[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 98-1432
JAMES P. HALPIN,
Plaintiff, Appellant,
v.
ATKINSON KIEWIT, J/V,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Boudin, Circuit Judge,
John R. Gibson, Senior Circuit Judge,
and Lipez, Circuit Judge.
David B. Kaplan, with whom Thomas M. Bond and The Kaplan/Bond Group were on brief, for appellant. Robert E. Collins, with whom Thomas E. Clinton and Clinton & Muzyka, P.C. were on brief, for appellee.
June 16, 1999 JOHN R. GIBSON, Senior Circuit Judge. James P. Halpin appeals from an adverse judgment in his suit for personal injuries brought under 33 U.S.C. 905(b) (1994). He was employed by Atkinson-Kiewit and was seriously injured when a crane hook, released by one of his co-workers, struck his face. This occurred when a supply vessel, the M/V Narragansett Eagle, owned by Atkinson, caused a barge to move away from a pier, resulting in one end of a gangway falling into the water. Halpin argues that the magistrate judge erred in finding no negligence on the part of Titus, the captain of the Eagle, and applied an erroneous standard of care in determining Halpin's comparative negligence. We conclude the finding that Titus was not negligent is not clearly erroneous, and we need not reach the issue concerning Halpin's conduct. I. Halpin was a pile driver foreman and was working on the Jamestown Bridge Project in Rhode Island. On June 13, he, Mark Nealand, and another coworker were securing twenty-five ton granite panels to a pier using angle irons. While the crew was inside the pier, Titus was attempting to deliver grout to a supply barge floating parallel to the pier about 40 feet away from it. Titus approached the barge from the windward side, rather than the leeward side. The Eagle pushed the supply barge and the Barge 852 adjacent to it away from the pier, which caused one end of the gangway connecting the pier and the supply barge to drop into the water. At some point, the stern of the Eagle came in contact with the pier. The gangway was the only means by which the crew could leave the pier, and when Halpin saw the gangway fall, he feared for the safety of the crew. His crew was in a position where a collapse of the pier's panels caused by the contact of the vessel could pose an extreme danger. At Halpin's direction, one of the men on the crew attached the eye of a spreader hook (a steel cable with an eye in the middle and hooks on each side) to the top of a crane's headache ball hook. The crane operator then moved the headache ball, spreader, and choke to Halpin on the pier. Halpin gave one hook to Nealand, who was standing on the pier. Halpin took the choke and the other hook, and, using another piece of the steel eye, made a loop in which he could put his foot. He held onto the crane's headache ball with both hands, and several attempts were made to lower Halpin to an area where the gangway was in the water. The attempts were unsuccessful, and Halpin gave a signal to lift him to the deck of the barge. While the crane operator raised Halpin, the other spreader hook, held by Nealand, was pulled out of his grasp. The hook struck Halpin on the side of his face causing serious injuries. Halpin sued Atkinson under 33 U.S.C. 905(b), alleging that the negligent operation of the Eagle caused his injuries. At trial, the parties presented evidence as to Titus's negligence. Halpin presented evidence of 35-40 knot per hour winds, rough sea conditions, and the testimony of Joe Voccola, another captain on the project, and other employees who stated that approaching from the leeward side was customary or that Titus should have approached from the leeward side. Atkinson presented evidence that the wind conditions were only 10 knots per hour and that the sea was not particularly rough. Further, Titus testified that he chose to approach from the windward side because it offered better visibility and more protective rubber tires and because it provided easier access to the area where grout was stored. The magistrate judge made three findings of disputed fact. First, even though the Eagle once made contact with the pier, the contact had ended by the time the gangway fell in the water. Thus, there was no danger of panel collapse and no emergency at the time Halpin took his actions, and Halpin's actions were unjustified. Secondly, Titus's actions were not negligent. Thirdly, the gangway could have been replaced without Halpin riding the crane ball. Halpin argues that the magistrate judge's finding that Titus was not negligent was clearly erroneous and that his failure to apply a wanton or reckless standard in evaluating Halpin's comparative negligence was error. We affirm. II. If Titus was not negligent, Halpin cannot recover. We review the magistrate judge's finding that Titus was not negligent for clear error, see Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir. 1997), which exists when we have a definite and firm conviction that a mistake has been committed. See Strahan v. Coxe, 127 F.3d 155, 172 (1st Cir. 1997), cert. denied, 119 S. Ct. 81 (1998). We cannot conclude the magistrate judge's finding was clearly erroneous. Halpin claims that Titus's decision to use the windward side, rather than the leeward, was negligent. As he puts it, "Titus chose the more dangerous route, for no apparent good reason. This is strong evidence of negligence." His strongest support for the argument that Titus's choice was unreasonable was the testimony of Voccola, another captain who worked at the bridge project. When asked what the custom was for handling vessels at the project, Voccola stated, "You would try to get it on the leeward side. It would be easier for you." Voccola also testified that when picking up people, he would have used the leeward side. We reject Halpin's argument. Titus offered justifications for his choice. Titus's testimony showed that he approached from the windward side, rather than the leeward, because that approach offered more visibility and more protective rubber tires and provided easier access to the area where grout was stored. The evidence of wind conditions was not as compelling as Halpin asserts. There was testimony that the wind was 35-40 knots per hour at 1:00 P.M., the time of the accident. However, the official records of the Castle Hill Station of the National Oceanic and Atmospheric Administration, located five miles from the scene, registered the wind at 10 knots per hour at both 11:00 A.M. and 2:00 P.M. Jack Harper, pile driving superintendent at the bridge project, testified that it was "breezy but nothing . . . remarkable" and that even if the winds were at 35-40 knots per hour, the sea would not be particularly rough. Finally, the testimony of Voccola does not convince us that the magistrate judge clearly erred. While the magistrate judge made contrary statements as to whether expert testimony was required in the case, he ultimately held that he "need not decide, whether or not, as a matter of law, [Halpin] needed to call an expert witness . . . ." and that he was "unable to give the weight to the evidence presented" which Halpin sought to have him give it.
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[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 98-1432
JAMES P. HALPIN,
Plaintiff, Appellant,
v.
ATKINSON KIEWIT, J/V,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Boudin, Circuit Judge,
John R. Gibson, Senior Circuit Judge,
and Lipez, Circuit Judge.
David B. Kaplan, with whom Thomas M. Bond and The Kaplan/Bond Group were on brief, for appellant. Robert E. Collins, with whom Thomas E. Clinton and Clinton & Muzyka, P.C. were on brief, for appellee.
June 16, 1999 JOHN R. GIBSON, Senior Circuit Judge. James P. Halpin appeals from an adverse judgment in his suit for personal injuries brought under 33 U.S.C. 905(b) (1994). He was employed by Atkinson-Kiewit and was seriously injured when a crane hook, released by one of his co-workers, struck his face. This occurred when a supply vessel, the M/V Narragansett Eagle, owned by Atkinson, caused a barge to move away from a pier, resulting in one end of a gangway falling into the water. Halpin argues that the magistrate judge erred in finding no negligence on the part of Titus, the captain of the Eagle, and applied an erroneous standard of care in determining Halpin's comparative negligence. We conclude the finding that Titus was not negligent is not clearly erroneous, and we need not reach the issue concerning Halpin's conduct. I. Halpin was a pile driver foreman and was working on the Jamestown Bridge Project in Rhode Island. On June 13, he, Mark Nealand, and another coworker were securing twenty-five ton granite panels to a pier using angle irons. While the crew was inside the pier, Titus was attempting to deliver grout to a supply barge floating parallel to the pier about 40 feet away from it. Titus approached the barge from the windward side, rather than the leeward side. The Eagle pushed the supply barge and the Barge 852 adjacent to it away from the pier, which caused one end of the gangway connecting the pier and the supply barge to drop into the water. At some point, the stern of the Eagle came in contact with the pier. The gangway was the only means by which the crew could leave the pier, and when Halpin saw the gangway fall, he feared for the safety of the crew. His crew was in a position where a collapse of the pier's panels caused by the contact of the vessel could pose an extreme danger. At Halpin's direction, one of the men on the crew attached the eye of a spreader hook (a steel cable with an eye in the middle and hooks on each side) to the top of a crane's headache ball hook. The crane operator then moved the headache ball, spreader, and choke to Halpin on the pier. Halpin gave one hook to Nealand, who was standing on the pier. Halpin took the choke and the other hook, and, using another piece of the steel eye, made a loop in which he could put his foot. He held onto the crane's headache ball with both hands, and several attempts were made to lower Halpin to an area where the gangway was in the water. The attempts were unsuccessful, and Halpin gave a signal to lift him to the deck of the barge. While the crane operator raised Halpin, the other spreader hook, held by Nealand, was pulled out of his grasp. The hook struck Halpin on the side of his face causing serious injuries. Halpin sued Atkinson under 33 U.S.C. 905(b), alleging that the negligent operation of the Eagle caused his injuries. At trial, the parties presented evidence as to Titus's negligence. Halpin presented evidence of 35-40 knot per hour winds, rough sea conditions, and the testimony of Joe Voccola, another captain on the project, and other employees who stated that approaching from the leeward side was customary or that Titus should have approached from the leeward side. Atkinson presented evidence that the wind conditions were only 10 knots per hour and that the sea was not particularly rough. Further, Titus testified that he chose to approach from the windward side because it offered better visibility and more protective rubber tires and because it provided easier access to the area where grout was stored. The magistrate judge made three findings of disputed fact. First, even though the Eagle once made contact with the pier, the contact had ended by the time the gangway fell in the water. Thus, there was no danger of panel collapse and no emergency at the time Halpin took his actions, and Halpin's actions were unjustified. Secondly, Titus's actions were not negligent. Thirdly, the gangway could have been replaced without Halpin riding the crane ball. Halpin argues that the magistrate judge's finding that Titus was not negligent was clearly erroneous and that his failure to apply a wanton or reckless standard in evaluating Halpin's comparative negligence was error. We affirm. II. If Titus was not negligent, Halpin cannot recover. We review the magistrate judge's finding that Titus was not negligent for clear error, see Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir. 1997), which exists when we have a definite and firm conviction that a mistake has been committed. See Strahan v. Coxe, 127 F.3d 155, 172 (1st Cir. 1997), cert. denied, 119 S. Ct. 81 (1998). We cannot conclude the magistrate judge's finding was clearly erroneous. Halpin claims that Titus's decision to use the windward side, rather than the leeward, was negligent. As he puts it, "Titus chose the more dangerous route, for no apparent good reason. This is strong evidence of negligence." His strongest support for the argument that Titus's choice was unreasonable was the testimony of Voccola, another captain who worked at the bridge project. When asked what the custom was for handling vessels at the project, Voccola stated, "You would try to get it on the leeward side. It would be easier for you." Voccola also testified that when picking up people, he would have used the leeward side. We reject Halpin's argument. Titus offered justifications for his choice. Titus's testimony showed that he approached from the windward side, rather than the leeward, because that approach offered more visibility and more protective rubber tires and provided easier access to the area where grout was stored. The evidence of wind conditions was not as compelling as Halpin asserts. There was testimony that the wind was 35-40 knots per hour at 1:00 P.M., the time of the accident. However, the official records of the Castle Hill Station of the National Oceanic and Atmospheric Administration, located five miles from the scene, registered the wind at 10 knots per hour at both 11:00 A.M. and 2:00 P.M. Jack Harper, pile driving superintendent at the bridge project, testified that it was "breezy but nothing . . . remarkable" and that even if the winds were at 35-40 knots per hour, the sea would not be particularly rough. Finally, the testimony of Voccola does not convince us that the magistrate judge clearly erred. While the magistrate judge made contrary statements as to whether expert testimony was required in the case, he ultimately held that he "need not decide, whether or not, as a matter of law, [Halpin] needed to call an expert witness . . . ." and that he was "unable to give the weight to the evidence presented" which Halpin sought to have him give it. The testimony was conflicting, and for the magistrate judge to assess, including the value of Voccola's testimony. Halpin has offered no compelling argument that the magistrate judge clearly erred. In this case, although Voccola made reference to the leeward side being calmer, his explanation for the custom was merely that it was "easier" to approach from the leeward side. He did not explicitly address the specific justifications offered by Titus, nor did he state that Titus was negligent in the manner in which he approached from the windward side. Some of his testimony referred to the transportation of passengers, not grout. After carefully considering the evidence in the record, we do not have a definite and firm conviction that the magistrate judge erred in concluding that Titus was not negligent in his choice to approach the barge from the windward, rather than the leeward side. The magistrate judge's finding is not clearly erroneous. Halpin next argues that even if Titus were not negligent in approaching from the windward side, he must have been negligent in some manner because he hit the pier, a stationary object. We have stated, "when a vessel under its own power collides with an anchored vessel or a navigational structure, the burden of proving absence of fault or vis major rests on the pilot vessel." City of Boston v. S.S. Texaco Texas, 773 F.2d 1396, 1398 (1st Cir. 1985). However, Halpin did not establish this presumption below. See 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure, 5125 at 596 (1977) (in order to establish a presumption, the proponent must first satisfy the court that the presumption exists). Halpin failed to make any mention of the presumption, much less give any analysis or supply legal authority. See McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992)(theory waived when at district court only passing mention made and no analysis or presentation of legal authority supporting the theory). The magistrate judge did not err in failing to apply the presumption. Without the presumption, it was Halpin's burden to persuade the magistrate judge that Titus was negligent by his act or omission. Contact with the pier may suggest a negligent act or omission, but the magistrate judge's failure to draw that inference is not clearly erroneous. To hold that it is clearly erroneous, in effect, would be giving Halpin the benefit of the presumption even though he did not raise it. The trial may well have proceeded on the mistaken premise that Halpin carried the burden of persuasion, but it was Halpin's obligation to see that it did not. Halpin, not Atkinson, must bear the risk that the circumstantial evidence, without the presumption, would not persuade the magistrate judge. III. Our conclusion that the magistrate judge did not clearly err in finding that Titus was not negligent eliminates any need for discussion of the standard of care applicable to Halpin's comparative negligence. Affirmed.