State of Oregon, State Highway Com'n v. Tug Go-Getter

• Citation: 468 F.2d 1270
• Decision Date: 05 October 1972
• Docket Number: 25326 and 25342.,No. 25320,25320
• Parties: STATE OF OREGON, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Lackson, Kenneth N. Fridley and David B. Simpson, Plaintiff-Appellant, v. TUG GO-GETTER, her engines, apparel, equipment, et al., Defendants-Appellees. Petition of SAUSE BROS. OCEAN TOWING CO., Inc., a corporation, for Exoneration from or Limitation of Liability, as the Owner of the Tug Go-Getter, Petitioner,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

468 F.2d 1270 (1972)

STATE OF OREGON, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Lackson, Kenneth N. Fridley and David B. Simpson, Plaintiff-Appellant, v. TUG GO-GETTER, her engines, apparel, equipment, et al., Defendants-Appellees Petition of SAUSE BROS. OCEAN TOWING CO., Inc., a corporation, for Exoneration from or Limitation of Liability, as the Owner of the Tug Go-Getter, Petitioner,

Nos. 25320, 25326 and 25342.

United States Court of Appeals, Ninth Circuit.

August 7, 1972.

Rehearing Denied October 5, 1972.

William F. White (argued), of White, Sutherland & Gilbertson, Portland, Or., Lee Johnson, Atty. Gen., Portland, Or., George E. Rohde, Chief Counsel, Salem, Or., Samuel L. Holmes, of Angell, Adams & Holmes, San Francisco, Cal., for plaintiff-appellant.

Johnathan A. Ater (argued), Carl R. Neil, of Lindsay, Nahstoll, Hart, Dafoe & Krause, Portland, Or., Walter H. Evans Jr. (argued), William D. Peek, Portland, Or., for defendants-appellees.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

Rehearing Denied in Nos. 25320 and 25326 October 5, 1972.

MERRILL, Circuit Judge:

The Coquille River empties into the Pacific Ocean at Bandon, Oregon. Some two miles upriver from Bandon, Bullard Bridge crosses the river. The bridge is owned, maintained and operated by the State of Oregon as part of the state's highway system. On October 4, 1966, the tug, Go-Getter, towing the barge, J. Whitney, was making an upstream passage through the draw span of Bullard Bridge when the starboard bow of the barge collided with the south channel pier of the bridge, damaging the web wall and upstream column of the pier. Repair expense in the sum of $191,938.70 was incurred.

Oregon brought this suit to recover damages. Named as defendants were the tug Go-Getter in rem; Sause Bros. Ocean Towing, Inc., owner of the Go-Getter; Captain Charles May, who was operating the Go-Getter at the time of the collision, and Olson Towboat Co., employer of May.¹ Judgment was entered against all parties. The court, 299 F. Supp. 269, found the defendants to represent two separate interests and divided damages between those two interests: Sause Bros. and the Go-Getter on the one hand; Olson Towboat and Captain May on the other.

Appeals have been taken by Oregon, by Sause Bros. and by Olson Towboat. Oregon protests the District Court reduction of its recovery by application of the rule against "new for old." Sause Bros. appeals the District Court's refusal to limit its liability to the value of the Go-Getter. Olson Towboat appeals the court's determination that Captain May's services aboard the Sause Bros. tug were within the scope of his employment by Olson Towboat.

On October 4, 1966, the barge J. Whitney, owned by Oliver J. Olson Co. entered Bandon Harbor en route to the Olson Co.'s lumbering operations at Rogge's Mill on the Coquille River. The barge was towed by the Jean Nelson, a tug owned by Olson Towboat Co., which company was in turn owned, to substantial extent at least, by the Oliver J. Olson Co. Since the Jean Nelson had too deep a draft to navigate the river, officials of both the Olson Co. and the Towboat Co. had arranged with Sause Bros. to have one of its towboats take the boat upriver to Rogge's Mill. In Bandon Harbor the change of tugs was made. Captain May of the Jean Nelson had formerly worked as a tugboat captain for Sause Bros. Before change of tugs was made Curtis Sause, vice-president of Sause Bros., instructed the captain of the Go-Getter that Captain May was to be in charge of taking the Go-Getter upstream. The crew of the Jean Nelson transferred from that tug to the barge, apparently in accordance with company practice, and also made passage upstream to aid in making the barge fast at its destination. Captain May was at the controls when the Go-Getter and barge passed under Bullard Bridge. Apparently the collision occurred when Captain May, inadvertently and unknown to himself, bumped into the clutch and knocked the vessel out of gear at a critical time during the maneuver.

OREGON'S APPEAL

Bullard Bridge, built of concrete and steel, was completed in 1954. It had been in service for twelve years at the time of the collision. There was no evidence of deterioration (save as to the piers). Both the location and plans for the bridge had been approved by the United States Corps of Engineers in 1951. A minimum width of seventy-five feet between channel piers was specified in order to accommodate passage of vessels. Notice of application for approval had been given and expressions of interested parties had been solicited. No objection to the location, size or design of the bridge had been registered. In 1954 the Corps of Engineers certified the completed bridge as conforming to approved plans.

The piers of Bullard Bridge were not provided with fenders, dolphins or pilings to absorb impact. In 1968 and for several years prior thereto the principal river traffic consisted of lumber barges in transit to and from Rogge's Mill. In 1966 these barges were sixty-eight feet wide and passage under the bridge frequently entailed scraping and bumping against the piers.

Based on these facts, experts for the defendants expressed the opinion that the piers had a life expectancy independent of that of the remaining bridge structure because of the probability of major and minor damage from the barge traffic. Further they asserted that the piers were capable of replacement independent of the remaining structure.

In light of these facts and accepting the expert testimony the District Court found that the channel piers had a life expectancy of not more than thirty years "because of the hazards of severe damage due to the narrow passage between the two piers and the lack of pier protection." Since the piers had already enjoyed twelve years of life, the court applied a 40 per cent (12/30ths) depreciation factor and reduced recovery accordingly.

We hold this to be error.

The "new for old" rule seeks to avoid giving the injured person the windfall of providing him with a new replacement for that which was old and depreciated and would in normal course have to be replaced in any event.²

The rule has no application here.

In J. W. Paxson Co. v. Board of Chosen Freeholders, 201 F. 656, 663 (3d Cir.1912), an iron draw span of a bridge was damaged when a barge struck it. The span was replaced. The court stated:

"The plaintiff was compelled, by the negligence of the defendant, to build a new structure, which, as a new structure, was possibly, though not certainly, more valuable than the old one. But the old structure sufficed for the purposes of the plaintiff, and the plaintiff was damaged by being compelled to procure a new structure in place of the old one, for the contract price of which it was obliged to pay. The sufferer by the negligence of the defendant cannot be compelled to perform the impossible task of re-creating the old span, without buying a new one, or make a nice computation of the difference in value between the old one and the new. The plaintiff did not need a new span. The old one was sufficient, and the county was damaged by being compelled to incur the cost of a new one."³

The same rule was more recently applied in United States v. Ebinger, 386 F.2d 557 (2d Cir.1967), the court recognizing, however, that the rule may well be otherwise "where the damaged part was scheduled for early replacement, long before the expiration of the useful life of the whole."

Here the pier was an integral part of the bridge structure, not a separate part that through normal wear and tear would require independent replacement during the life of the structure. We cannot accept the assertion that the hazards of river traffic gave the piers an independent life expectancy of their own. Those hazards cannot in this case be imposed upon the owner of the bridge but must be assumed by the vessel creating the hazard. Government approval of the design and specifications of the structure constituted an authoritative determination that in the public interest river traffic could be limited to those vessels that could navigate the river without endangering the bridge. Oregon had every right to insist that river traffic avoid contact with its bridge and refrain from using the piers as though they were a ferry slip. While Oregon may not have insisted on this in the past, this does not mean that the state must continue to suffer such practices in the future and thus reduce the bridge's life expectancy.

Under these circumstances it is of no significance that the pier could be separately repaired or even replaced. (So could a single wall of a building.) The repair or replacement adds nothing of substance to the over-all value of the structure of which it is an integral part and the life expectancy of the entire structure has not been extended.

We conclude that Oregon is entitled to unreduced judgment in the sum of $191,938.70. Judgment must be modified accordingly.

SAUSE BROS.' APPEAL

On appeal Sause Bros., owner of the tug, Go-Getter, makes the sole contention that the District Court erred in not limiting its liability to the value of the tug.

Under the Limitations Act, 46 U.S.C. §§ 183-189, the owner of a vessel held at fault in a collision is entitled to limit his liability to the value of the vessel if the negligent acts or conditions were without his privity or knowledge. He is not personally responsible for the navigation and management of a seaworthy vessel after it is under way and outside his presence or that of his superintendent. Oliver J. Olson & Co. v. Luckenbach Steamship Co., 279 F.2d 662, 672-673 (9th Cir.1960).

Here the District Court found that Sause Bros. itself was negligent "because it negligently permitted a single tug to be used in a delicate operation under adverse weather conditions and under control of a master who was not acquainted with the tug's controls, all of which Vice-President Curtis Sause knew....