Petition for a Writ of Certiorari — Indian Towing Co. v. United States (No. 195)

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1959

Baw

No.

INDIAN TOWING CO., INC. ET AL.

) He a - —_

Petitioners,

VETSUSN

UNITED. STATES OF -AMERICA,.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR -

THE FIFTH CIRCUIT.

RICHARD B. MONTGOMERY, JR.

S06 Natl Bank of Commerce Bldg.

New Orleans 12, Lowiisiana,

Attorney for Petitioners.

Of Counsel:

HENRY J. READ

MONTGOMERY, BARNETT, BROWN & READ.

St. N. xs a

“The Bref Specisliste” 430 Chartres :

Montgomery & Co..

SUBJECT INDEX.

OPINIONS BELOW AND JURISDICTION

QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT OF THE CASE,

ARGUMENT UNDER THE FIRST QUE STION

ARGUMENT UNDER THE uoccapeas ‘QUES-

TION

CONCLUSION

APPENDICES:

A. “indings of Fact and Conclusions of Law

of the United States District Court for the

Eastern District of Louisiana :

B. Opinion of the United States Court-of Ap-

peals for the — Cirewit .

2a Jeiliiiiens of the United States Court of

Appeals for the Fifth Circuit

D. Order Extending Time to File Petition for

_ Writ of Certiorari

E. 28 U. S. C. Section 13461b)

F. 14 U. S.C. 81. ©

AUTHORITIES CITED.

Atlas, The, 93 U. S. 302

Beaconfield, The, 15 S. Ct. 860

Cordinger v. Los Angeles bi reas Company, 127

S. W. 2d) 105

Cutler, The, 58 F. Supp. 864 (D. C. N. Y. 1944),

affirmed 147 F. (2d) 545 (C. C. A. (2d) 1945)

D’Anna v. U. S., 181-F. (2d) 335

Eidson, et al., v. Maddox, 24 S. E. (2d) 895

Glass v. MeCullough Transfer Co., 189 F. (2d)

Halcyon Lines, et al., v. Haenn Ship Ceiling and

. Refitting Corp., 72 S. Ct. 277

Haynie v. Jones, et al., 32 N. E. (2d) 561

Hoesel v. Caia, 53 N. E. (2d) 165

Indian Towing Company, Inc., v. United sos of

America, 350 U. S. 61, 76S. Ct. Rep. 122

Marian J.-Maple. Hill iC. C. A. 2d) 1982 A.M. C.

1278

O’Brien Brothers, The, 258 Fed. 614

Old Dominion Steamship Co. v. Gilmore, 28 S, Ct.

133

Pure Oil Ata The, v. Tugs Fred B. Zigler &

Z-Eight ‘D. C.L. A.) 1952 A. M. C. 1518

Page

6 .

oh |

AUTHORITIES CITED—-‘ Continued)

_ Reynolds Metals Company v. Yturbide, 258 F. (2d)

321

Ryan v. _Dendinger, Inc., 9 S. (2d) 849

San Juan Light & Transit Confpany y. Belen Re-

quena, 224 U.S. 89, 32 S. Ct. Rep. 399

Seas Shipping Co. v. Sieracki, 328 U. S. 85

Smith v. Fisher, et al., 115-N. FE. (2d) 78

’ Spears v. United Railroad of San Francisco, 47

Pacific 956

Uv. & wv. Johnson, 181 F. (2d) 577

U.S. v. Kesinger, 190 F. (2d) 529

White v. State Farm Mutual Auto Insurance (o..

et al., 60 S. (2d) 245

William C. Atwater, The, 110 F. (2d) 644 (C. C.

A. (2d) 1940)

STATUTES.

14 U. S.'C.. 81

28 U. S. C. See. 1254 (1)

Federal Tort Claims Act, 28 U. S. C. See. 1346 (bi

MISCELLANEOUS.

American Jurisprudence 38, page 989 ;

Harper & James, The Law of Torts, See. 19.12

Page

_ INTHE — |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1959

Siege

INDIAN TOWING CO., INC., ET AL.,

| - Petitioners,

versus 1

UNITED STATES OF AMERICA,

‘ ‘ Respondent.

PETITION FOR WRIT: OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT.

Petitioners pray that a.writ of certiorari issue to

review a judgment of the United States Court of Appeals

for the Fifth Circuit and in support of their petition

show: .-

OPINIONS BELOW AND JURISDICTION.

The findings of fact and conclusion of law consti-.

tuting the opinion of the District Court (?. 582) are

printed in Appendix A hereto and are reported in 182

Fed. Supp. 264. The opinion of the Court of Appeals (R.

598) is printed in Appendix “B” hereto and is reported

in 276 Fed. (2d) 300. =,

The judgment of the Court of Appeals, dated Feb-

ruary 29, 1960, was entered the same date ‘ Appendix C).

The jurisdiction of this Court is invoked under 28 U. S..C.

Sec. 1254 (1). Upon application of counsel for peti-

tioners, the time for filing a petition for writ of cer-

tiorari in this case was extended’ up to and including

June 30, 1960, bi order of this Court dated May ‘19,

1960 (Appendix D).

QUESTIONS PRESENTED.

The questions presented here are the following:

1. Does the standard of care imposed upon the -

United States Coast Guard in the maintenance of aids to

navigation permit that agency to install the component

parts of a light circuit ina lighthouse with the intention

of leaving those parts on station until a failure occurs.

or is the Coast Guard required to conduct periodic inspec-

tions of the vomponent parts of. the light circuit in order

to discover and correct defects resulting from wear and

tear before a failure of the light occurs?

2. Does the application of the doctrine of res ipsa

loquitur in a case in which the Coast Guard is chan ‘ged

with negligent maintenance of a lighthouse impose insurer

' liability on the Coast Guard?°

STATUTES INVOLVED.

* The statute which has been interpreted by the prior

- opinion of this Court and which must be applied in deter-

mining the issues presented by this petition is the Federal

‘Tort Claims Act, 28 U. S. C. Section 1346(b) printed as

Appendix E. In addition, petitioners refer to the statu-

tory authority pursuant to which the United: States Coast

Guard established and maintained the lighthouse on Chan- °

deleur Island, which authority is found in 14 U.S. C..81,

printed as — FL

- STATEMENT OF THE CASE.

‘This Court has said in’a prior opinion in this case

that the United States Coast Guard is obligated to use

due care to make certain that lighthouses operated .by’ the

Coast Guard are kept in good working order. The lan-

guage of this Court in Indian Towing Company v. The

United States of America, 350 U.S. 61, 76 S. Ct. Reporter

122, at page 126, is as follows:

“The Coast Guard need not undertake the light-

house service. But once it-exercised its discretion

to operate a light on ChandeJeur Island and engen-

dered reliance on the guidance afforded by the —

light, it was obligated to use due care to make cer-

tain that the light was kept in good working order;

and, if the light did become extinguished, then the

Coast Guard was further obligated to use due care

to diseover this fact and to repair the light or give

Warning that it was not functioning. If the Coast

Guard failed in its duty and damage was thereby

caused to petitioners, the United States is liable

under the Tort Claims Act.” (Emphasis ours.)

The casualty out of which this litigation pose Oc-

curred on the night of September 30-October 1, #654. The

Barge AS-16, owned by United Marine Company, one of

petitioners, and carrying 1204,5 tons of triple super phos-

| phate, owned by Minnesota Farm Bureau Service Co., an-

other of the petitioners, was in tow of the Tug NAVAJO,

owned by Indian Towing Company, also named as a peti-

tioner, proceeding westward from Tampa to New Orleans

in the Gulf of Mexico. The lighthouse on Chandeleur

Island off the Mississippi Coast failed some time prior to

the night in question and was not in operation as the tow

approached the island. (R. 144-45). Visibility was poor.

and the wind was from 30 to 35 miles per hour, with

waves six to seven feet in height. The éaptain of the

NAVAJO was looking for and expecting to see Chande-

leur light, and, since the light was extinguished, ran

aground. (R. 114.1 The grounding caused substantial

damage ta the Barge AS-16 and her cargo. Petitioners

contend that the failure of the light was the cause of the

grounding and subsequent damage -to ‘the Barge AS-16

and her cargo and that the failure of the light resulted

from the negligence of Coast Guard personnel in that they _

failed to exercise due care in the maintenance of the sun

relay which was a part of the circuit of the light.

This case was initiated by the filing of a civil

action under the Federal Tort.Claims Act. Respondent

moved to dismiss on the ground that the cause of action

alleged was rot wit the purview of the statute, and

the motion was granted. (R. 9.) Petitioners appealed

and the Court of Appeals for the Fifth Circuit affirmed

the action of the trial judge. (R. 16.) This Court

granted certiorari and reversed (R. 17), and a trial on

the merits followed before the same judge who had: orig-

-inally granted respondent’s motion to dismiss, culminating

in the trial court’s acceptanee, without modification, of

praposed finding of fact and conclusion of law submitted

by the respondent. (R. 582.) The Court of Appeals,

speaking through a member of the panel which had af-

firmed the original dismissal of this ‘action, endorsed the

findings and conclusions of the trial judge, stating that

ihe doctrine of res ipsa loquitur, upon which petitioners

rely, does not place upon the respondent liability without

fault or make respondent an insurer of the operation of

the lighthouse on Chandeleur Island. (R. 600.) :

ARGUMENT UNDER THE FIRST QUESTION.

The issue presented here is whether the owners of

the Barge AS-16 and her cargo are entitled to recover

for the damages which they sustained. Although Indian

Towing Company, the owner of the tug NAVAJO, appears

“48 a nominal party in this case, no recovery is sought for

any damage sustained by the tug. The question which

must be. determined is whether the failure of the light-

house contributed to the grounding of the barge. It is not

necessary to consider whether or not the negligence of the

Tug NAVAJO contributed to the grounding, for whatever

negligence may have occurred on the part of those in

charge of the NAVAJO would -not be attributed to the

innocent barge and cargo. The Cutler, 58 F. Supp. 864

'D. C. N. Y. 1944), affirmed 147 F. (2d) 045 (C. C. A?

(2d) 1945); The Pure Oil Company v. Tugs Fred B. Zig-

ler & Z-Eight iD. C. L. A.) 1952 A. M. C. 1518; The

William C. Atwater, 110 F. (2d) 644 iC. C. A. 12d)

19401; Marian J.-Maple Hill (C. C. A. (2d) 1932 A. M. C.

1278); The Atlas, 93 U. S; 302; The Beaconsfield, 15 8.

Ct. 860.. As long as there is a degree of contributing

fault on the part of the respondent, the owners of the

barge and the cargo laden therein are entitled to recovery.

even though the negligence of the NAVAJO was also a

contributing cause. This is so even if the NAVAJO’S neg-

ligence outweighed that of the respondent. Ryan v. Dendin-

ger, Ine., 9S. (2d) 849; The O'Brien Brothers, 258 Fed.

614; Old Dominion Steamship Co. v. Gilmore, 28 S. Ce.

133; White v. State Farm Mutual Aulo Insurance Co.,

et-al., 60S. 12d) 245; Halcyon Lines, et al., v. Haenn Ship -

Ceiling and Refitting Corp., 72 S. Ct. 277: Hoesel v. Cain,

53 .N. E..(2d) 165; Eidson, et al.,v. Maddox, 24 8, E. (2d)

895; Spears v. United Railroad of San Francisco, 117

Pacific 956; Cordinger v. Los Angeles Traction Company,

127 S. W. (24) 105; Haynie v. Jones, et al., 32 N. E. (2d)

561; Smith v. Fisher, et al., 115°N. E. (2d) 78: Glass v.

McCullough Transfer Co., 189 F. (2d) 105. In deciding

_ this case with emphasis on the negligence of the Tug

NAVAJQ, the District Court and the Court of Appeals

have impliedly and erroneously attributed that negligence

to the barge and her cargo. ,"

Since the causal connection between the failure of

the liglit and the grounding of the barge is obvious beyond

the possibility of argument, the government did not pro-

pose to the District Court a finding that the failure of the :

light did not contribute to the grounding. The District

Court and the Court of Appeals avoided any conclusion

with reference to the causal connection between the light’s

failure and the grounding, and confined their conclusions

instead to the fact that the negligence of Coast Guard per-

sonnel did not contribute to the grounding of the barge.

(R. 595, 599.1 Thus, on the face of the record, neither

Court has decided whether or not. the failure of the light

was causally connected to the grounding of the barge.

This is a significant omission in view of the fact that the

government's navigational expert testified that in his opin-

ion the grounding would not have occurred if the light had

been in operation. *R. 363.) It is clear from a reading

of the findings of the trial judge that this case was dis-

posed of on the basic proposition that the failure of the

light did not cause the grounding, and that the negligence

of’ the navigator of the NAVAJO did. Pretermitting °

entirely the fact that such negligence, if it occurred, is not

attributable to fie barge and her cargo, and ‘considering

only the causation problem, i. e., the relation between the

failure of the light and the damage caused to the owners

of the barge and cargo, it is pertinent ‘to point out the

verbiage of the statute pursuant to which the Coast Guard

established and maintained Chandeleur Light. That stat-

ute, appearing as Appendix F, provides that the purpose

of aids to navigation. including Chandeleur ‘Light is “to

aid navigation and to prevent disasters”. It is apparent

from ‘the wording of the Statuté that lighthouses are

maintained to prevent marine disasters even though the

navigator of a vessel does not’ navizate perfectly. The

owners of the Barge AS-16 and her cargo were entitléd

to the warning afforded by the Chandeleur Light even

though the Tug NAVAJO may not have been navigated

perfectly. Since the light failed to serve one of the pur-

poses for which it was established, the causal connection

between that failure and the grounding, insofar as the

barge and cargo are concerned, cannot be seriously ques-

tioned.

The failure of Chandeleur Light resulted from the

nitting and scoring ‘and ‘corrosion of the contact points

in the sun relay which was a vital component part of the

cireuit of .the light. (R, 26, 592.) The electrical system

in the light was installed in July of 1949, less than two

years before the failure which caused this grounding, and

consisted of a set of. wet storage battery cells totalling

32 volts, a flasher mechanism, a lamp changer, and a

sun relay unit which caused the light to function at night

and turned it off during the daylight. hours to conserve

the batteries. The sun relay itself consisted principally

of.a metal cylinder coated with carbon. During the day

the cylinder absorbs heat and the increase in temperature

causes the cylinder to expand. This expansion is trans-

mitted to a pivotal arm which moves up and down, mak-

ing and breaking contact with a silver base plate in the

relay. During the night the silver points at the end of

the pivotal arm are in contact with the silver base plate,

completing“the circuit, while during the day the contact

points separate from the base plate, breaking the circuit.

The relay is not installed directly in the main 32-volt

circuit, but in a separate 12-volt circuit, because the con-

tact points hold up more satisfactorily under lower volt-

age. (R. 248.) The relay is a reliable device which oper-

ates for years if properly maintained. However, the

pitting of its contact points is a natural consequence of

use and the points require cleaning and adjustment at

intervals which vary according to the electrical load car-

ried. (R. 493.)

The nature and extent of the pitting which caused

the failure in this instance was described in the cross-

examination of Warrant Officer Holmes of the Coast

.Guard, who was in command of the party which repaired

the light after the failure (R. 460):

“Q. Mr. Holmes, I want you to describe for me

in a little more detail this pitting that you

O Pp

”

found onthe base plate. Was it—well, I think

I'll leave it to you, to use your words. What

. did it look like to you?

Did you ever see fine gritted sandpaper?

Yes. :

That but.on a dark color.

Now this was just a material which had

formed on the base plate?

To my knowledge, yes, sir.

Was there damage to the plate itself?

Damage? To what effect, sir?

To the plate itself. Was the surface of the

plate damaged?

It would be damaged if there was pitting, sir.

Then understand you to mean that the plate

itself was scored, was it not?

Not to any great extent, sir.

Well, it was scored to an extent which in your

Opinion prevented it from’ making contact,

wasn’t it?

I won’t say scored, sir; I'll say the pitting on

it prevented it from making the contact.

THE COURT: Well was it sort of a deposit on

there?

THE WITNESS: Yes, sir, more like a deposit, In

other werds, it didn’t eat down into the metal

to any great degree where it would have been

impossible to remove it = swiping across your

plate.

Oo >Oo >

Well then-why did you regulate the arm so that

it would make contact at a different place un

the plate?

As a preventative measure.

In other words, you thought that perhaps the

plate had been damaged to an extent which

would interfere with the contact?

As a preventative measure.

Am I stating it correctly?

As a preventative measure, yes, sir.

Wait, just a moment. I say from what you

observed you thought that possibly the plate

had been damaged to an extent which would

interfere with future contacts?

I didn’t think that it would prevent or - - - pre-

vent any future contacts. I wanted to do

something to prevent a reoccurrence of the fact

that if one section of it was damaged this

time, maybe -if-you put the points back in the

same section again, that point would be more

vulnerable to damage than a new point.

Now, I'm reading from your prior deposi-

tion - - -

Yes, sir

--- in which you say that, in describing what

you saw and indicating the base plate. you say,

‘In here, this was all scored and corroded and

pitted up to a degree where it wouldn't make

proper contact.’ Is that an accurate descrip-

tion of what you saw?

nesses for both parties,

Well, to a certain degree. In other words, a

fine point like that. you're not gouging or any-

thing or massive holes in it. A little object

‘like this, which is probably an eighth of an

inch wide and a-half inch long, any pitting on

it would give indications that it’ was marred.

Do you still accept the language which I read

to vou as accurate? -

I will accept it, sir, if I said it.

- Was the condition which you saw a highly un-

usual condition.

It was my first occurrence with that condition.

You had never seen a base plate pitted to that

extent before? :

I've never seen this - - - any base plate in a

sun relay pitted period.

At all?

No, sir.

. So that what you found was 4 very unusual

condition, was it not? |

To the best of my knowledge, it was.” (Em-

phasis ours.)

All of the expert testimony in the record, from wit-

showed that the pitting and scor-

ing and cor rosion which caused the failure of ‘the light was

in turn caused by the fact that current in excess of that

‘which was recommended by the manufacturer was per-

mitted to pass through the contact points in the relay at

some time prior to failure. 1R. 249, 250, 322-324.) Re-

spondent’s personnel conducted periodic inspections of the _

lighthouse, but they were instructed not to remove the base

cover of the relay to check the contact points in the relay,

and. in fact the points were not checked during periodic

‘inspections in order to determine whether a gradual pit-

ting condition was developing (R..400, 401): nor did

respondent’s personnel ever check the circuit to determine

the amount of current passing through the contact points.

during the operation of the relay. (R. 406, 378.)'

The electrical experts who testified at the trial

agreed that the pitting described by Holmes was the result

of current in excess of that recommended by the manu-

facturer passing through the points of the relay. It fol-

lows inevitably that either the original installation of the

relay was improper, or that something occurred between

the time of installation in July-of 1949 and the time of

failure in September 1951 which caused or permitted

. excess current to flow through the contact points of the

relay. The source of the excessive current was unex-

plained and neither of the courts below required an expla-

nation of the respondent, although the respondent offered

no testimony from any witness connected with the origifial.

installation to prove that, at least originally, the manu-

facturer’s recommendations were followed. But it is not

only the excessive current about which, petitioners com-

plain. It is the added fact that Coast Guard personnel

took no steps during the periodic inspections of the light

to discover the gradual cumulative effect of the current,

whether normal! or abnormal. Respondent's personnel did

'The witnesses Brooks and Stone were the only persons who.had

anything to do with the maintenance of the light. Brooks

suggested that “the base electrician” checked the amperage

of the sun relay current ‘R. 378) but the electrician did not

So testify. :

—" «

not inspect the contacts in the sun relay in.order to dis-

cover and correct incipient failure before it occurred, but

rather conceived their duty to require no more than re-

» 43

placement of the mechanism if, as and when it failed.

Professor James Cronvich of the Tulane University

School of Engineering commented upon the characteristics

and performance of the relay (R. 249):

“Q.

Is it a correct statement to say that the—an

excessive amount of current being allowed to

pass through the silvey contact points would -

increase the likelihood of pitting?

It would.

And the greater the amount of current. the

greater the amownt of pitting?

That’s correct.

If you found, as a purely hypothetical situa-

tion, that the silver contacts in a relay such

as we have here were pitted to an extent which

broke the circuit and prevented the operation

of a light such as Chandeleur Light, would it

be your opinion that this condition could only

result from an excessive amount of current

being allowed to pass through the contact:

points?

I would say yes, assuming—as I recall] it—

this relay was in service only two years.

In other words, you would say that then the

rated amperage recommended by the manu-

facturer had been exceeded?

That's right.”

Ves

“THE COURT: Well, you don’t know whether there

was any pitting or not, do you?

THE WITNESS: No, I don’t know. I just assumed

from: what I’ve been told.

MR. READ: I asked him to assume that.

THE COURT: I undefstand.”

“BY MR. READ:

Assuming that the relay was operated with the

rated limits of the manufacturer’s recom-

mendations for a two-year period, would there

have occurred sufficient pitting to have caused

a failure of the relay?

Within his recommendations I doubt that it

should have caused sufficient pitting for

trouble.” -

ernment, Professor Cronvich stated (T. 254):

“Q.

As to the pitting, can you say definitely that

a sun relay system operated within the manu-

facturer—that these contacts operated ‘within

the manufacturer’s specifications and amount

of current could not fail?

It would be very highly improbable because of

the number of operations which you have are

so very small in the life of a typical relay like :

that compared with the ordinary contacts

which you might have. ..

But it ‘might for causes unknown. There —

might be a pitting that would not be explain-

able on the basis of ordinary functioning?

Under cross-examination by counsel for the gov-

A. No. If there is pitting there should be some

reason for the pitting and certainly with the

low ‘currents which are expected to get in

there, the amount of pitting in the number of

‘operations which that relay should give should

be very smail.”

Respondent's expert, Harvey, agreed with Profes-

sor Cronvich ‘R. 322-324):

- “Q. - Now, I assume that you're familiar - - - 1 know

| you’re familiar with the fact that according

to the manufacturer’s recommendation there is

a certain rated current which is supposed to

be allowed to pass through the sun relay. Isn't

that correct?

Yes, sir.

What is that at Chandeleur?

At Chandeleur?

Yes, ° :

The only current that will pass through the

sun relay would be the current that it.takes

to operate that protective relay is like I said

approximately 48 milliamps.

POPS }

Q. Well, ---I’m reading here from a brochure

which is put out by the manufacturer of this.

The company happens to be the A. G. A. Divi-

‘sion of the Elastic Stop Nut Corporation of

America. That's the manufacturer. And on

page --- - I guess it is page-one, it’s unnum-

bered, but I find this recommendation: ‘con-

> oO

tacts are rated at 3 amperes or 25 watt A. C.

and J.5 ampere or 10 watt D. C.’

You’re familiar with that, is that correct?

Yes, sir.

Now if that rate is not exceeded would it be.

your opinion that the contact points inside the

_relay would not noticeably pit in a two year

period?

No, sir.

You think they would not become noticeably

pitted in a two year period?

If they were - - - With the allotted ampere rat-

ings that the book that you have in front of

you gives - - -.

Yes?

- - - after they’ve been out two years some-

times you will see a little bit black where the

. points wil! meet but not any excessive pitting.

Well I take it that any contact being made

and broken like this would cause some pitting,

is that correct?

Well yes sir, it should. - :

And you're saying that in a two year period,

if the manufacturer’s recommendations are

followed, that pitting should not reach propor-

tions which would interfere with the operation

of the relay?

That’s right, sir.

So that it would be your opinion that if such

a condition had occurred, then in some way an

{ =e

excessive amount of current must have been

allowed to pass through those contact points? °

A. If it was pitted very bad, yes, sir. °

Q. ff it was pitted to a degree which would inter-

fere with the operations of the relay?

A. Yes, sir.

Q. Your answer would be yes?

A. Yes.” ;

This uncoatradicted evidence showed that the contacts

would not have pitted to a disabling degree in two years

‘if the current had been within the proper limits. More

over, the manager of the plant which manufactures the

sun relay testified that even in normal use, that is, use

within the proper current limits, the contact points in the

relay are subject to wear (pitting), that they require

cleaning and adjustment, and that the degree of pitting

Which will occur depends. tipon the load to which the con-

tacts are subjected. His.testimony was (R. 493) :

“A. ...T do believe that you must put in one other

qualification and that the contacts which make

and break loads will wear, that there will be a

migration of material from one element to the

other, ,and that that must be compensated for

either by readjustment or by cleaning or re-

placement.

Q. That is anticipated and is very gradual, isn’t

it?

A. Well, it depends upon the load that is imposed

upon ‘the contacts; and, as you know, you can’

—a heavy load will damage a contact more

quickly than will a light load.” {Emphasis

ours. }

This witness further testified ‘hat the “life of the con-

tacts are so, closely interrelated to the type of load that

is imposed that I don’t think | could have or make any

prognosticaticns as to the. possible life’ of the” relay.

(R. 502.) He added that under a normal load the device

is reliable (R. 503) and that when used under a normal

load the Wearing process, /. ¢., pitting, is very gradual

(R. 493) From the testimony it is obvious that. the

“espondent nad no right to assume that the relay would

function indefinitely without maintenance regardless of

the amount of current used. ;

From the testimony of the manufucturer’s repre-

sentative, it is apparent that the dependability of the

relay is not absolute, but requires that care must be. taken

to assure that the recommended current is not exceeded,

and tnat even in circumstances of normal and proper use, _

the contacts require cleaning and adjustment from time

to time,

Chandeleur Light was under the jurisdiction of

the Gulfport Light Station and Chief Stone of the Coast

Guard was in charge. Stone testified at length concerning

the maintenance accorded the lighthouse in general and

the sun relay in particular. The contact points which

failed are inside.a cover over the base of the relay. Chief

Stone was told never to remove that cover. (R. 399-4007)

He testified as follows:

“Q. Well is it correct to say that insofar as the

relay itself was concerned that your routine

we.

check simply calls for the covering of the relay

with a metal cylinder in order to determine

whether the light went on?

A. That's right, sir. Yes, sir.

Q. And you did nothing further with reference to

the relay other than that in your routine in-

spections?

That’s right.

Q. For instance you would have no occasion to re-

move the base cover?

A. Not as long as that relay was working there

"and that connection was stil] good. There was

no reason in the world for it. ©

Q. Well then I take it that as far as you were con-

cerned you would leave the relay out there as

long as it functioned -Properly?

- A. That’s right.

Q. That is, until it failed?

A. That’s right.” (Emphasis ours. )

‘In addition to the failure to conduct periodic checks in

order to determine the extent of the gradual pitting

process, neither Stone nor his assistant ever conducted

any ‘fests to determine whether the rated amperage rec-

ommended ‘by the manufacturer of the relay was being

exceeded. (R. 406, 370, 371.)

The respondent has rested its case on proof of peri-

odie inspection of some but not all of the component parts

of the Chandeleur Light’ circuit. But a chain is only as

strong as its weakest link and the sun relay was the

-bridge which connected: the component parts of the light

circuit into an éffective whole.” It would have required

about three minutes during the periodic inspection of the

light circuit to remove the base cover of the relay and

check the contact points. (R. 471.) Respondent’s agents

did not do: 30 bécause it was their intention not to prevent

failure but only to repair it promptly after it occurred.

Respondent, in an effort .to excuse its failure to

guard against the gradual pitting process, proposed to the

Trial Court a finding that “incipient failure of the contact

points cannot be accurately determined by disassembly of

the unit for .Visual ‘inspection, because some darkening ©

and oxidation of the silver occurs in normal use. and some

piived contacts nonetheless complete the electrical circuit.

while continuity can be lost in others which: superficially

appear to be perfectly good.” (R. 592.) The literal accept-

ance of this finding is of no-solace to the respondent for

it clearly indicates the necessity for periodic cleaning and

adjustment of the contact points. The manufacturer says

that under normal use contacts will be subject to pitting

and do require cleaning and adjustment. This finding

of fact by the trial court accepts the manufacturer's

opinion. There is no indic ition in the record that the

pitting, scoring and corrosion which caused the failure,

an end result which came about by. the gradual process

of use, vould not have been discovered if the contact points

had been examined during the periodic inspections of the

light, since inspections were supposed to be made once a

month. (R. 349.) The manufactu'er’s representative said

‘R. 489):

“. .. DT have seen pitted contacts which have high

resistance. I have seen pitted contacts which would

continue, which would have a certain continuity. .

There is a degree of pitting, and | certainly can-

not pose as an authority on how much a contact

will tolerate before continuity is lost.” ( Emphasis.

ours. }

Thus it appears that the seriousness of the pitting prob-

lem is a matter of degree, and that when pitting develops

beyond a certain poirt continuity in the circuit is lost.

It is quite true that in some instances it. would be impos- °

sible, by merely looking at the contact points, to ascertain

whether they would or would ngt be conductive. But this

is not to say that the failure of the contact points could

not be avoided by periodic examination, for if the points

were chécked periodically they would be cleaned periodi-

cally if and when they showed signs of pitting, and the

pitting would never approach 2 dangerous degree. Peri-

odie checking and cleaning would prevent the pitting from

approaching the danger point of broken continuity. The

testimony on this point from the manufacturer's repre-

‘entative is as follows (R. 495) -

“I don’t think that there vould be anything notice-

able? I don’t think there is any warning. I believe

a light is either on or it’s off. And I believe that

continuity would be maintained until a lead point

of failure. The only way that I think you would

detect a gradual lessening is to put some unusual’

measuring laboratory-type devices to analyze the

circuit. Things normally work until they fail and

like the one-horse shay, they stop.” ‘Emphasis

ours. }

It is quite clear that when the manufacturer’s re})-

resentative says that there would not be “anything notice-

able”, that there would not be “any warning,” that the

light “is either on or it is off,” he is not Saying that “‘in-

cipient failure,” that is, pitting in its early stages, could

not have been seen.if the points had been examined. He

is saying that mere observation of the over-all circuit

-~ Would not reveal the pitting until the light failed, which

is of course true, because the current through the contact

points would not gradually diminish but would continue

undiminished until the point of failure. The manufac: *

turer’s representative, in th® above excerpt, is not refer-

ring to the appearance of the contact points themselves.

He is saying that the light would burn with normal bright-

ness while thé gradual pitting was building up to that

point at which the degree of pitting was such as to inter-

fere with the continuity of the circuit. This js obvious

from his reference to “some unusual Measuring labora-

tory-type devices to analyze the circuit.” He could not

have been referring to the. contact points themselves, for

it requires no “unusual laboratory-type device” to look

at the contact points and see if they are clean and un-

damaged or wheiher they are pitted and scored. Even

normal pitting is obvious to the naked eye and the need

for cleaning would have been obvious if an inspection had

been made. The abnormal pitting, scoring and corrosion

found by Holmes after the light failed would have been

just as apparent before the failure as it was to Holmes

afterwards. It was the lack of adequate inspection of

the contact points which permitted the pitting to reach

the degree which prevented the light from functioning.

ARGUMENT UNDER THE SECOND QUESTION.

Petitioners submit that the record contains affirma-

tive evidence of the neglizence of the Coast Guard per-

sonnel charged with the maintenance of Chandeleur Light:

but pretermitting entirely the affirmative proof: of negli-

‘gence elicited ‘from respondent's own Witnesses, petition-

ers rely alternatively upon the specially pleaded doctrine

of res ipsa loquitur, as the facts retlected in the record

create an inexorable implication of negligence. The

Appellate Court disposed of this theory with the following

comment (R. 600):

“Relying on the ‘doctrine of res ipsa loquitur’, a

doctrine which is ‘not proof and does not supply

Want of proof’, but is merely an elegant and, to

some, a niystifying way of stating ‘a rule of inter-

pretation by which evidence of facts is made to

speak the lavical conclusions naturally flowing

therefrom’, appellants seem to feel that it operates

here to impose upon the United States a kind of

ability without fault, making the United States,

as the owner and operator of the light, an insurer

against its failing. |

“Appellants in’ short seem to insist that proof

merely that the light failed imposed liability upon

the United States as a matter of law and, though

the district judge has, upon an examination of the

evidence, found and concluded that plaintiffs have

not shown that the United States was at fault, it

must nevertheless be cast in judgment,

“We think the slightest reflection upon the mean-

ing and appliéation of the rule appellants’ invoke,

as it is stated and applied in 38 Am. Jur.. p. 989,

and in the cases they cite,? will show that this is

not so.” —

The Court of Appeals expressed an entirely erroneous con-

cept of the doctrine of res ipsa loquitur and of petitioner-’

reliance thereon. The doctrine does not imply liabilit)

without fau!t or insurer liability as, for example, the

liability of a shipowner for failure to provide a seaworth)

vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85. The

obvious distinction between the doctrine of liability with. -

out fault and the doctrine of res ipsa loquitur is apparen*

from the classic definition of res ipsa loquitur appearing

in 38 American Jurisprudence, page 989:.-

“While the mere fact of an injury will not give.

rise to & presumption of negligence on the part of

anyone, under the doctrine of res ipsa loquitur, an’

expression which means. literally, the transaction

speaks for itself, the facts or circumstances accom-

_panying an injury may be such as to raise a pre-

“umption, or at least permit an inference, of neg-

ligence on the part of the defendant. The conclu-

Sion to be drawn from the cases as to what consti-

tutes the rule of res ipsa joquitur is that proof .

that the thing which caused the injury to the plain-

tiff was under the control and management of the

defendant, and that the oecurrence was such as in

the ordinary course of things would not happen if

those who had its control or management used:

proper care, affords sufficient evidence, or. as

sometimes stated by the courts, reasonable evidence,

in the absence of explanation by the defendant,

that the injury arose from or was caused. by the

defendant's want of care.”

The mechanism which failed in this case was under the

exclusive control &nd management of the Coast Guard,

a> it Was located within the structure of the lighthouse

and the respondent had the only key. (R. 363-365.) The

sun relay Was an ordinarily reliable device, which, when

yroperty installed and maintained, had an anticipated

Working life ot from 20 to 60 years. (R. 592.) Respondent

admits thee the failure which eccurred in this case was

“such an occurrence as-in the ordinary course of things

would not heppen. As has been said already, the manu-

facturer of the sun relay conditions its reliability. upon

tue use of . limited current through its contact points

and adds thac all contact points, in the course of ordinary

use, incur some pitting and do require cleaning and ad-

justment. In this. context the respondent has come for-

ward with no testimony from anyone connected with the

installation of the sun relay in the light circuit in 1949

‘o prove its proper installation initially, and the men

charged with the maintenance of the light have said that

thev were not instructed or equipped to check the amount

of current flowing through the contacts during 1949, 1950,

and+1951, and that. furthermore, they were instructed

nat to go into the base of the relay in order to determine

if and to what extent pitting was occurring, in spite of

the fact that pitting is an expected by-product of the

_ use of any electrical contacts. . :

Respondent’ proposed, the District Court adopted,

and the Court of Appeals approved a finding of fact to

the effect that “the cause of the pitting is stil] not known”.

(R. 592.) To state the situation more accurately, how-

ever, it should be said that the cause of the pitting is

known, /. ¢., the excessive current. What ‘is net known

with certainty is the source of thie excessive current. Only

two witnesses with qualifications in the field of electric:!

circuits testified at the trial. One was Professor Cron-

vich, offered by petitioners: the other was Harvey, offered

by respondent. -Beth men expressed the opinion that the

pitting and scoring described by Holmes must have been

caused by excessive current. Neither expert could ac:

count for the inoperative condition of the contacts in the

short two-year span during which the sun relay had been

installed in Chandeleur Light except by the ‘assumption

that excessive’ current had been used t ictuate the relay.

So it is not-correct, as a’matter of fact. to say that the

cause of the pitting is not known, for the record contains

convincing evidence that excessive current caused jt.

What the record does not show conclusively, however, js

where the excessive current came from.

Petitioners submit that it is incumbent upon the

respondent ‘o come forward with an explanation of the

source ‘of the excessive current Which caused the failure

of the relay or to negative the possibility that negligence

on its part permitted excessive current. to pass through

the: contact points of the sun relay for a period Jong. .

enough to make it fail. Petitioners have proved the cause

of the failure of the sun relay, namely, ‘the pitting of its

contact points, and have also’ proved the cause of the pit-

ting, namely, excessive current. No one has proved the

source of the excess current. but petitioners submit tha:

i? is not incumbent upon them to come forward with a

detailed analysis of the circuit. which was under the exclu-

-ive control of the government for many years preceding

and following the failure, in order to pin-point the exact

manner in which excessive current was permitted to pass

through the sun relay. It will doubtless be respondent's

position here, as it was below, that there is no source from

Which the additional current could come, but the incor-

rectness of this statement can be easily demonstrated.

The iight circuit itself was a 32-volt circuit. Because

the contact points in the relay last longer under a lower

voltage, the relay. was installed in an auxiliary 12-volt

circuit. Tne manufacturer's recommendation of a maxi-

mum safe current through the contact points was 1.5

amperes at 12 volts..(R. 592.1 Amperage indicates the

strength of « current of electricity measured in amperes,

Voltage measures the strength of an electrical force. An

ohm is the unit of electrical resistance, Amperage is

equal to voltage divided by ohms and the strength of

@ current In amperes is expressed -by* the following

formula: . .

‘Voltage

amaperace — —..........

ohms

In the 12-volt current with which we are concerned, a

wirrent of 1.5 amperes depends upon a resistance of 8

aims. The electromotive force of 12 volts is inherently

sufficient to cause current in excess of 1.5 amperes to

low through the relay if the resistance of the circuit

diminishes below & ohms. Professor Cronvich theorized

that there may have been: a short in the cail terminals

of the protective relay ‘T. p. 255) which could have de-

creased the resistance of the circuit and drawn a current

28.

in excess of 1.5 amperes through the relay. Even assum-

ing that respondent. had proved proper installation in

1949, which it did not do, since no o0.°e connected with the

installation. was called to testify, a snort in the coil ter-

minals of th relay some time between 1949 and “1951 i-

a logical explanation of the damaging current.

Respondent must admit’ that proper care required

that the relay be used within the recommended amperage

of the manufacturer. But the men in charge of Chande-

leur Light were not even furnished with an ammeter.

a simple instrument with which it would have been possi~

ble to measure in amperage the amount of electrical cur-

rent flowing through the circuit. (R. 406.) Petitioner:

submit that it is incumbent upon the respondent to nega-

tive the possibility of excessive current altogether or .

explain it in a manner consistent with the exercise of

due care by zespondent’s agents. This case is within the

Scope of the doctrine of res ipsa loguitur as applied hy

this Court in San Juan Light & Transit Company v. Bele)

Requena, 224 U. S. 89, 32 S. Ct. Reporter 399. In tha:

case the defendant power company was held responsible

for an unexplained increase in the voltage supplied to the

plaintiff's residence. Exception was taken ¢to the Tria!

Court’s actioa in applying the doctrine of res ipsa loquituyr,

and Justice Van Devanter resolved the issue in‘the follow-

ing language: ‘

“Exception to this instruction was taken upon the

ground that it erroneously applied the doctrine of |

res ipsa loquitur. -While recognizing that that doc-

trine is of restricted scope, and when misapplied

is calculated to operate prejudicially, ‘we think

there was no error in its application in .this in-

_ stance. The deceased was without fault. The de-

fendant’s primary wire was carrying a current of

high and deadly voltage. Its secondary wire con-

veyed to his residence an excessive*and dangerous

current which could only have come from its pri-

mary wire. Had its wires and converters been

in proper condition, the excessive and dangerous

current would not have been communicated to its

secondary wire, and the injury would not have oc-

curred. These wires and converters were exclu-

sively under its control, and it was charged with

the continuing duty of taking reasonable precau-

tions, proportioned to the danger to be apprehended.

to maintain them in proper condition. In the ordi-

nary or usual course of things, the injury would

not have occurred had that duty been performed.

Not onl did the injury occur, but immediately

thereafter both converters were found to be out

of order: one being heated and its insulation

charred, and the protecting ground wire of the

other being broken or severed. Besides, the de-

fendant engaged to supply a current of low. volt-

age, reasonably safe and suitable for lighting, while

the current delivered on this occasion was of high

Voltage, extremely dangerous and unsuitable for

lighting purposes. These circumstances pointed

So persuasively to negligence on its part that it was

hot too much to e4]]) upon it for an explanation.

“Of course, if the cause of the injury was one

Which it could not have foreseen and guarded

against, it was not culpable; but in the absence of

that or some other explanation there was enough

to justify the jury in finding it culpable. This

Was all that was meant by the instruction, rea-

sonably interpreted. It was not’ a model, and, if

it stood atone, might be subject to criticism. But.

it read in the light of what preceded and followed

it, and of the case before the jury, it was unob-

jectionable. When so read it rightly declared and

applied the doctrine of res ipsa loquitur, Which is,

when a thing which causes injury, without fault

of the injured person, is shown to be under the ex-

: «

clusive control of the defendant, and the injury

is such as, in the ordinary course of things, does

not occur if the one having such contro} uses proper

care, it affords reasonable evidence, in the absence

of an explanation, that the injury arose from the

defendant's want of care. Inland & Seaboard Coast-

ing Co. v. Tolson, 139 U. S. 551, 554, 35 L. ed. 270,

271, 11-Sup. Ct. Rep. 653; Zahniser y. Pennsy]-

Vania Torpedo Co.,°190 Pa. 350. 42 Atl. 707; Alex-

ander v. Nanticoke Light Co., 209° Pa. o71, 67

L. R. A. 475, 58 Atl. 1068: Trenton Passenger R.

Co. v. Cooper, 60 N. J. L. 219, 38 L. R. A. 637,

64 Am. S:. Rep. 592, 37 Atl. 730: Newark Electric

Light & P. Ce. vy, Ruddy, 62 N. J. L. 505, 57 L. R.

A. 624, 41 Atl. 712: 2 Cooley, Torts, 3d ed. 1424;

4 Wigmore, Ev. § 2509.” ;

its own evidence respondent has established that under

ordinary circumstances the re

years if properly maintained and operated. But

. did occur, ‘and respondent’s

Reynolds Metals Company v. Vturbide, 258 F. (2d) 321.

lay will operate for many

a failure

dilemma is well stated in

31.

in Which opiniopr Judge Pope of the Ninth Cireuit Court

of Appeals included ‘page 330) the following quotation

from Harper & James’ Tie Law of Torts, Section 19.12:

“Defendant in a res ipsa case may show by evi- |

dence how! the accident happened, but ordinarily

this does not entitle him to a directed verdict. The

jury mav still reject the evidence or find that’ the

explanation does not preclude the likelihood of neg-

ligence. * * * In most res ipsa loquitur cases de- 4.

fendant eannot: definitely éxplain the accident. His’

usual defense consists, of proof of the precautions

he did. take ‘in constructing, maintaining, and op-

erating the injuring instrumentality, Once in a

. freat while such proof May conclusively show that

the accident did not in fact happen, or thatit was

ehot caused by defendant. But this is seldom the

outcome. And where-it js not, defendant is in thjs

dilemma; the léss effective his precautions to pre-

vent the occurrence the more apt they are to appear

negligent; the more effect®e the precautions testi-

fied to, the less likely they are to have ‘been’ taken

in this case since the accident did happen.”

There is no indication in the jurisprudence that the courts

have been loath to apply the doctrine of res ipsa loquitur

against the United States in cases brought under the Fed-

eral Torts Claims Act. D’Anna v. U.S. 181 F-. (2d) 335:

U.S. 1. Johnson, 18) F. (2d) 577: U.S. x. Kesinger, 190

F. 12d) 529, In the Kesinger case. supra, the Court of

Appeals for the Tenth Circuit Was concerned with the

crash of a government ai rplane and observed (page 531):

“An airplane of a proven safe. type of design tak-

ing off for an ordinary routine flight under nor-

ma} weather conditions does not crash in the ordi-

nary course of things, unless there has been a fail-

ure to properly inspect, service and maintain it,

or unless it is not operated with due care.”

In the above authorities, which were cited to the Court

of Appeals, the courts were of course not concerned with

‘any concept of insurer liability or liability without fault,

as the Court of Appeals erroneously assumed to be peti-

tioners’ contention.in this ease. These authorities involve

litigations in which the courts assumed from the sur-

rounding “eircumstances that negligence had’ in fact oc-

curred, although not proved by direct evidence. In the

ease at hand, petitioners have never contended and do not

‘now contend that the Coast Guard is the insurer of the

perfect perfermance of Chandeleur Light. Petitioners

have contended, on the contrary, that the evidence of

respondent’s own personnel shows a negligent failure to

maintain the light. Alternatively, and if the positive

evidence of negligence is found wanting, petitioners point

to the unexplained failure within two years of a device

in respondents’ custody, designed to function for from 20 |

to 60 years, which failure has not been explained in any

manner consistent with the exercise of due care by the

respondent.

CONCLUSION.

The importance of the decision of which review is

here sought lies in the fact that the Coast Guard ss the

custodian of nundreds of similar aids to nagivation along

the Atlantic, Pacific and Gulf coastlines. These aids are

relied upon continuously by commercial shipping and pri-

vate boatsmen. The import of the decision cf the Circuit

Court, approving as it does, without modification, the

findings proposed to and adopted by the District Court,

is twofold: First, it absolves the Coast Guard from the

consequence of an obvious failure to use means reatlily

available to discover and correct incipient failure of an

. aid to navigation before it occurs, and permits the Coast

Guard to acquit itself of responsibility by prompt repair

‘of a failure after it occurs, cantrary to the opinion of this

Court (quoted on page 3 of this brief) in which it is

clearly provided that it is the Coast Guard's obligation

not only to use due care to discover failures and repair

them prompt!y but also to use due care to prevent their

occurrence. Secondly, the opinion of-the Court of Appeals,

by its misconception of petitioners’ contentions with

regard to the doctrine of res ipsa loquitur, has nullified,

in large measure, the practical application of the opinion

_of this Court in this case by equating the doctrine of yes

ipsa loquitur with the concept ef liability without fault

or insurer liability. By construing reliance upon the doc-

trine of res ipsa loquitur as reliance upon the doctrine

of liability without fault, the Court of Appeals has de-

prived petitioners of the real benefit to be derived from

res ipsa loquitur, and has disposed of petitioners’ rights,

not on the basis of whether or ,,ot negligence has been

proved, byt on the assumption that petitioners seek recov-

ery from a respondent against whom no charge of negli-

gence is made. Petitioners have never contended that

they are entitled to a judgment based upon insurer lia-

bility, or liability without fault, and the Court of Appeals

‘has applied a false standard in judging the responsibility

of the respondent. :

When a failure of an aid to navigation maintained

-by the Coast Guard occurs, a party injured as a result

of the failure will in most instances, gp not always, find

it impossible to prove negligence, when negligence has in

fact occurred, without the assistance afforded by the doc-

trine of res ipsa loquitur, properly applied. For this doc-

‘trine, if it does nothing else, at least’ requires the Coast

Guard to come forward with an explanation of the failure.

or if the cause of the failure cannot be discovered, with

evidence of the manner in which the device which failed

was procured, installed, checked and maintained so that

the Court can decide whether, under all of the cireum-

stances, the failure occurred in spite of the exercise of

due care by the Coast Guard. ‘lo approach a case of

this kind, as the Court uf Appeals has done, as one in °

which the Court is required to decide, not whether the

Coast Guard was negligent, but rather whether the Coast

Guard is iab'e as an insurer, without negligence, is to pre-

_ judge the very question which is at the heart of the pro! i

lem. Havine prejudged the question of nesligence,’ a

Court will obviously be less critical and less demanding

in weighing the testimony of Coast Guard personnel with

regard to What transpired prior to the failure.

The opinion of the Court of Appeals in this case

modifies in targe measure this Court’s requirement that the

- Coast Guard must use due care to make certain that light-

houses are kept in good werking order. It is of obviou-

importance to the shipping industry and to the operators

of private pleasure craft in. coastal waters. It is sub-

mitted that the case ts a proper one for the exercise of

this Court’s certiorari jurisdiction.

Respectfully submitted,

RICHARD B. MONTGOMERY, JR.

806 Natl. Bank of Commerce Bldg.,

New Orleans 12, Louisiana,

_Attorney for Petitioners.

Of Coursel: ‘ ;

HENRY J. READ

MONTGOMERY, BARNETT. BROWN & READ

APPENDICES ©

APPENDIX “A”.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

» . FINDINGS OF FACT AND

CONCLUSIONS OF LAW

‘Number and Title Omitted. ' Filed: October 8, 1959)

CHRISTENBERRY, J. °

The foregoing matters have been consylidated for

‘trial, and having been tried to the court without a jury,

the vourt having heard evidence and the arguments of

counse) and having taken time to consider the matters,

hereby makes the following Findings of Fact and Conclu-

sions of Law:

FINDINGS OF FACT

1. Indian Towing Company, Inc., is a corporation

.organized and existing under the laws of Louisiana, and

on or about October 1; 1951, and at all times material

hereto. was the owner of the Tug NAVAJO.

2. United Marine Company is a Louisiana part-

nership. composed of Lester F. Alexander, Leslie B.

Durant, Wiley F. Wroten and William E. Padel, and on or

about October 1, 1951, and at all times material hereto,

was the owner of the Barge AS-16 which was under char-

ter to Upper Mississippi Towing Corperation.

3. Upper Mississippi Towing Corporation is a cor- ,

poration organized ar.’ existing under the laws of Minne-

sota. and’ on or about October 1, 1951, and at all times

material hereto, had a towage cortract with Indian Tow-

-ing Company pursuant to which the Tug NAVAJO was

to tow the Barge AS-16 from Tampa, Florida, to New

Orleans, Louisiana.

4. Minnesota Farm Bureau Service Company is a .

corporation organized and existing under the laws of Min-

nesota, and on or about October 1, 1951 and at all times

material hereto, owned a cargo of triple super phosphate

aboard the Barge AS-16.

5. United Firemen’s Insurarice Company’ is a cor-

poration organized and existing under the laws of New

York, and on or about October 1, i95i and at all times

maierial herete, was the insurer of the cargo of triple

super phosphate aboard the Barge AS-16.

6. «he General Insurance Company is a corpora-

tion organized and existing under the laws of Washington.

and on or about October’ 1, 1951 and at all times material

hereto, was the hull insurer of the Barge AS-16.

7. The United States of America. through the

United States Coast Guard, on or about October 1, 1951.

and at all times material herete, owned, maintained and

operated an Aid to Navigation identified as Chandeleur

Light situated near the NW end of the northermost of the

Chandeleur Islands, Gulf cf Mexico, approximately 22

miles in a straight line and 26-27 miles by boat from

Gulfport, Mississippi, the location of the nearest manne‘

Coast Guard shore station. The light itself was atop

a 99-foot structure and had aq visibilit.- of 16 miles in

clear weather. It was automatic in operation, and drew

its power from a bank of storage cells, iotaling 32 volts.

A component element of the: system was a sun relay

swjtch-or unit by which the light was caused to function

only dvring hours of darkness.

8. In 1949 when the light was made electric and

automatic in operation, its resident personnel was dis-

continued. Primary-responsibility for its maintenance

and operation was assigned the Gulfport Light Attendant

Station, Gulfport, Mississippi, which also had such respon-

sibility for. approximately 55 other lighted aids to navi-

gation. At that time and subsequently through October

1951 and to the date of trial, instructions for the inspec-

tion and maintenance of Chandeleur Light called for a

check of the component elements at least once every thirty

days, which inspection included a check of the functioning

of the whole by artificially darkening the sun relay unit,

thus causing the light to come on, if all were in working

order,

9. Shipping interests and the public generally were

notified of the unmarmed status through “Local Notice to

Mariners No, 107” of 1949. All published light lists sub-

sequent to-1949 have designated thie Chandeleur Light as

unmanned and this was shown, in the 1951 Light List by

‘the symbol “U" which was defined:

“U after the name of the light indicates the light

is unwatched. All lighted buoys are unwatched.

Unwatched lights may become irregular or extin-

guished although such apparatus have a high de-

gree of reliability.”

bond

10. The NAVAJO was a_pilothouse-controiled

single screw 900 HP Diesel propelled steel hull -vessel of

88 foot length, 22 foot beam and 8!5-9 fqot draft. On or

‘about October 1, 1951, and at all times material hereto,

her personnel consisted of a captain, a mate, two engi-

neers, two deckhands and a cook. She was equipped with |

a radio,-a radio direction finder and & standard magnetic

compass, but had no radar and her fathometer was in-

operative. .She had aboard the charts of the Gulf Coast

area, the Light Lists and some other navigational pub-

lications, but did not have Tide and Current Tables.

11. The AS-16 was an unmanned steel barge of

190 foot length, 40 foot beam, and 91. foot draft. During

the voyage here involved she was fully loaded with triple

super phosphate, and from the time of ‘departure from

Tampa Bar to her grounding she was towed astern the

NAVAJO at the end of a 800-900 foot manila hawser.

12. The NAVAJO and her tow departed Tampa

Bar at 10:00 P.M. September 28, 1951, going directly

in open water in her landfall off Sand Island Light at the

entrance to Mobile Bay, reaching a position approximately

5 miles off the light at 6:00 P.M. September 30, 1951.

having averaged 7 knots for the 311 mile distance. She

then proceeded Westerly and parallel to the coast to a

point approximately 5-6 miles abeam of the Horn Island

Light,.reaching’this position at 9:20 P. M. September 30.

1951, and, having averaged 6.9 knots for the 23 mile dis-

tance. The wind at this time was approximately 30-35

miles per hcur, waves were approximately 5-6 feet and

visibility not more than 10 miles. Her master, who regu-

larly had the 6 to 12 watch, was at the conn.

13. After leaving the position abeam Horn-Island

Light, the master followed a compass course of 268 mag-

netic intending to make good an actual course of 265

magnetic. Wind and sea conditions continued substan-

tially the. same, but visibility gradually lessened. * The 3

allowance of course set over course intended was to com-

pensate for the northeast wind, the effect of whith the

master thought would be substantially reduced by a tide

continuing on the flood during this time. Actually, how-

ever, as he could have determined from tide tables if they

had been aboard, the tide did not continue on the flood for

this period, but went to-the ebb on or before 10:30 P.M.

on the night of September 30th-October Ist, 1951. With

weather conditions such as existed at that time, a tidal

flow of up to four knots could have been reasonably antici-

pated. The NAVAJO, then past Horn Island Light and

on her way toward Ship Island.Pass, was thus strongly

set to the south by both wind and tide, which were now

cumulative in effect. ,

14. The master was to be relieved at 12 o'clock

midnight by the mate who was assigned the 12 to 6 watch.

Between 11:30 P. M. and 12 midnight, prior to his time

to take over, the mate attempted to ascertain the position

of the NAVAJO and her tow and found that the master

did not know “where he was at”. No fixed of any kind

had been obtained by the master in the two hours and

forty-nine minutes since leaving Horn Island. Accord-

ingly, the mate refused to relieve the master of the conn.

15. The master remained at the conn, and despite

being lost, continued on the same compass course and the

same speed until he ran aground at 12:20 A.M. October

1, 1951, less than a mile from the northernmost tip of

Chandeleur Island. From the time she left her position

abeam Horn: Island until.the time of the grounding the

NAVAJO had averaged 6.53 knots for the distance of

19.6 miles.

16. With an inoperative fathometer, the NAVAJO

could determine the depth of the water she was in only

by taking soundings with a hand lead line. These, to be

accurate and reliable, must be "taken at dead slow speed,

which with a tug and tow, such as the NAVAJO and the

AS-16, ‘requires a slowing and regaining speed that costs

10-15 minutes in lost time. The NAVAJO could not have

taken more than one or possibly two such soundings and

maintained her average speed of 6.53 knots between her

Horn Island fix and her grounding.

17. At the time of Grounding visibility had been

reduced to 485 miles. The course actually made good

from the NAVAJO’S position off Horn Island to her

grouiding was 253 magnetic. A course of 265 mag-

netic, such as her master thought he was on, would have

carried the vessel and her tow to the north,and outside

the then range of visibility of Chandeleur Light, and he

would never have seen it, hut would have instead picked

up the sea buoy midway between Chandeleur and Ship

Islands.

18, With a visibility of 4-5 miles and heading west

from his Horn Island fix at an average speed of 6.53 -

knots, the master of the NAVAJO should have expected

to sight either the sea buoy midway between Chandeleur

and Ship Island, or Chandeleur Light itself, not later than

midnight, twent’ minutes before his grounding. At this

point, if he had not identified his position, he had then

run out his time. Proper and competent seamanship in

such a situation is either to anchor in order to detér-

mine position, or to effect a 180 change in direction and

go back over the original course. To proceed on with

the same course and speed was to invite the disaster that

occurred,

, 19. The NAVAJO was first to touch bottom, and

i the master immediately sought to avoid stranding his tug

' -by backing and tarning. In aid of this maneuver the

mate cut the hawser to the AS-16, setting the barge

adrift while still afloat. During or shortly: subsequent

to, this maneuvering, ‘the searchlight of the NAVAJO

which had not been used since leaving Tampa was lighted

for the first time, and the crew members were able to see

a structure on shore which was identified as the structure

of Chandeieur Light.” The light itself was not functioning.

r 20. The barge, ‘set adrift, grounded approximately

100G-2000 feet from the base of the Chandeleur Light

structure and the tug proceeded on to Gulfport, Missis-

sippi, without her tow. As a result of the stranding the

AS-16 was damaged and her cargo damaged and or lost.

21. The Tug NAVAJO on October 1, 1951 and at

all times material hereto, was inadequately equipped, un-

seaworthy and unfit for safe navigation of the waters

surrounding Chandeleur Island in that she did not have

, aboard tide and current tables in an area characterized by

strong and abruptly changing tidal currents,.and in that

her fathometer was inoperative in an area of shoal waters

and low, sandy islands of limited visibility.

lle

22. The Tug NAVAJO was in charge of and being

navigated by a master who was careless, incompetent, neg-

ligent and at fault in the following particulars :

ia! He placed absolute reliance on an unmanned

and unvatched light.

(bi He made inadequate and improper allowance=

for tide, wind and weather conditions.

ic) He did not properly consult or use wach navi-

gational aids, facilities and equipment as the NAVAJO

did carry.

. (d) He continued under way at the same cours

and speed despite having run his time ovt on his expected

sighting if he had been on his dead reckoning course.

‘e) He continued under way-at the same course

and speed despite not knowing: his position. ;

if) He contirned into shoal waters, not knowine

the depch, and taking insufficient and or unreliable souna-

_ ings.

ig’ He ran his vessel and her tow aground on

well known and fully charted body of land.

23. The stranding of the AS-16 with the resultan’

- damage to the hull of the barge and the damage and or

loss of her cargo was caused proximately by the unsafe.

unfit and unseaworthy condition of the Tug NAVAJO.

and particularly her ‘inadequate - and improperly main-

tained nav igational aids, facilities and equipment; and by

the gross carelessness, incompetence, negligence and fau!:

of her master as set out above.

24. The Coast Guard hed no notice from an;

source of the failure of Chandeleur Light prior to approxi-

mately 10:30 P.M. October 2, 1951. At that time the

Coast Guard Cutter NIKE, returning to station in Gulf-

port from patrol off Campeche, Mexico, having failed to

pick up the loom of the light off the C handeleur Islands,

h:id.anchored and determined that the light was not func-

tioning. She forthwith radioed this information to the

Coast Guard District Office in New Orleans, which ih

turn immediately sent out a broadcast‘ to all shipping

interests and the public generally, notifying them that

the light was’ extinguished. ;

25. The Coast Guard used all means reasonably

‘available to it in discovering that Chandeleur Light was

out, and gave immediate warning by radio and publication

of the fact of the extinguishment of the ligut to all ship-

. ping interests and the public generally.

26. At the same time the Coast Guard District

Office broadcast warning that Chandeleur Light was #-

tinguished, the Coast Guard Cutter SALVIA was dis-

patched to correct the nonfunctioning of Chandéleur

Light. She arrived off Chandeleur Islands the following

morning, October 3, 1951, and succeeded in relighting the

light in the afternoon of that day. The fact of relighting

was immediately broadcast to all shipping interests.

27. The Coast Guard, after discovery that Chande-

leur Light was out, acted with all possible speed in repair-

ing and relighting it.

28. In restoring Chandeleur Light to uormal oper-

ating condition, the party assigned this task from the

SALVIA checked all component elements of the light sys-

tem. The sun relay unit was,found to be malfunctioning.

This unit was removed from its position, at which time

its base was found to be partially filled with mud from

dirt daubers, a species of wasp, but none of this mud wa-

in the interior part where the silver contact points which

make and break the circuit are located. The unit wa-

disassembled and a fine deposit with pitting was found on

the contact points. These were cleaned and adjusted, an‘

the unit reassembled, placed back in position, connected!

and checked. The entire light was then found to function

normally. * a

29. There had been no indication of failure or

malfunctioning of the sun relay unit or-any other part

of the Chandeleur Light system during the entire time

between its installation in 1949 and the outage in October

1951. The last regular inspection of the Chandeleur Ligh:

had been made on September 7, 1951, approximately three

weeks prior to the grounding of the NAVAJO and its tow

At that time the regular checks were made, including the

artificial darkening of the sun relay. and the light oper-

ated. normally. No irregularities or malfunctioning |

any sort were found.

30. The melfrnctioning of the-sun relay unit.-

whien in turn caused the outage of Chanceleur Light. wa- .

not due to the mud. in its hase, but was due to a failure of

the silver contact points, because of pitting, to complete

the electrical circuit of the relay system. The cause of

this pitting. suffieent to bring, abut failure in this in-

stallation, which had not occurred previously and has ne"

accurred subsequently up to the date ef trial, is stil! no"

known. As installed in the Chand leur Light system the

unit hud’a separate 12 voli cireuit with a total curren

. AT

flowing through it of .048 amperes. less than 1 30th the

maximum safe. current permitted by the manufacturer’-

<pecifications for this unit of 1.4 amperes at 12 volts.

31. Incipient failure of the contact noints cannot

he accurately determined by disassembly of the unit and

visual inspection, because some darkening and oxidation

of the silver occurs in normal use, and some pitted con-

tacts nonetheless complete the electrical circuit, while con-

tinuity can be lost in others which superficially appear to

be perfectly. good.

’

32. The sun relay unit as used in the Chandeleur

Light system is of standard design. having been originally

devised by the Swedish scientist. Gustaf Dalen, around the

turn of the century and manufactured in something simi-

lar to its present state by the same concern, the American

Gas Accumulator Company. since 1921] or 1922. It is the

most reliable of the light-actuated switches, and when in-

stalled in such a station as Chandeleur Light has an antii-

pated working life without failure of from 20 to 60 vears.

Its failure, on station was an occurrence. that could not

have been reasonably foreseen.

”

;

3%. The Coast Guard used due care to make cer-

tain that Chandeleur Light was kept in good working

order. The standards set. und the adherence to the-e

standar «, show no negligence whatsoever on its part.

34. The casualty complained of was not crused or

contributed to by ony act or neglect of governmental per-

sonnel but was occasioned solely by negligence. fault:

carelessness and incompetence in the maintenance end

operation of the NAVAJO and her tow.

CONCLUSIONS OF LAW

1. This court has jurisdiction of. these actions, and

venue is properly laid in the Eastern District of Louisi-

ana; 28 USC 1346. =

2. Running aground on a well known and fully

charted body of land in itself raises a presumption of

negligence and fault. The Helen B. Moran, 255 F. 342: ~

New York Trap Rock Corporation v. The Dynamic, 5!)

F.-Supp. 507, aff'd 136 F. 12d) 683. Not only was this +

presumption not rebutted by plaintiffs, but negligence

and lack of reasonable and due care in’ the maintenance

and operation of the NAVAJO were affirmatively shown.

3. The Tug NAVAJO on October 1, 1951 was un-

seaworthy for the area in which she was being navigated

in the following respects: (1) She was in charge of and

being navigated by an incompetent master; (2) she did

not have tide and current tables, which “were necessary

navigational i:formation; and :5) her fathometer wa-

inonerative. The Maria, 91 F. (2d) 819; The T. J. Hoo})-

er, 60°F. (2d) 737. Her unseaworthiness was a proxi-

mate cause of the stranding, which in turn led to the

loss and damage in question.

4. The Tug NAVAJO and her tow on October 1

1951 were navigaied in a careless, reckless, impruden:

and unseamanlike fashion in the following respects 11"

_ inadequate and improper allowances were made for tide.

wind and weather ‘conditions: '2) the same course and

speed were maintained despite the fact that her pos!*'on

was unknown; ‘3: the same course and speed were main- -.

tained despite the failure to pick up her sigutings; (4°

49..."

the same course and speed were maintained in shoal

waters without taking proper soundings; and (5) from

her last known position to her grounding no check or

determination of any kind was made to find out if any

discrepancy existed between the course actually made

good and the course intendei to be made, but: instead,

absolute reliance for warning in the event of such dis-

crepaney was placed on an unmanned light known to be

subject to irregularity or extinguishment. These errors

of navigation were a proximate cause of the stranding,

which in turn led to the loss and. damage in question.

5. The Coast Guard had neither actual nor con-

structive notice that Chandeleur Light was out on October

1, 1951, and the failure on the part of the NAVAJO to

know that the light was out was not caused by’ any negli-

gence or lack of due and reasonable care on the part of

the Coast Guard. Russell, Poling & Company v, Conner

Standard Marine Corp., 252 F. (2dr 167.

6. Taking into account its own past experience

and the experience of others with the sun relay’ unit, to-

‘ovther with what was inherently probable from the nature

of the device itself, the Coast Guard could not have rea-

sonably anticipated the failure on October 1, 1951, of the

unit from nitted contact points, which in turn caused ex-

Pigehyeresaige of Chandeleur Light. The Germanic, 196

i". S. 589; Ford v. Tremont Lumber Co., (La. 1909), 49

So. pe The bare possibility of such failure is not a basis

upon which to predicate a wrong. Brady v. Southern Rail-

way Co., 320 U. S, 476. In-maintaining and operating

Chandeleur Light as an aid to navigation, the Coast Guard

used due and reasonable ‘care in the performance of its

duty. Indian Towing Company v. United States, 350

U.S. 61.

7. The damage to the AS-16 and the damage tir

and or loss of ker cargo growing vut of, her stranding on

October 1, 1951, was not caused or contributed to in any

way by any act or neglect of the United States, ts agents

servants or employees, and plaintiffs accordingly are not

entitled to recovery from the United States.

& The-United States is entitled to judgment in its

favor dismissing the complaints herein with costs.

New Orleans, Louisiana, October &, 1959.

s Herbert W. Christenberry

UNITED STATES DiS7RICT JUDGE

APPENDIX “B”.

OPINION OF THE UNITED STATES COURT OF |

APPEALS FOR THE FIFTH CIRCUIT

IN THE

- UNITED STATES COURT OF APPEALS’

FOR THE FIFTH CIRCUIT

INDIAN TOWING CO., INC., ET AL...

‘ | Appellants,

versus

UNITED STATES OF AMERICA,

Appellee

Appeals from the United States District Court for the

Eastern District- of Louisiana

(February 29, 1960:

Before RIVES, Chief Judge. and HUTCHESON and

TUTTLE, Circuht Judges.

HUTCHESON, Circuit Judge: Plaintiffs, owners

of the Barge AS-16 and her cargo, in separate suits, con- |

svlidated for trial. for damages against the United States

resulting fromthe grounding of the Barge on Chandeleur

’ Island when, on the night of September 30-October 1,.1951,

the Chandeleur light failed. are here appealing from judg-

52 :

ments finding the United.States not guilty of negligence

and dismissing plaintiffs’ claims. :

Entered upon full findings of fact and conclusions

of law which, setting out in detail, and stating the effect

of, the relevant evidence, the judgments found and heli

that the United States was not negligent or in any way

at fault jn installing and maintaining the light, ‘and

that the damage to the barge and its cargo was caused hy

the unsafe, unfit, and unseaworthy condition of the barge

and the gross carelessness, incompetence, negligence ani

fault of the master.

Attacking as clearly erroneous the findings .and

conclusions (1) that the Coast Guard was not negligent

in the installation and or maintenance of Chandeleur

light, and (2) that the stranding of the Barge AS-16

was caused selely by the Tug Navajo, and was not cause d

or contributed to by any negligence on the part of .

United States, the appellants insist that the findings me

judgments muy not stand. We do not think so.

The case was tried by the court without a jury.

and the district judge. in his function as trier of the facts,

resolved the fact issues against the plaintiffs. Appellants,

however, arfue the appeal as though the district judge

had determined, as matter of law, that a verdict again-*

plaintiffs was demanded and had directed one accor(-

ingly. Of course, this will not at all do. All that oc-

curred here is that the district judge, on evidence we think

fully supporting his finding, determined that plaintif?s

did not sustain their burden of showing that defendant

was at fault and gave judgments aecordingly.

Relying on the “doctrine of res ipsa loquitur”, a

doctrine which is “not proof and.does not supply want of

proof” but is merely an elegant and, to some, a mystifying

way of stating “a rule of interpretation by which evidence

of facts is made to speak the logical conclusions nat-

urally flowing therefrom”, appellants seem to fee] that

it onerates here to impose upon the United States a kind

of liability without fault, making the United States, as

the owner and operator of the light, an insurer against

its failing.

Appellants in short sem to insist that proof merely

that the light failed imposed liability upon the United

States as a matter of law and, though the aistrict judge

has, upon an examination of the evidence, found and con-

cluded that plaintiffs have not shown that the United

States was at fault, it must nevertheless be cast in judg-

ment.

We think the slightest reflection upon the meaning

and application of the rule appellants invoke, as it is

stated and applied in 38 Am. Jur., p. 989, and in the cases

they cite, will show that this is not so.

In Reynolds Metals Co. ¥. Yturbide, 258 F. (2u)

321, the case most strongly .relied on by appellants, at

page 331 the court said:

“When res ipsa’ loquitur is applied, the facts of the

oceurrence warrant the inference of negligence.

They furnish substantial evidence of negligence

where the direct evidence of it may be lacking, but,

they make a case to be decided by the jury. In

finding itself in the dilemma mentioned by Harper

and James in the language quoted above, the appel-

lant is in no different sithation than any other

defendant who finds itself in a res ipsa case and

before a jury. It is not as appellant asserts the

victim of the application of a rule of absotate lia-

bility.’ ( Emphasis added. |

In Smith v. United States, 96 F. (2d) 976, at pp..

877-8, where the doctrine was invoked to meet the burden

of proof imposed upon the libellant, this court, affirming

the judgment of the district judge, finding the United

States not guilty of negligence, stated:

“Appellent has not produced any direct evidence to

support his allegations of negligence. *** To meet

the burden of proof imposed upon him he rélies

upon the doctrine of res ipsa loquitur. Neither the

happening of the event nor any circumstances sur-

rounding the same points to any negligent act or

omission which caused the batten to give way and

injure appellant. In the absence of such,a show-

ing, the application of the doctrine would make ap-

pellee an insurer against the accident. Cf. Burton

v. Greig, 5 Cir., 271: Fed. 271; The Tawmie, 5 Cir.,

80 F. (2d) 792. The doctrine’ is not applicable

in any case unless, by process of probable reason-

ing, the facts and circumstances point out the

wrongdoer the tortious character uf his .act and-

exclude other. probable causes of the injury. The

doctrine js not proof and does not supply a want

of proof.” ‘Emphasis added.)

Because the evidence supporting his findings and

judgment is set out fully and fairly in the findings and

‘wind

conclusions of the district’ judge, with which we agree,

it will serve no useful purpose for us to repeat the state- .

ment here. It will be sufficient for us to refer with

approval to it and to declare; that we cannot say that

any of the findings are clearly erroneous; that, indeed, we |

are of the clear opinion that the judgment was right and

should be affirmed.

AFFIRMED?

APPENDIX “C”,

JUDGMENT OF THE UNITED STATES COURT 01

APPEALS FOR THE FIFTH CIRCUIT

JUDGMENT. |

Extract from the Minutes of February 29, 1460.

INDIAN TOWING CO., INC., ET AL...’

No. 18038, versus

UNITE D'STATES OF AME RICA.

This cause came on to be heard on the transcrip’

of the record from the United States District Court for

the Eastern District of Louisiana, and was argued by

counsel ;

ON CONSIDERATION WHEREOF,« It. is now

_ere ordered and adjudged by this Court that the judg:

ment of the said District Court in this cause be, and the

same is hereby, affirmed.

‘APPENDIX “D”.

SUPREME COURT OF THE UNITED STATES

No.* , Octoher Term, 1959.

INDIAN TOWING CO., INC. ET AL., ”

Petitioners,

UNITED STATES

]

ORDER EXTENDING TIME a PE TITION FOR

WRIT OF CERTI

Bar!

UPON CONSIDERATION of the application of

cunsel for petitioner's),

[T IS ORDERED that the time for filing petition

for writ of certiorari in the above-entitled cause be, and

the same is hereby; extended to and including June 30th,

1960 ;

‘Sr HUGO L.-BLACK

Associate Justice of the Supreme

Court of the United States.

Dated this , 19

day of May, 1960.

- APPENDIX “E”.

Za U.S. C. Section 1346 tb:

Subject to the provisions of chapter 171 of this title.

the district courts, ‘together with the District Court for

the Territory of Alaska, the United States District Cour

for the District of the Canal Zone and the District Court

of the Virgin Islands, shall have exclusive jurisdiction

of civil actions on claims against the United States, for

money damages, accruing on and after January 1, 1945,

for injury or loss of property, or personal injury or deat!

caused by the negtigent or wrongful aet or omission of.an\y

employee of the Government while acting within the scope

of his office or employment, under circumstances where

the Unjted States, if a private person, would. be liable to

the claimant in accordance with the law of the place where

the act. or omission occurred.

she)

APPENDIX “F”:

1. S. C..8}

In order to aid navigation and to prevent disasters,

and aircraft. the Coast

Guard may establish, maintain, and operate:

colisions, and wrecks of vessels

‘l) aids to maritime navigation required to serve

the needs of the armed forces or of ‘the commerce of the

United States: ° ;

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.