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

PER CURIAM:

In this proceeding in admiralty, damages were sought for the loss of two barges during a flood on the West Fork River in West Virginia. The District Judge exonerated their possessor, but, upon his findings and undisputed portions of the record, we conclude that entry of judgment in favor of the owner was requisite.

On February 8, 1963, West Fork Towing Corporation’s tug, the Mike Murphy, took under tow two barges owned by Iron City Sand & Gravel Division of Mc-Donough Co. This was at Iron City’s docks on the Monongahela River in Pittsburgh. The barges were loaded with sand, and the purpose was to move the loaded barges to West Fork’s docks on the West Fork River at Fairmont, West Virginia, where the sand was to be unloaded for West Fork’s business purposes.

The Mike Murphy, with the two barges in tow, arrived safely at West Fork’s dock, where the barges were tied up and where they remained until March 5, 1963 when they went adrift and foundered.

At the time the barges went adrift there was an unprecedented flood on the West Fork River. The District Court, 298 F.Supp. 1091, attributed the loss of the barges solely to the flood, concluding that West Fork had taken all reasonable precautions for their safety. The conclusion, however, is dependent upon one finding which is unsupported in this record and upon an assumption which the record contradicts.

While the testimony shows the flood in March 1963 was greater than any spring flood since 1888, spring flooding was an annual occurrence, and this one was specifically forecast in the weather reports. West Fork’s president knew of the reports, but, as presently will be seen, nothing was done to extend extra protection to the barges until the flood had risen to such heights that West Fork’s employees concluded that they could not safely put a man aboard them.

The testimony showed that, after arrival of the barges at West Fork’s dock, they were lashed together, stern to bow, with a two-inch hemp rope. Two seven-eighth-inch steel cables were run from a timberhead at the bow of the first barge to a deadhead on the bank and two similar steel cables were employed to secure the stern of the second. The testimony was that four of such cables were sufficient to secure the two loaded barges under normal conditions.

The District Court’s exoneration of West Fork was dependent upon a finding that two weeks before the flood additional lines had been run to the barges because of a threat of floating ice in the river. All of the witnesses agreed that additional lines should have been run in the face of a threat of ice or flooding, but if a sufficient number of additional lines had been run to meet the threat of floating ice and had remained in place, the threat of the flood may not have required even more lines to secure the still loaded barges. The difficulty, however, is that the deposition testimony about the running of additional lines to meet the threat of floating ice was not made a part of the record in this case, and, perhaps more importantly, the record positively shows that at the time of the flood the barges were secured with no more than the four lines which were placed upon their first arrival in February.

Mr. Pitrolo, West Fork’s President, said, when his deposition was taken before trial in a companion case, that additional lines had been run to the barges two weeks before the flood because of the fear of floating ice. Pitrolo died before the trial, however, and, while some portions of his deposition were read into the record, that portion in which he referred to the additional lines which had been run to meet the threat of floating ice was not among them. The deposition was not offered in evidence. On this record, the finding that additional lines had been run at that time is technically unsupported. However, the record is quite clear that there were no more than four lines securing the two barges at the time of the flooding. That was the number by which they had initially been secured on first arrival at West Fork’s dock in normal, calm conditions. What disagreement there is among the witnesses revolved around the question of whether there were four lines at the time of the flood or only three, and whether they were new cables or old. The District Judge found that there were four and that they were new, but 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.¹

If in fact, additional lines had been run when the barges were threatened by floating ice, it would only reinforce the conclusion, which the record otherwise requires, that the four lines with which the barges were initially secured, while sufficient for normal conditions, were not enough for abnormal conditions. The record, however, clearly shows that such extra lines were not in place at the time of the flooding, and nothing was done to place such extra lines when the flood was predicted. Mr. Pitrolo knew of those predictions² and he knew that such a flood was an annual occurrence at that time of year, but he did nothing to have such additional lines placed during the period of eight hours or more before the river began to rise or even afterwards when the slowly rising waters were not tumultuous.³ He did not even tell the pilot of his tug of the flood predictions, though the pilot testified that he would have taken additional measures to secure the barges if he had been informed of the weather report.⁴

The flood was an extraordinary one, but when West Fork took no precautions to secure the barges against reasonably expected flood conditions after specific warning that a flood was on the way, when it left the barges secured by moorings adequate only for normal conditions until the flood had risen to such heights that additional lines could not be placed without risk of life and the barges were cast adrift, it could not be held faultless.

The record required a finding of the owner’s entitlement to recover the value of the barges.

The judgment is reversed and the case remanded for an assessment of the damages.

Reversed and remanded.

1 . We do not think the testimony of Hiernaux, Nichols and Hall, quoted in the dissenting opinion, fairly implies that four lines were sufficient for normal flood conditions. Hiernaux, the only expert, did state that four lines should have been sufficient for most conditions, but he expressly refused to extend that generalization to flood conditions. The pilot Nichols, of course, based his conclusion not on any assumption that the lines were sufficient for flood conditions but on the erroneous belief that no flooding was expected. Only Paul Hall stated that the barges seemed secure with four lines in noticeably rising waters. However, he disclaimed any expertise in the matter. His principal employment was in an adjacent junk yard owned by Pitrolo; before 1958 he had never worked near a river or with boats or barges, and he had no training or experience to qualify him for judging flood conditions. His employment involved no independent judgment, and he relied entirely on Pitrolo’s instructions in performing duties around the landing. Only once on March 5 did he even see the barges, at 3:30 p. m. when he left the junk yard where he had been working all day.

2 . There had been heavy rain for two days. Accumulated snow was melting. Mr. Pitrolo testified that he received reports of actual flooding in upstream tributaries, and he heard the weather reports predicting flooding in the West Fork. He was aware of all of these things throughout tiie day preceding the night of the flood.

3 . For some hours after the flood began, the rate of the rise of the water was slow and the current was not strong. Later the rise became very rapid and the current swift.

4 . The pilot was recording the river’s stages during the day preceding the flood, but, unaware of the weather predictions and the reports of flooding in up river tributaries, he mistakenly ascribed the rising water to the operation of a dam. Because of that mistake he did nothing.