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October 17, 1977

PPG INDUSTRIES, INC., a Pennsylvania Corporation, Plaintiff,
CANAL BARGE COMPANY, INC., Defendant and Third-Party Plaintiff, and ASHLAND OIL COMPANY, a Kentucky Corporation, Third-Party Defendant

The opinion of the court was delivered by: TEITELBAUM


 Plaintiff entered into a contract with third-party defendant Ashland Oil Co. whereby Ashland agreed to transport a quantity of antifreeze liquid belonging to plaintiff from Beaumont, Texas to St. Paul, Minnesota. Pursuant to this agreement, the antifreeze was loaded into an Ashland barge and towed to Baton Rouge, Louisiana. Ashland entered into a second and separate contract with defendant Canal Barge and agreed to tow the Ashland barge containing the antifreeze from Baton Rouge to its final destination in St. Paul. Somewhere between Beaumont and St. Paul, the cargo of antifreeze liquid was contaminated by water. Plaintiff, therefore, brought this action against Canal to recover the damages it claimed to have sustained as a result of the contamination of its product. Plaintiff contended that defendant Canal was obligated to exercise due care in the operation of its towboat and in caring for the cargo being towed, and that Canal failed to exercise such due diligence in towing the Ashland barge.

 Subsequent to the Court's charge to the jury and during the jury's deliberations, the jury posed the following question to the Court:


"If in our deliberations we consider that the damage to the barge took place during the topping at Lock 14 and that no negligence existed on the part of the captain and the pilot of the Caroline, must we at that point stop any further deliberations, or can we consider what is believed to be negligence on the parties involved following the topping?" *fn1"

 In response, this Court instructed the jury that:


"The answer to your question is that you must stop if you find that the damage to the barge took place during that topping at Lock 14, and if you determine that that was due to a peril of the sea and not due to the failure to exercise -- any negligence or due care on the part of Canal acting through its personnel, then you must stop any further deliberations, and that you cannot consider any negligence or failure to exercise due care, the burden of proof being on Canal that they did exercise due care and diligence during the rest of the trip following the topping. You cannot consider that at all.


"But I hope you understand that I am charging you, that if you decide that there was no fault in the topping, that Canal has met its burden of proof up to and including anything that occurred at the topping, then that's where you stop." *fn2"

 The reason for limiting the jury's review in such a manner was a concern with the ability of the jury to accurately allocate contamination damage between that which might have occurred during the topping and that which might have occurred thereafter. This Court felt that the evidentiary record was incapable of providing support for any split percentage distribution of damages. *fn3"

 The jury returned a verdict in favor of Canal and against plaintiff as to the events up to and including the topping incident.

 The Court did, however, also submit three special interrogatories to the jury, which were answered and returned with the verdict. These interrogatories, relating to damage which might have occurred subsequent to the topping, were returned as follows:


1. If you determine that Canal has satisfied its burden of showing due diligence up to and including the topping incident at Lock 14, what percentage of the damage to the cargo occurred as a result of the topping, if any, and what percentage occurred from a failure of due care from the time of the topping to the arrival of the REB-1602 in St. Paul?



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