The opinion of the court was delivered by: DEBEVOISE
This is an admiralty proceeding brought under 28 U.S.C. Section 1333 in which damages are sought for the grounding of the barge Interstate 138 during its approach to the Belcher Marine Terminal in the early morning hours of August 8, 1982.
The barge Interstate 138 was owned by plaintiff Intercities Navigation Corporation and operated by plaintiff Sonat Marine Inc. The barge was under the control of the tug Diplomat, owned by plaintiff Gellenthin Bulk Transport Corporation and operated by Sonat Marine Inc. An assist tug, the Patriot, operated by Sonat Marine Inc., was also aiding the navigation of the Interstate 138. It was stipulated that the damages incurred as a result of the grounding were $535,000 exclusive of prejudgment interest. All of these damages were incurred by Sonat.
The Marine terminal above the water line was and is owned by defendant Belcher Oil Company of New York. Belcher is a lessee of the underwater part of the terminal. It neither leases nor owns the area between the leased portion of the terminal and the government channel over which vessels pass to reach the terminal.
A trial has been held and this constitutes my findings of fact and conclusions of law.
The Belcher terminal is located on the north side of the Kill Van Kull waterway. The terminal consists of two main piers, a ship pier and a barge pier. I shall attach to the transcribed copy of this opinion copies of deposition Exhibit D-13, an aerial photo of the terminal and of deposition Exhibit D-11, a portion of the NOAA chart showing the terminal. Reference can be made to these exhibits when one reads the description of the piers which follows.
The ship pier runs almost perpendicular to the government maintained channel on roughly a north/south axis. The channel end of the ship pier, the southern end, is some 15 feet inshore of the United States pier line. Three mooring cells or dolphins, are located at the channel end of the ship pier. One is located almost immediately to the west of the pier end. Another is located roughly 100 feet to the east of the end of the ship pier. A third, slightly smaller dolphin, is located approximately 100 yards to the east of the ship pier head. These three dolphins run nearly parallel to the channel and together with the end of the pier form the ship berth. Docking space for small barges and vessels is available along the eastern side of the ship pier inshore of the line of the dolphins.
The barge pier consists of a wood and steel catwalk together with a pipe rack which extends first, perpendicular and to the east of the ship pier for a distance of roughly 200 feet and then turns approximately 50 degrees towards the south in the general direction of the main shipping channel. Along the face of and parallel to the barge dock are four breasting dolphins, two of which are located immediately in front of the barge berth face and two of which are located beyond the end of the barge dock catwalk, but generally in line with the first of the two dolphins.
The barge dock was constructed in 1976 by Howard Oil Company ("Howard"), the previous owner of the terminal. The barge dock has been constructed pursuant to a permit issued to Howard by the Corps of Engineers, which permitted the construction of the pier and the dredging of an irregularly shaped area located between the new pier and the pre-existing ship berth. This dredging allowed barges being brought in by Howard to reach the barge dock from the main channel.
Belcher purchased the marine terminal from Howard in 1978. Shortly after purchasing the terminal, Belcher decided to make substantial improvements to the facility. These improvements included both dredging and structural improvements in the ship berth and dredging in and around the barge berth and its approach. Belcher filed an application for a Corps of Engineers' permit on January 8, 1980. This permit application which was ultimately granted on December 30, 1981, covered only the proposed improvements to the ship berth. Belcher did not seek or obtain a permit for the work contemplated on the barge berth. Work was performed during the winter of 1981/82, and was completed in February 1982.
Belcher's terminal is shown on NOAA chart 12333 which generally covers the Kill Van Kull and the northern part of the Arthur Kill. It shows a reported depth of 26 feet at mean low tide from the government maintained channel of the Arthur Kill into the barge dock area of the terminal. On the chart the eastern boundary of the 26 foot area is a line running through the four dolphins at the barge dock and extending out to the edge of the main channel. On the chart the western boundary of the 26 foot area is a line roughly parallel to the eastern boundary running through the most easterly of the ship-dock dolphins and extending out to the edge of the channel. To the east of the 26 foot reported depth area the depth is reported on the chart to be 22 feet or less. Witnesses for Sonat stated that the water around the rock which Interstate 138 grounded is shown by contour lines which have a 30 foot depth, but I must confess that I have trouble discerning this from my examination of the chart. Quite obviously a vessel with a draft of 22 feet or more entering the barge berth would seek to use the reported 26 foot area and would seek to avoid passing over waters to the east.
Belcher's reason for widening the approach was that it recognized that larger vessels had problems entering the barge berth and required a greater margin of safety.
To accomplish this Belcher asked Weeks to perform a survey to the east of the barge dock as dredged by Howard. Belcher also requested that Weeks dredge, as necessary, to provide 26 feet of water (at mean low water), in a triangular area measuring roughly 200 feet to the east along the face of the government channel and 400 feet along the eastern edge of the area dredged in 1976 by Howard. This had the effect of widening the approach from the government maintained channel from a width of approximately 350 feet at the edge of the government channel to a width of approximately 550 feet.
Belcher did not inform its customers or government agencies of the widening of the approach to its terminal. Thus after February 1982 it was aware that the 26 foot depth area had been extended well beyond that shown on chart 12333. Pilots and ship operators would still rely on the chart showing the narrower as reported 26 foot area.
In March 1980, well before the 1982 dredging operations, Barge B95, while being pushed by tug Morton S. Bouchard, grounded while approaching the dock off Belcher terminal. On March 13, 1982, shortly after completion of the Weeks dredging, Exxon Albany, a barge having a 125,000 barrel capacity and drawing at the time 25.5 feet of water, grounded while approaching the Belcher terminal. It grounded in the same location where Interstate 138 grounded and based on information developed in this case, it is reasonable to conclude that it struck the same rock on which Interstate 138 grounded. After an investigation the Coast Guard reported that "The apparent cause of the casualty was the striking of an unchartered, submerged object outside of the navigable channel." A copy of the report dated June 22, 1982 was sent to Belcher.
On August 8, 1982 the barge Interstate 138 took on a part load of fuel oil at the Stapleton Anchorage in New York Harbor which was to be delivered to the Belcher terminal. The Interstate 138 is a steel-hulled tank barge, 391.4 feet in length with a beam of 68 feet and a depth (distance from deck to keel) of 39.25 feet. On the morning in question it had a draft of 24 feet ...