The opinion of the court was delivered by: BODY
This consolidated suit, in Admiralty, involves claims for damage to the Barge ELECTRIC #20 and the loss of part of its cargo of coal as a result of a stranding in the vicinity of Windy Point (Greenwich) Coal Pier on December 22, 1959, while in the tow of the tug J. H. DEINLEIN, operated by Curtis Bay Towing Company of Pennsylvania.
Two libels were filed against Curtis Bay by Philadelphia Electric Company (owner of the coal) and Oliver Transportation Company (owner of ELECTRIC #20) for their alleged damage.
Curtis Bay impleaded the United States of America and three dredging companies - American Dredging Company, The Arundel Corporation, and Great Lakes Dredge and Dock Company. At a pretrial conference in this matter, The Arundel Corporation and Great Lakes Dredge and Dock Company were dismissed from the suit.
The two actions were consolidated for a trial which was held before me without a jury from December 6, 1965 to January 27, 1966. Counsel for the respective parties submitted extensive requests for Findings of Fact and Conclusions of Law.
Having reviewed those proposals, the Court now enters the following Findings of Fact and Conclusions of Law. Any requested Findings and Conclusions which are inconsistent with those enumerated, infra, are considered rejected.
1. Philadelphia Electric Company ("Philadelphia Electric"), libellant in No. 41 of 1961, was at all times material hereto an electric utility corporation engaged in the manufacture and sale of electricity, which operated power plants in Philadelphia and Chester, Pennsylvania, in which coal was used for fuel.
2. Libellants in No. 43 of 1961, Margaret C. Walling, Ritner E. Walling and Richard C. Walling, co-partners trading as Oliver Transportation Company ("Walling"), were at all times material hereto engaged in the business of operating barges for the transportation of coal between points on the Delaware River, particularly the Windy Point coal pier in Philadelphia and Chester, Pennsylvania.
3. Curtis Bay Towing Company of Pennsylvania, Inc. ("Curtis Bay"), the claimant-respondent in Nos. 41 and 43 of 1961, is a corporation having its principal place of business in Philadelphia, Pennsylvania. At all times material hereto Curtis Bay operated a fleet of tugboats, including the J. H. DEINLEIN, under bareboat charter, providing towing services between various ports and other places on the Delaware River, including Windy Point coal pier, Philadelphia, and Chester, Pennsylvania.
4. The United States of America ("Government"), impleaded respondent in Nos. 41 and 43 of 1961, is a sovereign which has, by the Suits in Admiralty Act, consented to be sued in the instant action. The Government was impleaded for alleged failure to maintain Buoy 39 on its charted position in the Delaware River below the Windy Point coal pier over a period of approximately one year and for the alleged failure to replace it on station after notice on four separate occasions in 1959 prior to December 22, 1959, the date of stranding.
5. American Dredging Company ("American Dredging"), impleaded respondent in Nos. 41 and 43 of 1961, is a Pennsylvania corporation having its principal place of business in Philadelphia, Pennsylvania, and was engaged in dredging and in the operation of derricks and salvage equipment at all times material hereto. From February 1959 to March 1960 it was, pursuant to a contract with the United States Army Engineers and a dumping permit, engaged in dumping dredged rock in an area extending from the Pennsylvania shore of the Delaware River below the Windy Point coal pier off the Philadelphia Naval Base to a line in the river, west and outside of the channel of the river. American Dredging was impleaded for alleged dumping of rock within the limits of the river channel in violation of the United States Army Engineer's permit and because said rock allegedly created an unlawful obstruction to navigation.
6. On December 22, 1959, Walling owned the steel hull, rectangular shaped, raked end Barge ELECTRIC #20, 170 feet long, 40 feet wide, with a midships depth of 17 feet, and, because of elevation of the deck ends, a depth of 18 feet 6 inches at either end. The barge, which had a single cargo hold of 2600 tons capacity, was without propulsion or steering and was manned by a bargee who tended its lines and checked its condition. The bargee, who was employed by Walling, lived in a house on the stern of the barge.
7. The steel hull tug J. H. DEINLEIN (146 gross, 99 net tons) is 81.1 feet in length, 24 feet in beam, with a depth of 9.8 feet, and powered by a 700 h.p. diesel engine. It had a magnetic compass in its wheelhouse and a compass card giving the compass error on different headings.
8. On the morning of December 22, 1959 the Barge ELECTRIC #20, having approximately 30 tons of bituminous coal on board, was additionally loaded with 2381 tons of coal owned by Philadelphia Electric. This loading process took place at the coal dumper on the up-river side of the Windy Point coal pier, located on the Pennsylvania side of the Delaware River just above the Philadelphia Naval Base and approximately at the upper end of the East Horseshoe Range.
9. Upon completion of the loading of the coal, the Barge ELECTRIC #20 was properly trimmed, with a slight drag to stern, and in all respects seaworthy.
10. On December 22, 1959, Curtis Bay, for pursuant to an arrangement with Walling to tow Walling's barges, assigned the tug J. H. DEINLEIN ("DEINLEIN") to tow the Barge ELECTRIC #20 from Windy Point coal pier to Chester, Pennsylvania. Thus tug, with Curtis Bay relief captain Vincent Kelly ("Kelly") in charge, arrived at the Windy Point coal pier at about 10:05 A.M. on December 22, 1959 and tied up nearby to await the completion of the loading.
11. When the barge was loaded, the DEINLEIN, pursuant to radio-telephone orders from Curtis Bay's dispatcher, made fast to the starboard quarter of the barge. Kelly secured the barge to the tug with three heavy manila lines which were stretched taut before the towing got under way and which required no further adjustment.
13. Captain Kelly, an experienced navigator on the Delaware River, held a first-class pilot's license issued by the U.S. Coast Guard for the Delaware River and Bay, and has served on tugs on that river since 1950. Kelly had towed loaded coal barges from Windy Point to Chester about fifty times per year since 1955. It was customary to tow the coal barges on an ebb tide and certain contract rates were prescribed for such towage. In particular, he had towed the loaded Barge ELECTRIC #20 to Chester six times in the six months prior to December 22, 1959, the last previous trip occurring on November 26, 1959. These six trips had begun earlier in the ebb tide when there was more water over the Horseshoe Shoal than was present at 12:12 P.M. on December 22, 1959.
14. At 12:00 o'clock noon on December 22, 1959 Kelly, having secured the ELECTRIC #20 to the tugs portside, maneuvered the barge around in the slip between the coal pier and the Pennsylvania Railroad's ore pier, so that the bow of the barge was pointing out toward the river. The tug and tow, with Kelly steering and in control, then proceeded out the center of the slip between the coal and ore piers. When the flotilla reached the river end of the coal pier, Kelly did not proceed on a straight line out to the channel, but turned downstream while still outside the channel and steadied the tug and tow on a course heading approximately south. Kelly testified that he steadied on a course which would clear Buoy 39 on which he was relying, by about 100 feet.
15. Two fixed range lights were maintained by the United States Coast Guard on the New Jersey side of the river at the river, and of the East Horseshoe Range. These lights were in structures known as markers, which were visible during the day, one in back of the other. The front light was lower than the rear light, and when a navigator bound down the river lined up the lights for the markers ahead of him he was on the ranges, the downbound course of which is 206 degrees true, or 215 degrees magnetic.
16. The channel of the river in the East Horseshoe Range is 1000 feet wide, with a project depth of 40 feet. The channel and its limits are established by the Corps of Engineers, United States Army. The personnel of this agency of the United States make quarterly soundings surveys to determine whether the project depth is being maintained and to prepare specifications for dredging.
17. The United States Coast Guard maintained a lighted flashing green buoy, known as buoy 39, in a charted position near the west edge of the river channel East Horseshoe Range. The charted position of this buoy was approximately 498 feet in a straight line distance from the downriver outboard end of the Windy Point coal pier. According to the Coast Guard, the purpose in maintaining this buoy at the upriver end of the Horseshoe Shoal was to make the shoal, which has existed in this area for many years. This buoy was not listed as a channel buoy in the Light List. However, Captain Kelly testified that it was commonly thought to mark both the shoal and the channel.
18. As the flotilla arrived at the end of the coal pier, there was no traffic coming either down or up the river, and the tug was not required to maneuver with respect to any traffic. The starboard side of the tug was estimated by the bargee, Mr. Andrade, to be 25 to 35 feet off the river end of the coal pier as the tug and her tow turned downstream. Kelly did not offer his estimate of this same distance to refute Andrade's figure.
20. At the time the flotilla started down the river bound for Chester, the level of the water in the river in the vicinity of Windy Point was two feet lower than it had been at 10:00 A.M., the original starting time for the trip to Chester. The tug captain knew this. The state of the tide and the height of the water were readily observable by ...