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ALLIED CHEM. CORP. v. THE TUG CARVILLE

June 29, 1972

ALLIED CHEMICAL CORPORATION
v.
The TUG CARVILLE and TUG CONDOR, their engines, tackle and equipment, Southern Transportation Company, Inc., and Delaware River Terminal, Inc.


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 FINDINGS OF FACT

 1. Allied Chemical Corporation (hereafter Allied) is a corporation organized and existing according to law, and at all times material hereto was the owner of the Barge A.C. No. 2.

 2. Defendant Southern Transportation Co., Inc. (hereafter Southern) is a corporation organized and existing according to law and during the year 1963 was engaged in towing various floating equipment of Allied, including the Barge A.C. No. 2, under a contract between the parties dated October 13, 1959.

 3. Defendant Delaware River Terminal, Inc. (hereafter DRT) is a corporation organized and existing according to law and was during 1963 the owner and operator of Pier 179 North, a terminal used for among other things, the berthing, discharging, and loading of barges, including Allied's Barge A.C. No. 2.

 4. Defendant Southern, during the year 1963 and at all times material hereto, was the operator of the Tugs CONDOR, and PINNERS POINT which were from time to time during 1963 engaged in towing the Barge A.C. No. 2.

 5. Throughout 1963 Southern, by means of the Tugs PINNERS POINT and CONDOR, regularly towed the Barge A.C. No. 2 on a triangular route from Hopewell, Virginia to Delaware River Terminal, then to North Claymont, Delaware, and return to Hopewell, Virginia.

 6. The Barge A.C. No. 2 was an unmanned steel barge 195 feet long, 35 feet in beam, with a depth of 9 feet 9 inches, a freeboard of 32 inches and equipped with 8 cylindrical tanks for the carriage of cargo above decks and a below deck rectangular compartment for the carriage of liquid cargo also.

 7. The maximum permissible draft of Barge A.C. No. 2 was 7 feet 1 inch.

 8. Throughout 1963 the berth provided by DRT and at which the Barge A.C. No. 2 was customarily berthed, in an area commonly called Pier 179 North, consisted of two clusters or sets of piling extending vertically above the surface of the water and the barge was moored with its port side to those clusters or dolphins of pilings with its bow pointed to the shoreline at the Pier 179 North plant.

 9. Throughout all relevant times in 1963 there was in existence a contract dated July 12, 1961 between ALLIED and DRT which provided in relevant part:

 
"III SERVICES
 
B. in connection with the furnishing of such services TERMINAL shall at its own expense:
 
(8) Provide complete and safe barge mooring and berthing facilities, cargo hoses, electric power, services of certified tankerman, supervision, labor, and any other facility, equipment, or services required to receive material from and discharge material into barges designated by PLASTICS. Barges will be loaded or unloaded promptly on arrival, 24 hours a day, 7 days a week without overtime payment by PLASTICS. TERMINAL shall keep berth and access channel dredged to a minimum depth of nine (9) feet during all weather conditions, and berth shall be capable of safely accommodating a barge forty-five (45) feet wide and two hundred and fifty (250) feet long."

 10. DRT was responsible for the loading and discharging of the Barge A.C. No. 2 at Pier 179 N.

 11. The logs of the Tug CONDOR contain the following entries relating to the Barge A.C. No. 2:

 
January 5, 1963 -- 5 a.m. "Barge loaded and aground. Laid by for the tide."
 
January 5, 1963 -- 6:40 a.m. "Left Pier 179 with A.C. No. 2 loaded. Flood."
 
February 9, 1963 -- 8 a.m. "Left Pier 179 with Barge A.C. No. 2 Barge aground, Loaded."
 
March 5, 1963 -- 1:45 p.m. "Docked A.C. No. 2, Claymont, Delaware."
 
March 5, 1963 -- 9:40 p.m. "A.C. No. 2 loaded and aground inshore." Ebb.
 
March 5, 1963 -- 9:50 p.m. "Left Claymont with A.C. No. 2 loaded. Ebb."
 
April 21, 1963 -- 8:05 p.m. "Docked Pier 179, Philadelphia. Barge dragged bottom going to dock."
 
April 30, 1963 -- 3:00 a.m. "Leave with A.C. No. 2 loaded, barge aground, pulled off."
 
April 30, 1963 -- 3:30 a.m. "Underway" SW Rain, Ebb.
 
June 19, 1963 -- 11 a.m. "Leave Pier 179, A.C. No. 2 loaded, barge aground, pulled off." Clear, Flood.

 12. The log of the tug PINNERS POINT contains the following entries relating to the barge A.C. No. 2:

 
"January 21, 1963 2200 hours -- docked A.C. #2 at Pier 179.
 
January 22, 1963 1945 hours -- left Pier 179 A.C. #2 for Claymont, barge has a port list.
 
2355 hours -- docked A.C. #2 at Claymont.
 
January 23, 1963 1040 hours -- left Claymont A.C. #2 for Wilson Shipyard in Wilmington, Del.
 
January 23, 1963 1330 hours docked A.C. #2 at Wilson Shipyard Wilmongton (sic) (barge A.C. #2 had hole in bottom)"

 13. The Court takes judicial notice of the following tidal information taken from the tide tables published by the U.S. Coast & Geodetic Survey for the year 1963. Using Pier 80 North as a reference station, the approximate tides at pier 179 N. are as follows:

 
1. On January 5, 1963, at pier 179 North:
 
a. Low water occurred at 0416
 
b. High water occurred at 0942
 
c. The range of the tide was 6.5 feet
 
2. On February 9, 1963, at pier 179 North:
 
a. High water occurred at 0207
 
b. Low water occurred at 0909
 
c. The range of the tide was 5.5 feet
 
3. On April 21 and 22, 1963, at pier 179 North:
 
a. Low water occurred at 1859
 
b. High water occurred at 0010
 
c. The range of tide was 6.8 feet
 
4. On April 30, 1963, at ...

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