Everitt v. United States

• Decision Date: 16 April 1962
• Docket Number: Civ. A. No. 1937.
• Citation: 204 F. Supp. 20
• Parties: Joe EVERITT, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

204 F. Supp. 20

Joe EVERITT, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 1937.

United States District Court S. D. Texas, Corpus Christi Division.

April 16, 1962.

Ellis L. Clark, Rockport, Tex., and Luther Jones, Jr., Corpus Christi, Tex., for plaintiff.

Woodrow Seals, U. S. Atty., and Jack Shepherd, Asst. U. S. Atty., Houston, Tex., and Alan Raywid, Atty., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for defendant.

GARZA, District Judge.

This case was tried by the Court on January 29, 1962. At the outset of the trial, the Government was insisting that the Court pass on their motion to dismiss the complaint since it did not state a cause of action within the jurisdiction of this Court because the complaint was based upon the alleged failure of a Federal agency, namely, the Corps of Engineers, to perform a discretionary function or duty. The Court carried the question along with the case and agreed to let counsel submit briefs at the conclusion thereof when this Court found the Government negligent and awarded damages to the Plaintiff.

A brief summary of the evidence before the Court shows that the Corps of Engineers which maintains the intercoastal canal running through Aransas Bay, in order to properly survey the channel and maintain its proper charter dimensions, established a "Reference Line" 200 feet from the eastern perimeter of the channel. The said Reference Line consists of a series of creosote logs six inches in diameter, twenty feet in height, and placed at approximate intervals of 1000 feet. The pilings are tagged and numbered and have red reflector buttons around their tops.

Aransas Bay has a soft mud bottom. Barges in lengthy tows proceeding through the channel, when hit by the wind, will occasionally push over or break off the Reference Line pilings, leaving them partially submerged.

This Court found, after hearing all the evidence, that Piling No. 871 had been so struck and submerged, and had been submerged for a period in excess of six months; that Plaintiff's shrimp boat which traveled all over Aransas Bay and not only the intercoastal canal, had in fact collided with said submerged piling; that the Corps of Engineers was negligent in not removing the submerged piling; that the Plaintiff was also negligent in not crossing the Reference Line close to a standing piling; that his negligence caused fifty per cent of the damages; that the sunken vessel was worth $3,000.00 before the collision and had a $100.00 salvage value after the collision; and that the Plaintiff was, therefore, entitled to damages in the sum of $1,450.00.

Briefs have been submitted to this Court on the question of jurisdiction.

The Government's main contention is that since the Plaintiff has brought this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) et seq., this action cannot be maintained under said Tort Claims Act for the reason that after the Corps of Engineers had put in place the Reference Line pilings, it had decided to survey this line once a year; and since the evidence before the Court is that the piling had been submerged for only a period in excess of six months, to hold the Corps of Engineers...