Before Seitz, Chief Judge, Van Dusen, Senior Circuit Judge, and Gibbons, Circuit Judge.
This appeal attacks a November 2, 1978, district court judgment*fn1 in favor of plaintiff and against the defendants, Ohio Barge Lines, Inc. (OBL) and M/V Steel Forwarder (Forwarder), her engines, tackles, appurtenances, etc., In rem, in the sum of $15,680.00,*fn2 with interest at the prevailing rate from the date of expenditure.*fn3 Plaintiff alleges violations of §§ 10 and 15 of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 403 & 409), by the Forwarder and its operator and owner, OBL. We vacate the district court judgment due to an absence of findings of fact and conclusions of law, as required by F.R.Civ.P. 52, and remand principally for the filing of such findings and conclusions by the district court.
Jurisdiction in the district court was based upon 28 U.S.C. § 1345 and jurisdiction in this court is based upon 28 U.S.C. § 1291.
The evidence showed that the Ohio River is one of the nation's navigable rivers maintained by the Corps of Engineers. Until their removal sometime after 1972, lock and dam 49 were aids to navigation at mile 845 on the Ohio River. The dam was submersible and the lock was on the right ascending shore of the river, the Kentucky side. The dam was normally submerged during high water conditions so that traffic would not have to go through lock 49. When the dam was raised, water was permitted to pass through openings on the Indiana side of the dam, called beartraps.
The Uniontown lock and dam, which were designed to replace dam 49, are navigational aids at mile 846 on the Ohio River. In 1972, the lock had been completed and the dam was under construction. The Uniontown lock was on the left ascending shore, the Indiana side, and during the summer of 1972 the dam was being constructed within a cofferdam which extended from the middle of the river toward the Kentucky side. This left a 500-foot opening (the pass) between the cofferdam and the outer wall of the Uniontown lock, which was open to navigation. The Uniontown dam was approximately one mile below the 49 dam, and the distance from the downstream lock wall of lock 49 to the upstream lock wall of the Uniontown lock was approximately 3500 feet. When required to use both locks, tows would have to cross the full width of the river in this short distance.
The water conditions created by these structures were hazardous. When dam 49 was raised and the beartraps were open, a counter-clockwise eddy dominated the pool between the two dams. This eddy swept directly across the upstream entrance to the Uniontown lock, making entry and exit from that lock difficult for long tows, which could be swept out of control when crossing the current. When dam 49 was submerged, this eddy did not exist. Regardless of the position of dam 49, a substantial head of water was created at the Uniontown pass by the narrowing of the channel produced by the cofferdam. The water level was often a foot-and-a-half higher immediately above the cofferdam than immediately below. Despite this head of water, it was customary for tows to go through the pass, rather than the Uniontown lock.
On the night of June 26-27, 1972, the Forwarder was approaching the Uniontown dam heading upstream. The Forwarder is a 5000 horsepower towboat, 168 feet long and 40 feet wide, owned and operated by OBL. At this time the master of the Forwarder was Stanley Roll and the pilot was Charles Young. The Forwarder was pushing 17 barges laden with ore, 15 ahead (3 wide and 5 long) and one lashed to each side. This made the tow 1070 feet long and 105 feet wide.
At midnight the watch changed and pilot Young received the helm. All barges were inspected and found to be in good order. At this time the tow was nine miles below the Uniontown dam. The tow moved upstream until it was required to move out of the main channel, approximately three-quarters of a mile below the Uniontown lock, and stand out of the current waiting for a vessel coming downstream to negotiate the pass. Once the other vessel was below it, the Forwarder headed back into the main channel at full throttle with its search lights on. This throttle setting is customary when taking a tow from a full stop into a swift current, because it gives the tow sufficient maneuverability to maintain control in the current. However, when going through exceptionally rough water, such a throttle setting is dangerous, as excessive speed in such conditions can cause barges to dive under the water and sink. Pilot Young testified that he planned to throttle back shortly before the bow of the tow reached the pass so as to safely negotiate the head of water, but that while the bow was still 600 feet below the pass, the front three barges dove into the water and sank. All three barges were owned by OBL.
The Coast Guard was immediately informed, and the next day it placed a marker on the sunken barges, which were approximately 300 feet from the Uniontown lock wall. At this time the pass remained open to navigation. However, on July 8, 1972, the Coast Guard was notified that its buoy had disappeared and that the barges had apparently shifted. One of the barges had in fact shifted to within 200 feet of the Uniontown lock wall. The Coast Guard determined that the narrowness of the channel between that barge and the wall, and the possibility that the barges would shift again, required closing the pass to all navigation until all of the barges had been removed. The pass, accordingly, was officially closed to navigation until August 19, 1972, when the salvor hired by OBL completed the removal.
After the pass was closed, all vessels were required to use the Uniontown lock. The Corps of Engineers determined that a helper boat was needed to help tows maneuver in and out of the upstream entrance of the Uniontown lock when dam 49 was raised and the beartraps were open. The helper boat assisted tows through the cross-currents and eddies and thereby protected the tows, the Uniontown lock wall, the cofferdam, and OBL's salvage operation. During the time the pass was closed, dam 49 was raised from July 25 until August 3 and from August 10 until August 20. The Corps contracted with Mt. Vernon Barge Cleaning, Inc. for the use of a helper boat, the M/V Jeffery Lynn, during those periods.
When OBL refused to reimburse the Corps for this expense, this suit was filed. In the district court, the Government contended that the defendants were liable for the cost of the helper boat on a theory of strict liability under either § 10 or § 15 and, in the alternative, that the defendants were liable on a negligence theory under either § 10 or § 15. The district court adopted the Government's interpretation of § 10 and held the defendants liable on a theory of strict liability under § 10. Also, the court apparently concluded that the defendants were negligent.*fn4 The defendants appeal from this judgment.
I. Contentions under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403)
The district court held that § 10 prohibits the innocent sinking of vessels. We do not agree. Section 10 makes the creation of any obstruction in the navigable streams and channels of the United States illegal.*fn5 For the section to control this case, we would have to hold that a sunken vessel is an "obstruction" and that § 10 should be read to impose strict liability for the creation of an obstruction with a vessel. As we reject the Government's strict liability argument ...