Empire Seafoods, Inc. v. Anderson

• Decision Date: 09 December 1968
• Docket Number: No. 24536.,24536.
• Citation: 398 F.2d 204
• Parties: EMPIRE SEAFOODS, INC., Appellant-Appellee, v. Carl R. ANDERSON et al., Appellees-Appellants. Carl R. ANDERSON and Gerritt A. Gates, Appellants-Appellees, v. EMPIRE SEAFOODS, INC., Appellee-Appellant. CLEARY BROS. CONSTRUCTION COMPANY, Appellant-Appellee, v. EMPIRE SEAFOODS, INC., et al., Appellees-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 204 (1968)

EMPIRE SEAFOODS, INC., Appellant-Appellee, v. Carl R. ANDERSON et al., Appellees-Appellants.

Carl R. ANDERSON and Gerritt A. Gates, Appellants-Appellees, v. EMPIRE SEAFOODS, INC., Appellee-Appellant.

CLEARY BROS. CONSTRUCTION COMPANY, Appellant-Appellee, v. EMPIRE SEAFOODS, INC., et al., Appellees-Appellants.

No. 24536.

United States Court of Appeals Fifth Circuit.

March 18, 1968.

As Modified on Rehearing Denied June 27, 1968.

Rehearing Denied July 30, 1968.

Certiorari Denied December 9, 1968.

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Richard F. Ralph, Harry W. Lawrence, Miami, Fla., Ralph & Anderson, Miami, Fla., of counsel, for appellant.

Roland R. Parent, Smathers & Thompson, Miami, Fla., Attorneys for Appellant-Appellee, Cleary Bros. Construction Company, for Cleary Bros.

Robert E. Hathaway, Sam D. Phillips, Phillips & Hathaway, West Palm Beach, Fla., for appellees Carl R. Anderson and Gerritt A. Gates.

Before JONES, WISDOM and DYER, Circuit Judges.

As Modified on Rehearing and Rehearing En Banc Denied June 27, 1968.

Rehearing En Banc Denied July 30, 1968.

Certiorari Denied December 9, 1968. See 89 S.Ct. 449.

DYER, Circuit Judge:

Because the tip of the starboard outrigger of Empire's¹ shrimper "Bora Bora" struck the leaf of a bascule bridge under construction by Cleary, which spanned the channel of the Florida Intercoastal Waterway, the manual crank used to raise the leaf was violently reversed causing injury to its operators, Anderson and Gates, for which they recovered damages reduced by the comparative negligence rule against Empire, who in turn recovered one-half from Cleary in the Admiralty Court below. Empire recovered, under the divided damages rule, for the damages suffered by its vessel. Nobody is happy, and everybody has appealed.

Empire asserts that it should have been exonerated from fault or its liability limited; failing that, its cross libel against Anderson for indemnity should have been sustained; and in any event the damage to the Bora Bora should not have been borne equally by Empire and Cleary, but should have been divided in fourths because Anderson, Gates, Cleary and Empire were all at fault, and by the same token Anderson and Gates' damages should have been divided by thirds instead of by halves.

Cleary complains of error in admitting into evidence the depositions of Anderson and Gates taken prior to the time Cleary was impleaded as a party; denies negligence or proximate cause; disputes its responsibility to contribute to or indemnify Empire for any part of claimants' damages; and finally agrees with Empire that the divided damages rule was not correctly applied by the District Court.

Anderson and Gates object to the decree entered because it does not permit them to pursue and satisfy one-half of their damages directly against Cleary, but requires them to collect only from Empire and gives the latter a recovery over against Cleary for one-half of what Empire has paid to claimants.

The court below made detailed findings of fact and conclusions of law. The facts may be capsulated, enlarging upon them as need be in the discussion that follows.

Empire was the owner of the shrimp boat Bora Bora, captained and navigated by Thomas, who took delivery of her at the builder's yard in St. Augustine, Florida, for a voyage to Brownsville, Texas. While proceeding southward on the Intercoastal Waterway the tip of the starboard outrigger collided with the westerly leaf of a new bridge being constructed in an east-west direction across the north-south Intercoastal Waterway north of Fort Pierce, Florida. The east pier of the bridge was not fully constructed, and no easterly leaf of the bridge had been installed. There was no electrical machinery operable, and the westerly leaf was raised and lowered by the bridge steel crew (Anderson, Gates and two others) by means of cranks located inside the westerly pier from which the view to the north was practically blocked.

Cleary was constructing the bridge for the State of Florida and was the employer of Anderson and Gates, both of whom received from Cleary Florida Workmen's Compensation and medical benefits in respect to their injuries.

Empire filed a petition for exoneration or limitation.² Anderson and Gates answered and filed claims. Empire impleaded Cleary.³ Empire also filed a cross-libel against Anderson.

The District Court determined the amount of damages due to Anderson and Gates, reduced their recovery by 20% under the comparative negligence doctrine, and required neither to contribute to the injuries and damage of the other. The court further provided in the decree that Anderson and Gates should recover solely against Empire and Empire was to recover one-half that amount from Cleary after payment. Decree was entered against Cleary for one-half the damage to the Bora Bora. The cross libel of Empire against Anderson was dismissed by the court. Empire does not appeal from this dismissal.

Empire's Petition for Exoneration or Limitation

Empire's petition for exoneration, based on an asserted lack of negligence on its part, was properly denied. The evidence, as discussed below, fully supports the District Court's finding of negligence attributable to Empire.

The Bora Bora was an oil screw vessel of 74.48 gross tons with a registered length of 65.9 feet, beam of 18.2 feet and draft of 8.3 feet. Aft of the enclosed pilot house and attached to the mast were dual steel outriggers which were customarily carried in an upright position, except when actually engaged in fishing. From the pilot house the tip of the outriggers could not be seen. In fact, if the captain looked aft through the house he could see only a small portion of the outriggers where they were affixed to the mast about 4½ feet above the deck level.

On the day of the collision Thomas knew nothing about the Florida Intercoastal Waterway and painfully little either about the vessel he was navigating or the conditions under which it was being operated. At one time he described the outriggers as being 26 feet and another time as 28 feet in height. With reference to the distance from the deck to the place where the outrigger was hinged to the mast he vacillated between 50 and 54 inches. His estimate of the vessel's freeboard was six feet, varying more or less by a foot. Thomas estimated 40 feet of clearance under the leaf of the bascule bridge on the course he was following. Taking his maximum freeboard of 7 feet, distance from deck to hinges on the mast where the outriggers were affixed as 4½ feet, and the height of the outriggers as 28 feet, the tip of the outriggers would be 39.5 feet, leaving a clearance of 6 inches. On the other hand, taking the builder's estimate that the outriggers extended above the deck 27.5 feet, and the freeboard was 5 feet (the minimum approximated by Thomas) the tip of the outriggers could have been 32.5 feet above the water leaving a clearance of 7.5 feet. But of course there was no clearance at all. From this it is self-evident that Thomas had no accurate knowledge about the height of the outriggers and the distance needed for clearance.

Thomas thought that the vessel's beam was 16 instead of 18.2 feet. He didn't know the direction of the wind or whether the tide was high, low, ebb or flow. Actually, the wind was from the north and the tide was running with the vessel. The only other member of the crew was his wife who was a beautician by trade. Thomas didn't know where she was at the time of the accident and hadn't seen her for at least 2½ miles before the collision with the bridge. Whatever she was doing, wherever she was and however incompetent she may have been, the fact is that she did not act as a lookout. In the particular circumstances of this case, i. e., the captain's unfamiliarity with the Intercoastal Waterway and the many bridges over it and the location of the outriggers aft of the pilot house where they could not be seen by Thomas, the District Court correctly found that the failure to provide a lookout constituted negligence.

Approximately one hundred feet north of the bascule bridge under construction was an existing swing draw bridge attended by a tender. When closed the swing draw bridge extended east-west, parallel to the bascule bridge; when opened it turned in a counter-clockwise direction until the roadway extended in a north-south direction. At the time in question vessels could pass only on the westerly side of the open bridge.

On August 28, 1963, the Bora Bora approached the bridges from the north during morning daylight hours at a speed of ten miles per hour. The weather was clear and visibility good. While five miles away Thomas observed both bridges. At approximately 2½ miles he saw that the bascule bridge was under construction. When Thomas was between a quarter to a half mile north of the swing bridge he signalled for the bridge to open and reduced his speed. The tender on the swing bridge signalled the Bora Bora to stop. The draw of the bascule bridge was clearly visible at the time and the westerly leaf was somewhere between horizontal and a 45 degree angle up from horizontal. Anderson, Gates and two others who were installing the roadway on this leaf cleared their tools when the Bora Bora was about 1/3 of a mile away and went to the machine room where they began to raise the leaf manually. At no time, however, did Thomas observe the leaf being elevated.

After an exchange of signals with the tender on the swing bridge and while Thomas was still several hundred feet to the north, the swing bridge opened and he passed through. About this time Thomas estimated that between the water and the leaf of the bascule bridge he had approximately forty feet of clearance. He knew that the clearance under the bridge would be close but proceeded nevertheless, although at the speed he was then going he said he could have stopped within 72 feet. At this same time the tender on the swing...