The opinion of the court was delivered by: BEER
To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any conclusions of law constitute findings of fact, they are so adopted.
1. Midland Enterprises, Inc. (Midland) is a foreign corporation and the owner and operator of the inland river towboat M/V RITA and the barges OR 3220, OR 3143, OR 3182 and OR 3562.
Panther Marine Service, Inc. (Panther) is a Louisiana corporation and employer of Robert Costilow, the pilot of the M/V RITA at the time of the accident.
American Commercial Barge Line (ACBL) is a foreign corporation doing business in the navigable waters of the State of Louisiana. At all material times, ACBL was the operator of the inland river towboat M/V DENNIS HENDRIX.
Bunge Corporation (Bunge) is a foreign corporation doing business upon the navigable waters of the State of Louisiana and at all material times was the owner of BUNGE 53, a barge in the tow of the M/V DENNIS HENDRIX.
2. In civil action 80-3609, plaintiff, Midland, seeks recovery of collision damages. In the consolidated civil action 81-305, Midland is the defendant to the claim of Bunge for collision damages and the third party plaintiff against ACBL for said damages.
3. On August 9, 1980, at approximately 1:30 p.m., the Midland towboat M/V RITA was proceeding southbound around Brilliant Point at approximately mile 160, Mississippi River. The M/V RITA had the four barges OR 3220, OR 3143, OR 3182 and OR 3562 in its tow and was proceeding at approximately six miles per hour.
4. ACBL's towboat, the M/V DENNIS HENDRIX, was proceeding northbound, favoring the right descending bank. The M/V DENNIS HENDRIX was pushing a tow consisting of 16 empty barges and 2 loaded barges. The barges were arranged in two rows of three and three rows of four. The Bunge-53 was located on the starboard point of the tow.
5. Captain Dennis Clendenion was on duty as the pilot of the M/V DENNIS HENDRIX and was stationed in the pilothouse at the time of the collision. Captain Robert Costilow was engaged as the pilot of the M/V RITA. Captain Clendenion was the only eyewitness to the collision who testified at the trial of this matter.
6. As the M/V DENNIS HENDRIX approached Brilliant Point, pilot Clendenion stated that he attempted to contact downbound traffic by radio but received no response.
8. Clendenion testified, and the VTS tape verifies, that immediately prior to the collision pilot Costilow stated over the radio that he had blown one whistle in order to conduct a port to port passing. Clendenion ...