Swenson v. The Argonaut, Consolidated Cause No. 10812 (Including Causes No. 10811-10815
| Decision Date | 07 May 1953 |
| Docket Number | 10823-10827).,Consolidated Cause No. 10812 (Including Causes No. 10811-10815 |
| Citation | 204 F.2d 636 |
| Parties | SWENSON v. THE ARGONAUT et al. THE ESTELLE. THE SUSAN. |
| Court | U.S. Court of Appeals — Third Circuit |
Frank C. Mason, New York City (Cruse, Becker & Longstreet, Jersey City, N. J., Mahar & Mason, New York City, on the brief), for appellants in Nos. 10812 to 10815, inclusive.
Robert S. Erskine, New York City (Cox & Walburg, Newark, New Jersey, Kirlin Campbell & Keating, New York City, on the brief), for Farrell Lines, Inc.
Logan Cresap, Jr., New York City (John B. Gest, Philadelphia, Pa., on the brief), for Hercules Co.
Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.
A brief prologue may perhaps serve to soften the impact of a subsequent inevitably detailed recital of a complex sequence of litigation in the United States District Court for the District of New Jersey and appeals and cross-appeals in this Court.
On August 15, 1947, the steamship Argonaut owned by Farrell Lines Incorporated ("Argonaut") was moored to a pier in Jersey City, New Jersey operated by a group of individuals trading as The Hercules Company ("Hercules"). The Argonaut broke adrift in a storm damaging a catamaran and four barges moored at the foot of the same pier.
The owners of the damaged craft ("Libellants") brought four separate actions in admiralty1 against Argonaut charging it with negligence. Argonaut answered denying negligence on its part, and by petition impleaded Hercules in each of the four suits charging that its breaking adrift was due to the pier's defective and inadequate mooring facilities. Hercules answered the impleading petitions denying negligence and counter-claimed and cross-libeled Argonaut for damages to the pier.
Argonaut added to the roster of the four aforementioned suits with a fifth separate action against Hercules seeking recovery for damages to the steamship Argonaut, and Hercules, in its answer denying any negligence on its part, also counter-claimed and cross-libeled for damages to its pier.
The five suits by stipulation of all the parties involved came to trial in the District Court as a consolidated case.
After hearing, the District Court in a Consolidated Final Decree dismissed the four suits brought by the Libellants; Argonaut's impleading petitions and Hercules' counter-claims and cross-libels therein; and Argonaut's separate suit against Hercules and the latter's counter-claim and cross-libel therein.
The District Court's dismissals were premised on its determination that (1) the steamship Argonaut was moored in a seamanlike manner; (2) Hercules' pier and its facilities were properly constructed and maintained; and (3) "the accident was the result of an inevitable and unforeseeable force (sudden storm) which could not have been protected against by the degree of nautical skill required of the operators of the ship or the dock".
In a veritable Donnybrook Fair melee all and sundry involved in the five separate actions below have filed appeals from whatever aspect of the Consolidated Final Decree which was adverse to them.2
Appreciative of the complexities of the situation, all the parties have here entered into a Stipulation consolidating their separate appeals under Consolidated Cause No. 10,812. The Stipulation provides that our decision in this Consolidated Cause will be dispositive of all the appeals.
As we have frequently observed, an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the District Court; the findings of the latter when supported by competent evidence are entitled to great weight and should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong.3
On this score it must be noted that the District Court's Findings of Fact with respect to the sequence of events on the day of the accident are undisputed. They are as follows:
On August 15, 1947, the Steamship Argonaut was moored in the outer berth on the north side of the dock at the foot of Washington Street in Jersey City.4 Dock trials had been had in the morning and extra lines were put out and had not been removed at the time of the accident. The lines were as follows: forward and aft lines, including spring lines and one breast line.5 The breast line was one of two6 attached to the dock and belonging to Hercules. The breast line used parted during the accident, but none of the ship's lines did. The aft or stern lines were fastened to a pile cluster aft of the dock and abreast the stern of the ship. In the late afternoon of August 15, 1947, about 5 P.M., a storm of about twenty minutes duration arose. Its center was localized in the vicinity of the ship and during its course the force of the wind increased from twenty to forty and then to sixty miles per hour. The sudden increase in the force of the wind was strong enough to cause the pile cluster to lay over and snap a steel wire and to rupture a bollard so that it split, although the fastenings of the bollard remained without breaking loose. Due to the laying over of the pile cluster, the lines running from the ship to the pile cluster slipped off.
It is readily discernible that the fact findings above recited relate to the physical facts of the accident. The Libellants vigorously take issue with the District Court's determination that they disclose that "The steamship Argonaut was moored in a seamanlike manner".
There was one additional Finding of Fact which concerned the question as to whether er notice had been given by the United States Weather Bureau of the storm on the evening of August 15th. The District Court made the fact finding that "The storm was not foreseen by the United States Weather Bureau, which did not put out a storm warning." The Libellants dispute that fact finding. The record on that score reveals:
Benjamin Parry who was Chief of the United States Weather Bureau's New York office on the day of the accident, testified that "* * * more than 24 hours, probably 36 hours advance notice" had been given of the thunder storm on the evening of August 15th.7 He also stated that the weather forecast correctly indicated the extent of the storm.8
Of critical significance is the further testimony of Mr. Parry that the storm was a typical summer thunder storm — common for the locality, and that the incidence of a 60 mile-an-hour wind was not extraordinary.9
The United States Weather Bureau record for August 15th, offered in evidence, contained this description of the storm, "A severe thunder storm moving rapidly from west to east, accompanied by hail."
This disinterested expert characterization of the storm as "a severe thunder storm" and typical summer thunder storm common for the locality, bears significantly on the District Court's determination that the breaking adrift of the Argonaut was an "inevitable accident".
It is crystal clear from the questions asked Mr. Parry by the trial judge; his "Oral Conclusions" stated at the conclusion of the trial; and his Findings of Fact and Conclusions of Law, that he premised his application of the principle of "inevitable accident" on his assumption that the thunder storm was of such unusual nature and "terrific" violence as to be of cyclonic or hurricane proportions; that it had not been "foreseen" by the Weather Bureau and could not have been "foreseen by the master of the vessel". The record establishes that the District Court erred in these respects; that on the contrary the storm was not "catastrophic" nor "of so unusual a character" that a case of inevitable accident was made out;10 while the storm was severe it was "expectable" during the summer;11 and it was not "irresistible, overwhelming, and extraordinary for the particular time of year to be a good exception and not a common occurrence at that season of the year".12
Apart from these considerations and assuming even that the District Court was correct in its appraisal of the nature of the storm, it erred in its application of the principle of "inevitable accident".
It is well-settled that the burden of proving inevitable accident is "heavily" upon the party asserting that defense;13 that a finding of inevitable accident is "not to be lightly arrived at";14 that the respondent must affirmatively establish that the accident "* * * could not have been prevented by the use of that degree of reasonable care and attention which the situation demanded",15 and that there was no intervening act of negligence on its part;16 when a collision is caused by a vessel drifting from her moorings there is a presumption of fault on her part and "she must be liable * * * unless she can show affirmatively that the drifting was the result of inevitable accident, * * * which human skill and precaution and a proper display of nautical skill could not have prevented."17
Applying these principles, we are of the opinion that the Argonaut failed to discharge her heavy burden of proving inevitable accident; that she did not rebut the presumption of fault nor show affirmatively that there was no intervening act of negligence on her part; nor did she establish that she had exhibited in her mooring the degree of reasonable care and attention which the situation demanded and finally that she did not prove that her drifting could not have been prevented by the use of proper nautical skill.
The record literally bristles with affirmative proof of the negligence of the Argonaut. Captain Donnelly, her Master, testified that when he was contemplating going ashore some twenty minutes before the Argonaut broke adrift he observed "obviously threatening weather" (darkening skies) toward the southwest18 and "decided to wait and see the blow". Despite all this, however, Captain Donnelly made no further inspection of his mooring lines and took no action with respect to them.19 He just went to his quarters and...
To continue reading
Request your trial
-
American River Trans. v. Paragon Marine Services
...and that the party asserting the defense must affirmatively establish that the accident could not have been prevented. Swenson, 204 F.2d at 640. cc. "In other words, the vessel that breaks loose from her moorings has the burden of establishing inevitable accident . . . and the burden is not......
-
Zubik v. Zubik
...judge that the appellant did not sustain its "heavy" burden of proof. As the leading case in this Circuit sets forth, Swenson v. The Argonaut, 204 F.2d 636 (3rd Cir. 1953), when a collision involves a vessel drifting loose from its moorings, the respondent must overcome a presumption of fau......
-
P. Dougherty Co. v. United States
...October, 1950. (7) CGC Yocona — Kallie P., Hansen v. United States, (D.C.Ore. No. 6634) — suit begun September, 1952. 13 Swenson v. Argonaut, 3 Cir., 1953, 204 F.2d 636; Read v. United States, 3 Cir., 1953, 201 F.2d 14 It is immaterial that an opposite conclusion might well have been reache......
-
United States v. Osage Co., Inc.
...Zubik v. Zubik, supra at 269-270; Patapsco Scrap Corp. v. Maryland Shipbuild. & DryDock Co., supra at 819-820; Swenson v. The Argonaut, 204 F.2d 636, 640 (3rd Cir. 1953); The Chickie, 141 F.2d 80, 82 (3rd Cir. 1944); General Public Warehouse Co. v. Queen Line, Ltd., Maritime law has establi......