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HARWI v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 8, 1969

KOMMANVITTSELSKAPET HARWI (ROLF WIGAND) Owner of the MOTOR VESSEL, GERWI
v.
UNITED STATES of America

The opinion of the court was delivered by: WOOD

FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER

 WOOD, District Judge.

 The libellants brought suit under Section 2 of the Suits in Admiralty Act, 46 U.S.C. ยง 742 for damages incurred by the freighter GERWI when it grounded on a shoal in the Torresdale Range of the Delaware River while carrying iron ore to the Morrisville Plant of the United States Steel Company. Libellants contend that the United States Government negligently caused the grounding because it failed to regularly survey and dredge a 25' channel in the Torresdale Range, because it failed to notify users of the Delaware River that such channel was not regularly surveyed or maintained, because it failed to publish current information as to the depth of the 25' channel, and because it failed to mark a separate 40' channel (which was then in the process of construction) with temporary markers so that it could be navigated. After reviewing the record of trial held from September 18 to September 25, 1968, and the briefs and proposed findings of fact and conclusions of law submitted by the parties, and hearing argument, we have concluded that the Government is not liable under any of the theories urged upon us by the libellants. Accordingly, we have made the following Findings of Fact and Conclusions of Law.

 FINDINGS OF FACT

 1. Kommanvittselskapet Harwi (Rolf Wigand) is a foreign business corporation organized and existing under the laws of Belgium.

 2. On May 23, 1963, Kommanvittselskapet Harwi was the owner of the motor vessel GERWI, a Norwegian flag bulk carrier, 562' in length and 72' in breadth.

 3. Bergens Skibsassuranseforening of Bergen, Norway, a Norwegian underwriter and added libellant in this action, was hull underwriter of the GERWI on May 23, 1963.

 4. On May 23, 1963, the GERWI was under long term time charter to Emerald Shipping Corporation, who had voyage chartered the vessel to Canadian Foreign Steamship Company for one voyage to carry iron ore from South America to the United States Steel Company at Morrisville, Pennsylvania.

 5. The GERWI discharged 7,075 tons of ore at Pier 122 South, Philadelphia in order to reduce her draft before transiting the Delaware River to Morrisville.

 6. On May 23, 1963, at about 12 o'clock noon, the GERWI left Pier 122 for Morrisville with 15,349 tons of iron ore remaining on board; her draft was 27' 11" forward and aft, as observed in fresh water at Pier 122 South.

 7. The compulsory pilot assigned to the GERWI, R. A. Lappe, was at the time herein considered duly licensed by the State of Pennsylvania to pilot ships of foreign registry up the Delaware River. (N.T. 24-8)

 8. The decision of how much draft any given ship might take up the Delaware was the responsibility of the individual pilot. (N.T. 531)

 9. Pilot Lappe had expected to have a depth of 29'9" plus four feet of high tide on this Torresdale Range, giving a depth of 34 feet available for a 27'11" draft vessel. (N.T. 37)

 10. The GERWI proceeded upriver in fair sunny weather with a light 5-6 knot wind. Visibility was excellent. (N.T. 33)

 11. The master of the GERWI, Captain O. Kalve, was concerned about the tide and before leaving Pier 122S asked the pilot, R. A. Lappe, about the height of the tide and was assured that they would have at least three feet over mean low water. (R. 176, 180)

 12. The GERWI reached the Tacony-Palmyra Bridge above Philadelphia at 1309 (e.g. 1:09 p.m. where the tide was estimated by the pilot Lappe to be four feet above mean low water. (N.T. 58-9)

 13. The pilot Lappe had decided to navigate the Torresdale Range area through the old or 25' channel rather than the new or 40' project channel. At this time the 25' channel was marked with range lights and the 40' project channel was not so marked.

 14. Before entering Torresdale Range, the pilot Lappe attempted without success to establish radio contact with a flotilla consisting of a dredge and a drill working in the river channel in Torresdale Range. (N.T. 43)

 15. Thereafter and before the GERWI entered Torresdale Range, the Coast Guard cutter Zinnia responded by radio to the GERWI advising the pilot to pass the flotilla on the Pennsylvania side of the range. (N.T. 45-6)

 16. The pilot stopped the vessel's engines to turn into the 25' or old range and then shaped up on the centerline of the range lights and buoys in the channel. The GERWI was then brought to the left half of the channel or Pennsylvania side to clear the dredge President and the drill, which was in the New Jersey half of the channel. (N.T. 46-7)

 17. The GERWI touched bottom at 1325, e.g., 1:25 p.m.) in the left half of the 25' channel.

 18. It is uncertain whether the shoal upon which the GERWI was grounded was man-made (and thus perhaps a result of the dredging operation nearby) or whether it was an upcropping of a natural formation.

 19. At the time the vessel grounded, the GERWI's starboard side was lined up on the range lights in the old or 25' channel so that it was in the left or Pennsylvania half of the existing channel. (N.T. 193-4)

 20. After the grounding, the GERWI proceeded without further incident to Morrisville where her cargo was discharged. (N.T. 196-7)

 21. The GERWI then went into drydock at Sun Ship Building and Drydock Company, Chester, Pennsylvania, on May 25, 1963 and remained there until June 11, 1963 undergoing repairs. (N.T. 197, L-23, 24) 22. The cost of repairs and necessary incidental expenses totaled $203,710.46. Libellant's claim as stated in L-26, in the total amount of $203,710.46, of which Skibs Bergens has paid $170,015.03 and Rolf Wigands has paid $33,695.43, was reduced as follows: Item 27 Disallowed $1,166.08 Item 35 Duplication of item 27 1,165.71 Total disallowed $2,331.79 The total amount claimed is thus $201,378.67.

19690908

© 1992-2004 VersusLaw Inc.



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