Hess v. United States, 15685.

• Citation: 282 F.2d 633
• Decision Date: 31 October 1960
• Docket Number: No. 15685.,15685.
• Parties: Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.2d 633 (1960)

Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 15685.

United States Court of Appeals Ninth Circuit.

August 24, 1960.

Rehearing Denied October 31, 1960.

Hess & Hess, Clayton Hess, Cleveland C. Cory, Portland, Or., Geoffrey C. Hazard, Jr., Berkeley, Cal., for appellant.

George Cochran Doub, Asst. Atty. Gen., C. E. Luckey, U. S. Atty., Portland, Or., Samuel D. Slade, Alan S. Rosenthal, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before BARNES, HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

George W. Graham was drowned when a tug on which he was employed sank in a spillway bay of Bonneville Dam on the Columbia River in Oregon. His administrator brought this suit for damages against the United States under the Tort Claims Act, 28 U.S.C.A. § 1346(b), 2674.

The theory of the action was that the government is liable under the Employers' Liability Law of Oregon or, if not, then under the Wrongful Death Act. The district court entered judgment for the government. The court held that the Liability Law is not applicable because (1) that law could not be constitutionally applied under the facts of this case, and (2) if it could be applied the United States is not liable thereunder because it was not responsible for the work being performed by decedent. The court held that the government is not liable under the Oregon Wrongful Death Act because negligence had not been proved.

On appeal we affirmed. Hess v. United States, 9 Cir., 259 F.2d 285. With regard to the Liability Law we agreed with the district court that this law could not be constitutionally applied under the established facts. In view of that conclusion we did not reach the question of whether the district court erred in holding that act inapplicable for the further reason that the United States was not responsible for the work being performed by decedent. Concerning the Oregon Wrongful Death Act we concluded that the district court did not err in determining that negligence had not been proved.

On appeal to the Supreme Court appellant did not question the ruling of the district court and this court that there is no liability under the Oregon Wrongful Death Act. His sole claim in that court was that he was erroneously deprived of the opportunity to invoke the Liability Law. The Supreme Court held that there is no constitutional impediment to the invoking of the Liability Law under the facts of this case. It was therefore held to be error to deny relief on that ground. Noting that this court had not reached the second question concerning the Liability Law, the judgment was set aside and the case was remanded to this court for a consideration of that question. Hess v. United States, 361 U. S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305.

In this opinion we deal with the question which has been referred to us by the Supreme Court.¹

The tug on which Graham was working at the time of the accident was owned and operated by Larson Construction Company, an independent contractor. Larson had entered into a contract with the United States to repair the underwater baffles on the baffle deck extending downstream across the width of Bonneville Dam. In performance of this contract Larson made use of the tug on which Graham was employed to conduct sounding operations along the downstream face of the dam. The tug was swamped by the turbulent water, and in its sinking Graham lost his life.²

The district court held that, assuming that the Liability Law could be constitutionally applied, there could be no recovery here because "the Government was not responsible for the work there being performed."

In using the quoted words the district court was placing a construction upon ORS 654.305, quoted in the margin.³ ORS 654.305 gives a cause of action to recover damages for the injury or death of "employes or the public" as a result of the performance of "work involving a risk or danger" to such person. Any person "having charge of, or responsible for" such work may be held liable under the statute.

The United States was not in charge of or responsible for the operation of the tug. It follows that if Graham's death resulted solely from the operation of the tug the district court correctly held that the government, not being responsible for such work, is not liable under the statute.

Appellant, however, contends that Graham's death did not result solely from the operation of the tug. He contends that the way in which the spillway gates of Bonneville Dam were positioned was one of the causes of the accident and that the United States had charge of or was responsible for the positioning of those gates.

It is our opinion that under the established facts the positioning of the spillway gates must be regarded as one of the causes of the accident. The district court found that the "immediate cause of the accident and the deaths of the men was the turbulent condition of the water, which made it impossible to control the movement of the tug Muleduzer and barge and caused the barge to strike the pier."

The turbulent condition of the water resulted from the rush of the river through the outlets provided by the spillways. These spillways were controlled by gates which made it possible to regulate the flow of water, and hence its turbulence. Had more of the gates been closed while the sounding operations were in progress, it is unlikely that the tug would have foundered.⁴

It remains to be determined, however, whether the United States had charge of or was responsible for the positioning of the spillway gates at the time in question. The United States had ownership, possession and physical control of the dam, and the spillway...