Tennessee Valley Sand & Gravel Co. v. M/V Delta

• Decision Date: 11 July 1979
• Docket Number: No. 77-2202,77-2202
• Parties: TENNESSEE VALLEY SAND & GRAVEL CO., Plaintiff-Appellant, Cross-Appellee, v. M/V DELTA, her engines, tackle, apparel, etc., in rem and Hobart-Worley Towing Company, Inc., in personam, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 930

598 F.2d 930

TENNESSEE VALLEY SAND & GRAVEL CO., Plaintiff-Appellant Cross-Appellee, v. M/V DELTA, her engines, tackle, apparel, etc., in rem and Hobart-Worley Towing Company, Inc., in personam Defendants-Appellees, Cross-Appellants.

No. 77-2202.

United States Court of Appeals Fifth Circuit.

July 11, 1979.

E. Spivey Gault, Frank S. Thackston, Jr., Greenville, Miss., for plaintiff-appellant, cross-appellee.

Joel J. Henderson, Greenville, Miss., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Mississippi.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

To reach a conclusion in a reasonable way may be the best path to decision-making, but it does not always assure that the result will itself be reasonable. Indeed, decisions that prove to be sound may be reached after following inappropriate or tortuous processes, or even by relying on the vagaries of fate or luck. Abraham Lincoln stressed the importance of result when he said, "I do the best I know how . . . . If the end brings me out all right, what is said against me won't amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference."

We here consider whether the principle that the injured victim of a tort may recover only those damages that were not reasonably avoidable turns on his decision-making process or the result reached by that process. We conclude that, because Tennessee Valley reached safe harbor, its failure to take adequate sightings along the way will not preclude it from recovering for the entire voyage.

I.

On June 11, 1972, Tennessee Valley's barge AL-448 sank in an inlet to the Tennessee River, where it had been tied off after being towed by the M/V Delta, owned by Hobart-Worley Towing Company. Hobart-Worley claimed that the barge sank as a result of its unseaworthiness, without any fault on the part of the tower. Tennessee Valley countered that the sinking resulted entirely from Hobart-Worley's lack of care. Neither contention was frivolous, and it was possible that either would ultimately be found to be correct or that, under the maritime doctrine of comparative fault, See United States v. Reliable Transfer Co., 1975, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251, the loss might be decreed against both in shares yet to be determined.

After the sinking, Tennessee Valley decided, without full investigation of the sunken barge, to try to raise her, and negotiated a salvage contract with the Southern Marine Construction Company. Southern Marine salvaged the cargo, and then sent a diver down to inspect the vessel and ascertain its condition. The diver reported that the barge was lying across an underwater creek and, as a result, was severely buckled. He advised his superiors that an application should be made to the United States Army Corps of Engineers for permission to abandon the barge where she lay.

The salvage operation had been in process ten days when this information was conveyed to a representative of Tennessee Valley. He sought no counsel from the Corps of Engineers but instructed Southern Marine to continue work. The barge was raised and sold for scrap.

Tennessee Valley sued Hobart-Worley for the damages it suffered as a result of the sinking, including approximately $20,000 expended in raising the barge. After a non-jury trial, the experienced trial judge concluded that the sinking resulted entirely from the fault of Hobart-Worley, but denied recovery for the expense of raising the barge on the basis that Tennessee Valley's failure to contact the Corps of Engineers before incurring any expenses "evinced utter indifference to plaintiff's obligation to mitigate damages." Tennessee Valley appeals from this denial. We reverse.

II.

Courts have often referred to a so-called duty to mitigate damage, See, e. g., Golf City, Inc. v. Wilson Sporting Goods Co., 5 Cir. 1977, 555 F.2d 426, 436; Robbins v. Farmers Union Grain Terminal Association, 8 Cir. 1977, 552 F.2d 788, 797; Schwartz v. NMS Industries, Inc., 5 Cir. 1975,517 F.2d 925, 931, Cert. denied, 1976, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643, and On appeal after remand, 5 Cir. 1978, 575 F.2d 553, 556; but there is no such duty, for there is no correlative right upon its violation. Ellerman Lines, Ltd. v. The President Harding, 2 Cir. 1961, 288 F.2d 288, 289. See generally McCormick on Damages § 33 at 127 (1935); Restatement (Second) of Torts § 918, comment a (1977); Restatement (Second) of Contracts § 364, comment b (Tent. Draft No. 14, 1979). There is instead a method of apportioning damages between the parties where the injured party has, subsequent to infliction of the harm, failed to exercise that degree of care society demands of the reasonable person. See Alcoa Steamship Co. v. Charles Ferran & Co., E.D.La.1966, 251 F.Supp. 823, 832, Aff'd, 5 Cir. 1967, 383 F.2d 46, Cert. denied, 1968, 393 U.S. 836, 89 S.Ct. 111, 21 L.Ed.2d 107.

The consequence of such post-injury negligence as distinguished from negligence contributing to the harm and acting as a bar to recovery, See, e. g., Vizzini v. Ford Motor Co., 3 Cir. 1977, 569 F.2d 754, 766; Ford Motor Co. v. Dallas Power & Light Co., 5 Cir. 1974, 499 F.2d 400, 414-15; Southport Transit Co. v. Avondale Marine Ways, 5 Cir. 1956, 234 F.2d 947, 951-52 n. 7; See generally 2 F. Harper & F. James, The Law of Torts § 22.10 at 1231-34 (1956); Compare W. Prosser, Handbook of the Law of Torts § 65 at 422-24 (4th ed. 1971) is to deny to the negligent victim damages "for so much of the losses as are shown to have resulted from failure on his part to use reasonable efforts to avoid or prevent them." Southport Transit Co. v. Avondale Marine Ways, supra, 234 F.2d at 952. See Restatement (Second) of Torts § 918(1) & comment a (1977). Cf. Restatement (Second) of Contracts § 364(1) and comments (Tent. Draft No. 14, 1979).

The burden of showing that the victim of tortious conduct failed to minimize his damages rests with the wrongdoer. See, e. g., Alcoa Steamship Co. v. Charles Ferran & Co., 5 Cir. 1967, 383 F.2d 46, 54; Ellerman Lines, Ltd. v. The President Harding, supra, 288 F.2d at 291; Dixie Plywood Co. v. S.S. Federal Lakes, S.D.Ga.1975, 404 F.Supp. 461, 465, Aff'd, 5 Cir. 1975,525 F.2d 691, Cert. denied, 1976, 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798. See generally 2 F. Harper & F. James, The Law of Torts § 20.3 at 1130 (1956); McCormick on Damages § 33 at 130 (1935). Thus, although the injured party is precluded from recovering for damages caused by his unreasonable conduct after the injury, the defendant must demonstrate (1) that the conduct was unreasonable, and (2) that it had the consequence of aggravating the harm.

Proof of only one of these contentions is insufficient as a matter of law to warrant denial of recovery. If the plaintiff acts unreasonably after defendant's tortious conduct, but this action has no impact on the scope of the harm, the defendant does not thereby escape liability for the full consequences of his own negligence. See, e. g., Jones v. Bender Welding & Machine Works, Inc., 9 Cir. 1978, 581 F.2d 1331, 1337 (defendant failed to show there was a dealer closer than San Diego to whom plaintiff should have towed his disabled vessel from Guatemala); Dixie Plywood Co. v. S.S. Federal Lakes, supra, 404 F.Supp. at 466-67 (plaintiff's inadequate survey to determine damage to cargo did not contribute to the extent of the loss because cargo brought full value when sold as salvage). Similarly, if the plaintiff acts reasonably, the fact that his efforts turn out to be unsuccessful and actually increase the loss does not preclude recovery for all expenses incurred in the process. See, e. g., Pearlstein v. Scudder & German, 2 Cir. 1975, 527 F.2d 1141, 1145 (investor who failed to sell securities in declining market in reasonable belief that market would improve is not disabled from recovering his losses); Ellerman Lines, Ltd. v. The President Harding, supra, 288 F.2d at 291 (charges for hiring larger pier to unload cargo held recoverable although subsequent events obviated need to unload). See generally 2 F. Harper & F. James, The Law of Torts § 25.4 at 1308 & n. 6 (1956); Restatement (Second) of Torts § 919(2) & comment c (1977).

In determining whether the victim's conduct falls within the range of reasonableness, the court must consider that the necessity for decision-making was thrust upon him by the defendant, and judgments made at times of crisis are subject to human error. We do not require "infallibility or exactness of mathematical formula," Cargill, Inc. v. The Frank A. Lowery, N.D.N.Y.1957, 159 F.Supp. 133, 134, Aff'd, 2 Cir. 1958, 251 F.2d 845, Cert. denied, 356 U.S. 951, 78 S.Ct. 917, 2 L.Ed.2d 845, and will allow the injured party a wide latitude in determining how best to deal with the situation. See, e. g., Ellerman Lines, Ltd. v. The President Harding, supra, 288 F.2d at 290; W. R. Grace & Co. v. Charleston Lighterage & Transfer Co., 4 Cir. 1952, 193 F.2d 539, 544-45, Rev'ing E.D.S.C.1951, 98 F.Supp. 256, 266-67.

III.

In considering the reasonableness of Tennessee Valley's decision to raise the barge, we must analyze its duties under section 15 of the Rivers and Harbors Act, 33 U.S.C. § 409. The statute imposes on the owner of a vessel sunk in a navigable channel the obligation "to commence the immediate removal of the same, and prosecute such removal diligently . . . ." The duty of an owner whose actions are responsible for the sinking is non-delegable and inescapable. See, e. g., Humble Oil & Refining Co. v. The Tug Crochet, 5 Cir. 1970, 422 F.2d 602, 609. If he fails to act to remove the obstruction, the government may undertake the task in the interest of navigational safety, and the owner will be held liable not only for this cost, E. g., Lane v. United States, 4 Cir. 1975, 529 F.2d 175, 177 n. 2; United States v. Cargill, Inc., ...