirmel;

It is furtha ordered, adjudged and decreed that the

appellant and @pellee, Gulf Refining Company, and the

surety on its aypeal bond herein, Federal Insurance Com-

pany, be condenned, in solido, to pay the cost of this

cause in this Curt for which execution may be issued out

of the said Distict Court.

“Cameron,Circuit Judge, dissenting.”

JUDGMENT.

Extract from the Minutes of February 20th., 1956.

No. 15598.

MARTHA JANE MORRISETTE,

versus

GULF REFINING COMPANY and VILLA LeBLANC.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by counsel;

On consideration whereof, It is now here ordered,

adjudged and decreed by this Court that the Decree of

the said District Court in this cause be, and the same is

hereby, reversed and that this cause be, and it is hereby,

remanded to the said District Court in accordance with

the opinion of this Court;

It is further ordered, adjudged and decreed that the

appellees, Gulf Refining Company and Villa LeBlanc, be

condemned, in solido, to pay the costs of this cause in this

Court for which execution may be issued out of the said

District Court.

;

wees SP REL PE

. *

INDEX

SUBJECT MATTER PAGE

SUMMARY OF STATEMENT 1

REASONS FOR REFUSING THE WRIT 8

ENRICO cs spnierfeemicernsecesionn — 8

APPENDIX A—U.S. FIRE STATUTE,

Ot of ean 9

CASE INDEX

Fidelity-Phoenix Insurance Company v. Flota Mer-

cante Del Estado (5 C.A.) 205 F. 2d 886... 4

Haleyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282; 72 S. Ct. 277_-______ 3, 6, 8

McAllister v. United States, 348 U.S. 19; 75 S. Ct. 6 5

Pope & Talbot, Inc. v. vised 346 U.S. 406; 74 S. Ct.

Cee in yO

Ryan ciliates Co., Inc. v. Pan-Atlantic c Steamship

Corporation, 350 U.S. 124; 76 S. Ct. 232_. 3

COVA,

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;

IN THE

Supreme Court of the United States

OCTOBER TERM, 1956.

No. 173

GULF REFINING COMPANY,

Petitioner,

versus

BLACK WARRIOR TOWING COMPANY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court cf Appeals for the Fifth Circuit.

BRIEF FOR RESPONDENT IN OPPOSITION.

SUMMARY OF STATEMENT

Petitioner’s “Summary of Statement” while quite

lengthy, is incomplete, garbled and wholly inaccurate.

Being dissatisfied therewith, we restate here summarily

the facts, and the litigation and how it has been resolved

by the District Court and by the United States Court of

Appeals for the Fifth Circuit.

While a cargo of petroleum carried in a tow of barges

owned and operated by respondent Black Warrior Tow-

ing Company, (hereinafter referred to as Black Warrior),

was being discharged at the wharf of petitioner, Gulf

Refining Company (hereinafter referred to as Gulf) at

New Orleans, an explosion occurred, followed by a fire,

as a result of which both petitioner and respondent suf-

fered property damage and there occurred loss of life and

personal injury. As a result of this explosion and fire a

series of suits were filed in admiralty in the United States

District Court for the Eastern District of Louisiana.

The principal issues common to all of these suits was

the negligence vel non of Gulf Refining Company and

Black Warrior Towing Company. On conflicting testi-

mony, all taken in open court, the District Judge, who

heard the witnesses and observed their demeanor on the

stand, concluded that the explosion and resulting fire

were caused by gasoline which ran out of the open out-

board end of the discharge line on one of the barges,

ignited by a fire in the galley stove of the Towboat

REBEL WARRIOR, which was lying outside of the tow

for the purpose of furnishing compressed air to start a

Diesel engine on the cargo discharge pump of one of the

barges. The District Judge found that the source of the

gasoline was the Gulf Refining Company’s wharf dis-

charge line, and that it had been permitted to run into

the barge discharge line by reason of the negligence of

one of Gulf’s employees, Villa LeBlanc, in negligently and

prematurely opening a wharf valve. The District Judge,

therefore, held that Gulf and Black Warrior Towing

Company were equally guilty of negligence, Gulf because

its employee negligently and prematurely opened the wharf

valve permitting gasoline to flow into the barge’s dis-

charge line, and Black Warrior for failure to have closed

off the end of the discharge line with a blank flange. The

District Judge found equal causation of the fire and ex-

plosion in Gulf’s negligent act in opening the wharf valve

prematurely, and in Black Warrior’s conduct! and, ac-

cordingly, the District Judge held both Gulf and Black

Warrior equally at fault* and apportioned the property

damages between them on the basis of 50% to each. The

Court of Appeals affirmed the District Court in this

regard.®

REASONS FOR REFUSING THE WRIT

(1) 5

Of course, the inclusion of the important factor‘ of é

Gulf’s negligence equal to that of Black Warrior’s, pre-

sents an entirely different legal situation than that pre-

sented by the petition. There is presented a legal situ-

ation of a tort feasor seeking contribution from a joint

tort feasor identical with that presented to this Court in

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp.,

342 U.S. 282; 72 S. Ct. 277, wherein Your Honors held

that there could be no contribution between joint tort

feasors in non-collision cases. Ryan Stevedoring Co., Inc.

v. Pan-Atlantic Steamship Corporation, 350 U.S. 124; 76

1 The statement in the last paragraph on Page 5 of the Petition,

that the District Judge had found the proximate cause of the accident

was the conduct only of Black Warrior, is inaccurate and incomplete,

because it disregards the finding of the District Judge of equal proxi-

eae icra, in negligently and prematurely opening the dock valve

- y Gulf.

2“The trial court found [127 F. Supp. 474]: ‘[{The] explosion

would not have occurred but for the premature opening of the gate

valve by Gulf on one hand and the failure of Black Warrior to blank

off the outboard discharge line of the 109 on the other. These concuring

acts of negligence, equally effective, were the direct and proximate

causes of the damage in suit.’ ” (230 F. 2d 351, note 3)

* “Neither can we challenge the court’s assessraent of fault as being

equal between Gulf and Black Warrior.

“Agreeing, then, with the findings of fact of the trial court regard-

ing the circumstances of the explosion and the assessment of fault

5 equally between Gulf’s employee and Black Warrior’s employees, we may

z She consider the separate libels filed in the court below.” (230 F.

wa .

fs ‘So important, that one of the Judges of the Court of Appeals

was of the opinion that it was the sole cause of the fire and resulting

z explosion and that Black Warrior’s condu: t did not amount to negli-

gence, by reason of which he dissented and wrote a dissenting opinion

(230 F. 2d 356).

s* *

Sai a ng a Nala

é d

S. Ct. 232, has no application to this case, because there

the Pan-Atlantic Steamship Corporation was an innocent

party, and not a tort feasor, while in the case at bar we

have presented the case of two parties found to have been

in pari delicto and certainly, in the absence of a specific

indemnification agreement whereby Black Warrior agreed

to indemnify Gulf against liability for Gulf’s own negli-

gence, no such agreement can be inferred. Accordingly,

the first reason for granting the writ alleged in the peti-

tion for the writ wholly disappears from the case.

(2)

The third reason for granting the writ presented by

the petition, that the defense of the Fire Statute® was

improperly considered by the Court of Appeals because

invoked for the first time on appeal, is wholly without

merit. Even if this were an affirmative defense, it

would be properly within the discretion of the Court of

Appeals to permit the defense to be raised on remand,

such as was done in this case. However, we submit that

the Fire Statute does not create an affirmative defense

which must be plead; on the contrary, the Statute creates

for the shipowner an exemption from liability for dam-

age to cargo caused by fire, and places on one seeking to

hold the shipowner liable therefor the burden of showing

that the fire was due to the “design and neglect” of the

shipowner,® a showing that must be made by the claim-

ant as a condition precedent to recovery from the ship-

owner. Accordingly, in the case at bar, the Court of

Appeal should have considered the effect of the Fire Stat-

ute and whether petitioner had carried its burden of

proof, and not instructed the District Court to consider

5 Appendix A to this brief. (Post, page 9)

6 Fidelity-Phoenix Insurance Company v. Flota Mercante Del Estado

(5 C.A.), 205 F. 2d 886.

bee oo ach he

paar!

Basar

;

it on remand, but this is an error of which the Petitioner

cannot and of which we do not complain here.

(3)

as The foregoing are all the legal issues that are involved

E in Gulf Refining Company v. Black Warrior Towing Com-

pany. However, we assume that the petition for writ of

certiorari is intended to cover all of the kindred cases

listed in Appendix E to the petition,’ so we discuss here

Petitioner’s other two reasons for the granting of a peti-

tion as they apply to these other cases.

The Petitioner complains that the Court of Appeals

“has rejected the facts found by the District Court and

has decided contrary to [District] Judge Wright’s find-

ings of fact that (a) Lamy was not guilty of negligence,

and (b) Morrissette was not guilty of negligence, and

declared both free from negligence without manifest er-

ror, contrary to the rule announced in the decision of

this Court in McAllister v. United States, 348 U.S. 19;

75 S. Ct. 6.”* We submit that this complaint is wholly

groundless for the reason that the Court of Appeals did

not reject one single fact found by the District Judge or

add one single fact to his findings. The Court of Appeals

adopted in tot» the findings of fact of the District Judge,

but found that the conduct of Lamy and Morrisette, as

determined by the District Judge, did not constitute negli-

gence in either case as a matter of law, which is properly

within the prevince of the Court of Appeals, and was so

recognized in the McAllister Case.

SO Eo iar en Ta mare TT te ee ia ee en aad |

My SPE a A

The Petitioner also complains that it would be in-

equitable to yermit Black Warrior to be released fully

7 Page 52.

8 Petition, pages 2-3.

ASIN te

from responsibility to the tort claimants such as Thomas,’

Curry,’® Morrisette,’ and Hartford,’? and that “in no

event should Gulf be called upon to bear the full and

entire economic burden of these claims.”

We submit that because Gulf was a joint tort feasor, |

in pari delicto with Black Warrior, Gulf cannot secure a |

contribution from Black Warrior in any of these cases,

because Halcyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282; 72 S. Ct. 277, provides a bar to such

contribution. In addition, as regards the Lamy Case, this

issue has been disposed of by Your Honors in Pope &

Talbot, Inc. v. Hawn, 346 U.S. 406; 74 S. Ct. 202. There

the identical question was presented to Your Honors. In

that case Hawn, an employee of Haenn Ship Ceiling &

Refitting Corporation (hereinafter called Haenn) sued a

vessel owner, Pope & Talbot, Inc., for damages for per-

sonal injury occasioned as a result of the ship’s unsea-

worthiness. Hawn received from his employer Haenn

compensation payments under the Federal Longshore-

men’s & Harbor Workers’ Compensation Act and Pope &

Talbot argued that any judgment against it would result

in a double recovery by Hawn, and that to allow him to

repay Haenn would result in relieving the employer,

whose negligence contributed to the injury, of liability

9 Granted a decree for damages for personal injuries against Gulf,

with a 5% reduction for Thomas’ negligence.

10 Granted a decree for damages for personal injuries against Gulf,

with a 5% reduction for Curry’s negligence.

11 Morrissette found not guilty of negligence by the Court of Ap-

peals and the case remanded to assess his widow’s damages.

12 Suit by Hartford Accident & Indemnity Company against Gulf

Refining Company and its employee, Villa LeBlanc, who negligently

and prematurely opened the dock valve, for reimbursement of compen-

sation which Hartford Accident & Indemnity Company, as Black War-

rior’s insurance carrier, has been paying and will pay to Lamy’s widow

and children under the Federal Longshoremen’s & Harbor Workers’

Compensation Act, and for an additional amount of damages for the

benefit of these survivors. Lamy was held not guilty of negligence by

the Court of Appeals.

therefor. Your Honors disposed of this question in no

uncertain terms, saying:

“The Court of Appeals reversed the judgment

for contribution by Haenn on the basis of our

holding in Halcyon Lines v. Haenn Ship Ceiling &

Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L.

Ed. 318. In that case we held that contribution

could not be exacted under circumstances like those

here involved.'* * * *,

* * * e *

“SECOND. Haenn has been making compen-

sation payments to Hawn because of obligations

imposed by the Longshoremen’s and Harbor Work-

ers’ Compensation Act,. 44 Stat. 1424, 33 U.S.C.

§ 901 et seq., 33 U.S.C.A. § 901 et seg. Hawn has

agreed to refund these payments to his employer

out of his Pope & Talbot recovery. Pope & Talbot

contends that the judgment against it should be

reduced by this amount.

“It points out that Hawn’s verdict includes

sums for past loss of wages and medical expenses

which it is argued were the very items on account

of which Hawn’s employer paid him. Consequently

Pope & Talbot says that if Hawn keeps the money

he will have a double recovery and that to allow

him to repay Haenn would give an unconscionable

reward to an employer whose negligence contrib-

uted to the injury. A weakness in this ingenious

argument is that § 33 of the Act has specific pro-

visions to permit an employer to recoup his com-

pensation payments out of any recovery from a

third person negligently causing such injuries.

Pope & Talbot’s contention if accepted would

frustrate this purpose to protect employers who

are subjected to absolute liability by the Act.

Moreover, reduction of Pope & Talbot’s liability

at the expense of Haenn would be the substantial

13346 U.S. 408; 74 S. Ct. 204.

RE LRAE PR MLE NG STEN er RR ET eee |

equivalent of contribution which we declined to re-

quire in tie Halcyon case.” ™

CONCLUSION

We, therefoie, submit that there is no valid question

of law posed by this petition for a writ of certiorari

which has not ben already disposed of by Your Honors

in Halcyon Lins y. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282; 72 S. Ct. 277, and Pope & Talbot,

Inc. v. Hawn, 3% U.S. 406; 74 S. Ct. 202, and that the

petition should bs denied.

Respectfully submitted,

SELIM B. LEMLE,

Proctor for Respondent,

1836 National Bank of

Commerce Building,

New Orleans 12, Louisiana.

Of Counsel:

LEMLE & KELLEHER,

GEORGE B. MATTHEWS.

14346 U.S. 411574 S. Ct. 206.

APPENDIX A

U. S. FIRE STATUTE, 46 U. S. CODE 182.

Sec. 182. LOSS BY FIRE. No owner of any vessel

shall be liable to answer for or make good to any person

any loss or damage, which may happen to any merchan-

dise whatsoever, which shall be shipped, taken in, or put

on board any such vessel, by reason or by means of any

fire happening to or on board the vessel, unless such fire

is caused by the design or neglect of such owner. (R.S.

Sec. 4282).

S een |

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WERE RT ARIE | SNORT ER RRR PEN

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