United States v. Norfolk-Berkley Bridge Corporation

• Decision Date: 09 October 1928
• Citation: 29 F.2d 115
• Parties: UNITED STATES v. NORFOLK-BERKLEY BRIDGE CORPORATION et al. Petition of WOOD TOWING CORPORATION.
• Court: U.S. District Court — Eastern District of Virginia

29 F.2d 115 (1928)

UNITED STATES v. NORFOLK-BERKLEY BRIDGE CORPORATION et al.

Petition of WOOD TOWING CORPORATION.

District Court, E. D. Virginia.

October 9, 1928.

H. H. Rumble, Sp. Asst. Atty. Gen., and M. H. Avery, Admiralty Atty., U. S. Shipping Board, of Washington, D. C., for the United States.

Williams, Loyall & Taylor, W. H. T. Loyall, Leigh D. Williams, and J. Westmore Willcox, all of Norfolk, Va., for Norfolk-Berkley Bridge Corporation.

John W. Oast, Jr., of Norfolk, Va., for Wood Towing Corporation.

SOPER, District Judge.

Two collisions between ships under tow by tugs of the Wood Towing Corporation with the toll bridge of the Norfolk-Berkley Bridge Corporation at Norfolk, Va., are the basis of the proceedings in these cases. The first collision took place on December 28, 1926, at about 7:30 a. m., when the steamship Poljana, under the tow of the tug C. H. Hix, was proceeding westwardly through the draw. The tug was on the port bow of the steamship. A small iron house on the deck at the starboard quarter of the ship came in contact with the operating gears of the north leaf or span of the bridge. Little or no damage was done to the steamship, and none to the tug, but there was substantial damage to the bridge. It is alleged that the cost of replacement and repairs of the bridge was $44,795.46, and that a loss of tolls in the additional sum of $15,000 was sustained in the interval between the day of the accident and February 28, 1927, while the work of restoration was in progress.

The second accident happened at 4:04 p. m. on October 10, 1927, while the steamship West Alsek, belonging to the United States, was being taken through the draw in an easterly direction in tow of the tug Peerless, of the Wood Towing Corporation, assisted by the tug Stallion, belonging to the United States. Both tugs were on the port side of the ship as the flotilla passed through the draw. The ship safely passed the western entrance of the draw, but her flying bridge on the starboard side collided with the eastern operating gears of the southern leaf of the bridge. There was no injury to the tugs. It is alleged that the damages to the ship amounted in the aggregate to approximately $10,000. The damages to the bridge were also substantial. It is said that the replacement and repairs cost the sum of $46,990.05, and that the bridge corporation sustained a loss of $10,000 in tolls during the period of two months after the accident, when the bridge was necessarily closed.

Legal proceedings were commenced by the Wood Towing Corporation on January 15, 1927, when it filed a petition in this court, as owner of the tug C. H. Hix, under R. S. §§ 4282 to 4287 (46 USCA §§ 182-187), to limit its liability with reference to the first accident. The tug was surrendered, and subsequently sold for the sum of $23,100, which, together with towage in the sum of $58.38, or a total of $23,158.38, constitutes the fund in this proceeding. On March 23, 1927, the Norfolk-Berkley Bridge Corporation filed its answer and complaint to subject the fund to the payment of its losses. The bridge corporation had theretofore not filed a suit at law for damages, because the extent thereof had not been definitely ascertained.

On January 12, 1928, the United States, as owner of the West Alsek, filed a libel against the bridge corporation and the towing corporation to recover for the damages to the ship, claiming that the tug Peerless was negligent by reason of bad seamanship, and that the bridge was also negligent, in that it had not been constructed in accordance with law. Answers were filed by the two respondents, each of which denied liability, and attributed the accident to the negligence of the other.

On March 29, 1928, the Wood Towing Corporation filed a petition, as owner of the tug Peerless, to limit its liability with reference to the second collision. The United States and the bridge corporation have each filed answers and claims in this proceeding, asking that their damages be paid out of the funds to be created by the transfer or sale of the boat. An ad interim stipulation, in the sum of $30,000, was filed by the tug, and she was released to her owner. The precise value of the vessel has not yet been determined.

The right of the towing corporation to limit its liability in the two cases is denied in the pleadings, but it was not questioned at the hearing, and it is clear from the testimony, that the right to limit was made out in each case.

So far as the right of the United States to recover the damages to the West Alsek is concerned, one point only need be discussed. There was no steam in her boilers at the time of the accident, and although the tug Stallion, belonging to her owner, assisted in the operation, the whole flotilla was under the absolute control of the master of the Peerless, so that the ship was in no way responsible for her navigation. Therefore, since there is no contention that the accident was unavoidable, the United States in ordinary course would be entitled to recover against the party or parties to whose negligence the accident should be attributed. The Cromwell (C. C. A.) 259 F. 166.

But the towing corporation contends that, even if negligence on its part contributed to the collision, it is exempt from liability by reason of certain letters which passed between it and the United States Shipping Board shortly after the collision of the steamship Poljana with the bridge. On December 30, 1926, the towing corporation addressed a letter to the Shipping Board and certain shipyards in Norfolk, and gave notice that thereafter it would take ships through the bridge only at their own risk. Reference was made to the extension of the superstructure of the bridge over the fender piling and the insufficient and dilapidated condition of the latter. The district director of the Merchant Fleet Corporation acknowledged receipt of the notice by letter of December 31, 1926.

Some difference of opinion has developed in the decisions of the courts as to whether a tug, not being a common carrier, may lawfully exempt itself from liability for its own negligence. The Second Circuit, in The Oceanica (C. C. A.) 170 F. 893, and Ten Eyck v. Director General of Railroads (C. C. A.) 267 F. 974, has held that such contract is valid, whereas the Ninth Circuit, in Mylroie v. British Columbia Mills Tug & Barge Co. (C. C. A.) 268 F. 449, has indicated a contrary opinion. See the discussion in The Pacific Maru (D. C.) 8 F.(2d) 166. It is not necessary in this case to decide which rule should prevail, for it has recently been decided by the Supreme Court in Compania de Navegacion v. Firemen's Fund Ins. Co. (The Wash Gray) 277 U. S. 66, 48 S. Ct. 459, 72 L. Ed. 787, that a towing contract, in all substantial respects similar to that between the parties in this case, did not have the effect of releasing the tug from loss or damage to the tow, due to the negligence of the master or crew of the towing vessel. The correspondence in the case at bar indicates that the towing corporation was seeking to give notice of the dangerous condition of the bridge, so as to free itself from liability for any accident arising therefrom, rather than from the negligent operation of its own vessels. The United States is entitled to recover in this action.

As already pointed out, the towing corporation suffered no damages. The main contested question, therefore, in each case, is whether the injury to the bridge resulted from negligent navigation of the tug, or from the unlawful character of the bridge, or from both of said causes. The bridge spans the eastern branch of the Elizabeth river, and connects two sections of the city of Norfolk. It runs nearly north and south, connecting Norfolk on the north side of the river with Berkley, on the south. The course of the stream is westerly through the draw. The bridge is constructed of steel and iron and rests upon concrete piers. To admit the passage of vessels, there is a bascule or counterpoised draw 140 feet in length, consisting of two pivot leaves or spans which are raised and lowered by machinery electrically operated. The maximum clearance when closed is 35.5 feet above mean high water. The lifting apparatus consists in part of two quadrant gear racks for each leaf of the bridge. These are situated at each side of the leaf, and are equipped with gear teeth which are presented channelward when the leaf is lifted. When the leaf is in such a position, the quadrant racks are at its base, and are about 30 feet above the surface of the water. The iron house on the Poljana came in contact with the gear teeth of both quadrant racks on the north or Norfolk side of the bridge in the first accident, and the flying bridge of the West Alsek came in contact with the easterly quadrant rack on the Berkley side in the second accident.

The claim is made, both by the United States and by the towing corporation that the bridge was dangerous and unauthorized in its construction, because at the time of each accident the gear racks, which came in contact with the moving ship, extended channelward over the fender piling placed beneath them to mark the channel through the draw and to protect the bridge. This contention forms an important part in this case, particularly as there was nothing unusual or difficult about the condition of wind or tide at the time of either accident. It may be said, in short (notwithstanding certain claims put forth by the navigators of the tug in each instance), that, unless the bridge was negligently constructed or maintained, there is no escape from the presumption of negligence which arises when a stationary object is struck by a vessel in motion. The Cromwell (C. C. A.) 259 F. 166.

It is important, therefore, to determine first of all whether there is ground for the contention that the bridge was illegally built, and, if so, whether the particulars in which it failed to conform with the legal requirements...