Chesapeake Bay Bridge and Tunnel District v. Lauritzen

• Decision Date: 02 May 1968
• Docket Number: No. 11886.,11886.
• Citation: 404 F.2d 1001
• Parties: CHESAPEAKE BAY BRIDGE AND TUNNEL DISTRICT, Respondent, Appellant, v. J. LAURITZEN, owner M/S BELLA DAN, Libellant; Tidewater Construction Corporation, Raymond International, Inc. and Peter Kiewit Sons' Company, a joint venture, trading as Tidewater-Raymond-Kiewit, and Merritt-Chapman and Scott Corporation, Respondents, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

404 F.2d 1001 (1968)

CHESAPEAKE BAY BRIDGE AND TUNNEL DISTRICT, Respondent, Appellant, v. J. LAURITZEN, owner M/S BELLA DAN, Libellant; Tidewater Construction Corporation, Raymond International, Inc. and Peter Kiewit Sons' Company, a joint venture, trading as Tidewater-Raymond-Kiewit, and Merritt-Chapman and Scott Corporation, Respondents, Appellees.

No. 11886.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1968.

Decided May 2, 1968.

R. M. Hughes, III, and Peter W. Martone, Norfolk, Va., (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief) for appellant.

Hugh S. Meredith, Norfolk, Va., (Eli Ellis and Francis L. Gannon, New York City, and Vandeventer, Black, Meredith & Martin, Norfolk, Va., and Hill, Betts, Yamaoka, Freehill & Longcope, New York City, on brief) for appellees.

Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge, and RUSSELL, District Judge.

ALBERT V. BRYAN, Circuit Judge:

The M/S Bella Dan, a merchantman hailing from Denmark, suffered hull damage on May 21, 1965 when snagged by a submerged obstruction at the bridge-tunnel spanning Chesapeake Bay, just within the Virginia capes. In the suit of the Danish shipowner, J. Lauritzen, against the owner-operator of the facility, the Bridge-Tunnel District, a body corporate and politic of the State, judgment went against the defendant.

In its decree the District Court overruled the defenses of sovereign immunity generally and under the Eleventh Amendment,¹ acquitted the vessel of any want of care, and found the defendant the creator of this hazard to shipping. On appeal, while confessing liability if it can be sued, the defendant revives its claim of immunity and, alternatively lest this defense not succeed, lays concurring fault to the vessel — to make her bear a share of her damages. We refuse immunity, but we find the vessel also to blame.

The Chesapeake Bay Bridge and Tunnel District — the appellee's full legal name — was chartered by a series of acts of the Virginia legislature, the last² providing that the

"District may sue and be sued, and by and through the Chesapeake Bay Bridge and Tunnel Commission hereinafter created as the governing board thereof, the district may plead and be impleaded, and contract with, individuals, partnerships, associations, private corporations, municipal corporations, political subdivisions of the State of Virginia, and the federal government or any agency thereof having any interest or title in and to property, rights, easements or franchises authorized to be acquired by this act."

The facts are beyond critical dispute. For present purposes the bridge-tunnel may be considered as running north and south. The principal Bay passageway for ships in and out of Hampton Roads is Thimble Shoals Channel. It transits the structure, in a general east-west direction, over the sites of the submarine tunnel sections. Thimble Shoals consists of a main channel 1000 feet in width, with an adjacent auxiliary channel of 450 feet on each side. The auxiliaries — the north for inbound and the south for outbound traffic — provide passage for vessels of 20 feet draft or less, as these are forbidden the main channel. The incident in suit occurred in or along the waters between the north shore and the north boundary of the north auxiliary. The location is also fixed as at the south end of North Island, one of the artificial causeways of the bridge-tunnel.

I. Before looking at the specifics of the causative events of the misadventure, the suability of the Tunnel District ought first to be demonstrated. Paragraphed, the defense is this. The District is a political subdivision of the State — the same status accorded a city, town or county. It is organized to perform an essential governmental function, i. e. provision of a State highway connecting the eastern peninsula of Virginia with the mainland. Indeed, the organic act gives the District a definite territory, including in its compass the counties, cities and towns situate at each end of the construction as well as the "area of Chesapeake Bay between" these termini. It thus enjoys the same optional exemption from a tort action as does the State. Elizabeth River Tunnel District v. Beecher, 202 Va. 452, 117 S.E.2d 685, 85 A.L.R.2d 469 (1961). Nor can consent to suit be extracted from the "sue-and-be-sued" or the "plead and be impleaded" clause of the siring statute. Id. at 689. This is State law but, in addition, because of the libellant's foreign citizenship, the United States courts are withdrawn as a forum by the Eleventh Amendment.

Nevertheless, libellant's replication must prevail — the State obstacle and the Constitutional impediment are both waivable and they have been disclaimed. Virginia relinquished both of these pleas by seeking and obtaining admission into an exclusive Federal realm — interstate and foreign commerce. Art. I, Sec. 8, U.S. Constitution. Necessarily, the State recognized that she built in the Bay only by sufferance of the Federal government. This acknowledgment is conclusively evidenced by her petition for permission pursuant to the act of Congress, 33 U.S.C. § 401 et seq., to occupy navigable waters with bridges and tunnels. The supplication of the State, and her reception into the Federal domain, meant surrender, pro tanto and pro tempore, of State sovereignty and submission to the paramount overlordship of the United States during the tenancy.

To begin with, whether Virginia's entry into the Federal province amounts to consent to be sued, and to be sued in the United States court, is a question of Federal law. Hence, the decision of the State court upon the State's invulnerability to suit is not conclusive in resolving the relationship of the State and the plaintiff in a dispute arising in the Federal zone. This was the declaration of Parden v. Terminal R. Co. of Ala., 377 U.S. 184, 196, 84 S.Ct. 1207, 1215, 12 L.Ed.2d 233 (1964):

"Where a State\'s consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere — whether it be interstate compacts or interstate commerce — subject to the constitutional power of the Federal Government, the question whether the State\'s act constitutes the alleged consent is one of federal law."

Furthermore:

"A State\'s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation."Ibid.

Congressional regulation allows causes involving activities in and upon the navigable waterways of the Nation to be adjudicated in the admiralty. 28 U.S.C. § 1333. Accordingly, we think liability of the Tunnel District to the Danish suitor upon the maritime tort was justiciable in the chosen instant court.

II. For an understanding of the negligence taxed to the Bella Dan, the circumstances and events of her misfortune must be particularized. These, as closely recounted in the findings of the District Court, point to its happening in this way:

"1. The M/S BELLA DAN was a twin-screw general cargo motor vessel of Danish registry 373'8" long 51'11" in breadth, with her bridge structure midships.

"At the time of the casualty, the M/S BELLA DAN was owned and operated by the libellant, J. Lauritzen, a Danish corporation.

* * * * * *

"5. On August 1, 1958, the Tunnel District obtained a permit from the United States Army Corps. of Engineers to construct a bridge-tunnel across the mouth of the Chesapeake Bay subject to certain enumerated conditions.

"One of the conditions of this permit was that the Tunnel District would provide, operate and maintain such navigational aids at the navigation openings of the bridge-tunnel as may be required by the United States Coast Guard. Further, the Tunnel District was to bear all costs arising from the installation, operation and maintenance of these aids.

"6. Thereafter, the United States Coast Guard prescribed that a navigational aid light tower should be erected by the Tunnel District off Thimble Shoals North Island marking the northern extremity of water having a minimum depth of 20 feet. The light prescribed was a three-legged steel structure, having steel pipe legs filled with cement, with creosoted wooden fenders bolted to the legs and a horizontal steel platform upon which the light itself was located. The light was officially designated as Light List Number 2642.2.

* * * * * *

"On April 15, 1964, this light tower * * * was * * * put into operation by the Tunnel District. In a Notice to Mariners, dated 8 April 1964, it was reported as being located in 23 feet of water, at mean low water. The bridge-tunnel had been completed in 1964.

"7. On September 13, 1964, at about 2:30 P.M., the light tower collapsed due to heavy seas during hurricane `Dora', at a time when it was subjected to heavy seas and strong winds from the north-east. * * *

"On September 26, 1964, a diver employed by the Tunnel District inspected the submerged light tower. He found that its legs remained fixed to the bottom and that the tower lay bent at an angle with its top pointing towards the south-west. It was completely submerged with its highest point about seven and one-half feet beneath the surface of the water at high tide.

"8. After the tower fell, the Tunnel District made no attempt to replace it, or to continue the operation of any navigational aid light to mark the shoal waters on the north side of the Thimble Shoal Channel opening in the Bridge-Tunnel, as prescribed by the United States Coast Guard and United States Army Corps of Engineers, and the Code of Federal Regulations. . . . . The Tunnel District did not mark the submerged tower; it requested the Coast Guard to do so. The Coast Guard believed marking it was unnecessary and did...