Southern Pacific Company v. United States

• Decision Date: 17 February 1966
• Docket Number: No. 5702.,5702.
• Parties: SOUTHERN PACIFIC COMPANY, Libelant, v. The UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Louisiana

250 F. Supp. 912

SOUTHERN PACIFIC COMPANY, Libelant, v. The UNITED STATES of America, Respondent.

No. 5702.

United States District Court E. D. Louisiana, New Orleans Division.

February 17, 1966.

Chaffe, McCall, Phillips, Burke, Toler & Hopkins, James G. Burke, Jr., Robert B. Deane, for libelant.

Ernest N. Morial, Asst. U. S. Atty., Eastern Dist. of Louisiana, Allen Van Emmerik, Harold G. Wilson, Attys., Dept. of Justice, for respondent.

AINSWORTH, District Judge:

This libel was filed by Southern Pacific Company against the United States of America,¹ for damages sustained in the early morning of April 8, 1962, when the Berwick Bay railroad bridge, owned and operated by libelant, was struck by the United States Navy Tug USS BLACK FOX. The BLACK FOX was not damaged.

The Berwick Bay railroad bridge spans the lower reaches of the Atchafalaya River between Morgan City, Louisiana, on the east and Berwick, Louisiana, on the west. It consists of six fixed steel pen-connected truss spans, numbered from east to west 1 to 6, each 232 feet long and 14 feet wide, carrying a single track of the Southern Pacific Railroad. On the Berwick or west side of the bridge there is a steel turntable drawspan approximately 268 feet long, which pivots to a north-south direction and when open provides a clearance of 109 feet on the west draw and 115 feet on the east draw. The drawspan, which is electrically operated by a bridge-tender, remains open for water-borne traffic except when accommodating crossing trains. On the superstructure of the drawspan there are red and green lights; when the span is open green lights face north and south. The construction of the bridge was originally authorized by the Secretary of War and the Chief of Engineers in 1907 and completed in 1908. Construction and subsequent modifications of the bridge and its appurtenances were at all times maintained and operated pursuant to statutory authority (33 U.S.C. 401; 33 U.S.C. 491).

The bridge fender system was located on the east side of the drawspan and extended to the north and south of the railroad bridge, each side projecting approximately 150 feet from the bridge. There was a red light at each end and in the center of the fenders. The purpose of the fender system was to protect vessels from colliding with the bridge while negotiating the east passage of the draw-bridge. As a result of four separate collisions of other tugs with the fender occurring on December 20, 1961, December 28, 1961, January 1, 1962, and finally on January 19, 1962, the upstream fender protecting the east rest pier of the bridge was damaged and ultimately completely destroyed.

The BLACK FOX is a steel vessel approximately 100 to 110 feet long, with a 28-foot beam, and a displacement fully laden of 300 tons. It is powered by two diesel electric motors controlled from the wheelhouse. The wheelhouse is located approximately 10 feet above the main deck and 25 feet back from the bow and is semicircled by six windows.

On April 8, 1962, at approximately 5:23 a. m., the BLACK FOX, under the command of Chief Boatswain Mate Kenneth L. Young, left its berth at the U. S. Coast Guard Station located approximately 1800 feet upriver from the railroad bridge on the east bank. Chief Young was at the helm, Electrician's Mate First Class John DeShazo was also in the wheelhouse, Fireman Tigner was on duty in the engine room, and the remaining members of the crew were below in the galley. After pulling out from the dock the tug proceeded upriver for a sort distance, executed a port turn, and headed southward toward the open span of the bridge at approximately 10 knots; the current of the river was approximately 5 to 6 knots. In about five minutes after its turn downriver, the tug collided with the No. 6 fixed span of the bridge, adjacent to the drawspan.

The bridgetender, Virgil E. Kreider, on duty at the time in the control house, testified that the speed of the tug appeared to remain constant from the time of its departure from the Coast Guard Station until the impact; that the course of the tug subsequent to its port turn until the time it collided with the bridge was forward and downriver. He said that at all times the tug was approximately 200 feet to the east of the east channel opening on its downriver course.

Chief Young's version of the incident differed from the bridgetender's. He said that daylight conditions were good and he could see all right. He also said that the tug, operating at a speed of 10 knots, was lined up to pass through the east passage of the drawbridge when it was approximately 500 feet away from the channel; at this time he reduced his speed to one third ahead; the tug was "shaped up good" and the bridge was open. After the reduction in speed, the swift current of the river caused the tug's stern to fall off to the right-hand side toward the west bank, placing the bow in a southeasterly position. Chief Young said he tried to straighten out the tug but he lost power. He advanced the throttle trying to get the engine started but it did not respond; he worked the throttle at various speeds but to no avail. He then ordered the electrician, DeShazo, to the engine room to investigate the loss of power; at about the same time he pulled the throttle to stop, jammed the tug in reverse, and the engine caught and started turning over. The tug was then about 200 feet from the bridge in an east-west position but still in a course toward the channel opening. The tug engines built up speed to full astern, and her headway when about 100 feet from the bridge was in a southeasterly direction. Young said he almost got the tug backed up and out of the way but the current was so strong he could not make it so he hit the bridge with the bow of the tug at a point 75 to 90 feet from the channel opening.

Prior to the collision, bids had been solicited by the Southern Pacific from approximately twenty-two contractors for repairs and replacement of the bridge fender system necessitated by the damage caused by the four collisions in December 1961 and January 1962. Four contracts were awarded to C. S. Thorguson, of Berwick, Louisiana, the first on January 25, 1962 and the final contract on approximately February 19, 1962. Mr. Thorguson is an experienced contractor, well acquainted with the treacherous nature of the eddies and currents of the Atchafalaya River and aware of its highwater stages. Efforts were made by him to drive the necessary pilings to support the new fender system. However, because of the hazardous conditions of the river caused by the swift current and the 65-foot depth of the water at this location, the work of driving pilings 112 feet long was hampered and delayed. The first attempt by Thorguson which proved unsuccessful was made in the early part of January 1962. Two other attempts by him were also thwarted by unsatisfactory conditions. On one of these occasions the swift current caused an accident on Thorguson's floating rig and one of his helpers lost a finger; on another occasion his rig barely escaped capsizing in the river. It was necessary to suspend operations until the current subsided. The fender system was finally completed in June 1962, and now extends 157.5 feet from the north end of the west pier up-river with a slight inclination to the east.

Respondent's defense is that the collision was caused by libelant's failure to maintain and restore promptly the north protective bridge fender;² that such failure was a violation of a federal statute, 33 U.S.C. 491,³ and a proximate cause of the collision; that such a statutory violation requires the application of the "Pennsylvania Rule," The Pennsylvania v. Troop, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1874), which places the burden on libelant to prove the absence of the violation or that such...