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March 31, 1982

WALKER BARGE FLEETING SERVICE, INC., Walker Midstream Fuel & Service Co., Defendants

The opinion of the court was delivered by: JOHNSTONE

 JOHNSTONE, District Judge.

 In this admiralty suit the Missouri Portland Cement Company seeks damages from Walker Barge Fleeting Service Company and Walker Midstream Fuel Service Company incurred due to the sinking of its cement transport barge, the MPC-9. The MPC-9 capsized while in the Walker Barge fleeting area on the Tennessee River near Paducah, Kentucky. Walker Barge and Walker Midstream have each filed a cross-claim against the other. This Court has jurisdiction of this action under the provisions of 28 U.S.C. § 1333. The claims of the parties are within the scope of Fed.R.Civ.P. 9(h).

 The MPC-9 was loaded with 1293.9 tons of dry cement at the Missouri Portland loading dock on the Ohio River near Joppa, Illinois, on August 23, 1977. The barge was towed to the Paducah area, and finally moved to the Walker Barge fleet site by the Walker Midstream's M/V William Eric. The movements of the barge, to this time, were without incident.

 Early on the morning of August 27, the M/V Knox, also a Walker Midstream vessel, rearranged the barges for a tow of the M/V Imogene Igert. The rearrangement included moving another barge, the BR-1, upstream and alongside of the port side of the MPC-9. Upon completion of the maneuver, the Knox left to attend other business. Less than one hour later the MPC-9 was observed to be listing hard to port, and a portion of its deck was soon awash. All attempts to rescue the distressed barge failed, and she sank quickly in calm waters. The barge ultimately was salvaged and repaired. By June, 1978, the barge had returned to service and, at the time of trial, she had made some 35 more trips.

 At the time of her sinking the MPC-9 was 26 years old. Both the bow and stern rakes of the barge had been "foamed" in lieu of replating. Hatch covers were either non-existent or incapable of providing watertight protection, due to missing "dogs" or cement encrusted recesses. The door from the deck to the machinery room was not watertight. The plating of the barge was seriously worn and deteriorated. Weep holes and fractures were evident. The hull had a "washboard" appearance, caused by indentation of the hull along the barge's structural ribs. The presence of these various indicia of use and old age are not disputed by the parties. The barge had not been in dry dock for repair or maintenance for two years prior to the accident.

 The Court finds that the MPC-9 began to take on water soon after a hole was torn into her number two port wing tank as the M/V Knox brought the BR-1 alongside. The hole was about 12" in length and 2" in width. A bent interior rib, filed as an exhibit, indicates that there was contact, at an excessive angle and with unreasonable force, between the two barges. Thus, the Court finds that damage to the MPC-9 was partially caused by the failure of the M/V Knox to use ordinary care in maneuvering the BR-1.

 However the maneuvering of the BR-1 by the Knox cannot be seen as the sole cause of plaintiff's loss. The washboard effect of the hull had created a condition such that, instead of sliding smoothly along the MPC-9's port side, the BR-1 gouged into the plating, which was 40 to 60% wasted, and caught a structural rib. There was testimony, and this Court finds, that 25% wastage of plating is the maximum generally acceptable under industry standards. Plaintiff's expert testified that, judging from the interior rib, thicker plating could have been torn in such an accident. Nevertheless, the Court finds that the combination of wasted plating and the "washboarding" worked to render the barge unreasonably vulnerable to damage.

 When water began to flood into the wing tank, the presence of, what was in effect, a centerline bulkhead accelerated the sinking of the barge. The water was confined to a single compartment and produced a hard port list. Absent this bulkhead, the water would have filled the port and starboard hatches evenly, and the sudden list would not have occurred. After the list, water poured through the defective hatches and the pump room door.

 We therefore find the damage to the MPC-9 was caused by the combination of the failure of the M/V Knox to exercise ordinary care during the maneuver of the BR-1 and the failure of the plaintiff to maintain the MPC-9 in a seaworthy condition. Having reached this result as to causation, it is proper to allocate damages based upon the comparative fault of the parties. United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975). Cf., Mulzer v. J.A. Jones Construction Co., 397 F.2d 498 (7th Cir.1968).

 The Court concludes that the negligence of the plaintiff in allowing the MPC-9 to fall into such a state of unseaworthiness was responsible for the greatest portion of the loss suffered. Accordingly, 80% of the liability is apportioned to Missouri Portland.

 Having determined that part of the loss is allocable to the defendants, it is necessary to determine how liability should fall as between them. Plaintiff seeks damages on principles of bailment and collision. The damage to the MPC-9 came while she was in the Walker Barge fleeting area, and it is well settled that a fleeting operation creates a bailment situation. See, e.g., United Barge Company v. Notre Dame Fleeting & Towing, 568 F.2d 599 (8th Cir.1978); Dow Chemical Co. v. Barge UM-23B, 424 F.2d 307 (5th Cir.1970); John I. Hay Co. v. The Allen B. Wood, 121 F. Supp. 704 (E.D.La.1954). Walker Barge has admitted its status as bailee; Midstream contends that it, Midstream, did not occupy such a position but instead acted "only to move barges from one part of the harbor to another."

 The fleeting area, where the barge movement occurred, was licensed by Walker Midstream to Walker Barge. It was Barge which paid the landowners for the mooring rights, held the permits from the Corps of Engineers, and charged $12 per day for fleeting. However, since Walker Barge did not have personnel or equipment with which to function as a fleeter, it purchased the services of Walker Midstream in operating the fleet sites. Barge looked to Midstream to tend the fleet sites, rearrange barges when river conditions and other elements might interfere with the fleeting of barges, perform pumping services, maintain wires, and to generally ...

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