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September 20, 1968

In the Matter of the Complaint of CONSOLIDATION COAL COMPANY, a corporation, for exoneration from or limitation of, liability as owner of the Motor Vessel Mathies

The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The petitioner, Consolidation Coal Company, brought this action in the Northern District of West Virginia for exoneration from or limitation of liability with respect to accidents which occurred in the Monongahela River near Lock No. 5. A monition issued and two claims were filed under the Wrongful Death and Survival statutes of Pennsylvania: one by George L. Dearth, Administrator of the Estate of Jane L. Dearth, deceased, and the other by John Sabo, Administrator of the Estate of Alec Michael Sabo, deceased; a third claim was filed under the Jones Act, admiralty and general maritime law by Edward J. Hugney, the mate on the vessel.

 The proceeding was transferred to this court pursuant to ยง 1404(a), 28 U.S.C.A.

 The petitioner averred that the value of its Motor Vessel Mathies was $130,000. The claimants challenged this valuation. However, since the damages to which the court finds the claimants are entitled do not exceed that amount, that issue need not be tried.

 The damages sustained by the claimants were directly caused by the negligence of the pilot of the Motor Vessel Mathies, for which conduct it is adjudged that the vessel and its owner, Consolidation Coal Company, are responsible, together with costs, but entitled to limitation of their liability to the value of the vessel at the time of the accident. There was insufficient evidence to establish privity of fault on the part of the shore management of the petitioner.

 The case was tried non-jury. From the testimony taken it appears that in the afternoon of June 18, 1966, the Mathies, a diesel, twin-screw Western Rivers type towboat, with a crew of 13 experienced rivermen aboard and towing seven barges, was on a voyage from West Elizabeth, Allegheny County, Pennsylvania, to the Isabella Mine in Greene County, Pennsylvania. Six barges, two abreast, were ahead of the towboat, and one barge was lashed to the starboard side of the towboat.

 The tow, proceeding upriver in a southerly direction, reached the arrival point for Lock and Dam No. 5 at approximately 4:00 P.M. Because the lock was in use, the pilot, Howard Cady, grounded the head of the tow at the river's edge along the West Brownsville shore, thus holding the tow stationary, to await the signal to enter the lock. The expected signal consisted of three blasts of a whistle at the lock. The Mathies and its tow were angled from the shore line out into the river; its engines continued to idle.

 The arrival point for vessels sailing south toward Lock No. 5 was at the New Brownsville Bridge which was 3,000 feet from the lock (petitioner's Ex. 1). *fn1"

 About 300 feet south of this bridge was a 50-foot wide area, cleared of stones and debris and marked by whitewashed stones, which for many years was used as a beach by bathers. A flight of steps led to this bathing beach from a road that paralleled the river.

 The Mathies is 108 feet long and 26 feet, 6 inches wide. It has a draft of 7 feet, 8 inches; from the water line to its highest fixed point is 27 1/2 feet; and from the water line to the pilot house is about 20 to 22 feet. The pilot house is 10 feet by 12 feet and is located about 18 feet from the bow. Its gross tonnage is 304 tons and its net tonnage is 206 tons. The pilot house is surrounded by glass windows. An air horn and a bell are within reach of the pilot when in position to operate the vessel.

 The barges in tow were empty. Each was approximately 175 feet long, 26 feet wide, and 11 feet high. Being empty each had a draft of about 18 inches.

 On the beach that afternoon were four bathers, namely, Jane L. Dearth and Alec Sabo, the decedents; Deborah Lane, called by the petitioner as a witness, and Sandra Williams, called by the claimants as a witness.

 The pilot saw these four persons as he grounded the tow. The tow remained grounded for about 45 minutes. The idling engines could have been heard by the bathers if attentive. *fn2" During this time, the pilot saw that two of the four persons were bathing in the river between the beach and the barge lashed to the starboard side of the towboat. Several members of the Mathies' crew saw the bathers in the river. Some members of the crew conversed with the bathers in the river, and Pilot Cady himself said a few words to Sandra Williams, sunbathing on the shore. Some of the conversation between the crew and Miss Williams was relayed by Alec Sabo from his position in the river near the barge.

 During this interval, the Mathies drifted closer to the West Brownsville shore, finally approaching the beach at a distance estimated by members of the crew to be from 75 to 40 feet. During this interval, Jane and Alec were wading, with a rubber raft and innertube, in the water (chest-high) near the barge. A considerable section of the water between the beach and the barge could not be seen by the pilot from the pilot house or by the members of the crew on the starboard side of the bridge. Regardless, the pilot, without receiving the signal from the lockmaster and without sounding a warning or giving notice to anyone, suddenly engaged the propellers full speed in order to "twist" the stern of the tow out into the river channel.

 Before engaging the propellers, the pilot neglected to account for two of the four persons he had so recently seen on the beach and in the river; he neglected to inquire of the other members of the crew as to the whereabouts of the two unseen bathers; *fn3" he neglected to have the section of water between the barge and the beach, which he could not see, checked by a member of the crew. In the circumstances, the pilot knew or should have known that two of the bathers may have been in the river, out of sight between the barge and the bathing beach, and if that were the fact, it was foreseeable that the turbulence created by the action of the large propellers at full speed in the shallow water between the Mathies and the shore would quite likely cause them serious bodily harm or death.

 As a direct consequence of the pilot's negligence, Jane L. Dearth and Alec Sabo were drawn underneath the barge and into a rotating propeller. At least two members of the crew, Isaac Hughes and Edward Hugney, were alert to the danger and both promptly exclaimed to the pilot, "I don't see the kids", whereupon the pilot disengaged the propellers (T., pp. 244, 360, 901-902). Immediately, Hughes, Hugney, Pilot Cady and other crew members hurried to the starboard gunnel of the barge and looked over, searching for the children. Captain Frazier, who was in the pilot house at the time, took the controls and upon hearing from Hughes that "the kids are under the barge" and to "give her a poke ahead to wash them out", compounded the pilot's negligence by reengaging the propellers. This dangerous procedure may have pulled the children into the propellers if they had not already been drawn into them. In less than half a minute after the propellers were reengaged, the bodies of the children appeared on the surface near the stern of the barge (T., pp. 248-251, 294, 363-364). *fn4" When both were recovered, they were ...

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