Byrd v. Napoleon Avenue Ferry Company, 2490.

• Decision Date: 05 November 1954
• Docket Number: No. 2490.,2490.
• Citation: 125 F. Supp. 573
• Parties: Mrs. Katie Lyons BYRD, Libellant, v. The NAPOLEON AVENUE FERRY COMPANY, Inc., Respondent.
• Court: U.S. District Court — Eastern District of Louisiana

125 F. Supp. 573

Mrs. Katie Lyons BYRD, Libellant, v. The NAPOLEON AVENUE FERRY COMPANY, Inc., Respondent.

No. 2490.

United States District Court E. D. Louisiana, New Orleans Division.

November 5, 1954.

COPYRIGHT MATERIAL OMITTED

M. C. Scharff, Gordon B. Hyde, New Orleans, La., for libellant.

Phelps, Dunbar, Marks & Claverie, John W. Sims, New Orleans, La., for respondent.

WRIGHT, District Judge.

Libellant is the widow of Merrill Byrd, who was drowned when a vehicle driven by himself, in company of his wife, fell into the Mississippi River in debarking from a ferry operated by respondent. Alleging that the accident was caused by the negligence of respondent, libellant asks damages for her own injuries, as well as for the death of her husband.

Respondent operates a ferry running across the Mississippi River between Napoleon Avenue, in the City of New Orleans, on the east bank of the river, and the unincorporated town of Marrero, in the Parish of Jefferson, on the west bank. The accident in question occurred at the Marrero ferry landing. This landing consists primarily of a steel pontoon barge measuring 65 feet in length and 25 feet in width. A steel vehicular ramp of truss type construction rests on and runs upward from the pontoon barge to the public roadway at the top of the levee. The shore side of the pontoon barge is maintained in a fixed position by mooring lines made fast to pile clusters, with the result that that side of the barge remains at the same level in the water, while the outboard side of the barge, to which the ferry is moored when taking on and discharging passengers and vehicles, is subject to the rise and fall of the river.

At the time in question, the river was high, so that the outboard side of the pontoon barge was higher than the inboard side which was affixed to the pile clusters. Consequently, when the ferry came alongside to discharge passengers and vehicles, the deck of the ferry was several inches lower than the deck of the pontoon barge.

To assist vehicles in boarding and debarking, a steel apron, which measured approximately 14 feet in length by 46 inches in width, was hinged to the outboard side of the pontoon barge and served to cover the gap between the deck of the ferry and the deck of the pontoon barge. The steel plate of the apron, as well as the steel deck of the pontoon barge, was smooth, except for some corrugations on the apron and some wornout asphalt which had been applied to the deck of the barge. The apron was supported by steel I-beams 6 inches in height, slightly tapered at the end where the apron rested on the deck of the ferry. As a result, vehicles coming off the ferry had to bounce up the slightly less than 6 inches to get on the apron, which itself was inclined upward rather precipitously to cover the gap between the ferry deck and the deck of the pontoon barge. Movable 2-inch by 12-inch planks of irregular length were placed adjacent to the lip of the apron, tending to reduce the height thereof. Movable wooden planks of similar dimensions were also employed on the deck of the pontoon barge to minimize the drop from the apron, at its hinges, to the deck of the pontoon barge.

The distance from the hinges of the apron on the pontoon barge to the lip of the apron on the vehicular ramp leading to the public road was 16 feet, 6 inches. On the down-river side of the vehicular track across its deck, the barge was fitted with a steel barrier separating the pedestrian and vehicular traffic. On the upriver end of the barge, which was approximately 10 feet from the vehicular track, there was no barrier of any kind. It was over this end that libellant's car plunged into the river. After this accident, the engineer for the Jefferson Parish Police Jury recommended that the respondent be required to place a barrier at the up-river end of the pontoon barge. At the time this trial was held, that recommendation had not been carried out.

On Sunday, May 17, 1953, libellant's deceased husband, with libellant as a passenger, drove his 1940 model Chevrolet sedan aboard the ferry Joseph Bisso, which was then moored at Napoleon Avenue, for the purpose of crossing the river to Marrero, Louisiana. In accordance with the usual practice, the automobile was parked on the open deck of the ferry, facing aft, and near the deckhouse which was on the stern of the vessel. Approximately twelve to fourteen other vehicles boarded the ferry for this same crossing. Upon arrival at the Marrero landing, the ferry was moored port side to and was secured fore and aft to the pontoon barge with manila lines. The apron was lowered and a 2-inch by 12-inch plank was placed on the ferry deck close to the lip of the apron. The weather was clear and dry and neither the ferry deck, the apron, nor the deck of the pontoon barge was wet, greasy or otherwise slippery, except from the smooth surface of the steel plating.

Libellant's vehicle was the last to leave the ferry, apparently because some difficulty was experienced in starting it. After the engine was started, the automobile was backed to a position on the fore deck of the ferry, forward of the apron, so that in order to approach the apron from this position, Byrd was required to cut his wheels sharply to the right. Instead of approaching the apron from this position slowly and using the power of his engine to get the front wheels of his vehicle onto the apron and up on the pontoon barge, Byrd, apparently realizing that his vehicle might again stall if he attempted to use the power of his engine to climb up and over the apron to the barge, approached the apron at a fast rate of speed in order that the momentum thereby created would assist the vehicle in its climb. His right front wheel struck the raised lip of the apron first, thereby accentuating the cut of his wheels to the right, throwing the car out of control and into the river. From the photographs in evidence, it appears that the right front wheel of the vehicle struck the raised lip of the apron a severe blow, which blow probably came just as Byrd was attempting to straighten out his wheels to approach the ramp. The force of this blow kept Byrd from straightening out his wheels and allowed the vehicle to continue to the right, across the 46-inch apron, up the barge 10 feet, and into the river. Libellant was rescued from the river by the ferry crew when she came to the surface of the water. Libellant's husband, however, was not seen again until his body was subsequently found.

Libellant contends that her husband's death and her injuries resulted from the negligence of respondent and the unseaworthiness of its landing facilities from which her husband lost his life. She claims damages for her own injuries under the general maritime law and for the death of her husband under the Louisiana wrongful death statute, LSA-C.C. art. 2315. Respondent denies the charge of negligence and unseaworthiness, and, in the alternative asserts that, in any event, libellant's husband's negligence contributed to his death and her injuries and, consequently, under the Louisiana law, her right to recover on either claim is thereby barred.

Before attempting to resolve the questions of negligence which this case presents, it may be well to determine under what law these questions should be decided. Libellant would have these questions determined under the general maritime law, whereas respondent would have the law of Louisiana applied. Actually, the general principles of law relating to negligence under both systems are the same. Under the law of Louisiana, however, contributory negligence is a complete bar to recovery of damages,¹ while under the general maritime law, the doctrine of comparative negligence applies.² Since, as will be shown, the negligence of Byrd, as well as respondent, contributed to Byrd's death, the question as to which system of law governs this case becomes a most important one.

In Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 205, the Supreme Court settled the question as to which law applies to maritime tort occurring within the borders of a state, at least insofar as cases not arising under state wrongful death statutes are concerned. There the Supreme Court held that since the basis of Hawn's action was a maritime tort, "a type of action which the Constitution has placed under national power to control," his right of recovery was rooted in federal maritime law and no state law may deprive him of that right. The issue there was identical with the issue here as to libellant's claim for her own injuries. It is true that in Pope & Talbot, the plaintiff was a ship repairman, whereas here libellant was a passenger on a ferry. Nevertheless, the basis of her action, like Hawn's, was maritime tort and there is nothing in Pope and Talbot which would limit its application to maritime tort relating only to ship repairmen.

The doctrine of Pope & Talbot, however, is not broad enough to cover maritime tort where recovery is sought under a state death statute. No death claim was involved in Pope & Talbot, although much is made by libellant over a statement in that case relating to state created remedies for maritime tort. That statement is, "Even if Hawn were seeking to enforce a state-created remedy for this right, federal maritime law would be controlling." Libellant, with some support from the First Circuit in O'Leary v. U. S. Lines, 215 F.2d 708, contends that the statement in Pope & Talbot means that even where a state wrongful death statute is used to supplement the general maritime law, the principles of the general...