259 F.2d 285 (9th Cir. 1958), 15685, Hess v. United States

Docket Nº:15685.
Citation:259 F.2d 285
Party Name:Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 20, 1958
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 285

259 F.2d 285 (9th Cir. 1958)

Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15685.

United States Court of Appeals, Ninth Circuit.

August 20, 1958

Page 286

Hess & Hess, Clayton Hess, Geoffrey C. Hazard, Jr., Cleveland C. Cory, Portland, Or., for appellant.

George C. Doub, Asst. Atty. Gen., Paul A. Sweeney, Samuel D. Slade, Leavenworth Colby, Alan S. Rosenthal, Attys., Dept. of Justice, Washington, D.C., C. E. Luckey, U.S. Atty., Portland, Or., for appellee.

Before HEALY, POPE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

The sinking of a tug and barge being utilized in repairing the spillway deck of Bonneville Dam gave rise to this action. Five of the six men on board the tug and barge lost their lives. The administrator of the estate of one of these men brought this action against the United States, to recover damages for wrongful death. Jurisdiction was asserted under the Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2674. 1

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The case was tried without a jury. Plaintiff asked the court to render judgment in his favor under the provisions of the Employers' Liability Law of Oregon (Liability Law). 2 In the alternative, he sought recovery under the Oregon Wrongful Death Act. 3 The Government's position was that, since the accident occurred on navigable waters within the territorial limits of Oregon, only the Wrongful Death Act could be applied, and that the United States was not liable thereunder.

The trial court held that the Liability Law did not apply, and that the plaintiff failed to prove a breach of duty which would make the United States liable under the Wrongful Death Act. Judgment was therefore entered for defendant. Plaintiff appeals, challenging the determinations made by the trial court with regard to each of these statutes.

The facts necessary to be considered on this appeal, as set out below, are drawn from undisputed findings of fact entered by the trial court.

Bonneville Dam, owned and operated by the United States, is located on the Columbia River, between the states of Oregon and Washington. The Columbia River constitutes navigable waters of the United States, and the point where the accident occurred, as set out below, lies within the jurisdiction of the state of Oregon.

Bonneville Dam consists of several facilities including a powerhouse which lies between the Oregon shore and Bradford Island, and a spillway dam which lies between the island and the Washington shore. The spillway dam contains eighteen bays, which, for convenience herein, are numbered 1 through 18, starting with the fishway bay on the Washington shore as bay 1.

In each bay, there is a movable gate fifty feet wide and fifty feet high. These gates are opened and closed by being lifted or lowered in a vertical direction. When shut, they rest on the top of the 'ogee' section, which is the upper line of the submerged stationary portion of the dam. On the bed of the river, extending downstream across the width of the dam, is a concrete structure called the baffle deck. This deck is dotted with concrete blocks called 'baffles,' which are built into the deck. Their function is to dissipate the energy of the water discharged through the dam, and to reduce its downstream velocity.

In the interval between the completion of the dam in 1938 and the summer of 1954, the baffles had become eroded by the flow of water. Desiring to restore them to their original condition, the United States entered into a contract with Larson Construction Company (Larson), an independent contractor. The contract contemplated the construction of a cofferdam closing off the south half of the spillway

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baffle deck. It was understood that construction of this cofferdam would be commenced while water was being discharged through the spillway dam.

By the terms of the contract, Larson was obliged to inform the United States of all steps proposed to be taken which would affect the operation of the dam. The contractor was to supply all equipment, including the tug and barge involved in this action, and all labor used in the performance of the contract. The United States had no control over the manner or method by which the work under the contract was to be accomplished. It was interested only in the general result in conformity with the contract specifications. The United States, however, retained a right to inspect the work of the contractor. The contract further contemplated that the operation of the dam, including the spillway dam gates, would be conducted by personnel of the United States.

On August 13, 1954, the United States notified Larson that the water level of the river was such that work under the contract should commence no later than August 23, 1954. On the same day (Aug. 13, 1954), following a conference between personnel of the United States and the contractor, it was found possible to close gates 11 through 17. This included all of the gates on the south half of the spillway dam from gate 11 southward toward Bradford Island, except for the fishway gate. These gates were closed on that date, and remained closed during all times material to this suit.

The Government inspector in connection with this work was Patrick S. Leonti. In addition to his inspection duties, Leonti was to act as liaison between the contractor and Government employees concerned with the operation of the dam. Leonti informed Larson that any requests for closing the gates in the spillway dam should be made through him.

According to the plans and specifications of the contract, a part of the cofferdam was to consist of a timber crib. This crib was to rest in bay 9, starting at the top of the ogee curve and running at right angles to the face of the dam. Larson concluded that the curved slope, as originally constructed, may have become eroded to some degree. He therefore determined that it was necessary to take soundings in bay 9, for the purpose of establishing the true cross section of the ogee at that time.

On August 18, 1954, the contractor's representative informed Leonti that the contractor proposed to take soundings in bay 9 on August 20, 1954. This would be done, Leonti was informed, by taking a tug and barge into bay 9, and taking soundings off the side of the barge. Leonti was requested to have the gates in bays 9 and 10 closed by 12:30 p.m. on August 20, to facilitate the planned operations.

Leonti forwarded this request to the operations division of the dam, and, at the designated time, gates 9 and 10 were closed. Gates 11 through 17 had already been closed, as previously indicated. Larson sought no advice from the Government personnel at the dam, and the latter gave Larson no advice as to the hazards of the proposed sounding operation.

The day before this operation was to take place, the contractor's superintendent performed a reconnaissance run in another tugboat in the same area. His purpose was to determine whether it would be a safe operation. Based on this reconnaissance run and on personal observation, Larson determined that the operation could be safely performed.

Shortly before 2:00 p.m., on August 20, 1954, Larsons' tug 'Muleduzer,' pushing his barge, set out from Bradford Island. The barge was made fast to the tug by four steel lines, and the two craft were, in effect, a unit. The equipment and personnel to be utilized in the operation were selected...

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