Hess v. United States
| Decision Date | 20 August 1958 |
| Docket Number | No. 15685.,15685. |
| Parties | Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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
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 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 solely by Larson.
No employee of the United States participated in this operation, or gave the contractor or any of his employees any directions or orders with respect to it. Nor was there any intermingling of employees of the United States with those of the contractor in connection with the work being performed at the time of the accident. Appellant's decedent was a member of the sounding party aboard the tug. He occupied a nonsupervisory capacity, and had no control with respect to the manner in which the sounding operation was to be conducted.
The tug and barge headed downstream from Bradford Island, came about in the middle of the river, and headed upstream for bay 9. At this time, the flow of the Columbia River was 191,100 cubic feet per second. Of this flow, 52,300 cubic feet per second was being discharged through the spillway dam. Gate 8 was then open thirty-two inches, and 5,700 cubic feet of water per second was flowing through it. Gate 6 was open to the same extent, and accommodated the same flow of water. Gate 7 was open fifty-five inches, and 9,100 cubic feet of water was flowing through it.
As the tug and barge approached bay 9, the turbulent condition of the water in the spillway basin was open, apparent, and obvious to all, including the contractor, the operator of the tugboat, and the other employees of the contractor. The difference in elevation of the water in the turbulent area opposite the open gates, as compared with the area opposite the closed gates, was also visible and obvious.
When the barge reached bay 9, it veered north. The port bow of the barge struck the pier between bays 9 and 8, stoving a hole in the bow of the barge. As water came through the hole, the barge moved over in front of bay 8 and the other open bays north of bay 8. The barge and tug were swamped and sunk, with the barge being broken to pieces. The men aboard the tug and barge were thrown into the water, and all were drowned except one deckhand.
The immediate cause of the accident and the deaths of the men was the turbulent condition of the water. This condition made it impossible to control the movements of the tug and barge, and caused the barge to strike the pier.
On these facts, the trial court held, as previously noted, that the Liability Law was not applicable. The court did so for two separate and distinct reasons: (1) the Liability Law could not be constitutionally applied in this case, and (2) if it could be applied, the United States was not liable thereunder because it was not responsible for the work being...
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