TH Browning Steamship Co. v. FH Peavey & Co.

• Decision Date: 06 August 1956
• Docket Number: No. 15509.,15509.
• Citation: 235 F.2d 5
• Parties: T. H. BROWNING STEAMSHIP COMPANY, Inc., a Michigan Corporation, Appellant, v. F. H. PEAVEY & COMPANY (a Corporation), Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

235 F.2d 5 (1956)

T. H. BROWNING STEAMSHIP COMPANY, Inc., a Michigan Corporation, Appellant, v. F. H. PEAVEY & COMPANY (a Corporation), Appellee.

No. 15509.

United States Court of Appeals Eighth Circuit.

July 6, 1956.

Rehearing Denied August 6, 1956.

Sparkman D. Foster, Detroit, Mich. (Foster & Meadows, Detroit, Mich., Dancer, Montague, Applequist, Lyons, Nolan & Nordine and Patrick J. Lyons, Duluth, Minn., and John Arthur Hamilton, Detroit, Mich., were with him on the brief), for appellant.

Daniel H. Mundt, Duluth, Minn. (McCabe, Clure, Van Evera & Donovan, Roger W. Spencer, Duluth, Minn., A. C. Remele, and J. K. DeWerff, Minneapolis, Minn., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Respondent, T. H. Browning Steamship Company, Inc., appeals from a final judgment in favor of libelant, F. H. Peavey & Company, hereinafter sometimes called Peavey, for damages to Peavey's dock, alleged to have been caused by the negligent operation of respondent's steamship, the Browning. This action was brought in admiralty pursuant to 46 U.S.C.A. § 740. This court has jurisdiction.

The evidence bearing upon the issues of negligence and contributory negligence is detailed and conflicting. In its initial brief respondent made the contention that an admiralty appeal is triable de novo. The parties now apparently agree that the findings of the trial court should not be set aside unless clearly erroneous. Such is the law. In McAllister v. United States, 348 U.S. 19, at page 20, 75 S.Ct. 6, at page 8, 99 L.Ed. 20, the Supreme Court speaking of the scope of review in admiralty cases states:

"* * * In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Cases cited. A finding is clearly erroneous when `"although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."\' * * *"

We will not attempt to review the facts in detail, but we look to the record to ascertain whether the court's findings and conclusions are supported by substantial evidence, bearing in mind the rule that the evidence must be viewed in the light most favorable to the party prevailing in the trial court.

Upon the issue of negligence the court found that the master of the Browning was negligent in conducting a dock test lasting for a period of approximately one and one-half hours while the ship was moored to the Peavey dock, and that such dock test was the proximate cause of the undermining of the Peavey dock and resulting damage.

Peavey owned a large grain elevator upon the lake front at Duluth and maintained a dock adjacent to the elevator to facilitate the loading of grain from its elevator into ships. This dock was built in 1899 and was of crib construction, the cribs extending 24 feet below low water datum to the lake bottom and being filled with sand and silt and anchored to each other and to piles driven into the lake bottom. Many of the docks in the Duluth harbor are of this type of construction. The Browning had been towed to the Peavey dock on April 3, 1952, for loading. The ship had undergone a major overhaul during the winter at Knudsen dock, and such repairs were completed by Knudsen's employees while the ship was at the Peavey dock. The Browning, after receiving a load of 6,656 tons of grain, had a draft at the stern of 20 feet 4 inches. Its propeller, consisting of four blades, was 11½ feet in diameter. On the afternoon of April 4, after the completion of the overhaul job, a dock test of the Browning was conducted. This consisted of operating the ship's propeller forward and backward at varying speeds while the ship was tied to the Peavey dock. The respondent admits that the dock test ran for 45 minutes. The trial court on conflicting evidence found that the dock test lasted for approximately one and one-half hours. The trial court states:

"In the exercise of reasonable care, the master of the Browning should have known that the movements of the propeller for that length of time in the performance of a dock test would have a tendency to scour and dissipate large quantities of the soil in the slip alongside the dock. That substantial scouring of the slip resulted from the dock test seems fully sustained by the evidence."

The master of the Browning admits that he knew the lake bottom in the Duluth dock area was sandy or muddy silt upon which the operation of the propeller would have a scouring effect. No permission for running the dock test was sought or obtained, and no effort was made to learn of the dock's construction or to ascertain the depth of the water adjacent to the dock. The Peavey dock was a private dock maintained for the purpose of loading ships from the Peavey elevator and was not a repair or test dock.

A careful consideration of all the evidence leads us to the conclusion that the trial court's finding that the master of the Browning failed to exercise ordinary care in conducting the dock tests is supported by substantial evidence.

The evidence likewise adequately supports the trial court's determination that the aforementioned negligence was the proximate cause of the damage to the Peavey dock. It is undisputed that the dock began to cave in just as the Browning pulled away from it. The Browning was the first ship to use the dock in the 1952 season, and a number of heavy trucks had traveled over the dock on the day of its collapse. Observation by a diver and soundings made after the accident established that a large scoured hole, 22 feet long and 29 feet below the low water datum, was found at the point which had been occupied by the stern of the Browning during the dock test. Expert evidence, although contradicted, also established that the scouring by the Browning's propeller caused the undermining of the cribs supporting the dock.

Respondent next urges that the court's finding that Peavey and its employees were free from negligence which contributed to the damage is not supported by substantial evidence. Both parties cite with approval language from Aide v. Taylor, 214 Minn. 212, 7 N.W.2d 757, 761, 145 A.L.R. 530, as follows:

"Contributory negligence, like negligence, is the failure to exercise due care to guard against harm reasonably foreseen or anticipated. * * *"

We shall apply such test to the evidence.

The respondent contends that Peavey should have placed a sign upon its dock, warning against the operation of the propeller, and that Peavey or its employees should have warned the ship's master not to turn the wheel. A warning sign had been placed on the dock prior to 1938. The master of the Browning had not been aware of the previous existence of a sign, so he was in no way misled by its removal in 1938. Some of Peavey's employees observed the Browning's wheel operating. It was the usual practice to warm up ships' engines by using their wheel for a period of 5 to 15 minutes. This, however, is entirely different from a prolonged post-overhaul dock test such as was made here. The trial court states:

"* * * However, there was no duty resting upon the elevator owner to warn masters of vessels trading at this dock of the danger to the dock of a dock test or of prolonged operation of the propellers of their vessels. That danger was evident to any master operating vessels in the Duluth Harbor area. The scouring effect of propellers was common knowledge to everyone handling vessels in that area. * * Common prudence and good seamanship would suggest to any master of a vessel of the size of the Browning that, with a prolonged dock test, a propeller weighing many tons would be apt to produce pronounced scouring in the slip and the undermining of the adjacent dock. * * *"

We do not believe that the facts here before us compel a conclusion as a matter of law that Peavey was bound to anticipate that an experienced master of a large ship, familiar with the harbor, would run an extensive dock test without first seeking permission so to do, or without taking proper steps to ascertain that such test could be safely conducted without injury to the Peavey property. In Ford Motor Co. v. Bradley Transportation Co., 6 Cir., 174 F.2d 192, defendant's ship in maneuvering away from plaintiff's dock struck and damaged a coal unloader located on the dock. Defendant introduced...