Gray v. Johansson, 18619.
| Decision Date | 03 May 1961 |
| Docket Number | No. 18619.,18619. |
| Citation | 287 F.2d 852 |
| Parties | Emmett GRAY, G & H Towing Company and Maritime Overseas Corporation, Appellants, v. Edwin E. JOHANSSON, Kansas City Bridge Company, Merritt-Chapman & Scott Corporation, and Pelican Island Development Corporation, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Eastham, Watson, Dale & Forney, Houston, Tex., Clarence S. Eastham, Alan S. Dale, Houston, Tex., of counsel, for Maritime Overseas Corp. appellant-appellee.
Royston, Rayzor & Cook, Galveston, Tex., Robert Eikel, Houston, Tex., for appellant, G & H Towing Co.
Robert Eikel, Houston, Tex., for appellant Emmett Gray.
Preston Shirley, Griffith D. Lambdin, Galveston, Tex., McLeod, Mills, Shirley & Alexander, Galveston, Tex., for appellees, Edwin E. Johansson, Kansas City Bridge Co., Merritt-Chapman Scott Corp., and Pelican Island Development Corp.
Before TUTTLE, Chief Judge, HUTCHESON, Circuit Judge, and CLAYTON, District Judge.
This appeal is from findings and a judgment in admiralty in favor of the libellants, in a suit brought by them as owners of pipe lines, for damages resulting from their negligent destruction in the course of shifting the M/V Har Canaan as a dead ship to a slip in Galveston Harbor.
A great deal of testimony was taken on the issue of fault, and the district judge made full findings in effect that the destruction of the pipe lines was due to the negligence of the respondent, Emmett Gray, port captain for G & H Towing Co., who was furnished by it as a pilot for the dead ship movement.
Based on these findings, the court adjudged: (1) Gray liable; (2) the Har Canaan liable in rem; (3) Maritime Overseas, owner of the Har Canaan, not liable in personam; and (4) G & H Towing Co., the employer and furnisher for the movement of Emmett Gray, its port captain liable in personam. He also denied and awarded indemnity as follows:
Gray, as the respondent held primarily liable, here insisting that the findings and conclusions, that he was negligent in handling the ship so as to cause injury to the pipe lines, are clearly erroneous, launches massive attacks upon the findings, that he was negligent, and urges upon us that the cause of the injury to the pipe lines was negligence not on his part but on the part of the pipe line owners in not properly laying and maintaining the lines in place and in not clearly and properly marking their location.
The other appellants join him in this attack and argue mightily that the district judge has misconceived what actually occurred and that the findings of negligence are against the truth and right of the case.
The G & H Towing Company, in addition to its attack upon the negligence findings of the court, strongly attacks the court's conclusion, that the clause in its contract providing in effect that it would not be liable for the acts of pilots furnished by it would not avail it, as an erroneous conclusion of law, and urges that, because of that clause, Gray's negligence would not be imputed to it, and it could not, therefore, be held liable for it.
The Har Canaan and Maritime Overseas Corporation, its owner, argue vigorously that they were not responsible and cannot be held liable for the negligence of the pilot. Each of these argue that the conclusions on indemnity are wrong.
For the reasons hereafter stated, we are of the opinion: that the district judge was right throughout in his findings of fact and in his conclusions of law, that Gray was guilty of negligence in causing the anchor to be dropped upon the pipe line, and that, as a result of his negligence, he and the other respondents found liable are liable to the pipe line owners for the damage done them; and that the right of exoneration, action over, or indemnity is as he concluded it to be.
Taking up first the primary question of whether the findings of fact as to fault should be set aside, we think it sufficient to briefly say that the matter of fault or negligence is a disputed issue, and that, on the record as a whole, there was ample evidence for the...
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