Thornton v. United States

• Citation: 236 F. Supp. 651
• Decision Date: 14 March 1964
• Docket Number: No. 2666(S) (C).,2666(S) (C).
• Parties: Joseph Robert THORNTON et ux., Libelants, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Mississippi

236 F. Supp. 651

Joseph Robert THORNTON et ux., Libelants, v. UNITED STATES of America, Respondent.

No. 2666(S) (C).

United States District Court S. D. Mississippi, S. D.

February 27, 1964.

As Amended March 14, 1964.

Morse & Morse, Stanford Morse, Gulfport, Miss., for libelants.

Robert E. Hauberg, U. S. Atty., Jack McDill, Jackson, Miss., for respondent.

WILLIAM HAROLD COX, Chief Judge.

This is a suit under the "Suits In Admiralty Act," as amended September 13, 1960, (appearing as 46 U.S.C.A. § 742) for the loss of a fishing vessel, ("Lucky Lindy") occasioned by its striking a submerged piling in the coastal waters of Mississippi Sound. There is no controversy as to jurisdiction in this case. The United States contends that it had no liability for this loss because it had no interest in, or control over the submerged piling which did the damage.

FINDING OF FACTS

The "Lucky Lindy" was a wooden motor fishing vessel owned by Joseph Robert Thornton and his wife. Thornton is a commercial fisherman on the Mississippi Gulf Coast. He made his living out of fishing in the inland waters of the Gulf Coast and in the vicinity thereof for forty-two years. On December 17, 1962, Thornton was in charge of this vessel with a crew of two other persons dredging for oysters near Grand Island in the Mississippi Sound. A heavy fog prevailed during the entire day, and visibility was limited to ten to fifteen yards with no appreciable wind or sea.

About 3:00 P.M. on said date, Thornton decided to stop gathering oysters, and to seek shelter from the winds and tide which usually prevailed in December by tying up in nearby Heron Bay. He could see no landmark at the time, and was uncertain of his exact position. He maneuvered enroute to his destination by compass, and his general knowledge of the area without any map to guide, or assist him. Thornton thus traveled approximately 4½ miles, when about 3:30 P.M. this wooden craft struck a submerged piling (shown on Respondent's Exhibit #1), approximately three hundred feet off the southern tip of Lower Point Clear, and sank in approximately six feet of water and was lost. The "Lucky Lindy" had crossed the intracoastal waterway, and was seeking to avoid the traffic therein by huging the shoreline, and was traveling about five miles per hour at the time. A lookout on the front of the vessel was taking soundings for depth, and directing the course of the skipper, but did not see this particular concrete piling in a steel case submerged under two or three feet of water.

This piling formerly constituted one of the supports for a part of a boat house which was constructed years ago at the southern end of a pier which extended from the shore of Lower Point Clear whereon there existed for many years the Lake Borgne lighthouse.

This lighthouse was constructed and put in operation more than seventy years ago. The respondent ceased using this lighthouse, and pier facility prior to 1946, and such improvements were then in poor condition. In September 1947, and again in 1948, a storm wrecked the lighthouse and the pier. A government survey on June 15, 1950, indicated the existence of this pier and boat house in very poor structural condition. The respondent sold to John Beals on January 31, 1951, the one acre tract of ground on which the lighthouse was situated by metes and bounds description. John Beals purchased the property for $277.50 to construct a fishing camp on it, and intended to repair the wharf for use as a fishing pier. No improvements were ever constructed, or repaired by the purchaser, and the pilings continued to decay as shown on Libelants' Exhibit #2, so that in the intervening twelve year period after said sale, only about one-half of the north end of the supports of the pier closest to the land extended above the water. The respondent never had any control over this offending piling after January 31, 1951. The respondent never erected any warning on the surface of the water of the existence of this submerged piling, and was never requested to do so. It did, however, accurately chart the location of this offending piling within the circumference of the dotted circle shown on Respondent's Exhibit #1. The libelants had notice equivalent in law to knowledge of the...