Compania De Vapores Insco, SA v. Missouri Pacific R. Co.

• Decision Date: 28 May 1956
• Docket Number: No. 15770.,15770.
• Citation: 232 F.2d 657
• Parties: COMPANIA DE VAPORES INSCO, S.A., The Baloise Marine Insurance Co., Ltd., The Chrysler Corporation, Compania Importadora de Autos y Camiones, S.A., and Compania de Autos y Transportes, S.A., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company and Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F.2d 657 (1956)

COMPANIA DE VAPORES INSCO, S.A., The Baloise Marine Insurance Co., Ltd., The Chrysler Corporation, Compania Importadora de Autos y Camiones, S.A., and Compania de Autos y Transportes, S.A., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company and Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, Appellees.

No. 15770.

United States Court of Appeals Fifth Circuit.

April 20, 1956.

Rehearing Denied May 28, 1956.

Benjamin W. Yancey, New Orleans, La., Terriberry, Young, Rault, & Carroll, Edward S. Bagley, New Orleans, La., of counsel, for appellants.

C. Ellis Henican, Leonard B. Levy, Kalford K. Miazza, New Orleans, La., Dufour, St. Paul, Levy & Marx, Miazza & Drury, Henican, James & Cleveland, New Orleans, La., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

This appeal is taken from the district court's judgment exonerating appellees, as common carriers, from any liability for damage to 150 Chrysler Corporation automobiles, owned and insured by appellants, which had been shipped from Detroit, Michigan, to Westwego, Louisiana, and were being stored "on free time" in appellees' Westwego warehouses awaiting export by ocean carrier to Cuba on April 4, 1952, when a severe windstorm struck the area, causing very extensive damage to the warehouses and the cars stored within.

The ultimate factual issue of whether the damage to the shipment was caused by an "act of God", within the provision of the bill of lading exempting appellee-carriers from liability,¹ was tried to the district court, sitting without a jury, and the court relieved appellees from liability upon subsidiary findings that (1) the April 4, 1952 weather disturbance was either "a small tornado" or a "line squall with tornadic characteristics", and was not the type disturbance which builders and architects "usually anticipate" in the design and construction of buildings in this area, and (2) the warehouses were in "reasonably good condition" prior to the storm and a "reasonably prudent inspection" revealed no "apparent deterioration", so that there was no negligent maintenance of the warehouse facilities by appellees contributing to the damage which would justify the recovery sought.²

Appellants have invoked our duty of an extensive and laborious factual review by candid assertions that any "fair reading" of this voluminous record will reveal the trial court's findings as "clearly erroneous", and will prompt our reversal upon a "definite and firm conviction that a mistake has been committed", within the rule of McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, and United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. In effect, they insist that the trial court, while acknowledging the guiding principles, has failed in their application to the instant proof to exact that high obligation from common carriers to safeguard property entrusted to their care which the authorities require.

Appellees insist, however, that any disturbance of the judgment would be inapropos, because appellants admittedly do no attack the rule relied upon;³ and the contested findings, making due allowance for the trial court's credibility advantage in resolving conflicting testimony, are amply supported by the proof.

We agree with appellants and the district court that appellees, in order to exonerate themselves from liability for the damage, were required to prove not only that the "line squall" constituted an "act of God" within the exemption from liability provision of their bill of lading, but also that they were guilty of no negligence in the construction and maintenance of the warehouses which contributed to causing the damage.⁴ For by its very definition, an "act of God" implies "an entire exclusion of all human agency" from causing the loss or damage.⁵ Both parties rely mainly upon Louisiana decisions as controlling, appellants as supporting their contention that appellees had the burden of proof throughout, while appellees interpret them as requiring exoneration upon proof of an "act of God" within the exemptive proviso of their bill of lading.⁶ We think it unnecessary, however, for us to resolve this asserted conflict in local law, for notwithstanding any contrary language in the Supreme Court of Louisiana's opinion in the National Rice Milling Co. case, supra, it seems to us that the issue of which party properly has the burden of proof to sustain a recovery under this federal statute, Carmack Amendment, Title 49 U.S.C.A. § 20 (11), is governed by federal law, rather than by any state rule purporting to fix the onus of proof.⁷

As heretofore stated, however, we think appellees were properly charged with the burden of proof throughout,⁸ but in any event we regard this inquiry as purely academic upon this record, for decision here does not turn upon the burden of proof, but upon whether the record as a whole supports the district court's finding that appellees were free from negligence contributing to cause the damage, or whether that finding should be reversed as "clearly erroneous."

Almost any inclemency of weather causing property damage is an "act of God," in a limited sense, so that the problem is not solved by simply relying upon the conflicting testimony of experts as to whether this particular disturbance should technically be characterized as a "line squall", or "line squall with tornadic characteristics." From a realistic standpoint, we think decision in this type controversy should turn not upon technical, meteorological definitions, but upon the issue of whether the disturbance causing the damage, by whatever term it is described, is of such unanticipated force and severity as would fairly preclude charging a carrier with responsibility for damage occasioned by its failure to guard against it in the protection of property committed to its custody.

Thus far, this Court is substantially in agreement with the district court as to the controlling principles involved. The majority, however, are convinced that this record presents for review only a routine factual dispute, in which the district court's acceptance of that portion of the proof tending to support its conclusion that the damage resulted solely from an act of God, within the exemption from liability provision of the bill of lading, and without contributing fault upon appellees' part, is not reversible as "clearly erroneous." Rule 52(a), Fed. Rules Civ.Proc., 28 U.S.C.A. Judge Rives is convinced that the more credible and convincing proof fails to show this weather disturbance was of such unanticipated and uncommon force and severity for the New Orleans area as would justify exonerating appellees, with their high obligation as common carriers toward protection of property in their custody, from liability based upon their contributing fault through the inadequate construction and negligent maintenance of these warehouse facilities prior to the storm, which he thinks is revealed by the testimony and particularly by the photographic proof. He would, therefore, reverse the district court's findings exonerating appellees from liability in this instance as "clearly erroneous."⁹

In view of the majority conclusion, the judgment is

Affirmed.

APPENDIX

Appellees' weather expert, Nash C. Roberts, Jr., testified, in part, that there was a definite relationship between the formation of line squalls, thunderstorms, and tornadoes, all these weather disturbances being precipitated by unstable atmospheric conditions; that tornadoes or cyclones are generally considered extreme low pressure systems with a counterclockwise rotation, and often reach a velocity of 300 or 400 miles per hour; that "line squalls" are composed of a series of thunderstorms of severe velocity and often have tornadic potential, though a "line squall" and "a tornado", meteorologically speaking, are not the same; that "line squalls" usually have wind velocity of less than 75 miles per hour, though occasionally a severe line squall will get up to from 90 to 120 miles per hour, whereas tornadic velocity has been recorded as high as 500 or 600 miles per hour; that he recalled the weather disturbance on April 4, 1952, and had heard at that time the "characteristic roar that is associated with tornadoes"; that he inspected the damage the following morning near the Huey Long Bridge and considered it "devastating", and characteristically similar to that caused by a tornado, leaving a path "roughly a mile wide * * * that was terribly damaged"; that he considered the line squall as displaying "tornadic characteristics" because there was evidence of counterclockwise rotation from the fact that the Gretna radio station tower was somewhat twisted and bent, and the debris from the Huey Long Bridge was also "rolled" to some degree; and in addition there was evidence of "skipping" along its path; that taking all factors into consideration, he had reached the conclusion that the maximum velocity of the wind in the direct path of damage actually exceeded 100 miles per hour; that (on cross-examination) he understood the Weather Bureau of New Orleans had "officially classified this ('52 disturbance) as a (line) squall and not * * * a tornado", and that its report stated that it did not cut a path "in the sense a tornado cuts a path", but that he did not agree with the report for the reasons previously stated, viz.: because of the extensive damage within a well defined one mile area, with some evidence of counterclockwise rotation, explosive damage, sharp dips and rapid rises on barographs not even in direct path of damage, etc.; that he knew that the weather report was made by a climatologist after making an investigation, but that he entertained a different professional opinion from that weather bureau employee (Mr. Ralph Sanders) as to the severity of the...