APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 41815).
Aldisert, Gibbons and Weis, Circuit Judges. Gibbons, Circuit Judge, dissenting.
The owner of the Ore Chief, a bulk ore carrier that went aground in the Delaware River, sued the federal government for negligence, alleging that a channel depth statement the Corps of Engineers had published was inaccurate. The district judge found for the defendant, because he was "not convinced by a preponderance of the evidence presented that the Ore Chief went aground because of the government's conduct in issuing a channel depth statement." 388 F. Supp. 276, 288 (E.D. Pa. 1974). The plaintiff has appealed. We affirm.
We have considered the six contentions raised by appellant and have concluded that the facts found in this non-jury trial were not clearly erroneous, Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972), and that the district court did not err in its legal conclusions drawn therefrom, as more particularly set forth in the opinion of Judge Daniel H. Huyett, III, supra.
The maritime complaint filed on December 29, 1966, and finally adjudicated December 19, 1974, alleged 11 specific acts of negligence, as well as negligence "in other respects which will be shown at trial." Plaintiff tried the case on the theory that the Ore Chief struck large indigenous rocks in the Delaware River bed; that the channel depth above the rocks was inaccurately reflected in the Corps of Engineers' published channel depth statement; and that the government was, therefore, liable in negligence for the damage from the accident. The government, for its part, made no serious attempt to offer an alternative explanation of the accident; instead it simply sought to discredit plaintiff's theory of the accident, and relied on the plaintiff's burden to prove negligence by a preponderance of the evidence.
The plaintiff was very specific in the theory under which it put the case. It argued that the Ore Chief struck particular rocks, at a particular point in the channel. It sought to establish this to show both that the government's depth statement was inaccurate, and that the inaccuracy caused the accident. Plaintiff's trial memorandum filed November 5, 1973, stated that certain "witnesses will establish the location of the rocks which caused the damage. Certain tests were performed by Ambric Testing Laboratory as to fresh paint on the rocks and a representative from the Laboratory will testify that paint on the rocks was the same as that on the bottom of the ORE CHIEF." (Trial Mem. 3.) The memorandum also stated: "The constant surveying of this area by the United States with the use of electronic sounding machines quite obviously failed to detect the rocks. Such a repeated surveying by the United States of this area constitutes constructive notice of the presence of the undetected indigenous rocks as part of the bottom, since by proper methods the United States should have known of their presence and their heights and the depth of the water over the rocks so that the depths published would be accurately reported to mariners." (Trial Mem. 13.)
In its Proposed Findings of Fact Before Trial (P.F.B.T.), the plaintiff asked the court to find the presence in the channel of three specific rocks: the "principal" or "log" rock, the "plateau" or "table" rock, and a third, unnamed rock. Plaintiff also asked the court to find that the "top surface of the log rock was newly chipped or ruptured in two separate areas," and that "samples obtained from the log rock and the third rock contained fresh paint scrapings." P.F.B.T. 13. Plaintiff sought further to support its theory that the Ore Chief collided with these rocks by proposed findings 15 and 16, which stated:
15. The ORE CHIEF thus came into contact at least with the log rock and the third rock. Both were uncharted obstacles within the 40' X 400' channel. Before it could be determined if the vessel had also came [sic] into contact with the plateau rock, the rock was destroyed. . . .
16. The weight and force of the ORE CHIEF knocked loose the upper portion of these rocks which caused the grounding.
The plaintiff did not change its theory after the close of testimony. In its Proposed Findings of Fact After Trial (P.F.A.T.) it asked the court to find that there were two indigenous rocks - log and table - plus a third rock; and that "all three of these rocks showed fresh abrasions, indicating recent contact with the bottom of the ORE CHIEF". P.F.A.T. 27. Plaintiff also asked for a finding that "it was uncontradicted that [a log] rock sample had red ship's paint on its surface. . . . Ambric Testing Laboratories, Inc. analyzed the sample and concluded that the red paint on the rock was the same paint as applied to the bottom of the ORE CHIEF on the occasion of her last drydocking in July, 1964 prior to the grounding." P.F.A.T. 28. Additional suggested findings related to the size and location of all three rocks, P.F.A.T. 27; the obtaining of the log rock sample, P.F.A.T. 29; and the indigenous nature of the log and the table rocks, P.F.A.T. 27 & 31. After thus requesting numerous specific findings describing these three rocks in detail, plaintiff requested a finding that:
The uncontradicted preponderance of credible evidence established that the weight and force of the ORE CHIEF collided with and fragmented the upper portion of these indigenous rocks which caused the grounding.
In its reply brief on appeal plaintiff advances an argument in the nature of res ipsa loquitur quite at variance with its trial strategy. Plaintiff asserts that the "most persuasive argument" for reversal "is based on certain of the Court's findings which were fully supported by the record: (1) the vessel grounded in the channel and (2) the vessel sustained the alleged damage on that occasion." Reply Brief at 1. We do not decide whether there were such "findings",*fn1 or whether ...