The Noah's Ark v. Bentley & Felton Corporation

• Decision Date: 30 June 1961
• Docket Number: No. 18696.,18696.
• Citation: 292 F.2d 437
• Parties: THE Oil Screw NOAH'S ARK and Charles E. Graham, Appellants, v. BENTLEY & FELTON CORPORATION, owner of THE Oil Screw CUDJOE et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

292 F.2d 437 (1961)

THE Oil Screw NOAH'S ARK and Charles E. Graham, Appellants, v. BENTLEY & FELTON CORPORATION, owner of THE Oil Screw CUDJOE et al., Appellees.

No. 18696.

United States Court of Appeals Fifth Circuit.

June 30, 1961.

William S. Stone, New Orleans, La., Walter Humkey, James L. Hurley, Miami, Fla. (Deutsch, Kerrigan & Stiles, New Orleans, La., Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel), for appellant and cross-appellee.

Linwood Anderson, Russell C. Gay, Miami, Fla., Robert C. Youmans, Key West, Fla., Gerard Ehrich, Gay & Anderson, Miami, Fla. (Ehrich & Zuckerman, Miami, Fla., of counsel), for appellee and cross-appellant.

Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.

JOHN R. BROWN, Circuit Judge.

Growing out of the salvage of the Noah's Ark, three principal questions are raised by this appeal and cross appeal. The first is the nature of the legal liability of the salvor, the Shrimper Cudjoe, for damage sustained by the Noah's Ark as a result of the salvor's negligence. The second is the extent of the damage attributable to the fault of the salvor. And the third is whether the salvage award, reduced because of the salvor's negligence, was inadequate.

Giving it perhaps even more of a scriptural flavor, the decree was an unusual one with Solomonic overtones. The Court held, first, that the salvage award should be reduced markedly because of negligence of the salvor Cudjoe in releasing the Noah's Ark without warning after arrival in the port of refuge. Despite this, on the Noah's Ark cross-libel for affirmative recovery of damages, it then held that this claim should be dismissed since the extensive damage sustained by her pounding on the rocks after negligent release was due to the sole fault of her own crew and in no sense the proximate result of negligence of the salvor. No one is satisfied and all appeal. When we say "all appeal," we mean it literally. For not the least of the complications in what otherwise appears to be a pretty simple case is the array of counsel nominally on the same side, but each having separate interests. One proctor appeared for the Cudjoe's salvage claim, another to defend the damage cross-libel. And, as might have been expected for one bearing the name of the Noah's Ark, her counsel came by twos apparently under a similar division on her behalf. Reacting to this, the Court added to the troubles by attempting to keep the trial of the salvage libel, with its answer of negligent damage to the Noah's Ark as a defense or set-off, separate from that of her cross-libel for the same damages to which defense was made by the Cudjoe. The result was that the Judge had to listen to frequent repetitious reading of the same depositions or extended colloquy of counsel as to just what was then being tried, offered or determined. We stress this because in reality it was one case. And it is this failure — through the influence of these extraneous factors — to recognize it as substantially one case which, we feel, is in large part responsible for the contradictory conclusions of the Trial Court.

The Noah's Ark is a small shrimper 57 feet long. On January 1, 1958, when about 70 miles west of Key West, Florida, her engine broke down. She attempted to get help from the Coast Guard but this was declined. By exchange of radio messages the Cudjoe, also a shrimper, advised she would help. The tow started about 10:00 p. m. January 1. The seas were calm and weather good, but warnings were out for impending heavy weather. Early in the morning on January 2 winds and seas whipped up. The nylon anchor line of the Noah's Ark being used for a tow line parted. Increased seas caused it to part again. A seacock was damaged and the Noah's Ark started taking on water. The auxiliary pump became inoperative so that there was a considerable amount of water in the engine space over the bilges from sea water and melting ice. The tow line parted again. Finally the Noah's Ark rigged a new tow line by using one of her steel trawl cables.

Approaching Key West Harbor the Coast Guard again was unable to render assistance. Radio communications still existed between the Cudjoe and Noah's Ark and while the evidence and terms of it was somewhat vague, the Judge found that the two masters agreed that on arrival in Key West Harbor, the Noah's Ark would make fast to the cable vessel Western Union regularly anchored in the Bight. About 6:00 p. m. January 2 the vessels entered Key West Harbor. The winds were then 60 to 72 mph varying from NE to NNW. The weather was nasty, cold and with intermittent downpours of rain. The Noah's Ark was still on the towing cable some 450 feet long. The Cudjoe heading into the wind made a line fast from her bow to a Navy finger pier on the north side of the harbor. The Noah's Ark streaming on the trawl cable was parallel to and close by the Western Union. The time was estimated from three to four minutes to as much as fifteen to twenty minutes. But the Court found that the wind held the Noah's Ark alongside for "several moments." One crew member of the Noah's Ark may have momentarily been aboard the Western Union but with wind and waves affecting both, it was not possible to secure.

At this point, and with no explanation whatsoever which would withstand even the slightest cross-examination, the Cudjoe cast off the trawl tow line. A faint claim is made that Navy guards were seen approaching and the Cudjoe's master was apprehensive that they would make him cast off the line from the pier. Of like weight was the suggestion that the long tow line presented a danger to vessels between the Cudjoe's stern and the bow of the Noah's Ark. The District Court paid these scant heed, as do we. It found categorically that while the master of the Cudjoe believed that the Noah's Ark "was fast to the Western Union" the Cudjoe cast the line loose "without any warning to the Noah's Ark." At this time the Cudjoe knew that the Noah's Ark's radio was no longer serviceable. With neither radio nor any other means by those aboard the Noah's Ark to communicate essential information to the Cudjoe, the Cudjoe made a baseless assumption and cast off.

The Noah's Ark, a helpless, powerless derelict, was adrift in 60-70 mph winds. She was caused "to drift with the high wind several hundred yards across the harbor, where she came alongside of and in contact with a sand dredge * * * tied to the seawall" on the south side of Key West Bight.

While we defer for a moment the discussion of the legal principles concerning the duty of salvors, it simplifies the problem to assay the conduct of the Noah's Ark and the Cudjoe on the assumption that ordinary prudence was the standard of care with respect to this initial occurrence. On that inquiry it is plain that this was palpable and glaring fault on the part of the Cudjoe. The District Court held as much in the formal conclusions of law that the "salvors * * were guilty of negligence in releasing the Noah's Ark without any warning and without ascertaining * * * whether * * * the Noah's Ark was fast to the Western Union."

Equally plain to us is the freedom from fault of the Noah's Ark in her drifting southward and thereafter until she fetched up along the cement seawall. The first stage from the position alongside the Western Union to the sand dredge was one of helplessness. Many theories were advanced to place blame on the Noah's Ark, principally for not dropping an anchor. She had two anchors, but no anchor line. Her anchor line had parted several times in the salvage operations. There is no evidence that had the crew in this emergency attempted to rig the anchor to the remnant anchor line the anchor in this short time and distance would have been effective in the teeth of this driving gale. As the Noah's Ark came alongside the sand dredge, one line was put out but soon parted. A crew member tried hard to throw a line on a nearby dolphin but without success. Much was made by the Cudjoe of the Noah's Ark's failure to put out more lines to the dredge including the unshipping of the remaining steel trawl cable to use it as mooring lines to make fast. But the Court did not find this a fault, nor do we. The position of the Noah's Ark was at that moment extremely precarious as the owner of the Cudjoe, the late tortfeasor, well knew. Those ashore, which included the principal stockholders of the corporate owner of the Cudjoe (the salvor claimant) observing the situation, recognized that if the Noah's Ark slipped off the sand dredge, the wind and water would force her into a small U-shaped slip along the concrete seawall. That happened shortly so that "at approximately 6:30 p. m." she was "alongside the seawall * * * in an upright position but touching bottom in the shallow water." And what happened in this manner was certainly within the range of likely consequence, including the element that in the emergency conditions created by the Cudjoe's cutting her adrift, the Noah's Ark might make mistakes in her responsive efforts to overcome the fault-made hazards. Restatement of Torts, § 449; Slattery v. Marra Brothers, 2 Cir., 1951, 186 F.2d 134, at page 136, 1951 A.M.C. 183.

It is at this spot, and beginning with this time, but not before, that the Court held the Noah's Ark at fault. The Court's findings of fact show that culpable fault commenced after the Noah's Ark fetched up. This began, the Court found, when the "captain of the Noah's Ark stepped ashore and * * * made a long distance telephone call * * * to the owner." The Court condemned her for actions subsequent to that occurrence. The Court found that "At no time during the evening did the captain or crew of the Noah's Ark seek any assistance which was available from bystanders or from local marine facilities, or try to borrow lines to secure the vessel, or attempt to borrow a bilge pump from other vessels. * * * Nor did the captain * * * contact the local commercial salvor, ...