Stissi v. Interstate and Ocean Transport Co. of Philadelphia

• Decision Date: 20 June 1985
• Docket Number: Nos. 650,760,D,s. 650
• Parties: Barbara STISSI, Individually and as Personal Representative of the Estate of Ronald Stissi, Deceased, Plaintiff-Appellee, v. INTERSTATE AND OCEAN TRANSPORT CO. OF PHILADELPHIA, Defendant. In the Matter of the Complaint of INTERSTATE TOWING CO., as Owner of the tug Delaware, Interstate Marine Transport Co., as Owner of the barge Interstate 36, and Interstate and Ocean Transport Co., as Bareboat Charterer of the barge Interstate 36, and the tug Delaware, Plaintiffs for Exoneration from or Limitation of Liability. Judith LAX, as Administratrix of the Estate of Ruth Calabro, Deceased, Plaintiff-Appellee, v. INTERSTATE TOWING CO., as Owner of the tug Delaware, Interstate Marine Transport Co., as Owner of the barge Interstate 36, and Sonat Marine, Inc., formerly known as Interstate and Ocean Transport Co., as Bareboat Charterer of the barge Interstate 36, and tug Delaware, Defendants, Sonat Marine, Inc., Defendant-Appellant Cross-Appellee. Thomas J. FUREY, Plaintiff-Appellee Cross-Appellant, v. INTERSTATE TOWING CO., as Owner of the tug Delaware, Interstate Marine Transport Co., as Owner of the barge Interstate 36, and Sonat Marine, Inc., formerly known as Interstate and Ocean Transport Co., as Bareboat Charterer of the barge Interstate 36, and tug Delaware, Defendants, Sonat Marine, Inc., Defendant-Appellant Cross-Appellee. Cal.ockets 84-7699, 84-7735.
• Court: U.S. Court of Appeals — Second Circuit

Page 370

765 F.2d 370

1986 A.M.C. 1032

Barbara STISSI, Individually and as Personal Representative of the Estate of Ronald Stissi, Deceased, Plaintiff-Appellee, v. INTERSTATE AND OCEAN TRANSPORT CO. OF PHILADELPHIA, Defendant.

In the Matter of the Complaint of INTERSTATE TOWING CO., as

Owner of the tug Delaware, Interstate Marine Transport Co.,

as Owner of the barge Interstate 36, and Interstate and

Ocean Transport Co., as Bareboat Charterer of the barge

Interstate 36, and the tug Delaware, Plaintiffs for

Exoneration from or Limitation of Liability.

Judith LAX, as Administratrix of the Estate of Ruth Calabro, Deceased, Plaintiff-Appellee, v. INTERSTATE TOWING CO., as Owner of the tug Delaware,

Interstate Marine Transport Co., as Owner of the barge

Interstate 36, and Sonat Marine, Inc., formerly known as

Interstate and Ocean Transport Co., as Bareboat Charterer of

the barge Interstate 36, and tug Delaware, Defendants,

Sonat Marine, Inc., Defendant-Appellant Cross-Appellee.

Thomas J. FUREY, Plaintiff-Appellee Cross-Appellant, v. INTERSTATE TOWING CO., as Owner of the tug Delaware,

Interstate Marine Transport Co., as Owner of the barge

Interstate 36, and Sonat Marine, Inc., formerly known as

Interstate and Ocean Transport Co., as Bareboat Charterer of

the barge Interstate 36, and tug Delaware, Defendants,

Sonat Marine, Inc., Defendant-Appellant Cross-Appellee.

Cal. Nos. 650, 760, Dockets 84-7699, 84-7735.

United States Court of Appeals, Second Circuit.

Argued Jan. 21, 1985.

Decided June 20, 1985.

James M. Hazen, New York City (Leonard & Kenny, New York City, of counsel), for defendant-appellant cross-appellee Sonat Marine, Inc.

Edward F. Gerace, Tampa, Fla., for plaintiff-appellee Barbara Stissi.

David Holmes, Merrick, N.Y. (Curtis, Zaklukiewicz, Vasile & Devine, Merrick, N.Y., of counsel), for plaintiff-appellee cross-appellant Thomas J. Furey.

James S. Rowen, New York City, for plaintiff-appellee cross-appellant Thomas J. Furey.

Jesse S. Waldinger, New York City (Kramer, Dillof, Tessel, Duffy & Moore and Charles F. McGuire, New York City, on the brief), for plaintiff-appellee Judith Lax.

Before VAN GRAAFEILAND, MESKILL, and WINTER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal and cross appeal from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.) apportioning fault and fixing damages in connection with a collision between a motorboat and a barge which occurred on Long Island Sound on August 22, 1980. Because this appeal follows a second trial and two reported opinions, one by this Court, 717 F.2d 752, and one by the district court, 590 F.Supp. 1043, there is no need for an extended recital of the facts. The accident occurred at night when Thomas Furey's motorboat, operated by Ronald Stissi with Furey and Ruth Calabro as passengers, attempted to cross the wake of the tugboat DELAWARE. The motorboat fouled its propeller on the DELAWARE's tow line and was struck by the barge that the DELAWARE was towing. Stissi and Calabro died as a result of the collision, and their respective estates are represented by Barbara Stissi and Judith Lax. The DELAWARE was chartered to Sonat Marine, Inc., formerly Interstate and Ocean Transport Co.

On the prior appeal, we affirmed in part and vacated in part Judge Nickerson's decision apportioning 80% of the fault for the collision to the tug and barge and 20% of the fault to the Furey boat. We held that the district court was correct in denying Sonat's and Furey's request for exoneration from, or limitation of, liability but concluded that the district court had erred in assessing only 20% of the fault to the Furey boat. Upon remand, the district court consolidated the claims for trial before a jury, the jury's verdict in the Lax and Furey actions to be advisory only. The district court held that Stissi was entitled to a binding verdict because she had elected to invoke the savings to suitors clause, 28 U.S.C. Sec. 1333, during the first trial.

Following a six-day trial, the jury found Sonat 94% at fault, Stissi 3% at fault, and Furey 3% at fault. The jury also fixed damages in the amount of $1,110,024 for Stissi, $567,574 for Lax and $40,000 for Furey. Thereafter, the district court adopted the jury's findings on both apportionment and damages. 590 F.Supp. at 1050.

Sonat argues on this appeal that the district court erred in retrying the issue of apportionment of fault instead of reconsidering that issue on the record of the first trial. We disagree; our mandate did not preclude a retrial. However, the district court did err in disregarding certain legal conclusions reached on the first trial and appeal, which should not have received de novo consideration. For reasons hereafter discussed, the issue of apportionment of fault will have to be tried a third time.

In 1980, a tug such as the DELAWARE, which had another vessel in tow, was required by then-current federal navigation rules to carry certain lights. One of these rules, 33 U.S.C. Sec. 173 (1976), provided that the tug should "in addition to her side lights" carry three bright lights not less than three feet apart in a vertical line. Section 173 also provided, by reference to 33 U.S.C. Sec. 172(a) and (f) (1976), that these lights should be carried "on or in front of the foremast, or, if a vessel without a foremast, then in the forepart of the vessel" (Sec. 172(a)), or, alternatively, in the same position that the after range single light would occupy on a vessel containing only a two-white-light central range (Sec. 172(f)).

There is no dispute as to the lights carried by the DELAWARE on the night of the accident. The evidence as to the lights was identical on both trials; the tugmaster's and Coast Guard's descriptions of the lights, as given on the first trial, were read into evidence on the second. At the conclusion of the first trial, the district court held that "the tug was exhibiting the lights required by Article 3 of the Inland Rules [33 U.S.C. Sec. 173] for a tug towing a barge astern, namely a white bow light, port and starboard running lights, three vertical bright white lights and an optional stern light." This Court agreed. 717 F.2d at 754. These were not findings of fact; they were conclusions of law.

When a decision turns on the meaning of words in a statute or regulation, the decision is one of law which must be made by the court. Trust of Bingham v. Commissioner, 325 U.S. 365, 371, 65 S.Ct. 1232, 1235, 89 L.Ed. 1670 (1945); Day v. Trans World Airlines, Inc., 393 F.Supp. 217, 220 (S.D.N.Y.), aff'd, 528 F.2d 31 (2d Cir.1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976); Gaibis v. Werner Continental, Inc., 565 F.Supp. 1538, 1548 (W.D.Pa.1983). The application of a statute's terms to undisputed facts also is a question of law. Gold Kist, Inc. v. United States, 339 F.Supp. 1249, 1255 n. 6 (N.D.Ga.1971), aff'd sub nom., ICC v. Gold Kist, Inc., 409 U.S. 808, 93 S.Ct. 106, 34 L.Ed.2d 67 (1972); United States v. Thompson, 252 F.2d 6, 9 (8th Cir.1958); see Nelson v. Montgomery Ward & Co., 312 U.S. 373, 376, 61 S.Ct. 593, 595, 85 L.Ed. 897 (1941); Dowell, Inc. v. Lyons, 238 F.2d 633, 635 (6th Cir.1956); Coleman Furniture Corp. v. Home Insurance Co., 67 F.2d 347, 351 (4th Cir.1933).

The district court's legal conclusions concerning the tug's compliance with Article 3, which were approved and adopted by this Court, thus became the law of the case and should have been followed by the district court on the second trial. Doe v. New York City Department of Social Services, 709 F.2d 782, 788-89 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Instead of adhering to this well-established rule, the district court permitted Richard Riley, a tugboat captain for the Texaco Company, to hold forth erroneously and at great length concerning the allegedly mandatory lighting requirements for a tug with tow astern on Long Island Sound. The end result was prejudicial and reversible error.

On six separate occasions, Riley, without referring to any specific rule or regulation, testified that the DELAWARE should have carried a yellow light on the stern; this, he said, was "mandatory". He testified that, because this light was absent, a pilot in Mr. Stissi's position "probably would be confused". It was only after Stissi's counsel informed the district court that Riley himself was confused about the yellow light that the district court told the jury a yellow light was unnecessary.

Assuming for the argument that Riley's error with reference to the yellow light was cured by the court's instructions, another more egregious error concerning the forward range light never was cured. Although the testimony and the photographs introduced on the first trial clearly established the presence and location of the white bow or range light, and the existence of this light was approved specifically by both the district court and this Court, Riley testified that the light was improper. What's more, he convinced the district court to overturn, not only its own prior ruling to the contrary, but also the holding of this Court, which, as stated above, established the law of the case.

The district court attempted to justify its ruling, stating that the evidence on the first trial "did not reveal, as it did at the jury trial, that in addition to the three vertical lights displayed by the tug it was also carrying an additional light that at certain angles could be mistaken for a fourth vertical light" and that "[t]his could have caused Stissi to mistake the three mast lights signalling that a barge was in tow." 590 F.Supp. at 1047. In making this statement, the district court erred, not once, but twice.

In the first place, even the most casual observer of the photograph of the bow of the DELAWARE, which was in evidence on both trials, could not help but see that, when viewed from directly ahead of the vessel, the forward...