United States Steel Corporation v. Barbara J. Fuhrman, Administratrix of the Estate of Arthur J. Fuhrman, Deceased
407 F.2d 1143
6th Cir.
1969
Check Treatment

*1 CORPORA- STEEL STATES UNITED TION, Appellant, FUHRMAN, Administratrix J.

Barbara Fuhrman, J. Arthur the Estate al., Appellees. Deceased, et

No. 18481. Circuit. Sixth 7, 1969.

March

injuries. Subsequently United States petition Steel filed a in the District Court for exoneration from or limitation liability against claimants, includ- personal representatives ‍​‌‌‌​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‍petitions deceased seamen. Similar by were filed the owners of the To- pdаlsfjord Weissenburg, a Ger- proximity man inwas close the collision. period pre-trial

After a of extended activity parties agreed by stipulation that United Steel States and the Nor- wegian accept liability owner would for damages compensatory and would pay compensatory full to all by claimants, by either settlemеnt or special award of a It commissioner. stipulated punitive was further damages, found, would be against adjudged United States Steel compen- alone. unsettled claims for Cleveland, Ohio, Ray, Lucian Y. for satory damages were submitted to a McCreary, appellant; Keenen, Roman T. liability commissioner and the issue Robinson, Rаy Cleveland, Ohio, on & punitive damages was determined brief. Compensatory the District Court. dam- Freedman, Philadelphia, E. Abraham ages have been settled are in the Pa., Miami, Fla., Roth, Arthur process being completely awarded in- appellees; Borowsky Freedman, & Lor- dependent appeal presented now Pa., ry, Philadelphia, J. Harold Trav- to this Court. Cleveland, erse, Ohio, on brief for Fuhr- lengthy After a rather the Dis- Scribner, man, others; Pressman trict Court held that United States Steel City, Harry Bey York on New brief was ‍​‌‌‌​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‍liable to the claimants for Radtke, of Es- Rita Administratrix damages. opinion of the District Radtke; tate of C. Reinhold Frederick published Court is at Petition of Den Stern, City, counsel; New York Ned Amerikalinje A/S, Norske F.Supp. Scribner, Phillips; R. Pressman & New (N.D. Ohio). For the reasons here- City, Radka, York Elmer L. G. Louis forth, agree in set we cannot with this Jarboe, Rogers City, Mich., Victor G. accordingly decision and reverse Hanson, Davies, Detroit, Kenneth C. judgment of the District Court. Mich., appellees. on brief for other only question beforе the District WEICK, Judge, Before Chief and Court and before this Court is whether PECK, Judges. PHILLIPS and Circuit punitive damages or not should be as- sessed Steel PHILLIPS, Judge. Circuit owner of the Cedarville. Reference is published opinion made to the May In on the Straits Mackinac Steamship Cedarville, for a detailed owned statement facts, Steel) appellant (United repeated which will not be opinion except Norwegian Topdalsfjord Ship and the extent neces- sary dispose heavy fog. presented approxi- collided in issues After appeal. on mately forty minutes the Cedarville sank, operated ten her were lost and crewmen United States Steel a radio personal other crew sustained Pittsburgh, members network from its offices in argued its en- court. Pennsylvania, the vessels in to all Lakes, not be bound known as therefore should on Great tire fleet immediately Bradley erroneous standard Almost Fleet. judge. *3 trial the the of fact of the Ce- collision the of the after ’ Captain Joppich, the darville, contacted authority for contention. There is this advising Pittsburgh by radio offices See, e.g., Lida of Kuhn v. Princess place. In turn taken that collision (3d Cir.) Taxis, Thurn 119 F.2d 704 and manager Parrilla, the Club, III Motor’ and Frazier v. Alabama Fleet, that the Bradley informed was Cir.). Inc., (5th F.2d Our re- 349 456 colli- in a had been involved Cedarville split of search reveals a. taking seriously hоled was sion and among point on this as well Circuits as Parrilla, manager, water. the conflict in some of earlier decisions by radio. Cedarville did not contact the of This Court was faced Court. this Cap- Immediately analogous the collision after in the with an situation Revenue, Joppich of sounded a Cedarville tain the of Commissiоner of Internal v. Day. May general Spermacet Whaling Shipping sent alarm and very made a he Cir.), minutes Within a few the 281 646 con- F.2d where rather than among the vessel to beach decision flict earlier decisions is dis- ship. proved a di- Judge to be abandon cussed. The late Shackelford This judgment, the Miller, since error in sastrous of with the cоncurrence attempted during ship ‍​‌‌‌​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‍capsized run O’Sullivan, its page said at 651: were for and ten crewmen the beach recognize that there “We are a injured. and others drowned in number of decisions several major one of two bases As circuits, including own, our which damages awarding punitive the subsidiary that hold where the facts of officials the failure the Court found undisputed question and no of Bradley to intervene of Fleet credibility involved, the Court of is Captain Jop of the order countermand qualified well as the in pich cal was the Cedarville to beach judge trial to draw inferences disregard duty lous therefrom, infer conclusions and such The sec to the crewmen. States Steel ences and conclusions of major ond basis for judge can be reviewed Court finding common it was Appeals free limitation Bradley practice Seagrave ‘clearly erroneous’ rule. proceed ships at full order Fleet its Corp. Mount, Cir., 389, v. 6 212 F.2d fog speed to deviate ahead in the 394; E. H. & Co. Commis Sheldon v. рublished courses from recommended Cir., Revenue, sioner of 6 214 Internal Guard the United States Coast 655, However, F.2d 658. in Rich v. traffic Straits of Mackinac. Pappas, Cir., 6 229 F.2d we argues ruling United States Steel concluded that in view of the clearly out in set erroneous standard as v. Court inap- 52(a) Gypsum Co., supra, the Fed.R.Civ.P. 333 364, plicable 394, 525, in the entire recоrd where the 68 S.Ct. 92 L.Ed. depositions, 746, judge, trial court consisted of of the trial conclusions portions though undisputed reading Coast various even drawn from investigation findings facts, other records and Guard fact no testi- evidence and there was were not to written be set aside unless reasoning mony by live witnesses. erroneous. this new We followed rul urged support ing, judge dissenting, is that view with one in Dix judge Corp. ie Holland, since the trial did see wit- & Sand Gravel v. 6 308, testify Cir., 314, again their demean- 255 nesses and observe F.2d judge or, position he in no better Commissioner Internal Revenue credibility their v. Ores, than Consolidated Premium Iron Cir., supra, Ltd., 326. 265 F.2d The record fails to disclose members of some evidence to the effect it stand opinion procedure the rule have ard been for United States Steel to Seagrave Corp. ignore in the earlier as stated its vessels to the recom navigation cases was E. H. Sheldon Co. mended courses rule fol- support correct and better and have area. Nor do we find in the recent Yunker v. it cаses. Steel, lowed record that United States as a Revenue, general practice, of Internal Commissioner matter of ordered its 130, 133; Gudgel Cir., ships proceed speed 256 F.2d full ahead in a Revenue, 6 fog. heavy only significant Commissioner evi Cir., F.2d 209-210.” support *4 of these is dence self-serving Captain the statements Judge present the District In the Joppich of the There is Cedarville. peri extending over a conducted a nothing to indicate these au that approximately four od of weeks procedures by thorized dictated the offi testimony in the form heard voluminous cials of United States Steel. isolat records, depositions, Guard Coast Captain Joppich ed action of not does Upon material. the basis other written support finding a that United findings States he made this evidence deviation, Steel knew of this much less the adhere to conclusion stat fact. We ordered it. We Miller, hold that even the col Judge speaking for the ma ed except lision would not have occurrеd supra,, jority Spermacet, hold for deviation from findings Coast Guard recom of fact of the that the District compass headings, mended there is Judge still not to set aside are be support insufficient in the record for an clearly erroneous. unless punitive award 52(a) applies We to conclude that United States Steel. findings the fаct of the District Judge present in the case notwithstand The record shows that the Cedarville testimony that no he heard live at was a self-unloader and was not con- the trial. Commissioner water-tight compartments. structed with 278, Duberstein, Revenue 363 any Water which entered one of the 291, 1218; S.Ct. L.Ed.2d compartments ‍​‌‌‌​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‍throughout would run the Gypsum United v. United States length States entire of the The evidence hull. 333 U.S. 92 L. S.Ct. many ships indicates that there are on Ed. 746. the Great Lakes with similar construc- Judge tion. reviewing District present In found that the record in the knowledge with this accordingly apply clearly of the construction case we er- Cedarville, Captain Parrilla, of the man- roneous standard. In United States v. ager Bradley Fleet, of the Gypsum Co., supra,, knew with certainty attempt that to beach the Court said: ship fail, once he had learned that finding ‘clearly “A erroneous’ seriously the Cedarville was holed and although when there is evidence taking water. support it, court on the entire is left with the defi- evidence It was further found the District nitе and firm conviction that mis- that Parrilla learned take has been committed.” 333 U.S. the decision to beach the Cedarville at at 542. prior S.Ct. sinking. Although to its record, After of the point, a careful review record is unclear on this can- we say finding we hold of the that not clearly that er- was Judge to which we have referred above supрort roneous. we find no upon the District basis record the conclusion that damages against Court awarded Parrilla or other official of erro- Steel are States Steel knew the full extent neous. of the seriousness of the situation

H47 beaching attempt a “cer- faith when he made was his decision to beach borne Cedаrville. wisdom Most tain failure.” With members of depended and see the crew whose retrospect now can look back on deci- we lives his neighbors Rogers City, attempt was sion were his to beach vessel that the part Michigan. tragic on error areWe of the Cedarville. of the master emphasized The District Court hold, howevеr, com- prepared ship, Weissenburg, another sitting miles pany hundreds standing by and offered to take aboard obligation the facts away under the entire crew Cedarville. to the to make decision the case entirely feasible in the strain tq„ action be taken best course of collision, Captain Joppich crisis of the mаster the orders countermand thought ship that a abandon decision to in the middle the scene who on and undertake to transfer his men to the emergency. Weissenburg dangerous would be more ship relationship attempt to his crew than an to beach the ship, authority and control he exercis- he did and the since not know the exact émergeneies ships es in such his whereabouts other over heavy fog vicinity. unique. In chaos aboard in the avoid immediate *5 imperative ship in it The result of a such situations decision to abandon a conjecture. of remain under the control remain will a matter of It vessel complete single impossible un- practically аnd individual with been have authority. disputed sitting of the master The United Steel officials authority Pittsburgh a in assume such in must situa- vessel have known the responsibility to Captain Joppich. he has crisis and tion as well as did say decision to what the final as This is not to under the same condi- make might proper in view course of action must be dif- tions others madе a have To hold of concerned. all the factors ferent decision. in hesitations would result otherwise Geophysical Vela, In United Co. v. delays part of the on the and disastrous Cir.) the Court was F.2d au- he master while obtains advice problem reviewing faced with the superiors many thority miles from his long after actions very point the from the scene. On this emergency passed. reasoning in Insurance Columbian particularly applicable of the Court is in (13 Ashby Stribling, 38 U.S. Co. v. Pet.) 331, the case before us: 186, speaking 10 L.Ed.2d navigation circum- “But in these

through Story, Mr. Justice said: Judges stances is left neither to nor “Indeed, many, most, in if not Trinity the Elder Brethren of House melancholy oc- the casions, donе on these acts who, garb experts, in nor those little there is time deliber- security chair from the swivel ation consultation. What is be or great lay con- now out the course with often, done, to be suc- must ‘The the command- viction. master is cessful, promptly in- be done er of his little world. —lord stantly upon master, own his every He master sense оf the * * judgment responsibility. Cir., Balsa, word peril skill, usually action, calls for bridge has F.2d 409. Whether he decision, intrepid personal with- long stalk, quarterdeck to he or as discouraging by timid out others commands, It he is master. hesitating or doubts movements.” then, Master, these must who make great who, chose The master Cedarville decisions and clothed with greatest thought responsibility, enjoys what he best course good pro- for the action under the circumstances widest of faith latitude judgment. fundamen- concerned. no evi- ‘The benefit all There is fessional good principle navigating he a mer- dence that exercised other than tal chantman, peace posing punitive damages upon whether times war, commanding or of of- pre- is that States Steel. As has been stated pre-collision viously, free Cap- ficer must be left to exercise his actions of judgment. navigation ‍​‌‌‌​​‌​​​‌‌‌​​‌‌​​‌​​‌‌​​‌‌‌‌‌​‌‌​‌‌​​‌​​​​​​‌‌‍Joppich own Safe de- tain were neither authorized nor proposition judgment nies the that the ratified Re- States Steel. cаptain garding post-collision events, and sound of a discretion we hold vessel must confined in a mental be silence United States Steel * * *’ strait-jacket. The Lusitan- and failure to countermand the master’s ia, D.C.S.D.N.Y., 251 F. 728.” order to beach the vessel did not consti- tute ratification of his actions. There may be, as held the District duty speak was no for the owner to or Court, Parrilla have could otherwise interfere with the suggestions by offered radio to the mas- the master under these vessel ter of the Cedarville as what action facts. Furthermore the does evidence might have been advisable. Captain Joppich not show that an Parrilla other official contrary, unfit 54-year master. To he was of United States Steel have rescinded tq many old seasoned veteran with order to beach the vessel master’s years experience navigation on the and to have him to abandon ordered through Great Lakes and Straits having ship, knowledge without more Mackinac. time, possessed than at the conceiv- stated, For reasons we hold that the ably could have resulted in an even punitive damages against award of say worse disaster. cannot We United States Steel was error. Our de- Captain Parrilla or other upon cision will have no effect United States Steel should have substi- awarding compensatory their tuted for that of the *6 the various claimants. master under the See facts case. this Sophia, (9th 61 F.2d 339 Princess disposition In view of our case Cir.). unnecessary we find it to decide the oth- parties er issues raised on this We think the rule is better appeal. punitive damages are not recovera and remanded. Reversed ble owner a vessel for the act of the master unless it can be shown PECK, Judge (con- JOHN W. Circuit that the owner authorized or ratified the curring). acts of the master either before or after my I concur with brethren that the accident. Punitive also findings upon which the District Court may if be recoverable the acts com punitive damages against awarded Unit- plained of were those of an unfit master Corporation ed States Steel employing and the owner was reckless in erroneous, but since we are unani- thus Michigan him. Lake Shore South mously agreed not do Railway Prentice, ern Co. v. require even reach the level which would 97; The 546, S.Ct. 37 L.Ed. permit them us to stand under Nancy, (3 Wheat.) Amiable 16 U.S. 52(a) superfluous it sеems to me to con- 556-557, 456; Packing 4 L.Ed. Pacific sider whether could meet less exact- Navigation Fielding, Co. v. 136 F. 577 majority opinion tests. The indi- (9th Cir.). existing split th'e cates among Even we were to conclude that reflected Circuits as well as Joppich the actions of decisions some of such a nature concerning as to warrant an аward of cases in which review punitive damages against person him live not been heard witnesses have ally, we hold that the facts the trier of the facts considered where permit only documentary not this Court to affirm the identical record presented appellate body. im- District Court I to the see conclusion reaffirm a here no reason by a divid- discussed but indicated in Commissioner ed court Whaling and Spermacet Revenue v. Cir. Shipping 281 F.2d free prefer remain

I960), and would issue in a case

to consider clearly erroneous rise does not

level. Appellant, WOLCOTT, John

Robert America, STATES

UNITED Appellee.

No. 9992. Court of Tenth Circuit.

March 1969.