On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Civil No. 75-783
WEIS and SLOVITER, Circuit Judges, and POLLAK, District Judge.*fn*
This is a suit in admiralty brought by appellee United States against appellant Ohio Barge Lines (OBL) and, in rem, against OBL's tow boat, M/V STEEL FORWARDER, which is no longer an active party to this litigation. Suit was commenced in 1975. In 1978, the district court entered judgment in favor of the United States in the demanded sum of $15,680 plus interest. 458 F. Supp. 1086 (W.D. Pa. 1978). In 1979, this court reversed, remanding the case for further proceedings. 607 F.2d 624 (3d Cir. 1979). In 1981, the district court filed a further opinion, again entering judgment in favor of the United States for $15,680 plus interest. OBL's post-trial motions were denied in 1982, but by a clerical error the court's order was not entered until 1985. Thereupon this appeal followed. This time we affirm the judgment below.
Clarification of the questions presented on this second appeal will aided by a somewhat extended reprise of the prior history of this litigation.
The object of this suit was to seek reimbursement for $15,680 in expenditures incurred by the Corps of Engineers in 1972 as a result of the sinking in the Ohio River, just below the Uniontown lock and dam,*fn1 of three barges being towed upstream by M/V STEEL FORWARDER, a vessel owned and operated by OBL. The expenditures in question were for a month's hire of a "helper boat." The function of the helper boat was to assist river craft in avoiding certain navigation hazards just above the Uniontown lock and dam -- hazards caused by the closing of the Uniontown "pass" until the sunken barges were removed from the channel below the pass.
The United States grounded its claim on sections 10 and 15 of the Rivers and Harbors act of 1899. Section 10 (33 U.S.C. § 403) prohibits "the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States. . . ." A violation of section 10 is a misdemeanor. 33 U.S.C. § 406. Section 15 declares it "not . . . lawful . . . to voluntarily or carelessly sink . . . vessels or other craft in navigable channels. . . . And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise . . . it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States. . . ." 33 U.S.C. § 409.
Writing for this court in 1979, Judge Van Dusen summarized compendiously and with characteristic precision the evidence before the court below and the conclusions of law drawn by that court (607 F.2d at 626-27):
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 Indian 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 Indian 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. 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, ...