The opinion of the court was delivered by: HUYETT
This case requires that we scrutinize the degree of care employed by the government in surveying the depths of navigable waters of the Delaware River. The factual context in which we make this examination of defendant's conduct arises from the grounding of the bulk ore carrier S.S. Ore Chief on January 3, 1965. At approximately 11:39 A.M. on that date the Ore Chief went aground in the vicinity of the Delaware River off Pier 77 North which is to the north of the Benjamin Franklin Bridge on the Pennsylvania side of the river.
Plaintiff's evidence sought to demonstrate that the Ore Chief's grounding was caused by the impact with two large rocks indigenous to the river bottom and located from 125 to 140 feet off Pier 77 N. These rocks were described in the record as the "log rock" and the "table rock." The log rock was characterized by a piling wedged in the rock. The table rock was described as a flat-surfaced rock as compared to the irregularly shaped log rock. Plaintiff's theory was that prior to coming into contact with the Ore Chief these rocks had a depth of only 25 to 35 feet of water from their highest point to the surface of the Delaware River at mean low water. Since at the time of the grounding, the Ore Chief's draft (the distance from the bottom of the ship to the point at which the surface of the water meets the top part of the ship) was 37 feet, a collision with the rocks was inevitable. The government's liability is asserted to result from its publishing of channel depth statements which indicated an unobstructed depth at mean low water of thirty-seven and one-half (37.5) feet in the area where plaintiff's evidence purports to show the Ore Chief went aground.
For its part the government at trial made no attempt to show what caused the Ore Chief to go aground. Nor did the government seek to prove where the grounding occurred. It simply attempted to demonstrate the lack of any convincing evidence in support of plaintiff's theory.
While we consider the evidence supporting plaintiff's theory of the case to be substantial, we have concluded, after a careful consideration of the nature and quality of plaintiff's evidence, that plaintiff has failed to prove it more probable than not that the Ore Chief went aground in a collision with rocks the water above which had a depth less than that reported by the government in its notices to mariners. We will, therefore, enter judgment in favor of the government.
1. Jurisdiction over the parties and the subject matter herein is conferred upon this court pursuant to the Suits in Admiralty Act, 46 U.S.C. §§ 741 to 752 (1970).
2. The River and Harbor Act of September 3, 1954 (P.L. 780, September 3, 1954, Ch. 1264, Title I, 68 Stat. 1248) authorized the deepening and widening of the channel in the Delaware River from the Navy Yard to Allegheny Avenue, Philadelphia, and to the upstream end of Newbold Island. The channel was to be deepened to a depth of 40 feet and widened to a width of 1000 feet.
3. The channel in the Delaware River is now 1000 feet wide. At Pier 77N the 1000 foot channel's westerly edge is 50 feet from the pier. The 40 foot project depth is the westerly 400 feet of the channel. The remaining 600 feet is a project depth of 37 feet. For purposes of surveying, the channel is also divided into 1000 feet stations from North to South of the river. The zero point of the stationing is at a point opposite Allegheny Avenue. A reference to 7 plus 000, or 7000, indicates the point 7000 feet below Allegheny Avenue. Pier 77N is at station 7퍍. (N.T. 4-101)
4. Reach D is an area of the Delaware River north of the Benjamin Franklin Bridge approximately between Pier 61 to the downstream of the river and Pier A at Port Richmond to the upstream of the river. (N.T. 414; Pl.Ex.42)
5. On channel depth statements issued by the government the area of Reach D where the Ore Chief is claimed by plaintiff to have grounded is referred to as the Philadelphia-Camden Bridge to Cumberland Street, Philadelphia area. (N.T. 4-81; Pl.Ex.37)
6. Dredging for the purpose of deepening the channel to 40 feet for a width of 400 feet in the area known as Reach D above the Benjamin Franklin Bridge was completed in April of 1960. (N.T. 4-76)
7. The dredging operation was performed pursuant to a bid contract with the American Dredging Company. (N.T. 4-76) During the period relevant to this action, the Army Corps of Engineers' practice was to survey the areas dredged after the dredging company had ...