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Tisbury Towing & Transportation Co., Inc. v. Venus

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Packer Marine, Inc. *fn1 sues the defendants — the tug VENUS and its owner, Tucker-Roy Marine — for negligently grounding its barge, the ALGOL 500. The case received a bench trial, resulting in judgment for the defendants. The trial court found that Packer had not met its burden of proving when the grounding incident in question occurred and therefore could not show that the VENUS had ever grounded while towing the ALGOL 500. Packer appeals, arguing that the district court clearly erred in finding that Packer had not adequately established the date of the grounding, and that in any event, the burdens of production and proof as to when the grounding occurred should have been shifted to the defense. Upon a careful review of the record in this factually close case, we affirm the judgment of the district court.

The essential facts of the case are as follows: Packer discovered damage to the ALGOL 500 in March 1995, and after some investigation it came to suspect Tucker-Roy. This suit followed. Before trial, Tucker-Roy admitted, via stipulation, that the VENUS ran aground at Woods Hole, Massachusetts, while pushing one of Packer’s barges on some evening between June 1 and June 20, 1994; but Tucker-Roy denied that the barge involved was damaged, and it professed agnosticism as to whether the barge involved was the ALGOL 500, as opposed to one of Packer’s other two deck barges. At trial, Packer proffered considerable circumstantial evidence that the grounding occurred specifically on the evening of June 15. *fn2 That date is significant, because only the ALGOL 500 was available for towing on the evening of June 15; Packer’s other two barges were moored in New Bedford harbor at the time. In short, a conclusion that the date of the grounding was June 15 would imply that the VENUS ran aground while hauling the ALGOL 500.

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