First Nat. Bank of Chicago v. Material Service Corp.

• Decision Date: 01 June 1979
• Docket Number: 78-1832,Nos. 78-1831,s. 78-1831
• Citation: 597 F.2d 1110
• Parties: The FIRST NATIONAL BANK OF CHICAGO, Executor of the Will of Wayne J. Hart, Deceased, Plaintiff-Appellee, Cross-Appellant, v. MATERIAL SERVICE CORPORATION, a corporation, Defendant-Appellant, Cross- Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1110

597 F.2d 1110

The FIRST NATIONAL BANK OF CHICAGO, Executor of the Will of Wayne J. Hart, Deceased, Plaintiff-Appellee, Cross-Appellant, v. MATERIAL SERVICE CORPORATION, a corporation Defendant-Appellant, Cross- Appellee.

Nos. 78-1831, 78-1832.

United States Court of Appeals Seventh Circuit.

Argued Jan. 24, 1979.

Decided April 27, 1979.

Rehearing Denied June 1, 1979.

Stephen A. Milwid, Chicago, Ill., for defendant-appellant, cross-appellee.

Marshall E. LeSueur, Chicago, Ill., for plaintiff-appellee, cross-appellant.

Before CUMMINGS, Circuit Judge, MARKEY, Chief Judge, ^* and TONE, Circuit Judge.

MARKEY, Chief Judge.

Action in admiralty by the First National Bank of Chicago (Bank), executor of Wayne J. Hart (Hart), who died when his pleasure boat collided with a barge tow operated by Material Service Corporation (Material Service). ¹ We affirm in part, reverse in part, and remand.

Background

In a first trial, the district court absolved Material Service of fault, viewing Hart's imprudent navigation and boat handling as negligence and as the sole cause of the collision. On appeal, this court held Material Service guilty of certain statutory faults and remanded for a new trial. First National Bank of Chicago v. Material Service Corp., 544 F.2d 911 (7th Cir. 1976).

In a second trial, the district court found Material Service's statutory faults the sole cause of the collision and entered judgment in favor of the Bank in the amount of $602,000. ²

Material Service appeals the findings on liability and amount of damages. The Bank cross-appeals a denial of additional damages as prejudgment interest.

Facts

Late in the afternoon of April 20, 1973, Hart and two companions, Holcombe and Johnson, began cruising the Chicago River in Hart's 16 foot outboard pleasure boat. They resumed boating that night after stopping briefly at a marina restaurant to drink alcoholic beverages. Shortly after 8:00 p. m., Hart was northbound, about 1/2 mile north of the Harrison Street river bend, near the Congress Street Bridge, one of the many that span the Chicago River as A Material Service towboat-pushed flotilla of two lashed abreast barges, each 35 feet wide, was proceeding southbound toward the Congress Street Bridge, beneath which the river provided a horizontal clearance of 168 feet.

it winds through a canyon-like section of tall city buildings.

The barge displayed red and green directional lights at the corners of its bow and a flashing amber light at its center head. A forward-facing white light on the pilot house of the towboat was not illuminated. The barge pilot, Howard Little, had ordered the barge's lookout away from his post on a minor errand. Hart's boat displayed a green (starboard) and a red (port) light on its bow and a white light on its stern.

Pilot Little saw Hart's red light 800 to 1,000 feet ahead and sounded his whistle for a port-to-port passing. When Hart's boat then showed both its red and green lights, indicating a collision course, Little steered right and reversed his engines, leaving Hart a wide expanse of clear water to the east. Hart's boat struck the center of the bow on the easternmost barge, then situated west of the center line of the river. Hart and Johnson were killed.

Empty beer cans floated among the collision debris. Hart's deteriorated body was autopsied 12 days later, revealing a blood alcohol level of .104 milligrams.

In the first trial, the district court found Hart negligent "in not effecting a port-to-port passing" and in "striking one of the barges . . . west of the center line of the river," and that those acts were "the sole cause of the collision." The court concluded that the Bank failed its burden of proving that Material Service was guilty of any contributing act or omission.

This court reversed and remanded for a new trial, finding error in a failure to apply the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874). Under the rule of that case, Material Service has the burden of proving that no contribution to the cause of the collision resulted from its violation of several Navigation Rules for Great Lakes and their Connecting and Tributary Waters, 33 U.S.C. §§ 241-295 (1976) (Great Lakes Rules), Pilot Rules for the Great Lakes, 33 C.F.R. §§ 90.01-.46 (1977) (Pilot Rules) and the lookout rule. First National Bank of Chicago v. Material Service Corp., supra.

In particular, this court found that Material Service violated: (1) Great Lakes Rule 2, 33 U.S.C. § 251 (1976), by displaying a flashing amber light mistakable with the unbroken amber light permitted by the Pilot Rules, 33 C.F.R. § 90.19a (1977); ³ (2) Great Lakes Rule 3(a), 33 U.S.C. § 252(a) (1976), ⁴ by not illuminating its forward-facing On remand, the district court, after considering stipulated portions of the evidence from the first trial and new evidence not previously offered, concluded that Material Service's statutory violations were contributory causes of the collision. The absence of a lookout was highlighted by noting that Little's downriver view was obstructed for at least 400 feet in front of the barge. Viewing the barge's improper lighting as creating a "traveling trap" moving down a dark river, the court imposed on Material Service the burden of introducing "evidence of the strongest nature" to prove that the lighting violations were not at least a contributing cause of the collision. Finding that Material Service did not sustain that burden, the court went on to decide that Hart's boat handling and navigation did not contribute to the cause of the collision.

white light; (3) Great Lakes Rule 4, 33 U.S.C. § 253 (1976), ⁵ by not carrying a second bright light within 6 vertical feet of the white light; (4) 33 C.F.R. § 90.2 (1977) of the Pilot Rules ⁶ by not sounding a 5-blast danger whistle when Hart's intended course became unclear; (5) 33 C.F.R. § 90.6 (1977) of the Pilot Rules ⁷ by not sounding a river bend signal; and (6) the general navigation rule requiring a vessel to maintain a lookout at all times. First National Bank of Chicago v. Material Service Corp., supra at 917-18.

The court found that Hart was not intoxicated, relying on toxicologists who said the alcohol in Hart's body was not from pre-death ingestion but was from bacterial action in body decomposition, and on Holcombe's statement that Hart drank only one scotch and water, the beer having been consumed entirely by Holcombe and Johnson. The court also accepted Holcombe's testimony that Hart was cruising at only 12-15 m. p. h. at the time of the collision, and discredited the contrary testimony of other witnesses whose identifications of Hart's boat were questionable. Finally, the court absolved Hart of negligence in operating west of the river center line, finding that Material Service's violation of the light rules provided inadequate warning of the barge's presence.

Based on all the evidence, the court found that the Bank's expert witness, Professor Friedman, had reasonably computed damages of $187,000 for accrued lost income and $415,000 for the present value of lost future income.

Issues

The issues are whether the district court erred in: (1) finding Material Service guilty of statutory faults contributing to the cause of the collision; (2) finding Hart free of contributory negligence; ⁸ (3) assessing damages; or (4) denying additional damages as prejudgment interest.

OPINION

a. Scope of Review

In reviewing the judgment of a district court sitting without a jury in admiralty, this court exercises a scope of review no greater than that provided for under Rule 52(a) and will not set findings aside unless they are clearly erroneous. Glenview Park District v. Melhus, 540 F.2d 1321, 1323 (7th Cir. 1976), Cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977); Federal Line Towing Service, Inc. v. Toledo, Peoria & Western Railroad Co., 539 F.2d 1107, 1110 (7th Cir. 1976). In applying Rule 52(a), as recognized in McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954), a finding may be set aside when "although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Glenview Park District v. Melhus, supra at 1323. Assignments of error not called to the attention of the trial court, and questions of fact not a subject of findings below will not be resolved on appeal. Cleary v. Indiana Beach, Inc.,275 F.2d 543, 546 (7th Cir.), Cert. denied, 364 U.S. 825, 81 S.Ct. 62, 5 L.Ed.2d 53 (1960); Bowles v. Hayes, 155 F.2d 351, 353 (3d Cir. 1946).

The "law of the case" doctrine, as stated by this court in Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir. 1954), requires that "in a trial following a reversal and remand, if the evidence is substantially the same as the facts upon which the reviewing court based its decision, matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on second appeal, in the appellate court, unless there is plain error of law in the original decision." The introduction of merely cumulative new evidence does not take the case outside the rule. Id.

b. Applicable Law

Collision liability is based on fault. The Java, 81 U.S. (14 Wall.) 189, 20 L.Ed. 834 (1872). The statutory Rules of Navigation and the Pilot Rules, ⁹ define mandatory standards of conduct that are strictly and literally applied, Belden v. Chase, supra note 9. Breach of a rule constitutes a "statutory" fault. Departures from the rules are permitted in " special circumstances," ¹⁰ but the party seeking to justify a departure bears the burden of proving it clearly necessitated by a sudden and alarming emergency. Belden v. Chase, supra note 9 at 699, 14 S.Ct. 264, 37 L.Ed. 1218.

Liability is not imposed for statutory fault unless it contributed to the cause of the collision. The Farragut, 77 U.S. (10 Wall.) 334, 19 L.Ed....