Canadian Pac. (Bermuda) Ltd. v. U.S., 75-1199

• Decision Date: 12 July 1976
• Docket Number: No. 75-1199,75-1199
• Citation: 534 F.2d 1165
• Parties: CANADIAN PACIFIC (BERMUDA) LIMITED, Plaintiff-Appellee, v. UNITED STATES of America, Defendant Third Party Plaintiff-Appellant, v. P. C. ELDEMIRE, Third-Party Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1165

534 F.2d 1165

CANADIAN PACIFIC (BERMUDA) LIMITED, Plaintiff-Appellee, v. UNITED STATES of America, Defendant Third Party Plaintiff-Appellant, v. P. C. ELDEMIRE, Third-Party Defendant.

No. 75-1199.

United States Court of Appeals, Fifth Circuit.

July 12, 1976.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Rex E. Lee, Asst. Atty. Gen., Thomas L. Jones Dept. of Justice, Civ. Div., Washington, D. C., for U. S.

Joseph P. Milton, Jacksonville, Fla., for Canadian Pacific Ltd.

Appeal from the United States District Court for the Middle District of Florida.

Before THORNBERRY and AINSWORTH, Circuit Judges, and HOFFMAN, ^* District Judge.

AINSWORTH, Circuit Judge:

This case grows out of the grounding of the M/V N. R. CRUMP at "Short Cut Turn" in the St. Johns River, a navigable waterway in Florida, maintained by the United States Army Corps of Engineers. The owner of the vessel, Canadian Pacific (Bermuda) Limited (Canadian Pacific), filed this complaint for damages against the United States under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq. ¹ alleging negligence of the United States acting through the Corps of Engineers in the proper maintenance of the waterway. After a nonjury trial, the District Court found that the negligence of the defendant was the sole proximate cause of the grounding and awarded judgment in favor of Canadian Pacific and against the United States in the amount of $32,283. The Government appeals.

The CRUMP is a diesel-powered vessel 597 feet in length with a maximum breadth of 93 feet. On the morning of December 6, 1971, after loading a cargo of phosphate, the CRUMP departed from her berth at Jacksonville Bulk Terminal on the St. Johns River and proceeded eastward toward the Atlantic Ocean. The departure was scheduled to coincide with the maximum high tide of the river. The forward draft after loading was 33 feet 6 inches; the stern draft, 34 feet 5 inches. ² Captain Barry G. Roberts, master of the vessel, was on the bridge with Captain Eldemire, a member of the St. Johns Bar Pilot Association, who was piloting the vessel. As the CRUMP navigated through White Shells Cut, a section of the channel just west of Short Cut Turn, the dredge BILL BAUER was sighted close to the center line of the channel. Captain Eldemire radioed a request to the dredge and received permission to pass to its port or north side. The passing was accomplished by the dredge swinging south and the CRUMP swinging slightly north of the center line of the channel. After the course of the vessel was steadied and within five minutes after passing the dredge, the CRUMP came to a stop, grounding on a shoal or sandbank in Short Cut Turn.

Short Cut Turn is a segment of the channel forming a bend in St. Johns River, and is approximately .4 miles long. As the river turns the bend it flows generally eastward toward the Atlantic Ocean. The channel at Short Cut Turn is 480 feet wide, and for purposes of plotting navigational charts is divided vertically into four imaginary 120-foot sections designated from north to south, respectively, as "left outside," "left inside," "right inside" and "right outside" quarters. Horizontally, it is divided from east to west into Cut 17, Cut 18 and Cut 19. The District Court found that the grounding of the CRUMP occurred in the right inside quarter of the channel in Cut 18, with her port side parallel to and on the center line of the channel.

In June of 1970 the United States Corps of Engineers awarded a dredging contract for the purpose of deepening a 10.7-mile section of the St. Johns River channel from a 34-foot project mean low water depth to 38 feet, and dredging commenced shortly thereafter. Short Cut Turn, where the grounding occurred, is situated in the 10.7-mile section. In August 1971, the Corps of Engineers took sounding surveys of Short Cut Turn including the area known as Cut 18. The District Court found that the August surveys revealed that a shoaling condition was extending at that time from the south edge of the channel into approximately 30 per cent of the entire south side of the channel in Cut 18, ³ and that the Corps of Engineers failed to send the results of these surveys to the St. Johns Bar Pilots Association. ⁴

The District Court summarized three acts of omission by the Corps of Engineers which it found to be the proximate cause of the grounding: failure to advise the proper persons of the known shoaling condition discovered by the August 1971 soundings; failure to resurvey the south side of Short Cut Turn; failure to dredge Short Cut Turn to eliminate the dangerous shoaling condition.

On this appeal the Government's contentions are as follows:

1. Assuming, arguendo, that the Government has any duty to sound and dredge the channel of a navigable waterway on a regular basis knowledge of a shoal in one location does not impute to it knowledge of a possible shoal in another location and require it thereafter to immediately dredge this location of the known shoal or to sound both that and other locations until dredged.

2. The Government is under no duty nor has it assumed a duty to sound or dredge a navigable channel at any particular time or place.

3. The grounding of the CRUMP was not caused by the Government's failure to disseminate the information contained in the August sounding surveys.

On the other hand, Canadian Pacific, as appellee, contends that the trial court's findings of fact and conclusions of law are supported by the record and the law, are not clearly erroneous, and should be affirmed.

Implicit in the District Court's finding is the existence of a legal duty or obligation owed by the Corps of Engineers to Canadian Pacific under the existing circumstances. Therefore, the extent of that duty must be explored before a determination can be made in regard to the correctness of the District Court findings.

The Suits in Admiralty Act, under which this complaint was filed, equates the standard of duty owed by the Government to that of a private person in like circumstances. ⁵ We have held this standard requires the use of due care. De Bardeleben Marine Corp. v. United States, 5 Cir., 1971, 451 F.2d 140, 149.

The duty of a private owner of a navigable canal in regard to obstructions was considered in Guinan v. Boston, Cape Cod & New York Canal Co., 2 Cir., 1924, 1 F.2d 239, where the court held:

Inasmuch as the Canal Company is not an insurer that its canal is at all times in such condition as to render navigation thereon safe, and as it is only subjected to the duty of taking reasonable care that those allowed to navigate it may do so without danger, the burden of proof is on libelants to show a breach of this duty.

The libelant, as pointed out, charged the Canal Company with negligence, because it permitted the canal to remain in a condition unsafe and unfit for the passage of vessels. But there is not the slightest support in the evidence for any of these allegations. The Canal Company certainly did not 'permit' the canal to 'remain' in an unsafe and unfit condition; for it was without knowledge up to the time of the accident that such a condition existed. . . . Whatever may have been the obstruction, it clearly was not a permanent one. No one saw it, or knew of the existence of any obstruction at that point, until the accident, and although, after the accident, careful soundings were made, no indications of any obstruction could be found. This burden of showing negligence, or want of due care, on the part of the respondent, the libelants, in our opinion, did not sustain.

1 F.2d at 244, 245.

In De Bardeleben Marine Corp. v. United States, supra, damages were sustained when the anchor of a barge ruptured a pipeline submerged in navigable water. We held that there was no breach of duty by the Coast Guard for the dissemination of a Notice to Mariners containing false information (it did not show the existence of the pipeline) upon which a pilot relied, where the Coast Guard published subsequent Notices showing the position of the pipeline. We found that the Government's obligation ceased at the time in which a prudent shipowner-navigator would have reasonably received the new Notices. 451 F.2d at 149.

The precise question before us, that is, the extent of the duty owed to navigators by the Corps of Engineers in regard to the existence of shoaling conditions in navigable waters, to our knowledge, has not been answered by the Supreme Court or this circuit. ⁶

In Indian Towing Company v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), relied on by Canadian Pacific, liability was imposed on the Government under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq., ⁷ for damages sustained by a tug grounding on Chandeleur Island because of the negligent operation by the Coast Guard of a lighthouse, whose light became extinguished and was not functioning. The Court noted that "it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his 'good Samaritan' task in a careful manner. Id., 350 U.S. at 64-65, 76 S.Ct. at 124. Applying the standard of due care, the Court held:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning.

Id., 350 U.S. at 69, 76 S.Ct. at 126-127.

Applying the principles learned in De Bardeleben Marine and Indian Towing Company, supra, we note that in the present case, the Government had no prior knowledge of the existence of the shoal which caused the accident and therefore could not and did not mislead. Consequently, no...