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January 30, 1962

S.S. MARIE LEONHARDT, her engines, tackle, apparel, and furniture, and against all persons intervening and their interest in the same, Claimant. LEONHARDT & BLUMBERG of Hamburg, Germany, as owner of S.S. Marie Leonhardt, Cross-Libellant, v. The PENNSYLVANIA RAILROAD COMPANY, Cross-Respondent

The opinion of the court was delivered by: WRIGHT

Libel in rem filed by the Pennsylvania Railroad against the S. S. Marie Leonhardt. Answer and cross-libel in personam filed against the Railroad by Leonhardt & Blumberg, claimant and owner of the vessel. Each party avers that the other was solely at fault in causing the vessel to collide with the Delair drawbridge on the Delaware River, which is operated and maintained by the libellant Railroad. The libel alleges negligent and improper navigation of the vessel as it approached the bridge; the answer and cross-libel deny negligence in the navigation of the vessel, alleging the collision to be solely attributable to the negligent operation of the drawbridge by the Railroad and its agents. Both libel and cross-libel contain appropriate prayers for damages suffered as a result of the collision. Jurisdiction to entertain the cause is conferred by 46 U.S.C.A. ยง 740.

Shortly after 11:30 a.m. on January 9, 1959, the Marie Leonhardt departed from Pier 122, South, on the Delaware River at Philadelphia with a cargo of bulk iron ore and proceeded upriver towards her destination at the Fairless Steel Works at Morrisville, Pa. *fn1" Her draft was 23'-6' even keel. *fn2" Present on the navigating bridge of the vessel were Pilot Rutherford, the ship's master Henkel, a helmsman, a mate, Lieutenant Johnson and Commander Porter. *fn3" Porter and Johnson, officers of the United States Coast Guard, were aboard the vessel to make an inspection of conditions upriver. *fn4" The day was clear; the wind from the northwest at 22 knots with gusts up to 27. The tide was flooding with a current estimated at 2 knots. *fn5" The tug Joan McAllister accompanied the vessel upstream. *fn6" Pilot Rutherford was in possession of a portable radiotelephone receiver-transmitter.

 The Delair Bridge spans the Delaware River between Delair, New Jersey, and Philadelphia. It is equipped with a rotary drawspan, which was revolved 90 degrees counter clockwise to permit the attempted passage of the Marie on the day in question. *fn7" Walter Dougherty was on duty as drawtender in the shanty on the movable span, and Charles Howell was the block operator situated in the Jersey Tower at the easterly end of the bridge. *fn8" Dougherty operated the machinery to activate the movable span by means of controls in his shanty, but before this was possible it was necessary for the tower operator to electronically release the drawspan. *fn9" The bridge was equipped with a radiotelephone located in the tower and operated by Howell. *fn10" A telephone line between tower and drawtender's shanty enabled Dougherty and Howell to communicate. Radio communication between the drawtender and approaching vessels was impossible because the bridge radio was located in the Jersey Tower. *fn11" The tower operator communicated with the dispatcher at the 30th Street Station (Philadelphia) by another telephone line; permission to open the draw was secured from the dispatcher before the tower operator released the movable span to the drawtender. *fn12"

 The following factual issues are the subject of sharp disagreement between the parties:

 1) Precisely when the pilot first notified the bridge by radiotelephone of the presence of the vessel and his intention to transit the draw; whether this first call was answered by Howell in the tower.

 2) How many, if any, radiotelephone communications between the pilot and tower operator occurred subsequent to the first.

 3) Whether whistle signals were sounded by the vessel.

 4) The time at which the drawspan began to open; the time when it was fully opened.

 These form the crux of the disputed facts. Testimony of the various witnesses is in irreconcilable conflict concerning these and related factual issues.

 The court finds that the pilot first informed the bridge of his presence and intention to transit the draw at 12:26, when in the vicinity of Port Richmond. *fn13" Upon receipt of this call, the tower operator promptly notified the drawtender. *fn14" Whether the tower operator responded to this call and apprised the ship of the anticipated arrival of a scheduled westbound passenger train at 12:31 is a subject of controversy *fn15" which need not be resolved in view of subsequent events. *fn16"

 The tower operator testified that no subsequent radio communication between himself and the vessel occurred until sometime after the collision; *fn17" testimony of those aboard ship directly contravenes this statement. *fn18" In evaluation of the testimony of various witnesses, the court has found that of the Coast Guard officers most persuasive. Commander Porter and Lieutenant Johnson were wholly disinterested witnesses whose very purpose in making the voyage was to closely observe and record all incidents of the vessel's upriver passage. *fn19" The court has therefore relied heavily on their statements to resolve conflicting factual testimony.

  Accordingly, the court finds that the pilot radioed again at 12:34, *fn20" when the vessel was some 2100 yards below the bridge, and was advised by the tower operator in response that an approaching train would necessitate a three minute delay in opening the draw. *fn21" The pilot made no reply to this communication by the bridge. *fn22" From this point the ship moved at the slowest possible rate, favoring the Pennsylvania side of the channel *fn23" in its approach to the draw; her engines were stopped except for momentary 'slow ahead' bells to maintain proper position of her bow in the channel. *fn24" The average ground speed of the vessel thereafter was estimated at 4 to 6 knots. *fn25" Throughout the approach the vessel appeared to respond properly, with prompt, accurate execution of the pilot's engine orders and rudder commands. *fn26"

 The two car train, some 4 or 5 minutes behind schedule, cleared the movable span by 12:36, *fn27" at which time the vessel was some 1200 yards from the bridge. *fn28" Having observed its passage, Pilot Rutherford again contacted the bridge by radiotelephone at 12:39 *fn29" with the ship about 1000 yards *fn30" from the closed draw and moving steadily nearer. The tower operator responded that the bridge was opening, *fn31" although at this time no movement of the drawspan was observed by the personnel on the navigating bridge of the vessel. *fn32" Shortly thereafter, about 12:40, the ship blew three blasts on its whistle. No whistle or horn signals were sounded by the bridge in response. *fn33" At 12:40 the ship was a short distance downstream from an anchorage ground on the Pennsylvania side of the channel, *fn34" which is somewhat less than a half mile from the bridge. *fn35" Prior to the establishment of radiotelephone communications, upriver pilots customarily used this anchorage in the event the bridge failed to respond to whistle signals and remained unopened. Hence this location was termed in testimony as the 'cutoff point'. *fn36" Rutherford considered anchoring here in the absence of response to the whistle signals sounded by the vessel, but abandoned this plan and continued to proceed in view of the previous assurance by the tower operator over the radiophone that the bridge was opening. *fn37" The pilot gave close attention to the drawspan after the 12:39 conversation, yet it remained closed. *fn38"

 Confronted at 12:42 with the unopened bridge some 300 yards distant, *fn39" the pilot took the admittedly drastic action of dropping the starboard bow anchor with 90 feet of chain. The ship's engines were placed full astern. The tug Joan McAllister was summoned to push on the port bow of the Marie. Simultaneously, ...

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