difficulty, without the aid of instruments, in determining if Buoy 39, for instance, was either inshore or channelward of its charted position. They contend, therefore, that Captain Kelly should be held to no higher standard than these two experts. Curtis Bay's use of these witnesses' testimony is misleading, however. Both Askew and Patrick, in offering their opinions, were clearly testifying that as they came across river from the Gloucester, New Jersey base to the Pennsylvania side they could tell, by visual sightings, whether Buoy 39 was up or down river but could not tell whether it was inshore or channelward. Such testimony certainly does not help Curtis Bay's case. What is obviously important is the vantage point from which such a visual sighting is made. Patrick did opine that from Windy Point coal pier he could determine by naked eye if Buoy 39 was off station either inshore or channelward. (R. 2991-94)
We note, in conclusion, that after the accident Kelly was able to determine that Buoy 39 was out of position. (R. 1838-39)
B. THE SITE OF THE GROUNDING
We have concluded that Kelly, relying on Buoy 39 and without knowledge of the barge's loaded draft, proceeded on an angle thereby taking a short cut to the channel on an ebbing tide and grounded on the easternmost edge of Horsehoe Shoal, a known obstruction. Those findings are premised on the best and most credible evidence presented at trial.
A careful review of all the exhibits which are relevant to the site of the stranding shows the extreme difficulty in pinpointing the exact location of the grounding after the fact. However, taking all of the plottings most favorable to Curtis Bay, we are convinced that the barge was proceeding toward the channel when it hung up. It was attempting to reach the channel but failed to do so.
The most that can be said in favor of the tug owner's position is that the port bow corner of the barge is shown to be slightly across the west channel line as reflected on U.S. Coast & Geodetic Survey Chart 280. The barge, therefore, cannot be considered to have been proceeding "in" the channel but merely trying to reach the channel line, which it never did.
Since the barge unmistakably grounded outside the channel, the burden was on Curtis Bay to show that the grounding was non-negligent. Curtis Bay simply failed to carry that burden.
C. THE TESTIMONY OF DIVER STITH
During the trial I permitted Mr. David Stith, an expert witness produced by respondent, to testify, over the objection of American Dredging Company, with regard to a pile of rock which he apparently located on the river bottom near the site of the grounding. (R. 359-60) Since Mr. Stith's underwater explorations were undertaken some three years after the accident, I conditioned the admission of that evidence on the ability of Curtis Bay to "connect up" the evidence by demonstrating that the condition of the river bottom at that point had remained unchanged from the date of the stranding until Stith's dives began.
Since Curtis Bay failed to show that conditions had remained unchanged, I cannot consider such evidence. The reason for this conclusion is obvious. Unless it could be shown that the river bottom remained the same, the evidence pertaining to the rock pile was not worthy of consideration because those rocks might have been dumped there a year, a month, or perhaps even one day before Stith's first dive.
D. THE LIABILITY OF THE UNITED STATES
Curtis Bay's case against the Government stands or falls on the theory of imputing knowledge from one governmental agency (U.S. Army Engineers) to another (U.S. Coast Guard). It is undisputed that the Coast Guard did not receive actual notice that Buoys 39 and 37 were off station until the day of the standing. Consequently, any claim based on actual knowledge must be rejected.
This leaves Curtis Bay with the theory that the knowledge of the Engineers, who found the buoys displaced, can be imputed to the Coast Guard. Such a claim of constructive knowledge cannot be maintained against the United States. United States v. Cooper, 200 F.2d 954, 956 (6th Cir. 1953); Indian Towing v. United States, 182 F. Supp. 264, 270 (E.D.La.1959), affd., 276 F.2d 300 (5th Cir. 1960), cert. den., 364 U.S. 821, 81 S. Ct. 56, 5 L. Ed. 2d 51 (1960); United States v. Accardo, 113 F. Supp. 783, 785 (D.N.J.1952), affd. on op. below, 208 F.2d 632 (3rd Cir. 1953).
AND NOW, this thirteenth day of October, 1966, in accordance with the foregoing Findings of Fact and Conclusions of Law, IT IS ORDERED that judgment be and the same is entered in favor of libellant, Oliver Transportation Company, in the amount of $51,115.02 plus interest and in favor of libellant, Philadelphia Electric Company, in the amount of $15,363.82 plus interest. The aforesaid judgments are hereby entered against the respondent, Curtis Bay Towing Company of Pennsylvania and Tugboat J. H. DEINLEIN.
Pursuant to Conclusion of Law No. 10, libellant may, within thirty days of the date hereof, file a verified petition containing calculations of interest with respect to the various items of damage sustained.
It is further ordered that in the third-party action judgment be and the same is entered in favor of both impleaded respondents, United States of America and American Dredging Company, and against Curtis Bay Towing Company of Pennsylvania and Tugboat J. H. DEINLEIN.
Finally, it is ordered that, pursuant to Conclusion of Law No. 12, libellants and impleaded respondents may, within thirty days of the date thereof, file with the Court a verified petition setting forth their costs, which are hereby assessed against respondent, Curtis Bay Towing Company of Pennsylvania and Tugboat J. H. DEINLEIN.
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