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Swenson v. Argonaut

decided: May 7, 1953.

SWENSON
v.
THE ARGONAUT ET AL.; THE ESTELLE; THE SUSAN



Author: Kalodner

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

A brief prologue may perhaps serve to soften the impact of a subsequent inevitably detailed recital of a complex sequence of litigation in the United States District Court for the District of New Jersey and appeals and cross-appeals in this Court.

On August 15, 1947, the steamship Argonaut owned by Farrell Lines Incorporated ("Argonaut") was moored to a pier in Jersey City, New Jersey operated by a group of individuals trading as The Hercules Company ("Hercules"). The Argonaut broke adrift in a storm damaging a catamaran and four barges moored at the foot of the same pier.

The owners of the damaged craft ("Libellants") brought four separate actions in admiralty*fn1 against Argonaut charging it with negligence. Argonaut answered denying negligence on its part, and by petition impleaded Hercules in each of the four suits charging that its breaking adrift was due to the pier's defective and inadequate mooring facilities. Hercules answered the impleading petitions denying negligence and counter-claimed and cross-libeled Argonaut for damages to the pier.

Argonaut added to the roster of the four aforementioned suits with a fifth separate action against Hercules seeking recovery for damages to the steamship Argonaut, and Hercules, in its answer denying any negligence on its part, also counter-claimed and cross-libeled for damages to its pier.

The five suits by stipulation of all the parties involved came to trial in the District Court as a consolidated case.

After hearing, the District Court in a Consolidated Final Decree dismissed the four suits brought by the Libellants; Argonaut's impleading petitions and Hercules' counter-claims and cross-libels therein; and Argonaut's separate suit against Hercules and the latter's counter-claim and cross-libel therein.

The District Court's dismissals were premised on its determination that (1) the steamship Argonaut was moored in a seamanlike manner; (2) Hercules' pier and its facilities were properly constructed and maintained; and (3) "the accident was the result of an inevitable and unforeseeable force (sudden storm) which could not have been protected against by the degree of nautical skill required of the operators of the ship or the dock".

In a veritable Donnybrook Fair melee all and sundry involved in the five separate actions below have filed appeals from whatever aspect of the Consolidated Final Decree which was adverse to them.*fn2

Appreciative of the complexities of the situation, all the parties have here entered into a Stipulation consolidating their separate appeals under Consolidated Cause No. 10,812. The Stipulation provides that our decision in this Consolidated Cause will be dispositive of all the appeals.

As we have frequently observed, an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the District Court; the findings of the latter when supported by competent evidence are entitled to great weight and should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong.*fn3

On this score it must be noted that the District Court's Findings of Fact with respect to the sequence of events on the day of the accident are undisputed. They are as follows:

On August 15, 1947, the Steamship Argonaut was moored in the outer berth on the north side of the dock at the foot of Washington Street in Jersey City.*fn4 Dock trials had been had in the morning and extra lines were put out and had not been removed at the time of the accident. The lines were as follows: forward and aft lines, including spring lines and one breast line.*fn5 The breast line was one of two*fn6 attached to the dock and belonging to Hercules. The breast line used parted during the accident, but none of the ship's lines did. The aft or stern lines were fastened to a pile cluster aft of the dock and abreast the stern of the ship. In the late afternoon of August 15, 1947, about 5 P.M., a storm of about twenty minutes duration arose. Its center was localized in the vicinity of the ship and during its course the force of the wind increased from twenty to forty and then to sixty miles per hour. The sudden increase in the force of the wind was strong enough to cause the pile cluster to lay over and snap a steel wire and to rupture a bollard so that it split, although the fastenings of the bollard remained without breaking loose. Due to the laying over of the pile cluster, the lines running from the ship to the pile cluster slipped off.

It is readily discernible that the fact findings above recited relate to the physical facts of the accident. The Libellants vigorously take issue with the District Court's determination that they disclose that "The steamship Argonaut was moored in a seamanlike manner".

There was one additional Finding of Fact which concerned the question as to whether er notice had been given by the United States Weather Bureau of the storm on the evening of August 15th. The District Court made the fact finding that "The storm was not foreseen by the United States Weather Bureau, which did not put out a storm warning." The Libellants dispute that fact finding. The record on that score reveals:

Benjamin Parry who was Chief of the United States Weather Bureau's New York office on the day of the accident, testified that "* * * more than 24 hours, probably 36 hours advance notice" had been given of the thunder storm on the evening of August 15th.*fn7 He also stated that the weather forecast correctly indicated the extent of the storm.*fn8

Of critical significance is the further testimony of Mr. Parry that the storm was a typical summer thunder storm - common for the locality, and that the incidence of a 60 mile-an-hour wind was not extraordinary.*fn9

The United States Weather Bureau record for August 15th, offered in evidence, contained this description of the storm, "A severe thunder storm moving rapidly ...


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