Brinegar v. San Ore Construction Company

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Citation302 F. Supp. 630
Docket NumberNo. PB 68 C-68.,PB 68 C-68.
PartiesPatrick BRINEGAR, Plaintiff, v. SAN ORE CONSTRUCTION COMPANY, Inc., and Gardner Engineering Corporation, a Joint Venture operating under the Name of S.O.G. of Arkansas, Defendant.
Decision Date25 June 1969

302 F. Supp. 630

Patrick BRINEGAR, Plaintiff,
SAN ORE CONSTRUCTION COMPANY, Inc., and Gardner Engineering Corporation, a Joint Venture operating under the Name of S.O.G. of Arkansas, Defendant.

No. PB 68 C-68.

United States District Court E. D. Arkansas, Pine Bluff Division.

June 25, 1969.

302 F. Supp. 631
302 F. Supp. 632
Henry Woods and Sidney S. McMath, McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., for plaintiff

Bernard Whetstone, Little Rock, Ark., John C. Shepherd, St. Louis, Mo., for defendant.


OREN HARRIS, District Judge.

In this proceeding, the defendant has filed timely motion for judgment n.o.v. and to set aside the verdict of the jury returned May 16, 1969. On the pleadings, briefs and hearing June 25, 1969, the Court in denying the motion considers each of the contentions of the defendant.

This is a suit by plaintiff Patrick Brinegar alleging negligence and the statutory violation under the Jones Act as well as unseaworthiness of the defendant's vessel. The following facts are supported by substantial, and for the most part, uncontradicted evidence. S.O.G. of Arkansas, a joint venture composed of San Ore Construction Company, Inc., a Kansas corporation, and Gardner Engineering Corporation, a Texas corporation, had a contract to construct Lock and Dam No. 4 on the Arkansas River near Pine Bluff, a major component of the Arkansas River Navigation Project. Plaintiff was an oiler on its dredge "The Mud Hen". On October 19, 1968, when plaintiff was injured, defendant had completed work on seven gates of the dam and they were in full operation. The other seven gates were under construction and were surrounded by a cofferdam.

In conjunction with the work of its dredge, the defendant operated a tank vessel the "Hal-B", which had been constructed by the Gardner Engineering Corporation, one of the defendant joint venturers. This vessel carried one thousand gallons of fuel in the middle sections of its two 36 inch steel pontoons, which also provided flotation. The Hal-B was powered by a GMC 671 diesel motor seated on steel decking attached to the pontoons. The prow of the

302 F. Supp. 633
Hal-B was square. The operator stood on a platform built over the motor

The principal purpose of the Hal-B was to fuel the dredge, which consumed sixty-five gallons of fuel an hour. She was also used to lay the dredge discharge lines, consisting of jointed pipe floated on pontoons and to tow the dredge to different locations. In addition to towing the dredge, she also towed rock barges to points where fills were made in the dredged out river bottom. It will be seen that the Hal-B worked in close conjunction with the dredge and was actually an auxiliary vessel to it. In addition to his work as an oiler on the dredge, with responsibilities for its lubrication, cleaning and minor repairs, plaintiff Brinegar served as a deck hand on the Hal-B whenever an extra man was required on the vessel. For instance, when the Hal-B was used to run discharge pipe from the dredge out into the main channel of the river, Brinegar was used to connect the pipe sections together. He also handled the towlines on the Hal-B when she was used to tow rock barges and assisted in the fueling operations between the Hal-B and the dredge.

At about 10:00 a.m. on October 29, 1968, Travis Green, defendant's general superintendent, ordered all the completed gates on the dam closed or partially closed, except the one adjacent to the cofferdam. His purpose was to raise the up-dam water level and float several barges off the river bank. Closure of the six gates had the effect of channelling the entire flow of the Arkansas River through the one open gate. By 1:30 in the afternoon, the time of the accident, the up-dam water level had built up approximately four or five feet over the level below the dam. The flow of the water through the gate was extremely turbulent and the difference in water level made a waterfall effect in the gate.

Sometime between 1:00 and 1:30 p. m., Green gave instructions by radio to James O. Holt, operator of the Hal-B, and plaintiff Brinegar to take her through the open gate and secure an empty barrel from the men working on the cofferdam below the gate. The barrel was to be brought upstream through the open gate, filled with ice and water and returned to the men on the cofferdam for drinking purposes.

Holt, aged twenty, had been operating the Hal-B since it was brought to the job site several months before. He was not licensed in spite of the fact that under 46 U.S.C.A. § 391a the Hal-B was classified as a tankship and made subject to manning requirements promulgated by the Commandant of the Coast Guard, which specified that the operator must be a licensed master or pilot at least twenty-one years of age. 46 C.F.R. 35.05-1-10.

In obedience to the instructions of the general superintendent, Holt, with considerable misgivings, began the ill-fated voyage. With some difficulty, the downstream trip through the gate was navigated safely, and the men on the cofferdam lowered the empty barrel on a line to Brinegar, who stowed it on the boat. While the barrel was being lowered, Green talked to Holt by radio about the downstream trip through the gate, inquiring "how the boat handled in the hot water." Holt replied that, "it handled pretty good going downstream." Green then, according to Holt, told him, "well, come ahead on," or according to one of the men on the cofferdam, "go ahead and try it." The men working on the cofferdam warned Holt that he had better not attempt the up-stream trip through the gate but he replied that "he was going to try."

When the Hal-B reached the open gate on the up-stream trip, the waterfall poured into the vessel, drowning out the motor. The swift and turbulent current, combined with the waterfall in the gate, swamped and capsized the vessel. As the vessel rolled completely over in the water some part of it struck Brinegar in the neck severing his spinal cord at the C-6, C-7 level and paralyzing him below the neck.

In answer to interrogatories the jury found that the defendant was negligent,

302 F. Supp. 634
that the Hal-B was unseaworthy and that Brinegar's injuries resulted in whole or in part from a violation of the Coast Guard regulations which required the operator of the Hal-B to be a master or a pilot at least twenty-one years of age. The jury found that Brinegar was not guilty of contributory negligence. His damages were assessed at one million dollars

In its motion for a new trial, defendant makes no contention that the jury's finding of unseaworthiness and negligence is unsupported by substantial evidence. Indeed on these issues the evidence is overwhelming. As to unseaworthiness, the evidence may well have warranted an instructed verdict. When a vessel is sent on a voyage, the perils of which are reasonably to be anticipated and the vessel capsizes or sinks, then the vessel is unseaworthy and the owner-employer is liable as a matter of law. Walker v. Harris, 335 F.2d 185 (5th Cir.1964), cert. den. 379 U.S. 930, 85 S. Ct. 326, 13 L.Ed.2d 342 (1965). In the latter case an inland tug sank in the Gulf of Mexico on a journey from Ft. Myers to Carrabelle, Florida during a "northwester" of the type which could be expected to come up suddenly in the wintertime and which had 33 to 36 M.P. H. winds and 5 to 12 feet high seas. There had been no small craft warning from the United States Weather Bureau. In holding the vessel unseaworthy as a matter of law, the Court said:

The subsidiary questions leading to ultimate conclusion of seaworthiness are therefore: what is the vessel to do? What are the hazards, the perils, the forces likely to be incurred? Is the vessel or the particular fitting under scrutiny, sufficient to withstand those anticipated forces? If the answer is in the affirmative, the vessel (or its fitting) is seaworthy. If the answer is in the negative, then the vessel (or the fitting) is unseaworthy no matter how diligent, careful or prudent the owner might have been. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, 1960, AMC 1503.
The question in this case boils down then to whether winds and seas of the kind actually encountered at the fateful moment were reasonably to be anticipated.

In the case at bar, Travis Green, the general superintendent, sent the Hal-B on a voyage, knowing in detail exactly what perils she would encounter. He knew that the water in the open gate was swift and turbulent. He knew that the difference in water level had created a waterfall effect in the gate. He was very familiar with the physical characteristics of the Hal-B and the way she performed. He knew the age and inexperience of James Holt, the operator of the Hal-B. Nevertheless, he sent her on the ill-fated voyage. No new, unforeseen or intervening factor brought about the failure of the ship to navigate the open gate. Green, the superintendent, knew or should have known all the operative factors in the situation. Sabine Towing Co. v. Brennan, 72 F.2d 490 (5th Cir.1934). For other cases in which unseaworthiness was found as a matter of law in the sinking of vessels, see Watson v. Providence Washington Ins. Co., 106 F.Supp. 244 (E.D.N.C. 1952), app. dismissed, 201 F.2d 736 (4th Cir.1953) and Long Dock, Mills & Elevator Co. v. Mannheim Ins. Co., 116 F. 886 (S.C.N.Y.1902). The jury could have found unseaworthiness on the basis of the inadequacy of the operator of the Hal-B. June T, Inc. v. King, 290 F.2d 404 (5th Cir.1941). Compare Admiral Towing Co. v. Woolen, 290 F.2d 641 (9th Cir.1961) where one of the two man crew was "an inexperienced youth of high school age."

Only brief mention is necessary with respect to the allegations of negligence under the Jones Act. There is striking similarity to a leading Supreme Court case, Spencer Kellogg & Sons v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903 (1931). In...

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