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CHARLES ZUBIK & SONS v. OHIO RIVER CO.

June 27, 1962

CHARLES ZUBIK & SONS, INC., Libellant,
v.
The OHIO RIVER COMPANY, Respondent



The opinion of the court was delivered by: ROSENBERG

This case comes before this court in admiralty, as a result of a collision on May 17, 1960, on the Ohio River between a boat going downstream pushing thirteen coal loaded and seven unloaded barges, and a stationary seven-piece dredging operation.

It is based upon a libel and cross-libel for damages to marine equipment resulting from the collision. Charles Zubik & Sons, Inc., libellant, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business at Pittsburgh, engaged in general river business, including that of dredging operations. The Ohio River Company, respondent, is a corporation organized under the laws of the State of West Virginia, and at the times herein material maintained a place of business at Pittsburgh. The court has jurisdiction over the parties and the cause of action in admiralty.

 Much conflicting or contradictory testimony was offered by the parties as to the cause of the accident and of the negligence of the parties. And after hearing the testimony of the witnesses and receiving the exhibits, after observing the witnesses and their demeanor while testifying upon the stand, and after a careful review of the testimony and exhibits and the inferences to be drawn therefrom, it is my considered judgment from the fair preponderance of all the credible evidence in this case, that both the libellant and the respondent were guilty of negligence in the causation of the accident which is the subject matter of this case.

 The collision occurred at a point approximately 65.5 miles from Pittsburgh, where the libellant was engaged in a dredging operation at a place approximately 1,000 feet to one-quarter of a mile below the visible point in a horse-shoe bend curving to the left at the place known as Cable's Eddy. The river moving downstream is bounded in this area on the left side by the State of West Virginia, and on the right side by the State of Ohio. At the inside of the curve on the West Virginia river bank and to the left going downstream, a steep cliff rises from the river bank which obstructs the visibility around the bend of those approaching on the river from the opposite direction.

 The navigation channel, proceeding down river, after passing the mid point of the bend at Cable's Eddy, favors the Ohio or right hand shore. On the Ohio shore of the bend is the Steubenville Water Works, and a creek known as Will's Creek. The outflow of this creek creates a sandbar which extends into the river from the Ohio shore and constitutes an obstacle to downstream vessels maneuvering the bend.

 On the particular morning the respondent's boat, the Charles R. Stevenson, was moving ahead of it twenty standard steel hopper barges arranged four wide and five deep, thirteen of which were loaded with coal and seven of which were empty. The overall length of the respondent's equipment was 1,000 feet. The barge length in front of the Stevenson was 875 feet to the head thereof.

 Prior to moving into the bend, the Captain put in two radio calls to Lock No. 10 for the purpose of ascertaining whether or not there was anything ahead. He received no response to these calls. He then put in a general security call for any boat in the vicinity of Lock No. 10. A response came to this call from the Kanawha just as the Captain of the Stevenson had come around the curve and had seen the libellant's equipment about one-quarter of a mile ahead, but too late for the avoidance of the collision.

 Prior to moving into the bend, the Stevenson's Captain also blew a bend whistle made up of three long, distinct blasts. Not hearing any response signals from further downstream and around the bend, the Stevenson's Captain began to maneuver into flanking movement to take advantage of the current and river channel in pushing around the bend and beyond it, and to also avoid the sandbar. In doing so, he moved the line of equipment into a 45 degrees angle which brought the Stevenson over the center of the river towards the West Virginia side. However, the Stevenson's Captain had not reckoned on the libellant's dredging equipment being beyond the bend where he first saw it from his pilot's cabin at a distance of a quarter of a mile away. When he did see it, he knew he was in trouble.

 The libellant's equipment was spudded down at a place in the river approximately 3,000 feet above Lock No. 10 and approximately 400 to 500 feet upstream from the uppermost mooring cell or ice breaker owned by Scarvaggi Industries. Libellant's equipment extended out from the West Virginia shore at a point where the Ohio River is approximately 1100 feet wide.

 When the Stevenson's Captain had his engine partially in reverse during the flanking maneuver, he had been with the current at its speed of seven miles per hour. Upon sighting the libellant's equipment, the Captain ordered his engines into complete reverse. However, all of this proved unavailing under all the circumstances for the prevention of the collision which the Captain knew was imminent.

 In the meantime and after the respondent's barges had rounded the bend, the libellant's pilot, who had been walking forward on the Zubik's head, observed the Stevenson tow approaching at an angle, about 1,000 feet from the Zubik fleet and anticipated the obvious danger of a collision because of the high water and current.

 He did not sound any warning either to the moving respondent's fleet or to his own crew, but from his position where he first saw the Stevenson, he ran down to the galley where he vocally informed them of the danger, and then went to start the Zubik engines. When he returned to the Zubik deck, he saw the respondent's barges only 200 feet away, and then sounded his warning to the respondent's crew, but too late for anything to be done in the avoidance of the collision.

 Two impacts followed between the Stevenson barges and the Zubik fleet. The first impact was with the center of the second barge from the head of the Stevenson tow and the corner of libellant's 3/4' gravel barge, and the second impact was with the fourth coupling from the head of the respondent's tow and the upstream corner of the derrick boat. The first impact sheared the lines and rigging of the gravel barge and caused it to break away from the rest of the fleet. The second impact broke the lines of the derrick boat and caused it to swing out into the river.

 The respondent's fleet continued to move downstream, but its Captain put in a call for help in order to stop the runaway gravel barge belonging to the libellant. The call was heard by the Kanawha which retrieved the ...


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