Bergeron v. Elliot, 72-1074. Summary Calendar.
| Decision Date | 24 October 1972 |
| Docket Number | No. 72-1074. Summary Calendar.,72-1074. Summary Calendar. |
| Parties | Willis Joseph BERGERON, Plaintiff-Appellant, v. Darryl ELLIOT, Defendant, H. Raymond Robinson et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles R. Maloney, Donald B. Ruiz, New Orleans, La., for plaintiff-appellant.
J. Dwight LeBlanc, Jr., New Orleans, La., for defendants-appellees.
George W. Reese, Peter J. Abadie, Jr., New Orleans, La., for other interested parties.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
On April 25, 1970, while performing some routine maintenance work aboard his shrimper, the Captain Pip, which was tied up to the Robinson Canning Company Bayou Signette wharf in southern Louisiana,1 Captain Darryl Elliot lowered one of its trawling booms outward over the water. Thirty minutes to an hour later, Plaintiff, Appellant, Willis Bergeron's small outboard motorboat came into contact with a wire cable suspended from the lowered boom.2 As a result of the injuries he there received, Bergeron instituted this in personam action in admiralty against Captain Elliot, as owner of the Captain Pip, and against the Robinson Canning Company, as owner of the wharf to which the shrimper had been tied when the accident occurred. Appellant Bergeron here appeals from the Trial Court's entry of summary judgment in favor of the Robinsons,3 contending that the Court erred: (i) in concluding that there was no legal relationship between the Robinson Canning Company and the Captain Pip and/or its owner and (ii) in failing to recognize that a riparian wharf owner next to a navigable stream has a positive duty not to obstruct the waters of that stream. Finding no merit to these arguments, we affirm.
In this last ditch effort to establish some theory or other upon which to sustain a recovery against the Robinsons, Appellant strenuously contends that enough of a relationship existed between the Robinsons and the Captain Pip and/or Elliot to hold the Robinsons liable in this instance. We have concluded that no such relationship existed.4
It is clear that the success or failure of this action against the Robinsons depends upon the validity of Appellant's theory concerning the liability of the Robinsons in their role as riparian wharf owners under 33 U.S.C.A. §§ 403, 409, or similar principles.5
Although there is a paucity of cases involving this particular question6 and even though a wharf owner might, under a number of conceivable circumstances, be held liable if he had knowledge that a vessel tied to its wharf was in some way "obstructing navigation" by creating an undisclosed hazard to navigation and in the face of such knowledge did nothing to correct the situation, there is no positive duty on the part of a wharf owner to continuously police the conduct of vessels at his wharf against isolated negligent acts committed by the owners or crew members of the vessels moored at the dock. Cf. Reichert Towing Line Inc. v. Burns Bros. Coal Co., supra.
Here, the facts—viewed through Bergeron tinted lenses—are insufficient to give rise to even an inference that the wharf owner had knowledge that Elliot had lowered the boom outward over the bayou in such a way as to allow the wire cable to be a menace to other craft. For it is uncontroverted that the canning plant was closed on the day of the accident as it had been for sometime previously due to the lull in the fishing season. As a consequence, it is uncontroverted that neither the Robinsons nor any of their agents or employees were anywhere near the wharf on the day of the accident.
In attempting to overcome what by now has become an insurmountable obstacle, Appellant relies upon his statement given on deposition to the effect that it was a "common practice" for shrimpers to periodically lower trawling booms in order to perform needed maintenance. As this statement was used by defense counsel in arguments before the District Court in an attempt to establish contributory negligence on the part of Appellant, he here contends that the Robinsons should also be bound by it.
Rejecting this argument, we briefly point out that although it might—the word is might—have been a common practice for shrimpers to lower their trawling booms, there is nothing in the record before us which raises a question of fact that in so doing the undisclosed wire cable would be handled in such a way as to create an undisclosed hazard to others or that it was "common practice" to swing the booms out farther than reasonably necessary to thereby bring about an unreasonable menace to navigation no matter how obvious to vessels navigating nearby. Granted that on summary judgment the Judge had to credit the "common practice,"...
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