Avera v. Florida Towing Corporation

• Decision Date: 26 September 1963
• Docket Number: No. 19387.,19387.
• Parties: Marion Lee AVERA and Daniel J. Avera Claimants, Appellants, v. FLORIDA TOWING CORPORATION, Appellee. FLORIDA TOWING CORPORATION, Appellant, v. Marion Lee AVERA and Daniel J. Avera, Claimants, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

322 F.2d 155 (1963)

Marion Lee AVERA and Daniel J. Avera Claimants, Appellants, v. FLORIDA TOWING CORPORATION, Appellee.

FLORIDA TOWING CORPORATION, Appellant, v. Marion Lee AVERA and Daniel J. Avera, Claimants, Appellees.

No. 19387.

United States Court of Appeals Fifth Circuit.

August 22, 1963.

Rehearing Denied September 26, 1963.

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Chester Bedell, Nathan Bedell, Thomas A. Larkin, Ralph E. Sistrunk, Robert P. Smith, Jr., Jacksonville, Fla., for appellants.

Herman Ulmer, Jr., Lewis Swift Lee, Jacksonville, Fla. (Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., of counsel), for appellee.

Before BROWN, GEWIN and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal by the sole claimant in an insufficient fund limitation proceeding seeks reversal of a decree granting limitation of liability, 46 U.S.C.A. § 183 et seq. Challenged by the claimant is the basic holding that the negligence of the shipowner was without its privity or knowledge. Attacked also is the Court's earlier decision that only the tug had to be surrendered, not the barge being towed as well. Because of our decision on the privity question, we need not directly consider surrender of the barge. The case certainly proves that there are real hazards in allowing the liability and damage issues to be determined by a State Court jury reserving the question of limitation to the admiralty court. For the problem always exists, and certainly does here, of determining just what specific acts of negligence were committed against which the admiralty court subsequently applies the privity-knowledge yardstick.

The Claimant Avera was 17 years old at the time of his injuries. He joined the Tug EILEEN ROSS July 8, 1955. His entire career "before the mast" ended on July 21, 1955, when he lost a leg during docking operations of the Tug and the Barge NATCON II while making a temporary stop at Fernandina Beach, Florida. The circumstances of the injury may be severely capsulated. The Tug was towing the Barge on an 8-inch manila line. Avera under orders of the Tug captain was attempting to prevent the slack in the 8-inch towing line from becoming entangled in the Tug's propeller. While engaged in hauling in on the slack, the Barge overtook the stern of the Tug on the starboard side causing the tow line to become taut thus pinning Avera against the capstan. The operational actions occurring at the time of the injury are no longer of much moment since the tug owner does not now challenge the findings of such negligence. The sole significant issue is whether the negligence of hiring this young, green hand for this dangerous work was with the privity and knowledge of the tug owner. Briefly the tug owner says not, because only Coppedge, the president of the corporate shipowner, not the tug master, had the authority to hire crew members.

After timely commencement of a limitation proceeding, the fixing of a value of $22,500 for the Tug, and the refusal to order the Barge surrendered, the District Court pursuant to motion and stipulation of Avera entered an order allowing the prosecution of the claim in the Florida State Court. This order, followed the pattern of Petition of Red Star Barge Line, Inc., 2 Cir., 1947, 160 F. 2d 436, 1947 AMC 524, cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859, 1947 AMC 1015.¹ The order reserved to the admiralty court determination of the question of the right to limit, the Claimant expressly "waiving any claim of res judicata relevant to the issue of limitation of Petitioner's liability." At the same time the order affirmatively provided that the State Court "* * * judgment, or judgments," after becoming final, "shall * * * be res judicata in the limitation proceedings as to the issue of Petitioner's liability or nonliability to Claimants, and as to the amount of Claimants' respective damages * * *."

The case proceeded to trial before a jury in the State Court. That Court directed a verdict on the separate count for unseaworthiness for insufficient evidence,² but submitted the cause to the jury under a general charge as to the tug owner's negligence.³ A verdict for the plaintiff for $80,000 was returned. Under the subsequent pretrial order of the admiralty court, the limitation trial was restricted to determining whether any of the acts of negligence "set forth in the State Court's charge to the jury" were "committed with the privity or knowledge of the petitioner."⁴

On the evidence submitted to the state court jury, each and all of acts 1 through 5 inclusive were those necessarily committed to the immediate control and judgment of the tug master while the tug was underway. Consequently, the District Court was clearly right in holding that these acts were done without the privity or knowledge of the tug owner. The Claimant's attack is confined to 6 concerning the tug owner's negligence in "employing the plaintiff in a hazardous job with insufficient instructions, in view of the fact that the plaintiff was too inexperienced to alone perform safely without help and supervision" the task of keeping the slack line out of the propeller.

Without a doubt the whole case turns on 6. It does so as to the sufficiency of the evidence showing that this was done (or omitted) with privity and knowledge. And from the tug owner's point of view, the interpretation of 6 becomes crucial in determining whether the issue of negligence in the initial employment of Avera was submitted to the state court jury at all. In connection with the latter, we quite agree with the tug owner that having sought the benefits of a permissive prosecution of the claim before a state court jury, the Claimant must bear the burdens of that stipulated order. Consequently, only those actions constituting negligence which were submitted to and impliedly found by the state court jury can afford the basis for inquiry as to privity and knowledge.

We conclude that this issue was submitted in substance to the state court jury. The charge taken as a whole lends substance to this reading of 6. So read it encompasses more than inquiry as to the simple activity which ought to have taken place just prior to the time Avera was given the job of handling the line. Several things point in that direction. The first is that the basic question of hiring a young inexperienced seaman as a deckhand for a tug of this kind was the subject of extensive evidence pro and con in the state court trial. The tug owner even proffered an expert who thought it proper since a young boy would acquire experience in a few day's time. Mr. Coppedge, the sole stockholder, manager-director of the corporation owning the tug was unable of accept this nice legal theory urged in his defense. He candidly told the state court jury that an 8-inch hawser was "too big for a kid his age and size." Furthermore, the Court's charge contained instructions on the duty of a shipowner.⁵

Perhaps most important, we think the admiralty court below was fully conscious that this was an important issue to be resolved. While reference in paragraph 3 of the District Court's findings⁶ that "the above described alleged acts of negligence were faults chargeable to the failure of the" tug master, it is quite clear that the succeeding paragraphs 4, 5 and 6 all bore on the question of privity and knowledge. In paragraph 6 the Court discussed at length the circumstances under which Avera was hired by the captain without the knowledge or consent of Coppedge. All of this would have been superfluous had not the admiralty court considered this to be an independent specific act of negligence concerning which the tug owner had the burden of establishing lack of privity or knowledge.⁷

We must therefore examine Avera's contention that the admiralty court erred in concluding that the negligence in the initial employment of this young, inexperienced seaman was without the privity or knowledge of the corporate tug owner. In so doing, we make plain at the outset that we do not reject any fact findings under the clearly erroneous concept now applicable to admiralty appeals. Davis v. Parkhill-Goodloe Co., 5 Cir., 1962, 302 F.2d 489, 491, 1962 AMC 1720. Rather, we accept the findings of the District Judge, credit that testimony which he credited and reject that which he discredited. These findings and the other evidence as to which there is no real contradiction form the basis for our conclusions.

Thus we accept the testimony of Coppedge, the finding of the District Court that he alone could hire a new crew member, and that he had no knowledge until after the accident that Avera was a member of the crew of the tug. We likewise credit his testimony and that of others that Coppedge was the whole show. Coppedge was the owner of all of the stock of Florida Towing Corporation, the owner of the Tug EILEEN ROSS. He was the president, treasurer and one of its three directors, and the sole person who could utter a single authoritative word in its behalf. Others nominally holding corporate executive offices or serving as directors frankly acknowledged their complete corporate impotence. In addition to Florida Towing Corporation, Coppedge was also the sole owner, stockholder, guiding force, officer and director of Coppedge Investment Company, Coppedge Transportation Company, Coppedge Terminal Company, Florida Fresh Water Company. And just a couple of months before the accident, he had taken on new management responsibilities and an ambiguous status both individually and for and on behalf of each of these assorted corporations as a managing agent for American Coastal Lines, Inc.

American Coastal Lines, Inc., a Massachusetts corporations, owned by outsiders had become heavily indebted to the Coppedge companies. The management contract was just one of the steps leading toward Coppedge's ultimate ownership of American Coastal as well as performance by his companies of transportation for ...