NM Paterson & Sons, Limited v. City of Chicago

• Decision Date: 30 October 1963
• Docket Number: No. 14069,14071.,14069
• Citation: 324 F.2d 254
• Parties: N. M. PATERSON & SONS, LIMITED, a corporation, Libelant-Appellant, v. CITY OF CHICAGO, a municipal corporation, Respondent-Appellee, v. The GREAT LAKES TOWING COMPANY, Inc., a corporation, owner of the TUG OREGON, Impleaded Respondent-Appellee. N. M. PATERSON & SONS, LIMITED, a corporation, Libelant-Cross-Appellee, v. CITY OF CHICAGO, a municipal corporation, Respondent-Cross-Appellant, v. The GREAT LAKES TOWING COMPANY, Inc., a corporation, owner of the TUG OREGON, Impleaded Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.2d 254 (1963)

N. M. PATERSON & SONS, LIMITED, a corporation, Libelant-Appellant, v. CITY OF CHICAGO, a municipal corporation, Respondent-Appellee, v. The GREAT LAKES TOWING COMPANY, Inc., a corporation, owner of the TUG OREGON, Impleaded Respondent-Appellee.

N. M. PATERSON & SONS, LIMITED, a corporation, Libelant-Cross-Appellee, v. CITY OF CHICAGO, a municipal corporation, Respondent-Cross-Appellant, v. The GREAT LAKES TOWING COMPANY, Inc., a corporation, owner of the TUG OREGON, Impleaded Respondent-Appellee.

Nos. 14069, 14071.

United States Court of Appeals Seventh Circuit.

October 30, 1963.

Stuart B. Bradley, Chicago, Ill., Bradley, Pipin, Vetter & Eaton, Chicago, Ill., of counsel, for N. M. Paterson & Sons, Ltd.

John C. Melaniphy, Corp Counsel, Sydney R. Drebin, Harry H. Pollack, Asst. Corp. Counsel, Robert G. Mackey, Asst. Corp. Counsel, of counsel, for City of Chicago.

Harney B. Stover, Harney B. Stover, Jr., Milwaukee, Wis., and Eugene Dooner, Chicago Ill., Murphy & Pearson, Chicago, Ill., of counsel, for Great Lakes Towing Co.

Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

This admiralty action was brought in the District Court by N. M. Paterson & Sons, Ltd., libelant, the owner and operator of the steamer Torondoc, against the City of Chicago for damage to the Torondoc alleged to have been caused by the negligent operation of the Dearborn Street bascule bridge which spans the Chicago River. The City answered and filed a cross-libel against N. M. Paterson & Sons, Ltd., and an impleading petition and impleading libel against The Great Lakes Towing Company, Inc., owner of the tug Oregon, for damage to the bridge. The cause was tried to the court. On the basis of the findings of fact it made and entered the District Court concluded that negligence of both the Torondoc and the City were proximate causes of the collision between the steamer and the bridge, the negligence of the Torondoc contributing to the extent of two-thirds of total fault, that of the City to one-third; and that there was no fault in the navigation or operation of the tug Oregon contributing to the collision.¹ It is stipulated that the damage sustained by the Torondoc was $15,336.00 and the damage to the bridge was $9,000.00. The court concluded that the doctrine of comparative negligence applied, apportioned recovery based upon the degree of fault of each party — which, under the formula applied, entitled the city to receive $888.00 — and entered judgment limiting execution on the damages awarded the City to $888.00.

Both libelant and the City appealed. Each asserts the District Court erred in denying it recovery of the full amount of damage it sustained as a result of the collision. The libelant in its appeal (No. 14069) contends the District Court erred in finding the Torondoc at fault and, in any event, it was error to apportion damages on the theory of comparative negligence. The City in its appeal (No. 14071) contends the court erred in not finding and concluding that the proximate cause of the collision was the negligence of the tug Oregon, or the joint negligence of the Oregon and the Torondoc.

The record establishes that the Torondoc, with the tug Oregon on a line at her bow for the purpose of assisting the steamer to keep her bow in the middle of the river and in negotiating turns, was out bound on the Chicago River about 1:00 A.M. on November 20, 1957. She had started from a Halsted Street dock at midnight. The Torondoc measured 254 feet in length, there was 15 feet of water between the vessels and the tug was 85 feet long — a combined flotilla length of 354 feet. The craft passed through four bascule type bridges at Franklin-Orleans Street, Wells Street, La Salle Street and Clark Street, each of which opened serially as the Torondoc approached. The distance from the Clark Street bridge to the Dearborn Street bridge is approximately 340 feet (400 feet from center to center). The bridge tender who operated the south leaf of the Dearborn Street bridge had been notified by a telephone call from the Clark Street bridge to expect an out-bound vessel. He received this notice before the Torondoc had rounded the bend at Orleans Street some five blocks to the west, within which distance approaching vessels can be seen from the bridge tender's post, whether the intervening bridges are in an open or closed position. The bridge tender relayed the call to the State Street bridge, the bridge to the east of the Dearborn Street bridge. The Torondoc was not yet in sight and the bridge tender went back to reading a book. It normally requires about 30 seconds from the time the gates are lowered to prevent traffic from entering upon the bridge for the mechanism to fully raise the leaves of the bridge. He ordinarily started the procedure to raise his bridge when the approaching ship is clearing the La Salle Street bridge — the second bridge to the west. After he received the call, the bridge tender first saw the Torondoc when its bow was passing through the Clark Street bridge — the bridge immediately to the west. He then signalled his partner, the operator of the north leaf of the bridge, who gave an answering signal to start the procedure for raising the bridge. The bells and flashing lights were put on to warn street traffic approaching the bridge. It was necessary to wait for a street car which had entered the bridge to clear the bridge before lowering the gates to stop other traffic from entering. When the bridge tender started to raise the south leaf the Torondoc was halfway between Clark and Dearborn. The south leaf rose approximately eight feet but by reason of a malfunction lowered about four feet. The malfunction was caused by a defective resistor-grid which grounded or short-circuited and opened the circuit breaker each time the power was increased to the third of the six stages available. The north leaf rose about two-thirds upward toward the open position but was then intentionally lowered to a position about ten feet above the partly opened south leaf. It was the policy of the City, upon failure of one leaf of a double-leaf bridge to open, to withhold raising the other leaf to prevent ships from attempting to navigate through a partly open bridge.

As the tug and the Torondoc passed through the Clark Street bridge the street traffic stop-lights on the Dearborn bridge were flashing. No warning signal was ever given that the bridge would not be raised. When it became apparent that the south leaf would not rise the Torondoc put her engines full speed astern in an attempt to reduce her forward motion and the tug steered the bow of the Torondoc to the left to pass under the north leaf of the bridge. The Torondoc was unable to completely take off its way. The bow deck of the Torondoc passed under the north leaf of the bridge, but the pilot house which extends upward from the deck struck the partly-raised north leaf and the deck on the starboard struck the outer end of the south leaf.

The District Court's conclusion that contributory fault of the Torondoc was a proximate cause of the collision is predicated upon its findings that the steamer was negligent in travelling at a speed in excess of the four miles per hour maximum permissible for vessels of its type under the Chicago Municipal Code, in failing to sound its whistle upon approaching each of the bridges west of the Dearborn bridge, and in entrusting command to an inexperienced master.

The conclusion of fault and proximate causation on the City's part is based on findings that it was negligent in failing to open the bridge, in failing to adequately inspect and test, or replace, old components of the electrical mechanism which operated the bridge, and in failing to give the prescribed warning signal² that the bridge would not be opened.

The District Court's application of the comparative negligence doctrine is based largely on its misconception that the decisions declaratory of the admiralty rule of equal division of damages in mutual fault collisions use the term "mutual fault" in the sense of "equal fault" and so restrict its application. That such is not the case is demonstrated by the observations made almost a century ago in The Atlas, 3 Otto 302, 313-314, 93 U.S. 302, 313-314, 23 L.Ed. 863.

"Under the second of the foregoing rules, — when both vessels are in fault, — the sums representing the damages are added together, and the amount is equally divided between the parties; and that rule prevails in all cases where there is mutual fault, even though one of the vessels may have been much more in fault than the other. Fault being imputed to both vessels, and the charge being proved, the inquiry which was most to blame is immaterial, as the damages must be divided between the two, according to the rule provided in the admiralty courts. Vaux v. Sheffer, 8 Moore, P.C.C. 87.

"Attempt was made in the Court of Sessions in Scotland to establish an exception to that rule; and the court finding, in a case where both vessels were in fault, that the greater share of the blame rested on one, decided that her owners were liable for two-thirds of the damage. Maude & P. on Ship. (3d ed.) 470; Le Neve v. Shipping Co., 1 Shaw\'s Cas. 378.

"Prompt appeal was taken from that

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