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January 7, 1972

UNITED STATES of America v. Duval H. EVANS, Defendant

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 The Parties and Contentions

 On February 10, 1964, the SS ORE SATURN, owned by the Universe Tankships, Inc., a corporation of the Republic of Liberia, ran aground in the upper Delaware River while transporting ore to the Fairless plant of the United States Steel Company located at Morrisville, Pennsylvania. This suit is brought against the United States under and pursuant to the Suits in Admiralty Act, 46 U.S.C. § 741. The Government, pursuant to former Supreme Court Admiralty Rule 56, impleaded the ORE SATURN's pilot, Duval H. Evans.

 Having off-loaded a portion of her cargo at Pier 22, Philadelphia, Pennsylvania, the ORE SATURN proceeded up river proceeding through dredged channels which had undergone significant changes and realignment during the years 1962 through 1964. The Coast Guard had primary responsibility for aids to navigation and the location thereof and had, with certain exceptions, assigned the ZINNIA to continuous duty on the project.

 The libellant and Pilot Evans contend that the grounding was the result of the negligence of the Coast Guard in that buoy 26 was, admittedly, not on its charted position on February 10, 1964. They contend that because of sudden and unexpected reduced visibility they were obliged to rely upon said buoy in negotiating the turn from Mud Island Range into Enterprise Range; that buoy 26 was intended to mark the turn into Enterprise Range; that it was 230 yards below (down river) its charted position and that the ORE SATURN accordingly grounded a shiplength (751 feet) upstream of buoy 26 in the Enterprise Range.

 On the contrary, the Government contends that the grounding was the result of the negligence of the pilot, the master and the crew of the ORE SATURN in leaving Pier 22 under the weather conditions existing on the morning in question; in negligently navigating the ORE SATURN, and in failing to recognize that buoy 26 was not on its charted position. Finally, the Government contends that it had no notice, actual or constructive, that buoy 26 was off its charted position on February 10, 1964, and that the libel should accordingly be dismissed.

 The case was ably tried by experienced counsel who have submitted complete briefs together with requests for findings of fact and conclusions of law. Extended testimony was taken and other evidence submitted. It has been carefully reviewed. It contains an unusual and extraordinary number of inconsistencies, contradictions and conflicts. For example, it involves obvious erasures of records resulting in conflicting testimony of handwriting experts; it involves conflicting evidence as to the identity and location of a certain object used in fixing the position of buoy 26 and involves the question whether a given object, used in fixing the position of buoy 26, in fact existed on a given date and occasion. Seldom, in a case of this kind, does the record involve so many and such substantial conflicts of evidence. We have devoted an extraordinary amount of time and effort to a consideration of the extended record and on the basis thereof, make the following:


 As to the Parties and the Grounding

 1. At all material times herein, the SS ORE SATURN was owned by Universe Tankships, Inc., a foreign business corporation organized and existing under the laws of the Republic of Liberia, and is a bulk ore carrier, 751 feet in length, 102 feet in beam, single screw with a fresh water loaded draft of 39 feet 03 inches.

 2. The United States of America is a corporation sovereign which has consented to be sued herein under the Suits in Admiralty Act, 46 U.S.C. § 742 and following.

 3. Pilotage in the Delaware River for vessels of foreign registry inbound from foreign ports is governed by State law and is "compulsory". 23 Del. Code § 121; 55 Purdon § 172.

 4. On February 10, 1964, the ORE SATURN grounded a ship-length upstream of buoy 26 and outside the channel in Enterprise Range in the Upper Delaware River while in transit from Pier 122 South, Philadelphia, to the Fairless Steel Works, Morrisville, Pennsylvania.

 5. The actual channel alignment and aids to navigation in the Upper Delaware River were physically located on February 10, 1964, as shown on the 15th Edition of Coast and Geodetic Survey Chart No. 296. Buoy 26, however, after the grounding, was found 230 yards, bearing 234 degrees true from its intended position at the turn from Mud Island to Enterprise Range as shown on the 15th Edition of the Chart.

 6. By agreement of the parties, the issue of damages was severed from liability.

 As to the Negligence of the Coast Guard

 7. At all material times herein, the work of establishing and maintaining buoyage in the Upper Delaware River was the responsibility of the United States Coast Guard. This work was assigned the Coast Guard buoy tenders ZINNIA and LILAC.

 8. The proper maintenance of buoy 26 was the primary responsibility of the buoy tender ZINNIA.

 9. Separate operational records were maintained by each of the Coast Guard buoy tenders in the regular course of their business of servicing buoys in the Upper Delaware.

 A quartermaster's log book and a buoy card Form 2555 and Form 3738 were maintained. The quartermaster's log book and buoy card were the only contemporaneous records of servicing.

 10. Coast Guard regulations required that entries be made in the quartermaster's log books whenever a buoy was serviced.

 11. A buoy card was maintained on the bridge of the buoy tender for each buoy and each servicing was recorded on the card.

 12. A Form 2555 was and is required to be prepared and executed whenever a buoy was moved. The position in which a buoy was placed in terms of objects and sextant angles used in positioning the buoy, or by range and bearing from specified named objects was required to be recorded on the form.

 13. Form 3738 is a summary of all work performed by the tenders and was required to be prepared and filed at 15-day intervals.

 14. Form 2555 was prepared in draft form by a quartermaster on the buoy tender as each job was being done. Shortly thereafter, a yeoman prepared a final typed version for approval by the commanding officer of the tender and the pencil draft was destroyed. After the typed form was reviewed, approved and signed by the tender's commanding officer, the form was submitted to the Headquarters of the Coast Guard Third District at New York.

 Instructions for Form 2555, on the reverse side, require:

"1. This report is required in order to reflect the work performed under items listed in ACTION TAKEN column which, if it were not submitted, would make the latest Forms CG-2555, CG-3465, or CG-3466 obsolete with regard to the data recorded.
"2. For all conditions except NORMAL, state reason so far as it is known.
"3. All data shall be filled in on this form when work is performed on items marked by asterisks (*) in ACTION TAKEN column. Only data related to the work accomplished need be given for other items in this column when of minor nature.
"4. The chart number shall always be recorded. Enter the latitude and longitude only when necessary, such as for offshore buoys or for buoys whose position cannot be precisely located by sextant angles or visual bearings.
"5. The position of a buoy shall be determined by observations of the aid, at the time the work is being done, by sextant angles and/or bearings on fixed objects readily identified on the chart, when possible. When such methods are not feasible, obtain position by utilizing radio aids to navigation, radar, loran, soundings, or, if necessary, by dead reckoning. When such methods are used, record complete data under REMARKS.
"6. Depth of water shall be obtained by soundings taken at time buoy is set, correct to datum of chart used.
"7. Details regarding causes of any deficiency of operation or position of an aid to navigation shall be given under REMARKS.
"8. The report shall be signed by the person who actually performs the work. When the commanding officer has personally supervised the work, only his single signature is necessary.
"9. The following definitions describe the terms used in ACTION TAKEN column:
ESTABLISHED. Placed in authorized operation. Aid to be added to light list.
COMMISSIONED. An aid previously reported "Closed" or "Withdrawn" has been placed in operation.
REPLACED. An aid reported "Off Station", "Adrift", and/or "Missing" has been replaced by another of the same type and characteristic to permit overhaul and servicing.
RELIEVED. Replacement of an aid by one of the same type and characteristic to permit overhaul and servicing.
RELOCATED. Authorized change of station location in immediate vicinity. Light list to be changed accordingly. If temporary relocation, give reasons and authority under REMARKS.
Relighted. an aid reported extinguished has been relighted.
RESET. A floating aid reported "Off Station", "Adrift", or "Missing", has been returned to station.
SERVICED. Regular maintenance work performed such as checking position and condition, inspecting, recharging, painting, cleaning, etc., without changing location or light list description. Actual work performed shall be listed under remarks."
The Third District Operations Plan required:
"(4) Form CG-2555, "Report on Aid to Navigation" shall be submitted each time an aid is:
(a) Established, relieved, or relocated.
(b) When the characteristic or any feature of the aid as listed in the current light list is changed.
(d) When any discrepancy in the position of an aid is corrected.
It is essential that accurate sextant angles be included, or if not available, true bearings of charted fixed objects or the most precise fix otherwise obtainable. Only those items which are changed need be indicated on this form, except that position information shall be included every time that the report is submitted for reasons in (a) or (d) above. When work is performed on an aid assigned to another unit, that unit shall be furnished a copy of the report."

 15. The angles used to position each buoy appearing on Form 2555 were plotted at Third District Headquarters to verify that the buoys were properly placed in their intended positions. Copies were maintained in the tender's files for reference.

 16. Instructions of the quartermaster's log book (found inside the front cover of each log) stated in part:

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