Defendants below appeal from a judgment entered in the United States District Court for the Southern District of New York (Charles E. Stewart, Jr. Judge) finding defendants liable for negligently towing seven of plaintiffs' barges. Appellants contend that there was insufficient evidence to establish negligence, that the district court erred in applying the doctrine of last clear chance, and that the district court incorrectly allowed an award of damages for the loss of use of several barges. Affirmed in part and reversed and remanded in part.
Before: OAKES, ALTIMARI and MAHONEY, Circuit Judges.
This litigation springs from an accident that occurred while the tugboat Muriel McAllister towed seven barges across Chesapeake Bay. After a three-day bench trial in the United States District Court for the Southern District of New York, Judge Charles E. Stewart, Jr. found the defendant tugboat operators liable for $99,975 in damages, plus $27,633.15 in prejudgment interest, as a result of the defendants' negligence. The defendants below now appeal on three grounds. First, they contend that the evidence at trial was insufficient to support a finding that they were negligent. Second, they contend that even if they were negligent, the district court erred by applying the doctrine of last clear chance. Lastly, appellants argue that the district court erred by awarding damages for the loss of use of several barges even though no actual monetary damages resulted from that loss of use. We affirm in part and reverse and remand in part.
In December, 1982, Prudential Lines, Inc. ("Prudential") engaged the services of McAllister Brothers, Inc. and the McAllister Towing and Transportation Company, Inc. ("McAllister") to transport seven empty LASH barges from Newport News, Virginia, to Wilmington, Delaware. The term "LASH" is an acronym for "Lighter Aboard Ship." LASH barges are light, shallow-draft vessels designed so that they can be lifted aboard ship while fully loaded with cargo. McAllister dispatched the tugboat Muriel McAllister, under the command of Captain Jorgen Larsen, to tow the Prudential barges.
Captain Larsen and his crew assembled the tow by attaching the seven barges in a single file behind the Muriel McAllister. The bow of the first barge was connected by one thousand feet of eight-inch nylon hawser to the stern of the tug. Each subsequent barge was then attached to the barge immediately forward by two doubled chains. The chains were attached to padeyes that were welded onto the barges. The barges were approximately four to four and one-half feet apart.
On inspection of the barges, Captain Larsen noticed that one barge had a slight list, indicating that it contained some water. Captain Larsen determined that the list was not so severe as to require that he reject the barge. Because of the list, however, Captain Larsen placed that barge last in the tow and connected it to the sixth barge by means of two tripled cables instead of two doubled chains. The sixth and seventh barges were approximately eight feet apart.
Captain Larsen left Newport News with the seven barges in tow on December 15, 1982. The weather forecast called for southerly winds at ten to twenty miles per hour and one- to two-foot seas. At approximately eight o'clock on the morning of the 16th, the tow was proceeding across Chesapeake Bay when Captain Larsen noticed that the seventh barge was laying off to starboard. It was later discovered that the port padeye on the stern of the number six barge had broken loose. Captain Larsen then began to turn the tow toward the Patuxent River, where the barges could be anchored while the crew made the necessary repairs. While Captain Larsen executed the turn, the seventh barge broke completely fee of the tow.
Captain Larsen then radioed for help from other ships in the area, but he received no immediate answer. At about that time the wind began to change and the seas began to rise. Captain Larsen decided to turn the tow and attempt to recapture the drifting seventh barge. As the Muriel McAllister turned, the remaining barges began to break away until only the first barge remained in tow. by that time the seas had risen to three to four feet, the wind had increased to twenty-five miles per hour and a cold rain had begun to fall.
At approximately 9:00 a.m. another vessel arrived on the scene to lend assistance to the Muriel McAllister. The loose barges were eventually retrieved and anchored in the Patuxent River, but not before several of the barges had been damaged. Captain Larsen reassembled the tow, but brought the barges to Baltimore rather than to Wilmington because of their damaged condition.
Prudential filed a complaint in the United States District Court for the Southern District of New York for the damage sustained by its barges and for the loss of use of the barges during the time they were being repaired. McAllister responded that it had acted with reasonable care, and that the accident was caused by the defective port padeye on the stern of one of Prudential's barges. After a three day non-jury trial, Judge Stewart ruled from the bench that McAllister had been negligent and was liable for the $51,780 necessary to repair the damaged barges. In particular, Judge Stewart found that Captain Larsen had acted imprudently when he decided to attempt to recapture the drifting number seven barge with the other six barges still in tow. Judge Stewart also held, relying on Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496 (2d Cir. 1961), that the doctrine of last clear chance should be applied in this case. Accordingly, no attempt was made to apportion liability among the parties relative to their degree of fault. Finally, the court held that Prudential was entitled to $48,195 in damages for the loss of use of the barges while they were under repair.
I. SUFFICIENCY OF THE ...