Whorton v. TA Loving & Company

• Decision Date: 06 April 1965
• Docket Number: No. 9403.,9403.
• Citation: 344 F.2d 739
• Parties: Clara M. WHORTON, Appellant, v. T. A. LOVING AND COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

344 F.2d 739 (1965)

Clara M. WHORTON, Appellant, v. T. A. LOVING AND COMPANY, Appellee.

No. 9403.

United States Court of Appeals Fourth Circuit.

Argued September 24, 1964.

Decided April 6, 1965.

Stephen J. Buckley, New York City (John H. Bonner, Washington, N. C., Christopher E. Heckman, and Foley & Martin, New York City, on brief), for appellant.

Jno. C. Rodman (Rodman & Rodman, Washington, N. C., on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BUTZNER, District Judge.

BOREMAN, Circuit Judge:

Clara M. Whorton prosecutes this appeal from a decree in admiralty sustaining the motion of appellee, T. A. Loving and Company (hereinafter Loving), to dismiss appellant's libel. We think the dismissal was error.

In midafternoon of February 16, 1955, the weather clear and visibility good, Whorton's shrimp boat, Boots, was proceeding southbound in the Intracoastal Waterway, near the "new" Onslow Beach Bridge, Camp LeJeune, North Carolina. The Boots was sixty feet long, fifteen feet wide and nine or ten feet in depth. As the Boots approached the bridge, she signaled for the opening of the drawbridge. A Navy landing craft was approaching the bridge from the opposite side, proceeding northbound, and the forward movement of the Boots was stopped to allow the oncoming craft to pass through the draw. The Boots' engines were then put ahead and suddenly the bottom of the boat was holed when it struck an unseen, unidentified and unmarked object, causing the Boots to sink in the draw of the bridge.

The location of the accident was opposite the U. S. Marine Corps Base at Camp LeJeune. Thomas Dillon, cartographer and Chief of Surveys of the Public Works Department at LeJeune, was directed to locate the underwater object which caused the sinking. On the day of the accident and on the following day, Dillon, with a crew in a small boat, dragged the area with a steel cable and located a solid immovable object under water. Looking through a specially made device, Dillon identified the object in the water as a steel "I" beam or pile (also referred to in the testimony as an "H" beam or "H" pile) in a fixed and semiupright position, embedded in the bottom of the waterway, its top 1.85 feet below the surface of the water. The crew marked the beam with a red flag.

Dillon then located the red marker in relation to a known position and prepared a plan to scale showing the position of the beam in relation to the fender system on the north side of the new Onslow Beach Bridge and in relation to an old pontoon bridge which had been removed but which had been located about one hundred yards to the north of the new bridge. This witness, who was familiar with the construction of the old bridge, testified that, ahead of and forming part of its fender system on the south side, there had been two dolphins on the west and two dolphins on the east side of the waterway; that these dolphins acted as protection to the fender system and each was comprised of a vertical steel beam or pile embedded in the river bottom and four wood piles leaning toward the vertical beam in tepee fashion. The plan prepared by Dillon showed the positions of these dolphins and alongside of one there appeared a legend which he explained as follows: The steel beam which he found was deflected slightly from true vertical and was leaning in a northerly direction; the top of the beam was 1.85 feet below the surface of the water; the water depth was at least ten feet and the top of the beam was approximately 8.15 feet from the bottom. On another copy of the same plan Dillon marked the top of the beam that caused the sinking of the Boots. Because of the northerly deflection of the beam, the top is shown slightly to the north of the vertical beam of one of the dolphins which formed a part of the old bridge system. Dillon testified that the embedded beam which caused the sinking was the same kind of steel beam used in the construction of the dolphin.

In essence, the libel charged that, prior to February 16, 1955, Loving entered into an agreement with the U. S. Department of the Navy whereby Loving undertook the construction of a bridge over the Inland Waterway in the vicinity of Onslow Beach, and the demolition and removal from the navigable waterway of the structure then in existence; that in performing the contract it was Loving's duty to remove any and all submerged obstructions the presence of which had previously been indicated by the existence of the bridge structure above the level of the water; that Loving failed and neglected to remove from the channel all of the parts of said bridge structure, including a submerged piling which constituted an obstruction to navigation; that Loving was responsible for the presence of said obstruction by reason of its negligence in failing to remove it and in failing to give appropriate warning thereof to vessels, including the Boots, lawfully using said waterway; that the damage to the Boots was due to the fault, neglect and want of care on the part of Loving and to Loving's failure to perform the obligations imposed upon it by reason of its Navy contract and the obligations and duties imposed by the statutes of the United States "and otherwise."

Answering, Loving admitted that it had entered into a contract with the Navy for the construction of a new bridge and for the removal of an existing bridge but denied that said contract was in any way pertinent or relevant to Whorton's alleged cause of action. Loving further denied knowledge of the existence of any such submerged piling and denied any and all responsibility for the presence thereof.

Without objection the issues for trial were stated by the court in a pretrial order as follows:

Was libellant's boat damaged by the negligence of respondent as alleged in the libel? If so, what damages is libellant entitled to recover?

In a written statement of facts, filed as a part of the record, Loving stated that, under its contract with the Navy, dated March 4, 1953, it constructed the new bridge; that a part of its contract provided for the removal of the old bridge; that at the time of the sinking of the Boots the new bridge had been constructed and was in use, the new bridge had been accepted by the Navy, the removal of the old bridge had been completed and the completion of such removal had been fully approved by the Navy. Loving again denied that the accident had been caused by its negligence.

At the conclusion of Whorton's evidence Loving moved to dismiss. The court took the motion under advisement and at that time reserved its ruling on the admission into evidence of the contract of March 4, 1953, hereinbefore mentioned, which had been offered by Whorton. Thereupon Loving produced one witness, Peel, who testified that, for over twelve months prior to the accident, no part of the dolphin, of which the steel beam was alleged to have been a part, was visible above water and that boats had passed through that area without incident. At the conclusion of Peel's testimony the court announced that it would admit the contract of March 4, 1953, for the limited purpose of showing that Loving undertook the removal of the old structure or bridge pursuant to contract and, further, that the court had concluded to allow Loving's motion to dismiss the libel.

One section of the contract which appears to be specifically applicable to the removal of the old bridge structure provided:

"The fixed parts and the fender system shall be completely removed and stored on the northwestern shore as directed. Piles shall be pulled or cut at canal bottom."

Under the terms of the agreement, the entire project was to be completed by August 31, 1954. A report dated November 9, 1954, and signed by W. H. Wendt, Inspector, discloses that the contractor on that date checked the waterway for obstructions and that this operation completed the removal of the old bridge.

At the time the court announced its ruling, proctor for Loving was directed to submit proposed findings of fact. Later the court adopted the proposed findings and conclusions substantially as submitted.¹ The court made no specific finding that the beam which caused the damage was a part of the fender system of the old bridge. It did find that there was no evidence as to when the removal of the old bridge and its appurtenances was accomplished or as to when the contract was completed in its entirety; that there was no evidence to show whether the steel beam which caused the damage was present in a semiupright position or in any other position when Loving's government contract was completed; that there is no evidence that Loving failed in the discharge of any legal duty owed by it to Whorton. The court then concluded that Whorton had failed to establish that the damage to the Boots was due to any fault, neglect or want of care on the part of Loving, its agents, servants, or employees, and that Loving was not liable.

We are of the opinion that the evidence before the trial court was amply sufficient to create and support the inference that the Boots sank as a result of striking a steel "I" beam, part of the fender system of the old bridge, which Loving was under an obligation to remove; in fact, such an inference is, in our opinion, inescapable. Short of producing as a witness someone who participated in driving the beam into the bottom of the waterway during the construction of the old bridge and who could, by some means, identify that particular beam as the one that caused the damage, it is difficult to conceive what other proof Whorton could have produced. Direct evidence of a fact is not always required. Circumstantial evidence is not only sufficient but may also be more certain, satisfying and persuasive than direct evidence. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L. Ed.2d 20 (1960). In Williamson v. Williams, 137 F.2d 298, 299 (4 Cir. 1943), this court said: "* * * inferences arising...