Coleman v. Jahncke Service, Inc.

• Decision Date: 16 February 1965
• Docket Number: No. 21106.,21106.
• Citation: 341 F.2d 956
• Parties: Bradford COLEMAN, Appellant, v. JAHNCKE SERVICE, INC., Appellee. The HOME INSURANCE COMPANY et al., Appellants, v. The GREATER NEW ORLEANS EXPRESSWAY COMMISSION and WinnDixie Louisiana, Inc., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

341 F.2d 956 (1965)

Bradford COLEMAN, Appellant, v. JAHNCKE SERVICE, INC., Appellee.

The HOME INSURANCE COMPANY et al., Appellants, v. The GREATER NEW ORLEANS EXPRESSWAY COMMISSION and WinnDixie Louisiana, Inc., Appellees.

No. 21106.

United States Court of Appeals Fifth Circuit.

February 16, 1965.

Roger H. Fellom, William S. Stone, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellants.

Cornelius G. Van Dalen, Jack G. Carinhas, Jr., New Orleans, La., for appellee Jahncke Service, Inc.

Donald L. King, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for appellee, WinnDixie Louisiana, Inc., Robert B. Acomb, Jr., New Orleans, La., of counsel.

N. Buckner Barkley, Jr., Charles E. Lugenbuhl, William McM. King, Lancaster, King & LeCorgne, Lemle & Kelleher, New Orleans, La., for The Greater New Orleans Expressway Commission.

Before RIVES and WISDOM, Circuit Judges, and MORGAN, District Judge.

WISDOM, Circuit Judge.

These appeals present three questions: (1) may petitioner Jahncke limit liability under 46 U.S.C. § 183; (2) is a direct action available against Jahncke's insurer, Home Insurance; (3) is the claim of appellant Coleman barred by laches. Lurking in the fog is Maryland Casualty Co. v. Cushing,¹ a grisly spectre of undefined size and shape. Putting our trust in the trial judge's compass wherever the visibility is poor, we affirm the judgment of the district court.

Early on the morning of January 27, 1960, in heavy fog, a barge in tow of Jahncke's tug Claribel hit a support piling of the Lake Pontchartrain Causeway, 3.4 miles south of the north draw. Two spans of the causeway collapsed. A Winn-Dixie trailer-truck, which happened to be crossing the causeway at the point of impact, was damaged and lost some of its freight. The Greater New Orleans Expressway Commission, owner and operator of the causeway, filed a libel in rem against the Claribel, and a libel in personam against Jahncke. The Commission joined Home Insurance as a defendant under the Louisiana direct action statute.² Winn-Dixie also brought a direct action against Home Insurance. February 3, 1960, Jahncke filed a petition seeking exoneration or, alternatively, limitation of liability.³ Jahncke later withdrew its claim for exoneration, maintaining only the petition for limitation. The limitation proceeding was consolidated for trial with the direct actions. On the day of the trial, Bradford Coleman, the driver of the Winn-Dixie truck, tried to assert a claim against Jahncke for alleged traumatic neurosis. The district court, in a written opinion, (1) denied Jahncke the right to limitation. (2) entered an interlocutory decree holding Jahncke and Home Insurance liable to Winn-Dixie, and (3) dismissed Coleman's claim as barred by prescription and laches. 222 F.Supp. 521.

I.

The Limitation Act is a seagoing qualification of the doctrine of respondeat superior. Under 46 U.S.C. § 183, the liability of the owner of a vessel "for any loss, damage, or injury by collision * * * incurred, without the privity or knowledge" of the owner shall not exceed the value of the owner's interest in the vessel and its freight. If the owner is chargeable with privity or knowledge, he may not limit.⁴ Where, as here, the owner is a corporation, privity or knowledge attributable to management (or those to whom the authority of management has been delegated) binds the corporation.⁵ The petitioner in limitation, as the prime mover and the party best able to do so, bears the burden of proving lack of privity or knowledge.⁶ But the burden of proving negligence stays with the libellants.⁷

The district court found the Claribel unseaworthy in having neither a properly calibrated compass nor a crew competent to use one. The court charged the Claribel's unseaworthiness to Jahncke, and held that it was a proximate cause of the collision. Jahncke insists that the sole proximate cause was the failure of the Claribel's pilot, one D. C. Brister, to follow standing company instructions to drop anchor in heavy fog.

The evidence shows that the Claribel, pushing a big empty barge, headed north into Lake Pontchartrain from the Industrial Canal at New Orleans about midnight, January 27. Its written orders were to pick up two loads of reef at a dredge on the north shore of the lake and bring them back to one of Jahncke's slips, "weather permitting". To reach the dredge, the Claribel had to pass through the north drawbridge of the causeway, a twenty-four mile concrete bridge running north-south across the center of Lake Pontchartrain. Accordingly, Captain Carver, the ship's master, set out at about seven miles an hour on a compass course of 355 degrees. The afternoon weather report had been favorable. There was a haze over the lake, but no fog. As the tug and its tow left the canal, Captain Carver was relieved at the wheel by the pilot, Brister. Carver's parting instructions were that Brister should call him to help drop anchor if fog should come up.

Brister maintained course and speed. The weather stayed the same until about 1:10 a. m., when pea-soup fog rolled in. Despite instructions, Brister turned his search-light into the fog, reduced speed to about four miles an hour, then turned the light off and "was looking around to see what I could see". Apparently he could not see the causeway; five minutes later he ran into it.

Testimony focused on the accuracy of the Claribel's compass. It appears that the compass had not been checked or calibrated since it was installed in 1956. Electric are welding, which affects the compass of a steel-hulled vessel, had been used on the Claribel shortly before the accident. In addition, several witnesses testified that the size, position, and number of barges in tow of a tug influence the behavior of its compass. Neither the captain nor the pilot of the Claribel had the slightest understanding of the workings of a compass, or how to compensate for the factors that affect its performance. Jahncke urges that, despite the inaccuracy of the Claribel's compass and the incapacity of its crew, the fact remains that 355 degrees had been shown, over the course of innumerable trips between the Industrial Canal and the north drawbridge, to be the proper setting for that particular compass on that particular haul. Jahncke argues that by starting from the heading of 342-½ degrees (the true course between the Industrial Canal and the north draw); subtracting six degrees (the easterly magnetic "variation" at Lake Pontchartrain); adding seventeen degrees (the westerly "deviation" of the Claribel's compass); and throwing in 1½ degrees for westerly "drift"; we are driven ineluctably to the Claribel's proper compass course of 355 degrees. Petitioner's mathematics are beyond reproach. But they are in no sense proof that the deviation of the Claribel's compass, at that particular time, despite are welding and the tow, was in fact seventeen degrees. As for the 1½ degrees of "drift", we have found no evidence of it in the record. Furthermore, the fact that on one of three test runs made by Jahncke after the accident the compass course used was 360 degrees (allegedly because of wind), and the fact that Captain Carver admitted that he now runs a course of 358 degrees, cast a long shadow of implausibility over petitioner's theory.

The evidence generously supports the district court's finding that shortcomings of crew and compass were a proximate cause of the accident, though not the sole proximate cause. The more difficult question, as we see it, is whether the standard of care on Lake Pontchartrain requires that a vessel such as the Claribel have an accurate compass and a crew that knows how to use it; or, more properly, whether such a vessel without these accouterments is unseaworthy. Petitioner points out that the Coast Guard does not require tugboat masters on the lake to be licensed navigators. The record indicates that masters who understand even the rudiments of compass compensation are the exception rather than the rule. The evidence justifies, indeed requires, an inference that practices regarding compass repair and calibration are casual on those waters, possibly because most navigation on Lake Pontchartrain is done by dead reckoning, when visibility is good. But the evidence also establishes that visibility is often not good. Lake Pontchartrain is large and shallow, subject to sudden weather changes, treacherous squalls, and frequent fog. Commercial traffic is heavy, and the barges that ply the lake are big and unwieldy. Petitioner's own compass expert, Mr. Irwin Williams, testified that anyone who navigates on Lake Pontchartrain should have a "proper compass" and should understand how to use it. Libellants' expert, Captain E. R. Vorenkamp, said that, in his opinion, people operating tugs on the lake should have more or less the qualifications required of offshore navigators, and should certainly know how to check a compass for changes in deviation.⁸ In light of this testimony, we cannot say that the district court's finding of unseaworthiness is unwarranted, despite the laxity of prevailing custom on Lake Pontchartrain. Usage is not, and should not be, an inevitable standard. Judge Learned Hand put the proposition sharply:

"There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. citations omitted. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." The T. J. Hooper, 2 Cir.1932, 60 F.2d 737, 740, cert. den\'d, Eastern Transportation Company v. Northern

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