Boudoin v. J. Ray McDermott & Company

• Decision Date: 18 July 1960
• Docket Number: No. 18175.,18175.
• Citation: 281 F.2d 81
• Parties: Mrs. Edith BOUDOIN et al., Appellants, v. J. RAY McDERMOTT & COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

281 F.2d 81 (1960)

Mrs. Edith BOUDOIN et al., Appellants, v. J. RAY McDERMOTT & COMPANY, Inc., Appellee.

No. 18175.

United States Court of Appeals Fifth Circuit.

July 18, 1960.

J. B. Jones, Jr., Cameron, La., Jones & Jones, Cameron, La., for appellants.

Francis Emmett, New Orleans, La., Faris, Leake & Emmett, New Orleans, La., Warren M. Faris, New Orleans, La., of counsel, for appellee.

Before CAMERON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

For Louisiana diversity cases this term we have been confronted with several of nature's perils. In Lussan v. Grain Dealers Mutual Ins. Co., 5 Cir., 1960, 280 F.2d 491, fear by one of a little insect — a bee or a wasp — capable of doing limited harm, brought about injuries to another. Here we deal with the opposite extreme. Hurricane Audrey of June 27, 1957, having the capacity for devastation was known to be off the Louisiana Coast. Yet lack of fear — born perhaps by natural optimistic confidence or inadequate timely information — may have led many to remain in the very path of destruction. Absence of fear, or in some cases perhaps an indifference to it, in a general nonlegal sense brought about the loss of 353 lives and the destruction of movable properties worth millions of dollars.

Our precise problem is to determine whether the District Court was correct in denying recovery for severe damage to a dock caused when it was struck by a large ocean-going barge after she broke her moorings, was lifted by the tide and carried a mile over land then flooded by the storm.

As this was such a devastating catastrophe and there is or may yet be litigation growing out of it, we think it especially necessary to sound the caveat here that we are dealing with this record and this record only. What we have to say is not meant as an estimate by us on factual conclusions or legal principles which would apply to the whole occurrence.

In our approach we adopt all of the factual holdings of the District Judge. While reaching a conclusion contrary to his, we do not reject evidence credited by him. Our difference relates to the inferences which could properly be drawn from testimony which is largely uncontradicted. Since the important function of a trial judge is the drawing of inferences, frequently from so-called undisputed or uncontradicted evidentiary facts, we may not approach this merely as an independent choice by us of inferences we deem preferable. Ohio Barge Line v. Oil Transport Co., 5 Cir., 1960, 280 F.2d 448. In applying the clearly erroneous concept of F.R.Civ.P. 52(a), 28 U.S.C.A., our approach here is to show how the inferences drawn by the trial court have insufficient basis to serve as a denial of recovery.

The damaged dock was in the village of Cameron, Louisiana. Hurricane Audrey struck in the early morning of Thursday, June 27, 1957. Winds of over 100 mph, driving rain and a storm tide of over 10 feet above mean sea level killed 353 persons and inflicted property damage in the hundreds of millions of dollars. All acknowledge that once Audrey hit, there was nothing that could then be done. Liability, if it exists, must turn on whether the barge causing the damage ought ever to have been in that predicament. This takes us back to the preceding days of Tuesday, June 25, and Wednesday, June 26.

The barge, the unmanned Tidelands 5, with a length of 272 feet, a beam of 72 feet, and 15 feet in depth, was drawing about 3 feet. Her deck load of drilling equipment weighed about 750 tons. In the early afternoon of Tuesday, June 25, while at sea off Sabine Pass and in tow of the tug, R. Thomas McDermott, then bound for McDermott's base at Bayou Boeuf, the Tug received directions from McDermott's shore-based dispatcher. The head office passed the word of the Hurricane Watch¹ posted by the U.S. Weather Bureau Advisory No. 1. The tropical disturbance was nearly due south of Lake Charles, Louisiana, and 380 miles SE of Brownsville, Texas. McDermott's shore-base instructed the tug to take the Tidelands 5 in to Cameron and moor her at the McDermott-Phillips dock. The captain, a young 25-year-old practical tug master but without any marine license, immediately complied. The barge was made fast to Phillips dock about 6:00 p. m. Tuesday, June 25.

The tug had ample means of communication by radio telephone through official government, public and private channels. It was stipulated that the tug had received all of the Weather Bureau Advisories and Bulletins, but the captain's recollection of them or their sequence left much to be desired. In any case, the air was soon crackling with messages. By 12:00 noon on Tuesday, June 25, the tropical disturbance had been classed as a hurricane and was officially baptized as Audrey. Advisory No. 2 at 4:00 p. m. that afternoon reported Audrey coming northbound. It predicted "highest winds are estimated at about 100 mph near the center * * *." After stating that Audrey would drift northward "and increase in size" the first of many express warnings was sounded about storm tides. "Tides are expected to rise and seas will become rough along the Texas and Louisiana Coasts tonight and Wednesday * * *. Ships in the path of this hurricane should exercise caution."

Advisory No. 3 at 10:00 p. m. Tuesday, June 25, continued the Hurricane Watch. It reported "* * * Audrey is increasing in size" and "is moving slowly northward." Positions given in relation to previous Advisories showed that she was moving straight toward the Texas-Louisiana Coastline. Her position was due south of Lake Charles at a point about 500 miles distant from New Orleans. It predicted a slight change from N to NNE Wednesday.

Now it was Wednesday, June 26. But things were getting no better as Advisory No. 4 issued at 4:00 a. m. Wednesday, June 26, revealed. The "Hurricane Watch" described "the greatest threat to the Louisiana Coast." It reported "Audrey continues to increase in size * * * highest winds are estimated 100 mph near the center * * *." A specific warning was then given of tidal action and the area of danger. "Small craft along the Texas and Louisiana coast should remain in port as seas and tides are beginning to increase." Of critical importance this was followed by something more specific, "tides are expected to be 2 to 3 feet above normal from the Mississippi Sound to the upper Texas Coast tonight and continue rising Thursday."

Came the dawn on Wednesday, June 26. For those who would listen, and listening would heed, things were getting no better fast. Of importance, at least to those who go down to the sea in ships, was the technical change in the Weather Bureau Reports. Advisory No. 5 at 10:00 a. m. now changed it from a Hurricane Watch to a "Hoist Hurricane Warning * * * along entire Louisiana coast * * *." Audrey's reported position was further north but still on a beeline for Lake Charles. A slight change to east of north was predicted. The tidal situation was markedly worse even in the few hours since the previous Advisory at 4:00 a. m. It now warned "tides are rising and will reach 5 to 8 feet along the Louisiana coast and over the Mississippi Sound by late * * *." True it fixed the probable time as being "by late Thursday." But coupled with it was the warning many times repeated and too little heeded that "all persons in low exposed places should move to higher ground."

Things were no better, only worse, at 4:00 p. m. when Advisory No. 5 continued the Hurricane Warning for the Louisiana coast while describing all other areas from Galveston to Pensacola as storm warning only. Audrey was positioned "about 300 miles south of Lake Charles" with "indications * * * for continued northward movement at about 10 mph." The center was estimated to reach "west or central Louisiana coast late Thursday." The tidal warning was again emphasized. "Tides are rising and will reach 5 to 8 feet along the Louisiana coast and over the Mississippi Sound * * *. All persons in low exposed places should move to higher ground."

On Wednesday evening at 7:00 p. m. a Bulletin was issued. At 10:00 p. m. Advisory No. 7 was released followed by a Bulletin at 1:00 a. m. Advisory No. 8 was issued at 4:00 a. m. on Thursday, June 27. We need not detail them since there is no basis for suggesting that after 7:00 p. m. on Wednesday, June 26, the Tidelands 5 could have done very much. As a matter of interest the zero hour for Audrey's striking the coast was moved ahead from "late Thursday" (10:00 p. m. Wednesday) to "before noon today (Thursday)" (1:00 a. m. Thursday). Likewise the height of storm tide was increased from "5 to 8 feet" (4:00 p. m. and 7:00 p. m. Wednesday) to "5 to 9 feet" (10:00 p. m. Wednesday; 1:00 a. m. Thursday). The area of storm tide previously defined "along the Louisiana coast" was narrowed "from High Island, Texas to Morgan City, Louisiana" (10:00 p. m. Wednesday).

Before analyzing other evidence which bears upon the prudence of those in charge of the Tidelands 5, we think the District Judge in his assessment of conduct was erroneously influenced by two factors. The first was an undue emphasis upon our prior decision in United Geophysical Co. v. Vela, 5 Cir., 1956, 231 F.2d 816, 1956 AMC 745. The second was the fact that so many, to their great sorrow and that of their families, remained in Cameron. Consequently, what the captain did must have been prudent since so many others had done likewise.

The first (Vela) was an application in vivid circumstances, and perhaps like language, of the principle that where, without prior negligence, a vessel is put in the very center of destructive natural forces and a hard choice between competing courses must immediately be made, the law requires that there be something more than mere mistake of judgment by the master in that decision in extremis. That would certainly cover the steps taken by the Tug R. Thomas McDermott and the Tidelands 5 as the fury of Audrey first made herself felt in the early hours of...