Petition for Writ of Certiorari — Southern Natural Gas Co. v. United States

Supreme Cour, Us

89-123 BILED

sis JUL 21 1989

JOSEPH. SPANIOL, JR,

CLERK

re ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

PARKER TOWING COMPANY, INC.,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari To The United States

Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

G. HAMP WZZELLE, Ill

Hand, Arendall, Bedsole,

Greaves & Johnston

P.O. Box 123

Mobile, Alabama 36601

205-432-5511

COUNSEL OF RECORD FOR PETITIONER

PARKER TOWING COMPANY, INC

QUESTIONS PRESENTED

1. Did the Court of Appeals disregard

the settled requirements of maritime law

that a negligent defendant is entitled to

exoneration based upon Act of God only if

it can affirmatively show that the damages

suffered are the result of inevitable

accident which a proper exercise of human

skill and precaution could not have

prevented?

2. Did the Court of Appeals err in

finding that the District Court was clearly

erroneous in rejecting the United States'

affirmative defense of act of God?

3. Should the Court of Appeals give

an understandable explanation of its

reasons, including a reference to the

evidence or lack thereof, in rejecting the

District Court's findings of fact as being

clearly erroneous?

LIST OF PARTIES TO THE PROCEEDING

IN THE COURT OF APPEALS

The below listed entities were parties

to the proceedings in the Court of Appeals:

Warrior & Gulf Navigation Company

Parker Towing Company, Inc.

Southern Natural Gas Company

Hunt Oil Company

Insurance Company of North America

United States of America

Parker Towing Company, Inc. has no parent

company and has the following subsidiaries

and affiliates:

Mobile Drydock, Inc.

Pickens County Port, Inc.

Waterways Forest Products, Inc.

Cargo Handlers, Inc.

Mobile Shipbuilding and Repair, Inc.

Tombigbee Fleeting Service, Inc.

ii

TABLE OF CONTENTS

Page

Questions Presented ........e cee eccces i

Ree GP GAMO BELOW cic cc cacccccves ii

ME PESCIUNUOENEGE Coca cess recsessecces oF

Meee ME BUGCMORACIGS 2. cc ce eee necnes V

CCC UMRRGIN occ e ase scscecesessceess 1

Statement of Jurisdiction ............ 2

BEeMCOMene OF THE CASS 2... cs sescesccves 2

ES PPT Se ee PERRET TETee 19

PCCP Rk G UR GOK BSc eS eacesraseesecs 34

Appendices:

A. Adoption of Warrior & Gulf

Navigation Co. Appendix A -

Eleventh Circuit Opinion

Dated February 6, 1989 ........... A-1

B. Adoption of Warrior & Gulf

Navigation Co. Appendix B -

Eleventh Circuit Denial of

Petition for Rehearing Dated

DRT REE ge sacecnurenscessccs A-2

Cc. Adoption of Warrior & Gulf

Navigation Co. Appendix C -

Southern District of Alabama

Opinion Dated May 18, 1987 ....... A-3

nj

Page

Warrior & Gulf Navigation Co.

Trial Exhibit 33 - Graph of

Upper Pool Elevations at

Bankhead Lock and Dam ..........5.. A-4

Government Trial Exhibit 10C

Graph of Upper Pool Elevations

at Holt Lock and D@M ...ccceccccess A-5

Summary of Gate Elevations,

Pool Elevations, and Cubic Feet Per

Second Discharge at Bankhead

LOCK ONG DOM .ccccccccesesecscesecs A-6

Summary of Gate Elevations,

Pool Elevations, and Cubic Feet Per

Second Discharge at Holt

LOCK And DaM ..cccceccvccseveccves A-7

Comparison of Holt Upper Pool

Elevations as Reflected by Operator's

Log and by Recording Graph ....... A-8

Excerpts from U. S. Army Corps of

Engineers' Manual E-1110-2-3600,

entitled "Reservoir Regulation" .. A-9

lv

TABLE Of A RITIE

Page

CASES:

Amadeo v. Zant, 486 U.S. ot

100 L.Ed.2d 249, 261-62 (1988) ......... 30

Boudoin v. J. Ray McDermott & Co.,

281 F.2d 81, 88 (5th Cir. 1960) .. 19-20,28

Crumady v. The JOACHIM HENDRIK

FISSER, 358 U.S. 423, 429 (1959)

(dissenting OPiniON) .... eee eee eee eeees 31

In Re United States, 425 F.2d 991,

995 (Sth Cir. 1970) wc weeecceveeeeevees 20

Patapsco Scrap Corporation v.

Maryland Shipbuilding & Drydock Co.,

268 F.2d 817, 819 (4th Cir. 1959) ...... 20

The LOUISIANA, 70 U.S. (3 Wall)

Tt? es a ere tr 19

The ROB, 122 F.2d 312, 313

(2nd Cir. 19G1) wecccececcscseesccessces 20

The WILLIAM E. REIS, 152 F.

673, 676 (6th Cir. 1907) wn. ceweeeenees 20

Warrior & Gulf Navigation Company v.

United States, 864 F.2d 1550,

petition for rehearing denied,

875 F.2d 874 (llth Cir. 1989) ..... 1,24,32

Zubik v. Zubik, 384 F.2d 267,

269-70 (3rd Cir. 1967) wc ccccnevccecees 20

STATUTES:

28 U.S.C.

28 U.S.C.

46 U.S.C.

« $ TS254C1) wevcce

, §§ 471, et seq.

*“eeeeesee####*%* # *#

OPINIONS BELOW

The opinion of the Court of Appeals

for the Eleventh Circuit dated February 6,

1989, review of which is sought by this

Petition for Writ of Certiorari, is

captioned Warrior & Gulf Navigation Company

v. United States and is reported at 864

F.2d 1550 and is reprinted as Appendix A to

the petition filed by Warrior & Gulf

Navigation Company ("WGN") and adopted as

Appendix A hereto. A petition for rehear-

ing and suggestion of en banc consideration

was denied by the Eleventh Circuit on April

25, 1989, and that denial is reported at

875 F.2d 874 and is reprinted as Appendix B

to the petition filed by WGN and adopted as

Appendix B hereto. The opinion of the

District Court for the Southern District of

Alabama dated May 18, 1987, is unreported

but is reprinted as Appendix C to the

petition filed by WGN and adopted as

eu

Appendix C hereto.

STATEMENT OF JURISDICTION

The opinion of the Eleventh Circuit,

the review of which is sought, was rendered

on February 6, 1989. Petitions for

rehearing were timely filed and were denied

by order of the Eleventh Circuit dated

April 25, 1989, and entered on that date.

No order _ been requested or entered

granting an extension of time within which

to petition for writ of certiorari.

Jurisdiction to review the Judguent in

question by writ of certiorari is conferred

upon this court by the provisions of 28

U.S.C. § 1254(1).

STATEMENT OF THE CASE _

This appeal arises out of a decision

of the United States District Court for the

Southern District of Alabama following a

lengthy non-jury trial of the issue of

2

liability only in five consolidated cases.

Involved in the proceedings were claims by

Warrior & Gulf Navigation Company ("WGN"),

Hunt Oil Company ("Hunt"), Southern Natural

Gas Company ("Sonat"), Insurance Company of

North America, and Parker Towing Company,

Inc. ("Parker") against the United States

for damage resulting from the domino effect

of the M/V CADDO's tow's colliding with the

U. S. Highway 82 By-Pass Bridge, which

spanned the Black Warrior River downstream

from Holt Lock and Dam. The claimants,

other than WGN, had also asserted claims

for these damages against WGN, but all of

these claims except Parker's were settled

prior to trial. Parker also asserted a

claim against the United States for the

loss of its barge PTC 135 and her cargo as

a result of that barge's being broken away

from her moorings upstream from Holt by

strong currents, whose force and effect

were greatly increased by the negligence of

3

the United States in the operation of the

Bankhead and Holt Dams on the Black wartioe

River. Other claims between Parker and the

United States were also asserted but they

are not relevant to this petition for writ

of certiorari. The District Court had

jurisdiction of all cases pursuant to 28

U.S.C. § 1333 and specific jurisdiction

against the United States as a defendant

pursuant to 46 U.S.C. §§471, et seq.

After a lengthy trial involving many

witnesses and exhibits, Senior Judge Daniel

H. Thomas found that the CADDO's tow's

striking the bridge and the PTC 135's

breaking away from her moorings were caused

by the sole negligence of the United States

in the operation of its locks and dams. On

appeal, the Court of Appeals for the

Eleventh Circuit reversed Judge Thomas '

opinion, holding that he was clearly

erroneous in determining that the negli-

-

gence of the United States proximately

caused the damages, the Court of Appeals

instead substituting its finding that the

unprecedented rain was the inevitable cause

of the chain of events in the case.

Petitions for rehearing were filed and

denied.

The claims in this litigation all

arise out of damages to vessels and

shoreside facilities which occurred on the

morning of December 3, 1983, on the Black

Warrior River in the general vicinity of

Tuscaloosa, Alabama. The Corps of

Engineers operates the following three

facilities on the Black Warrior River in

this area, which are listed in order from

upriver to downriver: Bankhead Lock and

Dam, located at Mile 365; Holt Lock and

Dum, located at Mile 347, ‘and Oliver Lock

and Dam, located at Mile 338. In addition

to the locks which allow vessels to

>

navigate the river, Bankhead and Holt have

spillway gates which can be raised and

lowered to regulate the height of the river

and the flow of the current, whereas Oliver

has a fixed dam with no moveable spillway

gates. The Brookwood (Drummond) facility

where Parker's barge PTC 135 had been

moored for over a week is located seven

miles upstream from Holt at Mile 354, and

the U. S. Highway 82 By-Pass Bridge, which

WGN's Tug CADDO's tow struck, is located at

Mile 341.5, which is five and one-half

miles downstream from Holt.

On the night of December 2-3, 1983,

the Tug CADDO, with six barges in tow, was

the third of three WGN tugs to proceed

downstream through Holt Lock, departing the

lock at sometime between 1:45 a.m. and 2:03

a.m. She struck the bridge at 2:30 a.m.,

resulting in the breakup of her tow. While

other WGN tugs in the vicinity were

r

Le)

assisting the CADDO, their barges broke

loose, and, as a result, WGN lost numerous

barges and their cargoes, and damage was

caused to Sonat's and Hunt's facilities

downstream from Oliver and also to two of

Parker's barges, the PTC 216 and PTC 235,

which were in a tow just downstream from

Oliver. The trial court found that the

damages of WGN, Hunt, and Sonat, and

Parker's damages to the PTC 216 and PTC 235

all stemmed from the domino effect of the

CADDO's tow's colliding with the bridge and

its breakup. (Conclusion of Law 6)

(Future references to the findings of fact

and nen conclusions of law which are

contained in the Record at R1-27 and in

Appendix C hereto will be cited as "F of F"

and "C of L".) The basic facts as stated

above have not been disputed by any party

on appeal, although there is, of course,

dispute as to whether or not the govern-

ment's negligence was the cause of the

7

CADDO's tow's colliding with the bridge.

In its opinion, the Eleventh Circuit

reversed the trial court's award of all

damages to Parker against the United

States, including the damages to the PTC

216 and PTC 235. With respect to its claim

for the damages to the PTC 216 and PTC 235,

Parker incorporates herein the statement of

facts of WGN in its petition for writ of

certiorari.

The language contained in C of L 6

taken by itself implies that all of

Parker's claims resulted from the domino

effect of the CADDO's tow's colliding with

the bridge, and the Court of Appeals

apparently accepted this implication as

being correct. It is, however, totally

incorrect as is reflected by the language

contained thereafter in C of L 8 wherein

the district court stated in part as

follows:

This leaves the problem of Barge

PTC 135 and the cost incurred in

its removal from the spillway

gates at Holt. [The United

States had claimed recovery for

this cost but abandoned that

claim in its appellate brief. ]

i The Court finds, however,

that the negligence of the United

States in the operation of the

spillway gates proximately caused

the breakaway of the PTC 135.

Parker is therefore entitled to

recover in full for its damages

incurred in connection with the

loss of the PTC 135 and its

cargo.

It is blatantly obvious that the CADDO's

tow's striking the bridge five miles

downstream from Holt could not have caused

the PTC 135 to break away from her moorings

seven miles upstream from Holt.

Instead, the PTC 135 was broken from her

mooring by the strong currents at Brook-

wood, the strength of which was substan-

tially increased by the negligence of the

Corps of Engineers in operating the

spillway gates at Bankhead and Holt ina

9

manner ccntrary to its established regula-

tions by negligently and unnecessarily

storing large amounts of water above the

dams and then rapidly opening the gates and

releasing this stored energy.

Attached hereto as Appendices D & E

are copies of WGN Ex. 33 and Government Ex.

10C, respectively, which reflect the

heights of the Bankhead and Holt upper

pools (also refered to as Bankhead and Holt

Lakes) at relevant times. WGN Ex. 33

reflects that Bankhead Lake commenced

rising at 6:00 p.m. on December 2nd and

rose steadily and continuously until

midnight for a height of approximately .8

of a foot. This substantial rise in

Bankhead Lake, which is approximately three

times as large as Holt Lake, caused the

lock tender who went off duty at 11:00 p.m.

on December 2nd to advise his relief that

they had a "runaway river", that he had

10

been opening gates since 10:15 p.m., and

that additional gates would have to be

opened. (R5--926-27) Maximum opening of

the gates at Bankhead is 13.5 feet (WGN Ex.

7), but, despite this early knowledge, the

gates at Bankhead were not opened above

three feet until almost 1:00 a.m. and were

not opened to full flow until 4:18 a.m.

(WGN Ex. 9) The discharge rate at an

opening of three feet at Bankhead is

approximately 56,500 cubic feet per second

("cfs"), whereas the discharge rate at full

flow is 189,900 cfs. (WGN Ex. 7) Appen-

dices F & G are compilations of the gate

openings, upper pool elevations according

to the gate operator's logs, and cfs

discharges of Bankhead and Holt, respec-

tively, and Appendix H is a comparison of

the Holt pool elevations recorded in the

operator's log with the Corps' recording

graph. The data upon which these appen-

dices is based is contained in WGN Exs. 7,

il

9, 11, and 13 and Government Ex. 10C.

The government's manuals for the

operation of Bankhead and Holt provide for

continuing communication between Bankhead

and Holt to "[aid] in the operation of Holt

Lock and Dam by providing an indication of

expected inflows" (WGN Ex. 7, q 6-3) and

state that the exchange of data "may be

helpful in anticipating gate operating

requirements." (WGN Ex. 11, { 26) Despite

these provisions, "[T]jhe testimony of the

Corps witnesses at trial was confusing and

conflicting as to when Bankhead warned Holt

that an unprecedented volume of water was

on the way south from Bankhead. The third

shift lock tender at Holt testified that

Bankhead did not warn him of its actions

[substantial gate raisings] until ‘it was

almost too late' and the water had already

hit him by surprise." (F of F 40)

12

The substantial rise at Holt began

around 11:00 p.m., and by 3:00 a.m. the

pool there had risen to a peak of 190.2

feet (Government Ex. 10C), which is 3.2

feet above the maximum reservoir height of

187 feet. (WGN Ex. 11, { 23) Holt is

designed so that "the proper manipulation

of the gates will maintain the pool at

[187] for all inflows up to 393,000 cfs."

The manual further provides that the "gates

will be operated . . . in order to maintain

the reservoir between elevations 186 and

187 except during floods with inflows in

excess Of spillway capacity." (WGN Ex. ll,

q26) The inflow into Holt Lake from

Bankhead never exceeded 152,000 cfs prior

to 3:00 a.m. (Appendix C, WGN Ex. 9, & WGN

Ex. 7, charts 9-13). The inflow into Holt

Lake was about the same from rain as it was

from Bankhead except possibly for the very

early hours of the morning when the

exhibits reflect much lower discharge

13

rates. (R4--740-41, R6--1468) Conse-

quently, during the time that Holt Lake was

rising, the total maximum inflow into Holt

Lake of slightly over 300,000 cfs was

substantially below the discharge capacity

of 393,000 cfs.

The iock operator at Holt, however,

neglected to open his gates sufficiently

early as required by the manuals in order

to maintain Holt Lake at or Lzlow the

maximum permitted elevation. By 1:40 a.m.,

he had raised his gates to a height of only

six feet, producing a discharge of 99,770

cfs. (Appendix G, WGN Ex. 13 & WGN Ex. ll,

Charts 7-11) At 2:20 a.m., the gates were

raised to twelve feet at Holt, producing a

discharge of 199,460 cfs and were ulti-

mately raised at 4:30 a.m. to the maximum

opening utilized that night of an average

of slightly over seventeen feet, producing

a discharge of 264,340 cfs. These records

14

unquestionably supported and in fact

demanded the trial court's finding that the

operator at Holt "violated the undisputed

Corps requirement that the gates be opened

as soon as the upper pool exceeds the

elevation of 187" and that "Holt was not

operated as a run-of-the-river dam is

Supposed to be operated during this

critical period of time" as the operator

was devoting the time "to locking three

southbound Warrior & Gulf tugboats through

Holt, ignoring the flood descending from

Bankhead." (F of F 43) After locking the

last boat through at 1:40 a.m., the

operator discovered that his pcol had risen

alarmingly and immediately began opening

gates as fast as he could. (F of F 43)

Even after the pool at Holt had crested at

3:00 a.m., the Holt operator continued to

open gates from approximately 13 feet to

approximately 17 feet, increasing the

discharge from approximately 217,000 cfs to

15

approximately 264,000 cfs.

The maximum discharges from Bankhead

and Holt occurred from approximately 4:30

a.m. to 6:00 a.m. (Appendices F & G), and

the current at Brookwood was reported to be

ten m.p.h. (R4--833-35) at 5:30 a.m. It

was probably well after 3:00 a.m. that the

PTC 135 most likely broke loose. (Govern-

ment's Appellant Brief at 30-31) At 6:00

a.m., the PTC 135 struck Holt Dam seven

miles dcwnstream from Bankhead where she

had been moored. (F of F 49)

Dr. Neil Grigg, a highly qualified

hydrologist, testified that the lock

operators at Holt and Bankhead could have

brought their pool levels down below the

maximum level earlier by opening the gates

earlier which would have reduced the

necessity to have opened the gates as high

as they did later in the morning between

16

3:00 a.m. and 6:00 a.m. Opening the gates

earlier would have avoided the necessity to

open the gates so high later, resulting in

substantially less current at Brookwood

than did in fact occur between 3:00 a.m.

and 6:00 a.m. (R4--676-683, 771-774) Joe

Henline, an independent tug boat pilot,

testified that big openings at Holt and

Bankhead will create very strong currents

between the two and that the current gets

strong, not when the river is'rising, but

when the gates are opened to allow the

current to start moving through. (R3--395-

401) Even Mr. Rounsaviile, the Corps' star

company-line witness, acknowledged that

water was stored above Holt until approx-

imately 3:00 a.m. (R6--1229-30) and that

from 4:30 a.m. to 6:00 a.m. the gates were

opened very wide, resulting in the dramatic

falling of the pools and the passing ofa

lot more water than would have passed

17

through if the dams had not been there.

(R6--1278-79)

The Government did not offer any

evidence at all to show what the currents

would have been in the river where the PTC

135 broke loose between Holt and Bankhead

if the Government had operated its dams

properly as required by its own requla-

tions.

In fact, although the Government's

expert hydrologist Dr. Peck modeled the

river, not only from Holt downstream to

Oliver, but also from Holt upstream to

Rankhead (R6--1432-33, 1433-35), he did not

testify with respect to the currents or

conditions between Holt and Bankhead, where

the PTC 135 incident occurred, and the

Government offered into evidence only his

model below Holt and not his model above

Holt.

ARGUMENT

In reaching its decision, the Court of

Appeals totally ignored the extensive

maritime jurisprudence on the subject of

act of God, or inevitable accident, relying

instead upon two Alabama decisions, of

which one was not cited in any appellate

brief and the other was cited for a totally

different proposition than that asserted by

the court. The United States Supreme Cource

in The LOUISIANA, 70 U.S. (3 Wall) 164, 173

(1865) clearly established that a defendant

relying upon inevitable accident, or act of

God, must show that the accident was "the

resuit of inevitable accident, or a vis

major, which human skill and precaution,

and a proper display of nautical skill

could not have prevented." The Fifth

Circuit in Boudoin v J. Ray McDermott &

Co., 281 F.2d 81, 88 (5th Cir. 1960) stated

as follows:

19

[Tjhe law is clear

that "the burden ‘is heavily upon

the [defendant] asserting such a

defense,' .. . Such [defendant]

‘must exhaust every reasonable

possibility which the circum-

stances admit and show that in

each they did all that reasonable

care required.'"

These basic principles have been previously

applied uniformly by the courts of appeals

in maritime cases. The ROB, 122 F.2d 312,

313 (2nd Cir. 1941); Zubik v. Zubik, 384

F.2d 267, 269-70 (3rd Cir. 1967); Patapsco

Scrap Corporation v. Maryland Shipbuilding

& Drydock Co., 268 F.2d 817, 819 (4th Cir.

1959). In Re United States, 425 F.2d 991,

995 (5th Cir. 1970); The WILLIAM E. REIS,

152 F. 673, 676 (6th Cir. 1907). The

present case contains a factual variation

from most act of God decisions, because, in

most of those cases, the party asserting

act of God as a defense is the owner of a

vessel which has broken away from her

20

moorings and which is presumed to be

negligent since its moving vessel has

struck a fixed object. In the present

case, the situation is reversed in that

Parker, the owner of the PTC 135 which

broke away from her moorings, was found by

the trial court not to be guilty of

negligence (C of L 10), and the Government

not only was found to be negligent by the

trial court but did not dispute that

negligence in its appellate brief, con-

tending only that its negligence had not

proximately caused the damages. Because of

this unique situation, caution is required

in order to recognize that the burden of

proving act of God is on the party who

relies on the act of God defense, which may

not be the drifting vessel.

In its opinion, the Eleventh Circuit

merely states, relying upon an Alabama

decision, that a negligent party will be

21

exonerated from liability if the act of God

would have produced the same damage

irrespective of the party's negligence.

The opinion does not contain any discussion

of what proof exists in the record to

support the Government's affirmative

defense. The opinion instead only asserts

in conclusionary fashion that the unprece-

dented rain rather than the Government's

negligence was the inevitable cause of the

chain of events. Furthermore, the opinion

fails to recognize in any manner that the

incident involving the PTC 135 was not a

part of the chain of events resulting from

the collision of the CADDO's tow with the

bridge.

The Eleventh Circuit repeatedly refers

to the "unprecedented rainfall" as if the

mere fact that the rainfall was unprece-

dented provided a defense to the United

States. Pursuant to the applicable

22

maritime law, however, the question is not

whether the rainfall was unprecedented but

rather whether the Corps of Engineers

personnel could have prevented the damage

by the proper exercise of reasonable care.

As set forth above, the trial court found

that "the negligence of the United States

in the operation of the spillway gates

proximately caused the breakaway of the PTC

135." (C of L 8) The United States did

not seriously challenge the district

court's finding that it was negligent, and

the Eleventh Circuit did not find that the

trial court was clearly erroneous in

concluding that the United States was

negligent.

The Eleventh Circuit's opinion

contains no discussion of the Corps of

Engineers' operation of the dams and what

the Corps could have done to avoid the

damages. The opinion does contain the

23

statement that "the flow out of the dam was

matching the flow into the lake above the

dam," 864 F.2d at 1554, but this statement

is in direct conflict with the undisputed

evidence as to the inflows and discharges

as detailed above in the statement of facts

with respect to the periods of time

relevant to the breakaway of the PTC 135

from her moorings. If the outflows had

equalled the inflows, the levels of the

lakes would have remained constant, but

they varied greatly, exceeding the maximum

allowable elevations, as is visibly

demonstrated by the graphs contained in

Appendices D and E. Basically, the Court

of Appeals simply concluded without any

informative discussion that "the unprece-

dented rain, rather than the Army Corps of

Engineers' operation of the Black Warrior

River lock and dam system, was the in-

evitable cause of the chain of events in

this case." 864 F.2d at 1554. Obviously,

24

the rainfall was the initial motivating

force in causing the PTC 135 to break away

from its moorings, just as hurricanes and

other natural phenomena were the initial

motivating forces in all of the inevitable

accident cases cited above. In those

cases, however, the courts properly

analyzed the evidence to determine whether

or not the negligent defendants had carried

their heavy burden of proving that they did

all they reasonably could to prevent the

. damage.

Although the rainfall was a very

substantial factor in producing the

currents in che river, clear and substan-

tial evidence, as set forth in the state-

ment of the facts, demonstrates that the

Corps of Engineers' negligence in impro-

perly storing tremendous quantities of

water above the dams rather than allowing

them to flow through as required by a run-

25

of-the-river project and in subsequently

releasing this stored energy by opening the

gates wider than should have been necessary

resulted in a substantial increase in the

current. In contrast to this very con-

vincing evidence which was clearly accepted

by the trial judge, who saw and heard the

witnesses testify, the United States

offered no evidence at all to show what the

currents and forces involved would have

been if the government had operated the

locks and dams in the manner required by

its own regulations and by the exercise of

due care.

Furthermore, while the rainfall may

have been unprecedented, it clearly was not

unforeseen, and the Corps of Engineers

specifically recognized the great potential

for damage that could result from improper

operation of the gated spillways during

heavy floods and storms. In the Corps of

26

Engineers' Manual EM-1110-2-3600 (WGN

Exhibit 15) entitled "Reservoir Regula-

tions," a portion of which is reproduced as

Appendix I, the Corps specifically notes

that experience has shown that significant

damages may arise when reservoir releases

during floods are greater than would have

occurred under natural conditions prior to

construction of the reservoir. Accord-

ingly, the manual states that one of the

objectives of the operation of the spill-

ways is to prevent peak rates of reservoir

release that would exceed the runoff

conditions that would have occurred without

the construction of the reservoir. To

accomplish this objective, the manual

provides for the opening of the spillway

gates before the reservoir has exceeded its

storage capacity in order to limit the

increase in outflow to an acceptable value.

In light of the Corps' recognition of the

potential damage that could result from the

27

operation of the dams, it is certainly

clear that its lock operators had the same

duty to exercise due care to prevent damage

as the ship master in Boudoin, supra, 281

F.2d at 84-85. Nevertheless, the lock

operators were not even familiar with the

written manuals regarding the operation of

the dam and had not been trained in

accordance with the Corps of Engineers'

mandates contained therein. (F of F 30)

A review of the trial court's opinion

reflects that the court conducted a

detailed analysis of the evidence presented

with regard to the Corps of Engineers'

negligence and found that that negligence

proximately caused the breakaway of the PTC

135. The very convincing testimony of Dr.

Grigg, the highly qualified hydrologist,

and Joe Henlein, an experienced independent

tug boat pilot, virtually demanded this

conclusion. Their testimony was further

28

supported by the acknowledgment of the

Corps of Engineers' Mr. Rounsaville that

the Corps' actions resulted in a dramatic

falling of the pools and the passage of a

lot more water through the dams during the

time of the PTC 135 incident than would

have occurred prior to the construction of

the dams. In opposition to this over-

whelming evidence, the Corps of Engineers

offered nothing to carry its heavy burden

of proof and even deciined to present any

testimony from its expert hydrologist with

respect to currents or conditions at the

area where the PTC 135 incident occurred.

The Eleventh Circuit's opinion does

not set forth in any meaningful manner the

facts or evidence upon which the court

based its faulty determination that the

trial court was clearly erroneous with

respect to the PTC 135. This Court

recently stated in reversing another

29

ee

opinion of the Eleventh Circuit in which it

had held the trial court's findings clearly

erroneous as follows:

Indeed, the Court of

Appeals identified no evidence in

the record--aside from the fact

that the memorandum eventually

was discovered--that contradicted

the District Court's conclusions

about the concealment and

availability of the memorandum.

The Court of Appeals therefore

should not have set aside as

clearly erroneous the District

Court's findings on these

matters.

Amadeo v. Zant, 486 U.S. , 100 L.Ed.2d

249, 261-62 (1988). There are several

valid reasons why Courts of Appeals should

identify the evidence or lack thereof in

the record upon which they base a reversal

of the trial court's findings. In the

first place, common courtesy to the

district judge, who in this case had spent

substantial time hearing the evidence and

writing his forty page opinion, demands

such an explanation. This point was

30

Clearly recognized as applicable even to

the Supreme Court by Justice Harlan in his

dissent in Crumady v. The JOACHIM HENDRIK

FISSER, 358 U.S. 423, 429 (1959) (dis-

senting opinion), wherein he stated as

follows:

When this Court reverses a

Court of Appeals, particulary on

issues of fact, I think the lower

court is at least due an under-

standable explication of the

reasons.

Such common courtesy should also be

extended to the litigants involved, and to

their counsel, who deserve an explanation

for the court's action. Clearly, such an

explanation should create a higher regard

by the public in general for the functions

and actions of the Courts of Appeals and

the judicial system in general. Further-

more, in this particular case, and possibly

in many others, if the Court of Appeais had

attempted to set forth the basis of its

31

a

ruling rather than merely expressing an

unfounded conclusion, it very possibly

would have discovered its own error as it

would have realized that the evidence in

this case does not support the visceral

feeling upon which it must have based its

conclusion. The mere recitation by the

Court of Appeals of the talismanic phrase,

"after a thorough review of the record",

864 F.2d at 1554, should not deprive Parker

and the other petitioners of their right to

reinstatement of the findings of fact and

judgment thereon in their favor, which were

unquestionably more than adequately

Supported by a permissible view of the

evidence.

With respect to the reversal of the

trial court's finding of liability on

behalf of the Government for the damages

resulting from the CADDO incident, in-

cluding the damage to the PTC 216 and PTC

32

235, Parker relies upon the arguments of

WGN in its Petition for Writ of Certiorari.

33

CONCLUSION

A major underlying issue presented by

this petition is a factual matter which is

normally not an appropriate subject for

consideration by the Supreme Court.

Unfortunately, however, the Court of

Appeals for the Eleventh Circuit exceeded

the bounds of its scope of review in

substituting its own finding, which was not

Supported by the evidence, for the finding

of the District Court, which was clearly

Supported by the evidence. Furthermore, in

making this unwarranted substitution of its

own findings of fact, the Court of Appeals

totally neglected to provide an explanation

for its finding or to cite the evidence or

lack thereof in support of its finding. In

the federal judicial system, the District

Court is the appropriate court to make

findings of fact, and petitioners respect-

fully request the Supreme Court to exercise

34

exercise its supervisory authority over the

Court of Appeals to correct its improper

usurpation of the District Court's

function. Additionally, the Court of

Appeals failed to follow the clear and

settled body of maritime law with respect

to the affirmative defense of act of God

and the burden of proof with respect

thereto, and petitioner respectfully

requests this Court to reinstate those

settled maritime principles and eliminate

the present conflict between the decision

of the Eleventh Circuit and the decisions

of other Courts of Appeal and the Supreme

Court on this matter.

Respectfully submitted,

G. HAMP UZZELK&, I

Attorney and Counsel of

Record for Petitioner Parker

Towing Company, Inc.

35

APPENDIX A

Parker adopts Appendix A to the

Petition for Writ of Certiorari filed by

Warrior & Gulf Navigation Co. as its

Appendix A.

APPENDIX B

Parker adopts Appendix B to the

Petition for Writ of Certiorari filed by

Warrior & Gulf Navigation Co. as its

Appendix B.

Packer adopts Appendix C to the

Petition for Writ of Certiorari filed by

Warrior & Gulf Navigation Co. as its

Appendix

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APPENDIX I

EXCERPT FROM

UNITED STATES CORPS OF ENGINEERS'

MANUAL EM-1110-2-3600

ENTITLED RESERVOIR AND REGULATION

4-05. OPERATION OF GATED

SPILLWAYS A. General.

Until recent years it was

common practice in the study of

gated spillways to assume that

the reservoir level would not be

permitted to rise above the

static-full-pool elevation near

the dam until all spillway gates

were open, after which reservoir

outflow would be uncontrolled as

long as inflow exceeded the

capacity of the spillway at

static-full-pool elevation.

However, experience in the

operation of gated spillwzys has

shown that significant flood

damages may arise because of the

fact that reservoir releases

under this plan of operation may

be larger during floods cccurring

when the reservoir is full, or

near full, than would have been

the case under natural conditions

before construction of the

reservoir. The operation of

gated spillways because of sudden

increases in the rate of outflow

A-9

may result in damaging flood

wave. For these reasons, insofar

as practicable, reservoirs

controlled by gated spillways

should be designed and operated

to accomplish the following

objectives during periods when

the reservoir is filled or nearly

filled:

(1) Peak rates of reservoir

sed

release during damaging floods

should not exceed peak rates of

the corresponding floods that

would 4 Cc unoff

conditions prevailing before

construction of the reservoir.

(2) The rate of increase in

reservoir releases during a

significant increment of time

should be limited to values that

would not constitute a major

hazard to downstream interests.

b. Methods of Operation.

One of the two basic procedures

discussed below, or combination

thereof, may be followed in

accomplishing the objectives

stated above:

(1) When predictions

indicate that anticipated runoff

from a storm will appreciably

xce e storage ci

emaini i e ir, the

openi spillw ates will be

initiated bef ¢) -

has filled, and will be scheduled

to limit the rate of increase in

fe) Ww cce ble value.

This method of operation

A-10

Fe a

accomplishes the objectives

stated in the preceding para-

graph, but with some sacrifice in

the flood control effectiveness

of storage capacity below the

static-full-pool level.

(2) As an alternative to

the procedure outlined above,

"induced surcharge" storage above

the static-full=pooli—level may be

utilized to exercise partial

control over outflow rates after

the reservoir has filled to the

static-full-pool level.

[Emphasis added. ]

A-11