Petition for Writ of Certiorari — H. J. Lewis Oyster Co. v. United States

eo TY

re 1953

<§ HAROLD & WILEY, at |

Supreme Court of the Anited States

OCTOBER TERM, 1952

No. 627

; THE H. J. LEWIS OYSTER COMPANY,

Petitioner.

vs.

THE UNITED STATES OF AMERICA,

THE STATE OF CONNECTICUT, INTERVENOR,

Respondents.

Ped

PETITION FOR WRIT OF CERTIORARI TO THE

| COURT OF CLAIMS OF THE UNITED STATES

SS

CURTISS K. THOMPSON,

JOHN H. WEIR,

Attorneys for Petitioner,

205 Church Street,

New Haven, Connecticut.

GoopMan Buocx,

1710 Broadway,

New York, N. Y.,

Of Counsel.

SE SRE EINN

INDEX.

Opinion Below

Jurisdiction

Statute Involved

Statement of the Matter Involved

Questions Presented

Reasons for Granting the Writ.

Conclusion

TABLE OF Cases CITED.

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 .cccccccoon

Bigelow v. R. K. O. Radio Pictures, 327 U.S. 251

Clark Lloyd Lumber Co. v. Puget Sound & C. Ry. Co.,

92 Wash. 601, 159 P. 774

Connecticut Oyster Farms Co. v. U. S., 94 C. Cls. 438

Day v. Woodworth, 54 U. S. 362

Dixon v. U. S., 103 C. Cls. 160

Taylor v. Riggin, 40 Del. 149, 7 A. 2d. 903

Feather River Lumber Co. v. U. S., 30 F. 2d. 642 ....0.c000.0.

Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82...........

Schroeder Besse Oyster Co. v. U. S., 95 C. Cs. 729...

Watson v. New Milford, 72 Conn. 561

Thomas Oyster Co., Inc. v. U. S., 94 C. CVS. 432.0..ceesnceooeeen

Supreme Court of the United States

OCTOBER TERM, 1952

No.

Tue H. J. Lewis Oyster Company,

Petitioner.

US.

TuHeE Unitep STATES OF AMERICA,

Tue State OF CONNECTICUT, INTERVENOR,

Respondents.

Petition for Writ of Certiorari to the Court of Claims

of the United States.

To THE HoNnoRABLE CHIEF JUSTICE OF THE UNITED STATES AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE

UnItep STaTEs:

Your petitioner, The H. J. Lewis Oyster Company, respectfully

prays that a writ of certiorari issue to review the judgment of the

Court of Claims of the United States entered on October 7, 1952,

in the above entitled action.

OPINION BELOow.

The Opinion of the Court of Claims is reported in 107 F. Supp.

570.

JURISDICTION.

The date of the judgment to be reviewed is October 7, 1952.

As authorized by Rule 53 of the Rules of the Court of Claims of

the United States, revised May 15, 1951, a motion for rehearing

and amendment of judgment was filed on November 5, 1952, and

was overruled by the Court of Claims on December 2, 1952.

Jurisdiction of this Court is invoked under Section 1255 of Title

28 of the United States Code (Act of June 25, 1948, c. 646, 62

Stat. 928).

STATUTE INVOLVED.

The statute involved is the Act of August 30, 1935, c. 831, Sec.

13, 49 Stat. 1049, as amended by the Act of July 13, 1943, c.

231, 57 Stat. 553 (Title 28 U. S. C., 1946 ed. Sec. 250(a) ), which

provided :

“The Court of Claims shall have jurisdiction to hear and

determine claims for damages to oyster growers upon private

or leased lands or bottoms arising from dredging operations

and use of other machinery and equipment in making such

improvements.”

In Dixon v. U. S., 103 C. Cls. 160, it was held that the words

“such improvements” were not limited to the specific improvements

listed in the 1935 Act but applied to any river and harbor improve-

ments and as a result the current statute (Act 0! June 25, 1948, c.

646, 62 Stat. 941, Title 28 U. S. C. Sec. 149.7) substitutes the

words “river and harbor improvements authorized by Act of

Congress” for “such improvements.”

STATEMENT OF THE MATTER INVOLVED.

Plaintiff is a Connecticut corporation organized in 1895 and

since then it has been engaged in the business of propagating and

selling seed oysters. It holds a perpetual lease or license from

the State of Connecticut to 5,573.2 acres of oyster grounds in Long

Island Sound, of which 1,657.2 acres are located in the outer

harbor near Bridgeport, Connecticut. Pursuant to Acts of Con-

gress (Rivers and Harbors Acts approved March 2, 1945 and July

24, 1946), the defendant, through a private contractor, commenced

dredging operations in Bridgeport Harbor on, June 4, 1947, and

completed the work on February 16, 1948. The dredging in-

volved deepening the existing channe! from 25 to 30 feet, widening

it from 300 to 400 feet, and extending it seaward approximately

a

3

7,500 feet. Plaintiff thereafter instituted suit under and pursuant

to the provisions of Section 250(a) of Title 28 U. S. C., 1946

edition.

In this action plaintiff claimed damages for (1) destruction of

oysters by mud from the dredging operations ; (2) cost of clearing

the mud deposited on its beds; (3) loss of use of some beds

because of the mud deposited; and (4) value of land taken by

defendant in widening the channel. The Court of Claims decided

that the defendant was liable to plaintiff under the provisions of

Section 250(a) and held, with respect to the various items of

damage with which this petition is concerned, as follows:

(1) In its consideration of plaintiff's claim for damages for

the destruction of oysters, the Court held (Opinion, p. 13) that

“the effect of the mud deposits was to cause the suffocation of

large quantities of plaintiff's oysters”, but it allowed damages only

for oysters that were both killed and removed from the oyster beds

(Lots 710 and 805). These damages totaled $6,125.00. Further

damages amounting to a minimum of $39,932.00 for the destruc-

tion of other oysters on those same two lots were denied because

of supposed uncertainty as to the number of oysters on the beds

during dredging operations and uncertainty as to whether such

“oysters would be removed in the future before death overtook

them from natural causes”.

Parenthetically, plaintiff also claimed to have proven damages

amounting to $40,400.00 for the destruction of oysters on other

lots, which damages were denied for the additional reason that it

was uncertain as to whether the damage from the mud was the

same on all of plaintiff's lots. If this petition be granted, plaintiff

reserves the right, subject to the approval of this Court, to present

and argue errors made in this aspect of the case.

(2) In its consideration of plaintiff's claim for damages of

$51,500.00 for the extra cost of cleaning off the mud deposited on

its oysters and beds by the channel dredging, the Court found

that “it must be assumed that the normal operation of stirring the

4

deposited mud, aided by such currents, will restore plaintiff's oyster

lots to their former condition”. (Finding, par. 14.) This

operation, as the Court of Claims indicates, is one which is part of

the normal operations of the oyster business “normally performed

every year before the spawning season, in order to brighten up

the shells lying on the bottom for receiving the spat”. (Finding,

par. 14.) What the Court meant in its use of the term “normal

operation” is not clear. All the evidence was to the effect that the

“normal” or “usual” operation of stirring the ground would loosen

the mud deposits and allow the currents to carry off the mud; it

was also to the effect that this “normal” operation would have to

be performed more often than usual because of the increased mud

deposits. If the Court was adopting this view, it should have

made findings as to the additional costs involved. If, however,

the Court meant that the operation of stirring performed at its

normal time would eventually clean off the mud deposits, then it

should have made findings as to when that would occur. The

Court did neither, but, in its opinion, in direct conflict with its

finding that the normal operation, aided by the currents, would

restore plaintiff's lots to their former condition, said that in view

of the natural cleaning and scouring effect of the currents, there —

was no need for stirring the beds in order to remove the mud

deposits.

(3) No damages for loss of use of any lots were allowed, no

findings of fact were made and no discussion of this claim appears

in the Court's opinion.

QUESTIONS PRESENTED.

1. Are damages for the destruction of oysters on an under-

water bed too speculative, and hence not allowable, if the existence

and quantity of oysters be proven by business records of the oyster

grower and estimates of its manager, rather than by the taking

up and measurement of the dead oysters and shells?

2. Are damages for the destruction of oysters on an under-

water bed uncertain, and hence not allowable, unless the oyster

a

,

“+

.

grower proves that otherwise such oysters would have been re-

moved from the bed before death from other causes overtook them ?

3. Where channel-dredging operations deposit mud on under-

| water oyster beds, are damages allowable for the extra labor of

| stirring such beds to dislodge the mud, or must the oysterman wait

until the beds are cleaned in the course of time by natural processes ?

If the latter be the case, is the oysterman then entitled to damages

for loss of use of the oyster beds until they are cleaned by natural

processes ?

Rrasons FOR GRANTING THE Writ.

4

IN HOLDING THAT PLAINTFF IS NOT ENTITLED TO DAMAGES

FOR THE BALANCE OF THE OYSTERS DESTROYED ON LOTS 710 AND 805

FOR THE REASON THAT PLAINTIFF'S PROOF IS UNCERTAIN AS TO

THE NUMBER OF OYSTERS REMAINING ON THE BOTTOM, THE Court

OF CLAIMS DECIDED A FEDERAL QUESTION IN A WAY PROBABLY IN

CONFLICT WITH APPLICABLE DECISIONS OF THIS Court.

Damages were awarded by the Court of Claims for a part of the

dead oysters in approximately 32,785 bushels of material removed

from Lots 710 and 805 in the fall of 1947 and the first five months

of 1948 (Finding, pars. 11, 12). That part was the percentage of

oysters whose death was attributed to the killing effect of the mud

from the channel-dredging operation. Damages were refused for

any oysters similarly destroyed and not yet removed from those

lots because the quantity of oysters on the lots was said to be

uncertain.

The business records of plaintiff (PI. Ex. 5) showed, with

respect to Lot 710, that from 1940 through 1946, 258,591 bushels

of material had been planted and 117,543 bushels of oysters and

material had been removed. An accountant who examined these

records for defendants testified that he had examined them for

accuracy and that they were substantially correct, and no evidence

contradicting these records was offered. A fair inference is that

6 |

the difference between the quantity of shell planted and the quan-

tity of material removed, or 141,000 bushels, remained on the

lot even without making any allowance for growth. The young

oyster set attaches itself to the shells planted and thereafter the

material removed consists of the original shell plus the set or seed

oysters attached to that shell (Finding, par. 2). In July, 1947,

another 18,828 bushels of shell and spawners were planted and

during the fall of 1947, 19,350 bushels of material (that is, shell

with oyster set attached thereto) were taken up, sample counts

were made of this material, and the Court of Claims awarded dam-

ages for the death of oysters which it determined had been in that

material and which had been killed by mud from the dredging

operation. In the first six months of 1948 an additional 7,400

bushels of material were taken up from this lot. Since no new

birth of oysters occurred between the fall of 1947 and the dates

in 1948 on which this additional material was taken up, no new

oysters or shell were added to that lot in that period, and since

oysters, after attachment to the shell, cannot move from place to

place, it is obvious that those 7,400 bushels were on Lot 710

when the damage occurred. It is also a necessary inference from

the evidence that a much larger quantity of material was on this

lot during the channel-dredging operation than the 19,350 bushels

removed in the fall of 1947 and the 7,400 bushels removed in early

1948, and that the oysters contained in this additional material

were similarly affected by the channel-dredging operation. Sitting

as a jury, the Court of Claims could reasonably have determined

the quantity of material, including young oyster set, on this bed,

in addition to that removed, to have been 133,000 bushels, the

approximate mathematical difference between plantings and har-

vestings, or such lesser amount as to it seemed reasonable.

Similar records maintained with respect to Lot 805 record only

harvestings during recent years as that lot was used as a storage

ground where small quantities of shell taken up from growing

grounds in Milford and Westport were dumped (Pl. Ex. 5; Find-

ing, par. 3). Plaintiff's manager, an oysterman of more than

/

forty years’ experience on these very lots, estimated in May, 1947,

that there were from 45,000 to 50,000 bushels of oysters in the

material on this lot. This estimate was made by procedures usual

in the industry and acceptable to banks making loans on oysters

lying on bottoms, as well as in sales of such oysters. This evidence

was not discredited nor seriously challenged and, being the only

evidence available, was adequate to require a finding that there

was on Lot 805 a substantial quantity of oysters, in addition to

the quantity actually removed, that had been similarly damaged by

the channel-dredging operations. Again it would have been a

reasonable inference for the Court to have fixed this quantity

at the approximate mathematical difference between the amounts

estimated and removed, that is, 32,500 bushels, or such lesser

amount as appeared to it to be reasonable.

The Court does not explain its failure to use this evidence and

to draw reasonable inferences therefrom, other than to say “there

is no way to determine the number of oysters which were on the

lots in 1947, since no regular inventory ts taken.” (Finding, par.

4.) Obviously, it is practically impossible to take an inventory of

the oysters on beds under more than twenty-five feet of water since

that would require dredging up each shell and counting the indi-

vidual set or seed oysters thereon. It was proven that the Bureau

of Internal Revenue does not require such an inventory. See, also,

1. T. 2704, XII-2 Cum. Bull. 169. The lot records kept by

plaintiff and the estimates of its manager were the best available

evidence and were clearly adequate to require that reasonable infer-

ences as to the amounts of oysters contained in the material on

Lots 710 and 805 be drawn by the Court. If recoveries by oyster

growers under the statute (28 U. S. C., See. 250(a)) are to be

limited or denied, unless they alter their existing business proce-

dures and introduce a new and manifestly expensive system ot

taking inventories, the right and remedy which Congress intended

to give them has been seriously abridged. Such a development

in the law is of importance in view of the extent in this country

of both oyster farming and harbor improvement, and is deserving

of review by the Supreme Court.

’

.

:

;

{

Bi oticaicens

8

In refusing to give effect to this evidence on the ground that

it would result in speculation, the Court of Claims violated prin-

ciples long established in the jurisprudence of this Court, and

reiterated, in Anderson v. Mt. Clemens Pottery Co., 328 U. S.

680, 688, in these words:

“* %* * Nor is such a result to be condemned by the

rule that precludes the recovery of uncertain and speculative

damages. That rule applies only to situations where the fact

of damage is itself uncertain. But here we are assuming

that the employee has proved that he has performed work

and has not been paid in accordance with the statute. The

damage is therefore certain. The uncertainty lies only in the

amount of damages arising irom the siatutory violation by

the employer. In such a case ‘it would be a perversion of

fundamental principles of justice to deny all relief to the

injured person, and thereby relieve the wrongdoer from

making any amend for his acts.’ Story Parchment Co. v.

Paterson Co., 282 U. S. 555, 563. It is enough under these

circumstances if there is a basis for a reasonable inference as

to the extent of the damages. * * *”

Where, as in this case, Congress has granted a cause of action

for damages where none existed before, it would be a similar per-

version of fundamental principles of justice to hold that, although

the fact of damage has been proven, uncertainty in the amount of

damages precludes recovery.

EE

II.

IN HOLDING THAT A PLAINTIFF SEEKING DAMAGES UNDER THE

STATUTE FOR THE DESTRUCTION OF OYSTERS HAS THE BURDEN OF

PROVING THAT IF OYSTERS KILLED BY MUD FROM DREDGING OPERA-

TIONS HAD NOT BEEN SO KILLED THEY WOULD HAVE BEEN RE-

MOVED FROM THE BED IN THE FUTURE BEFORE DEATH OVERTOOK

THEM FROM NATURAL CAUSES, THE Court OF CLarMs (A)

DECIDED AN IMPORTANT QUESTION OF LAW WHICH HAS NOT BEEN

BRUT SHOULD BE SETTLED BY THIS COURT, AND (B) DECIDED THIS

QUESTION IN A WAY WHICH IS IN CONFLICT WITH THE DECISION

OF THE QUESTION BY THE CircUIT CoURT OF APEALS FOR THE

Nintu CIRCUIT IN FEATHER RIVER LUMBER CO. V, U, S., 30 F. 2D.,

642.

The Court of Claims also said that the evidence left it “* * *

uncertain as to whether the oysters would be removed in the future

before death overtook them from natural causes * * *.”

(Opinion, p. 14; Finding, par. 13.) We believe that by this, the

Court meant that damages for the destruction of oysters will not

be allowed unless the plaintiff proves that, were it not for their

destruction by the channel-dredging, they would have continued to

live until harvested, and would have been harvested. But this

imposes a burden upon a plaintiff which no human being can sus-

tain. No one but an All-Knowing Divinity can prove how many

of even ten oysters lying on a bed under twenty-five feet of Long

Island Sound water will be removed, before death overtakes one

or more of them from natural causes. Application of a similar

burden of proof would preclude recovery for the death of any

growing organism, whether oysters, plants, animals or human

beings, if the plaintiff in the action, in order to avoid uncertainty,

had to prove that death from natural causes would not have

occurred prior to the harvesting or devotion of the oyster, plant

or animal to the use for which it was being grown, and, in the case

of a human being, prior to the expiration of his life expectancy.

RATA SR TI LIE NOTE

a ae

10

Obviously this is an important question, not only in this case

but, now that Congress has given oyster growers a right of action

for damages sustained in channel-dredging cases, in other probable

cases. The matter should be settled by decision of this Court,

particularly since the decision of the Court of Claims appears to be

alone in imposing such a burden of proof upon a plaintiff, and on

this point is in conflict with the decision in Feather River Lumber

Co. v. U. S. (CCA 9) 30 F. 2d. 642, 644:

“x * * Conceding it to be true, as urged by the defend-

ant, that no one could predict what might happen to the

growing timber, that another fire might have swept over it

at the same time, or shortly after, or the next year, or before

it attained its full growth, it is nevertheless not believed that

the measure of damages adopted was for that reason errone-

ous, or that it is to be held that the damages sustained by loss

of property destroyed by a fire is to be diminished by the fact

that it might have been otherwise destroyed.”

The impact of this rule, if adopted in cases involving the death

of human beings, is pointed out in Taylor v. Riggin, 40 Del. 149,

154, 7 A. 2d. 903:

“The defendant questioned the fact that the Deceased

might not live out the term of his expectancy.

“If the position of the defendant be tenable, no damages

based upon the expectancy of life could ever be recovered

resulting from the death of an infant. In no case could it

be certainly affirmed that the Deceased, if he had not met

with an injury which caused his death, would not have died

the next day from some other cause.”

Furthermore, the only relevance which the natural mortality of

oysters has is on the question of value. The Court of Claims made

a finding as to the natural mortality of oysters in Long Island

Sound (Finding, par. 5), and it made findings as to the values of

the oysters on Lots 710 and 805 (Finding, pars. 11, 12). Ob-

viously the natural mortality of a certain lot of oyster set or seed

oysters is a material fact in determining its value at a particular

time and there is nothing to show that this fact was not considered

—

11

in determining the values in this case. Certainly the existence of

a mortality from natural causes does not preclude any recovery

whatsoever, as the Court of Claims has held in this case.

III.

IN HOLDING THAT PLAINTIFF'S CLAIM FOR THE EXTRA WORK

INVOLVED IN STIRRING ITS OYSTER BEDS IN ORDER TO LOOSEN THE

MUD DEPOSITS SO THAT THE CURRENTS WOULD CARRY THE MUD

AWAY WAS NOT ALLOWABLE, THE COURT OF CLAIMS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT BEEN

nUT SHOULD BE SETTLED BY THIS CourT.

The Court of Claims found as a fact that the normal scouring

of the currents is the primary agency for removing any silt deposit-

ed from the dredging and that stirring the deposited mud, aided by

the currents, will restore plaintiff's oyster lots to their former con-

dition (Finding, par. 14). This finding is in accord with all the

evidence on this issue which was to the effect that the mud deposits

had to be loosened up by dredging or stirring so that the currents

could carry away the loosened mud or silt. However, in its

opinion, the Court rejected the claim that stirring was necessary

for removing the mud deposits “in view of the natural cleaning

and scouring effect of the turbid harbor waters upon the beds”.

Obviously, in its opinion the Court views the currents as the sole

agency necessary to remove the mud deposits. That is directly

contrary to all the evidence on this issue and to its own finding

of fact.

In prior cases the Court of Claims has made similar findings of

fact to the additional expenses involved in removing mud and

has taken those expenses into consideration in fixing the amount

of damages :

“25. Plaintiff, in the spring of 1934, began cleaning off

lot 324 and continued such cleaning operations from time to

time for several years thereafter, consuming altogether in such

work about 90 days during each of which plaintiff used its

dredge boat with a crew of four deck hands and a captain.

12

The cost of operating plaintiff's dredge boat was $50 a day.

The additional expense for the extra work in these cleaning

operations removing mud and dead oysters was $3,600.

“By reason of the manner in which the injury occurred

and upon the evidence proffered, it is not possible to deter-

mine with exactness the quantity of oysters destroyed. Con-

sidering all the evidence presented and taking into considera-

tion all circumstances, including expenditures by plaintiff in

cleaning its lot of mud deposited thereon by defendant's

dredging operations, the Court finds that because of defend-

ant’s negligence plaintiff sustained damages in the amount

of $14,000.” Thomas Oyster Co., Inc. vy. U. S., 94 C. Cs.

432, 434.

“26. In the spring of 1936 plaintiff dredged and agitated

the bottom of lot 134, partially for the purpose of preparing

the bottom for the regular planting of shells and partially for

the purpose of removing silt deposited thereon by defendant's

dredging operations. Plaintiff worked with three oyster

dredge boats, each manned with a captain and four workmen,

for a period of two weeks at a cost of $50 a day. Not more

than one-third of the cost of this operation was attributable

to the cleaning of mud deposited by defendant's dredging

operations.

“After removal by plaintiff of mud and silt, as described

above, lot 134 was suitable for oyster cultivation.

“Considering all the circumstances, including expenditures

by plaintiff in cleaning its lot of mud deposited thereon by

defendant's dredging operations, the Court finds that because

of defendant’s negligence plaintiff sustained damages in the

amount of $1,200.”

Connecticut Oyster Farms Company, 94 C. Cls. 438-9.

The allowance of these expenses as an item of damage is an

application of the general rule that where the property can be

restored to its condition prior to the injury, the cost of restoration

is a proper item of damage:

“The measure of damages, where a removable thing is put

upon property that menaces or destroys its use, is the reason-

13

able cost of removing it. * * * Clark Lloyd Lumber

Co. v. Puget Sound & C. Ry. Co., 92 Wash. 601, 607, 159

P. 774, 776.

“Proof of what it would cost to clean up the premises by

removing the offensive deposits was relevant to the question

of damages.”

Watson v. New Milford, 72 Conn, 561, 566.

The decision of the Court of Claims in this case is likewise con-

trary in principle to the decision of this Court in Day v. W ood-

worth, 54 U. S. 362, where this Court approved a jury charge to

the effect that if the defendant had taken down more of a dam

than was necessary, “the jury would allow in damages the cost of

replacing such excess, * * we

If it must be assumed, contrary to both the evidence and the

finding of fact, that the currents will eventually clean the mud

deposits from the oysters and the beds, then the Court of Claims

should have made a finding as to how long this would take and

the plaintiff should be awarded damages for the loss of use of all

these lots during such period as it would take the currents by

themselves to restore plaintiff's lots to their former condition.

The two items of damage are clearly alternative : if plaintiff expends

money to loosen up the mud so that the currents can carry it

away, it is entitled to recover those expenditures ; if, on the other

hand, plaintiff is compelled to wait until the currents by them-

selves have cleared the mud away—assuming, of course, that they

can do so—it is entitled to damages for its loss of use of the lots

in the interim. Plaintiff knows of no requirement that it wait,

but submits that damages for loss of use are the logical and just

result of the Court’s position.

CONCLUSION.

In the absence of statute there is no right to any damages for

injury from dredging operations. Lewis Blue Point Oyster Co.

v. Briggs, 229 U. S. 82. Congress determined that such a right

should be granted, and by Section 250(a), its predecessors and

14

successor, it has granted the right and conferred exclusive juris- —

diction upon the Court of Claims to enforce that right. The

right is an absolute one, not conditioned on proof of negligence.

Schroeder Besse Oyster Co. v. U. S.,95 C. Cls., 729. It is there- ;

fore of the utmost importance that such right should not be com- —

pletely destroyed or even limited by that Court’s imposition of an —

impossible burden of proof and the application of erroneous prin- q

ciples of law relating to damages which result in an arbitrary ~

denial of the right to damages. The importance of the problem —

presented where the sole quetsion was whether the evidence of 3

damage was sufficient to support a jury’s verdict was recognized ~

by this Court as a basis for the granting of certiorari in Bigelow —

v. R.K.O. Radio Pictures, 327 U.S. 251, 254.

The arbitrary position taken by the Court of Claims denied 4

this plaintiff a fair hearing and nullified the Act of Congress. —

Unless this Court reviews the decision of the Court of Claims,

this plaintiff, and any other oyster growers injured by dredging q

operations, will be deprived of the right to adequate damages 4

which the statute purports to give. The nullification of statutory 3

rights to damages by impossible and arbitrary rules of procedure ©

and of evidence is a perversion of the judicial process and a :

deprivation of those rights without due process of law.

It is respectfully submitted that this petition for a writ of 3

certiorari should be granted. :

Respectfully submitted,

Curtiss K. THompson,

Joun H. WEtr,

Attorneys for Petitioner,

205 Church Street, q

New Haven, Connecticut. ~

GoopMaAN BLock,

1710 Broadway,

New York, N. Y.,

Of Counsel.

INDEX

Page

eo IRS Ste SRE il Malar A oe eee IA UENO A? BORNE 1

IES Re eR SIE ea ec Rees NS Me PED hy rege CT 1

I ceases aad leer 2

I cha cence nese as cacedip meio 2

RE SSE RESET ORS ES eA SST CIPRIANI 2

| RES ERESES eE se re aR OREN eecsenOne NE Say rere Reres Re a 5

Conclusion ne i beshedi te ialeghechicid kcal ata 11

Cases:

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 ______ 7

Beacon Oyster Co. v. United States, 105 C. Cls. 227 ______- 6, 10

Connecticut Ry. Co. v. Palmer, 305 U.S. 493 _____-______ 8

Dixon v. United States, 103 C. Cls. 160 _______.___________ 7

Eastman Kodak Co. v. Southern Photo Materials Co., 273

OE CSI REEE =e EE SIMRAN SILI STE a BRU eereucriceatr Merc Art MO 8

F. Mansfield & Sons Co. v. United States (The Oyster

Re i i Nw I PE iil iri se rs ees 5, 6, 9

Gange Lumber Co. v. Rowley, 326 U.S. 295 ______________ 8

noose V. Coon, TOG F. BG SBD ane 8

L. Albert & Son v. Armstrong Rubber Co.,178 F.2d 182. 6

Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 ______ 7

Lubetich v. United States, 315 U.S. 57 __________________ 8

Missouri Pac. R. R. Co. v. Ault, 256 U.S. 554 __._________ 7

Radel Oyster Co. v. United States, 78 C. Cls. 816 ______ 5, 7, 8

RN 0h NONI: MIE SRG. NUE EO clack naccetcics sinclar wi acnimincolnemines cls 10

Schroeder Besse Oyster Co. v. United States, 95 C. Cls.

Ea RSS eal em pele aca spent hsrmcatiaeibiseaciimes : ee

Seipp v. United States, 107 C. Cls. 210 _---_-____________ 5

Thomas v. Ocean City Automobile Bridge Co., 108 N.J.

L. 143 aes SRE RRC SR OF al RNR EE AE 9

United States v. Penn Mfg. Co., 337 U.S. 198 ____________ 8

United States v. Smith, 94 U.S. 214 __-_----______-__-__ 7

United States v. Wyckoff Co., 271 U.S. 263 ______________ 7

Statutes:

Act of March 2, 1945, 59 Stat. 10, 13 _____...________..._ 4

Act of August 30, 1935, P.L. 409, 74th Cong., Ist sess., 49

Stat. 1049, Sec. 13, as amended, 57 Stat. 553 (Section

250a of 28 U.S.C., 1946 Ed., now 28 U.S.C., 1946 Ed.,

Supp. V, 1497) : ee

(ge a lr an ain eee AIG NR ITED SH eee it

Gnthe Supreme Court of the Bnited States

OcToBER TERM, 1952

No. 627

Tue H. J. Lewis Oyster Company, Petitioner

Vv.

| THE UNITED STATES OF AMERICA,

| Tue Starve or Connecticut, Intervenor

oes

On Petition for a Writ of Certiorari to the

United States Court of Claims

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 19-33) is

reported at 107 F. Supp. 570.

JURISDICTION

The judgment of the Court of Claims was en-

tered October 7, 1952 (R. 33). A timely motion

for rehearing (R. 33-34) was overruled by the

Court of Claims on December 2, 1952 (R. 34). The

2

jurisdiction of this Court is invoked under 28

U.S.C, 1255(1).

QUESTION PRESENTED

In a suit under 28 U.S.C., 1946 Ed., 250a (now 28

U.S.C., 1946 Ed., Supp. V, 1497), what evidence is

required to establish the extent of the damages to

petitioner’s oyster grounds resulting from govern-

ment dredging operations in connection with har-

boi improvements.

STATUTE INVOLVED

Section 13 of the Act of August 30, 1935, P.L.

409, 74th Cong., 1st sess., 49 Stat. 1049, as amended,

57 Stat. 553 (Section 250a of 28 U.S.C., 1946 Ed.)

provides:

That the Court of Claims shall have juris-

diction to hear and determine claims for

damages to oyster growers upon private or

leased lands or bottoms arising from dredging

operations and use of other machinery

and equipment in making such improve-

meats: ***

STATEMENT

In the propagation of seed oysters, petitioner

leased a total of 5573.2 acres of oyster grounds

from the State of Connecticut, 1657.2 acres of

which were located in the outer harbor near

1 Section 250a of 28 U.S.C. is in substance reenacted in the

new Judicial Code, 28 U.S.C., 1946 Ed., Supp. V, 1497.

3

Bridgeport. The other leased grounds were |lo-

cated at Westport, Milford, West Haven and New

Haven. Affiliates of petitioner leased and operated

oyster grounds at Shelter Island and Greenport on

Long Island. The Bridgeport oyster grounds were

used to obtain set (the very young oyster) and to

produce seed oysters. The grounds at Milford and

Westport were used for growing, and the grounds

on Long Island were used to fatten the oysters

prior to sale on the commercial market. (Finding

1, R. 19.)

The oyster spawning season in Bridgeport oc-

eurs during the latter part of July and in August.

During the last week in June and the first week in

July, oyster shells are planted in the grounds. The

oyster spawn attaches itself to the shells and the

spat (the spawn after it is attached to the shell)

is not disturbed until it is large enough for trans-

fer to the growing grounds. The set is usually

shifted to the growing grounds the autumn follow-

ing the spawning season or in the spring of the next

year. During the annual transplanting it is eco-

nomically unfeasible to remove all the set. (Find-

ing 2, R. 19-20.)

The petitioner was acquired by its present own-

ers in 1944. No inventory of the oysters on the lots

in Bridgeport was then taken. No regular inven-

tory is taken and no way exists to determine the

number of oysters on the lots in 1947. The peti-

tioner’s lot records reveal only the total amount of

em

SEVER Es:

4

both oysters and shell on the lots. No record is

kept of the annual set nor do the captains of the

oyster boats make a regular count of the number

of live and dead oysters taken up in oyster dredg-

ing operations. (R. 20.)

Pursuant to congressional authorization (Act of

March 2, 1945, 59 Stat. 10, 13) the Government

commenced dredging operations to improve the

channel into Bridgeport Harbor on June 4, 1947,

which were completed on February 16, 1948. Ac-

cording to petitioner’s dredging captains, petition-

er’s dredging operations in 1947 and 1948 encoun-

tered considerably more mud than in normal years.

However, accurate determination of the amount of

mud produced by the dredging and of the mud due

to other causes was impossible. Petitioner’s prac-

tice of placing oysters in ridges a foot or more

thick inevitably resulted in covering the oysters

toward the bottom of the pile with mud produced

by the oysters toward the top of the pile. (R. 21, 25.)

Moreover, a storm like that of November 1947 stirs

up material on the shores and bottom of a body of

water and thereafter, when the storm subsides, in-

creases the turbidity of the water and the de-

posit of solid material on the bottom (R. 25). Of

the only two lots in question from which oysters

were dredged by petitioner in the fall of 1947 and

the first part of 1948 (R. 31), the usable part of

lot 805 lies about 2000 feet from the dredged

channel; all of lot 710 lies more than two miles

from the dredged channel.

b)

Petitioner brought suit in the Court of Claims

for $486,625.00 (R. 1-4), thereafter reduced to

$194,057.00, under 28 U.S.C., 1946 Ed., 250a. Judg-

ment was entered in petitioner’s favor of

$6,399.56, composed of $4,000.00 for compensation

for oysters killed on one set lot (lot 710), $2,125.00

for oysters killed on another set lot (lot 805), and

$274.56 as the value of some acreage in lots 815 and

816 rendered permanently useless for oyster plant-

ing by the enlargement of the channel.* The Court

of Claims rejected the claims for damages to the

other lots as too speculative and for the alleged cost

of cleaning the oyster beds as unnecessary.

ARGUMENT

The amount of damages the evidence supports or

requires for injury to oyster beds in the circum-

stances of a particular case presents no question

of general importance suitable for review by this

Court. No conflict of authority exists or is alleged,

for cases of this type are confined to the Court of

Claims. 28 U.S.C., Supp. V, 1497. The Court of

Claims has not been exacting in its requirements

of proof of damages in oyster cases (see Seipp Vv.

United States, 107 C. Cls. 210, 219; The Oyster

Cases, 94 C. Cls. 397; Radel Oyster Co. v. United

2 Judgment for $6,399.56 was entered in favor of the United

States against the intervenor State of Connecticut, which,

pursuant to an Act of its General Assembly, had agreed to

hold the United States free from damages resulting from the

improvement of the harbor. (R. 5-9, 22-24, 33.)

7 se eT ee

Pee Ey wae

eee eed wend

6

States, 78 C. Cls. 816, 828-9), and it is apparent

that, following its own precedents (R. 31-2),° it

adheres to a formula not only liberal but generous

to claimants. However, in appraising the facts in

this case it held that under that generous formula,

as to some items of claim, in contrast to others in

the case for which damages were awarded, peti-

tioner’s proof did ‘‘not satisfy even these meager

requirements’’ (R. 32).

The Court of Claims’ findings were reasonably

adapted to the circumstances of the case. They

evince the court’s concern with allowing petitioner

all its provable losses while denying a windfall

award that would put petitioner in a better posi-

tion than if the Government’s dredging operations

had never been conducted. Cf. L. Albert & Son v.

Armstrong Rubber Co., 178 F. 2d 182, 191 (C.A.

2). If oyster raising is a hazardous business, its

hazards cannot be removed nor ignored in con-

sidering the injury sustained from dredging

operations.

Petitioner concedes (Pet. 13) that ‘‘In the ab-

sence of statute there is no right to any damages

for injury from dredging operations.’’ Neverthe-

less, it takes the view that upon the Government’s

acceptance of liability, regardless of negligence, in

3 The Oyster Cases, 94 C. Cls. 397, 420-1 (‘‘All that is re-

quired is the allowance of such damage as, in the judgment

of fair men, directly and naturally resulted from the injury

sustained.’’) ; Beacon Oyster Co. v. United States, 105 C. Cls.

227.

7

the 1935 Act,‘ claimants may be relieved of estab-

lishing the loss due to dredging operations that

would not have been incurred independently of the

dredging. As negligence is not an element in pe-

titioner’s claim, the Government is not really a

wrongdoer® so as to give color to petitioner’s plea

that it receive the benefit of uncertainty and the

equivalent of punitive damages against the United

States. Missouri Pac. R.R.Co.v. Ault, 256 U.S. 554.

‘More than compensation for damages actually

sustained can never be awarded against the United

States.’”? United States v. Smith, 94 U.S. 214, 218-

219; United States v. Wyckoff Co., 271 U.S. 263.

Accordingly, petitioner must prove that it sus-

tained injury to its oysters or oyster grounds and

that the injury was directly attributable to the

dredging operations.

Uncertain and speculative damages cannot be re-

covered ‘‘where the fact of damage is itself uncer-

tain.’? Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680, 688. The court below properly held that,

while inability to caleulate damages with mathe-

matical certainty will not bar recovery, that prin-

ciple is not a substitute for proof nor will it dis-

pense with proof of damages due to dredging “‘asa

matter of just and reasonable inference.”” Ander-

4 Dizon v. United States, 103 C. Cls. 160, 165; Schroeder

Besse Oyster Co. v. United States, 95 C. Cls. 729, 738; ef.

Radel Oyster Co. v. United States, 78 C. Cls. 816, 823-4.

5 See Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82.

Oe A ade ee eR, lhe er eo I

AR ee a eae

tie PA RES

8

son v. Mt. Clemens Pottery Co., 328 U.S. 680, 687.

No damages for which a fair approximation might

be made were denied. Cf. Eastman K odak Co. v.

Southern Photo Materials Co., 273 U.S. 359, 379.

However, speculative damages are not allowable.

Schroeder Besse Oyster Company, Inc. V. United

States, 95 C. Cls. 729, 740; ef. Connecticut Ry. Co.

y. Palmer, 305 U.S. 493, 504-5. Petitioner in effect

would require the trial court to assume that losses

otherwise expectable were nevertheless proxi-

mately caused by dredging operations as a matter

of law.®

It is known that oysters die for a number of

reasons having nothing to do with government

dredging, as the Court of Claims found (R. 20-21).

In the best of circumstances ‘‘(t)he propagation

of oysters is difficult and uncertain.’’ Radel Oyster

Co. v. United States, 78 C. Cls. 816, 818. Petitioner

asks that the Court of Claims be made oblivious

of the plain facts of oyster life and culture and

assigns as error its failure to award speculative

damages based on guesswork (United States v.

Penn Mfg. Co., 337 U.S. 198; ef. Gange Lumber

Co. v. Rowley, 326 U.S. 295) in disregard of the

many significant contingencies. Cf. Jacobson Vv.

Coon, 165 F. 2d 565, 568 (C.A. 6).

A high rate of oyster mortality was a probable

6 Since petitioner has not specified the evidence justifying

reversal (ef. Lubetich v. United States, 315 U.S. 57, 58), he

cannot have this Court reevaluate the damages.

%

9

occurrence, even in the absence of the special fac-

tors. In dealing with large numbers of oysters, it

is unreasonable to suppose, disregarding oyster

mortality, that all petitioner’s oysters would

reach maturity when the time for removal came,

and, in disregard of petitioner’s and the indus-

try’s experience and practices and against all the

probabilities, that all petitioner’s live oysters

which lived out their span would have been gath-

ered for sale. If petitioner is relieved from estab-

lishing the existence and extent of damages due to

the dredging operations, the measure of recovery

is converted from the actual loss due to the dredg-

ing operations on the generous formula of F.

Mansfield & Sons Co. v. United States (The Oyster

Cases), 94 C. Cls. 397, to the loss contemporaneous

with such operations. This Court cannot be asked

to declare that petitioner should be credited with

the ability and the disposition to remove all the

oysters that were destroyed, despite evidence to the

contrary, to weigh the evidence in a voluminous rec-

ord and accept conclusions that were not persuas-

ive to the Court of Claims, or to pile inferences on

inferences to justify judgment for petitioner in a

greater amount. These matters are for the trier of

the facts. Thomas v. Ocean City Automobile

Bridge Co., 108 N.J. L. 143."

7 In essence, petitioner urges that what ‘‘[s]itting as a jury,

the Court of Claims could reasonably have determined”’ (Pet.

6) it was under a positive duty to find as a fact, although

10

The waters of Bridgeport Harbor are normally

turbid and the process of sedimentation is contin-

uous. The waters are polluted by discharges of

untreated sewerage and factory wastes. The com-

mercial feasibility of oyster growing in Bridgeport

Harbor apparently is attributable to the continual

scouring effect of the tides and the currents (Find-

ing 14, R. 27) and the fact that oysters will survive

unless they are completely buried by mud (Find-

ing 8, R. 24).* The criticism of the denial of dam-

ages on the item for the cost of removing mud

which the current and petitioner’s ordinary opera-

tions would perform, is plainly captious.’ It

would aggravate damages to duplicate the work of

the current.”

the case was fully tried and not dismissed on motion for

failure to make out a prima facie case. Cf. Sachs v. Bose, 201

F. 2d 210 (C.A.D.C.).

8 See also Beacon Oyster Company v. United States, 105 C.

Cls. 227, 231.

® Lots 729, 810, 815, 831, and 833 had been cultivated before

World War II but none of them had been planted with shell

since 1942. Lots 834, 835, 836, and 838 have never been culti-

vated. Thus, some of those oyster beds petitioner says that it

will clean some day have not been cultivated for years and

perhaps will never be cultivated again. (R. 20.)

10 Despite the normal turbidity of the water, the currents of

Bridgeport Harbor have prevented any appreciable siltation

over the years (Fdg. 14, R. 27). There has thus been no ap-

preciable change in the contours of the harbor bed over the

years (Fdg. 9, R. 25).

eer

11

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Rosert L. STERN,

Acting Solicitor General.

WarrEN E. BURGER,

Assistant Attorney General.

Pau. A, SWEENEY,

Husert H. MARGOLIEs,

Attorneys.

Apri, 1953.

WU. S. GOVERNMENT PRINTING OFFICE 1953—248639/P.0.1391

PNP NBC fA ae ATR ORT TLS EL TU FOL EEE PEE

CERTIORARI

DENIED