Iron City Sand & Gravel Division of McDonough Co. v. West Fork Towing Corp.

SOBELOFF, Senior Circuit Judge

(dissenting):

My colleagues and I are in accord that this case should be reversed. The opinion of the District Court distinctly evidences reliance on an affidavit filed in an earlier related case, but not made a part of the trial record in this ease. Portions of the affidavit were read into evidence at trial, but one fact which the District Court relies upon is supported only by a portion of the affidavit which was not read into the record. Clearly the facts must be redetermined on the basis of the information actually placed in evidence at trial. I cannot agree, however, that the facts of this case are so clear that this court is entitled to enter judgment outright for Iron City rather than remanding to the District Court for a reassessment of the record.

The crux of the majority’s position is that the number of lines securing the barges was not sufficient to protect against flood conditions. Quite properly they point out that the District Court erred in basing its contrary conclusion on a finding that extra lines had been run to the barges to protect against floating ice — it was this finding that was supported solely by evidence outside the record. Nevertheless, the record would support a conclusion that the four lines which were run to the barges were sufficient not only, as the majority sug*961gests, to meet normal river conditions but to meet normal flood conditions. Furthermore, the record would sustain a finding that only normal spring flood conditions were expected and the barges were torn loose by an extreme flood that was not, and could not have been, anticipated until a time when the river had already risen too high to allow more lines to be run to the barges.

In concluding that the barges should have been secured by more than four lines, the majority states that “all the witnesses who alluded to the matter were in agreement that the prediction of flood required additional precautions, particularly the running of additional lines to secure the barges.” This summary cannot be squared with the record. For example, Mr. Richard G. Hiernaux was called as an expert witness by West Fork, and Iron City stipulated to his qualifications as an expert in the river transportation business, in which he had worked for forty-four years. His firm operated a fleet of fifty barges, and he was sufficiently familiar with the type of barge involved in this dispute to testify also as an expert for valuation purposes. Mr. Hiernaux was familiar with the West Fork landing and with the river at that point, although he had not seen it at flood stage. That his opinion was contrary to the summary given by the majority is evidenced by this exchange:

Q. I ask you specifically, Mr. Hiernaux, if four % steel cables would ordinarily be enough to hold two loaded sand barges in most any condition ?
A. I would say so, yes.
(Emphasis added.)

Another witness called by West Fork was Mr. Paul Hall, a West Fork employee of five years at the time of the accident. His duties included mooring and fastening up the barges and assisting in shifting them around in the course of loading and unloading.1 Mr. Hall, who had had prior experience with flooding at the West Fork landing, was asked why he did not add more cables when he saw the water rising during the afternoon preceding the loss of the Iron City barges: “I thought the barges were secure there with those cables I had on.” This testimony, like Mr. Hiernaux’s, is hardly consistent with the statement that all witnesses agree that additional precautions should have been taken.

Merle W. Nichols, the pilot and captain of West Fork’s tug at the time of the accident, had held that job for four years and had previously worked as a river pilot for two other firms. He testified that barges were always tied in preparation for high water: “You tie them so they stay there, that is what you’re supposed to do, high water or low water.” Moreover, he was present at the West Fork landing the evening of the flood and observed the condition of the barges at 11:00 p. m., just four or five hours before they broke loose. Asked whether there then appeared any danger of the barges tearing away, he replied that they “looked pretty well secure from where I could see it * *

Thus, we have three witnesses testifying directly that the four lines would have been quite sufficient precaution against the normal spring flood that was reasonably anticipated. Instead, it turned out to be, as the majority acknowledges, “greater than any spring flood since 1888.”

The majority states that Nichols “testified that he would have taken additional *962measures to secure the barges if he had been informed of the weather report.” On the contrary, Nichols testified that the barges were torn loose by a flash flood which could not have been known about beforehand. The testimony to which the majority apparently refers is Nichols’ admission that if it had been possible to predict the flash flood, and if he had been forewarned, then he would have taken more precautions:

Q. If you had known that there was going to be any rise in the river you could have taken the “MIKE MURPHY” with lines up to those loaded barges and had them run over to the shore, isn’t that correct?
A. If I had known, but I didn’t know.
**-*-*#*
Q. And the reason you didn’t know is that Mr. Pitrolo didn’t tell you, isn’t that right, and you yourself didn’t make any inquiry about what the weather conditions were going to be, isn’t that right?
A. Mr. Pitrolo didn’t have to do any checking about flash floods or running water. Mr. Pitrolo couldn’t check it. That is what I stated a little while ago. Nobody could check a flash flood. (Emphasis added.)

Shortly thereafter Nichols was again asked about taking additional precautions :

Q. If you couldn’t move the barges out to a more secure location, isn’t it correct that if you had known or you had any idea that the water was going to rise the way it did, that the proper thing to do was to go up and put more lines on your loaded barges over to the shore, isn’t that correct?
A. Well, if you know, yes. If you know.
(Emphasis added.)

These hypothetical questions and answers, when read in context, far from supporting the majority’s ultimate conclusions, directly contradict them.

Concededly a district judge might reach the conclusion the majority has reached — that West Fork was negligent in its handling of Iron City’s barges. But the case is, to my mind, a close one, and not one to be decided by the appellate court as a matter of law. Because I could not hold the trial judge clearly erroneous in concluding on the record before us that West Fork was not negligent, I would remand the case for the District Court’s reconsideration.

. The majority suggests that Mr. Hall’s testimony is of little value because he was really employed in the junkyard, had little expertise in tying barges, and was not qualified to judge Good conditions. The record is unequivocally to the contrary. During Hall’s five years of employment by West Fork he “tended to the mooring or fastening up of the barges” and “assisted in shifting them around as necessary.” Moreover, he was the only West Fork employee who worked around the barges. He also worked in the junkyard because the barge work did not occupy him full time. And during the period of his employment prior to the loss of the Iron City barges there had been Gooding on the West Fork River “several times.”