Southport Transit Company v. Avondale Marine Ways

• Decision Date: 07 August 1956
• Docket Number: No. 15843.,15843.
• Parties: SOUTHPORT TRANSIT COMPANY, Appellant, v. AVONDALE MARINE WAYS, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

234 F.2d 947 (1956)

SOUTHPORT TRANSIT COMPANY, Appellant, v. AVONDALE MARINE WAYS, Inc., Appellee.

No. 15843.

United States Court of Appeals Fifth Circuit.

June 15, 1956.

Rehearing Denied August 7, 1956.

Benjamin W. Yancey, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellant.

Selim B. Lemle, George B. Matthews, New Orleans, La., Lemle & Kelleher, New Orleans, La., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JOHN R. BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

A claim with likely, known congenital weaknesses foreshadowing doubtful survival, for fire damage to a tug in a shipyard on August 25, 1946, incubated through the passage of time into one of fairly healthy proportions when it was finally tried nine years later in January 1955. For in the meantime, much grist had been milled.

Where, in 1946, Belden v. Chase, 1893, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218, had regained, In re Pennsylvania Railroad Co., 2 Cir., 1931, 48 F.2d 559, 1931 AMC 852, certiorari denied James McWilliams Blue Line, Inc., v. Pennsylvania R. Co., 284 U.S. 640, 52 S.Ct. 21, 76 L. Ed. 544, after occasional lapses by the Second Circuit, e. g., Roebling's Sons of New York v. Erickson, 261 F. 986; Storgard v. France & Canada S. S. Corp., 263 F. 545; Port of New York Stevedoring Corp. v. Castagna, 280 F. 618, and held, Guerrini v. United States, 1948, 167 F.2d 352, 355, 1948 AMC 724, the fealty of the lower Federal Courts to declare that in a common law action on a maritime claim, contributory negligence of the plaintiff was a complete bar; its hold was weakened by a series of parenthetical body blows,¹ and was lost altogether, without even being mentioned by name, for personal injuries² as it was for property losses.³

This circumstance affected Court and counsel so much so that this mutual preoccupation with contributory negligence, as such, and its consequence, seemingly allowed the real problem to go unnoticed.

The tug Lucinda Clark was on a marine railway in the shipyard undergoing contract repairs, including the removal and partial replacement of a bent engine exhaust pipe running up through the top decking of the wooden deckhouse. On evidence fully sufficient, Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217; cf. C. J. Dick Towing Co. v. The Leo, 5 Cir., 202 F.2d 850, 1953 AMC 498; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 AMC 1999, the Court, trying this Civil Action without a jury, found that, in cutting with an acetelyne torch or in welding, a fire was negligently started. The shipyard employees threw a small amount of water on the area where the pipe came through the tar roofing paper apparently, though negligently, considering that the fire was extinguished. This was about 1:00 (noon) Sunday. About 3:00 p. m., after all shipyard employees had left the vessel, the tug Master saw smoke again coming from the same area. He, as had the shipyard employees, poured a small amount of water around the pipe thinking, although negligently mistaken, that the fire was out.

On leaving the tug an hour later, he instructed the Chief Engineer to be cautious about the possibility of fire, and around 5:00 p. m. the Chief Engineer, seeing smoke in the same area, repeated the negligent sequence of 1:00 p. m. and 3:00 p. m. by dousing a little water in this area under the mistaken, and negligent, belief that the fire was extinguished. Within an hour, all hands had gone ashore with no notice to the shipyard of either recurrence of the fire. Near 8:00 p. m. the shipyard's night watchman discovered the tug afire, but despite strenuous efforts by shipyard personnel and the local fire department, the fire was out of control and extensive damage⁴ was done.

By extensive oral record statements at the conclusion of arguments, the Judge made it clear that he then considered both shipyard negligent and tug owner contributorily negligent,⁵ and, apparently of the view that, following Louisiana law for a non-maritime tort, contributory negligence would bar recovery entirely, he announced his direction to enter judgment for the defendant shipyard. On plaintiff tug owner's motion for new trial, Hedger Transportation Corp. v. United Fruit Co., supra, and the interment of Belden v. Chase, supra, was pressed heavily to secure a judgment for half damages under the usual admiralty rule of mutual fault. Overruling this, the Court escaped the problem by then holding that the shipyard's negligence was a condition,⁶ not a cause.

We agree with the tug owner that, the fire having been caused by the shipyard's negligence and its errors in failing properly to extinguish it being exactly of the same kind as the tug owner's, the finding of "condition" is clearly erroneous and cannot stand.

Though we join with the Second and Third Circuits in applying the maritime doctrine of divided damages, cf. Hartford Accidents & Indemnity Co. v. Gulf Refining Co., 5 Cir., 230 F.2d 346, to maritime causes of action whether pending as Civil Actions or Admiralty libels and conclude that the non-maritime location of the damage, T. Smith & Son, Inc., v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520, 1928 AMC 447; State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S. Ct. 473, 66 L.Ed. 933; cf. Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, 1933 AMC 794; Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, 1939 AMC 129; Avondale Marine Ways v. Henderson, 5 Cir., 201 F.2d 437, 1953 AMC 432, affirmed per curiam 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, 1953 AMC 1990, is of no significance in the face of a time-honored traditional maritime cause of action for failure prudently to perform, cf. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, the maritime contract, Archawski v. Hanioti, 350 U.S. 532, 76 S.Ct. 617, for vessel repairs irrespective of the locale of performance, North Pacific Steamship Co. v. Hall Bros. M. R. & S. Co., 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510; The Robert W. Parson, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73; Hall-Scott Motor Car Co. v. Universal Insurance Co., 9 Cir., 122 F.2d 531, 1941 AMC 1878, certiorari denied 314 U.S. 690, 62 S.Ct. 360, 86 L.Ed. 552, an automatic reversal with direction to enter judgment for half damages is far from indicated.

This is so because the principle applicable is not the ordinary one of contributory negligence which relates to the use of due care to avoid the happening of the event (here the fire) giving rise to the initial harm. Rather it is, or is akin to, the one universally⁷ applied for both torts and contracts, generally described as the doctrine of avoidable consequences and under which a plaintiff, with an otherwise valid right of action, is denied recovery for so much of the losses as are shown to have resulted from failure on his part to use reasonable efforts to avoid or prevent them. The contrast is most vivid in contemplating a traditional common law situation. "If the plaintiff by negligent action or inaction before the defendant's wrongdoing has been completed has contributed to cause actual invasion of plaintiff's person or property, the plaintiff is wholly barred of any relief. The doctrine of avoidable consequences comes into play at a later stage. Where the defendant has already committed an actionable wrong, whether tort or breach of contract, then this doctrine limits the plaintiff's recovery by disallowing only those items of damages which could reasonably have been averted * * * contributory negligence is to be asserted as a complete defense, whereas the doctrine of avoidable consequences is not considered a defense at all, but merely a rule of damages by which certain particular items of loss may be excluded from consideration * * *" emphasis the author's, McCormick on Damages, West Publishing Company, 1935, Chapter 5, Avoidable Consequences, pages 127 et seq.; see also 61 Harvard Law Review (1947), 113, 131-134, Developments in Damages. Recognized universally,⁸ it is nonetheless understandable that variable conceptual explanations⁹ are given ranging from contributory negligence, as such, lack of proximate cause and a so-called "duty" to mitigate. Admiralty courts are not free from this confusion.¹⁰ But the result desired has a more adequate explanation for, "In such cases it is not true that the injured person has a duty to act nor that the conduct of the tortfeasor ceases to be a legal cause of the ultimate harm; but recovery for such harm is denied because it is in part the result of the injured person's lack of care and public policy requires that persons should be discouraged from wasting their resources both physical or economic", Restatement of the Law of Torts, § 918, page 602.

So far as the original fire is concerned, there was, of course, no basis for imposing any or all or part of its consequences on the tug owner. The shipyard, on the basic fact findings of the District Court freed by us, as clearly erroneous, of the conclusion of "condition", was and remains clearly liable for this and all damage proximately caused by this fire.

The tug owner's action subsequent to that related not to liability but to a possible reduction in the award to the extent that its failure to take reasonable steps augmented the loss. This was, then, a question of diminution of damages, a matter strictly speaking, reserved by stipulation to a later day and not then before the Court, and, in any event, not adequately assayed¹¹ in the light of these applicable principles.

The judgment of dismissal must, therefore, be reversed and remanded with directions to enter interlocutory finding for the plaintiff tug owner, Southport Transit Company, and to take further, other and not inconsistent proceedings for the determination,¹² allowance and award of damages and the entry of final judgment thereon. On the remand, however, the...