Appeals from the United States District Court for the Eastern District of Wisconsin. No. 70-C-350 MYRON L. GORDON, Judge.
Swygert, Chief Judge, Stevens, Circuit Judge, and Perry, Senior District Judge.*fn* Swygert, Chief Judge (concurring).
PERRY, Senior District Judge.
This is an appeal from a judgment of the District Court in favor of the defendant, Gartland Steamship Company (hereinafter called Gartland), in an admiralty action brought by the plaintiff, Schwerman Trucking Company (hereinafter called Schwerman), for damages which occurred to Schwerman's dock during the night of June 25-26, 1969, while Gartland's vessel, the Steamship W. E. FITZGERALD, was moored thereat.
The District Court made, inter alia, certain findings of fact which are summarized below (paragraph numbers comport with the numbers of the Findings):
4. Sometime prior to 1902 the Milwaukee Gas Light Company ("gas company") became the owner of a strip of land along the north side of the Menomonee River at Milwaukee, Wisconsin, extending from North 25th Street easterly about 1900 feet and lying between West St. Paul Avenue and the center of the river. This property was subsequently purchased by Schwerman, as related below.
5. Sometime during the years 1902-1904 the gas company built a dock along the river frontage of its property. The portion of the dock east of buildings located near the center of the property was of heavy-weight construction, and the portion west of the buildings was of lighter-weight construction. The easterly section of the dock was built with multiple sets of tie rods for back support. The westerly section was built with a single set of 1 1/2" tie rods for back support and two rows of piles at the face of the dock. The entire dock was constructed of wood piling, 3-lap, wood Wakefield sheeting, wood cap and facing, and wood walers (fender timbers).
6. In 1923 the gas company had the entire dock reconstructed by the Edward E. Gillen Co. of Milwaukee. In general, the reconstruction consisted of removing the wood cap and facing, cutting off the tops of the existing piles and Wakefield sheeting to a lower level, driving some additional piles, and placing a concrete cap along the top of the dock. Cast iron bollards were then affixed along the top of the concrete cap at 120-feet intervals.
9. The Edward E. Gillen Co. performed a survey of the dock for the gas company in 1941. A diver examined that portion of the reconstructed dock which lay abreast of the buildings and found the Wakefield sheeting badly deteriorated. A report by the Gillen Co. noted the existence of seven broken piles and six instances where the Wakefield sheeting either had developed holes or had sprung outward. It is the function of the Wakefield sheeting to form a continuous wall between the dock fill and the river, and to prevent the escape of the fill into the river.
10. No repairs were made following the 1941 survey. The only major repair work done to the dock after its reconstruction in 1923 was some repair work done in 1932 to the easterly section. As far as is known, no repairs were made to any of the dock sections abreast of the buildings or west of them.
14. In 1966 the gas company entered into a contract with Fred Schwerman for the sale of all of its realty between West St. Paul Avenue and the Menomonee River.
16. In December of 1968 the gas company delivered a warranty deed to the riverfront property to Fred Schwerman, and in January of 1969 he quitclaimed all of his interest in that property to the Schwerman Trucking Company.
17. In 1967 Schwerman retained a Milwaukee consulting engineering firm to design and supervise the construction of a new means of access to the dock property, the existing access bridge and ramp containing too sharp a curve and insufficient strength for use by Schwerman's heavy vehicles.
18. Following the taking of soil boring tests in March, 1967, which demonstrated that the soil was very silty and capable of lateral movement under heavy loads, Mr. Robert Schloemer of the engineering firm prepared plans for a new bridge. The weight of this bridge design was projected at 4,127 tons.
19. Mr. Schloemer was then instructed to look into cheaper, alternative means of access. A combination bridge and earthen access ramp structure was then designed, with projected weight of 30,000 tons. In September, 1967, Mr. Schloemer inspected the dock wall west of the buildings from a small water craft whence he was able to inspect the bottom of the concrete cap and the tops of the piles. His inspection revealed that the bottom of the concrete cap was seriously spalled, and that the tops of the piles underneath the caps were rotted to a considerable degree. Mr. Schloemer then advised against the use of the 30,000-ton earthen ramp design, being fearful that the huge weight would push the badly deteriorated dock wall into the river.
20. Following Mr. Schloemer's inspection of the dock face, Fred Schwerman conducted an excavation in the area of the anchor piling in order to ascertain its condition. A determination was made by Fred Schwerman that the anchor piling was in good condition and, based on this, Mr. Schloemer was directed to devise some means of alleviating the strain of the earthen ramp on the dilapidated dock wall and to proceed with the earthen ramp design.
21. Fred Schwerman did not inspect the tie rods extending from the anchor piling to the dock face at the time of his excavation. Mr. Schloemer personally made some excavations, but he, too, did not inspect the tie rods.
22. To alleviate the strain on the dock wall, Mr. Schloemer designed a wall of steel sheeting to be installed at the foot of the earthen access ramp; however, the sheeting did not extend all the way to the western boundary of the property in question, ending some 65 feet from that boundary. This resulted in the application of pressure by the 30,000-ton access ramp at the base of the piles which supported the concrete cap extending over the last 65 feet of dock frontage.
23. A combination bridge and earthen access ramp was then built in 1967-1968. The area between the first and second rows of anchor piling was excavated and the old tie rods were removed. New rods 1 1/2" in diameter extended from the steel sheeting to the second row of anchor piling. Existing tie rods between the dock face and the first set of back anchor piles were not replaced.
24. After completion of the bridge and ramp, gravel trucks and asphalt tankers weighing between 10 and 14 tons began to traverse the ramp and the land surface between the ramp and the dock wall.
25. In July of 1968 Mr. Schloemer conducted a test which showed that the dock wall had moved almost 2 inches toward the river in the preceding six months. Earlier, in October, 1967, Mr. Schloemer had recommended that periodic tests be made to check the movement of the dock wall into the river; however, except for the test made in July of 1968, no other movement tests were made.
26. Also in July of 1968, Gartland desired to lay up the W. E. FITZGERALD in the Milwaukee area due to a business slowdown. Schwerman was contacted regarding a suitable dock for mooring her and was receptive.
27. Accordingly, Mr. Carl Schwerman, a Vice President of Schwerman, requested Schwerman's resident counsel to draft a mooring contract. Said counsel procured a copy of the form which the gas company had used in the past for winter mooring on its premises, and altered the terms where appropriate. The contract was sent to Gartland's offices and was signed by Mr. Robert Stack, Gartland's Secretary-Treasurer.
28. The contract, as signed by Mr. Stack, was then delivered to Schwerman by Mr. Floyd Brown, Gartland's Marine Superintendent, on the occasion of the latter's arrival in Milwaukee to meet the vessel and check the mooring. Carl Schwerman then executed the contract on behalf of Schwerman on Aug. 5, 1968.
29. The sixth paragraph of the contract provided:
"You [Gartland] will exercise such caution and care as may be necessary to protect our [Schwerman's] dock facilities from damage in the course of any movement or mooring of the W. E. FITZGERALD, and you will repair any damage to our dock occasioned by your occupancy thereof."
30. The Court found that the sixth paragraph of the contract did not set forth a strict liability standard, as argued by Schwerman. Rather, the Court found that the contract imposed upon Gartland an obligation to use "caution and care" during the entire period its vessel was moored to Schwerman's dock, and further provided for liability by ...