Appeal from a judgment denying apportionment of damages resulting from an allision between a vessel and a drawbridge. Reversed and remanded.
Mansfield, Circuit Judge, and Smith*fn* and Palmieri,*fn** District Judges.
The Tomlinson Bridge, which spans Quinnipiac River near its confluence with Mill River, was completed by the State of Connecticut in 1925 under a permit granted in 1922 by the Army Corps of Engineers, pursuant to the authority given by the Rivers and Harbors Act of 1899, 30 Stat. 1151, 33 U.S.C. § 401. The bridge is of the basculetype construction, with leaves that elevate to allow the ships to pass.
The approved plans for the bridge specified that the width of the water between the bridge abutments should be 126 feet and required that no part of the leaves, when elevated, would extend over the water. To achieve this requirement, the leaves must be raised to an angle of 82 degrees above horizontal. The bridge, as constructed, cannot be elevated to an angle of more than 65 degrees above the horizontal, and the leaves, when elevated, do extend over the water.
The Tug MORAN, with the Barge BECRAFT in tow, while passing through the Tomlinson Bridge, was so maneuvered that the port side of the BECRAFT rubbed the granite abutment of the bridge, damaging both the barge and the bridge.*fn1 The BECRAFT was deflected to the starboard, and shortly thereafter a chock on the port side of the BECRAFT snagged a girder of the raised bascule leaf of the bridge, resulting in substantial damage to the leaf.
The State of Connecticut did not have any authorization from the Chief of Engineers and the Secretary of the Army to deviate from the approved plans.*fn2 The deviation was a breach of a statutorily-imposed duty, and it constituted negligence.
The district court found that the MORAN was negligently maneuvered, that such negligence was the cause of the damage, and, relying on In re Great Lakes Towing Co., 348 F. Supp. 549 (N.D. Ill. 1972), concluded that the negligence of the State of Connecticut was not a legal cause of the damage.
In The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148 (1873), a case involving a collision between moving vessels, the Supreme Court held that once a ship is shown to have violated a statutory rule, she then has the burden of proving that her fault could not have been one of the causes of the accident. The State of Connecticut could not sustain that burden here. The chock which struck the girder on the bridge did not protrude over the side of the barge. The barge was in the channel, and had the leaves of the bridge not extended over the channel, there could have been no contact between the chock and the girder. The violation of the statute was, as a matter of fact, a cause of the accident. The district court in In re Great Lakes Towing Co., supra, distinguished between the minor, or passive, negligence of the bridge owner and the active negligence of the ship and applied a sometimes-stated tort doctrine which exonerates one whose passive negligence does no more than create a static condition which makes the damage possible,*fn3 and held that the doctrine of The Pennsylvania, supra, did not apply to bridges.*fn4
We hold that, where the violation of a statutory duty is a cause of an accident, that liability may not be avoided on causal grounds by drawing distinctions between active and passive negligence. It is axiomatic that the wider the water channel under a drawbridge the less is the likelihood that passing ships will touch the bridge. To excuse the negligence which narrows a navigable channel would, in our opinion, simply frustrate the congressional purpose to safeguard navigation. This view accords with the rationale underlying the decision in The Pennsylvania, supra. The result which we reach is in accord with the decisions in In re Wasson, 495 F.2d 571 (7th Cir. 1974); The Fort Fetterman v. South Carolina Highway Department, 261 F.2d 563 (4th Cir. 1958); Petition of McMullen & Pitz Construction Co., 230 F. Supp. 726 (E.D. Wis. 1964); United States v. Norfolk-Berkley Bridge Corp., 29 F.2d 115, 125 (E.D. Va. 1928).
The failure of the State of Connecticut to comply with the terms of the permit was a contributory cause of the allision between the bridge leaf and the chock, and the damages should be apportioned between the MORAN and the State of Connecticut.
The judgment is reversed, and the cause is remanded for further proceedings not ...