Otness v. United States, 7824-A.
| Decision Date | 23 November 1959 |
| Docket Number | No. 7824-A.,7824-A. |
| Citation | 178 F. Supp. 647 |
| Parties | Nels OTNESS, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Alaska |
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Robert Boochever, of Faulkner, Banfield & Boochever, Juneau, Alaska, for plaintiff.
Roger G. Connor, U. S. Atty., and Jerome A. Moore, Asst. U. S. Atty., Juneau, Alaska, for defendant.
On June 13, 1958, plaintiff invoked the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., and instituted suit against the United States to recover damages which allegedly were caused by a collision between the plaintiff's vessel and a maritime aid known as Channel Light No. 54.
The case was tried before the Court, to which the following facts were presented.
On October 21, 1957, personnel of the United States Coast Guard discovered that due to some unknown or unexplained reason, Channel Light No. 54 was not standing in its position in the waters of Wrangell Narrows where it had been placed. Channel Light No. 54 was a 46' triangular structure with steel legs which supported a platform upon which was placed a flashing beacon for approaching ships. Channel Light No. 54, and other maritime aids, marked the boundaries of a dredged channel which was 100 yards wide and through which ships could pass and avoid dangerous shoals and protruding rocks. From the Court's personal inspection of the site it seems very possible it was struck by an iceberg, due to the presence of many of them moving swiftly in the Narrows. Upon discovering that Channel Light No. 54 was missing, an unsuccessful investigation to find the structure was immediately effected, and on the next day, October 22, 1957, personnel of the Coast Guard again attempted to locate the steel safety marker, but without success. The Coast Guard then issued the following bulletin:
Soon thereafter the Coast Guard installed a buoy close to the spot occupied by the missing structure. This buoy was not a fixed structure like the channel marker which had disappeared, but swung on a chain and was moved about, its location at any given time at the end of this chain dependent upon the whim of the tides and the currents in the Narrows. No evidence showing that from October 22, 1957, until January 7, 1958, further attempts were made to locate the maritime aid was introduced. The plaintiff introduced expert opinion concluding that the methods employed by the Coast Guard in its attempts to locate the structure were incompetent. There is no evidence that the method employed by the Coast Guard was proper or sufficient. In fact, plaintiff contends that it was improper and defendant admits that better methods could have been employed had better equipment been available.
On the clear evening of January 7, 1958, the fully loaded vessel Seanna was proceeding from Wrangell to Petersburg, Alaska, and at 8:40 p. m. of the same date collided with a submerged and unknown object. At the helm was Gain Samuelson, who had been a fisherman since 1918, had navigated boats from Wrangell since 1923, had traversed the Narrows two or three hundred times, and had passed Structure No. 54 on many occasions. Fifteen minutes after the collision, the captain and crew abandoned the ship, which sank soon thereafter. Samuelson testified he had come up the channel on the range lights, which would have kept him close to the center of the channel, but as he reached the buoy which had replaced Structure No. 54 he had veered to the right as was customary to continue on up to Petersburg. Before the plaintiff and his crew abandoned the damaged vessel, bearings were taken of the alleged position of the vessel at the time of the collision, fixing the position of the vessel as being on the eastern side of, but still within, the channel in the vicinity where the structure submerged. Expert witnesses for the plaintiff testified that a rock could not have made such a gaping hole in the vessel. Soon after the collision the missing structure was found and when it was raised, paint smears similar in color to that of the bottom of the vessel Seanna and wooden slivers were found on one of the steel legs of the structure, Channel Light No. 54. Lt. Groves, defendant's witness, testified that the structure was on the edge of the channel when it was found. He later testified that the structure was beneath his ship, which was in the dredged channel, when the structure was located. His log book read as follows: "Ship under way at v/c & s attempting to drag structure clear of all traffic in channel." Defendant produced numerous photographs and mathematical computations to negate any possibility that the vessel could have collided with Channel Light No. 54. No evidence rebutted the facts that the structure was in the channel and that when the structure was raised there were paint smears on the structure similar in color to the paint on the bottom of the vessel Seanna.
In determining whether the defendant is liable and the extent of his liability, it will be necessary to treat the elements of actionable negligence, contributory negligence, immunity of the defendant for negligent misrepresentation, and the pertinent rules of the law of damages.
To establish liability based on negligence, it must be shown that there was a duty owed by the defendant to the plaintiff, that such duty was breached, and that as a proximate result of the breach, plaintiff suffered injury. General Electric Company v. Rees, 9 Cir., 217 F.2d 595; Alabama Great Southern R. Co. v. Raney, 34 Ala.App. 125, 37 So.2d 150. One who voluntarily creates or maintains a condition for the use of others is, in the absence of some privilege, charged with the duty to exercise care to prevent that condition from becoming a source of danger to those who use it. Cummings v. Henninger, 28 Ariz. 207, 236 P. 701, 41 A.L.R. 207. The Coast Guard maintains the maritime aids to navigation in Wrangell Narrows and had done so for a number of years. Evidence was introduced showing that these aids assisted the mariners in negotiating the dangerous passage of Wrangell Narrows and mariners relied upon these aids in traversing the passage. Based on the rules above, the voluntary assumption of caring for these aids to navigation placed a duty upon the defendant to exercise due care in maintaining the aids.
The defendant, harnessed with the duty to exercise care in maintaining the navigation aids, failed in that duty. Part and parcel of the defendant's duty of maintaining the navigation aids was the duty to reasonably search for missing aids to navigation which could be a menace to life and to property. In support of the plaintiff's allegation that the defendant failed to exercise due care, the plaintiff produced witnesses who stated that the methods employed for finding the structure were improper and not suitable for locating the structure. The Court noted that after two unsuccessful attempts to locate the maritime aid, the defendant abandoned its search for Channel Light No. 4. Coupling the possibility of the presence of the dangerous structure in the channel with the absence of effort to locate it from October 23, 1957, until January 7, 1958, the Court is forced to conclude that the defendant breached its duty to exercise due care. The defendant contends that the success or failure to locate the structure should not be determinative of the breach of the duty to exercise due care. The Court concurs with that contention. However, it is the decision of ...
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United States v. Neustadt, 8071.
...even though the careless performance of the duty may have been accompanied by some misrepresentation of fact. Thus in Otness v. United States, D.C.Alaska, 178 F.Supp. 647, a shipowner sued to recover for the loss of his vessel due to collision with a submerged channel light which the Coast ......
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Hungerford v. United States
...a claim upon the negligent inspection, so as to avoid the statutory exception of negligent misrepresentation. The case of Otness v. United States, D.C., 178 F.Supp. 647, is also cited by plaintiff. This latter case is clearly distinguishable from the instant case on its facts. In the Otness......
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