Gosnell v. United States

• Decision Date: 05 January 1959
• Docket Number: No. 7753,7754.,7753
• Citation: 262 F.2d 559
• Parties: Zelda GOSNELL, Harry G. Heideck, Samuel R. Owings, August Cornelius Jennings, Charles W. Jones and John L. Burchette, Libelant and Claimant-Respondents, Appellants, v. UNITED STATES of America, Respondent, Appellee. Petition of UNITED STATES of America, as owner of THE Navy Barge YFNX-6, for exoneration from or limitation of liability. UNITED STATES of America, as owner of The Navy Barge YFNX-6, Libelant, Appellant, v. THE fishing vessel TOPPER, formerly named THE NORA V, her engines, boilers, etc., in rem, and Harry G. Heideck, in personam, Respondents, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

262 F.2d 559 (1959)

Zelda GOSNELL, Harry G. Heideck, Samuel R. Owings, August Cornelius Jennings, Charles W. Jones and John L. Burchette, Libelant and Claimant-Respondents, Appellants, v. UNITED STATES of America, Respondent, Appellee.

Petition of UNITED STATES of America, as owner of THE Navy Barge YFNX-6, for exoneration from or limitation of liability.

UNITED STATES of America, as owner of The Navy Barge YFNX-6, Libelant, Appellant, v. THE fishing vessel TOPPER, formerly named THE NORA V, her engines, boilers, etc., in rem, and Harry G. Heideck, in personam, Respondents, Appellees.

Nos. 7753, 7754.

United States Court of Appeals Fourth Circuit.

Argued November 6, 1958.

Decided January 5, 1959.

John H. Skeen, Jr., Baltimore, Md. (William A. Skeen, Baltimore, Md., on the brief), for appellants in No. 7753 and appellees in No. 7754.

Charles S. Haight, Jr., Sp. Asst. to Atty. Gen. (George Cochran Doub, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and Samuel D. Slade, Atty., Dept. of Justice, Washington, D. C., on the brief) for United States.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and BOREMAN, District Judge.

BOREMAN, District Judge.

No. 7753 is an appeal from a final decree of the United States District Court for the District of Maryland, granting the petition of the United States, as owner of Navy Barge YFNX-6, for exoneration from liability, and dismissing the claims of appellants, claimants in the limitation proceeding.

No. 7754 is a contingent cross-appeal by the United States from a part of the District Court's final decree dismissing the Government's libel against the fishing vessel TOPPER (formerly the NORA V), in rem, and Harry G. Heideck in personam.

Both cases arose out of the sinking of the fishing vessel NORA V in Delaware Bay shortly after noon on July 15, 1954. Appellants in No. 7753 are Harry G. Heideck, the NORA V's owner and master, who was operating her at the time; her passengers who survived the sinking; the personal representatives and dependent survivors of passengers who perished in the disaster. The libel and claims of appellants alleged that the NORA V was caused to sink by reason of the negligence of the United States (hereinafter referred to as "the Government"), as owner of the YFNX-6, which had foundered in the Bay on July 7, 1954, and subsequently broke up, causing the Bay to become littered with wreckage and debris.

In No. 7754 the Government denied the alleged cause of the NORA V's loss and any negligence on the part of the Government in the premises, and alleged that even if appellants' theory of causation was correct, negligence of the NORA V was the sole proximate cause of her loss, entitling the Government to indemnity. Appellants' libel was filed in the United States District Court for the District of Delaware, transferred to the District of Maryland, and consolidated for trial with the exoneration and limitation proceeding.

The District Court found, on the evidence, that the YFNX-6 was sunk while being negligently towed by the Government tug BANNOCK, but granted exoneration because appellants had failed to prove that the sinking of the NORA V was caused by anything that came from the wreck of the YFNX-6.

The District Court's opinion, containing findings of fact, discussion of applicable law and conclusions, is reported at 156 F.Supp. 325 and styled, "THE YFNX-6. THE NORA V. Petition of the UNITED STATES of America, as owner of the Navy Barge YFNX-6, for exoneration from or limitation of liability." (See also 1957 A.M.C. 2340.)

The Government announced that the cross-appeal in No. 7754 from the decree dismissing the libel for indemnity against the fishing vessel would be withdrawn in event of affirmance of the decree of exoneration in No. 7753.

We are asked to reverse the District Court's decree exonerating the Government from liability on the ground that the findings of fact are erroneous. The evidence consists of depositions, the live testimony of witnesses before the court, and many exhibits (documents of various kinds, logs, tables, photographs, maps, etc.). The live testimony appears in five separate volumes containing, in the aggregate, over eight hundred typewritten pages, and its presentation required approximately five days. The District Court states (156 F.Supp. at page 327):

"Certain facts are undisputed, but on many points there is conflicting testimony. These findings are made after reviewing all of the evidence referred to in the elaborate briefs and reply briefs filed after the trial and considering the very able oral arguments made by the two advocates. The findings are supported by testimony and other evidence which is not referred to in detail. Testimony to the contrary was sometimes rejected because I did not find it credible, sometimes because it was limited or explained by other evidence." (Emphasis supplied.)

In McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 7, 99 L.Ed. 20 Mr. Justice Minton, speaking for the Court, said:

"The first question presented is whether the Court of Appeals in reviewing the District Court\'s findings applied proper standards. In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure. Cases cited. A finding is clearly erroneous when `"although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed",\' * * *."

Before the McAllister decision, this Court had repeatedly held that the trial court's resolutions of such questions on conflicting evidence are entitled to great weight and will not be reversed except for plain error. Hodges v. Standard Oil Co. of New Jersey, 4 Cir., 1941, 123 F.2d 362; Jordan v. Texas Co., 4 Cir., 1941, 123 F.2d 614; The Ensley City, 4 Cir., 1948, 170 F.2d 25. In FORT FETTERMAN v. South Carolina State Highway Department, 261 F.2d 563, District Judge Hoffman, though disagreeing with the findings of the trial judge, speaking for this Court, aptly stated the rule as follows:

"If these findings of fact are supported by credible testimony, it is well settled that they are not to be disturbed unless found to be clearly erroneous. This principle is particularly applicable where, as in this case, the trial judge heard the witnesses and observed their demeanor on the witness stand. * * * Mere expressions of disagreement do not justify a reversal of such findings of fact if credible evidence exists to support the view of the trial judge."

It is undisputed that the NORA V, at a point approximately four miles to the west of the wrecked YFNX-6 and on a "very sunshiny day" with "wonderful visibility", struck an object which nobody saw, either before or after she capsized.

At that time the NORA V was headed away from the wrecked barge, toward her home port, against a wind blowing from the northwest and riding waves approximately two feet high. Shortly before the sinking of the NORA V, one of the passengers discovered water pouring into the vessel and several of the passengers claimed to have heard a noise and to have felt a bump, but Captain Heideck, who had had long experience on the water and was then at the wheel, heard or felt nothing of an unusual nature. The same Captain Heideck claimed to have observed a large amount of debris from the wrecked barge in the area of the NORA V on the day of the disaster but, strangely, the passengers failed to see any such debris.

The trial court found that the barge was not unseaworthy with respect to her intended voyage and uses; "that the loss of the YFNX-6 was caused by negligence on the part of the BANNOCK in towing the barge at too great a speed"; that the wreck was promptly buoyed; that warnings of its presence were issued by the Coast Guard; that there was no negligence in retrieving the debris from the wrecked barge; that due to the size and location of the hole in the hull of the wrecked NORA V and the nature of the exterior and internal damage, such damage was caused by a floating object which "must have weighed around 2,000 pounds and must have been floating vertically rather than horizontally"; that debris, such as trees, pilings, logs, heavy timbers, "deadheads" or "hull-busters", and wreckage of all sorts, was frequently in Delaware Bay, drifting down from points on the river toward and into the bay and the ocean; that a "...