Medomsley Steam Shipping Co. v. Elizabeth River Terminals

• Decision Date: 03 January 1966
• Docket Number: No. 9947.,9947.
• Citation: 1966 AMC 903,354 F.2d 476
• Parties: MEDOMSLEY STEAM SHIPPING COMPANY, Appellant, v. ELIZABETH RIVER TERMINALS, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

1966 AMC 903, 354 F.2d 476 (1966)

MEDOMSLEY STEAM SHIPPING COMPANY, Appellant, v. ELIZABETH RIVER TERMINALS, INC., Appellee.

No. 9947.

United States Court of Appeals Fourth Circuit.

Argued November 2, 1965.

Decided January 3, 1966.

Walter B. Martin, Jr., Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant.

Jack E. Greer, Norfolk, Va. (Williams, Cocke, Worrell & Kelly, Norfolk, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and MICHIE, District Judge.

HAYNSWORTH, Chief Judge.

In this action for damages, the District Judge found the defendant negligent, but concluded that the defendant's fault was not the proximate cause of the loss. In doing so, we think he misconstrued the testimony.

On September 12, 1960, the Crowborough Beacon broke from her moorings in the Elizabeth River at Norfolk and was carried by the wind and current against a bridge which was damaged. The libelant, Medomsley Steam Shipping Co., called upon the wharfinger to settle the claim of the Commonwealth of Virginia, owner of the bridge. The wharfinger refused, and later the shipowner settled the claim of the Commonwealth. It then brought this action to recover the amount it was required to pay to the Commonwealth.

The Crowborough Beacon was tied up at the defendant's dock, loading a cargo of fertilizer. Upon the receipt of hurricane warnings on the night of September 11, additional lines were put out in all directions, including fore and aft insurance wires. The fore insurance line was a 4¾-inch steel wire cable, which was secured to a cleat on the respondent's dock.

Thereafter, the weather worsened and the winds attained hurricane force during the early morning hours of September 12. The winds diminished as the eye of the storm apparently passed over the area and then shifted to the northwest and grew in intensity, reaching hurricane force again about 0530 on the morning of the 12th. At about 0615, the mooring lines began to part and, with the northwest hurricane force winds, the ship was secured solely by the forward insurance line. Under the strain, the cleat to which it was attached pulled one of its securing bolts partially through the timber, the line slipped off the cleat and the ship was blown away and against the bridge.

There was testimony that the cleat that failed was designed for use on metal and, at one time, had been welded to a metal deck or dock. It was secured to the respondent's wooden dock by two one-inch bolts, running through the deck and an 8" x 12" timber. Each of the two bolts was secured on the underside by an O.G. cast iron washer, four inches in diameter and one-inch thick.

A subsequent inspection disclosed that the force of the wind upon the ship, transmitted through the insurance line to the cleat, had caused the farther bolt and its O.G. washer to be pulled partially through the timber. The timber had split for some eight feet and the washer had been pulled some two or three inches up into it.

There was proof that the original drawings for the dock specified the use of a six-bolt cleat. Such a cleat would have provided three times as much bearing surface as the one in use, and would have derived additional strength from the use of adjacent timbers, which, themselves, would have been tied together. It does not appear why the two-bolt cleat was used and the six-bolt cleat was not, but there was testimony that abundantly justified the District Court's finding that use of the two-bolt cleat was improvident and that the respondent had not used reasonable care to furnish a safe berth or to warn the ship of its deficiency.

Nonetheless, the District Court held that the failure of the cleat was not the proximate cause of the damage. It did so on the basis of testimony quoted in the margin¹ as to what would have happened if the cleat had not failed. The two witnesses who were examined on the subject were of the opinion that the pier, itself, would have failed before the steel insurance line, and the District Judge apparently understood them to say that the force of the wind was such that if this two-bolt cleat had not pulled through, the whole pier would have failed.

We do not think the testimony reasonably susceptible to that construction.

The witness Fife clearly predicated his statement that the pier would be expected to tear up upon his statement, "if the area that the wind was acting on was great enough to cause failure * * *." It is true that he conceded on cross examination that one cleat would not be expected to hold the ship under normal usage, but he also said that he had seen them do it, and his opinion clearly appears that a six-bolt cleat would not have failed as long as the pier was intact.

The witness Reed expressed a similar opinion that the deck would have pulled out, but again it seems clear that he was expressing an opinion as to the point which would first fail if a proper six-bolt cleat had been used. He was responding to a request for his opinion as to whether or not the steel cable would have failed, and his answer is reasonably understood only as saying that the cable would hold under greater strain than the pier. This is made particularly clear when Mr. Reed was asked if the cleat had not failed, would not the insurance line and the pier have withstood the strain. He responded that he had not undertaken to compute it, but that one could compute the force of the wind on the ship and, from that, the strain upon the line and the amount of sheer on the bolts and the timbers of the dock.

It seems plain to us, therefore, that each of the witnesses was saying that, if a proper cleat had been used, there would have been no failure at that point and that, if the stress was sufficiently great, the entire pier would have been pulled down or its timbers ripped up before the insurance line or the cleat would have failed. The record, however, does not establish how much more wind force would have been required to pull the end of the pier out. All that we know is that the force was great enough to cause the deficient cleat to fail and that a proper cleat would not have been the weakest link in the chain. The record contains no basis for a finding of the maximum force the pier, itself could have withstood, but it is clear that it could have withstood more than the cleat. There is no basis for a finding that the pier, itself, would have failed under the actual force which caused the cleat to fail or under any force to which it would have been subjected that morning if the cleat had held.

Under these circumstances, we think that the Court, having found that the wharfinger had not exercised reasonable care to provide a safe berth, was required to find also that that want of care was the proximate cause of the ship's being cast adrift.

It is well settled, of course, that a wharfinger is under a duty to exercise reasonable...