author: DAVID S. NELSON, District Judge.

text:
    CITY OF BOSTON, Plaintiff, v. SS TEXACO TEXAS, Her Engines Boilers, etc., Texaco Panama, Inc. and Boston Tow Boat Company.
    Civ. A. No. 82-0101-N.
    United States District Court, D. Massachusetts.
    Nov. 13, 1984.

      John R. Devereaux, Boston, Mass., for plaintiff.
    William K. Dodds, Hale & Dorr, Boston; Mass., for Texaco Texas.
    James F. McHugh, Bingham, Dana & Gould, Boston, Mass., for Boston Tow Boat Co.
    David S. Mortensen, Hale & Dorr, Boston, Mass., for Texaco Panama, Inc.
    James B. Re, James F. McHugh, Bingham, Dana & Gould, Boston, Mass., for Boston Tow Boat Co.
   MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

This case arises out of a claim for damages resulting from the collision of the boat, SS TEXACO TEXAS, with a pier and bridge owned and maintained by the plaintiff, City of Boston, on January 15, 1979. The defendants are Texaco Panama, Inc., owner and operator of the SS TEXACO TEXAS, and Boston Tow Boat Company, owner and operator of the tugs WALTON and CABOT.

The City of Boston filed the suit, pursuant to 28 U.S.C. § 1333, on January 14, 1982. Texaco and Boston Tow answered to the City’s Complaint and filed cross claims against each other for indemnity and contribution.

These issues came on for trial, and after careful consideration the court finds that judgment in full must enter against Texaco in the amount of $225,000 plus interest. The court’s findings of fact and conclusions of law are set out below.

FINDINGS OF FACT

1. The SS TEXACO TEXAS is an oil tanker with an overall length of approximately 625 feet, a beam of 85 fee.t, and a displacement of 28,000 gross tons when fully loaded. As earlier stated, the defendant’s ship, carrying 81,000 pounds of petroleum products collided with the City of Boston’s McArdle Bridge on January 15, 1979.

2. Three days prior to this incident, Robert Hegerich, the Boston manager for Texaco, Inc. made arrangements with the Boston Tow Company to obtain assistance in navigating the TEXACO TEXAS from Boston Harbor to the Texaco dock on the Chelsea River. Mr. Hegerich had requested towboat assistance of Boston Tow for Texaco’s vessels on many occasions in the past. In addition, he had previously seen Boston Tow’s “Schedule of Tug Power Rates and Terms for Steamships and Motor Vessels.” The Rate Schedule in effect in January 1979 included the following clause:

PILOTAGE — When the captain or other officer of any tug provided for, or engaged in, the service of furnishing tug power for, or assistance to, a vessel which makes use of or has available her own propelling power goes on board the said vessel ... it is understood and agreed that said tugboat captain or other officer or licensed pilot becomes the servant of the owners of said vessel in respect to the giving of orders to any of the tugs provided for, or engaged in, said service and in respect to the handling of such vessel, and neither those providing the tug or tugs, nor the tug or tugs, their owners, agents, or charterers shall be under any liability for damages resulting therefrom, and, further, that said tug or tugs and/or their owners, agents and/or charterers shall be under no liability for executing the orders of said tug captain or other officer or licensed pilot.

Pilotage clauses similar to this had appeared in Boston Tow’s Rate Schedule for many years.

3. At the time of this event, two other companies Ross Tow Boat Company, and Fournier Tow Boat Company were providing two boat services similar to the defendant in Boston Harbor át the time of the collision. Also, Ross Tow Boat Company and other individuals not connected with Boston Tow, including at least one Texaco employee, were able to provide competent docking master services as of January 15, 1979. Whatever status Boston Tow enjoyed in Boston Harbor in January, 1979, was not, as I find, the result of exclusionary acts or practices. Testimony indicated that it was the practice in Boston Harbor for each of the tow boat companies to provide tug assistance to the other companies upon request, and, indeed, on occasion, a Texaco-owned tug present in the harbor would be found assisting Boston Tow. It was also Boston Tow’s policy to provide tug boat assistance to any vessel without requiring that the assisted vessel have a Boston Tow captain on board as docking master. Essentially, then, I find that in January, 1979 Texaco had a range of options available to it with respect to tow boat services and docking masters but chose to hire Boston Tow.

4. In accordance with Texaco’s request, the Boston Tow. tugs CABOT and WALTON arrived alongside the TEXACO TEXAS in Boston Harbor at 0435 hours on January 15, 1979. CABOT’s Master, Captain Paul Perkins, left CABOT in the command of his mate, Arvard McGray, and boarded the TEXACO TEXAS. Captain Luigi Barchi and his crew spoke Italian as their primary language. Captain Perkins gave Captain Barchi two documents. The first document, an “Approval Slip,” included the aforementioned pilotage clause on its face. Immediately below the pilotage clause was the phrase, “I agree on behalf of my owners to the terms of the pilotage clause as here set forth.” Captain Barchi signed in the space below this phrase and also signed beneath the word “Approved” on the face of the slip.

The second document was Captain Perkins’ bill which indicated a charge of $90 “for service rendered in assisting master.” Texaco subsequently paid Captain Perkins directly in accordance with his bill. Boston Tow did not participate in securing or enjoying the remuneration paid by TEXACO to Captain Perkins for his services.

5. On the morning of the collision the wind was from the west northwest at 20 knots, gusting to 34 knots. Estimates of the current in the Chelsea River in .the vicinity of the McArdle Bridge range from k to IV2 knots flowing downstream toward the harbor. Visibility was 15 miles and, at all times pertinent, the bridge was clearly visible.

6. After Captain Perkins boarded the TEXACO TEXAS, the CABOT stationed' itself on the starboard side of the vessel and the WALTON, commanded by Captain Roscoe Stowe, stationed itself on the port. With the tugs alongside, the TEXACO TEXAS proceeded through Boston’s Inner : Harbor toward the Chelsea River.

1. Captain Perkins gave all helm and engine commands and also directed the operation and movement of the tugs by radio. Captain Perkins’ orders were translated into Italian by Captain Barchi or the Third Mate and relayed to the helmsman responsible for the rudder settings and the crew members responsible for engine operations.

8. The TEXACO TEXAS proceeded without incident through the Inner Harbor to the mouth of the Chelsea River. At approximately 0458, Captain Perkins stopped the engines of the TEXACO TEXAS in order to slow the vessel. At approximately 0503, Captain Perkins ordered the vessel’s engines placed on slow ahead. At some point between those two orders or shortly after the slow ahead order at 0503, Captain Perkins ordered the vessel’s rudder hard starboard and the vessel began to turn to the starboard toward the mouth of the Chelsea River.

9. In order to properly pass through the channel beneath the McArdle Bridge, a vessel must make a gradual and almost continuous 90 degree turn to the right from a heading due north at the northern end of Boston Harbor to a heading of almost due east under the bridge. Once through the bridge the vessel must continue turning slightly to the right in order to follow the course of the river.

10. The turn of the TEXACO TEXAS into the Chelsea River initially proceeded in a normal fashion. At approximately 0509, Captain Perkins ordered the engines on the TEXACO TEXAS stopped and ordered the Tug CABOT to cast off from the starboard bow and proceed ahead of the ship through the channel under the McArdle Bridge because of the narrowness of the draw. Shortly after releasing the CABOT, Captain Perkins ordered the rudder returned to hard starboard from the more midships position he had placed it in shortly before. Either Captain Barchi or the Third Mate translated the hard starboard command into Italian and relayed it to the helmsman of the TEXACO TEXAS.

11. Immediately after the hard starboard order was given, both Captains Perkins and Barchi observed that the vessel appeared to be coming to the left. In reality, based on the ship’s course recorder trace, I find that the vessel did not actually come to the left but ceased its turn to the right and steadied up on a straight line which gave the appearance of lefthand relative movement.

12. As the vessel straightened up, the WALTON was brought to full power against the port bow of the TEXACO TEXAS to attempt to keep the vessel on its turn to the right. Captains Perkins and Barchi then ordered the vessel’s engines placed on slow ahead in order to increase the thrust of the vessel’s propeller against the rudder and help bring the bow to the right again.

13. At approximately 0510 Captains Perkins and Barchi ordered the WALTON to leave the port side of the vessel because they feared that the tug would be crushed between the side of the ship and the approaching fender pier or concrete foundation of the McArdle Bridge. After the WALTON extricated itself, the TEXACO TEXAS continued to turn slowly to the right but did not come- to the right fast enough to avoid a collision with the upstream fender pier. Contact between the hull of the TEXACO TEXAS and the upstream fender pier occurred in the vicinity of the bridge operator’s house just to the east of the bridge. In addition, the rail of the TEXACO TEXAS made contact with a portion of a sidewalk on the bridge structure.

14. Based on all of the evidence, I find that until approximately one and one-half minutes before the accident the approach of the TEXACO TEXAS to the McArdle Bridge was normal. I further find that, at that point, the vessel steadied up on a course headed for the fender pier because the vessel’s rudder was placed to the port instead of to the starboard as ordered by Captain Perkins shortly after 0509; and this as a result of Captain Barchi or the Third Mate’s error in translating Captain Perkins’ hard starboard order from English to Italian.

The Coast Guard made a similar finding in its investigation of the accident. Defendant TEXACO TEXAS poses another explanation for the collision. Texaco argues, first, that all rudder and engine orders given by Captain Perkins were, in fact, correctly carried out. Second, Texaco notes that the TEXACO TEXAS was correctly lined up in the channel 200 feet from the McArdle Bridge. Third, Texaco states, correctly, that the course recorder trace aboard the TEXACO TEXAS never showed the ship actually more to the left. Based on the above, Texaco contends that “[t]he only explanation for the consistent and undisputed testimony of all eye witnesses to the affect [sic] that the vessel appeared to come to the left ... is that the vessel set laterally through the water, thereby giving the appearance to those on the bridge ... and those alongside the vessel on the WALTON that the vessel’s bow was in fact moving left.” Texaco argues that the effects of the wind and the ebb tide on the vessel caused this lateral set.

While it is not physically impossible for a 625 foot ship to move sideways as a result of current and wind, defendant’s explanation is somewhat far-fetched and unsupported by the facts of the case. First, there is substantial evidence, including a Coast Guard accident report, to support a finding that a rudder command was misinterpreted and the rudder set to port instead of starboard. Captains Perkins, Stowe, and Kradolfer testified credibly to this.

Second, Texaco misconstrues Captain Stowe’s testimony that the vessel was lined up correctly in the channel 200 feet before the McArdle Bridge. Essentially, all that Captain Stowe meant by this testimony was that the ship was lined up correctly in its approach to the bridge up until the point at which the vessel ceased its gradual turn to the right and appeared to move left.

Third, Texaco’s contention that current and wind caused the 625 foot vessel to shift laterally is also not supported by the facts. At most the current was ebbing at 1.5 knots and more credible testimony puts it at less than a knot. Captains Stowe and Perkins testified that current was not a factor in the collision. Furthermore, shiphandling experts testified that an ebb current would improve the stearage of a ship going upstream rather than hinder it. Also, there was no evidence that the current flowed in such a way as to produce a lateral set. Finally, there was no evidence that the wind at the time of the collision was of a sufficient magnitude and direction to cause or contribute significantly to a lateral set.

Texaco’s explanation for the collision must be rejected. It starts with premises that are unsupported by the evidence and reaches a conclusion that is implausible at best.

15. I find that the tugs CABOT and WALTON carried out the orders of docking master, Paul Perkins, properly and that no portion of responsibility for the accident is attributable to them or the action of their crews. Captain Perkins’ placement of the tugs on the bow of the TEXACO TEXAS during the approach to the McArdle Bridge was correct and proper. Although, in retrospect, the situation might have been improved if the greater horsepower of the CABOT had been available on the ship’s port bow, I cannot find that placing the tug on that side would have avoided the collision.

16. The downstream half of the Chelsea fender pier was entirely missing on the day the TEXACO TEXAS collided with the upstream half of the pier. I find that the absence of the downstream fender pier was not and could not have been a contributing cause of the collision or the resulting damage. In fact it is likely that the absence of the downstream fender pier allowed the' tug WALTON to push up on the port side of the TEXACO TEXAS longer than if the fender pier had been there and thus reduced the severity of the collision.

17. The fender piers which were present (upstream Chelsea pier and both sides of the East Boston pier) had marker lights which were working properly. The bridge .spans in question had navigation lights which'marked the channel through the bridge when the spans are raised. The bridge and its fender pier were clearly visible to Captains Perkins, Barchi, Stowe and others navigating the TEXACO TEXAS. Since the bridge and its fender piers were marked and clearly visible, the absence of the downstream fender pier marker light (absent because the downstream fender pier was missing) was not and could not have been a contributing cause of the collision.

18. The flared end or “wing” of the upstream Chelsea fender pier lies outside the channel formed by the fender piers of the bridge and in no way obstructed the navigation of the TEXACO TEXAS through the bridge. The court finds that the wing of the upstream fender pier was not and could not have been a contributing cause of the collision.

19. Some time after the TEXACO TEXAS was built, the vessel was modified by the addition of a six (6) foot bulbous protrusion below the waterline at the bow of the ship. I find that the TEXACO TEXAS collided with the upstream fender pier at an angle and in a manner that was sufficient to bring this bulbous bow into contact with the upstream fender pier. This finding is based on two facts which plaintiff has proved by a preponderance of the evidence.

First, the court finds that an angle of 17° between the ship and the face of the pier was more than sufficient to place the bulbous bow in contact with the fender pier piles. The angle of collision measured 17° or greater. Captains Barchi and Perkins, in their post-accident reports, indicated angles of collision well in excess of 17°. Mr. Mount, who did a diagrammatic analysis of the accident calculated an angle of 17°. Furthermore, in order for the tug WALTON to have been between the TEXACO TEXAS and the bridge until moments before the collision, the TEXACO TEXAS had to have been at a significant angle to the fender pier at the time of the collision. Finally, if the angle of impact had been as slight as defendants contend, the bridge sidewalk would have been pushed upstream by the ship instead of being pushed inward, and the area of damage along the ship’s hull would have been greater than the ten feet documented by TEXACO TEXAS’ shipyard repair request.

Plaintiffs proffer the course recorder trace (CRT) as additional evidence that the TEXACO TEXAS collided at an angle sufficient to bring the bulbous bow into contact with the upstream fender pier piles. It is undisputed, however, that the CRT aboard the TEXACO TEXAS had an internal time error which precludes an accurate direct reading of the ship’s heading at the time of the collision. I find that the proffered corrections for the time error are not sufficiently substantiated and reliable to allow a credible calculation of the angle of collision to be made from the CRT. Adding to this conclusion are other possible sources of error testified to by plaintiff's witnesses including compass error, transmission error, and trace synchronization error. Even without a reliable angle of collision calculable from the CRT, there is enough credible evidence discussed supra to conclude that the angle of collision was sufficient to bring the bulbous bow into contact with the upstream fender pier piles.

Second, plaintiff has demonstrated by a preponderance of the evidence that the pattern of breaks in the piles along the channel face of the fender pier could only have been caused by a vessel with an underwater protrusion such as a bulbous bow. No evidence was presented indicating that other ships which have struck the Chelsea fender pier either before or after the collision of the TEXACO TEXAS had an underwater hull protrusion which would cause the pattern of breaks found in the piles underwater in the upstream fender pier. Many of the piles found broken along the channel face of the fender pier were broken in three places, with the middle break corresponding to the location of the maximum horizontal extension of the TEXACO TEXAS’ bulbous bow. The upper and lower breaks in the piles correlate with the individual piles being broken first in the middle by contact with the bulbous bow and then the separated halves being bent to the breaking point where they were attached to the pier and the bottom of the river. The court finds that the damage to the fender pier identified infra is uniquely related to the hull configuration — in particular, the bulbous bow — of the TEXACO TEXAS and the height of the tide and draft of the ship at the time of the collision.

20. I find that the TEXACO TEXAS, and particularly its bulbous bow, caused damage to the upstream fender pier principally between bents 6 and 29. More specifically, the vessel damaged the deck of the pier, stringers, cap beams, horizontal and diagonal bracing, wales and blocks, and most significantly a large proportion of the fender pier piles. To date this damage has not been repaired. I also find that the TEXACO TEXAS damaged the fender pier sidewalk. This damage was repaired in 1979.

21. I find that $225,000 is a fair and reasonable assessment of the damages to the TEXACO TEXAS. In reaching this figure I have relied on, inter alia, the 1979 estimate of damage prepared by Universal Engineering Corporation, the 1983 summary of three contractors’ estimates of repair costs, and the expert testimony of Messrs. Wentworth, McCluskey, Masotta, Barrett and others. I have given weight to, inter alia, evidence of damage to the fender pier caused by other vessels; testimony indicating that the company which provided the lowest of the three repair bids is a competent marine contractor; expert opinions on the proper contingency fee for marine repair contracts ranging between 10% and 30%; expert opinions indicating the need for temporary dolphins during the repair process; evidence of the need for a condition survey and engineering services prior to repair of the fender pier; evidence that the necessary repairs do not create a better type of fender pier or extend its useful life. Finally, I have included in the damage figure the costs of work already performed as indicated on Exhibits 34 and 63.

CONCLUSIONS OF LAW

The law is well settled that a moving vessel which strikes a stationary object such as a pier is presumptively at fault. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 809, 39 L.Ed. 943 (1895); Merrill Trust Co. v. Bradford, 507 F.2d 467, 470-71 (1st Cir.1974); Port of Seattle v. M/V Saturn, 562 F.Supp. 70, 72 (W.D.Wash. 1983). This presumption of fault “operates against all parties participating in the management of the vessel at the time of the contact.” Merrill Trust, 507 F.2d at 470-71. To overcome this presumption, the moving vessel must show that the collision was “inevitable” or that the stationary object was somehow at fault. Bangor & A.R. Co. v. Ship Fernview, 455 F.Supp. 1043 (D.Me.1978) citing The Oregon, 158 U.S. at 197, 15 S.Ct. at 809, Griffin, The American Law of Collision § 145, at 348 (1949). In the instant case, the court has found that the accident was the result of a mistranslation of rudder commands given by Captain Perkins to the helmsman. The court has also found that Texaco’s alternative explanation for the accident — that it was the result of an unavoidable lateral movement of the vessel caused by wind and current — has no basis in fact. Therefore defendants have failed to prove that the accident was inevitable — one of the two bases for overcoming the presumption of fault.

Defendant also alleges that the fender pier was in violation of certain statutory requirements and therefore at fault in the collision — the second basis for overcoming the presumption of fault. Specifically, Texaco contends that the absence of the downstream fender pier, the absence of navigational lights on the downstream fender pier, and the presence of an allegedly illegal fender pier “wing” violated various navigational statutes.

In admiralty law, under the so-called “Pennsylvania Rule,” if a party violates a statutory rule intended to prevent collisions, then it has the burden of proving that its violation was not and could not have been a contributing cause of the collision. The Pennsylvania, 86 U.S. (19 Wall) 125, 136, 22 L.Ed. 148 (1874); Dow Chemical Company v. Dixie Carriers, Inc., 330 F.Supp. 1304, 1308-09 (S.D.Texas 1971), aff'd. 463 F.2d 120 (5th Cir.1972). Essentially, under the Pennsylvania Rule, if a bridge or pier which has been struck by a moving vessel is in violation of a navigational statute, then the normal presumption of fault that attaches to the vessel is shifted to the stationary structure. “While such a structure may not be injured negligently by a passing vessel with impunity, nevertheless the vessel which strikes it is not presumptively negligent or careless, but the bridge owner is presumptively at fault, unless he can show that the failure to comply with the requirements was not one of the factors or causes which contributed to the injury.” United States v. NorfolkBerkley Bridge Corp., 29 F.2d 115, 125 (E.D. Virginia 1928).

In the instant case the absence of the downstream fender pier was not a statutory violation invoking the Pennsylvania Rule since the downstream fender pier was designed to protect the bridge and not to prevent ships from striking the upstream fender pier, the pier at issue in this case. See generally Union Oil Company of California v. Tugboat San Jacinto, 409 U.S. 140, 146, 93 S.Ct. 368, 372, 34 L.Ed.2d 365 (1972) (fault based on the violation of a navigational rule must have some relationship to the dangers against which the rule was designed to protect.) Even assuming the absence of the downstream fender pier was a statutory violation invoking the Pennsylvania Rule, plaintiff’s burden under the rule has been met since the court has found that the absence of the fender pier was not a contributing cause of the injury.

Similarly, the absence of the downstream fender pier marker light was not a violation of any statute or duty. Pursuant to 33 C.F.R. § 118.80(c) “[ejvery bascule bridge shall be lighted so that each and every pier, or protection pier where provided in or adjacent to navigable channels under the lift spans will be marked by a red light.” In the absence of the fender pier, there was no statutory duty or need for such a marker light. Even assuming that the absence of the downstream fender pier marker light was a statutory violation, the burden of the Pennsylvania Rule has been met since the court has found that the absence of the light was not a contributing cause of the injury.

Finally, with regard to the legal status of the flared end of the upstream fender pier, the court has already determined that the flared end was not and could not have been a contributing cause of the collision. Therefore the court need not and does not reach the issue of whether the pier was in violation of any navigational statute. The Pennsylvania, 86 U.S. at 136. A pier which does not obstruct a vessel’s passage is not a contributing cause of a collision merely because if it had not existed it would not have been struck. Dow Chemical, 463 F.2d at 122.

Turning to the crossclaims, the court has already found that the Boston Towboat tugs WALTON and CABOT carried out their orders properly and that no fault with respect to any aspect of the collision can be attributed to them. Therefore, any liability for the damage caused by the TEXACO TEXAS which defendant Boston Towboat bears to the City of Boston derives solely from its position as the employer of the docking master, Captain Perkins. Boston Towboat argues, however, that any liability of Captain Perkins is entirely attributable to defendant Texaco by virtue of the pilotage clause contained in Boston Tow’s rate schedule. See supra at 1134.

The court has already found that Texaco’s business agent, who made arrangements with Boston Tow for tug assistance, knew that the pilotage clause was in Boston Tow’s rate schedule and that the clause contained customary language used throughout the industry. It is clear, then, that the pilotage clause was an explicit part of the contract between Boston Tow and Texaco for tug assistance and that Texaco was aware of it.

The pilotage clause has been upheld and applied in numerous instances where it was a part of a contract for towboat assistance. The leading case is Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932) in which the U.S. Supreme Court upheld the validity of a clause substantially similar to the one here at issue and refused to hold the tug company liable for errors of the docking master. The clause has also been upheld and applied on at least three occasions by courts in the First Circuit. Portland Pipeline Corp. v. M/V Barcola, 1982 A.M.C. 2725, 2727-28, 2734-35 (D.Me.1982) (Mazzone, J.), Nippon Yusen Kaisha v. Zephyr Shipping Corp., 1971 A.M.C. 949 (D.Mass.1970) (Wyzanski, J.); National Distillers Products Corp. v. Boston Tow Boat Company, 134 F.Supp. 194 (D.Mass.1955) (Aldrich, J.).

Defendant Texaco, in attempting to escape the weight of case law upholding the pilotage clause, argues, first, that the pilotage clause violates public policy because it is exculpatory in nature and, second, that it is a contract of adhesion because of Boston Tow’s alleged monopoly of tow boat services in Boston Harbor. The Ninth Circuit recently considered and rejected the first argument in Kane v. Hawaiian Independent Refinery, Inc. v. Aegean Seaways Co., S.A., 690 F.2d 722, 724 (9th Cir.1982):

Aegean also argues that public policy considerations compel placing liability on the company that hires, trains, assigns, and pays the harbor [sic] masters, and requires their use on all incoming vessels. We find this argument unpersuasive. The Supreme Court has recognized and underscored the distinction between a release-from-negligence clause, which public policy opposes, and a pilotage clause of the type at issue here. Compare Bisso v. Inland Waterways Corp., 349 U.S. 85, 94, 96 [75 S.Ct. 629, 634, 635, 99 L.Ed. 911] (1955), with Sun Oil, 287 U.S. at 294 [53 S.Ct. at 136].

The court finds the distinction drawn by the Supreme Court in Bisso, id., fully applicable to the instant case and therefore is unpersuaded by the public policy argument.

Defendant’s second argument is essentially that enforcement of the pilotage clause under the circumstances of this case would be improper because Boston Tow allegedly enjoyed a monopoly on the provision of pilotage and towage services in Boston Harbor and therefore Texaco had no alternative but to accept the terms of the clause if it wished to dock its vessel. Former Chief Judge Wyzanski of the District of Massachusetts responded to the very same contention in Nippon Yusen Kaisha, 1971 A.M.C. at 954 (D.Mass.1970) as follows:

But counsel urged that Judge Aldrich’s opinion [in National Distillers Products Corp. v. Boston Tow Boat Company, 134 F.Supp. 194 (D.Mass.1955) ] is inapplicable because in the case at bar the exculpatory clause is sought to be applied by a tug boat company that has what laymen would call a monopoly on the business of undocking tankers in the Port of Boston. It is true that in the last decade in Boston virtually all undocking of tankers has been done by tugs and tug boat captains supplied by Boston Tow Boat Company. But the company has not had a monopoly by law or license. Nor is there any evidence that it has had an intent to exclude competition, or that it has engaged in exclusionary acts. Moreover, there is no obstacle to a tanker engaging the services of a Boston competitor, Ross Tow Boat Company, which although it had only in 1969 [sic ] one tug suitable for towing a tanker, could have procured from the United States Navy and others suitable tugs and could have found captains suitable to act as undocking masters. In short, the situation is one in which tankers are not absolutely dependent on the Boston Tow Boat Company, but in practise tend to look to that company because no other company has found the market sufficiently attractive to be instantly ready for services, and alternatives to the services offered by Boston Tow Boat Company must be improvised. Under these circumstances the exculpatory clause may be against public policy. But no case has yet gone that far. If exceptions are to be created to the [National Distillers] doctrine, they are best made by an appellate court.

The court finds Judge Wyzanski’s reasoning fully applicable to the instant case. If anything, the testimony at trial established that the range of tug boat and pilotage services available to TEXACO in 1979 were greater than these described by Judge Wyzanski in 1970. Thus Texaco’s monopoly argument must be rejected.

The court rules that the pilotage clause is valid and enforceable by Boston Tow against Texaco. Enforcing the clause has two effects. First, Boston Tow is insulated from liability to Texaco for acts or omissions by Captain Perkins while he was acting as docking master. Second, the clause obligates Texaco to indemnify Boston Tow for all liability to third parties imposed on Boston Tow as a result of acts or omissions by Captain Perkins.

Boston Tow argues that, in addition to indemnification for damages, it is entitled to the attorneys’ fees it incurred in defending against the city’s claims. Generally, in admiralty cases, attorneys’ fees are not awarded. Platoro Ltd., Inc. v. Unidentified Remains, Etc., 695 F.2d 893, 905 (5th Cir.1983). An exception to this rule, however, “allows attorneys’ fees to an indemnitee as against his indemnitor — not as attorneys’ fees qua attorneys’ fees, but as part of the reasonable expenses incurred in defending against the claim.” Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 730-31 n. 5 (5th Cir.1980). The court finds this exception applicable to the instant case and rules that Boston Tow is entitled to the attorneys’ fees it has incurred in defending against the plaintiff’s claims. See Moran Towing & T. Co. v. Navigazione Libera Triestina, S.A., 92 F.2d 37, 38, 41 (2d Cir.1937).

The final issue concerns the extent of prejudgment interest plaintiff is entitled to on its award. The purpose of awarding interest to a party recovering a money judgment is to compensate the wronged person for being deprived of the monetary value of the loss from the time of the loss to the payment of the money judgment. Turner v. Japan Lines, Ltd., 702 F.2d 752, 756 (9th Cir.1983). The general rule in collision cases in admiralty is that interest is awarded from the date of the actual casualty or loss. United States v. M/V Zoe Colocotroni, 602 F.2d 12, 13 (1st Cir.1979) citing Moore-McCormack Lines v. Amirault, 202 F.2d 893, 898 (1st Cir. 1953). In the instant case the court finds this rule fully applicable. Defendants argue that plaintiff was dilatory in its filing of the suit almost three years after the collision and that award of prejudgment interest from the date of the collision is therefore unfair. The court finds, however, that plaintiff devoted a significant portion of the period prior to filing of the suit to diligent attempts at analysis of the accident and negotiation and settlement of the claims. The court rules, therefore, that the delay is not an “exceptional circumstance” justifying denial of interest. See National Bank v. Material Service Corp., 597 F.2d 1110, 1121 (7th Cir.1979) (“Extraordinary delay in commencing or prosecuting a claim has been held an exceptional circumstance justifying denial of interest”). Defendant is thus entitled to interest on the judgment from the date of collision, January 15, 1979.

Determination of the applicable rate of interest in admiralty cases is within the.discretion of the trial court. Independent Bulk Transport, Inc. v. Vessel Morania Abaco, 676 F.2d 23, 25 (2d Cir.1982). Plaintiff is entitled to income which monetary damages would have earned, and such should be measured by interest on short-term, risk-free obligations. Id. at 27. The interest rate on short-term, risk-free obligations, such as U.S. Treasury Notes, has averaged at least 9% since January, 1979. Prejudgment interest will therefore enter at the rate of 9%.

Accordingly, judgment in full will enter against defendant Texaco for $225,000 plus prejudgment interest of 9% calculated from January 15, 1979. Additionally, defendant Texaco is liable to defendant Boston Tow for attorneys’ fees in an amount already stipulated to by the parties.

SO ORDERED.

      . A course recorder trace is a continuous graphical depiction of a vessel's heading in compass degrees which is produced by an electronic device onboard a ship.

      . Defendants contend that the presumption of fault is subject to Fed.R.Evid. 301 and therefore while the burden of going forward with the evidence to rebut the presumption is on defendants, the ultimate burden of persuasion regarding liability remains with the plaintiff. City of Boston v. Texaco, Inc., 1977 A.M.C. 1773, 1781 (D.Mass.1982). Plaintiffs, however, argue that the presumption of fault is a substantive rule of admiralty law not subject to Rule 301 and therefore both the burden of going forward and the ultimate burden of persuasion rests with the defendants. James v. River Parishes Co., Inc., 686 F.2d 1129, 1132 and 1132 n. 2 (5th Cir.1982). Whichever position the court adopted in the instant case, its ruling on liability would be the same. Therefore, the court declines to decide the issue.


source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    Jack HIATT and Belinda Hiatt, d/b/a Domino Hot Oil Service, Plaintiffs, v. F. Don SCHREIBER, Frank L. Schreiber, Schreiber Insurance Agency, Inc., a New Mexico corporation, Sovereign Marine & General Insurance Company Limited, a corporation of the United Kingdom, Leslie Walpol Proctor, as Designated Representative of Underwriters of Lloyds, London (incorrectly sued as Underwriters at Lloyds, London), and Home Insurance Company, a New Hampshire corporation, Defendants.
    Civ. A. No. 84-K-953.
    United States District Court, D. Colorado.
    Nov. 14, 1984.

      Charles F. Reams, Reams, Kaye & Alvillar, Grand Junction, Colo., for plaintiffs.
    Kathleen A. Franco, Conklin & Adler, Ltd., Denver, Colo., for Sovereign Marine & General Ins. Co. Ltd., Leslie Walpol Proctor.
    Jerry B. Tompkins, Traylor, Arnold, Tompkins & Black, Grand Junction, Colo., for F. Don Schreiber & Frank L. Schreiber & Schreiber Ins. Agency, Inc.
    Terry D. Slater, Younge & Hockensmith, Grand Junction, Colo., for Home Ins. Co.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiffs, Jack and Belinda Hiatt, seek recovery for breach of a property insurance policy from the agents and underwriters of that policy. The complaint alleges that in October, 1975 the Hiatts purchased insurance on their 1975 Mack Truck from defendants Sovereign Marine & General Insurance Company Ltd., underwriters at Lloyds, London and Home Insurance Company through their agents, the three defendants Schreiber. Subsequently the truck was damaged and the defendants have refused to settle the Hiatts’ claim. The Hiatts’ seek recovery in the form of actual and punitive damages and recovery for attorney fees on theories of breach of contract, negligence and breach of duty of good faith dealing.

Subject matter jurisdiction is based upon diversity of citizenship pursuant to 28 U.S.G. § 1332. The plaintiffs are citizens of Colorado. F. Don and Frank L. Schreiber are citizens of New Mexico. Schreiber Insurance Agency, Inc. is a New Mexico corporation with its principal place of business in New Mexico. Sovereign Marine and Lloyds are both corporations of the United Kingdom with their principal places of business in the United Kingdom. Home Insurance is a New Hampshire corporation with its principal place of business in that state.

The case is now before me on the motion of Sovereign Marine and Lloyds to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., and the motion of the Schreibers to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction. The insurance carriers raise four points in support of their motion: First, plaintiffs have not alleged facts sufficient to make out a cause of action against these insurance carriers; second, Colorado does not recognize a tortious claim for bad faith breach of an insurance contract; third, plaintiffs’ allegations cannot support a claim for punitive damages; and finally, attorney fees and interest on the judgment are not recoverable in the absence of statutory or contractual provisions. The Schreibers’ motion states simply that plaintiffs have failed to allege facts sufficient to support personal jurisdiction in this court.

A federal court must apply the Federal Rules of Civil Procedure and not state law in questions regarding pleadings. See Bank of St. Louis v. Morrissey, 597 F.2d 1131, 1134-35, (8th Cir.1979); Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625, 629 (3d Cir.1966); Blazer v. Black, 196 F.2d 139, 144 (10th Cir. 1952). Rule 8(a) requires that claims for relief contain “... (2) a short and plain statement of the claim showing that the pleader is entitled to relief____” Rule 8(e)(1) requires pleadings to be “simple, concise, and direct. No technical forms of pleading or motions are required.” The facts supporting the party’s claim need not be set out in detail. All that is required is that the defendant is given fair “notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).

For the defendant to prevail on a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), it must appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 45-46, 78 S.Ct. at 102; see also Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). All facts must be construed in favor of the plaintiff. See Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 1529, 18 L.Ed.2d 704 (1967). So long as the plaintiff may offer evidence to support a legally recognized claim for relief, the motion to dismiss should be denied. Conley v. Gibson, supra.

The complaint adequately informs the defendants of the events and legal claims underlying the plaintiffs’ claims for relief. The pleadings are adequate to overcome the motion to dismiss based on insufficiency of facts.

The insurance companies other contentions are less easily resolved. Every contract contains an implied duty of good faith and fair dealing. When that duty is breached in most commercial contracts, the result is merely a breach of contract with standard remedies. However, an insurance policy between an insured and a vendor requires different remedies. Colorado courts have followed the trend established in California recognizing a separate cause of action sounding in tort for bad faith breach of insurance contracts. See Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973); Savio v. Travelers Ins. Co., 678 P.2d 549 (Colo. App.1983), cert. granted (1984); Farmers Group, Inc. v. Trimble, 658 P.2d 1370 (Colo.App.1982). cert. granted (1983); Rederscheid v. Comprecare, Inc., 667 P.2d 766 (Colo.App.1983).

The initial cases which established the tort of bad faith breach of contract in insurance began with third party claims for mental anguish caused by an insurers unreasonable failure to accept a settlement offer which then exposed its insured to judgments exceeding policy limits. The courts imposed a duty, implied in law, on an insurer from the contractual relationship existing between the insured and the insurer. The cause of action evolved out of the insurers exclusive rights, pursuant to the specific language of the policy in third party cases, to control settlement, thereby potentially exposing the insured to judgments exceeding policy limits if the insurer rejected reasonable offers to settle. The courts accordingly recognized a duty independent of the insurance contract and imposed liability in tort. See Aetna Casualty & Surety Co. v. Kornbluth, 28 Colo.App. 194, 471 P.2d 609 (1970). Beyond this, courts have recognized that the adhesion aspects of an insurance policy and the resulting lack of bargaining power of the insured at the time of settlement justify recognizing an independent tort for bad faith breach. Accordingly, the tort of bad faith breach applies to first-party situations in which the insurer unreasonably, or in bad faith, fails to provide bargained for protection to the insured even though the insured faces no danger of an excess judgment arising out of the claims of a third party. See Gruenberg v. Aetna Ins. Co., supra, followed in Rederscheid v. Comprecare, supra.

Defendants rely greatly on Bloomfield Financial Corp. v. National Home Life Assur. Co., 734 F.2d 1408 (10th Cir.1984), in support of the proposition that Colorado will not impose tort liabilities for breach of insurance contracts. The Bloomfield case, however, dealt primarily with an insurance sales agent’s suit against its principal for failure to honor their agreement concerning the payment of sales commissions and a claimed separate tort action for breach of the principal’s duty of good faith and fair dealing. The Bloomfield court held that' Colorado did not recognize an independent tort action for breach of implied contractual duties. Insurance contracts differ, however, creating the basis for claims sounding in tort. The holding in Bloomfield is inapplicable to the issues here.

Colorado law does not recognize one cause of action for negligent breach of insurance contracts and another separate cause of action for bad faith breach. These claims are both aspects of the single tort claim for breach discussed above. The complaint is, therefore, not artfully drafted in that it asserts two distinct tort claims arising out of the same contract and breach. Accordingly, Sovereign Marine’s and Lloyd’s motions to dismiss are granted to the extent the complaint alleges two separate tort causes of action for breach of contract. The twelfth and sixteenth claims for relief are dismissed in that they allege tort liability independent of a claim of bad faith breach of contract. The motions to dismiss the other tort claims are denied. Also, Sovereign Marine and Lloyds provide no justification for their motion to dismiss the breach of contract claims raised against them. The pleadings adequately present colorable claims. The motion to dismiss is denied.

Defendants’ motion to dismiss claims for punitive damages is also without merit. Plaintiffs have alleged that the negligence of Sovereign and Lloyds was willful, wanton and in reckless disregard of their obligations to the plaintiffs. Such allegations, if proved, will entitle plaintiffs to recover punitive damages on their tort claims. See Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979). The Colorado Court of Appeals has implicitly acknowledged that punitive damages are recoverable in suits for bad faith breach of insurance contracts. Savio, supra, at 554.

The insurers also claim that plaintiffs are not entitled to attorney fees or statutory interest. The pleadings adequately claim both and colorable legal theories underlay these claims. Plaintiffs allege that the insurance contracts may provide for fees. This alone is adequate. In addition, attorney fees necessary to collect insurance proceeds when an insurer breaches the insurance contract in bad faith can be compensable as ordinary damages. Colorado statutes also provide for the payment of interest in claims for damage arising out of wrongfully withheld funds. See Colo.Rev.Stat. § 5-12-102 (1984 Cum.Supp.); Isbill Associates, Inc. v. City and County of Denver, 666 P.2d 1117, 1121 (Colo.App.1983).

The three insurance agent defendants, named Schreiber, argue that plaintiffs inadequately plead jurisdictional facts to sustain personal jurisdiction. The complaint itself need not present all facts necessary to establish personal jurisdiction. All that is necessary, at this preliminary stage, is for the plaintiffs to make out at a prima facie case of jurisdiction under the state’s long arm statute. Such a showing may, at the trial court’s discretion, be by affidavits alone or at a preliminary hearing. The defendants may then at trial contest personal jurisdiction and at that stage plaintiffs must prove jurisdiction by a preponderance of the evidence. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981).

Plaintiffs’ complaint, along with the affidavit of Jack Hiatt accompanying plaintiffs’ brief in response to Schreibers’ motion to dismiss, filed August 2, 1984, adequately presents information to support a prima facie showing of jurisdiction. The Colorado long-arm statute establishes the criteria for personal jurisdiction. See Combs Airways, Inc. v. Trans-Air Supply Co., 560 F.Supp. 865, 866 (D.Colo.1983). That statute clearly provides that one contracting to insure property located in Colorado is subject to jurisdiction in Colorado. Colo.Rev.Stat. § 13-l-124(l)(d) (1984 Cum. Supp.). See also McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). The Schreibers, however, are not the insurers per se but only insurance agents. Nevertheless, they have transacted business in Colorado and have thereby established the minimum contacts necessary to subject themselves to jurisdiction in this state for claims arising out of that business. The Schreibers have afforded themselves of the benefits of the economy and laws of the State of Colorado. Accordingly, they are properly subject to the jurisdiction of the courts in Colorado. See Colo.Rev.Stat. § 13-l-124(a) (1973); see also Waterval v. District Court In and For El Paso County, 620 P.2d 5 (Colo. 1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

IT IS THEREFORE ORDERED THAT:

1. The motion to dismiss for failure to state a claim is granted as to the twelfth and sixteenth claims for relief. Otherwise, the motion is denied; and

2. Defendants Sovereign Marine and Lloyds shall answer the complaint within fifteen (15) days of the date of this order.

3. The motion to dismiss for lack of personal jurisdiction is denied.

      . The parties agree that Colorado law should be applied in determining the defendants’ liability. The Colorado Supreme Court has yet to deal with the issue of bad faith breach of insurance contracts. The Colorado Court of Appeals has held, in several opinions, that Colorado law recognizes this claim for relief. In the absence of a definitive ruling from a state’s highest court, a federal court sitting in diversity jurisdiction must attempt to anticipate how that highest court would rule on a specific question of law. "[A] federal court must follow an intermediate state court decision unless other authority convinces the federal court that the state supreme court would decide otherwise.” Delano v. Kitch, 663 F.2d 990, 996 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982); see also Comm’r of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); 19 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 4507 (1982). I am aware of no factors which suggest that the Colorado Supreme Court would fail to follow the well reasoned opinions of the Court of Appeals in recognizing a cause of action in tort for bad faith breach of an insurance contract.

      . Colorado law does not recognize an indepen-. dent tort of negligent breach of contract. See Bloomfield Financial Corp., supra. The claims asserted by the plaintiffs solely arise out of, one, the defendants’ alleged breach of the contract and the damages arising out of their loss of the bargained for insurance coverage and, two, defendants’ alleged bad faith leading to tortious injuries. The pleadings do not suggest an additional tort based claim for personal injury or property damage arising out of the negligent performance of contractual obligations. See, e.g., Metropolitan Gas Repair Services, Inc. v. Kulik, 621 P.2d 313 (Colo.1980); Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (1934). Plaintiffs allege no facts to support the imposition of a legal duty upon the defendants save those duties which arise out of the specific terms of the contract or are implied in the insurers duty of good faith and fair dealing.

      . Colo.Rev.Stat. § 13-21-102 (1973) provides:
      Exemplary damages. In all civil actions in which damages are assessed by a jury for a wrong done to the person, or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages.
      Plaintiffs also argue that Colorado law recognizes an award of exemplary damages in contract cases where the facts show willful and wanton conduct in reckless disregard of the rights of a plaintiff. This claim does not arise out of any independent tort but is incident to the allegations of breach of contract. I would normally recognize this theory as an alternative basis for claiming punitive damages because such a contract based award has been explicitly accepted by the Colorado Court of Appeals in Davies v. Bradley, 676 P.2d 1242, 1246 (Colo. App.1983). See Delano v. Kitch, supra, note 2. However, the Tenth Circuit in Bloomfield Financial Corp., supra, specifically held that exemplary damages were not awardable in suits sounding in contract. Moreover, the Tenth Circuit explicitly rejected the holdings of courts in other jurisdictions which recognize an award of punitive damages for intentional and deliberate breach of contract. Had the Bloomfield Financial Corp. opinion been entered before the Colorado Court of Appeals opinion in Davies, I would be compelled to overlook the Tenth Circuit’s view in favor of the more recent recitation of Colorado law by a state court. See Delano v. Kitch, supra. However, the Bloomfield Financial Corp. opinion was entered May 16, 1984 and the Davies opinion was entered December 22, 1983. Although the Tenth Circuit does not discuss why it chose not to apply the holding in Davies, I am bound by its ruling. Accordingly, punitive damages cannot be awarded incident to the plaintiffs’ claims of breach of contract.


author: SPELLMAN, District Judge.

text:
    Eunice Marie OLIVER, Petitioner, v. Louie L. WAINWRIGHT, as Secretary, Department of Corrections, Defendant.
    No. 84-0425-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Nov. 14, 1984.

      Rory S. Stein, Asst. Public Defender, Miami, Fla., for petitioner.
    Richard Polin, Asst. Atty. Gen., Miami, Fla., for defendant.
   MEMORANDUM OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

SPELLMAN, District Judge.

The sole issue presented for review in this habeas corpus case is whether Petitioner was denied effective assistance of counsel. Petitioner’s attorney, retained to represent both her and a co-defendant on a murder charge, allegedly labored under an actual conflict of interest. Magistrate Sorrentino concluded that Petitioner was not denied effective assistance of counsel and recommended that the petition be dismissed. This Court cannot agree.

I

Petitioner, Eunice Marie Oliver, along with her “boyfriend” and co-defendant Christopher Drayton, was convicted of manslaughter after a trial by jury. The state’s case was based upon the testimony of eight witnesses: three eyewitnesses, three investigating police officers, a serologist and a medical examiner. The medical examiner testified that the death of the deceased, Carolyn Cooper, was caused by a single stab wound to the back. The wound was consistent with that caused by a knife. Although a knife stained with human blood was found at the scene, the state was unable to establish that Oliver had ever held it. Moreover, the state was unable to establish that the blood on the knife was that of the deceased.

Underlying the incident which gave rise to the stabbing, was an earlier altercation at a bar. This fight was predicated upon an alleged attempt by the deceased and her sister, Bessie Cooper, to rob a friend of Drayton named Spider. Oliver and Dray-ton were not at the bar during this first altercation but arrived together an hour later after another Drayton friend, Nices Johnson, called and told Drayton of the robbery attempt. It was night time.

Drayton believed that the deceased and her sister, Bessie, were involved in the robbery attempt and upon arriving at the bar, told both women that the intended robbery victim was “a friend of mine and I ain’t going to let [you] jump on him nor Nices for trying to protect him.” Oliver stood nearby and said nothing. From this point on, however, because of the divergence of eyewitness opinion, it is impossible to offer a single account of the events leading to the stabbing.

Ernest Milton, the deceased’s brother, claimed that Oliver approached the deceased while holding a knife in her left hand and struck the deceased several times in the face with her right hand. According to Milton, Drayton had a gun and held the deceased as Oliver stabbed her with her left hand. Milton subsequently contradicted himself by first demonstrating Oliver’s actions by stabbing with his right hand and then by stating that Oliver approached with the knife in her right hand and shifted it to her left hand just before the stabbing. In closing argument, the prosecutor conceded that Milton’s testimony could be ignored.

Bessie Cooper, the deceased’s sister, testified that she and the deceased were on their way home when they were confronted by Drayton, who pointed a gun at them and threatened to kill them. Cooper stated that Oliver and the deceased began to argue and that Oliver stabbed the deceased in the back while Drayton held the deceased’s wrists. Throughout the struggle between the deceased and Oliver, Cooper stated that she never saw either girl fall to the ground.

On cross-examination, Cooper was impeached with her testimony at the preliminary hearing where she testified that “I didn’t see Eunice Oliver stab my sister, but Eunice Oliver was the only one upon my sister, her and Chris, Chris was holding her hands.”

Johnny Roundtree, a friend of the deceased, stated that Drayton began arguing and pointing a gun at the deceased, Bessie Cooper and himself as they left the bar. After Drayton pushed the deceased, he encouraged Oliver to strike her. Roundtree said he observed Oliver strike the deceased with a “balled fist” and a shiny object which, he volunteered, could have been jewelry on her wrist. Although he saw the complete struggle, Roundtree claimed that neither Oliver nor the deceased fell to the ground.

The testimony of the eyewitnesses was supplemented by the testimony of three police officers, one of whom, Officer McMahon, placed Drayton right next to the deceased as the deceased struggled with Oliver. A trash pile with broken glass was observed where the struggle had occurred.

To disarm the prosecution’s case against Oliver, counsel Marvin Emory embarked upon a defense in which Oliver was to concede that she had struggled with the deceased, but assert that the fatal wound was inflicted when the deceased fell on the glass. Regarding Drayton, Emory argued that Drayton was less culpable than Oliver, because, unlike Oliver, Drayton was not arrested at the scene.

Emory first attempted to establish the common defense by developing testimony through cross examination that there was a trash pile with glass. In addition, defense counsel called two witnesses, Renee Thomas and Thelma Miller, who both testified that the deceased first struck Oliver and that during the ensuing struggle, both women fell on the trash pile. Both witnesses agreed that Oliver did not have a knife and that Drayton did not have a gun. Both witnesses also agreed that Drayton did not go near the deceased.

Defense counsel also presented the testimony of Drayton and Oliver. Drayton testified that he confronted the deceased and her sister, Bessie, after learning from Spider that Spider’s tires had been slashed. Drayton told the deceased and her sister that he would protect his friends from their threats. Drayton stated that the deceased removed an object from her purse and struck Oliver. Oliver then grabbed the deceased and the two women fell onto the trash pile as they struggled. Drayton denied that he ever touched or even approached the deceased during the altercation.

On cross examination, Drayton’s description of the incident was impeached through use of his prior statement to the police that “Eunice picked her [the deceased] up and threw her in the pile of stuff.” Drayton subsequently explained that he didn’t intend his statement to the police to be taken literally.

Oliver described how the deceased had “plunged” toward her with an object she had removed from her purse. Oliver stated that she caught the deceased’s arm and struggled with her, and that during the struggle she tripped and fell on the trash pile. Oliver denied that she ever had a knife or had stabbed the deceased.

In closing argument, the prosecutor argued that the evidence was inconsistent with the claim that the deceased was fatally wounded by falling on glass. The prosecutor maintained that Roundtree was truthful when he testified that Oliver stabbed the deceased in the back with a “balled fist” and “something in her hand.”

Defense counsel was so preoccupied with the “broken glass” theory, however, that he neglected to advocate that Johnny Roundtree’s testimony, the state’s most credible eyewitness, was substantially discredited by Roundtree’s observation that the “shiny object” could have been jewelry on Oliver’s wrist. Instead, Emory maintained that the “crucial issue” in the case was the correctness of the medical examiner’s opinion that the deceased was stabbed with a knife. Emory argued that this issue should be resolved to be “consistent with what Eunice said that they- fell on this garbage.” The jury disagreed and found Oliver guilty of manslaughter. She was later sentenced to ten years imprisonment.

On appeal, the District Court of Appeal of Florida, Third District, affirmed Oliver’s conviction and sentence without opinion. Oliver v. State, 345 So.2d 438 (Fla. 3d DCA 1977).

On October 8, 1982, Oliver filed a motion to vacate her conviction and sentence pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. In her motion, Oliver for the first time alleged that she had received ineffective assistance of trial counsel by virtue of Marvin Emory’s conflict of interest in representing both Oliver and Drayton. Following an evidentiary hearing on Oliver’s motion, the Circuit Court entered an order vacating Oliver’s conviction and sentence.

The State of Florida appealed the order of the Circuit Court to the Third District Court of Appeal. On December 20, 1983, the court issued an opinion reversing the order of the Circuit Court and reinstating Oliver’s conviction and sentence. State v. Oliver, 442 So.2d 1073 (Fla. 3d DCA 1983). Oliver’s motion for rehearing was denied on February 14, 1984.

On January 27, 1984, the Circuit Court ordered that Oliver surrender on February 28, 1984 to begin service of her sentence. Having exhausted her state remedies, Oliver sought habeas corpus relief in this Court on February 16, 1984. In her petition, Oliver claimed that she was denied effective assistance of counsel, guaranteed by the sixth and fourteenth amendments to the United States Constitution, due to Emory’s representation of both her and a jointly-charged and tried co-defendant. This Court agrees.

II

A state prisoner can win a federal writ of habeas corpus only upon a showing that the state participated in the denial of a fundamental right protected by the fourteenth amendment. The right to counsel, guaranteed by the sixth and fourteenth amendments to the United States Constitution, is a fundamental right. See Argersinger v. Hamlin, 407 U.S. 25, 29-33, 92 S.Ct. 2006, 2008-2010, 32 L.Ed.2d 530 (1972). This right to counsel prevents the states from conducting trials at which persons who face incarceration are forced to defend themselves without “reasonably effective assistance of counsel.” Westbrook v. Zant, 704 F.2d 1487, 1498 (11th Cir. 1983). See also Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Although a conflict of interest may cause counsel’s representation to fall below this sixth amendment standard, not all conflicts are so egregious as to constitute a sixth amendment violation. See United States v. Freeman, 619 F.2d 1112 (5th Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). In Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981), the fifth circuit summarized the nature of a reversible violation:

For a conflict of interest to cause representation to fail Sixth Amendment standards, this Circuit requires that the conflict be actual, not speculative. An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.

Id. at 395. Once an actual conflict of interest is found, however, it is, without further inquiry, presumed prejudicial to the defendant. “It is well established that when counsel is confronted with an actual conflict of interest, prejudice must be presumed, and except under the most extraordinary circumstances, the error cannot be considered harmless.” Turnquest v. Wainwright, 651 F.2d 331, 334 (5th Cir. 1981).

Under this standard, it is clear that counsel Emory labored under an actual conflict of interest in his dual representation of Oliver and Drayton. Undoubtedly compelled by the need to construct a defense that was consistent with Drayton’s pretrial statement to the police, defense counsel presented as a common defense the theory suggested by Drayton; namely, that the deceased had been inadvertently injured by a piece of glass during the deceased’s struggle with Oliver on a pile of trash. The common defense was not at all dependent on Oliver’s testimony. Instead, to buttress the common defense, Emory called Drayton, who denied that he had ever touched or approached the deceased, and Renee Thomas and Thelma Miller, who corroborated these aspects of Drayton’s story. On these facts, the common defense accomplished nothing more than to bind Oliver’s culpability to the credibility of Drayton and his testimonial supporters.

The difficulty with the common defense was that it was inconsistent with the opinion of the medical examiner and the physical evidence found on the scene. It also had the effect of pointing to Oliver as the perpetrator.

The medical examiner testified that the death of Carolyn Cooper was caused by a single stab wound to the back; the wound was consistent with that caused by a knife. A knife stained with human blood was found at the scene. On these facts, the jury could reasonably conclude that Carolyn Cooper’s death was caused by a knife/stab wound inflicted by one person and not by a fall on broken glass.

The person who inflicted the wound was suggested by the testimony of Drayton, Thomas and Miller. Since these witnesses uniformly claimed that Drayton never touched or approached the deceased, the jury’s attention was shifted to Oliver — the only other person who had the opportunity to inflict the fatal wound and perhaps, more importantly, the only other person charged with the crime.

Oliver’s “apparent” culpability was strengthened by both Drayton and defense counsel: first, when Drayton was impeached on cross examination with his earlier statement that “Eunice picked her [the deceased] up and threw her in the pile of stuff,” thereby depicting Oliver as the aggressor; and secondly, when defense counsel repeatedly sought to portray Drayton as less culpable than Oliver by pointing out that only Oliver was arrested at the scene.

It is clear on this record that Oliver was severely prejudiced by defense counsel’s efforts to demonstrate that Drayton was not responsible for the death of the deceased. In addition, defense counsel’s dual representation of Oliver and Drayton caused counsel to refrain from presenting an inherently more believable defense for Oliver. This defense was not inconsistent with the opinion of the medical examiner, the physical evidence found on the scene, and the eyewitness account of the incident. The defense, suggested by a reasonable view of the evidence, was that Drayton was the person who inflicted the single stab wound.

It is certainly apparent that Drayton had a motive to kill Carolyn Cooper. Drayton initially came to the scene because he had been told that the deceased and Bessie Cooper had planned to rob Drayton’s friend, Spider. Subsequently, when the deceased, Bessie Cooper and Johnny Round-tree left the bar, Drayton confronted them and pointed a gun at them.

The evidence also establishes that Dray-ton had the opportunity to inflict the fatal wound. The state’s three eyewitnesses, Ernest Milton, Bessie Cooper and Johnny Roundtree, each testified that Drayton had been present and had physically accosted the deceased during her struggle with Oliver. In addition, Officer McMahon stated that upon his arrival on the scene, he observed Drayton standing next to the deceased, who was still on the trash pile with Oliver.

In light of the weak and inconclusive testimony of the state’s eyewitnesses and the evidence demonstrating Drayton’s motive and opportunity to kill the deceased, defense counsel was clearly presented with the opportunity to raise the plausible defense that Drayton had killed the deceased. The sixth and fourteenth amendments guaranteed to Oliver the right to have her counsel choose between that defense and the common defense presented, unfettered by conflicting interests. However, because of defense counsel’s concurrent representation of Oliver and Drayton, he was not able to freely make that choice of strategy. His inability to freely choose to present the plausible defense aimed at inculpating Drayton deprived Oliver of her sixth and fourteenth amendment right to effective assistance of counsel.

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975), illustrates the conflict of interest in this case. In Foxworth, four boys were charged with murdering Earl Wilson. Three of the four boys, Foxworth, Bevels and Farmer, were represented by one attorney. At trial, the prosecution’s theory was that the four boys choked Wilson by holding him down and pressing a stick against his throat. The medical examiner found that Wilson’s death was caused by blows to the head with a blunt instrument. Although Bevels had been seen earlier on the day of Wilson’s death striking Wilson with a stick, defense counsel contended, as his theory of defense, that four other boys had killed Earl Wilson.

The fifth circuit reversed Foxworth’s conviction, holding that he had received ineffective assistance of counsel. The court found that Foxworth’s counsel labored under an actual conflict of interest due to his inability to raise as a defense the possibility that Bevels was the perpetrator. The court noted:

The State’s analysis fails to appreciate that the conflict occurred not in presenting the defense chosen by appointed counsel, but in selecting defenses and strategies in the first place. We are at a loss to see how a defense inculpating Bevels could have been tendered except by the active efforts of the appointed counsel; yet, as the State admits, such efforts would have grievously prejudiced Bevels’ defense. Under these circumstances, counsel’s choice of the “united we stand, divided we fall” defense was not a free choice of strategy. It was the only course open to an attorney with the unenviable task of saving three boys from the electric chair.

Foxworth, 516 F.2d at 1079-80 (footnotes omitted).

As in Foxworth, Oliver was entitled to an attorney who could decide whether or not to raise a plausible defense suggested by the evidence, unaffected by his representation of a second client in the same case. The conflict of interest inherent in Marvin Emory’s inability to defend Oliver by inculpating Drayton, rendered Emory ineffective and deprived Oliver of her sixth amendment right to counsel. Oliver is entitled to habeas corpus relief.

This Court fully appreciates the gravity of nullifying a conviction of this vintage. In this case, however, the applicable principles of law are clear and well established, and the evidence of an actual conflict of interest is substantial. The petition for writ of habeas corpus is therefore granted and Petitioner must be discharged unless the state elects to retry her within 120 days from the date of this Memorandum Opinion and Order.

      . In an information filed in the Circuit Court for the Eleventh Judicial Circuit of Florida, in and for Dade County, Oliver and Drayton were charged with the second degree murder of Carolyn Cooper.

      . Throughout pre-trial and trial proceedings, both Oliver and Drayton were represented by attorney Marvin Emory. It was Drayton who retained Emory in this matter because he knew Emory personally and had been represented by Emory in other criminal matters. Oliver never met with Emory without Drayton also being present. Marvin Emory is now deceased.

      . At no time prior to trial did counsel Emory discuss with Oliver the existence of a possible conflict of interest in his representation of both Oliver and Drayton. Emory never explained to Oliver that she could retain another attorney. Nor did Emory ever mention the possibility of having separate trials for Oliver and Drayton. Emory also never discussed with Oliver the possibility of claiming, as a defense to the crime charged, that Drayton was responsible for the victim’s death.
      In addition, there is no indication that the trial judge ever voir dired Oliver regarding the conflict of interest. Thus, the record reflects that Oliver never waived the conflict of interest.

      . At an evidentiary hearing before United States Magistrate Charlene H. Sorrentino, the parties agreed that their arguments- were complete within the record. On February 22, 1984, Magistrate Sorrentino recommended that Oliver had failed to demonstrate that her attorney labored under an actual conflict of interest.

      . Oliver merely testified that she did not have a knife and that she struggled and fell with the deceased after the deceased had attacked her. Oliver did not know Drayton’s whereabouts during the struggle. She stated, at an evidentiary hearing before Circuit Judge Richard Feder on February 28, 1983, that "if Chris Drayton stabbed Carolyn Cooper with a knife, [I] couldn’t have seen it and ... couldn’t have told Mr. Emory.”

      . Oliver was convicted of manslaughter nearly nine years ago, on January 9, 1976.