Adams v. Harris County, Texas

• Decision Date: 30 July 1970
• Docket Number: Civ. A. No. 69-H-215.
• Parties: Frederick P. ADAMS, Plaintiff, v. HARRIS COUNTY, TEXAS, Defendant.
• Court: U.S. District Court — Southern District of Texas

316 F. Supp. 938

Frederick P. ADAMS, Plaintiff, v. HARRIS COUNTY, TEXAS, Defendant.

Civ. A. No. 69-H-215.

United States District Court, S. D. Texas, Houston Division.

July 30, 1970.

COPYRIGHT MATERIAL OMITTED

W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Tex., for plaintiff.

Charles F. Mitchell, Asst. County Atty., Houston, Tex., for defendant.

Memorandum and Order

SINGLETON, District Judge.

This is a suit in admiralty in which plaintiff seeks to recover damages for bodily injuries when a motorcycle on which he was riding collided with a barricade of a drawbridge maintained by Harris County. Defendant has moved for dismissal for lack of jurisdiction.

The accident occurred on Easter Sunday, March 26, 1967. On that day Gerald Fortney, owner of a relatively small pleasure craft, was driving his vessel on Cedar Bayou approaching the bridge. Without any indication from the vessel that it was necessary to do so, the bridge keeper caused the bridge to begin to open. At that instant, when plaintiff began to cross the bridge, the barricade lowered into place and was struck by the motorcycle. Plaintiff was thrown several feet into the air and fell either on the bridge or close by. His theory of recovery is negligent maintenance.

The bridge itself is directly and permanently connected to the roadway plaintiff was traversing.¹ It is suspended over the water by permanent pilings driven into the channel of Cedar Bayou. There is no question but that the waters are navigable.

Three issues present themselves. Has plaintiff alleged maritime tort cognizable in a court of admiralty? If so, would the doctrine of sovereign immunity preclude the maintenance of this suit? If suit is not precluded by reason of sovereign immunity, does the Eleventh Amendment to the United States Constitution nevertheless bar the suit?

The answer to the first of these questions depends upon the locality of the tort. Every species of tort, however occurring and whether on board a vessel or not, upon the high seas or navigable waters is of admiralty cognizance. The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1865); 1 Benedict on Admiralty, section 127 (1940). Traditional admiralty jurisdiction, however, does not embrace torts occurring on bridges, wharves, and piers. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969); Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); Bird v. S. S. Fortuna, 250 F. Supp. 494 (D.Mass.1965). In Nacirema Operating Company v. Johnson, supra, it was appropriately said:

"Since long before the Longshoremen's Act was passed, it has been settled law that structures such as wharves and piers, permanently affixed to land, are extensions of the land. Thus, literally read, a statute which covers injuries `upon navigable waters' would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters." 396 U.S. 214, 90 S.Ct. 349, 24 L.Ed.2d 375—emphasis added).

In a footnote, it was added:

"We reject the alternate holding of the Court of Appeals that all injuries on these piers, despite settled doctrine to the contrary, may now be considered injuries on navigable waters—a proposition rejected implicitly by a unanimous Court just last term. See Rodrigue v. Aetna Casualty Co., 395 U.S 352, 360, 366, 89 S.Ct. 1835, 1839, 1842, 23 L.Ed.2d 360, 367, 370 (1969). Piers, like bridges, are not transformed from land structures into floating structures by the mere fact that vessels may pass beneath them." (396 U.S. 215, 90 S.Ct. 350, 24 L.Ed.2d 375 —emphasis added).

As previously indicated, the bridge upon which plaintiff was injured is supported by permanent pilings driven into the floor of Cedar Bayou. It must therefore be regarded as an extension of the land, the same as a pier or wharf would be, and therefore not within the bounds of traditional admiralty jurisdiction.

This conclusion, however, does not terminate the inquiry. In 1948, Congress passed the Admiralty Extension Act, 46 U.S.C. § 740, which provides:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. "In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where injury or damage has been done and consummated on navigable water * * *." (Emphasis added.)

If in this instance the vessel "caused" plaintiff's injuries, there is maritime jurisdiction.²

In any given case, whether or not a person's injuries are "caused" by a ship on navigable waters within the meaning of section 740 depends in turn on the proximity of that person's relationship with the vessel. Situations in which there has been held to be a sufficient link between the injury and the ship include injuries caused by a direct collision between a ship and a bridge, Empire Seafoods v. Anderson, 398 F.2d 204 (5th Cir. 1968), or a pier, Petition of New York Trap Rock Corp., 172 F. Supp. 638 (S.D.N.Y.1959), the failure of a ship's winches and booms during loading operations, Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2nd Cir. 1950), the failure of a ship's spring line, Fematt v. City of Los Angeles, 196 F.Supp. 89 (S.D.Cal.1961), and by a discharge of a ship's waste material onto the dock, Hovland v. Fearnley & Eger, 110 F.Supp. 657 (E.D.Pa.1952). Situations in which injuries have been held not to be caused by a ship include those resulting from a libelous letter written aboard a ship, Clinton v. Joshua Hendy Corp., 285 F.2d 199 (9th Cir. 1960), and a fall while plaintiff was using defendant's launching ramp to launch a small pleasure boat into navigable waters, Hastings v. Mann, 340 F.2d 910 (4th Cir. 1965).

Of particular significance is the recent decision in Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303 (9th Cir. 1970). There, the ship was loading a cargo of container vans. The vans were brought to the pier in trucks, transferred to the water's edge by straddle carriers, and subsequently placed aboard ship by a crane. The plaintiff's job in the loading operations was to direct the straddle carriers into position beneath the crane. His injuries resulted when one of the carriers ran into him. Plaintiff thereafter sought recovery under theories of negligence and unseaworthiness against the ship and the stevedore. It was held that the Admiralty Extension Act embraced all claims against al parties.

Jurisdiction over the negligence claims against the ship was based on Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1962), where the plaintiff's injuries resulted when some beans in defective bagging which had just been unloaded from defendant's ship spilled onto the dock and caused plaintiff to fall. In construing the Extension Act, the court rejected the notion that the Act should be limited to "injuries actually caused by the physical agency of the vessel or a particular part of it—such as when the ship rams the bridge or when its defective winch drops some cargo onto a longshoreman. * * *" (373 U.S. 209-210, 83 S.Ct. 1187-1188).

"Nothing in the legislative history supports so restrictive an interpretation of the statutory language. There is no distinction in admiralty between torts committed by the ship itself and by the ship's personnel while operating it, anymore than there is between torts `committed' by a corporation and by its employees." (Id. at 210, 83 S.Ct. at 1188)

The court in Gebhard v. S.S. Hawaiian Legislator, supra, saw "no substantial difference between an allegation that the ship owner was negligent in allowing beans to be unloaded by means of dangerously defective bagging, and one that was negligent in allowing vans to be loaded by means of dangerously defective equipment."

The negligence claims against the stevedore in Gebhard, supra, presented somewhat a different problem. While jurisdiction depended upon whether the ship caused the injury, recovery turned upon whether the stevedoring company was negligent. In holding that the Extension Act applies to all claims arising out of a vessel-caused injury, the court said:

"The act by its terms applies to `all cases' where the injury is `caused by a vessel on navigable waters.' It imposes no other requirements. On its face, therefore, the act seems to base jurisdiction not on the character of the parties, as in diversity, but on the nature of the facts giving rise to the cause, and in view of the savings of time and money—both to litigants and to the courts—that result from consolidation in one action of all claims arising out of the single injury, we see no reason why we should depart from the literal meaning of the act."

The plaintiff in this suit is in a position analogous to the plaintiff in Gebhard, supra. In both cases, the injury was actually precipitated by a shore-based instrumentality, and yet "caused" by the ship.

That the plaintiff's injuries in this case were caused by a ship is illustrated by the fact that the bridge keeper apparently believed it was necessary to lift the bridge in order that the vessel might pass, regardless of whether it was in fact necessary to do so and regardless of whether the ship gave any indication that it was necessary to do so. Consequently, just as in the ship-to-shore tort cases cited above, there was a chain of events which began with the ship's approach to the bridge and subsequently moved landward to bring about plaintiff's injuries. It is true that in this instance neither the vessel nor any of its accessories directly caused the accident. The contention, however, that the cause must be direct was laid to rest in Gutierrez, supra, and Gebhard, supra. Similarly, the application of the Extension Act is not to be limited to only those...