Florida East Coast Ry. Co. v. U.S.

• Decision Date: 29 September 1975
• Docket Number: No. 74-2861,74-2861
• Citation: 519 F.2d 1184
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, Plaintiff-Appellee-Cross-Appellant, v. UNITED STATES of America et al., Defendants Third Party Plaintiffs-Cross-Appellees, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, and Troup Bros., Inc., Third Party Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1184

519 F.2d 1184

FLORIDA EAST COAST RAILWAY COMPANY, Plaintiff-Appellee-Cross-Appellant, v. UNITED STATES of America et al., Defendants Third Party Plaintiffs-Cross-Appellees, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, and Troup Bros., Inc., Third Party Defendants-Appellants.

No. 74-2861.

United States Court of Appeals, Fifth Circuit.

Sept. 29, 1975.

Goble D. Dean, Orlando, Fla., for Central and Southern Fla. Flood Control Dist.

Ronnie H. Walker, Orlando, Fla., Edna L. Caruso, West Palm Beach, Fla., for Central and Southern Fla. Flood Control Dist. and the U. S.

Delbridge L. Gibbs, Jacksonville, Fla., for Troup Bros.

Charles B. Evans, St. Augustine, Fla., Peter J. Nickles, Washington, D. C., for Florida East Coast Ry. Co.

John L. Briggs, U. S. Atty., Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla. for the U. S.

William R. Swain, Jacksonville, Fla., for Cross Contracting.

Appeals from the United States District Court for the Middle District of Florida.

Before GEWIN, DYER and ADAMS, ^* Circuit Judges.

ADAMS, Circuit Judge:

In this appeal, which has as its focus the damage done a railroad by the washout of its line near a flood control project, the controversy revolves around the liability of the United States, a flood control district, and a general contractor. The central issues are the immunity of the United States, the jurisdiction of the court on a pendent basis over the contractor, and the alleged negligence of the flood control district.

I. Factual Background.

Pursuant to authorization under the Flood Control Act of 1948, ¹ the United States Army Corps of Engineers (Corps), an instrumentality of the federal government, undertook to implement the congressionally approved Central and Southern Florida Flood Control Project. The purpose of the project was to control high water conditions in the area in question during the rainy season, and to impound additional water in Lake Okeechobee for use during the dry season. ²

Levees 64 and 65 of the flood control project parallel one of the branch lines, known as the K-line, of the Florida East Coast Railway. That portion of the K-line between mileposts 29 and 40.08 runs north to south, along the eastern side of Levees 64 and 65. The interceptor canal adjacent to Levee 64 lies to the north of and flows into the canal adjacent to At the southern terminus of Levee 65 where its interceptor canal empties into the St. Lucie Canal is Structure 153 which, the district court found, regulates the water level and the rate of flow in the interceptor canals for the two levees. By controlling the flow and level of the water in the interceptor canals, Structure 153 in turn affects the velocity of water draining from the surrounding area.

Levee 65. Between them is Culvert No. 1. ³

The land both east and west of the stretch of the K-line in question is extremely flat and swampy. Prior to construction of the flood control project, surface waters in the area flowed in a southwesterly direction, under three bridges and through numerous equalizer culverts underlying the railway's roadbed. Between the time it was constructed in 1925 and October 1969, when the first washout in this case occurred, the K-line never suffered a washout or serious erosion, even during hurricanes and other periods of heavy rainfall. Building the levees and the structures appurtenant to them, the trial judge found, destroyed the natural drainage in the area.

The Central and Southern Florida Flood Control District (Flood Control District) acquired the land and the right-of-way upon which the project was to be constructed. It assured the Corps that it would hold the United States free from damages resulting from the building and operation of the project, and would maintain and operate the flood control system after its completion.

Although the Corps had primary responsibility for the design of the project, the trial judge found that the Flood Control District worked closely with the Corps in the planning stages. The Flood Control District, according to the trial judge, "reviewed, in detail, and commented on the General Design Memorandum . . ., the Detailed Design Memorandum . . . and the Project Plans and Specifications. It was responsible for alignment of the project. . . . The Flood Control District also provided advice and assistance to the Corps with regard to the actual construction of the project." In addition, the Flood Control District furnished 15 per cent of the funds for completing the undertaking.

On April 3, 1968, the Corps awarded the principal construction contract to Troup Brothers, Inc. The trial court found that Troup, as the prime contractor, worked under the supervision of the Corps and was responsible for seeing that the project was completed in accordance with the plans and specifications drawn up by the Corps. Troup in turn hired Cross Contracting Company to perform all the excavation work and to install the flood control project structures.

During an extraordinarily heavy rainfall on October 29, 1969 a washout occurred at milepost 37.76 on the K-line. The washout resulted from the following: leaving Structure 153 open, removing "earth plugs" ^3a opposite the railroad's culverts, using temporary culverts of less than design capacity, and failing to maintain water elevation in the Levee 65 canal. Water flowed too rapidly out of the Levee 65 canal, lowering water elevation and ultimately generating high velocity flows from the surrounding area through the railroad's culvert, resulting in its erosion and washout.

After the washout of October 1969, the Flood Control District and the Corps recognized the deficiencies in the design of the flood control system. However, neither the Flood Control District nor the Corps warned the railroad or took steps necessary to correct the defects.

A second washout occurred at milepost 31.24 on March 26, 1970, again during a rainfall "greatly in excess of normal." 5.9 inches of rain fell in the nine hours immediately preceding the washout, the heaviest such rainfall in 33 years.

The March 1970 washout also was the result of leaving Structure 153 open and removing the earth plugs in both levee canals. Consequently, water elevation was not maintained in either of the interceptor canals, and the flow of water into the Levee 64 canal was not adequately controlled. No attempt had been made to prevent erosion in the area between the roadbed and the Levee 64 canal. The rapid passage of water into the canal created a pressure differential between the east and west sides of the railway roadbed and an uncontrolled flow through its culverts. This washout caused the derailment of a Florida East Coast train.

The railroad incurred damages of approximately $438,000 as a result of the washouts that took place in October 1969 and March 1970, and because of the derailment that ensued.

Florida East Coast, a Florida corporation, filed suit on September 21, 1970, against the United States and Cross, seeking to recover for the losses that were caused by the washouts. Cross filed a third-party complaint against the Flood Control District on July 6, 1971. The United States on March 24, 1972 impleaded Troup as a third-party defendant. Then on May 9, 1972, Florida East Coast amended its complaint to assert claims directly against the two third-party defendants, Troup and the Flood Control District. Troup moved for a dismissal of the allegations by Florida East Coast against it on the ground that the district court had no jurisdiction over those claims, since there is no diversity between Troup and the railroad.

The case was tried before the district court, sitting without a jury, from January 8, 1973 to March 13, 1973. Following the trial, judgment was entered in favor of the United States on the ground that the federal government is immune from liability for flood damages in connection with flood control projects. Cross was held liable for the losses that followed from each of the washouts because of its negligence in constructing the flood control system, removing the earth plugs, installing inadequate culverts, and failing to operate Structure 153. It was also liable for nuisance and trespass for its conduct that created conditions of rapid runoff. Troup was found responsible for the actions of Cross, its subcontractor, and, in addition, for failure to supervise Cross.

The district court found the Flood Control District liable for permitting the construction of a nuisance on its land and for trespass by reason of the rapid runoff of water it had caused. It was also held liable for negligence as owner of failure to assure that the project was properly designed, constructed and operated, and vicariously as a joint venturer with the Corps. As a joint venturer with the Corps, the Flood Control District was held responsible for the negligence of the Corps with respect to the design, construction, and operation of the project, for nuisance and trespass, and for the activities of Troup and Cross. This last element of liability was predicated upon the nondelegability of the Corps' duty of care with respect to contractors over whom it retained control.

Cross appears to have satisfied the judgment of the district court and has not appealed. Troup and the Flood Control District filed appeals from the award of damages against them. Florida East Coast appealed from the judgment in favor of the United States.

We affirm the judgment of the district court in all respects.

II. Contentions of the Parties.

A. Contentions by Florida East Coast.

Florida East Coast on its cross-appeal insists that the United States is not immune, under 33 U.S.C. § 702c, from liability for its negligence in the construction of this project. The railroad contends, first, that the statute does not relieve the United States of responsibility for damages resulting from floods created by its own negligence. Also, the damage here, Florida East Coast claims, was not...