Lumbard, Chief Judge, Moore and Kaufman, Circuit Judges.
Plaintiffs in these three consolidated actions, brought in the Northern District of New York against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, appeal from judgments entered for the United States after a trial on the merits.
The actions arise from the collapse on March 16, 1963 of a temporary dewatering cofferdam built by the Vaughn Construction Corporation (Vaughn) to enable it to dry pour a concrete guide wall, as part of a contract with the U.S. Army Corps of Engineers to modify the upstream guide walls and approach channels of the Hudson River at the Troy Lock and Dam at Troy. Plaintiffs are two employees of Vaughn who were injured, and the representatives of two who were killed, in the collapse of the cofferdam.
These actions were tried before Circuit Judge Marshall, sitting by designation without a jury. After the trial, upon Judge Marshall's resignation to become Solicitor General of the United States, they were assigned to Judge Cashin, who by agreement of all the parties decided them on the record made before Judge Marshall.*fn1 Judge Cashin found that Vaughn negligently failed to add an additional row of horizontal walers and braces to the steel pile cofferdam as it excavated the river bed within the dam, and that this negligence was "the direct cause of the failure of the dam." However, he held that Vaughn was an independent contractor, for whose negligence the United States was not liable, because he found that except for one "isolated occurrence" the United States did not exercise "actual control over the details of performance" by Vaughn. He also held that, since Vaughn was responsible under the contract for designing and building the cofferdam, this finding relieved the United States of liability for the defective cofferdam under N.Y. Labor Law §§ 240, 241. Finally, Judge Cashin held as a matter of law, without making any findings of fact, that the United States was not liable either on the theory that Vaughn was carrying on an inherently dangerous activity, or on the theory that it was an independent contractor negligently selected by the United States. 249 F. Supp. 213 (N.D.N.Y. 1965). We uphold Judge Cashin's finding that Vaughn was an independent contractor, and affirm the judgments.
Appellants urge that we may reverse Judge Cashin's finding that Vaughn was an independent contractor without holding it "clearly erroneous," see Fed. R. Civ. P. 52(a), since it was made upon a written record and therefore cannot have been influenced by the demeanor of the witnesses. Cf., e.g., United Nations Korean Reconstruction Agency v. Glass Prod. Methods, Inc., 291 F.2d 168, 172 ((2nd Cir. 1961); Orvis v. Higgins, 180 F.2d 537 (2 Cir.), cert. denied, 340 U.S. 810, 71 S. Ct. 37, 95 L. Ed. 595 (1950). We need not decide whether we have this power where a case has been assigned to a second judge for decision on the record made at a trial before the first judge, because a review of the transcript and exhibits which were before Judge Cashin has convinced us that this finding was correct.
The contract between Vaughn and the Corps of Engineers reserved broad supervisory powers to the Corps. It specified that the east guide wall should be poured dry, and provided that
"the methods of dewatering shall be subject to the approval of the Contracting Officer, but such approval will not relieve the contractor of responsibility for the adequacy of the work."
It also contained an "accident prevention" clause, binding Vaughn to follow the Corps of Engineers safety manual and any additional safety measures the Contracting Officer determined to be reasonably necessary, and empowering the Contracting Officer to order compliance with these safety measures and to stop work if it was not forthcoming. Finally, the contract provided that Vaughn's superintendent should be "satisfactory to the Contracting Officer."
Three employees of the Corps of Engineers dealt directly with Vaughn on the Troy Lock and Dam project. The Contracting Officer's representative, vested with all his powers except as to modification and termination of the contract, was the Resident Engineer of the Corps in Albany, New York, Ambrose F. Brennan, a licensed civil engineer. Brennan's assistant, responsible for supervising about ten or twelve contracts in addition to that with Vaughn, was Remo J. Lusardi, a civil engineer. Below Brennan and Lusardi was the job site inspector, Hercules J. Platts, who had some construction experience but was not an engineer. Platts spent his full time at the Troy Lock and Dam project site, and had the power to direct Vaughn to comply with the contract specifications and, in an emergency, to stop work if an obviously unsafe condition was not corrected.
Vaughn, which had already fallen behind schedule, began to drive steel pilings for the east guide wall cofferdam on January 14, 1963. On January 21, Brennan requested a design of the proposed cofferdam, and received a sketch showing a cofferdam composed of a single row of pilings. Brennan disapproved this sketch, advised Vaughn to use a double row of pilings, and sent Vaughn photographs of a cofferdam successfully used by another contractor. He also ordered Vaughn not to dewater the cofferdam until it produced a more detailed design. Such a design was not forthcoming until after the cofferdam collapsed, but Vaughn proceeded to build a cofferdam with a double row of pilings enclosing the work area, with the tacit acquiescence of Brennan and Lusardi. On one occasion, Vaughn's superintendent demonstrated to Lusardi how far he was driving the pilings. While they did not disapprove the cofferdam, the Corps representatives repeatedly ordered Vaughn's employees to wear hard hats, to place an adequate number of ladders inside the cofferdam, and to observe other basic safety precautions.
Vaughn began to dewater the cofferdam late in February 1963, and soon ran into difficulties. On February 27, Platts telephoned Lusardi that the weld between the walers at the southwest corner of the cofferdam had snapped, and Lusardi told him to direct Vaughn to reweld it and place a knee brace there. On March 1, Vaughn dewatered to a depth of seven feet inside the cofferdam without adding a second row of walers and braces, and the south wall of the cofferdam moved two feet to the north over the weekend between March 1 and March 4, and another eighteen inches while Platts watched on March 5. Lusardi, visiting the project on March 6, directed Vaughn not to dewater the cofferdam until it was strengthened. He also found that Vaughn had wedged a steel beam vertically between the southwest corner of the cofferdam and the emergency bulkhead panels protecting the Troy Lock immediately to the south. Concerned that the wedged beam would transmit the stresses on the cofferdam to the bulkhead panels and damage them, Lusardi ordered Vaughn to remove it. Vaughn flooded the cofferdam and replaced the pilings of its south wall with stronger ones extracted from the north wall but did not remove the wedged beam until March 11, when Brennan and Lusardi again visited the project and ordered the beam removed.
By this time Vaughn was dewatering down to the river bed. On Friday, March 15, it had installed the second and third rows of horizontal walers and braces and had begun to excavate the river bed. Platts urged Vaughn to add temporary bracing, but on Saturday, March 16, without doing so, Vaughn excavated the river bed within the cofferdam to a depth of at least five feet below the third row of walers, some twenty-two feet below the river level. At about 12:40 P.M. on March 16, the west wall of the cofferdam buckled with a roar and collapsed against the wooden pilings in the center of the cofferdam, flooding the cofferdam, pinning Walter Lipka below it, and injuring the three other employees. All the expert witnesses who testified at the trial stated, and Judge Cashin found, that the principal cause of the collapse was Vaughn's excavating too far below the third row of walers without adding any additional walers or braces.
On this record, Judge Cashin correctly held that under New York law Vaughn was an independent contractor because the United States could not and did not direct the details of its performance. Except possibly for Lusardi's direction of February 27 to place a knee brace where the weld had snapped at the southwest corner of the cofferdam, all of the Corps' interventions in the construction of the cofferdam were exercises of its reserved contractual powers to insure compliance with specifications, to disapprove unsuitable methods of dewatering, and to rectify obviously unsafe conditions. In the face of the voluminous and uncontradicted testimony that Vaughn alone directed its employees' activities, worked out the ...