Moran v. Connecticut Court Opinion

    KAACP T-egal Defense Fund
10 Columbus CD-I*

New York. N. 1j j 19 
L I B R A  H Y

AUG 5 1977
UNITED STATES COURT OF APPEALS

F oe th e  S econd C ibcuit

No. 872—September Term, 1976.

(Argued April 29, 1977 Decided August 3, 1977.)

Docket No. 76-7608

In the Matter of The Complaint of Tug H elen  B. M oean, 
I n c ., as owner, and M oean T owing & T ranspobtation 
Co., I n c ., as chartered owner of the Tug D iana L. M oean 
for exoneration from or limitation of liability,

Plaintiffs,

M oean T owing & T ransportation Co., Inc.,

Plaintiff-Appellant,

S tate of Connecticut,

Claimant-Appellee.

B e f o r e  :
M ansfield, Circuit Judge, 

and S m it h * and P alm ieri,** District Judges.

Chief Judge of the United States District Court for the District o f 
Montana, sitting by designation.

Of the United States District Court for the Southern District o f New 
York, sitting by designation.

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Appeaffrom a judgment denying apportionment of dam­
ages resulting from an allision between a vessel and a 
drawbridge.

Reversed and remanded.

R obert B. P o h l , Esq., New York, N.Y., for 
Plaintiff-Appellant.

D onald M. W aesche, J r ., Esq., New York, N.Y., 
for Claimant-Appellee.

S m it h , District Judge:

The Tomlinson Bridge, which spans Quinnipiac River 
near its confluence with Mill River, was completed by the 
State of Connecticut in 1925 under a permit granted in 
1922 by the Army Corps of Engineers, pursuant to the 
authority given by the Rivers and Harbors Act of 1889, 
30 Stat. 1151, 33 TJ.S.C. § 401. The bridge is of the bascule- 
type construction, with leaves that elevate to allow the 
ships to pass.

The approved plans for the bridge specified that the 
width of the water between the bridge abutments should 
be 126 feet and required that no part of the leaves, when 
elevated, would extend over the water. To achieve this 
requirement, the leaves must be raised to an angle of 82 
degrees above horizontal. The bridge, as constructed, can­
not be elevated to an angle of more than 65 degrees above 
the horizontal, and the leaves, when elevated, do extend 
over the water.

The Tug MORAN, with the Barge BECRAFT in tow, 
while passing through the Tomlinson Bridge, was so ma­
neuvered that the port side of the BECRAFT rubbed the 
granite abutment of the bridge, damaging both the barge

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and the bridge.1 The BECRAFT was deflected to the star­
board, and shortly thereafter a chock on the port side of 
the BEORAFT snagged a girder of the raised bascule leaf 
of the bridge, resulting in substantial damage to the leaf.

The State of Connecticut did not have any authorization 
from the Chief of Engineers and the Secretary of the Army 
to deviate from the approved plans.2 The deviation was a 
breach of a statutorily-imposed duty, and it constituted 
negligence.

The district court found that the MORAN was negli­
gently maneuvered, that such negligence was the cause of 
the damage, and, relying on In re Great Lakes Towing Co., 
348 F.Supp. 549 (N.D. 111. 1972), concluded that the negli­
gence of the State of Connecticut was not a legal cause of 
the damage.

In The Pennsylvania, 86 U.S. 125 (1873), a case involv­
ing a collision between moving vessels, the Supreme Court 
held that once a ship is shown to have violated a statutory 
rule, she then has the burden of proving that her fault 
could not have been one of the causes of the accident. The 
State of Connecticut could not sustain that burden here. 
The chock which struck the girder on the birdge did not 
protrude over the side of the barge. The barge was in the 
channel, and had the leaves of the bridge not extended over 
the channel, there could have been no contact between the 
chock and the girder. The violation of the statute was, as

1 The issues relative to the damages resulting from the allision with the 
bridge abutment are not before us on this appeal.

2 The Bivers and Harbors Act o f 1899, 30 Stat. 1151, 33 TJ.S.C. §401, 
provides in part:

. . . That when plans for any bridge or other structure have been 
approved by the Chief o f Engineers and by the Secretary o f the 
Army, it shall not be lawful to deviate from such plans either before 
or after completion o f the structure unless the modification of said 
plans has previously been submitted to and received the approval 
o f the Chief o f Engineers and o f the Secretary of the Army.

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a matter of fact, a cause of the accident. The district 
court in Im re Great Lakes Towing Co., supra, distin­
guished between the minor, or passive, negligence of the 
bridge owner and the active negligence of the ship and 
applied a sometimes-stated tort doctrine which exonerates 
one whose passive negligence does no more than create a 
static condition which makes the damage possible,3 and 
held that the doctrine of The Pennsylvania, supra, did not 
apply to bridges.4

3 Many courts have sought to distinguish between the active "cause” 
o f the harm and the existing "conditions” upon which that cause 
operated. I f  the defendant has created only a passive, static con­
dition which made the damage possible, he is said not to be liable. 
But so far as the fact o f causation is concerned, in the sense of 
necessary antecedents which have played an important part in pro­
ducing the result, it is quite impossible to distinguish between active 
forces and passive situations, particularly since, as is invariably 
the case, the latter are the result o f other active forces which have 
gone before. I f  the defendant spills gasoline about the premises, 
he creates a "condition;” but his act may be culpable because of 
the danger of fire. When a spark ignites the gasoline, the condition 
has done quite as much to bring about the fire as the spark; and 
since that is the very risk which the defendant has created, he will 
not escape responsibility. Even the lapse o f  a considerable time 
during which the "condition” remains statie will not necessarily 
affect liability; one who digs a trench in the highway may still be 
liable to another who falls into it a month afterward. "Cause”  and 
"condition” still find occasional mention in the decisions; but the 
distinction is now almost entirely discredited. So far as it has any 
validity at all, it must refer to the type of case where the forces 
set in operation by the defendant have come to rest in a position 
of apparent safety, and some new force intervenes. But even in 
such eases, it is not the distinction between "cause” and "condition” 
which is important, but the nature o f the risk and the character 
o f the intervening cause. (Footnotes omitted.)

— W. Prosser, The Law o f Torts 
247-48 (4th ed. 1971)

4 The district court’s conclusion that the doctrine of The Pennsylvania 
86 U.S. 125 (1873), did not apply to bridges was repudiated on appeal 
by the Seventh Circuit, although the judgment was affirmed because, at 
the time o f the allision, the ship was outside the navigational channel 
and in an aiea not protected by the permit. Chicago (f- Western Indiana 
B.S. v. Motorship Buko Mam, 505 F.2d 579 (7th Cir. 1974).

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We hold that, where the violation of a statutory duty 
is a cause of an accident, that liability may not be avoided 
on causal grounds by drawing distinctions between active 
and passive negligence. It is axiomatic that the wider the 
water channel under a drawbridge the less is the likelihood 
that passing ships will touch the bridge. To excuse the 
negligence which narrows a navigable channel would, in 
our opinion, simply frustrate the congressional purpose to 
safeguard navigation. This view accords with the rationale 
underlying the decision in The Pennsylvania, supra. The 
result which we reach is in accord with the decisions in 
In re Wasson, 495 F.2d 571 (7th Cir. 1974); The Fort 
Fetterman v. South Carolina Highway Department, 261 
F.2d 563 (4th Cir. 1958); Petition of McMullen & Pits 
Construction Co., 230 F.Supp. 726 (E.D. Wis. 1964); United 
States v. Norfolk-Berkley Bridge Corp., 29 F.2d 115, 125 
(E.D. Va. 1928).

The failure of the State of Connecticut to comply with 
the terms of the permit was a contributory cause of the 
allision between the bridge leaf and the chock, and the 
damages should be apportioned between the MORAN and 
the State of Connecticut.

The judgment is reversed, and the cause is remanded 
for further proceedings not inconsistent herewith.

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MEILEN PRESS INC., 445 GREENWICH ST., NEW YORK, N. Y. 10013, (212) 966-4177

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