Austerberry v. United States, 10515.

Citation169 F.2d 583
Decision Date16 August 1948
Docket NumberNo. 10515.,10515.
PartiesAUSTERBERRY et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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Horace T. Atkins, of New York City, and Frederic B. Besimer, of Detroit, Mich. (Horace T. Atkins, of Atkins & Weymar, all of New York City, Frederic B. Besimer, of Miller, Canfield, Paddock & Stone and Robert E. Plunkett, of Ward & Plunkett all of Detroit, Mich., on the brief), for appellants.

John T. Casey, of Washington, D. C. (Herbert A. Bergson, of Washington, D. C., Thomas P. Thornton, of Detroit, Mich., and J. Frank Staley and John T. Casey, both of Washington, D. C., on the brief), for appellee.

Before SIMONS, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

On August 1, 1942, the United States Coast Guard acquired for use pending the duration of the war, a 32-foot motorboat, in accordance with Act of Congress, December 16, 1941. Chap. 486, Section 1, 55 Stat. 807, 14 U.S.C.A. § 72. It was thereafter operated in patrolling the Detroit River and adjacent waters, until December 4, 1942, when its engine was removed for overhauling, and the vessel prepared for winter lay up. During its operation, the boat carried a crew of four, with a boatswain's mate as commanding officer. All these men were paid by the United States Coast Guard, which also caused the boat to be manned, provisioned, navigated, and supplied with all necessaries.

When patrolling operations in 1942 were suspended because of cold weather, the gasoline engine was removed, and the boat thereafter was towed about a mile to Fisher's Boat Works, to be stored for the winter. After the engine was removed, the gasoline tank located at the rear part of the boat, containing a quantity of gasoline, remained in the boat, with the gasoline feed line of copper tubing ¼ of an inch in diameter and about 10 feet long, attached to the tank. The end of the feed line had been bent upward for about 15 inches where it had been attached to the carburetor before the removal of the engine. The line had a capacity of 4 ounces of gasoline. The valve at the tank where it connected with the fuel line was shut off.

When the boat arrived at the Fisher Boat Works, it was raised by employees of the Fisher Company on chains before being lowered to rest on timbers. On the morning of December 5, 1942, the boat was resting on the chains, not having yet been officially laid up for the winter, when Blaine Bayhurst, one of the members of the crew, went aboard about 9:30 A.M. to remove dishes, foodstuffs, and personal belongings, and to clean up the ship. There were two cabins in the boat. Bayhurst made several trips to the lower cabin for his clothes and during the morning, lighted an alcohol-burning galley stove, which was placed about 4 feet above the floor level of the lower cabin, and fried a steak. He had the flame going for 10 to 15 minutes. While Bayhurst was aboard that morning, Peter Bliznuk, an employee of the Fisher Boat Works, came aboard, opened the small bilge hatch in the floor of the lower cabin, and drained the water which was about 6 inches deep in the bilges, by unscrewing the drain plug. Bliznuk then left, as did Bayhurst. Subsequently, about 1:30 P.M., Bayhurst returned to the boat, and, later, Vernon Cleverdon, the boatswain's mate in command, joined him about 4:00 P.M. During the afternoon, Bayhurst was in the lower cabin a large part of the time, removing various articles and, for convenience, had hooked open the door at the top of the stairs between the lower cabin and the aft deck. The weather was extremely cold and had been below freezing for several days previously. When the cold weather had set in, the boat was equipped with two kerosene-burning Perfection heaters, one on the upper deck, and one on the lower deck. Regulations provided that these heaters were to be secured to the boat, and they were so secured during patrol operations. However, when the engine was removed from the boat, the heaters were unfastened from the decks and were not thereafter reattached.

During the latter part of the afternoon, Cleverdon proceeded to go into the lower cabin. He had an electric lantern which he took with him. Bayhurst followed him down, holding in his hand one of the lighted kerosene-burning heaters. As Bayhurst leaned over to set the heater on the floor of the lower cabin, there was an explosion. Bayhurst was blown against the stairs and the bedding of the bunks thrown on top of him. In the midst of the explosion, Cleverdon had rushed up the stairs past Bayhurst. Immediately after the explosion, the lower cabin was covered with flames. The two men, however, were able to escape up the stairway and across the aft deck. The fire destroyed the boat and spread to other ships which were in storage at the Fisher Company premises, causing considerable damage. As a result, the United States of America filed a petition in the district court describing the explosion, claiming that the damage resulting was not caused by any negligence on its part or on the part of any person in charge of the boat or any persons for whom the government might be responsible; and declaring that the damage was occasioned without privity or knowledge on the part of the petitioner. The government further claimed exemption from liability, as charter owner of the boat, as provided in Sections 182-186, inclusive, of Title 46 of the United States Code, 46 U.S.C.A. §§ 182-186. The petition concluded with requests for appraisement of the government's interest in the Coast Guard boat; for orders directing the issuance of monitions to all persons claiming damages as a result of the explosion, with citations to appear and make proof of their respective claims; for injunctions restraining any proceedings for the recovery of damages arising out of the explosion; that the court either adjudge petitioner not liable for any such damage, or, if the petitioner were adjudged liable, then, that its liability be limited to the value of the interest of the government in the Coast Guard boat after the explosion, and that, to the extent of such value only, decrees be entered in favor of such claimants before a commissioner to be named by the court; and that petitioner be discharged of any further liability.

To this petition, respondent owners whose property was damaged by the fire resulting from the explosion filed an answer and claims, denying that the damages were not caused by the negligence of the petitioner or of those in charge of the motorboat in question. It further denied that petitioner was a chartered owner of the boat; that it was entitled to limit its liability, or to be exempted from liability; and claimed that the losses occurred with the privity and knowledge of the government and that it was liable to the various respondents for damages in the amounts set forth in their answer. The proceedings came on for hearing before the district court, which, at the conclusion of the trial, entered findings of fact and conclusions of law to the effect that the government was the chartered owner of the boat in question at the time of the explosion; that the burden of proof was upon the respondents, here designated as appellants, to establish the negligence of the government; and that they had failed to prove such negligence. The district court, accordingly, entered a decree exonerating the government from all liability as a result of the explosion and fire; and from such decree, the respondents appeal.

This is a proceeding in admiralty. Oregon Railroad & Navigation Co. v. Balfour, 179 U.S. 55, 21 S.Ct. 28, 45 L.Ed. 82; and on appeal, the case is heard de novo. The Cleveco, 6 Cir., 154 F.2d 605. Accordingly, we proceed to review the evidence to ascertain whether there was proof of negligence and whether respondents sustained the burden of establishing their case.

It is the theory of appellants that the explosion was caused by gasoline fumes resulting from gasoline which escaped from its proper place of confinement and formed vapors in the bilges adjacent to the lower cabin. The gasoline vapor which is said to have formed in this fashion along the flooring of the lower cabin is alleged to have come from leaks in the gasoline tank, as well as from gasoline remaining in the exposed feed line, after the removal of the engine.

Appellants submit a considerable body of evidence to substantiate their claims. Four days after the explosion, on December 9, 1942, the United States Coast Guard constituted a Board of Inquiry to investigate the explosion. The Board had before it the gasoline tank in question, a cylindrical tank about 6 feet long and 20 inches in diameter. To test it for leaks, the Board caused it to be filled with water. As a result, several leaks were discovered.

Captain Morgan B. Mount, Chief Marine Surveyor for the Home Insurance Company, and a man of many years' experience in the investigation of marine explosions and disasters, was present at the meeting of the Board of Inquiry as an observer and as a representative of the interested underwriters, and had been requested to attend the investigation as an advisor. Immediately after the explosion occurred, he had received a telephone call concerning it, and was soon at the scene of the accident, taking numerous photographs while the boat was in flames. Captain Mount testified to seeing four different leaks in the tank at the time of the inquiry. The day after the explosion, he had made an investigation of the fire, and had examined the woodwork about the tank, which, he testified, showed practically no evidence of fire in that area, nor did the expert for the government attribute the leaks to the heat or fire of the explosion. From Captain Mount's examination of the tank and the adjacent woodwork, he gave it as his opinion that the tank showed no evidence of heat that would have caused the leaks, and, in his opinion, the leaks had existed before the fire.

It further...

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