Garner v. Cities Service Tankers Corporation

• Decision Date: 28 February 1972
• Docket Number: No. 71-1745.,71-1745.
• Citation: 456 F.2d 476
• Parties: Ralph O. GARNER, Maggie Cartwright, etc., Plaintiffs, v. CITIES SERVICE TANKERS CORPORATION, Defendant-Third Party Plaintiff-Appellant, v. ALABAMA DRY DOCK AND SHIPBUILDING COMPANY, Inc., Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 476 (1972)

Ralph O. GARNER, Maggie Cartwright, etc., Plaintiffs, v. CITIES SERVICE TANKERS CORPORATION, Defendant-Third Party Plaintiff-Appellant, v. ALABAMA DRY DOCK AND SHIPBUILDING COMPANY, Inc., Third Party Defendant-Appellee.

No. 71-1745.

United States Court of Appeals, Fifth Circuit.

February 28, 1972.

Harry H. Riddick, Hamilton, Butler, Riddick & Latour, Mobile, Ala., for appellant.

Alex T. Howard, Jr., Mobile, Ala., for appellee; Johnstone, Adams, May, Howard & Hill, Mobile, Ala., of counsel.

Before TUTTLE, GEWIN and DYER, Circuit Judges.

GEWIN, Circuit Judge:

Cities Service Tankers Corp. (Cities Service), owner of the SS BRADFORD ISLAND, appeals from a judgment holding that it is not entitled to indemnity from the Alabama Dry Dock & Shipbuilding Company (shipyard) for settlements made in connection with an accident aboard the vessel. An explosion of a hot water heater aboard the SS BRADFORD ISLAND on October 19, 1966, killed one shipyard employee, Cartwright, and injured two others, Garner and Tolbert. Actions were instituted against Cities Service by Cartwright's widow in the United States District Court and by Garner and Tolbert in the Alabama state courts. Cities Service removed the Garner suit to the United States District Court, filed third party claims against the shipyard seeking indemnity and then settled with the original plaintiffs. Cities Service then amended the third-party complaint in the Garner suit to include its indemnity claim arising from the Tolbert settlement, and the two federal suits, embracing all three indemnity claims, were consolidated for trial. The court held that Cities Service had established: (1) its potential liability to the original workmen plaintiffs; and (2) the reasonableness of the settlements. However the court concluded that Cities Service had failed to prove: (1) that the shipyard's conduct amounted to a breach of the warranty of workmanlike performance (WWLP) which was the proximate cause of the accident; or (2) that the vessel was not guilty of conduct sufficient to preclude indemnity. Based on these findings the district court denied indemnity against the shipyard. We affirm.

The SS BRADFORD ISLAND arrived at the Alabama Dry Dock and Shipbuilding Company near Mobile, Alabama, on September 12, 1966, to undergo annual repairs. Upon the ship's arrival at the shipyard the vessel's own steam system was shut down and the shipyard connected shore steam, fresh water and electricity to the vessel. The steam was furnished to the vessel's accommodation steam system, which furnished hot water and heat to the officers' quarters in the midship housing.

For slightly over a month repair work proceeded on the vessel while she was both on and off dry dock. On October 19, 1966, the vessel was removed from dry dock where she had been for 9 days and towed to the shipyard's pier A where she was moored in the water. The water and electricity were reconnected just after the ship was moved to pier A at about 4:00 p. m. The shore steam was reconnected about 5:00 p. m. The weather had been cool for a day or two and the shipyard's employees customarily ate their meals in the midship shelter area and warmed themselves by use of the hot water heater located there.

At approximately 6:25 p. m. the hot water tank in the midship shelter ruptured. The water in the tank immediately flashed into steam with explosive force, thereby propelling all but the head of the water tank with such force as to cause the death of Cartwright and personal injuries to Garner and Tolbert, who were standing close by at the time.

There is no dispute about what caused the explosion following the initial rupture of the tank. At the time of the rupture the water in the tank had been heated to a temperature in excess of 212° Fahrenheit (F), the boiling point of water at atmospheric pressure. When the rupture occurred the super-heated water was exposed to the atmosphere and instantly flashed into steam with a volume some 1600 times greater than the volume of the water before the rupture. This expansion of the steam created the explosive force which resulted in the injuries to the original plaintiffs.

The dispute in this suit centers on the question of what caused the initial rupture of the hot water tank. The water in the tank was heated by coils of tubing through which passed pressurized steam. When the explosion occurred, the outer shell of the tank ruptured at one end and then was blown clear of the steam coils. The steam coils did not rupture and no steam entered the tank from the coils.

The court decided that the shipyard had connected saturated steam at a pressure of 125 pounds per square inch (PSI) to the ship's system which was rated at 70 PSI. The shore-based steam entered the ship's system and then passed through a fine mesh strainer and through a reducing valve which was designed to reduce up to 250 PSI of steam down to 10 PSI. However, the court determined that on the occasion of the accident the reducing valve was defective and failed to operate and to reduce the 125 PSI steam pressure.

Just downstream of the reducing valve in the steam line there was located a pressure relief valve which was set to relieve pressure in the line when the pressure reached as much as 45 PSI. The court concluded that on the occasion of the accident this relief valve was also defective and failed to operate.

The water heater was equipped with a temperature regulator which was designed to shut off the steam to the coils if the water in the tank exceeded 170° F. But the court found that at the time of the accident the temperature regulator had been by-passed and was inoperative. The court additionally determined that a pressure relief valve had originally been located on the hot water tank itself but that the relief valve had been removed prior to the accident.

The initial rupture of the tank occurred in a weld which held one head of the tank to the tank cylinder. The court ascertained that the weld at the point of rupture had originally received poor penetration, was corroded and had deteriorated to the point where only .020 of an inch of metal still held the tank together. The court also found that this same hot water tank had previously ruptured on three separate occasions.

The hot water tank was equipped with a check valve which was located in the line supplying water to the tank. This valve was designed to prevent the flow of hot water back into the cold water source. However, the court concluded that at the time of the accident this valve was also defective and allowed the pressure of the contents of the hot water tank to equalize with the pressure of the fresh water supply to the tank, i. e., the water pressure of the City of Mobile.

The shipowner, Cities Service, contends that the initial rupture was caused by a build-up of pressure within the tank resulting from the uninterrupted circulation of the 125 PSI steam through the coils of the heater; and that had steam not been supplied to the vessel in excess of the safe working pressure of her system,¹ there would have been no accident.

The shipyard, on the other hand, contends that the pressure within the tank was the same as the shore-based water pressure because of the defective check valve in the cold water line. It contends that the initial rupture was brought about by an increase in the city water pressure as the demand for water throughout the city lessened in the late afternoon.

The court said that it was unable to find as a fact whether or not source water (city) pressure caused the initial rupture. The court did find that the defective check valve in the cold water line permitted any pressure which may have built up in the water tank to bleed back or dissipate into the cold water source. The court therefore concluded that the Cities Service had failed to prove that excessive shore-based steam pressure was a proximate cause of the accident.

The court did find that the shipyard had supplied shore-based saturated steam at a pressure of 125 PSI to a 70 PSI line of the SS BRADFORD ISLAND.² The court also concluded that Cities Service had failed to properly inspect and/or maintain its vessel in the following five respects: (1) failure to inspect and repair the defective steam pressure reducing valve; (2) failure to inspect and repair the defective relief valve in the steam line leading to the hot water heater; (3) failure to inspect the hot water heater's temperature regulator by which they would have discovered that the regulator was bypassed; (4) removal or failure to discover the removal of the pressure relief valve from the hot water heater; (5) failure to inspect and discover the improper and corroded weld on the hot water tank which had ruptured on three prior occasions.

The court also concluded that weighing the substantiality of the fault of the shipowner against the shipyard's action in supplying 125 PSI of saturated steam to the vessel's 70 PSI line, the shipowner, Cities Service, was guilty of conduct on its part sufficient to preclude recovery.

On appeal Cities Service argues, for the first time in this suit, that the rule of The Pennsylvania, 19 Wall 125, 86 U. S. 125, 22 L.Ed. 148 (1873) should be applied to shift to the shipyard the burden of proving that the excessive steam pressure furnished to the vessel could not have contributed to the cause of the accident. Cities Service contends that the court incorrectly applied a balancing of fault test to determine whether it was guilty of conduct sufficient to preclude indemnity. Additionally Cities Service asserts that certain of the findings of the court are clearly erroneous, inconsistent and incomplete. Upon consideration of the briefs, record and arguments in this case, we find no merit in the contentions of Cities Service and affirm the judgment denying indemnity.

The rule of The Pennsylvania was born of a collision between two ships:

". . . When, as in this case, a

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