Petition — Griffith v. Canal Barge Co.
Supreme Court brief1975
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Supreme Court, J. S,
74-1637 [> 7
JUN 2
MICHAEL RODAK, JR.
LT fm
—_—S=—— SS
IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
No.
MARY KATHRYN GRIFFITH, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF GEORGE L.
GRIFFITH, DECEASED,
Petitioner,
CANAL BARGE COMPANY, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
HARRY E. BARSH, JR.
Camp, Carmouche, Palmer,
Carwile & Barsh
Counsel for Petitioner
P.O. Drawer 2001
Lake Charles, Louisiana 70601
Page
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SD SID ov cee ctccccsaceccuccevecsinces 3
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Reasons for Granting the Writ ..............+.... 16
I a o.6 ici dctessecccennsccceccensnensesnes 17
EE OE EE PE EOE OE EET EET e eT eee TT Ce 27
Camteee GE BOG GIGD o.oo cc cc cscnseccccvcseccccones 28
Appendix:
Judgment and Opinion of the United States
ES ss sive pd eadnedeeconesne nesses la
Judgment and Opinion of the United States
Court of Appeals, Fifth Circuit .............. 43a
Judgment and Opinion of the United States
Court of Appeals, Fifth Circuit on Peti-
CR BF TE oo vec k ec ccdesbasecscccscess 89a
Final Judgment and Opinion of the Fifth
cg ca Cute ER NEEM WOSS O46 OUR OEHES 90a
TABLE OF AUTHORITIES CITED
Cases:
Blue v. Western Railway of Alabama, 469 F.2d
SE icc cueensdanceadncussssstioes 25
Chesapeake & Ohio Rai'way Company v.
Kelly, 241 U.S. 485, 36 S.Ct. 630 (1916) .......... 25
Cox v. Remillard, 237 F.2d 909 (9th Cir. 1956)...... 25
Cunningham v. Bay Drilling Company, 421
F.2d 1398 (5th Cir. 1970) 480 F.2d 11, 28 ......... 24
ii
TABLE OF AUTHORITIES CITED (Continued)
Page
Frankel v. Heym, 321 F.Supp. 1331 (E.D. Penn.
1970), 466 F.2d 1226 (3rd Cir. 1972) .............. 25
Furumizo v. United States, 245 F.Supp. 981 (D.
Hawaii 1965), 381 F.2d 965 (9th Cir. 1967) ....... 25
Grigsby v. Coastal Marine Services of Texas,
Inc., 412 F.2d 1011 (5th Cir. 1969), 396 U.S.
2033. 90 S.Ct. 612 (1970) ... cc tcc cece 25
Higginbotham v. Mobil Oil Corp., 360 F.Supp.
ry Ms SIE od o.cc wks ca Cue whe ecuok us 27
Jennings v. United States, 178 F.Supp. 516 (D.
Ses Si al cenuwinnesCante ata et 27
Johnson v. Penrod Drilling Co., 510 F.2d 234
SN IE we soa ee Al en tes 24,25
Law v. Sea Drilling Company, No. 67-794
Se ee IE 5 o's oa ic ao okaicec er cocee coh 25,27
Meehan v. Central Railroad Company of New
Jersey, 181 F.Supp. 594 (S.D. N.Y. 1960) ........ 26
Mills v. Tucker, 499 F.2d 866 (9th Cir. 1974) ....... 25
National Airlines v. Stiles, 268 F.2d 400 (Sth
Cir. 1959), 361 U.S. 885, 80 S.Ct. 157 (1959) ...... 24
New Amsterdam Casualty Company v.
Soileau, 167 F.2d 767 (5th Cir. 1948), 335 U.S.
eres POU nee a eae el 24,25
O'Connor v. United States, 269 F.2d 578 (2nd
SS ND ut dk Cicer cine ae es a te Ee 26
Petition of Marina Mercante, 248 F.Supp. 15
SN NE OU oo eared eee te eo ie 26
ili
TABLE OF AUTHORITIES CITED (Continued)
Pages
Petition of Risdal and Anderson, Inc., 291
F.Supp. 353 (D. Mass. 1968) ...................6. 24
Rogow v. United States, 173 F.Supp. 547 (S.D.
he Secu abawuNeceuu dau Polk wakide ae 26
Statutes:
gee te ce a ar re ee 2
Jones Act, 46 USC Sec. 688 ........................ 2
Se is i a Pg ea uie ls cea dhewes es 3
Treatises:
Harper & James, The Law of Torts, 1968 Supp.
IIE, Ad dpe eb ere ee | 26
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No.
MARY KATHRYN GRIFFITH, INDIVIDUALLY,
AND AS ADMINISTRATRIX OF TH# ESTATE
OF GEORGE L. GRIFFITH, DECEASED,
Petitioner,
versus
CANAL BARGE COMPANY, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
To the Honorable Warren E. Burger, Chief Justice of
the United States, and the Associate Justices of the
Supreme Court of the United States:
The petitioner, Mary Kathryn Griffith, individually,
and as the administratrix of the Estate of George L.
Griffith, deceased, prays that a Writ of Certiorari issue
to review the Judgment and Opinion of February 26,
1971, rendered by the United States District Court,
Northern District of Mississippi, Greenville Division,
the Judgment and Opinion of March 30, 1973, of the
United States Court of Appeals, Fifth Circuit and the
Judgment and Opinion on Petition for Rehearing, of
May 16, 1975 in the proceedings entitled Petition of
Canal Barge Company, Inc., as Owner and Operator of
the M/V ELAINE JONES, Praying for Exoneration
from or Limitation of Liability, Canal Barge Com-
pany, Inc. vs. Mary Kathryn Griffith, Individually,
and as the Administratrix of the Estate of George L.
Griffith, Deceased, and Terminal! Railroad Associa-
tion of St. Louis, et al.
OPINIONS BELOW
The Judgment and Opinion of the United States Dis-
trict Court for the Northern District of Mississippi,
Greenville Division (App. Infra, pp. 1a-42a) is
reported at 323 F.Supp. 805; the Judgment and Opin-
ion of the United States Court of Appeals, Fifth Circuit
(App. Infra, pp. 43a-89a) is reported at 480 F.2d 11; the
Judgment and Opinion of the United States Court of
Appeals, Fifth Circuit on Petition for Rehearing (App.
Infra, pp. 89a-90a) is reported at 480 F.2d 34 and the
final Judgment and Opinion of the Fifth Circuit (App.
Infra, pp. 90a-94a) is as yet unreported.
JURISDICTION
The jurisdiction in the Court of the first instance is
28 USC § 1331, in that, the complaint of Mary Kathryn
Griffith, individually, and as administratrix of the Es-
tate of George L. Griffith. deceased, establishes this
action as one of wrongful death resulting from the
negligence of Canal Barge Lines, Inc. (hereinafter
referred to as Canal), and is brought pursuant to the
Jones Act (46 USC § 688) and the General Maritime
Law, and, also, for the unseaworthiness of the Motor
Vessel ELAINE JONES. The United States District
Court, Northern District of Mississippi, held Canal
AS wD ©
3
liable for damages to Mary Kathryn Griffith. Canal
appealed, claiming error with respect to liability and
damages to Mrs. Griffith. Mrs. Griffith cross-appealed
with regard to the amount of damages awarded and the
elements of damages denied. The Fifth Circuit af-
firmed the District Court with respect to Canal’s
liability to Mrs. Griffith, vet at the same time reversed
with respect to damages due Mrs. Griffith and with
respect to her husband's contributory negligence. A
remand to the District Court was then ordered for
determination of the degree or extent of that con-
tributory negligence and Canal’s claim for indemnity
from the Griffith Estate. Subsequently, on petition for
rehearing, the Fifth Circuit reversed itself and the
Trial Court with respect to its position in allowance of
a two percent cost of living increase in the computa-
tion of lost future earnings of the deceased, and revers-
ed itself in its past exclusion of survivor's grief
damages as an element of recovery in a general
maritime action for death caused by unseaworthiness.
An application for a stay of the mandate of the
Appellate Court has been granted, conditioned upon
presentation of the Notice of Application fora Writ of
Certiorari to the Clerk of the Fifth Circuit prior to June
26, 1975. The jurisdiction of this Court is invoked un-
der 28 USC § 1254(i).
QUESTIONS PRESENTED
I. Whether or not the Court of Appeals erred in
determining the actions of pilot, George L. Griffith, of
the M/V ELAINE JONES, require the conclusion that
he was contributorily negligent as a matter of law and
that such contributory negligence was a proximate
cause of the accident.
4
II. Whether or not the Court of Appeals erred by ex-
cluding a two percent cost of living increase in the
computation of loss of future earnings of the deceased,
previously awarded by the Trial Court and whether or
not said two percent factor was necessarily tied to an
increase in the cost of living.
III. Whether or not the Court of Appeals erred in
refusing to reduce the Trial Court's assessment of
twenty-five percent of decedent's earnings as being at-
tributable to his personal use.
STATEMENT OF THE CASE
In order for this Court to be completely apprised of
the substantial evidence in the voluminous record, we
believe it necessary to amplify the circumstances giv-
ing rise tothis protracted litigation. This exposition is
further necessitated by past variances between
written summations of fact and the events themselves.
On the date of the subject accident. October 14, 1969,
Canal Barge Company, Inc., owned and Operated the
M/V ELAINE JONES. a diesel powered towboat, 154
feet long. 40 feet wide, possessed of approximately
5.300 horsepower, and built in 1967. (Petitioner's Ex-
hibit 17-H, answer to interrogatory 4b, T. 83). At ap-
proximately 12:20 P.M. on that date, the M/V ELAINE
JONES collided with an arch of the Eads Bridge, span-
ning the Mississippi River at St. Louis, Missouri, and
connecting East St. Louis, Illinois, with the City of St
Louis. |
9)
As a result of said cullision, the pilot house of the
M/V ELAINE JONES was completely severed and
destroyed; her pilot, George L. Griffith, was killed; and
the Eads Bridge was damaged.
George L. Griffith was, at the time of this collision
and his death, regularly employed by Canal Barge
Company as a river towboat pilot, having become so
employed by Canal on January 7, 1968, and was the
regular pilot aboard the M/V JOSEPH M. JONES, a
diesel powered towboat of 4,300 horsepower, also own-
ed and operated by Canal (T. 179, 333).
On October 14, 1969, Vernon E. Stroschein was serv-
ing as captain of the M/V ELAINE JONES; however,
his regular assignment was as captain of the M/V
CAROLINE, an 1,800 horsepower diesel powered
vessel, of smaller size, different design and configura-
ticn, also owned and operated by Canal (T. 355, 445, 475,
494-495). On September 29, 1969, Vernon E. Stroschein
was assigned tocrew as pilot aboard the M/ V ELAINE
JONES at Natchez, Mississippi, when her regular cap-
tain went off duty. As of that date, Captain Stroschein
had never before served aboard the M/V ELAINE
JONES. On October 7, 1969, George L. Griffith was
assigned to crew as pilot aboard the M/V ELAINE
JONES at Memphis, Tennessee, when her regular
relief captain went off duty, and Vernon E. Stroschein
was elevated to the position of captain (T. 495-496). As
of that date, pilot Griffith had never before served
aboard the M/ V ELAINE JONES. (T. 180, petitioner's
exhibit 17-B, answer to interrogatory 6B).
Prior to September 29, 1969, with the exception of ap-
proximately two weeks, Captain Stroschein had never
6
before served in the wheelhouse of a river towboat be-
ing possessed of greater than 3,200 horsepower. At no
time had he ever served in the wheelhouse of a vessel
of the ELAINE'’s size and design (T. 494).
After the pilot Griffith boarded the FLAINE at
Memphis, she proceeded northbound to and passed
through St. Louis Harbor on October 9, 1969, when the
river stage was at approximately five feet on the St.
Louis gauge. The ELAINE then traveled through Lock
27. approximately five miles north of the Eads Bridge,
through Lock 26, approximately eighteen miles north
of the Eads Bridge, thence entering the Illinois River.
On October 10, 1969, after traveling approximately 74
miles up the Illinois River, the ELAINE encountereda
rainstorm of such severity that she was forced to “hold
up” or stop. This rainstorm persisted for ap-
proximately 24 hours. On October 13, 1969, at 10:35
A.M., approximately 147 miles up the Illinois River,
the ELAINE exchanged a tow with the M/V
LEONIDAS POLK, another Canal boat, picking up
seven empty barges in that exchange and turned
southbound.
After obtaining the tow of the M/V LEONIDAS
POLK, of seven empty barges, the ELAINE then
proceeded southbound to retrace her earlier route un-
til she arrived at a fleeting facility at Wood River, I1-
linois, on the Mississippi, south of Lock 26 and just
north of Lock 27, at approximately 5:45 A.M. on Oc-
tober 14, 1969. The pilot Griffith was on watch at the
wheel of the ELAINE when she arrived at Wood River,
Illinois, but was relieved by Captain Stroschein upon
arrival.
7
After relieving the pilot Griffith, on the morning of
October 14, 1969, Captain Stroschein rearranged the
tow of seven empty barges exchanged with the M/V
LEONIDAS POLK and picked up two loaded barges
and an additional empty barge. The tow of the
ELAINE, as then made up, was ten barges; two loaded
and eight empty, being two barges wide and five
barges long. The two loaded barges were the two rear-
most barges in the port or lefthand string, with the
ELAINE being made up to the rearmost loaded barge
in the port string. The overall length of the ELAINE’'s
tow. as thus made up, was approximately 1.050 feet
plus the length of the ELAINE, i.e., 154 feet.
Captain Stroschein accomplished the makeup of the
foregoing tow and departed Wood River, southbound,
at approximately 9:45 A.M., entering Lock 27 at 11:25
A.M. on the same morning.
At approximately 11:45 A.M. on the date of the acci-
dent in suit, pilot Griffith came to the wheelhouse of
the ELAINE to relieve Captain Stroschein as the gates
of Lock 27 were opening. The ELAINE departed Lock
27. with pilot Griffith at the wheel, at 11:50 A.M.
southbound to St. Louis Harbor.
(The foregoing account of the voyage of the M/V
ELAINE JONES from Memphis on October 7, 1969,
northbound and her return to St. Louis Harbor on the
date of the accident, is set forth in detail through the
testimony of her captain, Vernon E. Stroschein, at
pages 481 through 484 and 497 through 502 of the
transcript, as well as the wheelhouse and engine room
logs, Petitioner's Exhibits 9 and 12).
8
A vessel departing Lock 27, southbound, is im-
mediately confronted with the Merchants Bridge (Mile
183 U.M.R.) and the McKinley Bridge (Mile 182.5).
These bridges present to a downbound vessel a limited
amount of horizontal clearance and therefore must be
navigated with care. Immediately after passing the
McKinley Bridge, a downbound vessel and tow must
then line up or commence its maneuver and approach
to safely navigate the Veterans Bridge (Mile 180.2) and
the Eads Bridge (Mile 180). The Poplar Street Bridge
(Mile 179.3) and the McArthur Bridge (Mile 179) are
just downriver from the Eads Bridge. Above Veterans
Bridge a gradual bend in the river commences and ex-
tends to a point below the McArthur Bridge. To a
downbound vessel, this bend breaks from its left to its
right. (Petitioner's Exhibit 13)
Of the six bridges traversing the Mississippi River
at St. Louis, the Eads Bridge has its superstructure
below the vehicular deck level rather than above it.
The construction of the Eads Bridge therefore
presents an arched passageway for vessels traveling
through and under it (Joint Exhibit 31). The Veterans
Bridge is so constructed that it has but one pier
Situated in the riverbed, while the Eads Bridge has two
such piers. The one pier of the Veterans Bridge is sub-
stantially in line with the left descending pier of the
center, or channel span of the Eads Bridge.
(Claimant's Exhibit 30)
Due to the close proximity of the Veterans and Eads
Bridges, i.e., two-tenths of a mile, it is necessary that
downbound vessels and their tows be “lined up” or“‘in
shape’ to run both the Missouri or channel span of the
Veterans and the center or channel span of the Eads
Oe
9
Bridge when the head of the tow is no closer than one-
half mile above the Veterans Bridge, which is referred
to as the ‘point of noreturn” or the ‘fail safe” point. (T.
509)
Due to the plurality of bridges, their close proximity
and construction, coupled with the meander of the
river and its currents, St. Louis Harbor enjoys the
reputation among river people of being adifficult area
or passage to safely navigate (T. 533).
At the time of the ELAINE’s departure from Lock 27,
the river stage at St. Louis Harbor was 30.3 feet on the
Market Street Gauge and rising (T. 264). At flood stage
of the river (30 feet), the horizontal and vertical
clearance under the channel span of the Eads Bridge is
substantially reduced (T. 559). When the Mississippi
River is at flood stage, the current immediately above
the Veterans Bridge, or approximately one-fourth
mile north thereof, runs from the right descending
bank to the left descending bank. This current condi-
tion is called in maritime jargon a left hand “set” or
“draft”. This left hand set, or cross-current, is not en-
countered by a downbound vessel, except in high
water, i.e., in excess of 20 feet. At all other times, the
currentinthis vicinity runs straight down the river (T.
505-506). As the stage of the river increases above 20
feet, the force of this left hand set likewise increases.
Also, as the rate of the rise in the river increases, the
force of the set increases. (Petitioner's Exhibit 16 at
page 18, and T. 568-569).
When navigating St. Louis Harbor, downbound, in
low water, it is an acceptable practice to approach the
Veterans and Eads Bridges, and pass under both,
a
10
along the mid-channel sailing line, as depicted on the
official charts of the U.S. Corps of Engineers.
(Petitioners Exhibit 13, T. 580-582, 763). When
navigating St. Louis Harbor downbound, in high
water, i.e., in excess of 20 feet, it is the commonly
accepted practice, in order to compensate for the left
hand set encountered just above Veterans Bridge, to
approach Veterans Bridge to the right of the mid-
channel sailing line, or closer to the Missouri shore.
By this method, the vessel and tow are not forced by
that set off, or to the left of, the mid-channel sailing
line, as it runs immediately beneath both the Veterans
and Eads Bridges (T. 589-598 and Petitioner's Exhibit
16, beginning at Page 57). Adownbound vessel and tow:
that approaches the Veterans and Eads Bridges, in
high water, along the mid-channel sailing line is
therefore too wide or “out of shape” to safely navigate
the passage through and beneath both bridges (T. 743-
744).
Prior to departing the fleeting facility, at Wood
River, at 9:45 A.M. on the date of the accident in suit,
Captain Stroschein was fully cognizant of the fact that
the river at St. Louis harbor was at flood stage and that
it had risen thereto at an inordinately rapid rate over
the preceding few days (T. 483-487, 505). Canal’s
marine superintendent and port captain at Natchez,
Mississippi. monitored radio traffic throughout the
day between the many boats and their shore-based
facilities, operating in and around St. Louis Harbor
from October 9. 1969, through October 14, 1969. In addi-
tion, twice daily radio contact was made by these
Canal officials with the M/V ELAINE JONES and
several other Canal boats plying the waters of the Mis-
Sissippi River in and around St. Louis Harbor, over
11
the same period of time. For these reasons, and by the
admission of Canal’s port captain, Earl Ray Daily,
Stroschein was privy to the conditions existing in St.
Louis Harbor, on the date of the subject accident (T.
346-348, 572-573).
When pilot Griffith came on watch at 11:45 A.M. on
October 14, 1969, to relieve Captain Stroschein, he, the
pilot, had no prior experience in navigating this par-
ticular tow, due to the fact that its makeup occurred en-
tirely during the captain's watch, just preceding the
ill-fated watch (T. 498-504). At the time of this same
watch change, just prior to departing Lock 27, the pilot
inquired of the captain concerning the idiosyncrasies
of the tow as then made up. However, the captain was
unable to advise the pilot, for he, the captain, had not
yet himself had an opportunity to learn its
characteristics or “get a feel forthetow’’. (T. 502-504).
The pilot Griffith had never before navigated a
vessel and tow southbound through St. Louis Harbor
in high water; however, Captain Stroschein had (T.
505). In addition, the pilot, George L. Griffith, was not
sufficiently familiar with the tow to navigate St. Louis
Harbor under the circumstances existing, in that he
had not had an opportunity to gain a ‘feel for the tow”
before he encountered the subject peril. (T. 745-746).
At 11:50 A.M. on the date of the accident in suit, as the
pilot Griffith moved the head of the ELAINE's tow out
of Lock 27, Captain Stroschein left the wheelhouse and
retired to the galley to take his noon meal (T. 505). At
approximately 12:10 P.M., Captain Stroschein return-
ed to the wheelhouse. Upon his return, he noted that
the head of the tow was approximately half-way
Se En
12
between the McKinley Bridge (Mile 182.5) and the
Veterans Bridge (Mile 180.2) or in excess of one mile
above Veterans Bridge (point X on petitioner's Exhibit
13). At this moment, the head of the tow and the stern of
the ELAINE were lined up on the mid-channel sailing
line as depicted upon petitioner’s exhibit No. 13 (T.
506-507).
Following the captain’s return to the wheelhouse,
pilot Griffith continued on along the mid-channel sail-
ing line to a point where the head of the tow was ap-
proximately one-quarter of a mile north of Veterans
Bridge (Point “Y”" on petitioner's Exhibit 13) and the
head of the tow and the stern of the ELAINE were lined
up on the green lights of the Veterans and Eads
Bridges, when the left hand set was encountered, caus-
ing the vessel and her entire tow to be pushed violently
to the left and off the mid-channel sailing line. The
ELAINE and her tow were moving downriver at ap-
proximately 12 miles per hour, over land, at this time
(T. 506-510).
Had the pilot maintained his heading, as affected by
the left hand set, the ELAINE and her tow would have
proceeded on downriver and collided with the pier of
the Veterans Bridge or the left descending pier of the
center span of the Eads Bridge, or with the arch of the
superstructure of the Eads Bridge (T. 511). In that the
ELAINE and her tow were beyond the fail safe point,
or point of no return at the time the left hand set was
encountered, the pilot Griffith could not stop or turn
back and had no alternative but to attempt to somehow
overcome the set and steer his flotilla beneath the
Veterans and Eads Bridges, with the chance of a safe
a
13
passage beneath the arch of the Eads Bridge being
drastically reduced by the flood stage of the river (T.
515-516).
In an attempt to avoid colliding with the pier of one
or both these bridges, and to navigate their passage so
as to bring the ELAINE, whose wheelhouse stood some
43 to 44 feet above the water line, beneath the center of
the arch of the center span of the Eads Bridge where
sufficient vertical clearance was available, pilot Grif-
fith placed his rudders in a hard starboard steer (T.
514). The ultimate object or purpose of the hard star-
board steer by pilot Griffith was to achieve a “point”
with the head of his tow somewhat to the right side of
the channel span of the Eads Bridge, hold that point fo1
a precise length of time so as to permit him, at that pre-
cise moment, to bring his rudders back to port and
“swing” the ELAINE to the right and directly beneath
the center of the Eads arch, the only point where suf-
ficient clearance was available for the ELAINE's
passage beneath the superstructure of the Eads Bridge
(T. 516, 759). The natural consequence of the hard star-
board steer was to cause the stern of the ELAINE to
“slide” to port or to the left toward the pier of the
Veterans Bridge (T. 758-759). Due to the characteris-
tics of the tow, i.e., eight empties and two loads, with
the two loads being at the rear of the port string, it was
difficult, if not impossible, for pilot Griffith to either
achieve or hold the “point” necessary to successfully
accomplish the planned maneuver. All the while, the
stern of the ELAINE continued its rapid swing or
“slide” to port, toward the pier of the Veterans Bridge
(T. 759). In spite of the inability of the tow to achieve
and hold its “point”, pilot Griffith managed to get the
tuw beneath the Veterans Bridge and past its pier;
14
however, the slide of the ELAINE’s stern continued
and the port stern corner bumped or collided with the
pier of the Veterans Bridge, breaking out all of the
wires connecting the port side of the ELAINE with her
tow (T.521). At the time of the collision of the port stern
corner of the ELAINE with the pier of Veterans
Bridge, the head of the tow was under the Eads Bridge,
below and to the right or Missouri side of the center of
the channel span of the Eads Bridge (T. 514-515).
From the time of his return to the wheelhouse at
12:10 P.M. until encountering the left hand set just
above Veterans Bridge, Captain Stroschein did not
criticize, correct or comment upon the manner in
which pilot Griffith made his approach to the bridges,
nor inform him of the left hand set he was to encounter.
Neither did Captain Stroschein assume command of
the vessel (T. 502-538). Captain Stroschein testified
that he would have approached the Veterans and Eads
Bridges in the same manner as did pilot Griffith (T.
521).
After the collision of the port stern of the ELAINE
with the pier of Veterans Bridge and the parting of the
port face wires, the tow of the ELAINE went out of con-
trol, became cross-wise to the downriver current, but
remained fixed to the ELAINE at her starboard push
knee (T. 521-522). Following the collision of the port
stern of the ELAINE with the pier of the Veterans
Bridge and the parting of the port face wires, Captain
Stroschein realized that the out-of-control tow was go-
ing to pull the ELAINE into a collision with the left
descending pier of the center span of the Eads Bridge
and cause her to capsize and sink. Fearing for his life
and limb, Captain Stroschein abandoned the wheel-
———
RN Lt eile od ne Sa een
ee
. ee ee ee
15
house by departing through one of the wheelhouse
doors to the outside deck, running aft and down two
deck levels tothe rear of the boat and a position of safe-
ty (T. 522-528). After Captain Stroschein’s departure
from the wheelhouse, pilot Griffith stayed on to bring
the ELAINE's engines to full reverse and maneuver
her off the left descending pier of the channel span of
the Eads Bridge. Had he not done so, the ELAINE
would have collided with that pier, capsized and sunk,
with the possible loss of some or all of the crew (T. 522-
523). After maneuvering the ELAINE off the pier of the
Eads Bridge, but just before the collision of her wheel-
house with the superstructure of the bridge, pilot Grif-
fith departed the wheelhouse but was crushed and
killed by a falling heavy section of the superstruc-
ture. before reaching a position of safety (T. 452).
Following the collision with the arch of the Eads
Bridge, the starboard face wires securing the tow to
the ELAINE parted and the tow traveled downriver,
colliding with other craft and bridges. The ELAINE
herself, after clearing the Eads Bridge, went out of
control and was captured and later tied off by two har-
bor boats in the area (T. 452-453).
The M/V ELAINE JONES could have safely
navigated the Veterans and Eads Bridges had her ap-
proach from upriver been closer to the Missouri shore
so as to compensate for the left hand set encountered
just above Veterans Bridge (T. 746). On the date before,
the day of, and the day after the collision, when the
river was higher, many other boats of the same and
lesser sizes and horsepower as the ELAINE safely
navigated St. Louis Harbor with mixed tows of both
greater and lesser size (T. 564-567).
16
Captain Stroschein had navigated St. Louis Harbor,
downbound, prior to this voyage and had encountered
the aforementioned left hand set but did not com-
municate this experience to pilot Griffith nor did he
instruct the pilot how to navigate the harbor (T. 506).
REASONS FOR GRANTING THE WRIT
It is submitted that the Fifth Circuit Court of
Appeals erred in its holding that as a matter of law
Griffith was chargeable with knowledge of the un-
usual conditions existing in the river at the time and
place of the accident and that his failure to acquire
such knowledge breached a legal duty owed by him in
this instance. Alternatively, the Court erred in find-
ing that such a legal duty was owed by Griffith to his
employer, Canal Barge Company, and in its failing to
recognize that a different duty was owed by Griffith to
third parties on the river.
Secondly, the Court of Appeals erred in holding that
the negligence with which it charged Griffith proxi-
mately caused the resultant loss, in view of the fact
that had Griffith met the standard of care imposed by
the Appellate Court, i.e., made inquiry of his captain.
regarding navigation of the vessel and tow, the subject
accident would still have been occasioned because the
captain with his superior knowledge of the existing
hazards concurred in the manner in which Griffith ap-
proached St. Louis Harbor.
Thirdly, the Court erred in its reversal of the Trial
Court in refusing to allow the Trial Court to consider
in the element of damages a two percent anticipated
annual increase in the cost of living.
en et Sew ene)
panne
wie we
17
Finally, the Court of Appeals erred in allotting
twenty-five percent of Griffith's earnings as being at-
tributable to his own personal use had he lived.
With respect to the above issues, there exist con-
flicts in decisions of the various appellate courts and
it is submitted that the opinion of the Court of Appeals
in this instance is in conflict with prior decisions of
this Honorable Court. Moreover, the Fifth Circuit
Court of Appeals reversed its own earlier opinion in
this very same case.
ARGUMENT
I.
The Appellate Court Erred In Holding Grif-
fith Negligent
The Fifth Circuit Court of Appeals, in reversing the
Trial Court, has concluded that Griffith was guilty of
some negligence and that his negligence was a proxi-
mate cause of the collision. It is respectfully submit-
ted that the Appellate Court erred on both counts.
Hereinbelow, the issues relating to negligence and
those of proximate causation will be treated separate-
ly.
The Trial Court finding of lack of actual knowledge
of the particular hazard on the part of Griffith was not
disturbed by the Court of Appeals. However, Griffith
was found negligent by the Appellate Court
predicated on constructive knowledge chargeable to
him as a matter of law. To the Court, his negligence
was generated by his failure to apprise himself of the
navigational hazards to which his tow was exposed.
a —————
18
To sustain this finding, the Court turned to a number of
authorities which admittedly held that a pilot of a
river steamer was presumed to have that knowledge of
existing conditions which should be expected of one
who holds himself out as a member of this particular
profession. On one hand, it is felt that the cited cases
are distinguishable on the basis that each of the fac-
tual situations involved p. *sented an opportunity for
the pilot involved therein to acquire knowledge of the
hazard which gave rise to the various accidents in
which their vessels were involved. On the other hand,
they are distinguishable regarding the threshold
issue of isolating the party to whom the duty of due
care is Owed before the question of liability can be
reached.
Unlike the cited cases, Griffith had no opportunity to
discover the hazard into which he navigated his vessel
and tow other than from Captain Stroschein himself.
When Griffith completed his watch prior to the time
that his flotilla reached the St. Louis Harbor, he could
not then possibly have been aware of this flotilla’s
location downstream at a later point in time when he
was scheduled to resume his watch. Obviously,
without this information, there was no reason for him
to make any inquiry regarding conditions at some
location then unknown to him. When he did subse-
quently return to relieve Captain Stroschein as the
pilot of this flotilla, they still had not yet entered the
St. Louis Harbor but were approaching same and with
a tow inadifferent configuration than that which Grif-
fith had handled at the completion of his previous
watch. Upon retaking the wheel, he specifically in-
quired of Captain Stroschein regarding any idiosyn-
crasies of the newly madeup tow. What was Captain
ALAN AO tee mere we &
19
Stroschein's reply? He stated that he did not know. But
more important to the questions to be resolved by this
Honorable Court is what Captain Stroschein did not
say! Here was an invitation by the pilot under his com-
mand for the impartation of critical information.
However, not one word of advice was Offered relative
to the hazard which they were then approaching and of
which only Captain Stroschein had actual knowl-
edge. The inquiry of the handling characteristics pro-
posed by Griffith impliedly invited all information
regarding the handling of the vessel and tow as it was
undertaken by Griffith and the response of Captain
Stroschein was Only a partial answer to the question,
with elements of the hazards known to Captain
Stroschein being omitted. Lulled by the response of
his superior officer, one should not expect Griffith to
have further pursued an inquiry which he could not
reasonably anticipate as having been incompletely
answered. Moreover, the only practical and reason-
able source of navigational information was that of
Griffith's employer, Canal, and its Captain
Stroschein. We are cognizant of the language con-
tained in the Appellate Court opinion concerning the
possibility of Griffith obtaining information from
“other sources”, but submit to this Honorable Court
that Griffith had, under the circumstances, no reason
to go to other sources, but to the contrary, had every
reason to expect that any pertinent information of
such a nature would have been provided him by his
employer. To place any greater duty upon Griffith
would be totally unreasonable, particularly with
respect to a consideration of any duty owed by him to
his employer.
20
We turn to the questions of duty. It is an elementary
principle of law that negligence arises only upon a
breach of adutv which was owed to the person who has
been damaged vhereby. It is axiomatic that only a par-
ty to whom Griffith owed a duty could complain of his
failure in meeting such duty. It has apparently been
assumed that such a duty was owed by Griffith to
Canal Barge Company, for this is the only basis on
which Griffith could be found negligent with respect
to it. However, this presumption of a duty by Griffith
to Canal is an erroneous one, for there is no basis un-
der the facts of this case on which to establish such a
duty. The Appellate Court cites numerous authorities
for the proposition that the pilot of a vessel is pre-
sumed to know ofthe prevailing conditions existing at
any point which he might navigate. Although this
presumption exists in our law, it is inappropriately
relied upon here by the Court in the search for an an-
swer to whom the duty of having such knowledge is
owed. It is one thing to say that a vessel which collides
with a “dumb object”, or another vessel, as the result
of having improperly navigated a prevailing condi-
tion. establishes a presumption of knowledge and
negligence on the part of a pilot. and yet another to
employ that rule and presumption when the contest is
between an employer and employee, such as we have
here. Certainly, one would not argue, as against the
owners of the Eads Bridge, that Canal's liability or re-
sponsibility in connection with this accident would be
any different had Captain Stroschein chosen to put the
cook at the wheel to run St. Louis Harbor on October
14, 1969. By that same token, however, can one suc-
cessfully argue, under these hypothetical circum-
stances, that had the cook met with his demise, as did
George L. Griffith, he would have been guilty of com-
etl AR Nat nts il
21
parative negligence barring recovery by his widow
and estate for his death? We think not. Petitioner, of
course, does not by this hypothetical query intend to
imply that George L. Griffith should be likened to the
cook. To the contrary, he was obviously an extremely
able mariner, far more fit to serve in his capacity asa
wheelman than was the ELAINE's master, Vernon E.
Stroschein. His failing, if it could be classed as such,
was simple ignorance of an existing fact or con@ition,
of which the master had superior knowledge, wnich
knowledge the master did not communicate to him.
The decision to depart Wood River, a position of
relative safety, was made by the captain who was then
at the vessel's wheel. The ELAINE was committed to
the voyage through St. Louis Harbor at the time that
George L. Griffith assumed the helm. Captain
Stroschein tendered an unwieldy tow to the pilot who
was inexperienced therewith in difficult circum-
stances, failing to inform him of known hazards and to
instruct him in the proper manner of navigating same.
Then, once the pilot encountered the violent cross-
current or set, the captain failed to assume command
from the pilot and, in fact, abandoned the wheelhouse
in the face of the imminent peril. Finally, and most im-
portantly, Griffith's navigation of these bridges wes
attempted under the watchful eye of Captain
Stroschein, who, by his failure to warn Griffith of the
left hand set above the Veterans Bridge, precluded any
attempt by Griffith to effectively compensate therefor.
It is inconceivable that Griffith could be found guilty
of comparative negligence in performing a task as-
Signed to him by a superior officer under the direct
Care and supervision of that officer, who never raised
objection to that performance.
22
It is submitted that the Trial Court was eminently
correct in its finding that George L. Griffith was free of
any degree of comparative negligence in Causing or
vrecipitating the accident in suit.
II.
The Appellate Court Erred In Its Holding Of
Proximate Cause
Now turning to the question of proxiinate cause, itis
submitted that the Court of Appeals again fell into
error in making such determination.
Proximate causation is met when it can be legi-
timately determined thatthe result flowed asa natural
consequence of a wrongful act. In measuring
whether or not the test of proximate causation has
been met in the subject inquiry, it must be determined
that there is, in fact, this nexus between the act and the
result. Accordingly. although the course of action un-
dertaken by Griffith resulted in the subject accident,
proximate causation cannot exist in the absence of cir-
cumstances which would have led to an avoidance of
this collision. As stated in the preceding portion of
this application. inquiry was made by Griffith when
he assumed the wheel of the M/ V ELAINE which was
not fully met by Captain Stroschein and which lulled
Griffith into believing that the course of action which
he was following was acorrect one. In light of Captain
Stroschein’s tacit approval of that course (by his
silence in the face of his observation of Griffith's
selection thereof and his after-the-fact admission that
he would have navigated the harbor in the same
23
manner as did Griffith), it is submitted that any in-
quiry by Griffith of Stroschein concerning the ex-
istence of hazardous conditions in the harbor on the
date of the accident in suit would have been a vain and
useless act, for Stroschein’s obvious reply would not
have resulted in any change in Griffith's handling of
the tug and tow. In view of the fact that Griffith's
course of action would have remained unchanged by
any inquiry which might have been made of Captain
Stroschein, it can hardly be said that such failure was
a proximate cause of the resulting collision which, un-
der the facts and circumstances indicated herein, was
inevitable.
III.
The Error Of The Court Of Appeal In Revers-
ing The Trial Court’s Allowance Of An Incre-
ment Of Damages In The Amount Of Two Per-
cent
The Finding of Fact submitted by the Trial Court did
not characterize the two percent per annum damage
increment as being compensation for an inflationary
trend. It is subrnitted that there was ample evidence to
support this allowance based upon the anticipated
future increases in pilot Griffith's income unrelated to
inflationary trends. However, out of an abundance of
caution, the following comments are offered as an
alternative basis which would fully support this par-
ticular element of damage.
The denial of an allowance for an inclusion of atwo
percent cost of living increase in computation of loss
24
of future earnings, as a result of decreased purchasing
power of the dollar due to present and predicted future
inflationary trends, creates inconsistent holdings by
different circuits as well as a reversal of the Fifth Cir-
cuit of prior opinions.
In its original opinion herein, pursuant to Cun-
ningham v. Bay Drilling Company, 421 F.2d 1398 (Sth
Cir. 1970), the Fifth Circuit affirmed the District Court
in its award of a two percent adjustment in loss of
future earnings of the decedent, based on the an-
ticipated annual increase in thecost of living (480 F.2d
11, 28). Subsequently, in Johnson v. Penrod Drilling
Co.. 510 F.2d 234, 236 (5th Cir. 1975), the earlier
decisions in Cunningham and Canal Barge, supra.,
were expressly overruled. The rationalization ad-
vised for the position in Johnson is predicated upon
the speculative nature of such awards. This reason-
ing, however, totally ignores the fact that damages in
any personal injury or wrongful death action are by
their very nature speculative. Petition of Risdal and
Anderson. Inc., 291 F.Supp. 353 (D. Mass. 1968). In fact,
there may be less speculation involved in computing
the trend of the American dollar than there is in es-
timating the life expectancy or work-life expectancy
of an injured plaintiff, a common practice for many
years in personal injury actions.
Nor can the decision in Johnson, supra., couciied in
terms of judicial aversion to speculation, be recon-
ciled with other decisions to the effect that considera-
tion may be directed to the possibility of inflation in
fixing damages. National Airlines v. Stiles, 268 F.2d
400 (5th Cir. 1959), certiorari denied 361 U.S. 885, 80
S.Ct. 157 (1959); New Amsterdam Casualty Company
25
v. Soileau, 167 F.2d 767 (Sth Cir. 1948), certiorari denied
335 U.S. 822, 69 S.Ct. 45 (1948); Cox v. Remillard, 237
F.2d 909 (9th Cir. 1956); Grigsby v. Coastal Marine Ser-
vices of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969), cer-
tiorari dismissed 396 U.S. 1033, 90 S.Ct. 612(1970); Law
v. Sea Drilling Company, No. 67-794 (E.D. La. 1970). In
fact, the jurisprudential allowance of consideration of
future inflationary trends by both judge and jury is
well entrenched.
Moreover, Johnson's reliance on Chesapeake &
Ohio Railway Company v. Kelly, 241 U.S. 485, 36 S.Ct.
630 (1916) and Blue v. Western Railway of Alabama,
469 F.2d 487 (5th Cir. 1972), is subject to question in
view of their primary concern with the discount of
future earnings to present worth. Neither case ex-
pressly addresses problems relating to future in-
flationary trends.
The rationale of Johnson is further weakened as a
result of its reliance on Williams v. United States, 435
F.2d 804 (1st Cir. 1970), Frankel v. Heym, 321 F.Supp.
1331 (E.D. Penn. 1970), affirmed 466 F.2d 1226 (3rd Cir.
1972) and Furumizo v. United States, 245 F.Supp. 981
(D. Hawaii 1965), affirmed 381 F.2d 965 (9th Cir. 1967).
These cases, when read in light of the foregoing
jurisprudence, actually would seem to point up the
conflicting views adopted at various periods, both
within and among the Appellate Courts in reference to
allowance for future inflationary trends. (See Mills v.
Tucker, 499 F.2d 866 (9th Cir. 1974) )
That this question is subject to genuine controversy
which should be addressed by this Honorable Court is
clearly revealed by the divided Court in Johnson, with
26
particular reference to the dissent indicated by Chief
Judge John R. Brown. It is respectfully submitted that
prediction of future inflationary trends, speculative
though it may be, is no more so than other elements of
a personal injury damage award and is just one more
factor to be considered in estimating, in the interest of
justice, present awards of future dollars. In the words
of Flemming James, Jr., ‘There are few who do not
regard some degree of continuing inflation as here to
Stay. Harper and James, The Law of Torts. 1968 Supp.
§ 25.11.
IV.
Reduction Of Award For Decedent's Personal
Use
The “pecuniary loss” of Mary Kathryn Griffith and
those on whose behalf she has brought this action,
resulting from the death of her husband. is to be deter-
mined by the extent to which they would have shared
in his earnings had he lived. Meehan v. Central
Railroad Company of New Jersey, 181 F.Supp. 594
(S.D. N.Y. 1960): O'Connor v. United States, 269 F.2d
978 (2nd Cir. 1959); Petition of Marina Mercante, 248
F.Supp. 15(S.D. N.Y. 1965). Customarily, this figure is
determined by deducting the deceased's share of
household expenses, etc., from gross earnings,
expressing his share as a percentage. Thus, for exam-
ple, with three children in the home. the percentage
has been placed at twenty-five percent, Petition of
Marina Mercante, supra; with two children, twenty-
three percent, Rogow v. United States. 173 F.Supp. 547
(S.D. N.Y. 1959): eighteen percent with four children,
AAD ates 0 Sabie
Biome en
eis ie
27
Jennings v. United States, 178 F.Supp. 516(D. Md. 1959)
and fifteen percent with two children. Law v. Sea Drill-
ing Company, supra.
Petitioner contends that the Trial Court erred in
assessing twenty-five percent of the earnings of the
deceased, George L. Griffith, to his consumption had
he lived. Due to the nature of the deceased's work asa
riverboat pilot, he worked two of every three days
ab urd the boats to which he was assigned. He receiv-
ed his meals, lodging and ironing aboard the boat,
without any additional cost to him, where his oppor-
tunity to spend for his own entertainment was limited.
His widow, minor son, major daughter and grandchild
shared his home. For these reasons. it is urged thata
more appropriate assessment would have been in the
amount of fiteen percent and that the award of the Trial
Court should be increased by the difference. A fifteen
percent deduction attributable to decedent's use would
clearly be in line with the rationale of Higginbotham
v. Mobil Oil Corporation, 360 F.Supp. 1140 (W.D. La.
1973) and Law v. Sea Drilling, supra.
CONCLUSION
In view of the foregoing arguments and authorities,
it is respectfully urged that this petitioner's applica-
tion for writ of certiorari be granted and, upon review,
that the decision of the Fifth Circuit Court of Appeals
be reversed only with respect to the following:
A. That Court's finding of negligence, and
proximate causation, on the part of George
L. Griffith;
28
B. That Court's refusal to allow the increment
of damages in the amount of two percent
annually;
C. That Court's refusal to reduce the alloca-
tion of twenty-five percent of the
decedent's future income to his personal
use, had he lived. i
Respectfully submitted,
HARRY E. BARSH, JR.
Camp, Carmouche, Palmer.
Carwile & Barsh
P.O. Drawer 2001
Lake Charles, Louisiana 70601
Counsel for Petitioner.
Mary Kathryn Griffith
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true copies of the forego-
ing Petition for a Writ of Certiorari on behalf of the
Petitioner, Mary Kathryn Griffith, have been served
on all parties by depositing same in United States
Mail, postage prepaid, and addressed to their respec-
tive counsel of record.
LAKE CHARLES, LOUISIANA: June —-
HARRY E. BARSH, JR.
29
ENTRY OF APPEARANCE
To the Clerk of the United States Supreme Court:
In accordance with Rule 33 of this Honorable Court.
please enter my appearance in this action as attorney
for Petitioner, Mary Kathryn Griffith.
Dated: June ___., 1975.
HARRY E. BARSH, JR.
Camp, Carmouche, Palmer,
Carwile & Barsh
P.O. Drawer 2001
Lake Charles, Louisiana 70601
Attorneys for Petitioner
APPENDIX
> ~~
la
MEMORANDUM OPINION
In The United States District Court
For The Northern District Of Mississippi
Greenville Division
IN THE MATTER OF THE PETITION OF CANAL
BARGE COMPANY, INC., AS OWNER AND
OPERATOR OF THE M/V ELAINE JONES, PRAY-
ING FOR EXONERATION FROM OR LIMITATION
OF LIABILITY NO. GC6948-K
On October 14, 1969, at approximately 12:20 p.m., a
collision occurred between the M/V ELAINE JONES
and the Eads Bridge, a fixed structure spanning the
Mississippi River at St. Louis, Missouri, and connect-
ing East St. Louis with the City of St. Louis. The colli-
sion resulted in damages to the bridge, the ELAINE
JONES, and the death of the pilot, George L. Griffith.
Three days later — on October 17, the towboat owner
and operator, Canal Barge Company, Inc. (Canal) filed
in this court its petition seeking exoneration from
and/or limitation of liability for the collision losses
and posted ad interim stipulation (as amended) of
$807,453.78 as the limitation value of the ELAINE
JONES and its pending freight. Answers and claims
were timely filed on behalf of (a) Mary Kathryn Grif-
fith, administratrix of the estate of George L. Griffith,
(b) St. Louis Bridge Company (Bridge Company) and
Terminal Railroad Association of St. Louis (Ter-
minal), jointly as owner and operator respectively of
Eads Bridge, (c) St. Louis Fuel and Supply Company,
2a
Inc., and (d) Fort Gage, Inc. These answers not only
denied that Canal was entitled to exoneration from
fault in the collision but also contested its right to
limit liability. The claims as propounded sought
money recovery from Canal for the death of the pilot
Griffith, for collision damages, including losses in
revenues, to the Eads Bridge, and for the minor
property damage sustained by the other two
claimants. Thereupon Canal counterclaimed against
the Griffith estate asserting, in the alternative, that
the deceased pilot’s negligence contributed to the
casualty.
An evidentiary hearing requiring seven days was
concluded on December 8, 1970. After due considera-
tion of the oral and documentary evidence the Court
makes the following findings of fact and conclusions
of law, to-wit:
FINDINGS OF FACT
BACKGROUND DATA ON M/V ELAINE JONES
AND EADS BRIDGE
1. The ELAINE JONES is a twin screw, diesel-
powered towboat constructed of steel with a
Hydrodyne hull owned and operated by Canal. Builtin
1967 by St. Louis Shipbuilding Company, it is a
documented vessel of the United States bearing Of-
ficial Number 506770 of 597 gross tons with a length of
154 feet, breadth 40 feet, depth 11 feet, draft 8 feet. ap-
proximately 5300 horsepower, and equipped with kort
nozzles. The towboat was fully certificated by the
United States Coast Guard and also by American
Bureau of Shipping. At the times relevant, the vessel's
3a
equipment was completely operational; and in addi-
tion to pilot Griffith, her crew consisted of the captain.
Vernon E. Stroschein, two engineers, a mate and a
relief mate, two deckhands, a tankerman, and a cook.
Incorporated under Louisiana law with its principal
office in New Orleans, Canal owns and operates a fleet
of 15 towboats as well as numerous barges on the
various inland waterways.
2. The Eads Bridge is owned by St. Louis Bridge
Company, which is a wholly-owned subsidiary of Ter-
minal; and for many years the bridge has been leased
to and operated by Terminal. The construction of Eads
Bridge in its present location in St. Louis Harbor was
completed in 1874. The bridge was constructed with
three spans supported by two piers positioned in the
bed of the river, one pier on the Missouri shore and one
pier on the Illinois shore. The center, or channel, span
of the bridge is 520 feet in.width and the two support-
ing piers are 518 feet apart at the city directrix level, a
fixed reference point based on the high-water mark for
the year 1826. The east and west spans are each 502 feet
in width. The bridge is an arched structure with the
center of each span being the highest point above the
river. The lowest point at the center of the channel
span is 55.72 feet above the city directrix; this
clearance reduces to 8.32 feet at the pier ends of the
center span. Eads Bridge has two decks, the upper
deck to accommodate motor vehicles and pedestrians
and the lower deck for movement of trains. The
superstructure of the bridge is below the vehicular
deck level rather than above it and thus presents an
arch passageway for vessels traveling through and
under it. Prior to the collision in suit, the bridge had
4a
never sustained any known damage by contact with
waterborne craft, nor had it been declared an un-
reasonable obstruction to navigation by governmen-
tal authority.
NAVIGATION CONDITIONS IN
ST. LOUIS HARBOR
3. St. Louis Harbor, the site of this accident,
because of the presence of six river bridges. their close
proximity and construction, coupled with the
meander of the river and its currents, enjoys a reputa-
tion among river people of being a difficult area or
passage to safely navigate, particularly in high water.
A vessel southbound, as was the ELAINE JONES,
after departing Lock 27, is first confronted with the
Merchants Bridge (Mile 183), and then the McKinley
Bridge (Miles 182.5), which present limited horizontal
clearance. Immediately after passing the McKinley
Bridge, the vessel must line up for safe passage of the
Veterans Bridge (Miles 180.2) and then the Eads
Bridge (Miles 180). Just downriver from the Eads
Bridge are the Poplar Street Bridge (Mile 179.3) and
the MacArthur Bridge, also known as the “City”
bridge (Miles 179). For southbound traffic, a gradual
bend in the river from left to right occurs above the
Veterans Bridge and extends to below the MacArthur
Bridge. Contributing to the navigation problem is the
presence of Eads Bridge which, due to its arched con-
struction, affords a limited amount of clearance in
high water through which vessels can safely pass.
Also, during high water, i.e., 20 feet or more on the
St. Louis gauge, the current immediately above
Veterans Bridge runs from the right descending bank
to the left descending bank, from the Missouri shore
5a
toward the Illinois shore. This high water current con-
dition, called a lefthand “set” or “draft”, has a
pronounced effect of moving a southbound boat and
tow toward the Illinois bank rather than straight
ahead. These navigation conditions exist whenever
the river is at 20 feet or more on the St. Louis gauge and
are facts known to experienced mariners navigating
towboats through that section of the Mississippi
River.
4. The Veterans Bridge, which is only .2 of amile
north of Eads Bridge, is so constructed that it has but
one pier situated in the river bed, which pier is sub-
stantially in line with the left descending pier of the
center, or channel, span of the Eads Bridge. Thus a
downbound vessel and its tow must be shaped up to
run both the Missouri, orchannel, span of the Veterans
Bridge and the center, or channel, span of the Eads
Bridge when the head of the tow is no closer than one-
half mile above the Veterans Bridge. A vessel and its
tow accomplish safe passage only when they pass un-
der both bridges directly in line with the green
navigational lights affixed to the center spans of each
structure.
5. The river at St. Louis Harbor reaches flood
stage at 30 feet, a condition which periodically occurs.
On October 14, the date of the collision, the river stage
was 30.3 feet; This flood stage was the result of a
sudden and unexpected rise of an unprecedented
rapidity occasioned by heavy rainfall. For example,
harbor gauge readings for the 5-day period were as
follows:
ee
6a
October 10 3.2 feet
October 11 5.2 feet
October 12 14.1 feet
October 13 25.8 feet
October 14 30.3 feet
As the river stage exceeds 20 feet, the force of the
aforementioned set to the left above Veterans Bridge
likewise increases; and also as the rate of rise in the
river accelerates, the force of the set becomes more
violent. Although a sudden rise of the river increases
the severity of the set, this is an operating factor
known to persons experienced in navigating St. Louis
Harbor during high water. Moreover, the experienced
navigator of a downbound vessel can reasonably
predict the severity of current in St. Louis Harbor by
observing upriver conditions at Wood River, Illinois,
and water levels at Lock 27.
6. The above left set or cross-current is not en-
countered by downbound vessels except in high water.
At all other times the current in the immediate area
runs straight down the river. When navigating the
harbor downbound in low water (10 feetor less), itis an
acceptable practice for a vessel to approach the
Veterans and Eads Bridges in line with their green
lights and pass under both along the mid-channel sail-
ing line, as depicted on the U.S. Engineers’ official
chart (Ex. 13). See App. A. This sailing line is the nor-
mal low water configuration for passage of a descend-
ing vessel. When navigating the harbor downbound in
high water, it is the commonly accepted practice, in
order to compensate for the left hand set encountered
just above Veterans Bridge, to approach Veterans
Bridge well to the right of the mid-channel sailing
Pah on
hy fom
7a
line, or favoring the Missouri shore. By this means,
the vessel and tow are not forced by the cross-current
to the left of the mid-channel sailing line, as it runs im-
mediately beneath both the Veterans and Eads
Bridges. Thus, a downbound vessel and tow that in
high water approach the Veterans and Eads Bridges
within one-quarter of a mile north of Veterans Bridge
on the mid-channel sailing line are too wide or “out of
shape” to safely navigate the passage beneath the two
bridges.
THE VOYAGE OF THE ELAINE JONES
PRIOR TO ACCIDENT
7. On September 29, 1969, Vernon Stroschein was
assigned as pilot aboard the ELAINE JONES, reliev-
ing her regular captain. On October 7, George Griffith
boarded the vessel at Memphis, relieving the regular
relief captain. Stroschein became the captain and
stood watch from 6 a.m. to noon and 6 p.m. to midnight;
Griffith became the pilot, standing watch from noon to
6 p.m. and midnight to 6 a.m. While both Stroschein
and Griffith were Canal’s regularly employed
wheelhouse personnel, this was the first time that
either had ever served aboard the ELAINE JONES. On
October 9, the ELAINE JONES passed northbound
through the St. Louis Harbor when the river gauge
was 4.7 feet. Continuing north, the vessel went
through Lock 27 (Mile 185), which is approximately
five miles north of the Eads Bridge, and also through
Lock 26 (Mile 203), before entering the Illinois River.
8. On October 12 the ELAINE JONES exchanged
her tow with Canal’s M/V LEONIDAS POLK at ap-
8a
proximately 10:25 a.m. at Mile Post 261 on the Illinois
River. This tow exchange was a customary procedure
for Canal, which operates integrated tows by utilizing
its power vessels where most needed. At this ex-
change the ELAINE JONES picked up seven empty
barges from the LEONIDAS POLK. Following the ex-
change. Griffith stood his regular watch on October 13
from noon to 6 p.m., and he again assumed control on
his regular watch from midnight October 13 to 6 a.m.
October 14.
9. The ELAINE JONES then proceeded down-
river with the seven empty barges, arriving at Wood
River, Illinois, at approximately 5:40 a.m. on October
14. At Wood River, which is about 20 miles upriver
from St. Louis, the ELAINE JONES added three
barges to the seven empties already in tow, two of the
added barges, NBC-883 and S-1, being loaded. The tow
of ten barges, as rearranged, was made up two wide
and five long, with the two loaded barges being the aft-
most two barges in the port string. The towboat was
made up astern the NBC-883, the port stern barge in
the tow. The flotilla was 100 feet wide, 1050 feet long on
the port string and 900 feet long on the starboard
string, which was a normal and customary arrange-
ment. The same morning the ELAINE JONES
departed Wood River at 9:45 a.m. enroute to Lock 27
with Captain Stroschein atthe controls. At 11:25a.m. it
arrived at Lock 27, from which it departed at 11:50 a.m.
10. During the ELAINE JONES’ southbound
voyage from Wood River to Lock 27, Captain
Stroschein and Pilot Griffith were aware thatthe river
at St. Louis Harbor was at flood stage and that it had
risen at an extraordinarily rapid rate during the
9a
preceding several days. River information was readi-
ly available to them at the locks and also by radio with
other vessels operating in the immediate area.
11. Canal maintains a shore facility at Natchez,
Mississippi, which has twice-daily radio contact with
its various vessels, including the ELAINE JONES.
Discussions regularly take place between operating
wheelhouse personnel and Canal’s marine
superintendent and port captain. During the period
October 11-14 when the ELAINE JONES was
operating just above St. Louis harbor several other
Canal vessels, in daily radio communication with
Canal's supervisory personnel at Natchez, were also
in the vicinity of the St. Louis Harbor. Prior to the time
of the collision, Canal’s port captain, Earl Daily, was
aware of the flood stage at St. Louis Harbor and the un-
usual rise in the river in that area.
12. At 11:45 a.m., just prior to departing Lock 27,
Pilot Griffith came on watch to relieve Captain
Stroschein. While employed by Canal, Griffith had
never piloted any of its vessels southbound through
St. Louis Harbor at flood stage or even in high water.
Stroschein, however, had encountered the left set just
above the Veterans Bridge in his previous experience,
but did not communicate this information to Griffith,
nor did he issue any instructions to the pilot for
navigating the harbor under the known conditions.
After briefly discussing with the pilot the tendency of
the tow to have a starboard drag. Captain Stroschein
left the wheelhouse and went to the galley for his noon
meal.
10a
APPROACH TO BRIDGES AND COLLISION
13. At12:10 p.m. Captain Stroschein returned to the
wheelhouse and noted that the tow had already passed
the Merchants and McKinley Bridges and the head of
the tow was approximately halfway between the
McKinley Bridge (Mile 182.5) and the Veterans Bridge
(Mile 180.2), or in excess of one mile above the
Veterans Bridge (point x on Ex. 13). At this moment
the ELAINE JONES and her tow were lined up with the
green lights of the center span of the Veterans Bridge,
which lights are aligned, or nearly so, with the naviga-
tion lights on the Eads Bridge; with this heading both
the vessel and her tow were lined up on the mid-
channel sailing line. Observing this condition, Cap-
tain Stroschein made no criticism or comment to Pilot
Griffith upon the manner in which he was making his
approach to the bridges. The captain neither informed
Griffith of the left set to be encountered ahead, nor
assumed command of the vessel. From about one-half
mile north of Veterans Bridge, Griffith made a down-
bound approach too wide to safely navigate the
bridges ahead. Pilot Griffith continued on the mid-
channel sailing line until the head of the tow reached
about one-quarter mile north of Veterans Bridge
(point y on Ex. 13), where the head of the tow and the
stern of the vessel were still lined up with the green
lights on the Veterans and Eads Bridges. At this point
the left hand set in the river was encountered, causing
the vessel and her entire tow to slide or be pushed
violently to the left and off the mid-channel sailing
line. The new heading of the flotilla, which was then
moving full speed ahead and at an overland rate of
about 12 mph, was away from the center span of the
Eads Bridge and toward the river (or left descending
lla
channel) pier of the Veterans Bridge. It was only when
the vessel was about 100 feet above the Veterans
Bridge that Captain Stroschein, according to his
testimony, first became alarmed.
14. In an attempt to overcome the set to port, Pilot
Griffith steered hard to starboard, which moved the
head of the tow to the Missouri shore and caused the
stern of the vessel to swing in the opposite direction,
or toward the Illinois shore. As the vessel neared the
river pier of the Veterans Bridge, the pilot then steered
to port in an attempt to swing the ELAINE JONES to
the right toward the middle of the channel. The pilot's
efforts to regain a safe course were unsuccessful, for
the port side of the ELAINE JONES, about 20 feet
forward of her stern, bumped against the river pier of
the Veterans Bridge. At this point the head of the tow
was almost at the Eads Bridge and the vessel's
wheelhouse, including radar equipment, was about 44
feet above the water line.
15. Immediately following the towboat's striking
the Veterans Bridge pier, the port face wires parted,
the tow went out of control and jackknifed with its
head swinging toward the Missouri shore at a 45°
angle to the mid-sailing line; but the tow remained fix-
ed to the vessel by the starboard wires. The pilot,
realizing that a collision was imminent with the left
descending pier of the center span of the Eads Bridge,
shifted the vessel’s engines from full ahead to full
astern, to prevent the vessel from colliding directly
with the left descending pier of the Eads Bridge. Cap-
tain Stroschein, who had remained in the wheelhouse,
realized at once that the tow was out of control and
would probably collide with the left descending pier of
12a
the Eads Bridge if the engines were not reversed, as
the pilot was then doing. Stroschein soon realized,
however, that even if the engines were reversed, some
portion of the tow or vessel would inevitably collide
with the Eads Bridge. Consequently, the captain aban-
doned the wheelhouse, leaving the pilot Griffith
behind to maneuver the vessel off the left descending
pier of the Eads Bridge toward which it was rapidly
moving.
16. Only seconds thereafter the wheelhouse struck
the bottom portion of the Eads Bridge arch at a point
about 50 feet west of the left descending pier and 20 feet
above the city directrix level. As a result of this colli-
sion, the wheelhouse of the ELAINE JONES was
demolished and a section or chord of the bridge
knocked out. Immediately prior to the impact, Pilot
Griffith left the wheelhouse, but it was then too late,
for he was crushed by falling metal and instantly
killed. Not more than a minute elapsed between the
time the ELAINE JONES rubbed the Veterans pier and
its wheelhouse was demolished by striking the arch of
the Eads Bridge.
17. The ELAINE JONES could have safely
navigated the Veterans and Eads Bridges had her
downriver approach been closer to the Missouri shore
sO as to compensate for the left hand set encountered
just above the Veterans Bridge, which set was predic-
table when the St. Louis gauge stood at flood stage. On
the day before and on the day of the accident, various
other downbound towboats of the same and lesser
horsepower and size tow encountered the same
current conditions, and they safely navigated the St.
Louis Harbor.
a
Bhat On ae!
0 ls
13a
COMPETENCY OF WHEELHOUSE PERSONNEL
18. Captain Stroschein, age 36, was initially
employed by Canal in 1958. After serving as tanker-
man and mate, he had several years’ experience
piloting six of Canal’s towboats. Although he had
served as pilot on both the M/ V EUGENIA P. JONES
and the M/V LEONIDAS POLK, 4300 horsepower
each, his regular employment was as master of the
M/V CAROLINE, an 1800 horsepower vessel. When he
boarded the ELAINE JONES on September 29, 1969, it
was Stroschein’s first trip on that towboat, and he
shared watches with the vessel's master, Captain Lay,
until the latter debarked at Memphis on October 7,
when Griffith came aboard to act as his pilot and stand
the after watch. Stroschein had had no prior service
with Griffith on any of Canal’s vessels. At Wood River,
Illinois, the captain was on watch when the tow was
made up, and Griffith did not participate in its
arrangement. The captain decided to navigate to St.
Louis and on his watch, enroute to Lock 27 at slow
speed, he did not encounter any abnormal movement
of the tow. When taking the controls in the lock at 11:45,
Griffith asked the captain about the possibility of a
starboard drag because of the tow’s makeup. The cap-
tain then advised him that if such a drag developed at
full speed, Griffith should make a port steer to com-
pensate for it but that it was up to him, the pilot, to
decide how much steer was in order after getting the
feel of the tow. Captain Stroschein knew that it would
take Griffith, who was generally familiar with the
barges and the tow, a period of some minutes, after the
ELAINE JONES got under way at full speed ahead, to
make this determination. From his prior experience
Captain Stroschein was aware thata left set just above
gg eee
14a
the Veterans Bridge might be encountered in extreme-
ly high water and the force of the cross-current could
slide a tow toward the Illinois shore. He also knew that
a downbound vessel and her tow had to be shaped up
for safe passage beneath the Veterans and Eads
Bridges at least one-half mile north of Veterans
Bridge; and he further knew if at that point the flotilla
was too far from the Missouri shore, navigation ahead
would be imperiled by the limited clearance afforded
by the arches of the Eads Bridge in high water, which
necessitated passage directly under the middle of the
center span of Eads Bridge.
19. George Griffith, 47 years of age, was first
employed by Canal in January 1968 after seven years’
experience piloting vessels of other towing com-
panies on various rivers, including the Mississippi
River. He was regularly assigned as pilot to the M/V
JOSEPH M. JONES, a 4300 horsepower vessel which
was a sister ship of the ELAINE JONES, both having
the same dimensions. Griffith had also piloted five
other Canal towboats, including the LEONIDAS
POLK. He had piloted the JOSEPH M. JONES south-
bound through the St. Louis Harbor on at least four
different trips: September 13, October 27, November
14, 1968, and July 23, 1969, and was off watch on a fifth
trip, March 4, 1969. The evidence does not reveal that
on any of these occasions high water conditions ex-
isted at the St. Louis Harbor. When taking the controls
from Captain Stroschein at Lock 27, Griffith knew of
the high water condition at St. Louis Harbor, that Eads
Bridge had only limited clearance, making it neces-
Sary to pass beneath the center of the Eads channel
span, but he did not know of a left hand set to be en-
countered directly above the Veterans Bridge, nor was
i ee ee ae es ee Sey
15a
he apprised of its probable existence by Captain
Stroschein or Canal’s other supervisory personnel.
Moreover, when he assumed control at Lock 27, Grif-
fith had inadequate time to-get the feel of the tow or
otherwise check its steerage before getting too wide in
the navigation course, and without warning he held to
that course until the set slid the flotilla to port. Griffith
then attempted to correct the course by steering first to
starboard and then to port to avoid striking the
Veterans pier. Out of shape for navigating Eads
Bridge, the pilot's maneuvers to extricate the vessel
and tow from their plight were procedures that an
experienced mariner would resort to in such an emer-
gency.
20. Earl Daily, Canal’s shore-based port captain,
assigned Stroschein and Griffith to their respective
positions on the ELAINE JONES. Familiar with the
capabilities and records of both men, he knew that
they had neither crewed together nor had prior serv-
ice on the ELAINE JONES. A veteran river pilot
himself, Captain Daily also knew that whenever the
river stage at St. Louis Harbor exceeded 22 feet, the left
set above the Veterans Bridge should be expected and,
given that condition, a vessel descending too wide
from the Missouri shore would have trouble shaping
up to run the bridges. Although Captain Daily was in
twice-daily communication with the ELAINE JONES
and was fully aware of her movements, he issued no
particular instructions to Stroschein or Griffith for
navigating the harbor. Canal, through its port captain,
was privy to the perils of the navigation.
16a
DAMAGES CAUSED BY COLLISION
Death Claim of the Administratrix.
21. At the time of his death, George Griffith had
been married to Mary Kathryn Griffith since Septem-
ber 10, 1945, and they had lived together until his death.
The widow is 46 years of age, in good health and has a
life expectancy of 33.2 years. Four children were born
of their marriage, namely: Sharon Ann, on June 20,
1946; Guy Rocklyn, on January 13, 1948; Dixie Lea, on
January 29, 1953; and Dusty Lane, on September 17,
1954. Decedent resided in Timbo, Arkansas, sharing
his household with his wife, their 15 year-old son, Dus-
ty Lane, and their 22 year-old daughter, Sharon Ann,
and her small child. The adult daughter, Sharon Ann
Griffith Robique, worked at a shirt factory and re-
ceived an allotment from her estranged husband, who
was in the military service, but she and her small child
were furnished food and lodging by Griffith. The other
two children, Guy Rocklyn and Dixie Lea, were mar-
ried, self-supporting, and maintained their own
households elsewhere.
22. His death being instantaneous, Griffith had no
conscious pain and suffering, and his funeral ex-
penses of $3,000 have been paid by Canal.
21. At the time of his death, Griffith was in good
health and had a work-life expectancy of 16.4 years
from date of trial. Griffith had a stable and regular
employment as a river pilot, and the last year of his
life his earnings, projected over a 12-month period,
amounted to $11,321. His loss of wages accrued to date
of trial is $12,376. Decedent's future loss of income is to
ee oe ee ee ee er 2 oF | ;
6a te
Be ee woh
17a
be calculated at $11,321 per year for his 16.4 years’
work-life expectancy, and discounted at a reasonable
rate of 4%; this sum amounts to $134,240. Griffith
might have reasonably anticipated certain increases
in his future earnings; such increases may fairly be
calculated at the rate of 2% per year to the end of his
work-life expectancy, which is to be also discounted at
4%. Thus an additional loss of future income is de-
rived in the sum of $20,522.
22. About 25% of his income, or about $250 month-
ly, was used by decedent for his personal needs and
purposes, and that percentage is a fair and reasonable
apportionment of Griffith's total income attributable
to his personal use had he survived.
23. The pecuniary loss to Mary Kathryn Griffith,
widow, and Dusty Lane Griffith and Sharon Ann Grif-
fith Robique, dependent children, is as follows:
Loss of wages to date of trial $ 12,376
Future loss of income 134,240
Future loss of increased
earnings 20,52?
167,138
Less 25% attributable to
decedent's personal use 41,784
Total allowable loss 125,354
Distributable as follows:
Mary Kathryn Griffith 89,354
Dusty Lane Griffith (6
years during minority
at $250 monthly) 18,000
Sharon Ann Griffith Robique
(10 years at $150 monthly) 18,000
is
}
2
ies peeeencmeretn tetetere cereale eee
18a
24. Griffith provided the guidance, care and dis-
cipline of a good father to Dusty Lane Griffith, the only
minor child residing in the household. By reason of his
father’s death, this minor child has sustained, and dur-
ing his minority will continue to sustain, further loss
from the lack of his father’s care, guidance and dis-
cipline. This item of damage is assessed at the rate of
$1,200 per year for six years, or $7,200.
25. The above enumerated elements constitute the
damages allowable to the administratrix in this ac-
tion. If the applicable law authorized an award of gen-
eral damages, the court, in such case, would find that
the decedent and his wife were happily married for
many years, and close and affectionate ties existed
between him and his four children. Each member of
his surviving family has sustained loss from being de-
prived of his love and affection, companionship and
society, fixed as follows:
Mary Kathryn Griffith $ 20,000
Sharon Ann Griffith Robique 10,000
Guy Rocklyn Griffith 10,000
Dixie Lea Griffith 10,000
Dusty Lane Griffith 10,000
making a total of $60,000 general damages.
THE JOINT CLAIMS OF BRIDGE COMPANY AND
TERMINAL FOR PROPERTY DAMAGE AND
REVENUE LOSSES.
26. Immediately following the collision, Terminal
closed Eads Bridge to both vehicular and rail traffic.
Two days later, two of the four vehicular lanes were re-
NR NL Rt A 6 en WRN RT tne el tee) i a ile
19a
opened allowing highway traffic in both directions.
Rail traffic was not resumed until all bridge damage
had been repaired. On June 15, 1970, all traffic, both
rail and vehicular, returned to normal.
27. After having its own personnel inspect the
bridge’s structural damage, Terminal engaged Sver-
drup and Parcel, afirm of consulting engineers, to per-
form the necessary engineering services and con-
tracted with American Bridge, Division of U. S. Steel,
to fabricate the needed repair components. The proc-
ess of bridge repair was complex, requiring the jack-
ing of the entire structure to insert missing parts, but
the work was performed with dispatch. The work done
under these contractual arrangements was necessary
to restore the bridge to its condition immediately pre-
ceding the accident. The repairs made neither enhanc-
ed the bridge's value nor extended its useful life.
28. The entire cost of the original bridge structure,
because of its age, had been fully depreciated on Ter-
minal’s books in accordance with depreciation rates
prescribed by the Interstate Commerce Commission.
At the time of the collision, however, the bridge was in
sound condition and had a remaining useful life for an
indefinite number of years. The actual value of the
bridge is very substantial, Terminal having declined
in recent years various Offers to purchase the bridge at
cash offers ranging from $11 million to $15 million,
plus other considerations. Eads Bridge is of very great
value to Terminal because it constitutes an integral
part of its business operations, and is important to the
needs of various proprietary railroad companies
which own 100% of Terminal’s stock.
20a
29. Terminal paid Sverdrup and Parcel $50,822.58
for their engineering service, and American Bridge
$191,772.57 for its work. These charges were fair and
reasonable in amount and constituted service and
work necessarily incurred because of collision dam-
age. Terminal also incurred reasonable expenses of
$10,592.61, itemized in the evidence, for miscellaneous
items connected with the collision damage. The total
amount of structural and incidental damage to the
Eads Bridge exclusive of revenue loss, which proxi-
mately resulted from the collision, is determined to be
the sum of $253,187.76.
30. Terminal is a switching or terminal line rail-
road which serves, although in a different manner.
both freight and passenger trains of certain operating
railroads arriving and departing the St. Louis area.
Basically Terminal’s service function is to move its
customers rail cars and engines across the Missis-
Sippi River in accordance with established routing
procedures. Besides the Eads Bridge, Terminal owns
the Merchants Bridge, which is located three miles up-
river, rail trackage and yards on both sides of the river
at St. Louis, and Union Station, the St. Louis
passenger terminal. In its normal operations, Ter-
minal regularly uses not only its Eads and Merchants
Bridges but also the MacArthur Bridge owned by the
City of St. Louis, which charges Terminal tolls for all
crossings over it. The MacArthur Bridge is located im-
mediately downriver from and convenient to Eads
Bridge. During the 8-month period of bridge repair,
Terminal, in its use of MacArthur Bridge, incurred ad-
ditional expenses in city bridge tolls and from fur-
nishing to passenger trains qualified pilots or switch-
men as required by the City. In addition to certain in-
21a
creased operating costs, Terminal sustained a direct
loss of revenue for charges it would otherwise make to
its own railroad customers for crossing Eads Bridge.
The nature of the services and the amount of charges
made by Terminal differ for freight trains and
passenger trains, and it is necessary to determine the
losses vi each category.
31. Terminal receives freight cars from railroad
customers in its various classification yards situated
in or near St. Louis on both sides of the river and it
arranges such cars according to size and destination.
Once classified, incoming freight cars are delivered
by Terminal’s own engines and crews. Terminals
transriver freight movements originate from various
classification yards, principally Central District (C.
D.) and Madison Yards, which are on the Ilinois side,
and several classification yards, chiefly Mill Creek
Valley, situated in Missouri. C. D. Yard is located near
Eads Bridge, and directly west of Eads Bridge is Mill
Creek Valley, which is in downtown St. Louis. C. D.
has always primarily served the trans-river freight
entering St. Louis from the east for delivery to Mill
Creek Valley, and Eads Bridge is the shortest and most
convenient route from C. D. to Mill Creek Valley. The
nearby city-owned MacArthur Bridge, to which C.D.
Yard also has easy access, is the next shortest and
most convenient route for traffic moving between C. D.
and Mill Creek Valley. The other principal eastside
yard, Madison, is located several miles north of Eads
Bridge and close to Merchants Bridge, and trans-river
traffic originating in that yard, which is of great
volume. is sent across Merchants Bridge. The bulk of
the freight traffic in the St. Louis area moves west-
wardly, from Illinois to Missouri.
22a
32. The railroad deck of the Eads Bridge leads into
a tunnel on the west side of the river which somewhat
restricts its use by oversize or jumbo freight cars and
larger locomotives. When oversize freight cars west-
bound are received in C. D. Yard, they are moved
across Merchants Bridge or MacArthur Bridge, de-
pending upon destination and traffic conditions. Since
Terminal had to pay tolls for using the MacArthur
Bridge, Terminal had standing instructions to its per-
sonnel to use Merchants Bridge as much as possible.
On many occasions, however, Terminal, in the course
of ordinary operations, chose to move larger freight
cars Over the MacArthur Bridge when there existed
traffic congestion from C. D. to Merchants Bridge or
other trackage considerations. Long prior to the Eads
Bridge damage. Terminal made frequent use of the
MacArthur Bridge for certain C. D. westbound freight
traffic, and the volume of jumbo freight cars has ac-
tually increased for the last decade or more. A con-
Siderable portion of Terminai’s trackage and
switching facilities in the eastside yards is primarily
employed to handle non-river moves between C. D..,
Madison, and other yards and serve Illinois-based
industrial establishments. When the Eads Bridge was
shut down, Terminal’s eastside trackage and rail
facilities were inadequate to meet the requirements of
its non-river business and also move all its freight
volume across the river via Merchants Bridge. Of
necessity. Terminal was forced to use the MacArthur
Bridge in order to maintain an orderly operation.
33. Terminal maintained a three-bridge daily
report showing its use of the Eads, Merchants and
MacArthur Bridges, and prior to October 14, 1968, Ter-
minal’s actual use of the Eads Bridge for freight traffic
>
—_— eS ee
ee i re
kite anh tars naicasttonechit as
23a
was substantial. For example, between October 15.
1968 through June 15, 1969, the identical period one-
year preceding the bridge closing, Terminal sent
across Eads 1203 loaded freight engines, 21,496 loaded
freight cars and 9187 empty freight cars; and for the 8-
month period immediately preceding its closing, Eads
was crossed by 1541 loaded freight engines, 26,083
loaded freight cars and 12,658 freight empties. During
the months Eads Bridge was closed, 1214 loaded
freight engines, 20,499 loaded freight cars and 10,032
empty freight cars would, except for the shutdown,
have been sent across Eads Bridge and were, neces-
sarily and in the course of orderly operations, sent
across the MacArthur Bridge. Each day Eads
movements were physically classified in the yards
and designated as such on Terminal's basic records.
From an operating standpoint, it was neither prac-
ticable nor economically feasible for Merchants
Bridge to handle this additional volume.
34. For its freight car service of classifying, haul-
ing and delivery, Terminal charged its customers a
fixed tariff of approximately $33 per car and it might
elect which bridge to use for the river crossing. When
MacArthur Bridge was used, the City tolls were ab-
sorbed by Terminal and not passed on to its customers.
These City tolls during the period in issue were $4.84
per engine (loaded or light), $2.32 per loaded freight
car, and $1.21 per excess (of those moving in opposite
direction) empty freight car. Hence, while Eads Bridge
was closed, Terminal incurred City toll charges for
Eads movements as follows:
24a
1,214 loaded engines at $4.84 $ 5,875.76
20,499 loaded freight cars at $2.32 49,607.58
5,108 excess empties at $1.21 6,180.68
Total $61,664.02
Terminal’s records are sufficiently definite to support
the foregoing element of loss, which is supported by
Terminal’s operating experience prior to the closing
of Eads Bridge. Tolls paid for 1594 light engines, or
those without cars, are disallowed because that num-
ber represented all light engines crossing MacArthur
Bridge and Terminal failed to establish how many
light engines were attributable to Eads traffic. Ter-
minal’s use of locomotives prohibited on the Eads
Bridge but not on the MacArthur Bridge, however,
does not detract from the validity of this portion of the
claim since the undisputed evidence shows that
freight cars classified for an Eads Bridge crossing
were then moved by the most available engine. Ter-
minal’s claim for reimbursement of freight tolls paid
to the City does not include any movements which
could have practicably used the Merchants Bridge.
35. As regards passenger service, three passenger
lines, viz: the L & N, the B & O, and Penn Central,
customarily crossed the Mississippi River via Eads
Bridge, entered and departed from Union Station,
where they discharged and took on passengers and
mail. The Eads Bridge was used by these passenger
lines which operated on aregularly scheduled basis as
the shortest and most direct route into Union Station,
which is in Mill Creek Valley area, and also because
bridge tolls charged by Terminal for Eads crossing
were substantially less than the City’s passenger tolls
25a
for MacArthur Bridge. In crossing Eads Bridge.
passenger trains, unlike freight trains, continue to be
operated by their own crews and powered by theirown
engines. During the period in issue, the City charged
tolls of $4.84 per passenger locomotive and $3.63 per
passenger car. Terminal’s toll charges were substan-
tially less, namely, $2.40 per passenger engine and
$1.80 per passenger car, applicable to both Eads and
Merchants Bridges. Besides the difference in toll
rates, the City required a qualified pilot, or switch-
man, aboard passenger trains crossing the Mac-
Arthur Bridge, another item of expense not to be in-
curred if Terminal used its own bridge. Prior to the
closing of the Eads Bridge, these passenger lines rare-
ly crossed the river by either the MacArthur Bridge or
the Merchants Bridge. The distance for the three
passenger lines into Union Station via Merchants
Bridge was approximately three times greater than
that from Eads or MacArthur Bridges. Because of their
fixed schedule requirements, the passenger lines
could not feasibly use Merchants Bridge during the
time Eads Bridge was out of order, which made it im-
perative that Terminal use the MacArthur Bridge.
36. By long-standing custom and mutual inter-
pretation of its operating agreement with the
proprietary lines, Terminal would absorb the higher
operating costs resulting from City bridge tolls and
qualified pilot expense when the MacArthur Bridge
was used due to unavailability of, or interruption in,
Terminal’s crossing facilities; in such case the extra
charges would not be passed on to the proprietary
lines. Also by long-standing custom and interpreta-
tion of their operating agreement, the proprietary
26a
lines would pay the full City bridge toll and other ex-
pense where the MacArthur Bridge had to be used
despite the availability of Eads Bridge, as with larger
locomotives or Oversize cars.
37. During the time that the Eads Bridge was clos-
ed, a total of 3952 passenger engines and 9970
passenger cars crossed the river via MacArthur
Bridge; these engines and cars would have used Eads
Bridge had it been available. Terminal incurred City
bridge tolls of $55,318.78, consisting of $19,127.68 for
3952 passenger engines (at $4.84) and $36,191.10 for
9970 passenger cars (at $3.63). Terminal also incurred
expenses of $42,560.49 paid as wages to pilots required
by the City for the MacArthur Bridge and employees’
fringe benefits of $13,074.58, making a total outlay of
$55,635.07 incurred by Terminal for this special pur-
pose. Taxi fares paid for these pilots were shown, by
reasonable estimate, to have increased $586.04 per
month, or $4,688.32 for 8 months that the Eads Bridge
was closed.
38. Terminal did not pass on to the three passenger
lines any charges for pilot services, including taxi
fares; yet because of cash shortages due to bridge
repair payments, losses in operating revenue, and
other increased expenses, Terminal billed the three
passenger lines at the City bridge rate of $4.84 per
engine and $3.63 per car, rather than at the lower Eads
rate. The passenger lines paid these bills under
protest and with Terminal’s promise of future adjust-
ment by reimbursing them for the difference of $27,-
887.98 in the bridge tolls. Terminal, on the basis of its
agreement and custom, is obligated to reimburse the
ee a ee
a ~~ oe
27a
passenger lines for their advance since use of the
MacArthur Bridge was necessitated by the Eads colli-
sion damage, and not by any act of the passenger lines.
39. In addition to incurring the obligation to reim-
burse its passenger-line customers $27,887.98 for
overpayment, Terminal lost revenue for the
passenger engines and cars which could not cross
Eads Bridge during the Eads Bridge shutdown. It lost
$2.40 for each passenger engine and $1.80 for each
passenger car forced to use the MacArthur Bridge.
Thus, for the 3952 passenger engines, Terminal sus-
tained a revenue loss of $9,484.80 and for 9970
passenger cars a loss of $17,946.00, making its total
passenger revenue loss $27,430.80.
40. Terminal’s claim of damage for expense and
loss of revenue in connection with its passenger traf-
fic is recapitulated as follows:
Amount Terminal is obligated to reim-
burse passenger lines being charged
the difference between toll rates on
Eads and MacArthur Bridges 27,887.98
Amounts paid to pilots (including
fringe benefits) furnished by Terminal
to passenger lines customers for their
trains to use MacArthur Bridge 55,635.07
Taxi fares to transport pilots back and
forth across river 4.688.32
28a
Loss in tolls for passenger engines and
cars unable to use Eads Bridge 27,430.80
Total $115,642.17
41. Terminal originally contended it sustained a
loss of $146,779.40 in decreased vehicular tolls but at
time of trial reduced its claimed loss to $43,193.62. The
Eads vehicular deck was not the only crossing for
highway traffic, but it competed with Interstate 70 —
Poplar Street Bridge, which was an 8-lane toll-free
bridge 12 blocks south, and the previously mentioned
Veterans Bridge, a 4-lane toll bridge, 2 blocks north of
Eads. After the free Poplar Street Bridge opened in
November 1967, the Eads vehicular revenue sharply
decreased each month, and this revenue trend con-
tinued downward although in October 1968 the Eads
tolls were raised from 15¢ to 25¢ per car. The Veterans
car rate, however, remained at 15¢. Over the two-year
period prior to the collision, the Eads vehicular traffic
declined 60%, or from 900,000 to 350,000 cars monthly.
From mid-October 1969 to mid-April 1970, 50,000 fewer
cars monthly crossed Eads Bridge than for the same
period the previous year. On April 21, 1970, down
ramps on the free bridge directly into East St. Louis
were opened. When this event occurred, the Eads traf-
fic decreased another 100,000 cars monthly over the
same months of the previous year. After the Eads
Bridge reopened with four lanes in use, its traffic
volume remained at this reduced level. Once the down
ramps on the free bridge were opened, reduction in
Eads traffic was attributable to the new facility which
was of great convenience to commuters and not to the
restriction of Eads to only two lane traffic. Accord-
29a
ingly, Terminal’s claim must be confined to the first
six months of the period of bridge repair. During that
time Eads’ vehicular receipts were about 17% below
those of the identical period for the prior year. Except
for the bridge accident, this difference in receipts
would not have exceeded 9.14%, upon the basis of 4-
weeks operating experience immediately prior to the
collision. It is reasonable to attribute the remainder of
the revenue loss, or 7.82%, to the restricted operation
of the vehicular deck due to the collision. To this ex-
tent, Terminal has established an allowable revenue
loss in vehicular tolls of $32,943.84.
Property Damage Sustained by Other Claimants
42. St. Louis Fuel & Supply Company, Inc., the
owner of WB St. Louis Fuel Boat and Barge 425, sus-
tained property damage of $998.18 when its aforesaid
craft were struck by a barge of the runaway tow of the
M/V ELAINE JONES.
43. Fort Gage, Inc., owner of the M/ V FORT GAGE,
sustained property damage of $1,625.00 to its said
vessel when it was struck by the same runaway barge.
CONCLUSIONS OF LAW
1. The court has jurisdiction of this proceeding for
limitation of shipowner's liability pursuant to 46
U.S.C. 183 et seq.
2. The defense of inevitable accident is available to
a shipowner not only in case of an act of God but also
where all reasonably required precautions have been
30a
taken, and the accident nevertheless occurs. Atkins v.
Lorentzen, 328 F. 2d 66 (5 Cir. 1964); The Olympia, 61 F.
120 (6 Cir. 1894). To avail itself of that defense, Canal
must carry the heavy burden of proving all necessary
elements by exhausting “every reasonable possibility
which the circumstances admit and show that in each
[it] did all that reasonable care required.” Brown &
Root Marine Operators, Inc. v. Zapata Off-shore Oil
Co., 377 F. 2d 724 (5 Cir. 1967); Boudoin v. J. Ray McDer-
mott & Co., 281 F. 2d 81 (5 Cir. 1960); Union Steamship
Co. v. N. Y. & Va. Steamship Co., 65 U. S. 307, 16 L. Ed.
699 (1860).
3. Where a moving vessel collides with a fixed ob-
ject, there is a presumption that the moving vessel is
at fault. In the absence of adequate proof to rebut it,
this presumption would suffice to make a prima facie
case of fault against the M/V ELAINE JONES. The
Oregon, 185 U. S. 186, 39 L. Ed. 943 (1895); The Victor,
153 F.2d 200 (5 Cir. 1946); Brown & Root Marine
Operators, supra.
4. Canal may not exonerate the vessel merely by
showing that the pilot exercised good seamanship af-
ter the danger of a collision arose, but it must also
demonstrate that the pilot was in no way at fault in
placing the vessel in a position where danger would
probably be encountered. Boudoin, supra; The Old
Reliable, 269 F. 725 (3 Cir. 1921). Otherwise stated, it is
not an inevitable accident where a master proceeds
carelessly on his voyage and afterwards perilous cir-
cumstances arise, when it is too late for him to avoid
the accident. The master must show that he acted
seasonably, that he did everything that an experienc-
ee En ee eee See ee See Se ee ee ee ee ee ee ee Oe re ee ne ee en ae eee ee
:
|
;
;
q
:
’
.
3la
ed mariner could do, adopting ordinary caution, and
that the collision ensued in spite of such exertions.
Union Steamship Co., supra.
5. The master of the ELAINE JONES ischargeable
with knowledge of all navigational conditions rea-
sonably ascertainable by mariners experienced in
navigating St. Louis Harbor during flood stage, and
even if its pilot, George Griffith, did not actually know
that there existed a left set above Veterans Bridge, his
ignorance may not relieve Canal of fault in the colli-
sion. Davidson Steamship Co. v. U. S., 205 U. S. 187,51
L. Ed. 764 (1906); Boudoin, supra.
6. The fact that other vessels safely navigated St.
Louis Harbor under like conditions is evidence that
the ELAINE JONES and her master did not take all
steps reasonably required to avoid colliding with the
bridges. Seaboard Airline R. Co. v. Pan American
Petroleum & Transport Co., 199 F. 2d 761 (5 Cir. 1952);
The William E. Reis, 152 F. 673 (6 Cir. 1907).
7. Applying the foregoing rules of law to the facts
of this case, the court concludes that the collision
between the ELAINE JONES and the Eads Bridge was
not an inevitable accident but was due to the fault of
the vessel, and Canal is not entitled to exoneration.
8. Canal, through its port captain, had privity or
knowledge of the navigational hazards in St. Louis
Harbor; and its failure to inform the master and pilot
of the ELAINE JONES of such hazards was a
negligent omission which proximately contributed to
the collision. Continental Ins. Co. v. Sabine Towing
Co., 117 F. 2d 694 (5 Cir. 1941). The granting or denying
32a
of relief by way of limitation, however, is moot by rea-
son of the fact that the stipulated value of the vessel
and freight exceeds the aggregate of all allowable
Claims.
9. Vernon E. Stroschein, master of the ELAINE
JONES, was negligent as follows:
(a) In tendering to his pilot a tow without
affording him an opportunity to get the feel of
the tow before encountering unusual river
conditions which the master knew were hazar-
dous to navigate;
(b) In failing to inform his pilot ofa hazard
to navigation of which he had knowledge.
Davis v. Parkhill-Goodloe Co., 302 F. 2d 489 (5
Cir. 1962); Pioneer S. S. Co. v. Hill, 227 F. 2d 262
(6 Cir. 1955): Sylve v. E. W. Gravolet Canning
Co., Inc., 278 F. Supp. 669 (E. D. La. 1967);
(c) In failing to instruct his pilot as to the
proper method of navigating St. Louis Harbor
under known hazardous conditions. Davis v.
Parkhill-Goodloe Co., supra; Martin v. United
Fruit Co., 272 F. 2d 347 (2 Cir. 1959);
(ad) In failing to take charge when the pilot
plainly misgoverned the vessel. Union Ship-
ping & Trading Co. v. U. S., 127 F. 24771 (2Cir.
1942): and
(e) In abandoning the wheelhouse of the
ELAINE JONES in the face of danger. Farmer
33a
v. O/S FLUFFY D., 220 F. Supp. 917(S. D. Tex.
1963).
The foregoing negligent acts and omissions of the
master of the vessel are chargeable to the shipowner
and they constitute the proximate cause of the colli-
sion resulting in the death of the pilot and damage to
both the Eads Bridge and other craft in the harbor.
10. The ELAINE JONES was unseaworthy in the
following respects:
(a) Her master and pilot were unfit to meet
the perils reasonably to be anticipated in her
voyage through St. Louis Harbor. Waldron v.
Moore-McCormack Lines, Inc., 386 U.S. 724,
18 L. Ed. 2d 482 (1967). See Annotation, 18
L. Ed. 2d 1497. Cf. Usner v. Luckenbach Over-
seas Corp., S. Ct. Case 47, Slip Opinion dated
January 25, 1971. Walker v. Harris, 335 F. 2d
185 (5 Cir. 1964), cert. den. 379 U.S. 930, 13
L. Ed. 2d 342 (1965).
(ct) Her master and pilot were unequal in
disposition and seamanship to the ordinary
man in the calling under like circumstances.
Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336,
99 L. Ed. 354 (1955); Keen v. Overseas Tank-
Ship Corp., 194 F. 2d 515 (2d Cir. 1952), cert.
den. 343 U. S. 966, 96 L. Ed. 1363 (1952).
The unseaworthy condition of the vessel proximately
contributed to the collision and the resulting losses
aforesaid.
34a
11. Mary Kathryn Griffith, as Administratrix, has
standing to sue forthe claims arising from the death of
George Griffith in the course of his employment as a
seaman by Canal, under both the Jones Act and the
general maritime law. 45 U.S.C. 51, 59; Lindgren v.
U. S., 281 U.S. 38, 74 L. Ed. 686 (1930); Moragne v.
States Marine Lines, Inc., ___ U. S. ___,, 26 L. Ed. 2d
339 (1970).
12. The personal representative may recover for
the actual pecuniary loss occasioned by the seaman's
death. This is the measure of damages under F.E.L.A..,
45 U.S.C. §51, Michigan Central R. Co. v. Vreeland, 227
U.S. 59, 57 L. Ed. 417 (1913), the Jones Act, 46 U.S.C.
§ 688, Neal v. Saga Shipping Co., 407 F. 2d 481 (5 Cir.
1969), and the Death on the High Seas Act, 46 U.S.C.
§§ 761, 762, National Airline, Inc. v. Stiles, 268 F. 2d 400
(5 Cir. 1959), cert. den. 361 U. S. 885. Courts have con-
sistently construed these federal statutes to exclude
an award for the loss of decedent's society and com-
panionship. Igneri v. Cie. de Transports Oceaniques,
323 F. 2d 257 (2 Cir. 1963), cert. den. 376 U. S.949.In our
view, the remedy recently provided by the Supreme
Court in Moragne for death caused by the unsea-
worthiness of a vessel under the general maritime law
does not adopt, or require the adoption of, any different
or greater measure of damages. U. S. Steel Corp. v.
Lamp, —_ F. 2d ____ (6 Cir. 1970), Nos. 19835-39, Slip
Opinion dated December 23, 1970. First, in this regard
Congress has furnished the guide by enacting the
foregoing statutes which are of parallel import. Sec-
ondly, the uniformity and supremacy of the maritime
law dictate the need and desirability of a national rule
for computing damages, especially in death cases, and
thereby avoiding the diverse and often conflicting
tT
santa sid eee
pee ee te ee ee ee ee eee nn nt een ren
35a
provisions of wrongful death statutes of the several
states and the interpretations placed thereon by the
courts. The instant case presents a classic example of
confusion which would arise from any effort to
supplement the general maritime law by borrowing
from state law in computing damages. The first ques-
tion would be which state’s laws to apply, that of I1-
linois or Missouri, depending on where the maritime
tort occurred, or that of Arkansas, where the decedent
resided, or that of Louisiana, where the petitioner is
incorporated, or that of Mississippi, which is the
forum state. Each of these jurisdictions has a
wrongful death statute which provides varying
elements of recovery for different classes of
beneficiaries, and at least one, Missouri, has a fixed
statutory ceiling. Speiser, Recovery for Wrongful
Death (1969 Supp. p. 139). See Glick v. Ballentine
Produce Co., 343 F. 2d 839 (8 Cir. 1965), tora discussion
of the differences between the Missouri and Arkansas
wrongful death statutes. We do not interpret the Fifth
Circuit decisions of Grigsby v. Coastal Marine Serv-
ice, 412 F. 2d 1011 (5 Cir. 1969), or Hornsby v. Fish Meal
Co., 431 F. 2d 865 (5 Cir. 1970), upon which the Ad-
ministratrix relies, as requiring us to depart from the
federally-established rule of damages only for
pecuniary loss because of unseaworthiness of the
vessel.
13. In awarding damages, the court should
reasonably compensate the widow, the minor son un-
til he becomes 21, Stark v. Chicago, North Shore &
Milwaukee Ry. Co., 203 F. 2d 786 (1953), and the par-
tially dependent adult daughter, First National Bank
in Greenwich v. National Airlines, 288 F. 2d 621 (2Cir.
36a
1961); Gulf C. & S. F. R. Co. v. McGinnis, 228 U.S. 173.57
L. Ed. 785 (1913), for the loss of contributions that they
would have received for support out of the accrued and
future gross earnings of the decedent had he lived.
These losses, as heretofore found, equal 75% of Grif-
fith’s gross income for the balance of his work-life ex-
pectancy. In determining the extent of loss from future
earnings, which is the principal element of the claim.
the court should consider the decedent's actual earn-
ings at the time of deata, his work habits, and his
prospects for advancement, Petition of Risdal and
Anderson, Inc., 291 F. Supp. 353 (D.C. Mass. 1968), and
make no deduction for state and federal income taxes
where the yearly estimated earnings, as here, are not
Clearly above the reach of the middle income scale.
Cox v. Northwest Airlines, Inc., 379 F. 2d 893 (7 Cir.
1967), cert. den. 389 U.S. 1044. Post-award losses.
however, are to be discounted for present value and
segregated from pre-award !lusses for that purpose;
and under present economic conditions a discount rate
of 4% is proper. Also, privation of parental nurture
and guidance to a minor child is an element of
pecuniary loss long recognized by the federal
decisions. Michigan Central R. Co. v. Vreeland, supra;
Petition of Risdale, supra. The value of parental nur-
ture, as heretofore found, varies directly with its
quality and quantity. Moore-McCormick Lines, Inc. v.
Richardson, 295 F. 2d 583 (2 Cir. 1961).
14. There being no evidence that the deceased pilot
was aware of the set or cross-current at flood stage or
in high water just above Veterans Bridge, based on his
prior experience or knowledge, Griffith may not be
presumed to have been personally negligent. Thus, he
nb Sh a ke
ehh aj Ratt dtete se Ate! ears
37a
cannot be held contributorily negligent for the im-
proper navigation and no diminution of damages on
account of comparative negligence may be made in
the death award.
15. Canal contends that the Eads Bridge was con-
structed in a manner that violated the Acts of Con-
gress authorizing its erection, and because of such
violation, the owners of Eads Bridge were negligent
by maintaining an unreasonable obstruction to
navigation which proximately contributed to the
collision so that collision damages sustained by the
owner and operator of Eads Bridge should be reduced
one-half under the rule of The Pennsylvania, 19 Wall.
125, 86 U.S. 25 (1873), and applied by the Fifth Circuit in
Green v. Crow, 243 F. 2d 401 (5 Cir. 1957). In rejecting
this contention, we consider briefly the two enabling
statutes, 14 Stat. 246, adopted July 25, 1866, and its
amendatory Act, 15 Stat. 123, adopted July 20, 1968. By
the original statute the bridge was to be built in accor-
dance with the following conditions:
“First, that the lowest part of the bridge or bot-
tom chord shall not be less than fifty feet above
the city directrix at its greatest span. Second,
that it shall have at least one span five hun-
dred feet in the clear, or two spans of three
hundred and fifty feet in the clear of
abutments. If the two latter spans be used, the
one over the main steamboat channel, shall be
fifty feet above the city directrix, measured to
the lowest part of the bridge at the centre of the
span. Third, no span over the water at low-
water mark shall be less than two hundred feet
in the clear of abutments.” (Emphasis added)
38a
The 1868 amendatory Act provided, in pertinent part,
as follows:
“in conformity to the act of which this act is
amendatory ... and not inconsistent with the
provisions of the act to which this act is amen-
datory: And provided further, That in
constructing said bridge there shall be one
span of at least five hundred feet clear between
piers."’ (Emphasis added)
As constructed, the middle span of the Eads Bridge has
520 feet clearance between piers and may be regarded
as “its greatest span” since the east and west spans
have no more than 502 feet clearance between piers. At
its center, the bottom chord of the middle span (as is
also true with the east and west spans) is more than 50
feet above the city directrix, but this amount of
clearance does not extend, as petitioner claims it
should, for the entire horizontal length of the span, or
from pier to pier. Petitioner's contention conflicts
with familiar rules of Statutory construction. The
phrase in the original Act reading “. .. bottom chord
shall not be less than fifty feet above the city directrix
at its greatest span” is ambiguous and does not Clearly
require 50-foot height along the entire horizontal
length of the 500-foot span, although the phrase might
Suggest such an inference. The later sentence.
however, which specifically states that a 50-foot
clearance is required only at the center of each 350-
foot span, clarifies the ambiguity and shows that no
such stringent height requirement should be read into
the earlier sentence. First of all, the separate sections
or Clauses of a single statute should be read by courts
to harmonize with each other whenever possible.
ee ee a Ce
—~ oe en
39a
Secondly, later specific clauses should be read to
qualify prior general clauses which are ambiguous.
Thirdly, it would be illogical and inconsistent for Con-
gress ‘oO require more vertical clearance under a 500-
foot span than under a 350-foot span, and a court may
not impute to Congress such an illogical purpose in
drafting legislation if it may be avoided, as it may
here. As for the amendatory Act, it adopts all re-
quirements of the prior Act, and merely specifies that
at least one span of the bridge be at least 500 feet wide,
which has no effect on the ambiguity of the prior Act
previously discussed. Wholly apart from construing
the enabling Acts, the record shows that neither the
Chief of Engineers, U.S. Army, nor any other
governmental authority has ever reported or declared
the Eads Bridge to be an unreasonable obstruction to
navigation. 33 U.S.C. §512 et seq. No doubt, the
venerable Eads, now in its 97th year, may present a
hazard to navigation, as do all bridges, but itis not an
unreasonable obstruction to navigation and remainsa
lawful structure, and its owner and operator are en-
titled to rely upon boats passing through it carefully
and avoiding contact with and damage to the struc-
ture. Seaboard Airline R. Co. v. Pan American
Petroleum & Transport, supra; Texas & P. Ry. Co. v.
Angola Transfer Co., 18 F. 2d 18 (5 Cir. 1927).
16. The Bridge Company and Terminal are entitled
to recover the full cost of the repairs to the Eads Bridge
without reduction for depreciation since the repairs
have not resulted in any enhancement of the value of
the structure nor extended its useful life. Browning
Steamship Co., Inc., v. Peavey & Co., 235 F. 2d 5(8 Cir.
1956); Shepard S.S. Co. v. U.S., 111 F. 2d 110 (2 Cir.
1940): Standard Oil Co. v. Southern Pacific Co., 268 U.S.
40a
146, 69 L. Ed. 890 (1925). Terminal is also entitled to
recoup its established losses in revenues and in-
creased expenses sustained during the time that the
Eads Bridge was under repair. City of Miami v.
Western Shipping & Trading Co., 232 F. 2d 847, (5 Cir.
1956); The Conqueror, 166 U.S. 110, 41 L. Ed. 937 (1897).
The loss of such profits and increases in expenses may
be proved circumstantially, and the court may con-
Sider as a relevant, corroborating circumstance earn-
ings for comparable periods before the damage was
sustained. Bonheuar v. San Francisco & P.S.S. Co., 287
F. 679 (9 Cir. 1923); South Carolina State Highway
Dept. v. U.S., 78 F. Supp. 598(E.D.S.C. 1948); Oil Screw
Noah's Ark v. Bentley & Felton Corp., 322 F. 2d 3(5Cir.
1963). Terminal may also recover necessary and
reasonable expenses for providing substitute passage
and transfer of its customer trains. State Road Dept. v.
U.S., 78 F. Supp. 278 (N.D. Fla. 1948); City and County
of San Francisco v. U.S., 82 F. Supp. 313 (N.D. Cal.
1948). Terminal discharged its legal duty to mitigate
losses as much as was practicably possible under the
circumstances.
17. The general rule in admiralty is that those in-
jured by tortious collision are entitled to interest as
part of just compensation for wrong done, and discre-
tion to deny interest is based upon existence of
peculiar circumstances. Sinclair Refining Co. v. S. S.
Green Island, 426 F. 2d 260 (1970). Accordingly, the
court, in the exercise of its discretion, allows interest
from June 15, 1970, upon the claim of the Bridge Com-
pany and Terminal, and from November , 1969, upon
the minor property damage claims.
.
A ee ee ae
4la
Let Judgment be entered accordingly.
This, 26th day of February, 1971.
/s/ WILLIAM C. KEADY
Chief Judge
United States District Court
43a
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 71-2226
IN THE MATTER OF THE PETITION OF CANAL
BARGE COMPANY, INC., AS OWNER AND
OPERATOR OF THE M/V ELAINE JONES, PRAY-
ING FOR EXONERATION FROM OR LIMITATION
OF LIABILITY.
CANAL BARGE COMPANY, INC.,
Petitioner-Appellant-
Cross Appellee,
versus
MARY KATHRYN GRIFFITH, Individually and as
Administratrix of the Estate of George L. Griffith,
deceased,
Respondent-Appellee-
Cross Appellant,
TERMINAL RAILROAD ASSOC. OF ST. LOUIS,
ET AL,
Respondents-Appellees.
Appeals from the United States District Court for the
Northern District of Mississippi
(March 30, 1973
44a
Before GODBOLD and RONEY, Circuit Judges and
BOYLE, District Judge.
GODBOLD, Circuit Judge: This case arises froma
collision on October 14, 1969 between the M/V Elaine
Jones, a towboat owned and operated by Canal Barge
Company. Inc. (Canal), and the Eads Bridge, a fixed
structure that spans the Mississippi River at St.
Louis, Missouri. The impact caused extensive dam-
age to the bridge and resulted in the death of the tow-
boat pilot, George L. Griffith. Eads Bridge is owned by
St. Louis Bridge Company and operated by Terminal
Railroad Association of St. Louis.
Canal filed a petition seeking exoneration or limita-
tion of liability. In response, Mary Kathryn Griffith,
aS personal representative of the decedent,' claimed
money damages for the death of her husband; Ter-
minal sought recovery for damages to the bridge and
loss of revenue; and two other corporate claimants
made demand for minor property damage. Canal
counterclaimed for indemnity from the Griffith estate
claiming that negligence of Griffith was the proxi-
mate cause of the mishap.
The District Court found that Canal was negligent
through its employees, that the Elaine Jones was un-
seaworthy, that Canal's negligence proximately caus-
ed the collision and the unseaworthiness proximate-
ly contributed thereto, and that Griffith was not negli-
1 The District Court concluded that, as administratrix of George
L. Griffith's estate. Mary Kathryn Griffith had standing to sue un-
der both the Jones Act and the general maritime law. See 45 U.S.C.
§§ 51, 59: 46 U.S.C. § 688; Lindgren v. U.S., 281 U.S. 38, 74 L.Ed. 686
oon Moragne v. States Marine Lines, 398 U.S. 375, 26 L.Ed. 2d 339
).
45a
gent. Accordingly, the court held Canal liable for dam-
ages to all claimants. Canal appeals, claiming error
with respect to liability and damages, both as to Ter-
minal and to Mrs. Griffith. Mrs. Griffith cross appeals
with regard to the amount of damages awarded and
elements of damage allegedly omitted. We affirm with
respect to Canal’s liability to Terminal and to Mrs.
Griffith, and with respect to the damages due Ter-
minal. We reverse with respect to damages due Mrs.
Griffith and with respect to her husband’s con-
tributory negligence.
We focus on four areas of inquiry: (I) liability as
between Canal and Terminal; (II) liability as between
Canal and Mrs. Griffith: (III) damages due Terminal;
(IV) damages due Mrs. Griffith on behalf of George
Griffith's beneficiaries designated by pertinent stat-
utory and general maritime law.
We set out the facts needed to understand our dis-
position.?
The Elaine Jones, a 5300 horsepower diesel tow-
boat, was manned by Captain Stroschein, pilot Grif-
fith, and eight support personnel. Stroschein boarded
the Elaine Jones as pilot on Sept. 29, 1969. His previous
experience included piloting similar towboats of 4300
horsepower, but his regular employment was as mas-
ter of an 1800 horsepower vessel. When Griffith came
aboard on Oct. 7, Stroschein became master and Grif-
fith pilot. The two had never served together before.
Griffith regularly piloted a sister vessel of the Elaine
2 Exhaustive findings of fact detailing with precision every
aspect of the collision and damages appear in the District Court's
opinion reported at 323 F.Supp. 805.
46a
Jones, identical in dimension but having 1000 less
horsepower.
The Elaine Jones passed northbound through St.
Louis Harbor on Oct. 9 when the Mississippi River
gauge was 4.7 feet, well below flood stage of 30 feet. It
operated north of St. Louis for several days, then pro-
ceeded back downriver with seven empty barges. At
Wood River, Illinois, just north of St. Louis, while Cap-
tain Stroschein was on watch, one empty and two load-
ed barges were added to the tow and the entire ten-
barge tow rearranged. With Captain Stroschein still at
the controls, the Elaine Jones departed Wood River
heading south pushing the tow. Shortly before noon
when Griffith was due to relieve Stroschein at the
wheel, the Elaine Jones arrived at Lock 27, located at
Mile 185, five miles north of Eads Bridge. Griffith took
over from Stroschein at 11:45 a.m. and left Lock 27 five
minutes later. %
In the interval between the Elaine Jones’ upriver
passage through St. Louis Harbor on Oct. 9 and its
departure from Lock 27 on Oct. 14, and as a result of
heavy rainfall, the river at the harbor had risen
precipitously to 30.3 feet, just above flood stage of 30
feet, a fact known to both pilot and master.
The physical facts concerning St. Louis Harbor, and
the effects of high water are well described by the Dis-
trict Court.
3. St.Louis Harbor, the site of this accident,
because of the presence of six river bridges,
their close proximity and construction,
47a
coupled with the meander of the river and its
currents, enjoys a reputation among river
people of being a difficult area or passage to
safely navigate, particularly in high water. A
vessel southbound, as was the ELAINE
JONES, after departing Lock 27, is first con-
fronted with the Merchants Bridge (Mile 183),
and then the McKinley Bridge (Mile 182.5),
which present limited horizontal clearance.
Immediately after passing the McKinley
Bridge, the vessel must line up for safe
passage of the Veterans Bridge (Mile 180.2)
and then the Eads Bridge (Mile 180). Just
downriver from the Eads Bridge are the Pop-
lar Street Bridge (Mile i79.3) and the
MacArthur Bridge, also known as the “City”
bridge (Mile 179). For southbound traffic, a
gradual bend in the river from left to right oc-
curs above the Veterans Bridge and extends to
below the MacArthur Bridge. Contributing to
the navigation problem is the presence of
Eads Bridge which, due to its arched construc-
tion, affords a limited amount of clearance in
high water through which vessels can safely
pass. Also, during high water, i.e., 20 feet or
more on the St. Louis gauge, the current im-
mediately above Veterans Bridge runs from
the right descending bank to the left descend-
ing bank, from the Missouri shore toward the
Illinois shore. This high water current condi-
tion, called a left-hand “set” or “draft”, has a
pronounced effect of moving a southbound
boat and tow toward the Illinois bank rather
than straight ahead. These navigation con-
48a
ditions exist whenever the river is at 20 feetor
more on the St. Louis gauge and are facts
known to experienced mariners navigating
towboats through that section of the Mis-
sissippi River.
aa * * *
5. *** As the river stage exceeds 20 feet,
the force of the aforementioned set to the left
above Veterans Bridge likewise increases;
and also as the rate of rise in the river
accelerates, the force of the set becomes more
violent. Although a sudden rise of the river in-
creases the severity of the set. this is an
operating factor known to persons experienc-
ed in navigating St. Louis Harbor during high
water. Moreover, the experienced navigator of
a downbound vessel can reasonably predict
the severity of current in St. Louis Harbor by
observing upriver conditions at Wood River,
Illinois, and water levels at Lock 27.
6. The above left set or cross-current is not
encountered by downbound vessels except in
high water. At all other times the current in
the immediate area runs straight down the
river. When navigating the harbor down-
bound in low water (10 feet or less), it is an
acceptable practice for a vessel to approach
the Veterans and Eads Bridges in line with
their green lights and pass under both along
the mid-channel sailing line, as depicted on
the U.S. Engineers’ official chart (Ex. 13). See
ee er
49a
App. A. This sailing line is the normal low
water configuration for passage of a descend-
ing vessel. When navigating the harbor down-
bound in high water, it is the commonly
accepted practice, in order to compensate for
the left hand set encountered just above
Veterans Bridge, to approach Veterans Bridge
well to the right of the mid-channel sailing
line, or favoring the Missouri shore. By this
means, the vessel and tow are not forced by the
cross-current to the left of the mid-channel
sailing line, as it runs immediately beneath
both the Veterans and Eads Bridges. Thus, a
downbound vessel and tow that in high water
approach the Veterans and Eads Bridges
within one-quarter of a mile north of Veterans
Bridge on the mid-channel sailing line are too
wide or “out of shape” to safely navigate the
passage beneath the two bridges.
323 F.Supp. at 808-09.
Before the towboat’s departure from Lock 27,
Stroschein spoke briefly to Griffith without issuing
any instructions for navigating St. Louis Harbor, and
then left the wheelhouse for the galley. Stroschein
returned at 12:10 p.m., at which time the head of the tow
was more than a mile above Veterans Bridge, or ap-
proximately half way between McKinley Bridge, mile
182.5, and Veterans Bridge, mile 180.2. Stroschein
noted without comment that Griffith had set the Elaine
Jones on the mid-channel sailing line, the course to be
followed under normal river conditions. At that time
the vessel had not yet reached the fail-safe point; that
is, the point in the river beyond which correcting the
50a
course to a heading proper under the extraordinary
conditions would be too late to avoid almost certain
mishap. Still the captain said nothing about the river
conditions or the course to be followed nor did he
assume command. Pilot Griffith continued on the
mid-channel sailing line past the fail-safe point and
until the head of the tow reached about one-quarter
mile north of Veterans Bridge. At this juncture the left
hand set in the river was encountered, pushing the
vessel and tow violently to the left and toward the left
descending channel and the left pier of Veterans
Bridge. The pilot took measures to attain a proper
heading, but his efforts were to no avail. It was only
when the towboat was about 100 feet above Veterans
Bridge (at which time most of the tow would have
passed under that bridge) that Captain Stroschein
first became alarmed.
The Elaine Jones bumped the river pier of Veterans
Bridge, causing some of the tow wires to part and the
tow to jack-knife. Stroschein abandoned the
wheelhouse when he realized a collision with Eads
Bridge was unavoidable, but Griffith remained to
maneuver the vessel off the Eads Bridge pier toward
which it was headed. The towboat missed the pier, but
seconds later the wheelhouse struck the bottom por-
tion of Eads Bridge. Griffith left the controls im-
mediately prior to impact but was crushed by falling
metal and killed instantly. Everyone else escaped.
I. Liability as between Canal and Terminal.
The District Court correctly held that, in the absence
of sufficient proof in rebuttal, presumption of fault at-
Sla
taches to a moving vessel which collides with a fixed
object and makes a prima facie case of fault against
the vessel. The Oregon, 158 U.S. 186, 39 L.Ed. 943 (1895):
Brown & Root Marine Operators, Inc. v. Zapata Off-
Shore Co., 377 F.2d 724 (5th Cir. 1967).
Canal attempted to meet its burden in part by show-
ing that Eads Bridge was constructed in such manner
as to violate the Act of Congress authorizing its erec-
tion. and it therefore constituted an obstruction to
navigation, the maintenance of which was negligent
and a proximate cause of the collision. This argument,
the District Court found, rested on an erroneous con-
struction of the statute.4 We perceive no error in that
court’s construction and cannot add profitably to its
discussion.
The District Court correctly held the defense of in-
evitable accident to be inapplicable. ‘Inevitable acci-
dent” is not as much atrue defense as it is aconvenient
label expressing the idea that once a presumption of
negligence arises the burden shifts to the presump-
tively negligent party to come forward with proof that
the accident in no way resulted from its own lack of
due care. Atkins v. Lorentzen, 328 F.2d 66, 69 (5th Cir.
1964): Gilmore & Black, The Law of Admiralty § 7-2, at
397 (1957). As will be seen from part II. below, Canal
failed to carry its burden of showing that none of its
personnel — captain, pilot, or shore captain in radio
contact — was remiss in doing “everything which an
experienced mariner could do, adopting ordinary cau-
3 14 Stat. 246 (1866), as amended, 15 Stat. 123 (1868).
4 323 F. Supp. at 822-23.
5 323 F. Supp. at 819.
52a
tion.” The Union S.S. Co. v. The New York & Virginia
S.S. Co., 65 U.S. 307, 313, 16 L.Ed. 699, 701 (1861).
II. Liability as between Canal and Mrs. Griffith.
Canal was found liable to Mrs. Griffith as personal
representative on the basis of the Jones Act, 46 U.S.C.
§ 688, and the genera] maritime law, Moragne v. States
Marine Lines, 398 U.S. 375, 26 L.Ed.2d 339 (1970).
The findings of negligence on the part of Canal may
be quickly dealt with. We review them under the
“clearly erroneous” rule, McAllister v. U.S., 348 U.S.
19, 99 L.Ed. 20 (1954), which requires they be affirmed.
Stroschein, the towboat captain, was found wanting
in due care in the following particulars: (a) tendering
to his pilot a tow without affording him an opportunity
to get the feel of the tow before encountering unusual
river conditions which the master knew were hazar-
dous to navigate; (b) failing to inform his pilot of a
hazard to navigation of which he had knowledge: (c)
failing to instruct his pilot as to the proper method of
navigating St. Louis Harbor under known hazardous
conditions; (d) failing to take charge when the pilot
plainly misgoverned the vessel; (e) abandoning the
wheelhouse in the face of danger.
Finding (b) is so obviously correct as to require no
comment.
As to (a), on the basis of clear and competent expert
testimony, the District Judge found that it takes “some
minutes’ after the vessel reaches full speed for an ex-
53a
perienced pilot to get the feel of a particular tow
arrangement. The arrangement had been made up
while Captain Stroschein was on watch, and Griffith.
handling the tow for the first time, had been piloting
for only a few minutes when he came into the difficult
passage of St. Louis Harbor. These findings dispose of
the contention of Canal that the pilot had the feel of his
tow from his prior experience.
Regarding (c), the court found that Stroschein was
aware of the hazardous conditions in the harbor, hav-
ing himself previously piloted vessels safely through
the area at high water. Also the court heard testimony
that every pilot was familiar with the dangerous con-
dition caused by high water.
There can be no real dispute over conclusion (d), and
Canal has not contended otherwise, that the captain
was neglivent in failing to take charge when the pilot
plainly misgoverned the vessel.
Canal questions conclusion (e), Stroschein's
negligence in abandoning the wheelhouse, by the un-
persuasive argument that since Griffith was not
negligent in fleeing seconds after Stroschein, the cap-
tain’s earlier departure could not have been an act
lacking the requisite care. In the interval between the
captain's and the pilot's departures, Griffith, by
remaining. managed to maneuver the vessel suf-
ficiently to avoid a potentially more serious collision
with the pier of the bridge. The court was justified in
inferring that the captain's presence might have aided
in minimizing the disaster.
54a
The trial court also found Canal negligent because
its port captain failed to warn the master and pilot of
the navigational hazards of St. Louis Harbor although
he had “privity or knowledge” of such hazards. The
port captain is located at Canal's shore facility at
Natchez, Mississippi, which had twice daily radio
contact with the Elaine Jones and Canal's other
vessels. During October 10-14, when the Elaine Jones
was operating just above St. Louis Harbor, other
Canal vessels were in the vicinity and in daily radio
communication with Natchez, which was aware of the
unusual rise in the river in the St. Louis area, and the
flood conditions existing. The conclusions of the Dis-
trict Court are not clearly erroneous.®
The Elaine Jones was found to be unseaworthy in
these respects: (a) Her master and pilot were unfit to
meet the perils reasonably to be anticipated in her
voyage through St. Louis Harbor... .(b) Her master
and pilot were unequal in disposition and seamanship
to the ordinary man in the calling under like cir-
cumstances... .” which unseaworthy condition prox-
imately contributed to the accident. 323 F.Supp. at 820
(citations omitted) (emphasis added). Under the plain-
ly erroneous rule this is to be affirmed.
The findings concerning unseaworthiness, insofar
as they relate to Griffith, lead us into discussion of the
6 United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.
1969). cert. denied, 398 U.S. 958, 26 L.Ed. 2d 542 (1970), and United
Geophysical Co. v. Vela, 231 F.2d 816, 819 (5th Cir. 1956). are not to
the contrary. In those cases the concern was with whether persons
far from the scene should have issued orders in conflict with or
countermanding orders of the master on the scene and in an
emergency. Here the issue is whether instructions should have
been given before an emergency arose.
55a
point most strenuously urged by Canal, which is that
Griffith negligently chose his course through St.
Louis Harbor, which negligence caused or contributed
to the accident, and that findings to that effect are re-
quired by the finding that unseaworthiness was
predicated in part on Griffith's insufficiency as a pilot.
It is perhaps an overstatement that a finding of un-
seaworthiness requires in all cases a finding of con-
tributory negligence.” We do, however, conclude that
application of the correct legal standards to the facts
found by the District Court requires in this case acon-
clusion that Griffith was guilty of some negligence
and that his negligence was a proximate cause of the
collision. We leave to the District Court on remand the
determination of the extent of Griffiths negligence
and its comparative contribution to his death.
This necessary conclusion of negligence on Grif-
fith’s part is significant in at least two respects. Canal
claims that negligence by Griffith is a basis for
recovery over by it, in whole or in part, against Grif-
fith for damages due Terminal from Canal. Ad-
ditionally, while not a complete defense to the Griffith
7 In Waldron v. Moore-McCormack Lines, 386 U-S. 724, 18
L.Ed. 2d 482 (1967). at trial the petitioner's sole contention had been
“that the mate’s assignment of two men to do the work of three or
four constituted negligence and made the vessel unseaworthy. Id.
at 725, 18 L.Ed.2d at 484. The jury found no negligence, and the court
directed a verdict for respondent on the unseaworthiness issue. On
appeal the Supreme Court remanded to provide petitioner an Op-
portunity to present his theory of unseaworthiness to the jury. Un-
less we were to assume that the Court's remand served only to
engage the jury in pointless exercise. by allowing it to give only a
negative answer to the inquiry whether the vessel was rendered
unseaworthy by the mate's nonneglige”t act, the Court's disposi-
tion indicates that findings that one persons acts are both non-
negligent and the cause of unseaworthiness are not legally
irreconcilable.
56a
claim insofar as it is based on unseaworthiness, the
finding of contributory negligence is a proper factor to
be considered in fixing the amount of recovery. Pope &
Talbot v. Hawn, 346 U.S. 406, 98 L.Ed. 143 (1953); Seas
Shipping Co. v. Sieracki, 328 U.S. 85, 94 n.11: 90 L.Ed.
1099, 1105-06 n.11 (1946); Manning v. M/V Sea Road,
358 F.2d 615 (Sth Cir. 1965); Cox v. Esso Shipping Co..,
247 F.2d 629 (Sth Cir. 1957). The same is true under the
Jones Act.
Under the authorities which we discuss below, Grif-
fith was negligent in pursuing an unreasonably
dangerous course if he possessed either actual
knowledge of hidden dangers or constructive
knowledge chargeable to him as matter of law. It is
Clear that Griffith knew of the high water level, and
the cowrt found that he did and also found that he knew
that Eads Bridge had only limited clearance, making it
necessary to pass beneath the center of its channel
span. But the court concluded that Griffith did not
know of the hazard to navigation caused by high water
and consisting of the left hand set to the current direct-
ly above Veterans’ Bridge. Canal correctly points out
that Griffith piloted a similar towboat southbound
through St. Louis Harbor on previous occasions. But
the court found that the evidence did not reveal that on
any of those occasions high water conditions existed.®
On adequate evidence the court also concluded that
neither Captain Stroschein nor Canal’s other super-
visory personnel informed Griffith of the leftward
current at high water. The finding of lack of actual
8 There was evidence that on four of those passages high water
conditions did not prevail and on the fifth, when they did. it was not
clear that the passage took place during Griffith's watch. Indeed.
the most reasonable inference is to the contrary.
57a
knowledge of the particular hazard is, therefore. not
plainly erroneous.
We turn then to consideration of whether as a mat-
ter of law Griffith was chargeable with knowledge,
that is, whether he is required to suffer the legal con-
sequences of knowledge although he did not actually
possess it. These facts found by the court bear on that
determination: “experienced mariners navigating
towboats through that section of the Mississippi
River” knew that the set occurred when the river
gauge was above 20 feet, but Griffith did not know of
the set: Griffith had seven years experience in piloting
vessels of other towing companies on various rivers,
including the Mississippi: Griffith had piloted
through St. Louis Harbor southbound at least four
times: Griffith had never piloted a vessel through this
area at high water, but Stroschein had; a sudden rise in
the water increases the severity of the set, a fact
known “to persons experienced in navigating St.
Louis Harbor during high water.” The court entered
this conclusion of law:
There being no evidence that the deceased
pilot was aware of the set or cross-current at
flood stage or in high water just above Vet-
erans Bridge, based on his prior experience or
knowledge, Griffith may not be presumed to
have been personally negligent. Thus, he can-
not be held contributorily negligent for the im-
proper navigation and no diminution of dam-
ages on account of comparative negligence
may be made in the death award.
323 F.Supp. at 822 (emphasis added).
58a
“[T]hose who undertake any work calling for special
skill... are required not only to exercise reasonable
care in what they do, but also to possess a standard
minimum of special knowledge and ability.” Prosser,
Law of Torts § 32, at 164. In Atlee v. The Nw. Union
Packet Co., 88 U.S. (21 Wall.) 389, 22 L.Ed. 619 (1875). a
barge collided with a stone pier built into a river, and
suit was brought in admiralty by the barge owner for
recovery. The District Court found mutual! fault onthe
part of the pier owner and the barge’s pilot, but the
Court of Appeals reversed in part, finding no fault on
the part of the pilot. The Supreme Court reversed and
held that the pilot was at fault. It observed: ‘[T]he pilot
of a river steamer ... is selected for his personal
knowledge of the topography through which he steers
his vessel. ... He must know where the navigable
channel is....He must also be familiar with all dan-
gers that are permanently located in the course of the
river....Todothis he must be constantly informed of
changes in the current of the river, of sand-bars newly
made. of logs or snags, or other objects newly
presented against which his vessel might be injured.”
Id. at 396, 22 L.Ed. at 621. The Court acknowledged that
it was exacting a very high order of ability. The pilot
had been absent for a year and thus did not know what
“[a]ny pilot who, during the navigable season of the
year 1870, was engaged in conveying vessels up and
down the Mississippi River past Fort Madison, would
have known.... Id. at 397, 22 L.Ed. at 622. The Court
noted that after so long an absence the pilot should
make a few trips with other pilots more familiar with
the river. It concluded that “there was such want of
59a
knowledge and skill in the pilot, and such want of care
in his management of his vessel at that point” as to
lead to the conclusion that the pilot was at fault. Id. at
398, 22 L.Ed. at 622. In summary, a pilot was held to
have a duty to perform his functions with the skill and
knowledge of an ordinary Mississippi River pilot
recently familiar with the area. In failing to inform
himself of the changes an ordinary pilot would expect,
and in acting without such knowledge, the pilot did not
fulfill his duty.
Davidson S.S. Co. v. U.S., 205 U.S. 187, 51 L.Ed. 764
(1907), was a collision case tried to a jury. The defen-
dant steamship company was found liable for dam-
ages to a recently extended government pier in Lake
Superior, caused when its ship collided with the pier.
The Court viewed the question before it as “whether
there was testimony from which the jury might right-
fully find the defendant guilty of negligence.” Id. at
193, 51 L.Ed. at 767. The pilot had been on the lake for
many years, but he had not been in the particular har-
bor for over a year. He knew that harbor im-
provements were being made on the lake and that in-
formation circulars were available. The Court said:
“[T]here is an obligation on all persons to take the care
which, under ordinary circumstances of the case, a
reasonable and prudent man would take, and the omis-
sion of that care constitutes negligence.” Id. Follow-
ing this statement of obligation was the passage from
Atlee describing the degree of knowledge required ofa
river pilot. The Court concluded: “His very want of
knowledge. when he had the means of ascertaining the
facts. could properly be regarded as negligence. Clear-
ly. it could not be held as matter of law not to be so.” Id.
60a
at 194, 51 L.Ed. at 767. Negligence thus consisted of the
pilot's failure to inform himself when information
was available about conditions regarding which an
experienced pilot would have reason to desire infor-
mation.
In The Severance, 152 F.2d 916, (4th Cir. 1945), cert.
denied, 328 U.S. 853, 90 L.Ed. 1626 (1946), the factual
cause of the collision was a freshet in the river, which
made the ship take a sudden sheer. The lower court
found no neglect by the pilot. The Fourth Circuit
reversed, holding:
We must presume here that Captain Dosher
either knew, or by the exercise of reasonable
care should have known, of the prevailing
conditions on the Cape Fear River. By under-
taking to act as pilot of the “Severance, he
promised the skill of his art.
Id. at 920.
Utility Service Corp. v. Hillman Trans. Co., 244 F.2d
121 (3d Cir. 1957), is factually very similar to the in-
stant case. As a towboat in the Ohio River passed
through one of two channels created by the presence of
an island in midstream it collided with a stationary
barge as aresult of a crosscurrent for which the pilot
had not compensated. There was evidence from which
it could have been found that the opening of adam up-
river increased the current and that this effect was
readily noticeable to experienced mariners. Under
normal conditions the current deflected slightly at the
island, causing crosscurrents that become noticeable
6la
as the river's rate of flow increased. The pilot knew of
such crosscurrents when the main current increased,
but he did not know of the particularcrosscurrent that
caused the collision “because I had no previous ex-
perience of going that close to the island, in current.”
Id. at 123 (emphasis deleted). The court affirmed the
conclusion that the pilot was negligent in risking
passage between the island and the equipment, a
course he had never before taken in swift water, con-
sidering that there was an alternative manner of
passage. It said:
Appellant's pilot should have been aware of
the crosscurrent, for the law imposes a duty
upon him to be “constantly informed of
changes in the current of the river’ and the
“changes made by the hand of man or the ac-
tion of the elements in the path of his vessel.”
Davidson Steamship Co. v. United States,
1907, 205 U.S. 187, 194, 27 S.Ct. 480, 483, 51 L.Ed.
764. Rivers are not immutable. Rains swell
their volume; the opening of dams increase
their current; deposits of silt may change their
depths; wrecks may obstruct them. Where the
river pilot has the means of obtaining infor-
mation concerning these changes, he is
deemed in law to know them. If he tests the
danger of increased current at a place where
his common sense and nature's physical laws
would tell him that a crosscurrent would em-
barrass his progress, he does so at his own
risk.
Id. at 124.
62a
The foregoing authorities, applied to the findings of
fact made in the present case, require the conclusion
that the pilot was guilty of contributorynegligence as
a matter of law. He knew of the high water level. The
court found that the particular current conditions ex-
isting at St. Louis Harbor under circumstances of high
water were known to experienced pilots and that Grif-
fith was an experienced pilot. As such, he was re-
quired to inform himself of special current conditions
arising from circumstances known to him. Atlee v.
The Nw. Union Packet Co., supra. Thus, while
specifically charging the master with knowledge of
all navigational conditions reasonably ascertainable
by mariners experienced in navigating St. Louis Har-
bor at flood stage, the court absolved Griffith of negli-
gence because it considered him not chargeable with
the same body of knowledge because he was not ex-
perienced in navigating the harbor at flood stage. The
foregoing authorities make clear that this was an in-
correct conclusion.
Appellee Griffith characterizes the statement of a
pilot's duty as a presumption (supported in this to
some degree by the District Court's Conclusion of
Law, supra) which can be relied upon only where the
employer's liability toa third party is in issue, and not
between employer and employee. But the facts in
Hillman make clear that knowledge is not merely a
fact presumed and rebuttable by evidence that the fact
was not known. Secondly, it seems to us to make no
difference that the failure of duty is asserted by
employer against employee. Where the seaman fails
to perform his own lega! obligation concurrently with
other failures of the employer, and asa consequence of
=.
63a
the concurrent failures an accident occurs causing in-
jury or death to the seaman, the seaman’s failure can
be reflected as an offset to his recovery. This is plain
vanilla comparative negligence, a result not pro-
scribed by the special status of seamen as wards of ad-
miralty. The particular respect in which the pilot is
negligent has no bearing on the determination of who
should bear the loss as between negligent pilot and
employer. The crucial factor is not that the pilot failed
to discover a fact he should have known, as opposed,
for example, to his having known all he should but
oversteering; it is that the pilot in some manner did not
meet his legal duty. Cf. Symonette Shipyards, Ltd. v.
Clark, 365 F.2d 464, 470 (5th Cir. 1966), cert. denied, 387
U.S. 908, 18 L.Ed.2d 625 (1967).
An additional factor present in this case and not in
those discussed above is that the pilot whose knowl-
edge was .nsufficient was acting under the command
of another whose knowledge was commensurate to
that of the ordinary pilot and who did not tell the pilot
what he should do. Appellee maintains this prevents
Griffith's being contributorily negligent. We do not '
reach in this case the question of whether if Griffith
had asked if there was anything of special nature he
should know or do in light of high water conditions,
and had been given an answer on which he relied, he
would have fuifilled his duty. In the absence of inquiry
by Griffith, Stroschein's failure to discharge his duty
to inform the pilot bears on whether Stroschein was
negligent, but it does not insulate Griffith from the
consequences of his own breach of duty. Griffith's
duty to possess himself of essential knowledge ex-
isted independently of whether there was present
64a
another employee who by reason of his superior rank
had a duty to inform Griffith. Stroschein had a duty to
tell without being asked. Griffith had a duty to ask (of
Stroschein or from other sources). The duty of each did
not negative the duty of the other, or excuse failure of
the other to carry out his duty.
Canal Barge claims that if Griffith was negligent it
is entitled to at least some degree of indemnification
from Griffith for damages due to Terminal. Canal ap-
pears to be proceeding on a tort indemnity theory
rather than an actual or implied contract. Griffith con-
tends as a general proposition that in a collision case
in admiralty the employer-shipowner cannot seek in-
demnity from its employee-pilot for damages caused
to a third party and resulting from the pilot's negli-
gence. No admiralty cases are cited to us in which in-
demnity was either permitted or forbidden in such cir-
cumstances. But see Tri-State Oil Tool Indus. Co. v.
Delta Marine Drilling Co., 410 F.2d 178 (5th Cir. 1969), a
suit in admiralty; Restatement of Restitution § 96
(1937); Restatement of Agency (Second) § 401 (1958),
particularly comment d. See also Rodriquez v. U.S.
Lines Co., 181 F.Supp. 95 (S.D.N.Y. 1960) and The
Providence, 293 F. 595 (D.R.I. 1923), in which the sub-
stance of the indemnity question was not reached but
the court permitted the ship or shipowner to implead
its pilot or other employee-crew member whose
negligence was claimed to be the sole basis for liabili-
ty of ship or owner. We reach no conclusion and in-
timate no views on the indemnity question which
must be first considered by the trial vourt.
s- ———
65a
III. Damages due to Terminal.
Canal has mounted a broad assault on the damages
awarded to Terminal. The damages fall into these cate-
gories: (1) loss of toll revenue attributable to automo-
bile traffic across Eads Bridge; (2) loss of revenue
from. passenger train traffic; (3) additional costs in-
curred in routing and manning over the city’s toll
bridge trains normally carried by Eads; (4) Eads
repair costs. With respect to the first three categories
Canal's objections narrow down with few exceptions
to the single assertion that the lower court's findings
are Clearly erroneous.
(1) Auto tolls. Terminal set out to prove loss of
auto tolls by introduction of business records in-
dicating vehicle revenues earned by Eads during com-
parable periods before and after the accident. See
South Carolina State Highway Dept. v. U.S., 78
F.Supp. 598 (E.D.S.C.), aff'd, 171 F.2d 893 (4th Cir. 1948).
Of course, no two time periods are free of differences
that may significantly affect bridge usage. In this case
during the entire repair period vehicular traffic over
Eads was restricted to two lanes of the four ordinarily
available. Also, before Eads resumed full operation,
new egresses into downtown St. Louis were opened
from a nearby free interstate highway, tending to
divert traffic from the bridge. Appellant has referred
us to other factors as well that may have caused the es-
timate of loss attributable to Canal to fall short of
perfection. However, this circuit has indicated that to
allow a tortfeasor to avoid paying damages because
such damages were to some necessary extent im-
perfectly established would be unjust and unbearable.
66a
ABC-Paramount Records, Inc. v. Topps Record Dis-
tributing Co., 374 F.2d 455 (Sth Cir. 1967). There we re-
lied upon Bigelow v. RKO Radio Pictures, 327 U.S. 251,
264. 66 S.Ct. 574, 580, 90 L.Ed.2d 652, 660 (1946), in which
the Supreme Court noted that in those cases where ex-
act loss is unascertainable, a just and reasonable es-
timate of the damage based on relevant data may be
made and the verdict rendered accordingly. See,
Hartley & Parker, Inc. v. Florida Beverage Corp., 307
F.2d 916 (5th Cir. 1962). Daniels Towing Serv., Inc. v.
Nat Harrison Assoc., Inc., 432 F.2d 103, 105-06 (5th Cir.
1970). See also Volasco Products Co. v. Lloyd A. Fry
Roofing Co., 308 F.2d 383, 392 (6th Cir. 1962), cert. de-
nied, 372 U.S. 907, 9 L.Ed.2d 717 (1963); North Texas
Producers Assoc. v. Young, 308 F.2d 235, 244-245 (Sth
Cir. 1962), cert. denied, 372 U.S. 929, 9 L.Ed.2d 733
(1963); Hughes v. Great American Indemnity Co., 236
F.2d 71, 75 (5th Cir. 1956), cert. denied, 352 U.S. 989, 1
L.Ed.2d 368 (1957). Neither the evidence nor the method
of ascertaining damages arising from loss of vehicle
tolls was unsuited for the purpose, and the trial court
gave due weight to the variables appellant has noted.
We find no error.
(2) Passenger train revenue. While Eads under-
went repairs, passenger trains that normally used it to
cross the Mississippi into St. Louis Union Station
were shuttled by Terminal over the city’s Municipal
Bridge. The toll there incurred by Terminal was near-
ly twice the rate Terminal charged passenger lines for
use of its own bridge. Terminal was entitled to the
Eads tolls it lost. Canal, however, contends that Ter-
minal was not the real party in interest to press sucha
claim because it had passed on to the passenger lines
67a
the full city tolls. See Fed. R. Civ. P. 17(a). In connec-
tion with this real party in interest objection, Canal
maintains that the District Court violated the parol
evidence rule.
Evidence heard over Canal’s objection revealed that
unless the railroads themselves made Terminal’s
usage of Municipal Bridge necessary, Terminal billed,
and the railroads expected to pay, the lower Eads toll
whether a train crossed Eads or Municipal Bridge.
This billing practice was said to be based on a course
of dealing between Terminal and the railroads. The
practice notwithstanding, Terminal passed on the full
Municipal toll to its customers, because it was short of
cash while Eads was out of service. The railroads paid
under protest and with the expectation that they would
be reimbursed the difference between the Eads toll or-
dinarily paid and the Municipal toll required of them.
The evidence of course of dealing did not violate the
parol evidence rule. Professor Corbin has stated the
substance of the rule, which is one of substantive law
and not at all of evidence, as follows:
When two parties have made a contract and
have expressed it in a writing to which they
have both assented as the complete and ac-
curate integration of that contract, evidence,
whether parol or otherwise, of antecedent un-
derstandings and negotiations will not be ad-
mitted for the purpose of varying or contradic-
ting the writing.
3 Corbin, Contracts § 573, at 357 (1960). This definition
suggests two inquiries, the answers to which lead us
68a
to our conclusion that no infringement of the rule oc-
curred: Did the parties assent to a writing as the com-
plete and accurate integration of a contract between
them? Regardless of the answer to the first question.
is the evidence offered of antecedent understandings
or is it of subsequent agreements? For, as Corbin
epigrammatically states, “Today may control the
effect of what happened yesterday; but what happened
yesterday cannot change the effect of what happens to-
day.” Id. § 574, at 372. In order for a subsequent agree-
ment to modify or discharge a contract made by the
parties, it must itself comply with the requirements of
a valid contract. Id. § 574, at 371 n.12. However, when
additional terms or provisions of an agreement can be
proved by parol evidence, thereby showing that the
written document in court is not a complete integra-
tion, “[i]t is not necessary that an additional promise
shall have its own separate consideration, or that the
additional terms shall be sufficient, quite apart from
the document, to constitute a valid contract.” Id. § 583.
at 467-68. Decisions abound holding that such terms or
provisions can be proved by parol evidence, “even
though it is clear that the additional terms form a part
of one contractual transaction along with the
writing.” Id. § 583, at 466-67. Fora collection of some of
these cases, see id. §583, at 465 n.88 (1960, Supp. 1971).
Canal asserts that the court erred by permitting Ter-
minal’s witnesses to testify about a subsequent course
of dealing in an attempt to alter, vary and change the
unambiguous terms of the basic operating agreement
between Terminal and its customer railroads entered
into in writing on October 1, 1889. “Extrinsic evidence
may be... helpful in deciding whether there has been
eee eecr ee Ce ee ee =
:
:
:
69a
an integration, and norule bars ‘parol evidence or any
other relevant evidence for the purpose of deter-
mining whether the parties have agreed upon the
writing as a complete and accurate statement of what
is agreed upon between them. Farmer v. Arabian
American Oil Co., 277 F.2d 46 (2d Cir.), cert. denied, 364
U.S. 824, 81 S.Ct. 60, 5 L.Ed.2d 53 (1960); 3 Corbin §§ 573
& 582: Restatement of Contracts §228 (1932)." Carolina
Metal! Products Corp. v. Larson, 389 F.2d 490, 493 (5th
Cir. 1968). By concluding that Terminal was obligated
to reimburse the railroads for the increased cost of
Municipal Bridge that Terminal had passed on to the
railroads, the District Court impliedly found as a fact,
and we think correctly, that the 1889 agreement was
not a complete and accurate integration. We have not
discovered any portion of the 1889 agreement that,
even by means of contractual interpretation, arguably
speaks to the allocation of toll costs between Terminal
and the railroads, such allocation being the subject of
the testimony to which Canal objected. Whether the
course of dealing subsequent to 1889 sufficed to estab-
lish a new contract supplanting the 1889 agreement or
merely supplemented the existing written under-
standing by supplying a vital but missing term,
evidence of it was properly heard and credited in the
absence of contradiction. See, e.g., Franklin Research
& Development Corp. v. Swift Electrical Supply Co.,
340 F.2d 439, 443 n.3 (2d Cir. 1964); Edward E. Morgan
Co. v. U.S., 230 F.2d 896 (5th Cir. 1953); Corbin, supra,
§ 556, cf. Uniform Commercial Code §§ 1-205, 2-202
(applicable to sale of goods).
Due consideration for the evidence of course of deal-
ing compels ourconclusion that Terminal was the real
party in interest with respect to claims for passenger
70a
train tolls. Rule 17(a)’s requirement that “‘[e]very ac-
tion... be prosecuted in the name of the real party in
interest” directs attention to whether the plaintiff has
a significant interest in the particular action he has in-
stituted. See 6 Wright & Miller, Federal Practice &
Procedure: Civil § 1542, at 639 (1971). Its effect “is that
the action must be brought by the person who, accord-
ing to the governing substantive law, is entitled to en-
force the right.” Id. § 1543, at 643; see Gagliano ex rel.
Gagliano v. Bernsen, 243 F.2d 880 (5th Cir. 1957):
Young v. Powell, 179 F.2d 147, 150 n.10 (Sth Cir.), cert.
denied. 339 U.S. 948, 94 L.Ed. 1362 (1950). As stated by
the Advisory Committee in its Note to the 1966 Amend-
ment to Rule 17(a).
[T]he modern function of the rule in its nega-
tive aspect is simply to protect the defendant
against a subsequent action by the party ac-
tually entitled to recover, and to ensure geii-
erally that the judgment will have its proper
effect as res judicata.
In the testimony concerning prior course of dealing
and the explanation of the deviation therefrom, no
suggestion emerged that there had been any change in
relationship between Terminal and the railroads that
would relieve Terminal of ultimate responsibility for
the difference between its own and Municipal tolls. On
the contrary. Terminal’s comptroller testified, in line
with the evidence of the past course of dealing, that his
company had received protests and demands for
repayment from several of the railroads. The evidence
indicates a continuing legal obligation of Terminal to
reimburse the ra
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