United States v. South Carolina State Highway Dept.

• Decision Date: 29 December 1948
• Docket Number: No. 5808.,5808.
• Citation: 171 F.2d 893
• Parties: UNITED STATES v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

171 F.2d 893 (1948)

UNITED STATES v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT et al.

No. 5808.

United States Court of Appeals Fourth Circuit.

December 29, 1948.

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Harold A. Mouzon, of Charleston, S. C., and Leavenworth Colby, Sp. Asst. to Atty. Gen. (Ben Scott Whaley, U. S. Atty. and B. Allston Moore, both of Charleston, S.C., and Robert S. Erskine and John F. Gerity, both of New York City, on the brief), for appellant.

Huger Sinkler and Augustine T. Smythe, both of Charleston, S. C., John M. Aherne, of New York City, Augustine T. Smythe, Jr., of Charleston, S. C., and Fred B. Helms, of Charlotte, N. C. (John M. Daniel, Atty. Gen. of South Carolina, Helms & Mulliss, of Charlotte, N. C., and Bigham, Englar, Jones & Houston, of New York City, on the brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the United States from an adverse judgment in an action brought under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.,¹ to recover the damages sustained when the government owned vessel, Nicaragua Victory, crashed into the Grace Memorial Bridge over Cooper River at Charleston, S. C. The action was brought by the South Carolina State Highway Department in behalf of itself, as owner of the bridge, and various insurance companies, from which it had collected insurance on account of the damage. The insurance companies were joined as parties plaintiff; and, upon a finding that the damage amounted to $305,166.38, judgment was entered in their behalf for $196,639.97, being the amount that they had paid by way of insurance, and in behalf of the South Carolina Highway Department for $108,526.41.

There is little dispute as to the amount of the damages and what there is has so little merit as not to warrant discussion. The appeal presents two questions for our consideration: (1) Whether the damage to the bridge was due to fault in the operation of the vessel, and (2) whether the insurance companies may recover in this case as subrogees. Both questions, we think, should be answered in the affirmative. The facts of the case are fully set forth, with an adequate analysis of the evidence, in the careful and comprehensive opinion of the District Judge. See South Carolina State Highway Department v. United States, D. C., 78 F.Supp. 598. They need not be repeated here but may be briefly summarized as follows:

The Nicaragua Victory arrived in Charleston Harbor on February 7, 1946, and after completing the discharge of her cargo was preparing to go into dry dock for an overhaul. On Sunday morning, February 24, she was anchored in the Cooper River below the bridge when she was struck by another vessel that had dragged its anchor. It was then decided to change the anchorage, and she was taken about half a mile above the bridge and anchored to her port anchor in the eastern branch of the Cooper River about three o'clock in the afternoon. Notwithstanding that the weather was threatening, that a twenty mile an hour wind was blowing toward the bridge and that a strong ebb tide was flowing in that direction, the master left her at this anchorage around 3:20 in the afternoon with no adequate crew to take care of her in case of trouble and in charge of a night mate who had then been on duty continously for more than forty hours. Shortly before four o'clock the weather became a great deal worse, the wind increased to a gale of sixty miles an hour or more and the vessel dragged anchor and drifted towards the bridge. Although the danger of collision was imminent, nothing was done to avert it except that the starboard anchor was dropped just before the crash came, when it was too late to accomplish anything. Had a competent officer been aboard and on the lookout with the crew alerted, the collision could, in all probability, have been averted. If not, it was negligence to anchor the vessel so near the bridge with such conditions of wind and tide prevailing. As was well said by the District Judge 78 F.Supp. 607:

"I am of the opinion that the collision could and should have been avoided by the exercise of proper care and prudence, and that any one or more acts on behalf of those in charge of the vessel might have averted the collision. It is of course impossible to say what one act caused the ship to drift from her moorings. But many acts can be pointed out which might have averted it. And I find that the ship and its operators were negligent in failing to observe and obey clear warnings of bad weather; in failing to put the ship in charge of a competent, careful officer; in putting the ship in charge of an officer who had been on duty an excessive period without relief or sleep; in failing to have any member of the crew on deck as a watch in addition to this watchman; in failing to alert the deck crew; in failing to alert the engine crew; in failing to be ready to drop the second anchor; in failing to drop the second anchor; in failing to have the engines ready for use; and in failing to use the engines. I am of the opinion that all of these matters contributed and that any one or more of them may have been the cause of the collision."

The contention of the government is that when the master left the vessel the weather was fine, with no indication of trouble to come, and that the collision with the bridge was the result of unforeseen and unforeseeable weather condition against which no amount of precaution would have availed; and the government offered considerable evidence to support this contention. On the other hand there was abundant proof on the part of the plaintiffs that, at that time, the weather was bad and getting worse and that, in the exercise of due care, provision should have been made to guard against just what happened. The District Judge reviewed all of this evidence and stated his conclusion with regard thereto in the following language:

"Giving due consideration to all of the differences and discrepancies in the testimony, considering the interests, considering the status of the different witnesses and their business motives, interests, and disinterests, I am constrained to believe that while there were no direct reports of a large storm brewing or approaching, there were very many indications that rain and wind probably of a temporary and perhaps of a serious character were to be expected. Many careful observers expected bad weather. A number of experienced waterfront men so testified, particularly the pilot Captain Igoe, Captain Webb, a retired Merchant Marine Commander, Mr. Hutson, familiar with the waterfront, Mr. Pringle an ex-airplane pilot, and many others. They of course did not know that a serious storm would hit the locality but they were prudent enough, in view of the weather that they saw, to feel that there was a strong probability, and danger, of a bad storm. And if those in charge of the Nicaragua Victory had had the same prudent foresight and had exercised ordinary prudence, this catastrophe would never have happened."

There is no question as to the law applicable to this portion of the case. It is clear that action was properly brought under the Tort Claims Act instead of the Public Vessels Act, 46 U.S.C.A. § 781. State of Maine v. United States, 1 Cir., 134 F.2d 574, certiorari denied 319 U.S. 772, 63 S.Ct. 1437, 87 L.Ed. 1720. There was no fault imputable to those in charge of the bridge, and the vessel must be held responsible for the damage resulting from the collision "unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution and a proper display of nautical skill could not have prevented." The Louisiana, 3 Wall. 164, 18 L.Ed. 85; The Newa, 4 Cir., 267 F. 115. The question is one of fact, i. e. whether the collision was the result of inevitable accident or was due to the negligence of those having the vessel in charge. After a careful study of the evidence, we think that the District Judge has found correctly that it was due to their negligence. Certainly, there is no basis upon which we would be justified in setting aside the finding as clearly wrong. See Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. Maryland Casualty Co. v. Rickenbaker, 4 Cir., 146 F.2d 751, 752; Guilford Construction Co. v. Biggs, 4 Cir., 102 F.2d 46, 47.

The right of the insurance companies to recover under the Tort Claims Act, where it appears that they have compensated the Highway Department in part for the loss sustained, and where they have joined in the suit instituted by the Department in their behalf as well as for its own benefit, seems too well settled by recent decisions to admit of argument. See Aetna Casualty & Surety Co. v. United States, 2 Cir., 170 F.2d 469; Yorkshire Ins. Co. v. United States, 3 Cir., 171 F.2d 374; Old Colony Ins. Co. v. United States, 6 Cir., 168 F.2d 931; Employers' Fire Ins. Co. v. United States, 9 Cir., 167 F.2d 655; Insurance Company of North America v. United States, D.C., 76 F.Supp. 951; Niagara Fire Ins. Co. v. United States, D.C., 76 F.Supp. 850; Grace, to Use of Grangers Mut. Ins. Co. v. United States, D.C., 76 F.Supp. 174; Wojciuk v. United States, D.C., 74 F.Supp. 914; and Hill v. United States, D.C., 74 F.Supp. 129; where the matter is fully discussed. Some question might arise in a proper case as to the right of an insurer who had paid only a part of the loss to maintain an independent action for the recovery of the amount paid; for this would involve the splitting of a cause of action. See opinion of Judge Chesnut in Grace, to Use of Grangers Mut. Ins. Co., v. United States, D.C., 76 F.Supp. 174, 178, and cases cited. Nothing of the sort is involved here, however, as all of the parties have joined in a single action. The suit of the Highway Department is in behalf of itself and the insurers; and the right of these to share in the recovery cannot be less by reason of their...