Hess v. United States

PETITIONER: Henry L. Hess Jr.
RESPONDENT: United States
LOCATION: Bonneville Dam

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 361 US 314 (1960)
ARGUED: Oct 15, 1959
DECIDED: Jan 18, 1960
GRANTED: Mar 02, 1959

Alan S. Rosenthal - for the respondent
Cleveland C. Cory - for the petitioner

Facts of the case

Located on the Columbia River between the states of Oregon and Washington, the Bonneville Dam consisted of several facilities including a spillway dam with eighteen numbered bays separated by fifty-foot gates. On the bed of the river was a concrete structure called a baffle deck, which extended the width of the dam. This deck was lined with concrete blocks called ‘baffles’, designed to reduce the downstream velocity of the river. Over the years, the flow of water eroded the baffles. To restore them to their original condition, the United States contracted with Larson Construction Company, an independent contractor. The United States retained the right to inspect Larson’s work, but did not have direct control over it.

On August 20, 1954, Larson’s tug ‘Muleduzer’ set out from Bradford Island pushing Larson’s barge. As the tug and barge approached bay nine, the Columbia River’s flow was clearly turbulent; despite this, Larson proceeded with its work. The barge veered north when it reached bay nine and the port bow struck a pier. Water flooded a hole in the bow, and the barge and tug were swamped and sunk. Most of the crew drowned, including George William Graham; Graham was a member of the sounding party aboard the tug. The crew died in navigable Oregon waters.

Under Oregon’s Employers’ Liability Law (ELL), employers were liable for failure to use every device, care and precaution practicable for the protection and safety of life and limb. Oregon’s Wrongful Death Act (WDA), however, only permitted recovery for deaths caused by a wrongful act or omission, and set contributory negligence as an absolute bar to recovery. Henry Hess, the administrator of Graham’s estate, filed an action against the United States under both the ELL and the WDA. The district court entered judgment for the United States, holding that the United States was not liable under either statute. It ruled that the ELL did not apply to Hess’ case in part because the ELL imposed a higher standard of duty than federal maritime law. The United States Court of Appeals for the Ninth Circuit affirmed, holding that only the WDA applied to Hess’ claim.


Could Hess invoke Oregon's Employers’ Liability Law to recover for Graham’s maritime death, even though the ELL imposed a higher standard of duty than federal maritime law?

Media for Hess v. United States

Audio Transcription for Oral Argument - October 15, 1959 in Hess v. United States

Earl Warren:

Number 5, Henry L. Hess, Jr., Administrator of the Estate to George William Graham, Deceased, Petitioner, versus United States of America.

Mr. Cory.

Cleveland C. Cory:

Mr. Chief Justice, may it please the Court.

I hope this case will be a welcome change from the last case here.

We have a very -- a very short record.

We have two briefs of 40 pages.

We have no conflict in fact.

The only questions before the Court are questions of law.

Now, this is a Federal Tort Claims Act.

It was brought in the District Court of Oregon.

And after a full trial, mostly on stipulated facts, the District Judge dismissed the case on the merits.

An appeal was taken to the Court of Appeals and the Court of Appeals affirmed.

The action was brought to recover substantial $100,000 damages for the wrongful death of the man named Graham.

And on October 20, 1954, he was employed as a carpenter by a Mr. Robert Larson and Larson had a contract with the United States for the repair of the baffle-deck of one-half of the baffle-deck of the spillway deck of the Bonneville Dam.

Your Honors, you may again see a map here, the spillway dam on the Columbia River is right here, the baffle-deck is a concrete structure that takes the flow of water which comes through the gates down there, and this -- in the period between 1938 when the dam was constructed in 1954 when this contract would last.

There seemed to be a great deal of erosion of the deck and of the baffles which were constructed to dissipate the velocity of the water, these big concrete baffles.

So Mr. Larson had this contract with the United States and Graham was his employee.

Now, under the contract, the contract contemplated that the operations of the dam would be carried on at all times in the regular manner by the corps of engineers, these employees of the United States, and that they were, of course, in exclusive and complete charge of lowering and raising the gates of the dam.

There are 18 spillways all the way down to the Washington side, number one down to the Oregon side, number 18.

And they are -- these gates, which are about 50 feet by 50 feet, rest on a so-called “ogee section” above the deck, and they are moved by big cranes that move across the base of the dam.

Now, Your Honors, the contractor contemplated that he was would go in and build a timber crib right in this section here at gate nine.

And -- that then he would complete all these copper dams right around and then he would pump the water out of this section so that he could expose the surface of the baffle-deck and proceed to do his extensive repair work.

And of course, he was required by the contract at all times to consult with the employees of United States.

There was a man named Caps (ph) who was in charge of the operation of the dam.

And then, there was a man named Patrick Leonti who was the liaison man.

And it was up to Larson, and he did confer with Mr. Leonti and he told them what he expected to do.

And this accident -- this very tragic accident in which four men were drowned occurred when he was just commencing his contract.

Now, what he proposed to do and what he told the United States he was going to do was to find out by a sounding operation just how this baffle-deck had been eroded in this section so that he could construct a timber crib on land and take it out and sink it and it would be on the right section underneath.

And so he told the United States that he wanted to take a tugboat and a barge and go up there and anchor or lash a barge in by the phase of the dam and take these soundings.

And in connection with that -- at that -- at that time, the -- these gates, 11 to 18 were closed and that created a quiet pool in this area.