dissenting.
For the reasons discussed below, I dissent.
First, I would hold the district court erred in failing to accord greater weight to Captain Drury’s testimony that the reason the barges entered into a dive was because they ran from deeper water into shallower water. Captain Drury’s testimony was an admission made by an agent of a party opponent. Fed.R.Evid. 801(d)(2)(D); see, e.g., Kaiser Aluminum & Chemical Corp. v. Illinois Central Gulf R.R., 615 F.2d 470, 476 (8th Cir.), cert. denied, 449 U.S. 890, 101 S.Ct. 249, 66 L.Ed.2d 116 (1980). The admission was not conclusive of causation, but it strongly suggested that crossing from deeper to shallower water caused the barges to dive. This was also the opinion of appellant’s expert witness, Captain A.E. Poe.
Determining what in fact caused the barges to dive did not, however, establish negligence on the part of the tug. The critical question was whether the tow was properly handled, or, put another way, whether Captain Drury exercised “such reasonable care and maritime skill as prudent navigators employ for the performance of similar service.” Stevens v. The White City, 285 U.S. 195, 200, 52 S.Ct. 347, 349, 76 L.Ed. 699 (1932). Appellant had the burden of proof in establishing negligence, and the mere fact that appellant’s barges were in good condition when received by appellee and were delivered in damaged condition does not raise a presumption of negligence on the part of the tug. Id. Appellant could, however, rely upon the doctrine of res ipsa loquitur as an aid in establishing negligence. See The Steamer Webb, 81 U.S. (14 Wall.) 406, 414, 20 L.Ed. 774 (1871); Mid-America Transportation Co. v. National Marine Service, Inc., 497 F.2d 776, 779 (8th Cir.1974).
In my view, the district court erred in failing to apply the doctrine of res ipsa loquitur to infer negligence in the present case. In the admiralty context res ipsa loquitur applies where “1) the injured party was without fault; 2) the instrumentality causing the injury was under the exclusive control of the defendant; and 3) the mishap is of a type that ordinarily does not occur in the absence of negligence.” United States v. Nassau Marine Corp., 778 F.2d 1111, 1115-16 (5th Cir.1985), citing Johnson v. United States, 333 U.S. 46, 68 S.Ct. *1075391, 92 L.Ed. 468 (1948), “If an inference of negligence is justified, then the defendant bears the burden of coming forward with an explanation for the damage sufficient to rebut the inference.” Agri-Trans Corp. v. Peavey Co., 742 F.2d 1137, 1139 (8th Cir.1984).
In the present case, the evidence suggested the kind of incident that resulted in the damage. The testimony of Captains Drury and Poe and the kind of damage sustained by the barges indicated that the barges crossed from deeper to shallower water and entered into a dive. It was undisputed that before the accident the tow had proceeded upriver without incident, the weather was clear, visibility was excellent, and there was heavy ice on the river. Captain Drury knew that the river bottom conditions varied and that the river had been falling and, for those reasons, he had positioned the tow well within the navigable channel. The starboard side of the tow was some 300' off the red river buoy marking the limit of the navigable channel along the left descending bank. The evidence also showed, and the district court found, that the barges were seaworthy. I would hold that these circumstances justified an inference of negligence and that appellee should have been required to come forward with an exculpatory explanation for the accident. See, e.g., Mid-America Transportation Co. v. National Marine Service, Inc., 497 F.2d at 780.
Given the evidence, I acknowledge that appellee probably would have been able to show relatively easily that Captain Drury could not have reasonably known of the change in the depth of the river at Mile 296. Cf. SCNO Barge Lines, Inc. v. Sun Transportation Co., 775 F.2d 221, 225 (8th Cir.1985) (no Coast Guard safety reports despite six groundings within one month). Nonetheless, the fact remains that appellee was not required to produce such evidence. Because I believe that under the circumstances the district court erred in failing to require appellee to come forward with an exculpatory explanation, I would reverse and remand the case for the further proceedings.