Moran Towing Corp. v. M. A. Gammino Construction Co.

409 F.2d 917, 1969 A.M.C. 817, 1969 U.S. App. LEXIS 12891
CourtCourt of Appeals for the First Circuit
DecidedApril 9, 1969
DocketNos. 7239, 7240
StatusPublished
Cited by2 cases

This text of 409 F.2d 917 (Moran Towing Corp. v. M. A. Gammino Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moran Towing Corp. v. M. A. Gammino Construction Co., 409 F.2d 917, 1969 A.M.C. 817, 1969 U.S. App. LEXIS 12891 (1st Cir. 1969).

Opinion

COFFIN, Circuit Judge.

This is the second appeal to this court from the district court’s determination in an action for damages to scows owned by appellant Moran Towing Corporation. The damage occurred while the scows were carrying breakwater stone under a contract with appellee Gammino Construction Company. The facts of this case are set forth in detail in the first district court opinion and in our earlier decision. Moran Towing Corp. v. Gammino Construction Co., 244 F.Supp. 729 (D.R.I.1965), rev’d and remanded, 363 F.2d 108 (1st Cir. 1966). The facts are discussed here only insofar as it is necessary to the resolution of this appeal.

The contract under which the scows were chartered to appellee provided that appellant would be responsible for ordinary wear and tear to the vessels due [919]*919to the nature of the cargo but that appellee would be responsible for all damage due to its own negligence, and for all damage, irrespective of appellee’s negligence, caused by the loading of pieces of stone weighing in excess of 1000 pounds.

In the initial proceedings in this case the district court found that although it appeared that Gammino frequently loaded stones in excess of 1000 pounds, Moran had not established what portion, if any, of the damage to the scows resulted from such loading. In addition, the district court found that Moran had failed to show what part of the damage was attributable to the operation of the skip box (a three ton truck body used to preload each hopper of the scows) and groundings of the scows. The court then held that there could be no recovery since Moran had not met its burden of showing damages from a cause for which Gammino was liable. Moran Towing Corp. v. Gammino Construction Co., 244 F.Supp. 729, 735 (D.R.I.1965).

On appeal we upheld the district court’s finding with respect to damage from the loading of oversize stone. 363 F.2d at 111. However, we concluded that the district court had misconceived the meaning of “wear and tear” and that it therefore erroneously ruled that Moran had failed to demonstrate damage of some consequence attributable to negligent operation of the skip box. We also concluded that, since the predominant number of groundings were attributable to Gammino, it was responsible to some extent for this element of damage. Accordingly, we reversed and remanded the case for a determination of Gammino's liability.

On remand the district court found that substantial damage occasioned by the negligent operation of the skip box was done to certain structures affixed to the surfaces of or bordering the hoppers —the coaming, the pipeguards and cable guards, and the hydraulic piping. However, with respect to each item the district court concluded that Gammino should be liable for only fifty per cent of the repair costs. The court also found that Gammino was liable for fifty per cent of the damage to the shell plating and frames (i. e., part of the exterior hull) because of its failure to provide a sufficient depth of water for the scows. In addition the court held Gammino liable for fifty per cent of the cost of repairs to the well plates in the bottom of each hopper because the court found the damage to have been caused by inadequate preloading of the scows which was clearly Gammino’s responsibility. The court found no liability on Gammino’s part for damage to the well brackets, slope plates and slope angles, bulkhead plating and bulkhead stiffener, and hopper doors.1 Finally, the court denied recovery for drydock and related expenses and for the loss of use of the scows.

Appellant’s first contention in this appeal is that the district court applied the wrong measure of recovery in that it held Gammino liable for only fifty per cent of the cost of repairs due to skip box damage and inadequate preloading. According to appellant, once it is shown that damage of some consequence was caused by Gammino’s negligence, Gammino must segregate the damages and failing to do so it must bear the entire cost of repairs. See e. g., Navigazione Libera T.S.A. v. Newton Creek Towing Co., 98 F.2d 694 (2d Cir. 1938); Nassau Sand & Gravel Co. v. Red Star Towing & Transportation Co., 62 F.2d 356 (2d Cir. 1932).

Needless to say, appellee disagrees with Moran’s argument. Appellee contends that since the district court found that part of the damage was attributable to ordinary wear and tear in the loading of stones under 1000 pounds in weight, [920]*920the admiralty rule of divided damages was properly applied. See, e. g., Southport Transit Co. v. Avondale Marine Ways, 234 F.2d 947 (5th Cir. 1956); Atlantic Pipeline Co. v. Dredge Philadelphia, 247 F.Supp. 857 (E.D.Pa.1965), aff’d, 366 F.2d 780 (3rd Cir. 1966).

We indicated in our earlier opinion that the burden of segregating damages should be on the negligent party once illicit damage of consequence is established. 363 F.2d at 113. This was and is conventional wisdom. But having been twice exposed to the problems in this case of proof and of decision and to subsequent helpful oral argument, we see no sensible alternative to applying the divided damages rule on items where the proof establishes shared responsibility, but fails to segregate. We recognize that the divided damages rule has traditionally been applied to cases involving either contributory negligence or the doctrine of avoidable consequences. In such cases the element of fault is present as, for example, when two vessels collide, each being negligent. This may have tended to obscure the basic analysis that damages are divided between those responsible for two producing causes. While such causes of damage are usually linked with “fault” or negligence, there is no reason why such a linkage is indispensable. In the case at bar there were two producing causes of damage. One — reasonable wear and tear — was not a fault, but was nevertheless attributable by contract to Moran. The other — negligently caused damage in loading — was a fault and attributable to Gammino. The fact that the former arose out of contract rather than tort does not change the fact that damage has resulted from two causes under circumstances where precise apportionment is impossible.

Since we uphold the application of divided damages to the items where the court found significant skip box damage, a fortiori, and on traditional theory, the court was correct in dividing the damage to shell plating and frames caused by the grounding of the scows when no particularization was made in the testimony. While Gammino was responsible for providing a sufficient depth of water, at least one of the groundings was the fault of Moran.

Appellant also contends that the district court erred in not finding Gammino liable for damage to slope plates and angles, bulkhead plating and stiffeners, and hopper doors. We shall consider each item separately. We are well aware that the findings of the district court are not to be lightly disturbed. Rule 52(a), Fed.R.Civ.P. Recognizing the weight to which the court’s findings are entitled, we base our review on objective indicia of causes of damage, as we did before, rather than on the evaluation of conflicting testimony.

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409 F.2d 917, 1969 A.M.C. 817, 1969 U.S. App. LEXIS 12891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-towing-corp-v-m-a-gammino-construction-co-ca1-1969.