Rocona v. Guy F. Atkinson Co.

• Decision Date: 02 April 1949
• Docket Number: No. 11885.,11885.
• Citation: 173 F.2d 661
• Parties: The ROCONA et al. v. GUY F. ATKINSON CO.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F.2d 661 (1949)

The ROCONA et al. v. GUY F. ATKINSON CO.

No. 11885.

United States Court of Appeals Ninth Circuit.

April 2, 1949.

Hill, Morgan & Farrer and William S. Scully, all of Los Angeles, Cal., for appellants.

McCutchen, Thomas, Matthew, Griffiths & Greene, Harold A. Black and George E. Toner, all of Los Angeles, Cal., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.

DRIVER, District Judge.

This is an appeal from an interlocutory decree in admiralty adjudging the appellants liable for damage to appellee's unpowered barge and for the partial loss of its cargo.

In March, 1945, appellee was constructing a mole in Los Angeles Harbor, and, in the prosecution of the work, was using a number of barges to transport rock from Catalina Island. About 1:30 p. m., on March 31, appellant Tug Rocona, hereafter called the Rocona, operating under a contract of hire, took in tow appellee's Barge No. 4414 and another barge, which had been loaded with rock by appellee at the Island, and towed them to the harbor. Barge No. 4414 was 119.7 feet long and 39.5 feet across the beam. It was rectangular, flat on the bottom, and had a "rake" or overhang at both the bow and the stern. At each forward corner there was a mooring bit or Sampson post. Loaded with rock, it had a gross tonnage of 1200 and an average draft of nine feet. Its loading was somewhat uneven. It had about three feet of free-board in the bow and only 10 to 20 inches in the stern, but, beyond question, the craft was seaworthy. The passage across Catalina Channel was accomplished without difficulty and without unusual incident.

Inside Los Angeles Harbor, one of the barges was turned over to another tug, and the Rocona towed Barge No. 4414 to a mooring float, maintained by appellee. The float was a solid, wooden block, ten feet square and four feet thick. On the top and on the bottom there were semi-circular. iron "U" bolts, 1½ inches thick and about 10 inches high. The float was anchored by means of a cable which extended from the lower "U" bolt to heavy bolders resting on the bottom. A steel mooring pendant, approximately 40 feet long was attached to the upper "U" bolt. A large eye had been spliced into its free end. As the Rocona approached the float, one of her crewmen, who had been placed aboard the barge, picked up the pendant with a pike pole and dropped the eye over the starboard forward Sampson post. The tow wire was released from the barge and the Rocona went to her berth some distance away. According to her log, the barge was moored to the float at 12:45 a. m., April 1.

Shortly thereafter, appellee's night superintendent, making a periodic inspection tour of the harbor in a speed-boat, saw the barge and observed that it was "just about trim." When he made his next tour, an "hour or hour and a half later", the barge was listing badly and had slipped a part of its load of rock.

When the barge was capsized the next day, it was discovered that a hole, the size and shape of the "U" bolts on the float, had been punched through the bottom planking, about 22 feet back of the bottom of the forward rake and five feet in from the starboard side. Two of the bottom planks, which were twelve inches wide and four inches thick had been broken. The distance from the starboard Sampson post to the hole, measured around the rake and along the bottom, was approximately forty feet. Extending forward from the hole eight feet or so there was a groove or scratch which appeared to have been caused by some rounded object such as a "U" bolt.

When the barge was moored, the wind was negligible. The ordinary surges and currents of the harbor were present. There was a high tide of 4.91 feet at 11:30 p. m., March 31 and a low tide of .61 feet at 6:12 a. m., April 1.

At the trial, there was competent expert testimony that, with the ordinary conditions of the current, tide, and surge in Los Angeles Harbor, the barge could not have overridden the float and that the application of some additional force or motive power was necessary to accomplish that result. There was also expert testimony that, with the hole discovered when it was capsized, the barge would begin to list in a half hour to an hour and that with such a hole and loaded with rock, it could not have made the crossing from Catalina Island.

The master and two members of the crew of the Rocona testified that the barge was brought up to the mooring float slowly and carefully on the night of March 31, that the Rocona's power was shut off some distance away to allow the barge to drift gently up to the float, and that the barge was dead, or practically dead, in the water when the mooring pendant was attached to it. They also testified that before leaving the barge, they turned a search light upon it and "circled" it to see that everything was in order. They denied that they had caused the barge to override the float.

The Trial Court found that when the barge was brought up to be moored, the momentum of its forward motion carried it over the float until it had taken up the slack in the anchor cable and mooring pendant when it was brought to a stop and a "U" bolt on the float was driven through its bottom planking. The Court further found that the Rocona was negligent in a number of particulars, one of which was that it failed to take any steps to stop the forward motion of the barge, and that the negligence of the tug was the sole and proximate cause of the injury to the barge. The Court also found that appellee was not negligent in any respect in the manner or condition of loading of Barge No. 4414 or in furnishing or maintaining the float to which the barge was moored.

The testimony was all given orally in the presence of the Trial Court and if the findings are supported by substantial evidence and are not clearly erroneous, they should stand undisturbed on this appeal.¹

The appellants contend that the findings are not supported by the evidence and are erroneous. They point out that there is no direct evidence of negligence and argue that negligence may not be inferred from circumstances under the rule of res ipsa loquitur for the reason that the rule is not applicable here. It may not properly be invoked, they say, for two reasons: first, because it was not shown that at the time of the injury to the barge, the appellants had exclusive control of the instrumentality that caused it, and, second, because the facts are not such as to warrant an inference that appellants were negligent.

A generally recognized prerequisite to the application of the rule of res ipsa loquitur is that the instrumentality causing the injury must have been under the exclusive control of the party charged with negligence.² However, in applying the rule in two comparatively recent cases, Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416, 169 A.L.R. 947, and Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, the Supreme Court has indicated that such judicially defined prerequisites should not be taken too literally or followed too closely. The primary consideration should be whether, in the particular case, the circumstances are such as to sustain an inference that the injury was the result of the defendant's negligence. In both cases, the Court called attention to the statement in Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.1914D, 905, that "res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference". It is not necessary that the facts be explicable only on the theory of negligence. It is sufficient if the facts are such as to fairly support an inference of negligence. If an inference is justified, it will support, but it does not require, a finding of negligence. It affords merely an evidentiary element to be considered and weighed by the trier of the facts along with all the other evidence in the case.

In the Jesionowski case, an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for the wrongful death of a brakeman, it appeared from the evidence that...