Moran Towing Corp. v. MA Gammino Construction Co., 6630.

• Citation: 363 F.2d 108
• Decision Date: 27 June 1966
• Docket Number: No. 6630.,6630.
• Parties: MORAN TOWING CORPORATION et al., Appellants, v. M. A. GAMMINO CONSTRUCTION CO. et al., Appellees.
• Court: U.S. Court of Appeals — First Circuit

363 F.2d 108 (1966)

MORAN TOWING CORPORATION et al., Appellants, v. M. A. GAMMINO CONSTRUCTION CO. et al., Appellees.

No. 6630.

United States Court of Appeals First Circuit.

Heard March 7, 1966.

Decided June 27, 1966.

Eugene Underwood, New York City, with whom Robert W. Meserve, Boston, Mass., Robert B. Pohl, New York City, Nutter, McClennen & Fish, Boston, Mass., and Burlingham, Underwood, Barron, Wright & White, New York City, were on brief, for appellants.

Donald M. Waesche, Jr., New York City, with whom Claude R. Branch, Providence, R. I., Louis P. Sheinbaum and Bigham, Englar, Jones & Houston, New York City, were on brief, for M. A. Gammino Const. Co., appellee.

Edward F. Hindle, Providence, R. I., with whom Ronald R. Lagueux, Richard M. Borod and Edwards & Angell, Providence, R. I., were on brief, for Hartford Accident & Indemnity Co., appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is an action for damages suffered by appellant Moran Towing Corporation's two dump scows while carrying breakwater stone pursuant to a contract with appellee M. A. Gammino Construction Company. Gammino loaded the scows, but Moran supplied the dumper captains, and a tug and crew for operating the equipment. The scows required extensive repair at the end of the service. The case was tried to the court, and resulted in a determination of no liability. While underlying questions of law are involved, the appeal raises principally the adequacy of the evidence and the correctness of the court's findings.

We observe at the outset that our task has been unduly complicated by the manner in which the testimony has been presented. Moran's record appendix contains some 500 printed pages of testimony; Gammino's, some 400. In most instances the same witnesses are involved, each party, the appellant initially, picking and choosing the fragmented portions of their testimony it would like us to see. An appellant is charged with presenting "such * * * parts of the testimony * * * as it * * * deems it essential for the judges of the court to read in order to decide" the question presented. 1st Cir.Rule 23. This means the relevant testimony, not simply the testimony favorable to the appellant. Chernack v. Radlo, 1 Cir., 1964, 331 F.2d 170. A similar provision applies to the appellee with respect to matters not printed by appellant. It is difficult to conceive that there could fairly be such a wide diversion between the parties with respect to what testimony was relevant. Either Moran printed far too little, or Gammino far too much. The result has been that to read the testimony presented of many of the witnesses requires constant cross reference. A little of this activity may be expected if counsel cannot agree on a joint record appendix, but the extremes reached in the present case should not occur.

The claimed repaid bill was $325,446.¹ The question was whether, and to what extent, the repair was for Gammino's account. The difficulties arose principally from a provision of the contract, which, at least in retrospect, seems peculiarly perverse. A more complete extract of the parties' agreement appears in the opinion of the district court, D.R.I., 1965, 244 F.Supp. 729, and may be referred to there, but the principally significant portion is paragraph 9.

"We Moran shall be responsible for all ordinary wear and tear to our vessel equipment due to the nature of the material to be transported, but you Gammino shall be responsible for any damage to our vessel equipment due to your negligence, or for any damage to our vessel equipment whether or not due to your negligence that may be occasioned by loading or unloading of pieces weighing in excess of 1000 lbs. per piece."

Since the "material to be transported" was sharp pieces of "quarry run" granite, loaded by dropping from a considerable height, the question of what was ordinary wear and tear due to the nature of the material was not an easy one. Admittedly, some rocks over 1,000 pounds were loaded. How many, was a difficult question. Having in mind that the overall volume carried during a 23-week period exceeded 800,000 tons, it was even more difficult to tell what portion of the repairs were necessitated by rocks that weighed under 1,000 pounds, and by those that weighed over 1,000 pounds, as to which even ordinary wear and tear was Gammino's responsibility.

With one or two relatively minor exceptions, no witness was able to testify that he had observed a complete chain of events resulting in any particular, identified alteration in the condition of the scows. In broad outline, Moran met this problem by offering proof of the condition of the scows before and after the service, proof of various events during the service the risk of which Gammino had assumed, and expert testimony that only those events which were Gammino's responsibility had sufficient damage potential to account for the change in the condition of the scows.² Gammino countered by offering proof that few, if any, events took place that were within its own responsibility, and expert testimony that, in any case, activity for which Moran had assumed responsibility had sufficient damage potential to explain the change in the condition of the scows.

Moran placed particular weight on the testimony and reports of two surveyors in the employ of the United States Salvage Association, an association of marine experts organized by marine underwriters. These surveyors, originally requested by underwriters for either party, inspected the scows after the service and recommended the repairs that are now the subject of suit. It is clear that in preparing their report the surveyors were obliged by the rules of the Association to reach a judgment as to responsibility for, and cause of, as well as need for repair of, various aspects of the condition of the scows. Moran argued that the agreement reached by the surveyors was a binding admission by Gammino, and sought to support its reasoning with the rules of the Association and provisions in the indenture between Gammino and its underwriter.

It would perhaps have been the better practice to admit these documents into evidence for whatever they might have shown, but they were marked for identification and we have reviewed them. We find that the error, if any, was not prejudicial. Whatever the survey practice among underwriters, nothing in the record, or offered for the record, would warrant the conclusion that the parties agreed to be bound by the opinion of the surveyors insofar as this rather particular contract is concerned. The contract allocated responsibility on the basis of what turned out to be overly nice discriminations among causes. On this question, the surveyors stood on no ground necessarily more secure than that upon which stood various others of the experts produced at trial who sought to reason back from the final condition of the scows in order to sort out the causes of aspects of that condition.

The court found, "Gammino frequently loaded rocks weighing in excess of 1,000 pounds on each of said scows * * * and on occasions it loaded rocks weighing in excess of 1500 pounds. * * * However, there was no satisfactory or clear evidence as to how frequently this occurred and no evidence whatever that any specific rock or rocks weighing more than 1000 pounds caused any particular damage to either of said scows." 244 F.Supp. at 734. It went on to point out that Moran's witnesses had sought to persuade it that no part of the repair was necessitated by ordinary wear and tear from rocks under 1,000 pounds, while Gammino's witnesses had sought to show that wear and tear by careful loading of rocks under 1,000 pounds could, of itself, have required all the repair. This was, as we have suggested, a substantially fair observation. We have rarely seen testimony more diverse.

The court resolved this difficulty by holding that the burden of proof was on Moran, as plaintiff, and that this included separating "with reasonable certainty" the part of the loss that was Gammino's responsibility from that which was not. It concluded that Moran had "completely failed" to meet this burden, and that it was "impossible" for the court "to determine what portion of the total cost * * * is attributable to a cause or causes for which Gammino is responsible." Id. at 735.

To this Moran makes a number of responses.³ Factually, it seeks to argue that some of the court's findings are inconsistent. There is one sentence in the opinion perhaps not happily expressed, but, as Moran eventually concedes, the most this amounts to is an implication that the court "was almost persuaded" that no part of the condition of the scows was due to stone of the forbidden size. With respect to this, a full review of the record satisfies us that the court was warranted in concluding that although some damage was undoubtedly caused by oversize rocks, substantially as much rock damage would have resulted had no pieces over 1,000 pounds been loaded.

Under these circumstances Moran's legal position cannot be maintained. This can best be illustrated by considering some of its cases. Moran contends that where it is not possible to separate the injury caused by a wrongdoer from other injury not occasioned by him, the wrongdoer must be the one to bear the consequences. Assuming the propriety of such a principle in some situations, this is not one. In the first place, this is not a tort case. Under the contract Gammino had a right to injure the scows to the extent that injury was to be expected as a result of "wear and tear * * * due to the nature of the material." To say it was a wrongdoer is too simple a solution. Rather, it was a wrongdoer only to the extent that it injured the scows beyond the extent of its granted permission. On this basis, even if we could assume some burden on Gammino, Gammino has essentially satisfied it by the court's finding that the rock damage did...