Petition for Writ of Certiorari — Pan American Petroleum & Transport Co. v. Seaboard Air Line Railroad

Supreme Court brief1953

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IN THE SUPREME COURT OF} THE

UNITED STATES

OcroserR TeERM 1952

Pan AMERICAN PerroLEuM & TRANsPoRT COMPANY,

Petitioner,

Srapoarp Arr Line RarLtroap ComMPAny,

Respondent.

Petition For Writ Of Certiorari To

United States Court Of Appeals

Fifth Circuit

And Brief In Support Thereof

Julian C. Sipple,

26 Bryan Street, East,

Savannah, Georgia.

T. M. Cunningham,

26 Bryan Street, East,

Savannah, Georgia.

A. R. Lawton,

26 Bryan Street, East,

Savannah, Georgia.

Herbert P. Reid,

76 Beaver Street,

New York, N. Y.

Proctors for Petitioner.

JAN 19 195°

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IN THE

SuPREME Court oF THE UNITED STATES

OctToserR TERM 1952

Pan American Petroleum & Transport Company,

Petitioner,

vs.

Seaboard Air Line Railroad Company,

Respondent.

Petition for Certiorari

TO the Honorable Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Pan American Petroleum & Transport Company

(hereinafter called “Pan American”), respectfully

petitions that writ of certiorari may issue to the United

States Court of Appeals for the Fifth Circuit to bring

up the record from and to review the judgment of

that Court rendered November 15, 1952, on the libel

of Seaboard Air Line Railroad Company (herein-

after called “Seaboard”) vs. S.S. “Pan Maryland”

and Pan American, and in the cross libel of Pan

American vs. Seaboard (No. 14,179); and that judg-

ment on the said libel and cross libel may be reviewed

(1)

and reversed, and in support of the petition, respect-

fully shows:

Short Statement of Matter Involved.

S.S. “Pan Maryland” collided with the South abut-

ment of the draw span of Seaboard’s bridge over the

Savannah River, doing damage to the bridge and the

Steamship. Seaboard brought a libel against S.S.

“Pan Maryland” and its owner, Pan American, for

the damage to the bridge, alleging that the collision

was caused by negligent navigation of the S.S. “Pan

Maryland”. Pan American cross-libeled Seaboard,

alleging that the bridge was an unreasonable obstruc-

tion of navigation and an unlawful structure, and

that Seaboard was liable for the damage to the ship

and that the ship was not negligently navigated. The

libel and cross-libel were consolidated and heard to-

gether, the question of damages being reserved for

future determination. The District Court held that the

Steamship was without fault, that the ship took a sud-

den and irresistible sheer due to the shoaling in the

channel, that the bridge was an unreasonable obstruc-

tion to navigation and an unlawful structure, and was

one of the causes of the collision, and held Seaboard

liable for the damages to the ship. The Court of Ap-

peals held that the bridge was not an unlawful struc-

ture and that the sole cause of the damage was the

negligent navigation of the ship and gave judgment

accordingly against the Steamship and Pan American.

Pan American duly petitioned for a rehearing which

was denied December 12, 1952. TAe ¢ a5¢ 15 ye -

ported in 199 F. €2¢) 76E/.

Jurisdictional Statement.

This Court has jurisdiction to grant the writ of

certiorari under U.S. Code, Title 28, §347 (a), and

Rule 38 of the Supreme Court Rules.

Questions relied on for the allowance

of the Writ.

There are four separate grounds on which the writ

is sought.

1. The Court of Appeals erred in holding Sea-

board’s bridge was not, “an unlawful structure” (R.

634), and in not holding that it was “an unlawful

structure;” and also in not holding the bridge was in

point of fact an unreasonable obstruction of naviga-

tion. These are pure questions of law, and involve

the application and interpretation of the “Bridge” Acts

of Congress.

2. The Court of Appeals erred in holding that

Seaboard was not responsible for the shoaling of the

channel in the approaches to the bridge (R. 632). This

was the cause of the ship taking a sudden and irre-

sistible sheer which was one of the main contributing

factors in the collision. There is no dispute in the

evidence as to the facts of this matter.

3. On the question of the negligent navigation

of the ship, the Court of Appeals erred in that it com-

pletely ignored the Findings of Fact of the District

Judge, who heard the evidence and saw the witnesses.

The Court of Appeals made its own Findings of Fact

(R. 628), just as though it was the original trier of

the facts. The Court of Appeals violated the rule

which prevails in all the Judicial Circuits (including

the Fifth) that the Findings of Fact of the District

Judge who heard the evidence and saw the witnesses

must as a matter of law be followed unless clearly

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erroneous. The facts on which the Court of Appeals

rested its opinion are contrary to the evidence.

4. At the least, even were it conceded that the

ship was negligently navigated, the bridge being an

unlawful structure or an unreasonable obstruction of

navigation, the Court of Appeals should have held

that there was mutual fault, in which event the damages

would be divided according to the rules in admiralty

applicable to a collision between two or more vessels.

THE REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

1. The bridge was an unreasonable obstruction of navi-

gation and an unlawful structure.

(a) The Bridge.

The bridge was constructed about 1900 under a

Special Act of Congress and reconstructed in 1908

(R. 491) with a draw span 116 feet wide. The river

at this point runs upstream East to West and the

bridge crosses the river from the City of Savannah

side South to North. The draw span is on the extreme

South end of the bridge and the South abutment on

which the span rests is near the South shore. The

bridge is in a bend in the channel (R. 488).

(b) Changed Conditions.

Since the bridge was built several large industries

were located upstream (R. 445); (Finding No. 4

District Judge, R. 65); Letter Chief of Engineers to

Secretary of War (R. 503). These large industries

are supplied by deep draft ocean vessels (R. 446).

When the bridge was reconstructed in 1908 there was

no improved channel above the bridge. In 1921 the

depth of the channel above the bridge was increased

to 21 feet (R. 440) ; at the time of this collision it was

30 feet.

obstruction to navigation.

The evidence to this fact is overwhelming. ‘The

agitation on this subject began as early as 1934 (R.

211, 407). Robert W. Groves, President, Savannah

Port Authority (R. 211-216); Spencer (R. 223);

Brown (R.283); minutes of public hearing held Aug.

8, 1939, by U.S. District Engineer, P.A. Ex. 12 (R.

417-491) ; minutes meeting October 1936 conducted by

Savannah Port Authority at which Seaboard officials

were present (R.212) ; minutes of public hearing before

District Engineer Feb. 25, 1941 (R. 512); letter from

Chief Engineer of Seaboard to U.S. District Engineer

Aug. 6, 1939, admitting the necessity of changing the

width of the draw span to 200 feet and changing the

location of the draw span (R. 488). Senate Doc. No.

39—71st Congress (R. 443); Report of Board of

Engineers to Secty. of War Feb. 12, 1934, (R. 443).

(d) The application of Seaboard to Secretary of

War for permission to widen the draw span to 260 feet and

to change the location of the draw span and the subsequent

orders of the Secretary of War.

(1) April 23, 1937, Seaboard made application to

the Secretary of War to reconstruct the bridge so as

to provide a draw span of 200 feet and to relocate the

draw span (R. 212, 442). This application was in re-

sponse to the frequent protests of the maritime interests

at Savannah (P.A. Ex. 4; R. 408); Groves (R.212) ;

Rhodes (R.312), and the letter of April 2, 1937 from

the District Engineer that he proposed to have a hear-

ing on the subject April 11, 1937 (R.407).

(2) June 21, 1937 the Acting Secretary of War

approved the plans of Seaboard and authorized the

work to proceed, the actual work to be started in eight

(8) months and completed in three years after receipt

of the instrument of approval (R.491). In February

1938 Seaboard was granted by the War Department

an extension of time to June 15, 1939, to begin the

work, but the time for completion of the work was

not extended (R. 213, 446). 10 months after the ex-

tension was granted the District Engineer complained

to Seaboard about its failure to prepare plans (R.411).

And in the following month the District Engineer on

account of Seaboard’s procrastination gave considera-

tion to prosecuting the Seaboard in the Courts (R.

415, 416).

(3) October 17, 1939, the Secretary of War is-

sued his order to Seaboard denouncing the bridge as

an unreasonable obstruction to free navigation and

directing the draw span to be increased to 200 feet in

width and placed in a position normal to the axis of

the channel, the work to be completed within 2 years

and 6 months (April 1942), (R.38).

(4) June 21, 1940, the Truman-Hobbs Bridge

Act was passed. This Act was first introduced in 1937

(R.180) and passed in July 3939, but was vetoed. It

was passed a second time and again vetoed and Con-

gress passed the Act over the veto on June 21, 1940,

(R. 181, 182, 402, 403, 424). September 2, 1940, the

Attorney General advised the Secretary of War:

“Since the Receivers are unwilling to abide by the

order of October 17, 1939, and since it appears to me

to be futile to attempt to enforce the order, I advise

that you withdraw it and proceed to the issuance of

a new order under the Act of June 21, 1940”, (R.

401). Acting on this advice of the Attorney General,

the Secretary of War December 14, 1940, ordered

that his order of October 17, 1939, “is hereby with-

drawn,” (R.399).

(5) Pursuant to a public hearing held February

7, 1941, (R.519), the District Engineer at Savannah

May 19, 1941, recommended to the Chief of Engineers

“that proper steps be taken to replace this bridge with

a new one as soon as practicable,” (R.591). June 21,

1941, because of war conditions, the Chief of Engi-

neers decided at that time not to issue any order (R.

214, 342, 343). February 13. 1946, the Secretary of

War issued his second order to the effect that the

bridge was an unreasonable obstruction to free navi-

gation due to inadequate clearance through the draw

span of said bridge and ordered Seaboard to provide

a draw span with a horizontal clearance of 200 feet

normal to the channel (R.40). June 26, 1950, Sea-

board was advised by the War Department of the

final approval of plans for the reconstruction of the

bridge (R.172).

(e) The Acts of Congress relating to this bridge.

These Acts are printed in the Appendix to the

brief filed in support of the petition.

(1) The bridge was originally constructed under

the Special Act of Congress of February 2, 1899 (30

Stat. 813). This Act provided in Section 2 “that

the bridge shall be so eonstructed, by draw span or

otherwise, that a free and unobstructed passage may

be secured to all vessels and other water craft navi-

gating said river *** and that the said bridge shall

be at all times so kept and managed as to offer reason-

‘i

able and proper means for the passage of vessels

through cr under said bridge.”

Sectic:: 3 provides that the bridge so built shall be

a lawful structure, and Section 6 reserves the right

to amend the Act.

(2) ‘Lhe order of February 13, 1946, of the Sec-

retary of War to reconstruct the bridge was issuéd

under the Act of June 21, 1940, (54 Stat. 497: 33

U.S.C.A. Sections 511-523). The main purpose of

this Act was to allocate the cost of reconstructing rail-

road bridges between the United States aiid the owners

of railroad bridges. This Act contains a provision

which is neither in the Special Act under which this

bridge was built nor in River and Harbor Act of

March 3, 1899. This provision reads:

“Obstruction of Navigation. Section 2. No

bridge shall at any time unreasonably obstruct

the free navigation of any navigable waters of

the United States.”

The Act of March 3, 1899, provided in Section

18 that whenever the Secretary of War passed an

order to alter a bridge that he’“shall prescribe in each

case a reasonable time within which to make them.”

The Truman-Hobbs Act did not provide that the Sec-

retary should prescribe the time within which the work

should be completed and, therefore, the order of Feb-

ruary 13, 1946, to reconstruct the bridge did not carry

any provision with respect to the time of the completion

of the work.

(f) The obstruction of navigation through the bridge

would have been removed long ago but for the procrasti-

nation of Seaboard.

Seaboard, in recognition that the bridge was in point

of fact an obstruction to navigation, voluntarily agreed

April 1937 to reconstruct the bridge and requested

authority to do so, (statement of Faucette, Chief En-

gineer of Seaboard (R.408; Groves R.212; Rhodes

R. 312). June 21, 1937, the authority was granted

and the plans approved and the work was ordered

to be begun within 8 months and completed in three

years (June 21, 1940), (R. 491). This order was

never repealed and if it had been complied with the

bridge would have been completed at or before the

Truman-Hobbs Act was passed. In December 1938

the Receiver wrote the District Engineer indicating

that the Receivers did not plan to delay the begining

of the work (R.412).

It is obvious that Seaboard was delaying, on ac-

count of the pendency of the Truman-Hobbs legisla-

tion. May 6, 1939, District Engineer wrote to his senior

Engineer (R.496) that Seaboard had obtained bids

to do the work but “did not wish to lose the benefit

of this legislation.” At the public hearing on the

bridge August 8, 1939, Mr. Cocke, General Counsel

of the Receivers of Seaboard, was present and called

attention to the pendency of this legislation (R.424).

The Act was first passed in July 1939 but failed to

receive the approval of the President. It was passed

a second time and vetoed by the President and then

passed June 21, 1940, over the veto (R. 402, 403).

Simpson, Chief Engineer of Seaboard, testified that

it requested the extension of time to begin the work

on account of the pendency of the Truman-Hobbs leg-

islation (R.183).

Seaboard did nothing in response to the order of

the Secretary of War of October 17, 1939. The last

order was passed on February 13, 1946. Four years

and 4 months afterwards the War Department finally

approved the plans. As early as 1934 the maritime

interests of the port complained of the hazardous con-

ditions of the bridge and continually pressed for action.

The Court of Appeals in its opinion (R.634) con-

ceded “The record does show that there have been long

standing complaints about the condition of the bridge

and that the correction of the conditions obstructing

navigation on the river has been long overdue.” (Km-

phasis ours).

The delay was profitable to Seaboard. The cost

of the bridge was allocated: to the United States,

$1,564,000, and to the Seaboard, $168,000, (Pan Am.

Ex. 5, R. 409).

(g) Our Contentions on this Question.

(1) The orders of the Secretary of War became

effective from their date and continued in effect no

matter how long a time the bridge owner might take

in complying with the order,or if the bridge owner

never complied with the order. From the date the

order was signed, the risks were the risks of the Sea-

board and not of the public.

(2) The application of the Seaboard to the Sec-

retary of War of April 23, 1937, to reconstruct the

bridge was an admission that the bridge was an un-

reasonable obstruction of navigation, and Seaboard is

estopped to deny this fact.

(3) Seaboard cannot take advantage of its pro-

crastination. During the delay, the risk was the Sea-

board’s and not the risk of the users of the navigable

waters.

»-

(4) Section 2 of the Truman-Hobbs Act provides:

“No bridge shall at any time unreasonably obstruct

the free navigation of any navigable waters of the

United States.” The words “at any time” give point

to the contention that when the Secretary of War

declared the bridge an unreasonable obstruction, it con-

tinued an unreasonable obstruction until the work was

completed in accordance with the orders of the Sec-

retary of War.

(5) Although the bridge was a lawful structure

when built, it did not remain a lawful structure on

account of changed conditions and the increased de-

mands of commerce and navigation. The duty is con-

tinuing to meet these new altered conditions.

(6) Under the evidence in this case and the ad-

mission of the Seaboard by its application of April

23, 1937, the bridge was an unreasonable obstruction

to navigation, and, therefore it was an unlawful struc-

ture.

(7) The Bridge Acts are important Federal leg-

islation in which the commerce and navigation of the

country is vitally interested. This case involves their

application and construction and the questions raised

in this petition should be settled by this Court.

2. The Channel was Shoal in the Approach to the Bridge

and Seaboard was responsible for this Condition.

The fathometer soundings of the channel approach-

ing the bridge (Pan. Am. Ex. 41 in specie) were made

April 4, 1950 or two weeks before the collision (R.235).

A cross mark on the first sheet shows the location of the

bridge and the depth 26 feet (R.235). 1,000 feet

below the bridge the depth is 30 or 31 feet. The chan-

nel becomes shallower as the bridge is approached.

As you go through the bridge the depth is about 26

feet. ‘There is a shelf there (R.236). The last dredg-

ing in this locality was two thousand feet downstream

in 1949 (R.236). The District Judge found this shoal

condition existed and that it was a hazard (R. 69, 70),

and that the Chief Engineer of Seaboard had written

to the U. S. District Engineer, June 18, 1946, that

because of the insufficient penetration into the river

of the bridge pier footings, that it would be very un-

wise to attempt any dredging at this point before the

new bridge is constructed (R.45). The Court of Ap-

peals stated in its findings of fact: “It was established

at the time of the collision the depth of the water

below the bridge was 32 feet” (R.630). This would

give the impression that this was the depth 200 feet

from the bridge where the ship took the-sudden and

irresistible sheer which was one of the principal causes

of the collision. The channel depth elsewhere was im-

material. If the Court of Appeals had reference to

the place where the sheer took place, the statement

is contrary to the evidence. The concentric circles on

the fathometer chart are 333 feet apart (R.238). The

first page of the chart reading from left to right is

approaching the bridge upstream and this clearly shows

the depth as stated by the witness about 26 feet. The

tide was neap, a rise of 5 feet (R.285).

3. The Court of Appeals found contrary to the evidence

that the ship was negligently navigated.

(a) The Court of Appeals ignored the findings

of fact of the District Judge on this question (Find-

ings of Fact, Nos. 19-25; R. 70-73), contrary to the

practice in all the Judicial Circuits, including the 5th.

The rule is that the Court of Appeals must follow the

findings of fact of the District Judge who saw and

heard the witnesses, unless they are clearly erroneous.

This is an aggravated case of a clear departure from

this universal rule.

(b) The Angle of the Draw Span to the Channel.

It is variously expressed by the witnesses that a

vessel approaching the draw span would have to come

in at an angle, that the span was not in a direct line

with the channel, and that the bridge was at a bend

in the channel. (Groves, (R. 212, 215); Brown (R.

282); Moura (R.269); Savannah Port Authority (R.

439); Chief Engineer Seaboard (R.439).

She was an oil tanker fully loaded—440 ft. long,

66.8 ft. beam, gross tonnage 7701 (R. 20, 31); draft

28.3 feet (R. 245, 363).

(d) The evidence of the witness Ahern as to the

approach to the draw span.

The Court of Appeals adopted the evidence of the

witness Ahern. He is a retired Admiral in the Coast

Guard. Some years ago he commanded a Coast

Guard Cutter at Savannah, which was a boat 200

feet in length. He had never taken any ship through

this bridge (R. 141, 142). He was retained by Sea-

board for a fee to take observations at the bridge

and to testify in this case (R. 121, 122). His testi-

mony was that the proper manner for a ship to ap-

proach the bridge coming upstream was in a straight

line with the draw span beginning at a distance of

3/8 of a mile from the bridge, and that from his ob-

servation of eight ships that is the course they took

OEE rt on ae

(R.123), and he drew a straight red line on a chart

(Seaboard Ex. 1, “In Specie’) which he referred to

as the base course a ship should take. Ahern was

testifying from a deposition of the Pilot Clark and

the mate of the vessel (R.124). The deposition of

Clark was not put in evidence. This witness when he

testified had not heard the evidence of the Pan Ameri-

can witnesses in this case.

(e) The evidence of Pan American’s witnesses as

to the approach to the draw span.

The witness Groves, who was President of Savannah

Port Authority, testified contrary to the evidence of

Ahern as to the approach to the bridge (R. 217-219).

Captain Spencer, Manager of the Atlantic Towing

Company, a disinterested witness with 40 years ex-

perience on the Savannah River (R.223), testified that

the proper course for a ship the size of “Pan Mary-

land” would be slightly North of mid channel, as shown

on Pan American’s Ex. No. 40 “In Specie” and that

when within probably two lengths of the ship she would

begin to haul to South to get in line with the channel

(R.224). Spencer testified further that the approach

to the bridge as testified to by Ahern was not the

usual course; that it was incorrect, and that a ship

would not follow Ahern’s course (R.225).

Brown, a Savannah Pilot, testified the correct

course to take was as shown on Pan American’s Ex.

40 “In Specie”, that is the course usually followed,

and at about 1,000 to 1,500 feet you drop over to the

left. He had taken many ships through this bridge

(R.284).

Captain Moura was on the bridge of the “Pan Mary-

land.” He had been through this bridge on Pan Ameri-

can tankers about 30 round trips (R.268). The “Pan E

Maryland” took the usual and normal course on this &

occasion, that is, the Northern quarter of the channel -

and at a distance of approximately 1,000 feet below

the bridge the ship was swung gradually to the left

to bring it in line with the span, and when she com- ;

pleted the swing she was about 200 to 300 feet from

the bridge (R.269). This witness further testified é

that when the “Pan Maryland” went through the ‘

bridge August 3, 1951, she took the same course in ;

approaching the bridge as she did on the day of this

accident (R.274), yet the witness Ahern testified that ia

the “Pan Maryland” on August 3, 1951, took a straight ‘

course from 3/8 of a mile from the bridge (R.128,

129). Captain Moura testified (R.274) that if his

ship had taken the course stated by Ahern her stern ‘

would probably have gone aground. This is obvious :

from the Chart (Pan American’s Ex. No. 40, “In

Specie’) and the same Chart (Seaboard’s Ex. 3 In

Specie). 3/8 of a mile = 1,980 feet and the length

of the ship 440 feet = 2,420 feet. If a straight line

is drawn from the middle of the bridge span 2,420

feet it would put the ship on the very South side of

the channel very near shoal water. The channel is

400 feet wide and the range of the channel is North

of the bridge span.

Casey, Chief Mate of the ship, testified the normal

approach to the draw span was the right hand side

of the channel, and that a ship works from the right

to the left and straightens out when partly in the

draw and this was the course “Pan Maryland” took

on this occasion (R. 361, 363, 371, 383). This witness

had been through this bridge with fully loaded tankers

many times (R.361).

Pilot Clark (who was navigating the ship) testi-

fied that he approached the bridge a little to the right

of the center of the channel, as shown on the red line

on the Chart (Pan American Ex. 40 “In Specie’).

Now here were 6 witnesses whose testimony was

directly contradictory of the testimony of Ahern. Grov-

es, Spencer and Brown were disinterested witnesses.

Clark, Moura and Casey were on the ship. All of the

Pan American’s witnesses were experienced men. It

is reversible error for the Court of Appeals to adopt

Ahern’s testimony in preference to the credible testi-

mony of six other witnesses. Certainly the District

Judge’s Conclusions were not “clearly erroneous.”

With a large, heavy draft ship, and a narrow draw

span, navigators would naturally prefer a straight

course if that were safe and prudent. Ahern’s ob-

servations were taken from the bridge (R. 143).

The channel is 400 feet wide (Pan Am. Ex 3

(a) “In Specie”). Standing where he was, he might

think that a ship 2000 feet away was headed directly

for the center of the draw span, especially if the “wish

was father to the thought.” Moreover, the South line

of the channel runs very near the North abutment of

the span. If a ship headed directly for the center of

the draw span 2,000 feet away, she would be at target

109 on the chart and she would be out of the channel.

This is shown plainly on the chart (Seaboard’s Ex.

No. 3, and Pan American’s Ex. No. 40—both “In

Specie’).

As a matter of fact the manner in which the “Pan

Maryland” approached the bridge had nothing to do

with the collision. The event which caused the collision

(the sudden sheering of the skip) occurred when the

ship was only 200 feet from the bridge and the vessel

was pretty well lined up to go through the bridge (R.

269, 362).

(f) The maneuvers of the ship.

Clark, the pilot of the ship, an experienced pilot

of 32 years experience (R.243), testified the course he

followed in approaching the bridge was a little bit to

the right of the center of the channel, and when he

reached target 108 (which is 1,000 feet from the

bridge), he “began to drag the haul down toward the

opening of the span by starting the ship to swing to

the left and check her a little bit, swing a little bit

more to left and check her a little bit” (R.245). When

within 250 feet of the draw, the ship was pretty well

lined up to go through the draw and she began smell-

ing the bottom (R. 246, 247). In other parts of his

testimony he refers to the sheer of the ship (R. 248,

265). He was in an emergency (R. 262, 263). ‘The

ship had a tendency to go to the right and he had

given a hard over left wheel to correct this tendency

(R. 261). When the ship sheered the pilot put the

wheel hard to the right. The ship would not respond,

there was too much of a sheer, and then he ordered full

speed ahead (R. 248-249). The pilot further testified

he was proceeding slowly as usual (R. 256-261), that

his experience was that a full speed ahead would give

a greater pressure on the rudder and bring the vessel

out of the sheer. He stated “that is his practical ex-

perience” (R. 262, 263), and that he thought this was

the proper thing to do under the circumstances (R.

249). The vessel was too close and it was too much

of a sheer (R.248). To the question of Counsel sug-

gesting that the anchor might have been thrown out

and that full speed astern might have been given when

the ship sheered, the pilot answered that the anchor

could not have stopped the ship and that if he had

resorted to these maneuvers the ship would have prob-

ably knocked the bridge down (R. 261-263). The

pilot gave full speed astern when he saw the collision

was inevitable, to break the force of the impact (R.

248).

Moura, the Captain of the ship, testified: “We

were proceeding up the river in much the same manner

we generally do *** and we were following, I would

say, the Northern quarter of the channel to a distance

of approximately 1,000 feet or so below the bridge ***

from there on is a gradual swing to the left of port.

This is to bring the ship in line with the span of the

bridge *** Then by the time she completes the swing

I would estimate that we are from 200 to 300 feet

away from the bridge *** Now at this point you are

generally on a line to pass through the span” (R.269).

(g) The sudden sheer of the ship.

The pilot testified that coming up the river the

ship responded properly to her rudder (R.244). Cap-

tain Moura testified that about 250 feet of the bridge

“at the time we were coming left to line up for this

span and just about to steady the vessel to make the

passage through the span when the ship sheered, and

when a ship sheers, a ship sheers” (R.269). He testi-

fied that he meant by that term “sheers” “a turn that

is unanticipated and unavoidable” (R.270), that a sheer

is comparable to the skidding of an automobile, ex-

cept that with an automobile about 4,000 pounds is

involved, whereas with the vessel some 15 or 20,000

tons dead weight is involved (R.270). The pilot, im-

mediately she began to sheer, gave her a hard right

rudder. She did not come out of that sheer prior to

hitting the bridge (R.270). Checking later the Cap-

tain “found a fair shoal of water in the approaches

to the draw, and that the bridge does not properly

line up with the channel.” He said further “I think

that it (the shoal water) had everything to do with

the accident” (R.271). Captain Moura further testi-

fied as follows: “Then in lieu of just taking the left

rudder off, he (the pilot) immediately gave the order

hard right in an attempt to break the sheer, then the

engines were run full speed ahead to check her swing.

That also is in accordance with the principal of good

seamanship. The reason you do that is because the

thrust of the propeller against the rudder is the great-

est steerage force that a ship can have, and you first

try to change your heading by using your engines

on a full ahead bell *** It must be a full bell to assert

the greatest pressure on the rudder and I would say

that this action of putting the wheel from left to right

and to putting the engines full ahead was almost in-

stantaneous” (R.276). The order for full speed astern

was given just before the collision (R.271).

Casey, the Chief Mate, testified when the ship was

about 200 feet from the bridge she took a sheer to the

left and she did not come out of the sheer before the

collision (R.363). The sheer was caused by the deep

draft of the vessel, the vessel smelled or felt the bot-

tom and that caused the sheer (R. 365, 366). She

sheered to the left sharply when 200 feet from the bridge

(R.372). The opinion of the witness was that when

the sheer occurred the collision was inevitable whether

SRC RNa sot ws

she reversed her engines or the engines went full speed

ahead (R. 381, 382).

Brown, a Savannah Bar Pilot, testified: A vessel

is more likely to sheer at the approach to the bridge

on a neap tide, with a rise a little over 5 feet (R.285).

“Tf she was sheering to the left certainly I would give

her a right wheel” (R.286, 287). “Q. What order

would you give for the propeller full ahead or reverse?

A. You mean in close proximity to the bridge? Q. Yes.

A. A full ahead would be the only thing to do.

Q. Would that be for the purpose of getting better

steerage? A. It would be: for the purpose of break-

ing the sheer.” (R.287).

(h) The speed of the ship as she approached the

draw.

Casey testified the ship as it approached the bridge

was proceeding at slow speed, which was proper (R.

362). The Pilot, Clark, testified “I was going slow

ahead, a half ahead” (R.246). Spencer testified, “We

have a maximum limit of four miles per hour. It is

regulated by the authorities and that is about a proper

speed to go through a bridge” (R.225).

(i) The depth of the channel at the bridge com-

pared to the draft of the ship was sufficient to account for

the sheer.

The draft of the ship was 28.3 feet. The fatho-

meter soundings of April 4, 1950 (first sheet) shows

the depth of the channel as the bridge is approached

about 26 feet (Pan Am. Ex. 41 “In Specie”). The

District Engineer’s minimum depth of the channel

from the sea to S.A.L. bridge dated April 12, 1950,

shows the depth at the approach to the bridge varies

from 26 feet to 27 feet (Pan Am. Ex. 3 (a) “In

Specie”). The Pilot Clark testified in response to

questions from the Court, that he thought the sheer

was due to the silt that comes down the river and that

a lot of it accumulates there (R.254, 255).

(j) The photographs taken by Pan American of

S/S “Pan Maryland” as she approached the bridge on a sub-

sequent occasion, October 4, 1950.

This is Pan American’s Ex. 42 “In Specie.” There

are 13 photographs which are intended to show the

approach of the ship from 2,000 feet at intervals to

and through the bridge and which show the drawspan.

Particular attention is directed to Photo No. 6, which

shows the ship 200 feet East of the span, where the

sheer took place. This shows the ship was in close

quarters with the span and that if the ship sheered

at this point (as it unquestionably did) that the pilot

was confronted with a grave emergency.

The tide, weather and wind conditions at the

bridge were favorable to a safe passage through the

bridge. The ship would have passed through safely

but for the unavoidable sheer of the ship.

(k) The errors in the decision of the Court of Ap-

peals on this branch of the case are:

(1) The adoption of Ahern’s evidence against the

credible evidence of 6 other witnesses, 3 of whom were

disinterested.

(2) On the question of the sudden and unexpected

sheer of the ship, about which there can be no dispute,

the Court decides the case just as though this im-

portant faet did not exist.

(3) The ship approached the bridge in the cus-

tomary way. There was nothing negligent about the

approach.

(4) The approach to the bridge had nothing to

do with the collision. The ship was practically in line

with the draw span when the sheer occurred.

(5) The right rudder when the ship suddenly

sheered to the left and the signal for full speed ahead

were both proper according to all the evidence (except

Ahern who was not present). The Court of Appeals

disregarding wholly the indisputable evidence of three

experienced navigators, substituted its own opinion

(which was contrary to the evidence) as to how the

ship should have been navigated in this emergency.

(6) ‘There was an emergency, and contrary to the

opinion of the Court there was no negligence preced-

ing the emergency or after it. The order for full

speed ahead was under the circumstances certainly

not culpable negligence.

(7) The Court of Appeals should have decided

that the ship was without fault.

(8) It is respectfully submitted that the Court

of Appeals has so far departed from the accepted and

usual course of judicial proceedings, as to call for an

exercise of this Court’s power of supervision.

4. Even if it were conceded that the ship was negli-

gently navigated, the bridge being an unlawful structure or

an unreasonable obstruction to navigation, the Court should

have held that it was a case of mutual fault and that the

damage should be divided.

WuHueEnreEFoRE, Petitioner prays that a writ of cer-

tiorari may be directed to the Court of Appeals, to

bring up the record in said consolidated case and to

review the decision of that Court in said case, and

that the judgment of the Court of Appeals therein

may be reversed and set aside.

This 17th day of January, 1953.

Respectfully submitted,

Julian C. Sipple,

26 Bryan Street, East,

Savannah, Georgia.

T. M. Cunningham,

26 Bryan Street, East,

Savannah, Georgia.

A. R. Lawton,

26 Bryan Street, East,

Savannah, Georgia.

Herbert P. Reid,

76 Beaver Street,

New York, N. Y.

Proctors for Petitioner.

IN THE

SuPREME Court oF THE UNITED STATES

Pan American Petroleum & Transport Company,

Petitioner,

VS.

Seaboard Air Line Railroad Company,

Respondent.

BRIEF IN SUPPORT OF

PETITION FOR CERTIORARI

| ae Tien ar eet = | ee ne a

III

Vil

VIII

SUBJECT INDEX

MU a 1

If bridge was an unlawful structure, there

was a presumption of negligence against

RRR RODE Re Bn tong ae RAO Ree Re 2

eR I I icici 3

Orders of Secretary of War that bridge

obstructs navigation take effect from time

issued and continue in effect until altera-

I TE AI iiss ditrahceniiteidSiccienaintueeniinninintl 4

Application of Seaboard of April 23,

1937, establishes fact that bridge un-

reasonably obstructed navigation.................. 7

Procrastination of Seaboard cannot have

effect to continue bridge as a lawful struc-

ture. Reason for procrastination Truman-

Fe II oct raceccanteisnevenrinsiensecticores 9

The order of the U.S. Court in Seaboard

Bankruptcy proceeding had no effect

upon order of Secretary of War................ 10

The certificate of the District Engineer

Re I I nesses etcetera 11

Power of Secretary of War to withdraw

his order of October 17, 1939, doubted......13

The statement of Court of Appeals as to

large number of ships which passed

through the bridge without material

NESS RRR CER Soot PORN RECEP OOM 13

XII

XIII

XIV

XVI

XVII

XVIII

Suspsecr Inpex (Cont.)

PAGE

Even if ship negligently navigated, the

bridge being an unlawful structure, the

case would be one of mutual fault the

damages should be divided............................ 14

Decision of Court of Appeals contrary to

evidence and ignores findings of fact by

FS TES DRC ee 15

The approach to the bridge was proper

pS RSMO RIO SES fetes OS be RR 17

The maneuvers of the ship up to the

teme she took the sheer... 19

At the time the sheer took place the ship

had about straightened up to go through

NI easier cndentcretesiiangutnaotedébieneecintckcniween 20

The sudden and unexpected sheer

5k SESE An eee ne ee 21

The shoal of the channel in the approach

sae agiecicgpenenspe asinine tins 22

The orders of the pilot to give the ship a

hard right rudder and a full speed ahead

signal when she began to sheer, were

I nici eeearenenemntntanmenennneronsnse 23

The sudden choice of maneuvers which

was forced on the pilot by the sudden

sheer of the ship would not under the

circumstances be culpable negligence.......... 25

OS Bet io a oer a nanan 26

al ti i i aie tt hi i et ee is nc Lk,

nents tlhe ees ZS Intl A aS OR

INDEX

CASES CITED

PAGE

Adaison v. Gilliland, 242 U.S. 350, 353___.___-_-----_-_- 16

Atlee v. Packet Co., 21 Wall. 389_...........-....--_-._. 14

eS a seh tele eics neiciindan 14

Un NCR: SW ie Wah ikcat enceinditnsewneen 2

Dricee Os. ¥. WS, S06 US, ORs en 7

C. B. & Q. R. Co. v. Drainage Com., 200 U.S. 561, 590-_ 7

Coulia: 0 Fi 0s Ae Wenn noes. ----- 15

Commercial Molasses Co. v. N.Y. Barge Corp.,

Be ict nde nae 16

Davis v. Schwartz, 155 U.S. 631, 636_..................... 16

Delaware R. Co. v. Weeks, 293 F. 114, 122_._____--__--- 11

Escandon v. Pan American Foreign Corp., 88 F. (2d) 276. 15

Griffith v. Gardner, 196 F. (2d) 698, 701__.__-----------~-- 16

Greenleaf Lbr. Co. v. Garrison, 237 U.S. 251____-------- 4

Kulukundis Shipping Co. v. Amtorg Trading Corp.,

Be We orate ils ene iianiicinin 16

Louisville Bridge Co. v. U.S., 242 U.S. 409, 424 -._____ 3, 7

Lucayan Transports v. McCormick Shipping Corp.,

ee ee sn dieed dn kaa enna 15

Marguerite (The), 140 F. (2d) 491-_--__--_-__---_-------- 16

Matton Oil Transfer Corp. v. Dynamic, 123 F. (2d) 999, 1,000_ 16

Miller v. Lykes Bros. S.S. Co., 98 F. (2d) 185__.__------- 15

Miller v. Mayor of N.Y., 109 U.S. 385__...._.------------ 4

Monongahela Bridge Co. v. U.S., 216 U.S. 177_____-_-__-- 4

Ponneytvenia (Tis), 19 Wal. 236... 2... ...........- 2

People v. Metropolitan West Side El. Ry. Co.,

Be D8 eee 7

Peterson L. & T. Corp. v. N.Y. Central, 126 F. (2d) 993__._ 16

South Carolina State H.W. Dept. v. U.S., 78 F. Supp. 598-_ 3

Union Bridge Co. v. U.S., 204 U.S. 364, 403._._____ ____- 4, 11

United States v. Chandler-Dunbar Co., 229 U.S. 53________- 4

United States v. Forness, 125 F. (2d) 928, 942__.___._______ 16

United States v. Norfolk-Berkley Bridge Corp.,

4 RAR RRP as mene Oi Else ape 3, 14

United States v. St. Louis & Miss. Valley Transp. Co.,

BN A Ty, eich a Sisal ac hatha, enced 2

Acts of Congress and Text Books:

Special Act of Feb. 2, 1899_....--------------- 3, 4, 5, 13

IE Te ake ih ike neha a ee hemes 3, 4, 5, 13

June 21, 1940 (Truman-Hobbs Act) _ ..-__-- 3, 4, 5, 8, 13

4th Benedict’s Admiralty, §537 (6th Ed.)__-------------- 15

Opinions of Attorney Generals, Vol. 38, p.431____-__-_- 13

IN THE

SUPREME Court OF THE UNITED STATES

Ocroper Term 1952

Pan American Petroleum & Transport Company,

Petitioner,

Vs.

Seaboard Air Line Railroad Company,

Respondent.

Brief In Support of Petition for Certiorari

FOREWORD

We are mindful of the insistence of this Court on

brevity in the Petition and the Brief, but the Petition

is as long as it is because the Court of Appeals in its

opinion completely ignores the findings of fact of the

District Judge and decides the case contrary to the

evidence; and in order to show the extent to which

the Court of Appeals has gone in this respect it is

necessary to state with particularity the evidence in

the case. Also, in deciding the question whether the

bridge was an unreasonable obstruction of navigation

or an unlawful structure, the Court of Appeals refers

(1)

to only one isolated fact in this connection, when the

decision of this question depends on a long series of

events, which it was necessary to set out in the Petition.

The applicable parts of the Bridge Acts of Con-

gress are set forth in the Appendix to this Brief.

PART I

(Part I relates to the orders of the Secretary of

War and Part II to the navigation of the ship).

IF THIS BRIDGE WAS AN UNREASONABLE OB-

STRUCTION OF NAVIGATION OR AN UNLAWFUL

STRUCTURE THERE WAS A PRESUMPTION OF NEG-

LIGENCE AGAINST SEABOARD. IN ORDER TO OVER-

COME THIS PRESUMPTION SEABOARD WOULD HAVE

TO SHOW THAT THE CONDITION OF THE BRIDGE

COULD NOT HAVE CONTRIBUTED TO THE COLLI-

SION.

The rule is not merely that the burden is on Sea-

board to show that the condition of the bridge did not

contribute, but that it could not have contributed. The

photographs in evidence show that the ship struck

the bridge on the left hand side of the bow. The draw

span was 116 feet when it should have been at least

200 feet. With 84 more feet in the draw span the

collision would probably not have occurred.

This Court has decided this legal principle in the

following cases:

The Pennsylvania, 19 Wall. 125; Beldon v. Chase,

150 U.S. 674; U. S. v. St. Louis & Miss. Valley

Transp. Co., 184 U.S. 247, 255.

See also: South Carolina State H.W. Dept. v.

U. S., 78 F. Supp. 598; and the well-considered case

(decided by Judge Soper) U. S. v. Norfolk-Berkley

Bridge Corp., 29 F. (2d) 115.

The Court of Appeals did not follow these decisions.

THE BRIDGE ACTS

This bridge was built under the Special Act of

February 2, 1899. Section 18 of the Act of March

3, 1899, being a general Act, applies to this bridge.

Louisville Bridge Co. v. U. S., 242 U.S. 409, 424.

The Act of March 3, 1899, and the Act of June

21, 1940, (which are identical in this respect) provide

that when the Secretary of War has reason to believe

that the draw span of a bridge over navigable water

is an unreasonable obstruction of navigation, it shall

be his duty (after notice to the bridge owner and hear-

ing) to give notice to the bridge owner to so alter

the same “as to render navigation through or under

it reasonably free, easy and unobstructed.” The bridge

owner is given the right of appeal to the Courts from

the order of the Secretary of War. The Acts give

the Secretary of War the power to enforce his orders

by a criminal prosecution against the bridge owner.

The orders of the Secretary of War of October 17,

1939, and February 3, 1946, were never appealed

from by Seaboard.

Under both the Acts of 1899 and 1940 the plans

for the alterations of the bridge had to be approved

by the Secretary of War.

Speers eeseneriorpreneyscrn ncn

Under the Act of 1899 the Secretary of War when

he issues his order to make the alterations is required

“to prescribe in each_case a reasonable time in which

to make them.” The Act of 1940 drops this provision

and it should be noted that the order of October 1939

contained such provisions, but the order of 1946 does

not contain any provision as to when the work shall

commence or be completed.

The Special Act of 1899 under which the bridge

was built provides: “The said bridge shall be at all

times so kept and managed as to offer reasonable and

proper means for the passage of vessels through or

under said bridge.”

The Truman-Hobbs Act (Act of 1940) expressly

provided in Section 2 “No bridge shall at any time

unreasonably obstruct the free navigation of any navi-

gable waters of the United States.”

We understand that the Courts could not abate as

a nuisance a bridge across a navigable stream erected

under an Act of Congress, Miller v. Mayor of New

York, 109 U.S. 385; and that the decisions of the

Secretary of War made within the scope of these Acts

and pursuant to the procedure prescribed therein are

not subject to judicial review, except in the manner

stated in the Acts. Union Bridge Co. v. U. S., 204

U.S. 364; Monongahela Bridge Co. v. United Staies,

216 U.S. 177; U. S. v. Chandler-Dunbar Co., 229

U.S. 53; Greenleaf Lbr. Co. v. Garrison, 237 U.S. 251.

III

THE ORDERS OF THE SECRETARY OF WAR THAT

THE BRIDGE IS AN UNREASONABLE OBSTRUCTION

OF NAVIGATION TAKE EFFECT WHEN THEY ARE

ISSUED AND CONTINUE IN EFFECT UNTIL THE AL-

TERATIONS ARE MADE AS REQUIRED BY THE

ORDER.

The orders are in two parts, (1) a pronouncement

that the bridge is an unreasonable obstruction of navi-

gation, and (2) that the bridge owner shall make the

designated alteration to remove the obstruction.

The order goes into effect the date it is issued,

and the bridge thereupon, ipso facto, becomes an un-

lawful structure. If the pronouncement that the bridge

unreasonably obstructs navigation, does not become

effective on the date it was issued, when does it be-

come effective? Necessarily this part of the order

must continue in effect until the alterations are made.

When the alterations are made and not before does

this part of the order become “functus officio”. Sea-

board argues that it could not make the alterations

required by the orders until the plans and specifica-

tions for the new bridge are approved by the Secretary

of War and, therefore, in the meantime, Seaboard

not being in default, the bridge is not an unreasonable

obstruction of navigation and an unlawful structure.

There is nothing in the orders of the Secretary of

War or in the Bridge Acts which would permit such

an interpretation. The Truman-Hobbs Act (Act of

1940) expressly provides that “No bridge shall at any

time unreasonably obstruct, ete.”; therefore, when the

Secretary of War pronounces the bridge an unreason-

able obstruction, it then and there becomes an unlaw-

ful structure.

The Court of Appeals in its decision of this branch

of the case considered only the order of the Secretary

of War of February 13, 1946, and the fact that not

a SL ee a! a ee ee el

until June 26, 1950, was Seaboard advised by the

Department of the final approval of the plans, which

was 2 months after this accident happened. On these

facts the Court of Appeals held that when the acci-

dent happened the bridge was not an unlawful struc-

ture (R.634). This seems to us a perfect example

of a non-sequitur. The question of whether or not

Seaboard was in default has nothing whatever to do

with the fact that the bridge was an unlawful struc-

ture when the accident happened. In the natural course

of events it would take considerable time for Seaboard

after the approval of the plans to actually build the

new bridge. The argument of Seaboard and the deci-

sion of the Court of Appeals carried to their logical

conclusion would mean that the order of the Secretary

as to the bridge being an unreasonable structure would

remain dormant until Seaboard made the alteration.

But when Seaboard made the alteration the order

would be “functus officio” and the bridge would, there-

fore, never be an obstruction of navigation from the

time the order was passed until the bridge was com-

pleted. This particular order was issued February 13,

1946, and the approval of the plans was given June

26, 1950. The argument of Seaboard and the decision

of the Court of Appeals is that this bridge was not

an unreasonable obstruction of navigation during the

4 years and 4 months which elapsed from its date until

the approval of the plans. This decision is the funda-

mental error of the Court of Appeals.

The risks of the hazards of the unreasonable ob-

struction of navigation were from the date of the order

of the Secretary of War until the hazard was removed

the risks of the Seaboard and not the risks of the

users of the navigable waterway.

“The bridge and draws should be so constructed

as not to at any time interrupt navigation” (p.419).

Louisville Bridge Co. v. United States,

242 U.S. 409.

The following case was a suit in equity against the

United States to recover the increased cost of a bridge

which the Secretary of War had required to be altered.

The Court said (p.479) “From this we conclude that

the withdrawal by Congress of its assent to the main-

tenance of the bridge when properly made is for all

purposes of this case equivalent to the positive enact-

ment that from the time of such withdrawal the further

maintenance of the bridge shall be unlawful *** If

modifications are directed, assent is in legal effect

withdrawn, unless the required change is made.”

Bridge Co. v. United States, 105 U.S. 470.

Although the bridge when built was a lawful bridge,

it did not remain a lawful structure where by reason

of changed conditions and increased demands of com-

merce and navigation, it became an unreasonable ob-

struction, and the duty is continuing to meet the new

altered conditions. C.B. & Q.R. Co. v. Drainage Com..,

200 U.S. 561, 590; People v. Metropolitan West Side

El. Ry. Co., 285 Ill. 111; 121 N.E. 748.

THE APPLICATION OF APRIL 23, 1937, OF SEA-

BOARD TO INCREASE THE WIDTH OF THE DRAW

SPAN TO 200 FEET AND TO RELOCATE THE DRAW

SPAN, ESTABLISHES THE FACT THAT THE BRIDGE

WAS AN UNREASONABLE OBSTRUCTION OF NAVI-

GATION, AND ESTOPS THE SEABOARD.

This application to the Secretary of War (R.

408, 212, 312) was induced by the many protests

which had been made by the Maritime interests

at Savannah since 1934, and by the proposal of the

District Engineer to institute a hearing on the subject

on April 11, 1937 (R.407). The Secretary of War

approved the proposal of Seaboard, approved the plans,

and ordered the work to proceed and to be begun and

completed on certain dates (R.491). Seaboard argues

that this was a mere permit and was not compulsory.

The proposal and acceptance by the Secretary of War

constituted an agreement. Seaboard never took any

action under this order except to procrastinate.

This agreement obviated the necessity of the Sec-

retary of War making any finding under the Act that

the bridge was an unreasonable structure.

In fact, therefore, the bridge was and continued

to be an unreasonable obstruction of navigation from

April 23, 1937. The fact being established, the Court

of Appeals should have decided the case on the theory

that the bridge was an unlawful structure.

Proctors for Seaboard argued ia their reply brief

in the Court of Appeals that the Truman-Hobbs Act

revoked this agreement of April 23, 1937, of Seaboard

to correct the hazards of the bridge and the order of

the Secretary of War thereon. The Truman-Hobbs

Act did exactly the contrary. It expressly under the

provisions of Sections 12 (a), (b) and (c) provided

that any bridge ordered by the Secretary of War

to be altered before July 1, 1939, which was not begun

or completed before that date should be entitled to the

benefits of the apportionment of the cost between the

United States and the bridge owner.

THE PROCRASTINATION OF THE SEABOARD

CANNOT HAVE THE EFFECT OF CONTINUING THE

BRIDGE AS A LAWFUL STRUCTURE AFTER ITS AD-

MISSION THAT IT WAS AN UNREASONABLE OB-

STRUCTION AND AFTER THE REPEATED ORDERS

TO ALTER THE BRIDGE BECAUSE IT UNREASON-

ABLY OBSTRUCTED NAVIGATION. THE REASON

FOR ITS PROCRASTINATION WAS THE PENDENCY

OF THE TRUMAN-HOBBS LEGISLATION.

Seaboard agreed April 23, 1937, to alter the bridge

(Pam. Am. Ex. 4, R.408; Groves, R.212; Rhodes,

R.312). It did absolutely nothing under this agree-

ment. When the hearing on the bridge came on August

8, 1939, Mr. Cocke, General Counsel of Seaboard,

was present and called attention to the Truman-Hobbs

Bill which was passed July 1, 1939, (R.424). This

Bill was vetoed by the President. It was passed a

second time and again vetoed by the President and

then passed over his veto June 21, 1940, (R.402, 403).

Simpson, Chief Engineer of Seaboard, admitted that

this legislation was introduced in Congress in 1937

(R.18); and that when Seaboard applied for the ex-

tension of time in February 1938 to begin the recon-

struction of the bridge, one of the reasons was the

fact that this bridge legislation was pending (R.182,

183).

The delay was profitable to Seaboard. The cost

of the reconstruction of the bridge was allocated: to

United States $1,564,000, and to Seaboard $168,000

(Pan Am. Ex. 5, R.409).

Seaboard could not procrastinate for its own advan-

tage and throw the hazard of the bridge on the users

of the navigable waterway.

The Court of Appeals in its opinion (R. 634)

said “The record shows that there have been long

standing complaints about the condition of the bridge

and that the correction of the conditions obstructing

navigation on the river has been long overdue.”

THE ORDER OF THE UNITED STATES COURT OF

JUNE 29, 1939, IN SEABOARD BANKRUPTCY PRO-

CEEDING HAS NO EFFECT UPON THE ORDER OF

THE SECRETARY OF WAR OF JUNE 21, 1937, PASS-

ED ON THE APPLICATION OF SEABOARD OF APRIL

23, 1937 (R. 408, 491).

The substance of this order is contained in a letter

from the Receiver of Seaboard of March 27, 1940,

(R.507). The order of Court was that in view of

the depression in railway earnings and the costs of the

work, the matter should be left open until the further

order of the Court. There was never any further

order of Court. The order related to the matter stated

in the above heading. It was not communicated to the

War Department until 9 months after the order was

passed. Neither the Secretary of War nor any of the

Maritime interests at Savannah were parties to the

proceeding or notified. It is apparent from the last

paragraph of the Receiver’s letter that Seaboard was

sparring for time, on account of the pendency of the

Truman-Hobbs legislation.

Ordinarily, we would not think it necessary to point

out that this Court order could not set aside the order

of the Secretary of War of June 21, 1937, but Proc-

tors of Seaboard say in their reply brief in the Court

of Appeals “Appellee does not explain on what basis

it would be possible to hold Seaboard liable for the

action of its Receiver in obeying the valid order of

the Court denying him permission to proceed with

the alteration.” We are not concerned with the internal

affairs of the Seaboard Bankruptcy. As we have here-

inbefore pointed out, the orders of the Secretary of

War cannot be controlled or affected by the Courts,

where the bridge owner does not avail himself of the

appeal to the Courts furnished by the Bridge Acts.

Seaboard could not throw the hazards of the bridge

on the public by this simple expedient.

The excuse that the Receivers did not have suffi-

cient funds to do the work is not a valid excuse, so

far as the effectiveness of the orders of the Secretary

of War are concerned. Union Bridge Co. v. United

States, 204 U.S. 364, 403; Delaware R. Co. v. Weeks,

293 F. 114, 122.

VII

THE CERTIFICATE OF THE DISTRICT ENGINEER

OF JANUARY 18, 1951.

No comment on this certificate (R.50) would seem

to be necessary, but for the fact that Proctors for

Seaboard in their reply brief in the Court of Appeals

emphasize it. The certificate is merely a recital of the

orders of the Secretary of War, all of which are re-

cited elsewhere in the record. The certificate concludes

with the statement “that Seaboard Air Line Railroad

Company was not then on the 22nd day of April

1950 (the date of this accident) in default as to any

lawful order of the Secretary of the Army for the

Sah ae Relea ern

modification or replacement of the bridge.” The legal

conclusions of the Engineer are not binding on any-

one, especially when they are incorrect. He made

another certificate dated February 21, 1951 (R.47),

which referred to the approval of June 21, 1937, by

the Secretary of War of the voluntary application of

Seaboard to alter the bridge, in which approval the

Secretary approved the plans submitted by Seaboard

and ordered the alterations of the bridge to begin

within 8 months (subsequently extended to June 15,

1939) and to complete the work within 3 years (R.491).

There was no conclusion in this certificate that Sea-

board was not in default.

As we have previously herein argued, the fact that

Seaboard was not in default on the order of February

13, 1946, does not suspend or affect the pronounce-

ment on that date that the bridge was an unlawful

structure. The said certificate of January 18, 1951,

states that the Chief of Engineers of the Army ordered

the Seaboard to submit the specifications for the altera-

tions not later than March 27, 1950, subject to the

approval of the Chief of Engineers, and that the bids

were approved June 22, 1950. Did the bridge cease

to be an obstruction to navigation during the 4 years

and 4 months that Seaboard and the Chief of Engi-

neers dawdled over the plans and specifications? We

think not Neither the Chief of Engineers nor Sea-

board could affect the validity and the vitality of the

order of the Secretary of War that the bridge was

an unreasonable obstruction of navigation on Feb-

ruary 13, 1946. It did not become any the less an

unreasonable obstruction of navigation by the lapse of

time. The question whether Seaboard was or was not

in default as to the order of February 13, 1946, had

no effect upon the order that the bridge was an un-

reasonable obstruction of navigation.

Vill

IT MAY BE SERIOUSLY DOUBTED WHETHER THE

SECRETARY OF WAR HAD ANY AUTHORITY TO

WITHDRAW HIS ORDER OF OCTOBER 17, 1939, OR

TO GRANT ANY EXTENSION OF TIME FOR MAKING

ALTERATIONS.

“The Secretary of War is without authority to

grant a Railway Company an extension of time for

making alterations specified in an order.”

Opinions of Attorney Generals, Vol. 38, p.431.

The Bridge Acts make it the duty of the Secretary

to declare the bridge an unreasonable structure when

he has reason to believe it is. When he does so after

notice and hearing and there is no appeal from the

order, it becomes a final judgment. It is a matter

of discretion with the Secretary of War whether he

will prosecute the bridge owner criminally, who does

not comply with the order.

THE STATEMENT BY THE COURT OF APPEALS

AS TO THE LARGE NUMBER OF SHIPS WHICH PASS-

ED THROUGH THE BRIDGE WITHOUT ANY MATE-

RIAL DAMAGE.

The Court of Appeals makes a statement with

reference to this matter in two places in its opinion

(R. 628, 634). We do not perceive the relevance of

this in view of the orders of the Secretary of War

5 oe

ihe

that the bridge on account of the narrow width of

the draw span obstructed navigation. We call atten-

tion to the evidence of Commander Brill (R. 214. 295)

in which he names four ships which came in contact

with the bridge, and the statement of Groves (R.216)

who names an additional ship which was in difficulty

with the bridge. Brown (R.283) stated he had many

close shaves, and Spencer (R.228) stated “The bridge

is a hazard to large ships under the best of conditions.”

The point is that while many ships passed through

the bridge without contact with the bridge, yet oc-

easionally ships did come in contact with the bridge,

and the fact that they may merely scraped it, does

not mean that the bridge was not a hazard. But we

repeat, what has this to do with the case after the

Secretary of War pronounces the bridge an unreason-

able obstruction of navigation?

EVEN IF IT WERE CONCEDED THAT THE SHIP

WAS NEGLIGENTLY NAVIGATED, THE COURT OF

APPEALS SHOULD HAVE DECIDED THE UNLAWFUL

BRIDGE WAS A CONTRIBUTING CAUSE OF THE DAM-

AGE AND THE CASE BEING ONE OF MUTUAL FAULT

THE DAMAGES TO THE SHIP AND THE BRIDGE

SHOULD BE DIVIDED.

The rule in Admiralty of division of damages in

case of mutual fault where two ships are involved,

applies to a case of a collision of a ship with a bridge

or other stationary object. Atlee v. Packet Co., 21

Wall. 389; U. S. v. Norfolk-Berkley Bridge Co., 29

F. (2d) 115, (hn. 14 and 15); Baker Brothers, 260

F. 659.

PART II

(This Part relates to the navigation of the ship.

Most of the evidence is either quoted or cited in the

Petition for Certiorari).

THE DECISION OF THE COURT OF APPEALS IS

CONTRARY TO THE OVERWHELMING EVIDENCE IN

THE CASE AND COMPLETELY IGNORES THE FIND-

INGS OF FACT OF THE DISTRICT JUDGE WHO SAW

AND HEARD THE WITNESSES.

We maintain that the evidence quoted and cited

in the Petition for Certiorari demonstrates that the

Court of Appeals decided this case contrary to the

evidence and totally disregarded the findings of fact

of the District Judge which were supported by the

great weight of the evidence.

The rule in all of the ten Judicial Circuits is that

where the District Judge saw and heard the witnesses

(as did the District Judge in this case), that the Court

of Appeals must follow the findings of the District.

Judge, unless they are clearly erroneous.

4th Benedict’s Admiralty, §537 (6th Ed.), cites

cases from each of the ten Judicial Circuits (including

the 5th) to this effect.

The following cases were decided by the 5th Cir-

cuit Court of Appeals, in which one or more of the

Judges who decided this case, sat: Colvin v. Kuku-

sai, 72 F. (2d) 44; E'scandon v. Pan American Foreign

Corp., 88 F. (2d) 276; Miller v. Lykes Bros. S.S. Co.,

98 F. (2d) 185; Lucayan Transports v. McCormick

Shipping Corp., 188 F. (2d) 202, 205.

See also cases from other Circuits as follows:

Peterson L. & T. Corp. v. N.Y. Central (Judge

L. Hand), 126 F. (2d) 993; Matton Oil Transfer

Corp. v. Dynamic, 123 F. (2d) 999, 1000; The Mar-

guerite, 140 F. (2d) (7th C.C.A.) 491; Commercial

Molasses Co. v. N.Y. Barge Corp., 114 F. (2d) 248,

250; Griffith v. Gardner, 196 F. (2d) (9th C.C.A.),

698, 701.

Judge Frank in the 2nd Circuit expressed the

principle tersely, thus: “We do not sit as triers of the

facts. In the light of Admiralty Rule 46%, it is for

the trial Judge, not for us, after hearing the witnesses

to pass on the weight of the evidence, consider ques-

tions of credibility and make findings. In this case,

as the findings are not clearly erroneous, we cannot

disturb them.”

Kulukundis Shipping Co. v. Amtorg Trading Corp.,

126 F. (2d) 978, 980.

“An impeccably ‘right’ legal rule applied to the

‘wrong facts’ yields a decision which is as faulty as

one which results from the ‘wrong’ legal rule to the

‘right facts’ ”.

United States v. Forness, 125 F. (2d) 928, 942.

This is the rule when an Admiralty case is ap-

pealed to the Supreme Court.

Davis v. Schwartz, 155 U.S. 631, 636.

And is the general rule in all judicial proceedings.

Adamson v. Gilliland, 242 U.S. 350, 353.

XII

THE APPROACH TO THE BRIDGE WAS THE

PROPER AND USUAL APPROACH.

(a) The river runs at this point upstream East

to West and the bridge crosses the river from the

Savannah side South to North. The draw span is on

the extreme South end of the bridge and the South

abutment on which the span rests is near the South

shore. It is variously expressed by the witnesses that

a vessel approaching the draw span of the bridge

would have to come in at an angle, that the draw

span was not in direct line with the channel (R. 212,

215, 262, 269, 439); Chief Engineer of Seaboard

(R.488).

The ship was an oil tanker fully loaded 440 ft.

long, 66.8 ft. beam, and drawing 28.3 feet. The Court

of Appeals decided that the ship approached the draw

span on the wrong course, and adopted the evidence of

the witness, Ahern, who had been an Admiral in the

Coast Guard, and who observed the approach of 8

different vessels to this bridge. He at one time op-

erated a Coast Guard Cutter at Savannah but had

never been through this bridge. He was retained by

Seaboard for a fee to watch ships at the bridge as

they approached it and to testify for Seaboard in this

ease (R.121,122).

(b) Ahern’s Chart.

This is Seaboard’s Exhibit 1 “In Specie”. It does

not show the location of the channel nor the depths

in the river. Ahern simply started at a point 3/8 of

a mile down river and drew a straight line from that

point through the draw span of the bridge, disregard-

ing wholly the fact that the draw span is at an angle

to the channel. Seaboard’s Exhibit 3 “In Specie”

shows the channel and the depths of the river and

the second page of this Exhibit shows the scale is 500

feet to the inch. Pan American Ex. 40 “In Specie”

is the same map as Seaboard’s Exhibit 3, and shows

the proper course with a red line slightly to the North

of the middle of the channel which, on the chart, is

indicated by the word “Range”. Capt. Moura of the

“Pan Maryland” testified (R.274) that if his ship

had started in a straight line for the drawbridge 3/8

of a mile from the bridge, the stern of his ship “would

have been something like 2300 feet from the bridge

and I think the way that span aligns itself with the

channel of the river that the stern of the vessel would

be aground, I am not sure, but I think so.” Looking

at Exhibit 40 “In Specie” 3/8 of a mile from the

bridge, plus the length of the ship, would have been

2420 feet from the bridge opposite target 109 and

a straight line from that point to the bridge would

put the ship a little to the South of the channel and

into shoal water. The channel is 400 feet wide and

as this bridge is at an angle to the channel, obviously

from the chart the proper and safe way to approach

the bridge would be on a course a little to the North

of the middle of the channel.

by a red line.

Six witnesses testified that this was the usual and

proper course. Groves, who as President of Savan-

nah Port Authority, was familiar with the river

and the bridge, and a wholly disinterested witness;

Spencer, a disinterested witness, who had been a Sav-

annak: River pilot with 40 years’ experience and who

had been through the bridge many times; Brown, a

Savannah River pilot who had no connection, what-

ever, with this accident; Clark, the pilot of the ship;

Capt. Moura, who was on the ship standing beside

the pilot, and who had been through the bridge on 30

round trips; and Casey, the first mate who was stand-

ing on the foc’slehead (R.360), and who had made

several round trips through this bridge. Here were

6 witnesses, all of whom flatly contradicted Ahern,

3 of them absolutely disinterested and familiar with

the river and conditions at the bridge, and yet the

Court of Appeals adopted the evidence of Ahern, when

under the universal rule it should have adopted the

testimony of the Pan American witnesses. ‘The Dis-

trict Judge upheld the 6 witnesses above mentioned

in his findings of fact, Nos. 19-25 (R.70-73) and his

conclusions of law thereon, Nos. 1,2.3, (R.73-74). The

Court of Appeals could not lawfully under the evi-

dence in this case, hold that the findings of fact of

the District Judge “were clearly erroneous.” The wit-

ness Ahern made his observations from the bridge,

but the evidence does not show where he was standing

on the bridge. It is quite possible that his observa-

tions of the movements of the ships which began 3/8

of a mile away were mistaken. At any rate he was

an observer, whose “wish was father to the thought.”

XIII

THE MANEUVERS OF THE SHIP UP TO THE TIME

SHE TOOK THE SHEER.

The evidence on this subject is marshalled in the

Petition for Certiorari at pages 17, 18. The undisputed

evidence on this subject is briefly as follows: The ship

was proceeding slightly North of the center of the

espa M re ae Li

MEARE RE RONG ES

channel (which was the usual course). In order to

get over to the draw span which was on the South side

of the river at an angle to the channel at about a

distance of 1,000 feet at Target 108 on the Chart

(Pan Am. Ex. 40 “In Specie’), the pilot gave the ship

a left wheel, and as the ship showed a disposition to go

to the right, the pilot gave her a hard wheel to left to

bring her in line with the bridge and at this point the

ship took the sudden sheer hereinafter referred to.

The maneuvers of the ship from the right side of the

center of the channel to get in line with the bridge

span, Proctor for Seaboard describes as “complicated

maneuvers.” The complication was in the situation of

the draw span with reference to the channel and not

in the manner in which the ship approached the draw.

There was no evidence to refute our contention that

the ship was properly maneuvered up to the time of

the sudden sheer.

XIV

AT THE TIME THE SHEER TOOK PLACE WHICH

WAS THE ACTIVATING CAUSE OF THE COLLISION,

THE SHIP HAD ABOUT STRAIGHTENED UP TO GO

THOUGH THE DRAW.

The sheer took place when the ship was about 200

feet from the draw span. The pilot testified, that

when within about 200 feet of the bridge he “was

pretty well lined up to go through the bridge” (R.

247). Capt. Moura testified (R.269) “At the time we

were coming left to line up for the span and just about

to steady the vessel to make the passage through the

span when the ship sheered, and when a ship sheers, a

ship sheers.” Casey, the Chief Mate, testified that when

the ship was about 200 feet from the bridge she sheered

sharply to the left. As a matter of fact, the manner

in which the ship approached the bridge had nothing

whatever to do with the collision. The Court of Ap-

peals made much of it and decided the question ab-

solutely contrary to the evidence.

THE SUDDEN AND UNEXPECTED SHEER OF THE

SHIP, WHICH WAS THE ACTIVATING CAUSE ‘F THE

COLLISION.

The evidence on this subject is marshalled on pages

18, 19, 20 of the Petition for Certiorari, and need

18, 19, 20 of the Petition for Certiorari, and need not be

elaborated here. There is absolutely no evidence to con-

tradict the undisputed evidence of the people on the ship

that when within 200 feet of the bridge she suddenly

and unexpectedly sheered to the left. The captain testi-

fied (R.270) that he meant by that term “sheers”, a turn

that is unanticipated and unavoidable.” He compared it

to the skidding of an automobile, the difference being

that when an automobile skids, about 4,000 pounds

is involved, but when a ship sheers, 15 to 20 thousand

tons dead weight is involved. The fact of the sheer

is indisputable. The Circuit Court of Appeals mini-

mized it as much as possible, by saying the pilot should

have known of the conditions at the approaches to the

bridge. Of course, he knew that the water was shoal

at the approach to the bridge—this was a condition

he had to meet or not go through the bridge. It was

not his fault that the ship sheered. It was not the

usual or customary thing for the ship to sheer. But

it is well known that ships will occasionally sheer when

they are smelling the bottom as this ship was doing

on this occasion.

The sheer brought about an emergency (all the

witnesses testify to this) which the navigation of the

ship neither caused nor contributed to. There is not

any evidence from which the contrary could be inferred.

XVI

* THE SHOAL OF THE CHANNEL IN THE AP-

PROACH TO THE BRIDGE.

The Court of Appeals states in its opinion (R.632)

that Seaboard was not responsible for the shoal at

this point. .

The facts as to this matter are marshalled at pages

11, 12, 20 of the Petition for Certiorari. (See also

District Judge’s findings of fact Nos. 17 and 18 (R.

69,70) and Conclusions of Law thereon, Nos. 3 and 5

(R.74,75) ). The channel at this point had not been

dredged for a long time. June 18, 1946, the Chief

Engineer of Seaboard wrote the District Engineer

suggesting that it would be very unwise to dredge

the channel at the approach to the bridge on account of

the elevation of the pier footings (R.46). The last

dredging in this locality was in 1949, 1,000 feet down-

stream (R.236).

The fathometer soundings at this point made April

4, 1950, two weeks defore this collision (Pan Am.

Ex. 41 “In Specie”) show a depth of the channel

within 200 feet of the bridge, 26 feet. A crossmark

on this Exhibit shows the location of the bridge (R.

235). The first page of Pan Am. Ex. No. 8 (a) “In

Specie,” which is the District Engineer’s Chart of the

channel depths from the sea to the Seaboard Bridge,

shows “S.A.L. Bridge to 1500 yds. S.E. 26 and 27

feet” and a foot note says “In the immediate vicinity

of and through the S.A.L. Bridge the controlling

depth is 27 feet. The remainder of the channel is 31

feet.” The sheer took place 200 feet from the bridge

and the fathometer soundings show 26 feet. Harris,

the employee of the District Engineer’s office, who

made the soundings testified (R.236) 1,000 feet from

the bridge the depth at the right of the channel is 30

or 31 feet. It becomes shallower as the bridge is ap-

proached and as you go through the bridge it is 26

feet—“‘that is a shelf like in the bridge area.” The ship

was drawing 28.3 feet. The tide was neap about a 5

foot rise (R.285). This heavy laden ship was un-

doubtedly smelling the bottom when she sheered. Capt.

Moura checking the channel after the accident, “found

a fair shoal of water in the approaches to the draw.”

Whoever was responsible for the shallow water at

the bridge, the ship was not responsible for this con-

dition; if anyone was responsible it was the Seaboard.

The Court of Appeals in its statement of the facts

in the footnote to its decision (R.630) states “It was

established at the time of the collision, the depth of

water below the bridge was 32 feet. The draft of the

ship was 28.3.” This was only a half truth. Below the

bridge the channel depth was 31 feet, but in the ap-

proaches to the bridge where the sheer took place the

depth was 26 feet.

XVII

THE ORDER OF THE PILOT TO GIVE THE SHIP

A HARD RIGHT RUDDER AND A FULL SPEED

AHEAD SIGNAL WHEN SHE BEGAN TO SHEER.

The Court of Appeals severely condemns the pilot

for giving these orders and holds the pilot responsible

for the collision. When these orders were given the

ship had a hard left rudder to bring her in line with

the Bridge. At this moment she took the sudden sheer

to the left. The facts as to these orders are marshalled

at pages 18, 19, 20 of the Petition for Certiorari. The

testimony of the pilot, and he is supported by the Cap-

tain of the ship and by Brown, a Savannah Bar Pilot, is

that the ship was in an emergency when she sheered

and that as the sheer headed the ship to the left, he

gave her a right hand rudder and a full speed ahead.

The reason the full speed ahead was given was that

the full speed would give a great pressure on the

rudder and with a hard right wheel it would give the

ship a chance to swing clear of the left side of the

bridge span towards which she was headed.

We have no apologies to make for the orders which

were given in this emergency. This is the evidence of

experienced seamen. The Court of Appeals does not

accept the evidence of these experienced seamen al-

though there is no evidence to contradict it. The evi-

dence is sound and reasonable. The Court of Appeals

relies on its own notions of seamanship rather than

on the indisputable evidence of practical men who

speak from their actual experience.

Ahern who was not on the spot and, of course,

knew nothing about the actual occurrence and testi-

fied before the Pan American witnesses and was not

recalled in rebuttal, testified (R.136): “The rudder

seemed to be working. She had too little speed steer-

ageway and she could not come back in that distance.

It takes quite a little to come back on the course,

and she did not have that steerageway, and she got

the full speed bell too late because she was still swing-

ing to the left.’ The witness on whom the Court of

Appeals relied completely went back on the Court’s

theory of good seamanship.

The ship necessarily approached the bridge at slow

speed. It was a hazardous passage for this large ship.

If she had approached at greater speed it would have

been claimed that her speed was too great. Casey, the

Chief Mate, testified she approached the bridge at slow

speed (R.362), so did the Pilot (R.225). Spencer

testified the maximum speed allowed by law was 4

miles per hour.

Everything was favorable for a safe passage of

the ship and but for the sudden sheer there would

have been no collision.

Before the bridge was struck, the pilot gave the

signal for full speed astern to check the force of the

blow (R.271). The photograph No. 6 of Pan Am.

Ex. 42 “In Specie” shows the close quarters of the

ship with the bridge when the sheer occurred.

XVIII

THE SHIP BEING IN A SUDDEN EMERGENCY ON

ACCOUNT OF THE SHEER, EVEN IF THE SUDDEN

CHOICE OF MANEUVERS WHICH THE PILOT TOOK

WAS ERRONEOUS, IT WOULD NOT BE CULPABLE

NEGLIGENCE AND THE LAW EXCUSES THE NAVI-

GATOR UNDER SUCH CIRCUMSTANCES.

There is abundance of authority to this effect. The

Court of Appeals gets around this well established

principle of law by holding (R.635) “We are con-

vinced that if there was a sheer it was of the pilot’s

own making, brought about by the negligent way and

manner in which he approached the draw, and the neg-

ligent maneuvering while trying to pass through, and

that its consequences, instead of being met and avert-

ed by careful navigation afterward were made more

potent for harm by the plain and inexcusable negli-

gence of the final full speed ahead order, which fling-

ing the ship down upon the bridge drove her with

great force and resultant damage against it.” This

is going pretty strong to say the sheer was of the

pilot’s own making. The evidence which the Court

of Appeals did not follow shows that there was no

antecedent negligence in the manner of the approach

to the bridge and that there was no subsequent negli-

gence when the sheer occurred, and that the order for

hard right rudder and full speed ahead were proper

and seamanlike under the circumstances and cannot

lawfully be charged as culpable negligence.

CONCLUSION

We respectfully submit that the Court of Appeals

in deciding this case contrary to the evidence and in

failing to accept the findings of fact of the District

Judge, which were not clearly erroneous, has so far

departed from the accepted and usual course of judi-

cial proceedings as to call for this Court’s power of

supervision.

We also respectfully submit that the decision of

the Court of Appeals that the bridge was not an

unlawful structure was a fundamental error of law,

and if it was the the judgment should have been for

Petitioner and against Respondent; and even if the

dei i Hg NO AAT AI AEE One 85 95 wt er eee ee a

ship had been negligently navigated the judgment

should in that event have been for a division of damages.

Respectfully submitted,

Julian C. Sipple,

26 Bryan Street, East,

Savannah, Georgia.

T. M. Cunningham,

26 Bryan Street, East,

Savannah, Georgia.

A. R. Lawton,

26 Bryan Street, East,

Savannah, Georgia.

Herbert P. Reid,

76 Beaver Street,

New York, N. Y.

Proctors for Petitioner.

Dated: January 17, 1953.

REAR PRE ENERO of

APPENDIA

The Seaboard Bridge was built under the Special

Act of Congress of February 2, 1899 (30 Stat. 813),

the material portions of which are as follows:

“An Act To authorize the construction of a

bridge across the Savannah River from the main-

land of Chatham County, Georgia, to Hutchinsons

Island, in said county.

“Be it enacted by the Senate and House of

Represeniatives of the United States of America

in Congress assembled, That the assent of the Unit-

ed States of America is hereby given to the Georgia

and Alabama Railway, a corporation incorporated

by the laws of the State of Georgia, its successors

and assigns, and such other persons as may be

associated with it, to construct and maintain a

bridge over the Savannah River from the mainland

to Hutchinsons Island, in the county of Chatham,

in the State of Georgia.

“Sec. 2. That the bridge shall be so con-

structed, by draw span or otherwise, that a free

and unobstructed passage may be secured to all

vessels and other water craft navigating said river.

That any bridge constructed under this Act shall

be built and located under and subject to such

regulations for the security of the navigation of

said river as the Secretary of War shall prescribe;

and to secure that object the said company shall

submit to the Secretary of War, for his examina-

tion and approval, the design and drawings of

the bridge, piers, and approaches, and a map of

the location, giving, for the space of at least one

mile above and one mile below the proposed loca-

tion, the topography of the banks of the river,

the shore lines at high water and low water, and

the direction and strength of the currents at all

stages, and the soundings, accurately showing the

bed of the stream, and the location of other bridge

or bridges, wharves, landings, or ferries, and shall

furnish such other information as shall be required

for a full and satisfactory understanding of the

subject; and until said plan and location of the

bridge are approved by the Secretary of War the

bridge shall not be commenced or built, and after

such approval by the Secretary of War the ap-

proved plans and designs for the bridge shall not

be deviated from or added to, either during the

construction or after the completion of the bridge,

until the proposed change shall have been sub-

mitted to the Secretary of War and received his

approval; and the said bridge shall be at all times

so kept and managed as to offer reasonable and

proper means for the passage of vessels through

or under said bridge, and if said bridge be built

with a draw said draw shall be opened promptly

upon reasonable signal for the passage of boats

or other craft, and whatever kind of bridge is

built the said company or corporation shall main-

tain, at its own expense, from sunset to sunrise,

such lights or other signals thereon as the Light-

House Board shall prescribe; and if at any time

the navigation of said river shall in any manner

be obstructed or impaired by the bridge authorized

by this Act to be constructed the Secretary of

War shall have authority, and it shall be his duty,

to require said company to alter and change said

bridge at its own expense in such manner as may

be proper to secure free and complete navigation

without impediment.

“Sec. 3. That any bridge built under this

Act and subject to its limitations shall be a law-

ful structure, ***

* * #

“Sec. 6. That the right to alter, amend, or

repeal this Act is hereby expressly reserved.

“Approved, February 2, 1899.”

ill

ACT OF MARCH 3, 1899, SECTION 18. (30 STAT.

1121, 1153; 28 U.S.C.A. §§494, 495).

“Sec. 18. That whenever the Secretary of

War shall have good reason to believe that any

railroad or other bridge now constructed, or which

may hereafter be constructed, over any of the

navigable waterways of the United States is an

unreasonable obstruction to the free navigation of

such waters on account of insufficient height, width

of span, or otherwise, or where there is difficulty

in passing the draw opening or the draw span

of such bridge by rafts, steamboats, or other water

craft, it shall be the duty of the said Secretary,

first giving the parties reasonable opportunity to

be heard, to give notice to the persons or corpo-

rations owning or controlling such bridge so to

alter the same as to render navigation through or

under it reasonably free, easy, and unobstructed;

and in giving such notice he shall specify the

changes recommended by the Chief of Engineers

that are required to be made, and shall prescribe

in each case a reasonable time in which to make

them. If at the end of such time the alteration

has not been made, the Secretary of War shall

forthwith notify the United States district attor-

ney for the district in which such bridge is situated,

to the end that the criminal proceedings herein-

after mentioned may be taken. If the persons,

corporation, or association owning or controlling

any railroad or other bridge shall, after receiving

notice to that effect, as hereinbefore required, from

the Secretary of War, and within the time pre-

scribed by him willfully fail or refuse to remove

the same or to comply with the lawful order of

the Secretary ef War in the premises, such per-

sons, corporation, or association shall be deemed

guilty of a misdemeanor, and on conviction thereof

shall be punished by a fine not exceeding five

thousand dollars, and every month such persons,

ne net Leen an aoe

corporation, or association shall remain in default

in respect to the removal or alteration of such

bridge shall be deemed a new offense, and sub- :

ject the persons, corporation, or association so ;

offending to the penalties above prescribed: PRro- ;

vipED, That in any case arising under the provi-

sions of this section an appeal or writ of error

may be taken from the district courts or from

the existing circuit courts direct to the Supreme

Court either by the United States or by the de-

fendants.”

NOSE TLE EER ae |

TRUMAN-Hopsss Act.

ACT OF JUNE 21, 1940, (54 STAT. 497; 33 U.S.C.A.

§§511-523).

“An Act To provide for the alteration of

certain bridges over navigable waters of the

United States, for the apportionment of the cost

of such alterations between the United States

and the owners of such bridges, and for other

purposes.

Be it enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled,

Definitions

Section 1. When used in this Act, unless

the context indicates otherwise—

The term ‘bridge’ means a lawful bridge over

navigable waters of the United States, *** used

and operated for the purpose of carrying railroad

traffic *** ,

Obstruction of Navigation

PAIL ETI DY

Sec. 2. No bridge shall at any time unreason-

ably obstruct the free navigation of any navigable

waters of the United States.

Notice, Hearings and Findings

Sec. 3. Whenever any bridge shall, in the

opinion of the Secretary, at any time unreasonably

obstruct such navigation, it shall be the duty of

the Secretary, after notice to interested parties,

to hold a hearing at which the bridge owner, those

interested in water navigation thereunder or there-

through, those interested in either railroad or high-

way traffic thereover, and any other party or

parties in interest shall have full opportunity to

offer evidence and be heard as to whether any

alteration of such. bridge is needed, and if so what

alterations are needed, having due regard to the

necessity of free and unobstructed water naviga-

tion and to the necessities of the rail or highway

traffic. If, upon such hearing, the Secretary de-

termines that any alterations of such bridge are

necessary in order to render navigation through

or under it reasonably free, easy, and unobstructed,

having due regard also for the necessities of rail

or highway traffic thereover, he shall so find and

shall issue and cause to be served upon interested

parties an order requiring such alterations of such

bridge as he finds to be reasonably necessary for

the purpose of navigation.

Submission and Approval of General Plans and Specifications

Sec. 4. It shall be the duty of the bridge

owner to prepare and submit to the Secretary,

within ninety days after service of his order, gen-

eral plans and specifications to provide for the

alteration of such bridge in accordance with such

order, and for such additional alteration of such

bridge as the bridge owner may desire to meet

the necessities of railroad or highway traffic, or

both. The Secretary may approve or reject such

general plans and specifications, in whole or in

part, and may require the submission of new or

additional plans and specifications, but when the

Secretary shall have approved general plans and

specifications, they shall be final and binding upon

all parties unless changes therein be afterward

approved by the Secretary and the bridge owner.

Contracts for Project; Guaranty of Cost

Sec. 5. After approval of such general plans

and specifications by the Secretary, and within

ninety days after notification of such approval,

the bridge owner shall, in such manner as the

Secretary may prescribe, take bids for the altera-

tion of such bridge in accordance with such general

plans and specifications. All bids, including any

bid for all or part of the project submitted by

the bridge owner, shall be submitted to the Sec-

retary, together with a recommendation by the

bridge owner as to the most competent bid or bids,

and at the same time the bridge owner shall sub-

mit to the Secretary a written guaranty that the

total cost of the project, including the cost of

such work as is to be performed by the bridge

owner and not included in the work to be performed

by contract, shall not exceed the sum stated in said

guaranty. The Secretary may direct the bridge

owner to reject all bids and to take new bids, or

may authorize the bridge owner to proceed with

the project, by contract, or partly by contract and

partly by the bridge owner, or wholly by the bridge

owner. Upon such authorization and fixing of the

proportionate shares of the cost as provided in

section 6, the bridge owner shall, within a reason-

able time to be prescribed by the Secretary, pro-

ceed with the work of alteration; and the cost

thereof shall be borne by the United States and

by the bridge owner, as hereinafter provided.

(Sections 6, 7 and 8 relate to apportionment of the

cost between the Government and the Bridge owner

and appropriations therefor).

PRAT UE AIEEE OD

Vil

Failure to Comply with Orders; Penalties; Removal of Bridge

Sec. 9. Any bridge owner who shall willfully

fail or refuse to comply with any lawful order of

the Secretary, made in accordance with the pro-

visions of this Act, shall be deemed guilty of a

misdemeanor and on conviction thereof shali be

punished in any court of competent jurisdiction

by a fine not exceeding $5,000, and every month

such bridge owner shall remain in default shall

be deemed a new offense and subject such bridge

owner to additional penalties therefor. In addi-

tion to the penalties above prescribed the Secre-

tary may, upon the failure or refusal of any bridge

owner to comply with any lawful order issued

by the Secretary in regard thereto, cause the re-

moval of any such bridge and accessory works

at the expense of the bridge owner; and suit for

such expense may be brought in the name of the

United States against such bridge owner and re-

covery had for such expense in any court of com-

petent jurisdiction. ‘The removal of any bridge

erected or maintain 4 in violation of the provisions

of this Act or the order or direction of the Sec-

retary made in pursuance thereof, and compliance

with any order of the Secretary made with re-

spect to any bridge in accordance with the pro-

visions of this Act, may be enforced by injunction,

mandamus, or other summary process upon ap-

plication to the district court of any district in

which such bridge may, in whole or in part, exist,

and proper proceedings to this end may be insti-

tuted under the direction of the Attorney General

of the United States at the request of the Secre-

tary.

Review of Findings and Orders

Sec. 10. Any order made or issued under

section 6 of this Act may be reviewed by the cir-

cuit court of appeals for any judicial circuit in

Vill

which the bridge in question is wholly or partly

located, if a petition for such review is filed with-

in three months after the date such order is issued.

The judgment of any such court shall be final

except that it shall be subject to review by the

Supreme Court of the United States upon certi-

fication or certiorari, in the manner provided in

sections 239 and 240 of the Judicial Code, as

amended. The review by such Court shall be limit-

ed to questions of law, and the findings of fact

by the Secretary, if supported by substantial evi-

dence, shall be conclusive. Upon such review, such

court shall have power to affirm or, if the order

is not in accordance with law, to modify or to

reverse the order, with or without remanding the

case for a rehearing as justice may require. Pro-

ceedings under this section shall not operate as a

stay of any order of the Secretary issued under

provisions of this Act other than section 6, or

relieve any bridge owner of any liability or penalty

under such provisions.

(Sec. 11 relates to rules and regulations).

Existing Provisions of Law.

Sec. 12. (a) The first sentence of section 4

of the Act entitled ‘An Act to regulate the con-

struction of bridges over navigable waters’, ap-

proved March 23, 1906 (U.S.C., 1934 edition,

title 33, sec. 494), and section 18 of the Act en-

titled ‘An Act making appropriations for the

construction, repair, and preservation of certain

public works on rivers and harbors, and for other

purposes’, approved March 3, 1899 (U.S.C., 1934

edition, title 33, sec. 502), shall be inapplicable

with respect to any bridge to which the provisions

of this Act are applicable, except to the extent

provided in this section.

(b) Any bridge, the construction, recon-

struction, or alteration of which was required by

an order of the Secretary issued prior to July 1,

1939, and was not completed on such date, and

in the case of which no penalties have accrued at

the time of the enactment of this Act, shall be

constructed, reconstructed, or altered as required

by such order, and not in accordance with the pro-

visions of this Act. In the case of any such bridge,

however, the Secretary shall apportion the cost of

the project between the bridge owner and the

United States, and payment of the share of the

United States shall be made, in the same manner

as if the provisions of this Act applied to such

construction, reconstruction, or alteration, subject

to the following limitations:

* %* *

subsection (b) applies) the construction, recon-

struction, or alteration of which was required by

an order of the Secretary issued prior to July 1,

1939, and was not begun before such date, shall

be subject to the provisions of this Act as though

such order had not been issued, and compliance

with the provisions of this Act and with such orders

as may be issued thereunder shall be considered to

constitute compliance with such order issued prior

to July 1, 1939, and with the provisions of law

under which it was issued.”

y SUSE = Deeb) ODETT LHRFUET EY UP ee y

/ q

; i

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1952.

No. 557.

Pan Amertcan PetTRoLEUM & TRANSPORT COMPANY,

Petitioner,

—-against—

Srapoarp Arr LINE Rarroap Company,

Respondent.

BRIEF FOR RESPONDENT SEABOARD AIR LINE RAIL-

ROAD COMPANY IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

E. OrmonpE Hunter,

Counsel for Respondent,

Seaboard Air Line Railroad

Company,

P. O. Box 525,

Savannah, Georgia.

Grorck W. WILLIAMS,

Of Counsel,

P. O. Box 566,

Savannah, Georgia.

Tur Court Press, 130 Cedar Street, N. Y. C.

INDEX.

ee sa ey Re ell re ere rer ee era aoe ear

Po eae sy furan tee Per eee ene

Bg re ee er ere ee

The Reasons for Denying the Writ ................

RRR cocci barat ta = ac ae re NT

Tasie or Cases Cirep:

Anaconda, The (C. C. A. 4), 164 F. (2d) 224 ........

Arwadne, The, 13 Wall. (80 U. 8.) 475 ..............

Maguaum Co, v. Coty, 262 U.S. 150... cc ci vesisecess

Orner Avutuorities Crrep:

Truman-Hobbs Act of June 21, 1940 (54 Stat. 497;

Se. Ey eee PRMD ek bc aks bys baway eo wasp ae

U. S. Code, Title 28, Section 347(a) (now Title 28,

= DEERE Figs Nak in ARS a Oe LAT os

St ee a cc ree

eae El ey Poems WE BO, BE ek id ve wedded na ees

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1952.

No. 557.

Pan American PetrrotevM & Transport Company,

Petitioner,

—against—

Sranoarnp Arr Link Rarmroap Company,

Respondent.

> a

BRIEF FOR RESPONDENT SEABOARD AIR LINE RAIL.-

ROAD COMPANY IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Opinions Below.

The opinion of the Court of Appeals for the Fifth

Cirenit (R. 625-635) is reported at 199 F. (2d) 761,

The findings of fact and conclusions of law of the

District Court for the Southern District of Georgia

(R. 61-82) are reported at 105 F. Supp. 958.

Jurisdiction.

The judgment of the Court of Appeals for the

Fifth Cirenit was entered on November 15, 1952 (R.

635). A petition for rehearing was denied on De-

eember 16, 1952 (R. 652). The petition for a Writ

of Certiorari was filed on January 19, 1953. The

petitioner invokes the jurisdiction of this Court under

U. S. Code, Title 28, Section 347(a), (now Title 28,

Section 1254(1)).

The Questions Presented.

The questions sought to be presented by the peti-

tioner are purely questions of fact. The case as unani-

mously decided by the Court of Appeals for the Fifth

Circuit presents no relevant or substantial question

of law.

The Reasons for Denying the Writ.

The Court of Appeals after a thorough review of

the evidence stated the facts as follows:

‘*About 12 o’clock noon on a bright clear day,

without the interference of wind, wave, or vessel,

the Tanker Pan Maryland, while endeavoring to

pass through the Seaboard drawbridge over the

Savannah River, struck the bridge at such speed

and with such force as to cause serious damage to

it and to the tanker itself’? (C. A. Opinion R.

625, 199 F. (2d) 761).

These facts are not disputed.

The Court of Appeals also said that the evidence

‘shows with crystal clearness’’ that the maneuvering

of the ship was negligent (R. 632, 199 F. (2d) 764).

The Court of Appeals continued saying:

‘‘Under these circumstances, where the active

and effective canse of the collision was the eulp-

ably negligent navigation of the vessel, if the

bridge had been, as it was not, an unlawful strue-

ture, if libellant had been, as it was not, re-

sponsible for the shoaling complained of, and the

shoaling, as it was not, had been a contributing

eause of the injury, the most that appellee could

possibly contend for would have been divided

damages”? (R. 632, 199 F. (2d) 764).

Continuing the Court held that even if it were as-

sumed as above, that the bridge was an “unlawful

structure’, there would be no basis on the facts in

this case for a division of damages. The Court said:

‘““When, as the record shows to be the case

here, the conditions claimed to be unlawful or

negligent are entirely passive and have existed

for many years to the knowledge of the moving

vessel; when, too, the evidence ts, as here, uncon-

tradicted that, while these conditions do tend to

make the passage more diffieult than if they did

not exist, a passage can be safely made under the

conditions if due care is exercised; there is no

basis in the record even for a division of the

damages in favor of the actively negligent mov-

ing vessel, much less for awarding it full damage”

(R. 632-633, 199 F. (2d) 765). (Emphasis ours.)

The Court pointed out that 1771 vessels, 670 of

which were owned or operated by Pan Ameriean, had

passed back and forth through this draw with only

one ship receiving any material damage; that the

pilot of the Tanker ‘*Pan Maryland” had taken hun-

dreds of vessels through the same draw ; that it was

a reasonably safe passage if conditions were favorable,

and that

“Tt was established by all of the evidence that at

the time of the collision the most favorable con-

as SO he eR ear a Gis s

ans,

—_ !

poke ENS

Basa

ditions existed for the passage, slack high waters,

no appreciable wind, daylight, and a_ perfect

visibility’? (R. 634, 199 F. (2d) 765).

As to the legal status of the bridge, the Court said:

‘The undisputed facts as to these matters,

however, do not support the finding in law that

at the time of the collision the bridge was an un-

lawful structure, or that its existence was in and

of itself negligent so as to authorize recovery in

favor of those who bungled and blundered their

way into collision with it’? (R. 633-634, 199 F.

(2d) 765).

Under this decision any question of technical le-

gality of the bridge is, we submit, irrelevant.

The petitioner, nevertheless, argues that the bridge

owner cannot escape sharing liability for the damage

resulting from this accident because of certain orders

made by the Secretary of the Army for modification of

the bridge. Prior orders having been rescinded, the

order in effect at the time of the collision was the order

of February 23, 1946. That order was issued under the

Truman-Hobbs Act of June 21, 1940 (54 Stat. 497; 33

U. 8. Code 511-523) which prescribes the procedure

to be followed by the bridge owner before undertaking

any modification of the bridge. It is undisputed, and

it was found by the District Court, that at the time of

the collision, the bridge was being maintained in

accordance with and conformed to lawful orders of

the Secretary of the Army (Finding 9, R. 50). By

order of the Chief of Engineers of the Army under

procedures set up under the Truman-Hobbs Act,

specifications calling for bids for the modification of

the bridge to accomplish the alteration ealled for by the

order of the Secretary of the Army of February 23,

1946 had heen submitted by Seaboard prior to March

27, 1950 (Finding 8, R. 50). A successful bid was not

designated and approved by the Chief of Engineers

until June 22, 1950, two months after the collision

(Finding 8, R. 50). At the time of the collision

Seaboard was not in default as to any lawful order

of the Secretary of the Army for modification or

replacement of the bridge (Finding 9, R. 50-51).

If Seaboard had proceeded with any modification

of the bridge prior to approval of a bid and authori-

zation by the Chief of Engineers, it would have

violated the following provisions of the Statute under

which the bridge was constructed :

‘After such approval by the Secretary of War

the approved plans and designs for the bridge

shall not be deviated from or added to, either

during the construction or after the completion

of the bridge, until the proposed change shall

have been submitted to the Secretary of War and

received his approval’? (30 U. S. Statutes at

Large, 813).

It would also have violated the provisions of the

reneral Act passed in the same year, 1899, stating:

“That when plans for any bridge or other strue-

ture have been approved by the Chief of

Engineers and by the Secretary of War, it shall

not be lawful to deviate from such plans either

before or after completion of the structure unless

the modification of said plans has previously been

submitted to and received the approval of the

Chief of Engineers and of the Secretary of War”

(33 U.S. Code § 401).

Petitioner’s argument is nevertheless that since the

Secretary’s order of February 23, 1946 was neces-

2 ata teat ads

PA SEN SERA TERNS

(seg avcgiane Hea

WARE. a es

Lie DORRE SG 215: GBD

sarily based on a finding that the bridge was ‘‘an

unreasonable obstruction’’, it results that from that

date the bridge was an ‘‘unlawful strueture’’ (Peti-

tioner’s Brief, p. 5) and that from that date all risks

were risks of Seaboard (Petitioner’s Brief, p. 6).

Petitioner’s interpretation of the statutes and orders

would visit on the innoeent bridge owner, who had

built his bridge in full compliance with every legal

requirement, full liability for damage to any passing

vessel, however negligently operated, during the period

between the issuance of an order for modification and

the completion thereof, in spite of the fact that the

bridge owner could not physically or legally complete

the modification sooner.’ Such torturing of the statutes

would produce a most unjust result and is, we submit,

legally untenable. The Court of Appeals quite

properly rejected this argument.

No reason is shown for the issuance of the Writ.

The questions presented are almost entirely questions

of fact determined by the Court of Appeals adversely

to the petitioner after a full review of all the evi-

dence. This is completely substantiated by peti-

tioner’s statement in its supporting brief (Petitioner’s

3rief, p. 1) that ‘tin order to show the extent to

which the Court of Appeals has gone in this respect

it is necessary to state with particularity the evidence

in the case’. This directly contradicts any conten-

tion that any point of law is controlling in this ease.

Jurisdiction to bring up cases by certiorari ‘*was

not conferred upon this Court merely to give the

defeated party in the Circuit Court of Appeals an-

other hearing’. Magnum Co. v. Coty, 262 U.S. 159,

163. No question of conflict between the circuits, nor

any question of transcending public importance is

present. As to this bridge any question is academic, he-

cause the alterations preseribed by the order approv-

ing the bid of “une 22, 1950, have been completed.

The Court of Appeals rightfully reviewed the evi-

dence and unanimously reached conclusions at vari-

ance with the findings and conclusions of the District

Court. It did so because the conclusions of the Dis-

trict Court were clearly erroneous. The Court of

Appeals has ‘ta clear responsibility * * * as to ques-

tions of fact’. The Anaconda (C, C. A. 4), 164 F.

(2d) 224, 225; The Ariadne, 13 Wall. (80 U. 8.) 4%,

479, The decision of the Court of Appeals on the

evidence was wholly justified and is clearly correct.

The petitioner seeks only a review of questions of

fact as decided unanimously by the experienced judges

of the Court of Appeals and to escape from, or amelio-

rate, the results of its own gross negligence as found

by the Court of Appeals.

The Court of Appeals did not ‘tso far departed]

from the accepted and usual course of judicial pro-

ceedings, as to call for an exercise of this Court's

power of supervision” (Petition, p. 22). There was

no “departure from the aecepted and usual course

of judicial proceedings’? by the Court of Appeals.

The petition should be denied.

Respeetfully submitted,

EK. Ormonde HUNTER,

Counsel for Respondent,

Seaboard Air Line Railroad

Company.

Grorce W. WILLIAMS,

Of Counsel,

| a

In Tue SuprEME Court or THE UNITED STATES

OctTosBeR TERM 1952

No. 557

PAN AMERICAN PETROLEUM

TRANSPORT CO., _—Petitioner, PETITION

oo, FOR

WRIT OF

SEABOARD AIR LINE RAILROAD CERTIORARI

COMPANY, Respondent.

BRIEF OF PETITIONER IN REPLY TO BRIEF

OF RESPONDENT.

JULIAN C. SIPPLE A. R. Lawron,

26 Bryan Street, East, 26 Bryan Street, East,

Savannah, Georgia. Savannah, Georgia.

T. M. CuNNINGHAM, Hersert P. Rem,

26 Bryan Street, East, 76 Beaver Street,

Savannah, Georgia. New York, N. Y.

Proctors for Petitioner.

In Tue Supreme Court or THE UNITED STATES

OcrTroBeR TERM 1952

No. 557

PAN AMERICAN PETROLEUM

TRANSPORT CO., Petitioner, PETITION

FOR

vs.

WRIT OF

SEABOARD AIR LINE RAILROAD CERTIORARI

COMPANY, Respondent.

BRIEF OF PETITIONER IN REPLY TO BRIEF

OF RESPONDENT.

THE SEABOARD BRIDGE WAS AN UNREASON.-

ABLE OBSTRUCTION TO NAVIGATION.

The burden of Respondent’s brief is that there is

nothing before the Court but questions of fact.

The principal question in the case is not a question

of fact at all. It is a pure question of law and in-

volves interpretation and application of Acts of Con-

gress relating to bridges over navigable waters.

Respondent’s brief states, p.4:

“Prior orders having been rescinded, the

order in effect at the time of the collision was

the order of February 23, 1946.”

eeesncrs meee s

This entirely ignores the application of the Sea-

board made to the Secretary of War April 23, 1937,

to reconstruct the bridge so as to provide a draw span

of 200 feet and to relocate the draw span, this appli-

cation being in response to frequent protests of the

maritime interests. June 27, 1937, the Acting Secre-

tary of War approved the plans of the Seaboard and

authorized the work to proceed. Seaboard so procras-

tinated that the time expired for the work to be done

(under this approval of the Secretary of War) June

21, 1940, the very day the Truman-Hobbs Act was

passed. The orders in reference to this application of

April 23, 1937, were never repealed. (See our brief,

bottom p.5, top p.6).

The order of the Secretary of War of February

23, 1946, denounced the bridge as an unreasonable

obstruction of navigation. It then and there became

an unlawful obstruction. The fact that the Chief En-

gineers and Seaboard between them dawdled for more

than 4 years and 4 months, before the plans were ap-

proved by the Chief of Engineers does not relieve

Seaboard. The Chief of Engineers had no power to

affect this order of the Secretary of War.

The Seaboard is estopped to deny that the bridge

was an unlawful obstruction of navigation.

These are all pure questions of law and they are

important questions of law and affect the rights of

the public in the navigable waters of the United States.

The question of the unlawful structure has an im-

portant bearing on the burden of proof. If the bridge

was an unlawful structure there was a presumption

of negligence against Seaboard and Seaboard would

have to prove affirmatively that the condition of the

bridge could not have contributed to the collision (see

our main brief Point 1, Page 2).

THE FINDINGS OF THE COURT OF APPEALS ON

THE SUBJECT OF THE ALLEGED NEGLIGENCE OF

THE “PAN MARYLAND” ARE ABSOLUTELY, CON-

TRARY TO THE EVIDENCE.

This is not exclusively a question of fact. It is a

question both of law and of fact. Respondent’s brief

contents itself simply with stating that the Court’s

decision was right because the Court unanimously de-

cided the case as it did on this question of fact. We

have pointed out in our main brief that the Court

completely ignored the Findings of Fact of the Dis-

trict Judge, and that the Findings of Fact of the

District Judge were not only not clearly erroneous,

but they were sustained by the great weight of the

evidence. We further pointed out that the Court of

Appeals substituted its idea of seamanship in the

sudden emergency which confronted the ship for the

sworn testimony of experienced seamen as to the proper

maneuver under the sudden circumstances.

III

MISQUOTATION OF THE FINDINGS OF THE DIS-

TRICT COURT.

On page 4 of Respondent’s brief it is stated:

“It is undisputed, and it was found by the

District Court that at the time of the collision

the bridge was being maintained in accordance

with and conformed to the lawful orders of the

Secretary of the Army, (Findings 9, R.50).”

PEER APPS EE

AO Ae FEN NS ate Sta Ge AMAT ANS EET

There is no such finding of the District Court.

The reference to the record (Finding 9, R.50) is to a

certificate made by Col. Erlenkotter, United States

District Engineer at Savannah. We have commented

on this certificate of the Colonel in our main brief

(Point VII, pp. 11 and 12).

A DECISION OF THE COURT OF APPEALS SHOULD

NOT BE IMMUNE TO A WRIT OF CERTIORARI WHERE

IT IS CONTRARY TO THE EVIDENCE AND INHERENT-

LY ERRONEOUS.

The argument of Respondents is to the effect that

the Court will not correct errors of this kind on a

petition for writ of certiorari. The Court has done so

on many occasions.

Respectfully submitted,

JULIAN C, SIPPLE A. R. Lawron,

26 Bryan Street, East, 26 Bryan Street, East,

Savannah, Georgia. Savannah, Georgia.

T. M. CUNNINGHAM, Hersert P. Ret,

26 Bryan Street, East, 76 Beaver Street,

Savannah, Georgia. New York, N. Y.

Proctors for Petitioner.

Dated:

February.4-the.. 1953.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.