Carr v. United States, 187.

• Decision Date: 27 December 1955
• Docket Number: No. 187.,187.
• Citation: 136 F. Supp. 527
• Parties: N. Clements CARR, Libellant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

136 F. Supp. 527

N. Clements CARR, Libellant, v. UNITED STATES of America, Respondent.

No. 187.

United States District Court E. D. Virginia, Newport News Division.

December 27, 1955.

COPYRIGHT MATERIAL OMITTED

Baird, White & Lanning, Norfolk, Va., Murray, Ford, West & Wilkinson, Newport News, Va., Catesby G. Jones, Gloucester, Va., for petitioner.

L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., David C. Wood, Admiralty Trial Atty., Dept. of Justice, Washington, D. C., John M. Hollis, Asst. U. S. Atty., Norfolk, Va., for respondent.

HOFFMAN, District Judge.

This action, originally instituted under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) on April 28, 1953, seeks recovery of damages alleged to have been sustained in May, 1952, to certain oyster grounds in the northwest prong of the Severn River, Gloucester County, Virginia, leased to N. Clements Carr from the Commonwealth of Virginia. The complaint alleges that salvage boats using grapnels or dredges were negligently operated by employees of the United States Government in such a manner as to destroy the oyster grounds. It is further alleged that the actions constituted a wrongful trespass.

The Government filed a motion to dismiss alleging (1) that the Governmental Agency was not identified, nor were the employees or the boats in question stated, and (2) that any damages alleged to have been caused by public vessels were excluded from the Federal Tort Claims Act, 28 U.S.C.A. § 2680(d). Plaintiff apparently concluded that there was merit to the second ground of the Government's motion, as a motion to transfer to the admiralty jurisdiction of the Court was granted by District Judge Hutcheson under an order dated February 4, 1954. Thereafter an amended complaint by way of libel was duly filed pursuant to an order of Court, with jurisdiction being alleged under "An Act For the extension of admiralty jurisdiction", June 19, 1948, c. 526, 62 Stat. 496, 46 U.S.C.A. § 740, the Public Vessels Act, 46 U.S.C.A. §§ 781-790, and the Suits in Admiralty Act, 46 U.S.C.A. §§ 741-752. The only other material addition in the libel is with respect to notice in writing of libellant's claim having been given to the Government through the Air Force at Langley Air Force Base, Virginia, and more than six months having expired with no payment having been made.

Respondent's answer reveals, and the evidence so discloses, that the following pertinent issues must be determined:

(1) Were the jurisdictional requirements relating to filing a claim as specified in 46 U.S.C.A. § 740, met by libellant?

(2) Do the facts indicate the performance of a necessary governmental function with no analogous private liability?

(3) Does the governmental duty to remove obstructions in navigable waterways apply to the specific facts of this case and, if so, to what extent?

(4) Under the peculiar facts of this case, does the rule with respect to "paramount right of navigation in navigable waters" preclude libellant's right of recovery?

(5) The negligence, if any, of respondent.

(6) The extent of libellant's damage to his oyster grounds.

At approximately 10 P. M. on April 28, 1952, an aircraft crashed in the northwest prong of the Severn River. There were no eye witnesses but several parties indicated their assumption that a plane had crashed because of what sounded like an explosion. An unidentified party apparently located a portion of the pilot's arm and telephoned Langley Air Base on May 6, 1952. A crash boat (63 feet) was sent to the scene but returned later that day and it is not seriously urged that this initial trip caused any damage to the oyster grounds. The men on this boat were successful, however, in identifying sufficient debris to convince them that the crash had occurred in this immediate area and, on the following morning at 7:17 A. M., a landing craft (LCM) left Langley for an approximate three-hour run to the Severn River. It returned at 5:02 P. M. and, in the interim, was engaged in dragging operations. Deducting travel time, the first day's operations consisted of approximately four hours on the scene. On the next day, May 8, 1952, the LCM left at 10:32 A. M. (with a small crane designated as a "cherry-picker" on board) and thereafter remained at the scene until 6:15 P. M. on May 10, 1952. The foregoing log entries are supplemented by the following information: On May 8 at 7:55 P. M. a call was received to furnish "chow" for the men, indicating about six hours and thirty minutes working time on that day; on May 9 the men started at daybreak and stopped at dark, thus indicating approximately twelve hours of operations during which time Navy divers worked about one hour and dragging ceased in the interim; on May 10 work was resumed at 8 A. M. and continued until 2:30 P. M. but the divers stayed down all day and presumably no dragging operations took place. Summarizing the foregoing, it would appear that dragging operations consumed approximately 20½ hours subject, however, to normal cessation of operations for the purpose of securing the debris located. In any event, it is fair to assume that at least 15 hours was devoted to the actual movement of the LCM with its grapnels.

The extent of the dragging operations with its consequent damage to the oyster bottom is in vigorous dispute. The LCM is a landing craft 56 feet in length, drawing 37¼ inches to her struts with a light load, propelled by two 225 H. P. Gray Marine engines, turning two propellers about 20 inches across, with the screws built into tunnels at the stern leaving approximately one-half of the blade exposed. The dragging equipment consisted of a 15 lb. grapnel and a smaller 5 lb. grapnel, the latter being used when over the wreckage to handle by hand. The Government witnesses confined the dragging operations (with one trip excluded) to an area 50 yards in width and 150 yards in length, or an area of 67,500 square feet. In the opinion of the Court the exactness of this testimony leads the Court to believe that this is an estimate for defense purposes only. Libellant's witnesses (one of whom testified that he was on board the LCM for three days) stated that the LCM covered practically the entire oyster ground area in a north-south direction with 15 to 20 trips on May 7; 40 to 60 trips on May 8; and 15 to 18 trips on May 9. The witness, Rowe, testified that he could see oysters and shells coming to the top of the muddy water through the wash, and that he advised the man operating the LCM that oyster grounds were being ruined, but was told that he "had his orders". This witness said that the landing craft touched bottom on many occasions and that the screws tore up the bottom, with no change of operations as the tide fell. Rowe stated that oysters and shells were observed coming to the top of the muddy water, through the wash, during the three days of active operation with the LCM crossing libellant's oyster grounds continuously. The main portion of the aircraft consisting of a part of the wings, a portion of the body, and the wheels, was recovered and dragged through the shell pile area previously established by libellant. The engine was never located and the man in charge of the LCM indicated that his orders were not to leave any parts of the plane, thereby making it necessary to continue dragging operations after recovering the portions of the aircraft hereinabove mentioned. Similarly, the pilot's body was not recovered, other than a portion of the hand making it possible to identify the pilot by fingerprints. It is obvious that the aircraft exploded at, or immediately prior to, the time it struck the water.

Several witnesses other than Rowe described the dragging operations but their opportunity for continuous observation was rather limited. Libellant testified that his first knowledge of the operations was upon receipt of a telephone call from his wife; that he first noticed the LCM dragging on a Tuesday; that on the following day libellant went to the LCM in a rowboat and advised the man in charge of operations that libellant's oyster grounds were being ruined, to which statement the man in charge suggested that libellant wait thirty (30) days and then put in a damage claim; that he latter ascertained that he had talked to a Sgt. Thomas.

Dealing specifically with the question of liability, the defense witnesses testified substantially as hereinafter stated. Major Gassler handled the aircraft accident investigation in behalf of Langley Air Force Base, but was not in charge of operations at the scene. He presented in evidence as defendant's Ex. 13, Air Force Regulation 62-14, which, in substance, states the general policy of the Air Force in such accidents to recover as much wreckage as possible, thereby assuring preventive measures for the future. In examining this regulation, it is extremely doubtful, however, that any reasonable interpretation of the same requires exhaustive dragging operations in situations involving totally "destroyed" aircraft (Sec. 18).

Master Sgt. Austin described the dragging operations but was not aboard the LCM at all times. He visited the scene via helicopter on two occasions believed to be May 8 and 9. He indicated the LCM operation was with one engine cut out and traveling at a speed of not more than one knot for the reason that too much speed would cause the grapnel line to part. The witness admitted the existence of stakes in the water of the Severn River in the vicinity of the crash, and his knowledge that these were "oyster stakes".

Sgt. Zemansky, apparently the "on scene" man in charge of operations, stated that on the first day the drag was from Locust Point to the extreme end of the Severn River; that the return trip was the reverse of the above; that the wreckage was thereafter located and the concentrated area of dragging operations was then confined to a space 50 yards in width and 150 yards in length. Three days were consumed in dragging this relatively...