RESPONDENT: American Dredging Company
LOCATION: Wolverine Tube, Inc.
DOCKET NO.: 34
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 355 US 426 (1958)
ARGUED: Nov 21, 1957
DECIDED: Feb 03, 1958
Facts of the case
Media for Kernan v. American Dredging Company
Audio Transcription for Oral Argument - November 21, 1957 in Kernan v. American Dredging Company
Number 34, William J. Kernan, Administrator of the Estate of Arthur E. Milan, Deceased, et al., Petitioner, versus American Dredging Company.
Abraham E. Freedman:
Thank you, sir.
Court please, these are two cases claiming death -- claiming damages for death of -- on account of the rising out of a marine disaster on the Schuylkill River on November of 1952, sir.
Briefly, two questions are raised in this Court.
One, is the warranty of seaworthiness qualified by considerations of negligence.
And two, where in the violation of a -- of a regulation -- of a governmental regulation -- is it necessary to show that the injury involved was within the contemplated purpose of the regulation despite the fact that the -- the violation itself was the proximate cause of the injury.
Briefly sirs, these are the facts.
The respondent here, the American Dredging Company, was engaged to dredge a pier or at a pier of the Atlantic Refining Company in the Schuylkill River in Philadelphia.
The Schuylkill River within the territory limits -- within the boundaries of Philadelphia, has lined along its -- its banks, a number -- probably, a half a dozen refineries, at several of which there are piers where ocean going tankers call and load, and discharge petroleum products.
Now, on this particular day, sirs, the American Dredging Company was dredging at a point called Point Breeze and -- the -- several miles up beyond the point where this accident happened and the -- in connection with that dredging operation, the respondent here was using a tugboat called the Arthur N. Herron, which was towing barges, flat barges, down the river loaded to a dumping ground and then he would bring them back light to the Point Breeze, where the dredging operation was being done.
And then pick up another one.
On this particular occasion, the Arthur N. Herron, I should say too, Your Honors, and this is of extraordinary importance in this case that along -- this accident happened opposite -- in the Delaware River, opposite the gulf refining piers or gulf refining plant, I should say.
It's -- there are not only piers, but there's a refining company there as well.
It's a huge plant extending crops over several blocks.
And on the shore side, there were signs saying, "No smoking.
No naked lights."
And on the water side, on the docks facing the river, there were also space every 50 feet apart, there were signs, "No naked lights.
Now, in addition to that, on this particular day and of this night, there were seven tankers that were loading or discharging petroleum products at the Gulf Oil spillways.
It is -- testimony shows quite clearly that in connection with the loading or discharging operations, petroleum fumes are given off and in the various governmental periodicals, a good bit of which is within the Coast Guard regulations.
It is a known fact that these gases tend to permeate the atmosphere and sometimes they can be flashed some distance away and the flash will set the whole area or fire back to the point of origin, even to the ship.
Now, on this particular day, the Arthur Herron had picked up somewhere about 8 o'clock or in that area in the evening at a light barge, a -- a scow designed and it was towing it back up the river to the place where the dredging operation was taking place.
It is important to note that at that time, the barge add about five feet of freeboard.
That means, there was -- there were five feet between -- there was five feet between the surface of the water and the deck of the barge.
Coming up the river, this barge had two lanterns, open flame, naked lights, these flamed kerosene lanterns, one on the forepart and the other on the stern of the barge, laying flat on the deck of the barge.
When -- it was coming up, I said it had about five feet of freeboard therefore, the lights were approximately five feet above the surface of the water when it was coming up, as it passed the same gulf refining area.
It got to this Point Breeze, scene of operations, sometime later which was a couple of miles up the river and then it transferred the -- it let -- let go of the light barge, the light scow and picked up a loaded scow and transferred the two naked lights which had been burning all during that period of time to the loaded scow.
Now, the loaded scow had between two and a half and three feet of freeboard, which meant that the lights then came much closer, about two feet closer to the surface of the water.
It is conceded hereto, when I say conceded, I mean the test -- there was no dispute on the testimony and the captain of the said boat that was towing the barge admitted at this time that he was aware of the fact that on this -- in this area, the fuse, which were given of from these discharging operations were heavier than there.