William B. Patton Towing Co. v. Spiller, 213

• Decision Date: 23 April 1969
• Docket Number: No. 213,213
• Citation: 440 S.W.2d 869
• Parties: WILLIAM B. PATTON TOWING COMPANY, Appellant, v. J. J. SPILLER, Jr., Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 869

440 S.W.2d 869

WILLIAM B. PATTON TOWING COMPANY, Appellant, v. J. J. SPILLER, Jr., Appellee.

No. 213.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

April 23, 1969.

Rehearing Denied May 21, 1969.

Dan H. Hinds, F. E. Billings, Hinds & Meyer, Houston, for appellant.

Wiley Thomas, Vaughan O. Stewart, Angelton, for appellee.

SAM D. JOHNSON, Justice.

This is an admiralty collision case in which a tug towing two barges and owned by the appellant collided with a pier owned by the appellee.

The plaintiff, J. J. Spiller, Jr., built an L-shaped pier on the San Bernard River in 1966. This river is one of the navigable waters of the United States and is used for commercial barge traffic . It is a winding, narrow public waterway with many steep bends and turns.

The pier built by the plaintiff is in an S-turn of the river. At the site of the collision the river is 100 to 130 yards wide. The deep water channel of the river is much closer to the outside bank of the bends of the river. At the particular bend of the river on which this pier is located the deep water channel is only 30 to 40 feet from the pier. The pier protruded out into the river 24 feet and extended down river some 22 or 23 feet.

The defendant, William B. Patton Towing Company, was the operator of the tug, the C. G. Andler. On the date of the collision this tug was traveling upstream on the San Bernard River with two empty barges in tow. The barges were attached by what is called a hawser and bridle, about 15 feet in length. This connection not only attached the three vessels together but also permitted them to navigate the bends and turns of the river, as the tug and her and turns of the river, as the tug and her barges extended a total of 475 feet in length. As the tug rounded the first bend in the S-turn on the date of the collision its barges 'floated out' of the deep water channel and drug the bank. At about 15 to 20 feet from its stern, the second barge then struck Spiller's pier, causing its destruction. Spiller brought suit for the damages that were thus occasioned alleging that the C. G. Andler negligently collided with his pier.

Section 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, forbids 'the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity' of any waters of the United States. Title 33, U.S.C. Sec. 403, provides: 'The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier * * * or other structures * * * except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army * * * unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.'

It is undisputed that Spiller had not obtained a permit from the United States Corps of Engineers for the building or maintenance of his pier and that it was built and maintained without the required authorization.

Appellant therefore contends that as the San Bernard River is a navigable water of the United States it is 'open to navigation from shore to shore, subject only to natural obstructions and to such artificial obstructions as are legally there.' The Robaliss, III, 45 F.2d 199, 201 (S.D.N.Y.1930) modified on other grounds, Corby v. Ramsdell, 2 Cir., 48 F.2d 701, and that the right of the C. G. Andler to navigate its waters was not restricted to the 'main, channel, but extends to the water between high and low water marks, or from shore to shore, subject only to natural obstructions and lawful artificial obstructions.' 65 C.J.S. Navigable Waters § 20, p . 132. This being true, appellant reasons, the tug and her barges were entitled to the unobstructed use of all of the navigable waters of the river. Atlee v. Northwestern Union Packet Co., 88 U.S. 389 (21 Wall. 389), 22 L.Ed. 619 (1874).

The appellant contends that if Spiller had not obstructed the San Bernard River by building his pier out 24 feet from the bank as he did, the collision could not have occurred. Further, that Spiller violated a statute which was designed not only to protect the public's right to the unobstructed use of navigable waters, but also to prevent collisions and to protect vessels from harm arising from collisions with unlawful obstructions.

The trial in the court below correctly proceeded on the theory that when a vessel collides with a structure built or maintained in violation of the provisions of 33 U.S.C.A. Sec. 403, the owner of the violating structure must Prove that the violation could not have caused or contributed to the collision. The Pennsylvania Rule (The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874)) requires that for Spiller to recover, her must prove his statutory violation in building and maintaining the pier could not have caused or contributed to the collision. The burden was on the plaintiff to present evidence and establish not only that the C. G. Andler was negligent but also that his own violation could not have caused or contributed to the collision.

In response to Special Issue No. 6, which we believe to be the critical issue in this case, the jury found that the construction of the plaintiff's pier at the location in question 'could not have contributed' with any reasonable possibility to cause the damage in question. It is appellant's position that there is no evidence, or in the alternative, that the evidence is insufficient, to support the jury's finding.

An extended citation of authority in the field of maritime law would be of little service to the...