Brown & Root, Inc. v. American Home Assurance Company

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: BROWN and COLEMAN, Circuit , and MORGAN
• Citation: Brown & Root, Inc. v. American Home Assurance Company, 353 F.2d 113 (5th Cir. 1965)
• Decision Date: 29 December 1965
• Docket Number: No. 21766.,21766.
• Parties: BROWN & ROOT, INC., Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.

353 F.2d 113 (1965)

BROWN & ROOT, INC., Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.

No. 21766.

United States Court of Appeals Fifth Circuit.

November 23, 1965.

Rehearing Denied December 29, 1965.

COPYRIGHT MATERIAL OMITTED

Robert Eikel, Houston, Tex., for appellant.

Carl G. Stearns, E. V. Greenwood, Houston, Tex., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and MORGAN, District Judge.

JOHN R. BROWN, Circuit Judge:

This case concerns the liability of a tug for loss and damage to deck-loaded cargo when the barge went aground on March 26, 1956, nearly a decade ago. As such, the cast of nautical characters is a replica of our earlier decision involving the Tug R. A. Turrentine, the Barge LTC 6 and the Magnet Cove interests.¹ The R. A. Turrentine v. American Home Assur. Co.,² 5 Cir., 1960, 279 F.2d 811, 1960 AMC 1429, cert. denied, 364 U.S. 914, 81 S.Ct. 278, 5 L.Ed.2d 228, rehearing denied, 364 U.S. 944, 81 S.Ct. 458, 5 L.Ed.2d 375.

Indeed, so the Tower³ argues, this identity as to names, the underlying relation of the parties, the nature of the towing/transportation agreement was so stressed by cargo claimants that the trial Judge, perhaps mesmerized by this strange coincidence, was led to apply a sort of res judicata-collateral estoppel even though the operative occurrences — here a grounding in a channel and in the previous case a capsizing in a bay — were utterly different, calling for quite distinct legal theories of responsibility. This leads the Tower to attack the trial Court's finding of negligent grounding as clearly erroneous because not supported on the facts of this record. If this ground fails, it repeats its contentions unsuccessfully urged in the prior case that under the arrangement the Tug Owner was engaged in transportation, not mere towage, enabling it, first, to become the beneficiary of a bill of lading contract and, then, as a private carrier under it, to claim the benefit of the Harter Act and its error-in-navigation exemption, 46 U.S.C.A. § 192. By independent review of the first attack and stare decisis as to the second, we reject them and affirm.

We start out by agreeing fully with the Tower that under no circumstances may the earlier decision have any bearing on the Tug's responsibility for the dissimilar occurrence of March 26, 1956, here in suit. Apart from the Harter Act contentions arising out of the basic contractual arrangement, the Tug's legal liability turns on whether the Tug was negligent in respect of the grounding at this time, place and on this record, not the former one. We may agree also that the evidence is thin, but thin as it may be, it is thick enough considering our separate role. Cf. Hughes Tool Co. v. Varel Mfg. Co., 5 Cir., 1964, 336 F.2d 61, 62.

The Barge LTC 6 with a 900-ton deckload of drilling mud, much in large steel containers and the remainder in palletstacked bags, departed from Brownsville bound for Corpus Christi by the Intracoastal Canal. The Tug was made up astern to push the Barge. All went well until about 10:00 p. m. The wind had been from the north, but then shifted to the northeast. As the tow, northbound, passed the channel mile post 620 and was between U. S. Engineer Nos. 306 and 307, the port forward corner of the Barge went aground on or near the left (upbound) channel bank. Either this or the Tug's efforts to slide off the strand, or a combination of both, caused the deck cargo to shift, listing the Barge more sharply to starboard with 90% of the cargo sliding into the canal.

According to the Tug's Captain (Savoy) testimony both in pretrial deposition and on his later court appearance, the Barge struck an unmarked, unknown shoal within the defined limits of the navigable channel. The shoal presumably had been formed through surface drainage of soil off the nearby cut banks. On this hypothesis, the Tower could then argue forcibly those cases which exonerate the Tug from striking an unknown, unmarked object in the channel. Exner Sand & Gravel Corp v. Gallagher Bros. Sand & Gravel Corp., 2 Cir., 1946, 157 F. 2d 291, 1946 AMC 1449; The I.L.I. No. 103, 2 Cir., 1939, 104 F.2d 650, 1939 AMC 927; The Arlington, 2 Cir., 1927, 19 F.2d 285, 54 A.L.R. 101, 1927 AMC 900. This theory got a substantial boost from an unexpected quarter. A marine surveyor, Dierlam, retained by and acting for the cargo underwriter (who is the subrogated libellant here) went to the scene of the casualty. His initial formal report to his principles stated that the "barge was found to be grounded on a silt or sand formation which, apparently, had built up on the edge of the west side of the channel bank from land drainage." The shipper-cargo owners in submitting proof of loss to the underwriter (libellant-appellee here) described the occurrence in similar terms. The "* * * barge LTC #6 * * * was stranded at about mile 620 in between markers 306 and 307, intracoastal waterway, the barge struck sand bar on the left side of the canal and went hard aground. * * *." But by trial time Surveyor Dierlam had changed his mind, primarily as a result of a study of the U.S. Engineer cross sections for stations 306 through 307. These cross sections (at 50-foot intervals) were prepared from soundings in August 1956, some four to five months after the stranding during which time it was undisputed no dredging had been done. Contrary to Tower's claim, these showed no shoal out into the defined channel limits.

Without a doubt the actions and reports of the Surveyor Dierlam, made by one whose job was to investigate and report, constituted admissions to prove the truth of the declarations made.⁴ But except for those specialized, rare assertions characterized as judicial admissions, a party is entitled to explain an admission and even to retract it. When that is done, the factual evaluation of the admission vis-a-vis explanation, retraction, or repudiation, is for the trier of the fact.

In that process many things are pulling in different directions here. Thus, for example, the Tower rightly emphasizes the interval nature of cross section soundings and the inability of them to portray accurately in detail the whole contour of the channel limits and bottom. This infirmity is augmented because fixing of the location of the casualty in terms of stations 306-307 is at best an estimate. But most significant, Surveyor Dierlam's job was to ascertain cause, both in an operational and legal sense, and after full opportunity to make full inquiry on the scene, he accepted without reservation the Tug's story. On the other hand, strong factors offset or overcome these considerations. One, of course, is the burden resting on the Tug to come forward with a plausible explanation for having stranded during calm weather on a clear night in a waterway having over 150 feet of navigable channel. Bisso v. Waterways Transp. Co., 5 Cir., 1956, 235 F.2d 741, 744, 1956 AMC 1760, 1763. The Captain was, to be sure, adamant in his testimonial insistence that he was not out of the channel. But the trier was entitled to make something more out of his statements given to Surveyor Dierlam on the spot. After first stating that the Barge "nosed close enough to the channel bank that she struck a sand bar on the lefthand side (going north)," the Captain spoke as the voice of the Tower⁵ in expressing the fact-conclusion "I believe this casualty occurred because there were insufficient channel lites to help me keep in the center of the channel." The Captain insisted, of course, that reference to "the left-hand side" meant within the channel limits. But when asked on the trial to estimate how far the Tow was from the center of the channel when the port corner of the Barge touched ground, he could give no estimate. And critical as it was to exculpate a Tow which grounded in calm, clear conditions in a channel of abundant depth and width, Bisso v. Waterways Transp. Co., supra, there was a complete failure to make any soundings of any kind at the scene of the casualty while Tug, Barge, Captain, and Surveyor were all there. The trier of the fact was entitled to conclude that the Captain tipped off the real reason for the grounding in his complaint about channel lights. That statement revealed that in the Captain's own mind he must have strayed too far from the center. It did not reveal — nor could it — how the existence of channel lights could have revealed a shoal which was completely submerged and wholly undisclosed. The point of this is not, as asserted by Cargo, that the failure of the Tow to navigate in the center of the channel was an independent ground of negligence. Rather, it is that the farther the tow was from the center, the closer it was to the edge of the defined channel, the exact location of which was difficult, if not impossible, to locate on the surface of the waterway. The permissibility of this inference is cumulatively supported by ample evidence of other fault, particularly with respect to the failure to maintain a proper lookout considering the high deckload.

Affirming, as we do, the finding of negligent towage, the alternate Harter Act error-in-navigation defense, based on identical facts between identical parties, involves the identical question disposed of in our former decision.⁶ The Tower urges that we reconsider.

In this undertaking which perhaps reckons with a mixture of the law-of-the-case principle, Lincoln Nat'l Life Ins. Co. v. Roosth, 5 Cir., 1962, 306 F.2d 110 (en banc), and stare decisis, the Tower with a good deal of basis throws added doubt on the correctness of our still earlier decision in Mississippi Valley Barge Line Co. v. T. L. James & Co., 5 Cir., 1957, 244 F.2d 263, 1957 AMC 1647, cert. denied, 355 U.S. 871, 78 S.Ct. 121, 2 L.Ed.2d 76, on which The R. A. Turrentine was based. To the doubts generated by Chief Judge Tuttle's special concurrence, 279 F.2d 811, 815, the Tower adds supposedly contrary results reached in these cases: Continental Grain Co. v....