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CUMBERLAND CTY. UTILS. AUTH. v. THE M/T DELBAR

January 27, 1985

CUMBERLAND COUNTY UTILITIES AUTHORITY, Plaintiff,
v.
The M/T DELBAR, her engines, boilers, etc., and The ARGOIL 150, her engines, boilers, etc. and Taylor and Anderson, and Delaware River Barge Company, and Interstate and Ocean Transport Company and Gellenthin Bulk Transportation Corporation and Interstate Towing Company, Defendants



The opinion of the court was delivered by: COHEN

 Plaintiff, Cumberland County Utilities Authority (CCUA), instituted this action pursuant to 28 U.S.C.A. 1333, the Court's admiralty jurisdiction, to recover for damages to its submerged outfall line after it had been struck by the defendants' barge and tugs on two separate occasions, the first on July 6, 1978, the second, a year later on July 14, 1979. Plaintiff seeks damages in the amount of $107,685.08 against defendants, the tug M/T Delbar, Taylor and Anderson, the operator of the M/T Delbar, Delaware River Barge Company, the owners of the M/T Delbar, and Gellenthin Bulk Transport Corporation, the owner of the barge Argoil 150, for the cost of repairs necessitated by the first incident. Plaintiff seeks damages totalling $ 99,876.57 against Interstate Towing Company, operator of the tug Transporter and the barge Argoil 150, Interstate and Ocean Transportation Company and Gellethin Bulk Transportation Corporation for the cost of repairs caused by the second collision.

 A non-jury trial was held in this matter. This opinion is submitted in lieu of findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a).

 FACTUAL BACKGROUND

 Plaintiff, CCUA, is a regional sewage and waste treatment authority, located in Bridgeton, New Jersey. It is organized and exists under the laws of New Jersey. As part of its operation, the CCUA owns and maintains an outfall line which extends from its sewage treatment plant, located on the bank of the Cohansey River into the Cohansey, a navigable waterway. This outfall line is a pipe which measures four feet in diameter and extends approximately 320 feet into the river. The Cohansey River is approximately 600 feet wide in this area. (Tr. Vol. 1, p. 10). The terminus of the outfall line, then, extends more than halfway into the middle of the river. The outfall line was constructed by Vicon Construction Company; Engineering Services were provided by John G. Reutter and Associates in accordance with an application and drawings submitted to and permit issued by the United States Corps of Engineer. Construction of the outfall line began in November of 1977, and continued through the end of March 1978. (Tr. Vol. 1, p. 12). During this period of construction, the pilings supporting the outfall line were visible only at low tide. A work barge was present at the end of the outfall line at all times during construction. (Tr. Vol. 1, p. 15). This part of the river was only navigable at high tide.

 On July 6, 1978, at approximately 12:30 P.M., the barge Argoil 150, pushed by the tug Delbar, was proceeding up the Cohansey River on its way to the Petrunis Oil facility. As the barge and tug proceeded past the plaintiff's sewage treatment facility, they struck the outfall line.

 At the time of this first collision, the pipe was marked by a sign, warning of the outfall line, positioned on the shore of the Cohansey where the outfall line entered the river, approximately 320 feet from the terminus of the pipe. The sign was 6 feet off the ground, was about four feet by four feet and faced the river, (Tr. Vol. 1, p. 21) not down so as to be seen by barges approaching the outfall line.

 Information regarding the nature and location of the outfall line had previously been submitted to the United States Coast Guard by the John G. Reutter Associates. Acting on this information, the Coast Guard had advised the engineers that the most appropriate marker would be a "danger marker, i.e. a white marker with an orange diamond and the words DANGER OUTFALL placed within the diamond." (Plaintiff's Exhibit No. 9). The sign was to be placed at the end of the pipe and face down the river.

 Acting pursuant to this information, the plaintiff placed a second sign on the terminus of the outfall line. This sign, unlike the first, faced down the river. This was done following the first incident, but prior to the second. (Tr. Vol. 1, p. 24).

 At the time of the first incident, there had been no Local Notice to Mariners, *fn1" issued by the Coast Guard, and the presence of the outfall line had not been noted on the Loran Chart, *fn2" issued by the National Oceanic and Atmospheric Administration. However, on October 11, 1978, after the first collision, the Coast Guard did issue a Local Notice to Mariners. (Tr. Vol. 1, p. 144). This notice gave the position of the outfall line and noted that it was marked by a day beacon. (Plaintiff's Exhibit No. 12). On October 24, 1978, a second Local Notice to Mariners was published correcting an error as to the location of the outfall line which existed on the first Notice.

 The National Oceanic and Atmospheric Administration, an agency of the U.S. Department of Commerce, issued an updated edition of the Loran Chart in December 1978. This Chart noted the presence of the CCUA outfall line within the Cohansey River. Both the applicable Loran Charts, and the Local Notice to Mariners are required to be kept upon vessels by the tug captains when navigating rivers such as the Cohansey.

 On July 14, 1979, at approximately 2:00 A.M., the very same Argoil 150 was again proceeding up the Cohansey River, but this time was pushed by the tug Interstate Transporter. The barge and tug, while attempting to navigate the river ran to the left of the daymarker, indicating the terminus of the outfall line, and struck the pipe. There was testimony advanced at trial that the night was dark and the only light came from the plaintiff's facility on the bank of the river. A lookout *fn3" was in place on the tug, using a spotlight to search for any obstructions in the water. Apparently, the lookout failed to see the sign. (Tr. Vol. 1, pp. 96-100).

 The plaintiff is contending that both accidents were the result of negligence on the part of the tugs and the barge and, accordingly, seeks to recover for the damages done to the outfall line by the defendants.

 The defendants maintain that their navigation of the Cohansey River was proper and the damage done to the outfall line was solely the fault of the plaintiff, itself, as the pipe was not sufficiently ...


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