Smith v. United States

• Decision Date: 27 August 1974
• Docket Number: No. 72-3736.,72-3736.
• Citation: 497 F.2d 500
• Parties: Leslie SMITH, et al., Plaintiffs, Claimants, Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant, Claimant, Third-Party Plaintiff, Appellant, Cross-Appellee, v. RONLEE, INC., Defendant, Claimant, Third-Party Defendant, Fourth-Party Plaintiff, Appellant, Appellee, Cross-Appellee, v. E. & I., INC., Defendant, Claimant, Fourth-Party Defendant, Appellant, Cross-Appellee, v. CROSS CONTRACTING CO., INC., Petitioner for Limitation of Liability, etc., Defendant, Plaintiff, Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 500 (1974)

Leslie SMITH, et al., Plaintiffs, Claimants, Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant, Claimant, Third-Party Plaintiff, Appellant, Cross-Appellee, v. RONLEE, INC., Defendant, Claimant, Third-Party Defendant, Fourth-Party Plaintiff, Appellant, Appellee, Cross-Appellee, v. E. & I., INC., Defendant, Claimant, Fourth-Party Defendant, Appellant, Cross-Appellee, v. CROSS CONTRACTING CO., INC., Petitioner for Limitation of Liability, etc., Defendant, Plaintiff, Appellant, Cross-Appellee.

No. 72-3736.

United States Court of Appeals, Fifth Circuit.

July 19, 1974.

Rehearing Denied August 27, 1974.

COPYRIGHT MATERIAL OMITTED

Robert W. Rust, U. S. Atty., Clemens Hagglund, Asst. U. S. Atty., Miami, Fla., for U. S. A.

Richard F. Ralph, Miami, Fla., for E. & I., Inc.

Edward L. Magill, Miami, Fla., for Ronlee.

William R. Eckhardt, Houston, Tex., Harry Zuckerman, Miami, Fla., for Cross Contracting Co.

Laurence F. Ledebur, Thomas L. Jones, Walter H. Fleischer, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for appellants.

Donald Feldman, Miami, Fla., for W. Mann & J. Law.

Arthur Roth, Miami, Fla., for L. Smith, M. Smith & J. Gray.

Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, Fla., for Highlands.

Before BELL, SIMPSON and INGRAHAM, Circuit Judges.

SIMPSON, Circuit Judge:

This is an interlocutory appeal on the issue of liability by the defendants, all of whom were found negligent in a bench trial by the lower court. The trial was bifurcated as to liability and damages. Additionally, two of the five personal injury plaintiffs, Joseph Law and Leslie Smith, cross-appeal from the district court's findings of contributory negligence on their part.

The original actions alleged admiralty jurisdiction in the lower court for personal injuries to the plaintiffs occurring on navigable waters. Title 28, U.S.C., Sec. 1333(1). Jurisdiction over the United States (United States or occasionally, the government) was based upon The Suits in Admiralty Act, Title 46, U.S.C., Secs. 741-752 (waiver of sovereign immunity).¹ The lower court found that the United States had been negligent, its contractor Ronlee, Inc. (Ronlee), a Florida corporation, had been negligent, Ronlee's subcontractor E. & I., Inc., (E. & I.), a Florida corporation, had been negligent, and E. & I.'s subcontractor Cross Contracting Company, Inc. (Cross), a Louisiana Corporation had been negligent, and was also liable to the plaintiffs, its own employees, for furnishing unseaworthy barges. The court further found that the United States was entitled to indemnity from Ronlee, that Ronlee was entitled to indemnity from E. & I., and that E. & I. was entitled to indemnity from Cross, based on similar "hold harmless" clauses in the original contract and in each of the subcontracts. Finally, as noted above, two of the plaintiffs were found to have been contributorily negligent. We remand for further findings in connection with the negligence issues, affirm as to the indemnity claims, and reverse the finding of contributory negligence as to Joseph Law and Leslie Smith.

I FACTS

Though tried only as to liability, this case required many days in actual trial, and many many more in pre-trial hearings, conferences, motion hearings and the like. The facts are involved, technical, complex and sometimes confusing. We relate only such facts as are pertinent to our disposition of the instant appeal. The starting point was the decision by the government, through the U. S. Army Corps of Engineers, to construct a levee project known as Levee 47 on the east side of Lake Okeechobee, in Florida. The entire project was originally contracted to Ronlee. Ronlee, in turn, subcontracted about half of it to E. & I., involving the southern portion of the project.² E. & I., then subcontracted its entire share to Cross. The actual work was done exclusively by Cross employees using equipment owned or supplied by Cross, including the two barges involved here.

The underlying events giving rise to these proceedings involved dynamite blasting done in a borrow pit near the construction area. Underwater blasting was necessary in order to break up rock that was being used for the construction of the levee. The basic procedure included the use of two drill barges outfitted with power drilling equipment for drilling holes in the lake bottom into which dynamite charges could be dropped underwater. A licensed blaster was in charge of each barge and assisted by three helpers.

On November 11, 1966, a day of fair weather, the two drilling-blasting barges were facing each other in the borrow pit and Cross employees were engaged in blasting operations. Under normal circumstances, the actual detonation of dynamite was to be preceded by observation of several safety measures. When both barges had completed drilling and loading the allotted number of holes, they were to move back from the line of charges, and from each other, to a distance of not less than 250 feet. The two barges were generally worked as a unit and the charges associated with one barge would not be set off until the other barge was in position and ready to detonate. The Corps of Engineers safety manual prescribed that, at blasting time, air horn signals were to be given so that all workers on either barge could take cover.

Each barge had a blasting machine, which is the plunger apparatus commonly associated with dynamite blasting. Each also had a lead line and a skiff with an outboard motor. Just prior to the accident, the workers at barge No. 1 had completed drilling and loading six holes on 8-foot spacings to an overall depth of 33 feet. Barge No. 1 had been moved back to safe distance. Joseph Law was the licensed blaster in charge of that barge, and his brother, Herbert Law, was one of the three helpers assigned to it. The other personnel on barge No. 1 consisted of helpers Stephen Jones and James Jackson. The work of drilling and loading at barge No. 2 had not been completed. Leslie Smith was in charge of that barge, assisted by helpers Melbourne Smith, Joseph Gray, and Willie Mann, Jr.

At this time the two barges were about 346 feet apart, barge No. 1 being at Station 15 plus 00 south of No. 2, which was at Station 18 + 46. It was brought to the attention of Leslie Smith that some special assistance was needed in breaking up a large rock north of barge No. 2. It sometimes occurred that a particular rock was too large for use in construction, even after having already been once blasted. It was customary in such a situation to employ a "dobie shot". This procedure involved a blaster using his skiff to go to the location of the rock from his barge, dropping dynamite bundled together into the water next to the rock, then retreating to a safe distance to detonate. Leslie Smith ordered his helper Willie Mann to take the skiff from their barge, No. 2, pick up Joseph Law at barge No. 1, then circle back to the location north of barge No. 2 where special blasting was needed. Mann did as instructed, and Joesph Law joined him in the skiff from barge No. 2, taking the blasting machine from his barge No. 1. They dropped the dynamite bundle and stopped momentarily at barge No. 2 to converse with Leslie Smith.

Joseph Law had left his brother Herbert, who was not a licensed blaster, in charge of barge No. 1. As noted the holes drilled by the barge No. 1 crew were loaded and ready for detonation. Herbert Law decided to detonate the charge. The workers at barge No. 2 were in the process of drilling and loading the last hole of that series. Herbert Law attempted to sound the air horn as a signal that he was going to blast, but the horn malfunctioned, as the evidence shows it had on prior occasions. He then waved his arms at the people he could see at barge No. 2, which was a procedure sanctioned by both his supervisor and the government inspector, Kenneth Spalding. At that moment Joseph Law waved good-bye from the skiff to Leslie Smith aboard barge No. 2. Herbert testified that he interpreted that wave to be a response to his arm waving. Since barge No. 1's blasting machine was in the skiff with Joseph Law, Herbert detonated by use of an electric battery located on barge No. 1. Simultaneously with the explosion of the charges from barge No. 1, the charges set at barge No. 2 exploded, injuring Leslie Smith, his three helpers, and Joseph Law, who was in the skiff. These men are the five plaintiffs in the personal injury actions below.

The government inspector, Spalding, was not on the scene at the time of the accident, his visits to the work site being generally of short duration. Neither Ronlee nor E. & I. had any personnel or equipment at the site at any time. The government worked directly with Cross, although Ronlee received four percent and E. & I. six percent of the total contract funds. The evidence indicated and the trial court found that the explosion at barge No. 2 was not a result of faulty dynamite such that the blast at No. 1 would have caused the second explosion by virtue of propagation. There was testimony to the effect that no physical connection between the charges at No. 1 and No. 2 had been made, negating an inference that the detonation of one would have automatically detonated the other. The trial judge observed that the precise cause of the explosion at barge No. 2 could not be conclusively determined. It was undisputed that the signalling provisions of the safety manual were violated, and it appeared that such violations had not been uncommon or infrequent in the past.

II APPEAL BY THE UNITED STATES

The United States attacks the district court's imposition of liability upon it based on the negligence of Kenneth Spalding, the government inspector on the job, and argues alternatively that the finding of a right of indemnity from Ronlee should be affirmed. Error is also asserted with respect to the lower court's failure to assign a percentage to the contributory...