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Kommanvittselskapet Harwi Owner of Motor Vessel Gerwi v. United States

September 26, 1972

KOMMANVITTSELSKAPET HARWI (ROLF WIGAND) OWNER OF THE MOTOR VESSEL GERWI, APPELLANT IN NO. 18301,
v.
THE UNITED STATES OF AMERICA, APPELLEE. APPEAL OF BERGENS SKIBSASSURAN-SEFORENING, IN NO. 18302.



Before Seitz, Chief Judge, Van Dusen, Circuit Judge, and Masterson, District Judge.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

Kommanvittselskapet Harwi (Rolf Wigand), a Belgian corporation owning the Norwegian vessel Gerwi, brought suit against the United States under Section 742 of the Suits in Admiralty Act (46 U.S.C. ยง 742),*fn1 alleging that the Government was liable to it for damages which the vessel incurred when it grounded on rocks while it was proceeding up the Delaware River in the channel known as the Torresdale Range on May 23, 1963.

Plaintiffs contend that the negligence of the Government consisted of publishing misleading channel depth statements which bore no relation to the actual depths appearing on the Torresdale Range as marked on the nevigational chart, in failing to survey and maintain the existing Torresdale Range to the depths indicated on the depth statement, and with failing to mark and thereby make navigable the new channel for which it was publishing depth statements.

After a lengthy trial, the district court found the United States not liable under any of these theories.*fn2 The trial court held that the United States had no statutory or assumed duty to survey or dredge the existing channel on a regular basis, and that the United States was not negligent in failing to notify the users of the waterway that the existing channel, as marked by range lights and buoys, was no longer being surveyed or maintained. Furthermore, it was held that the Government did not make any negligent representations in the May 3, 1963, channel depth statement. The court added that even assuming negligence on either theory, it was not satisfied that plaintiffs had proved that the grounding of the Gerwi was caused by such negligence. Finally, the court held that the United States was not negligent in failing to mark the "project" channel.

At the time of the grounding, the Gerwi drew 27 feet 11 inches of water. As the vessel approached the Torresdale Range, the pilot saw a Corps of Engineers dredge flotilla on the edge of the range, and attempted to establish radio contact with it. The Coast Guard vessel Zinnia responded to the Gerwi's call to the dredge flotilla and advised the pilot to pass the flotilla on the Pennsylvania (left of center) side of the channel.

The pilot entered the Torresdale Range and aligned the Gerwi's extreme starboard side with the range lights marking the center of the range. As the Gerwi drew abeam of the drill boat accompanying the dredge, she struck rocks which pierced her 1, 2 and 3 port double bottom tanks resulting in the damages for which claim was brought in the district court.

Pilot Lappe had first class pilotage licenses issued by the United States Coast Guard and the State of Pennsylvania to pilot vessels from the Delaware Bay to Trenton on the Delaware River (77a-78a). He had piloted vessels on the Delaware River since 1953. The findings of the trial judge which are supported by evidence and are not clearly erroneous include these:

"28. The fact that the new or 40feet channel and the old or 25feet channel on Torresdale Range were not coincident was common knowledge among shipping and navigation interests concerned with the upper Delaware River (N.T. 459-60).

"29. Pilot Lappe did not have nor did he inspect at Pilots Association the Survey Sheet of November 7, 1962, prepared by the Corps of Engineers (R-I) on which it clearly appears that the old (25feet) and the new (40feet) Torresdale Range are separate and do not coincide. (N.T. 165). Pilot Lappe, however, knew prior to May 23, 1963, that there was an old channel and a new project channel in the Torresdale Range area and that these channels were not coincident, and he did not need the survey sheet of November 7, 1962 (R-I) to apprise him of this fact. (N.T. 165).

On May 10, 1963, Captain Powell of Norton, Lilly met with the Pilots Association on increasing the draft to 28 feet....

"32. The first 28feet draft ship which sailed from Philadelphia to Morrisville was the ORE VENUS on May 12, 1963 - 28feet; followed by the GALASSIA on May 13, 1963 - 28feet; third the RIO ORINOCO on May 18, 1963 - 28feet; fourth the EDERA on May 21, 1963 - 28feet. The GERWI was the fifth 28feet ship (Powell Deposition 56).

"33. Pilot Lappe had taken both the RIO ORINOCO on May 18 and the EDERA on May 21 up the ...


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