# Petition for a Writ of Certiorari — Indian Towing Co. v. United States (No. 195) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0455%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1960 ## Text ‘ . A Price § oe ine c ‘ a ee " E COPY | Pee SS ee : 2 We, oA td P ' eae -j ; "as. mes ee i ° ; 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. © 32 37 56 at 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 . + ad oh | it 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. a ts 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 > Oo 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 5 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 > 10 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? oO nesses for both parties, 11 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 _ . s - 12 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 14 “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: Q. 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- 15 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- my > oO 16 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 17 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 18 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 19 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 20 -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 2 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. } 99 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. 23 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, 24 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, 25 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”. 26 (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- Be -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 29 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 30 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- By 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 33 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 34 ‘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 35 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 te c APPENDICES © 37 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- . 38 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 39 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.” 40 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. oe » 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 44 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- 45 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. Y 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. 46 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 mA . AT flowing through it of .048 amperes. less than 1 30th the maximum safe. current permitted by the manufacturer’-