Queen Line, Ltd., 177 F. Supp. 916, 919 (E.D.Pa.1959).
In defense the owner has a heavy burden to prove affirmatively that the drifting and sinking of its barge was the result of vis major, or inevitable accident, or an interloping vessel, unusual water conditions, or vandalism. The Louisiana, 70 U.S. (3 Wall.) 164, 173, 18 L. Ed. 85 (1865); Zubik v. Zubik, supra at 269-270; Patapsco Scrap Corp. v. Maryland Shipbuild. & Dry-Dock Co., supra at 819-820; Swenson v. The Argonaut, 204 F.2d 636, 640 (3rd Cir. 1953); The Chickie, 141 F.2d 80, 82 (3rd Cir. 1944); General Public Warehouse Co. v. Queen Line, Ltd., supra.
Maritime law has established the basic rule that when a moored vessel breaks loose, drifts and sinks, the owner who had custody and control of the vessel, as Osage admittedly did, is required to explain that the sunken wreck did not occur through its fault.
The only proof offered by Osage that the drifting and sinking of Barge 417 was not its fault were the opinions of its vice-president and the diver he hired. I do not think opinion evidence of non-negligence is sufficient to overcome the presumption. Osage has not proved by any direct or sufficient circumstantial evidence that the drifting and sinking of Barge 417 was the result of a non-negligent accident or vandalism. Hence, the presumption of negligence on the part of Osage has not been rebutted.
The defendant contends that the sunken Barge 417 did not constitute an obstruction in navigable waters or a hazard to navigation and, therefore, for this reason the barge could not be removed by the government at the defendant's expense. (See defendant's Conclusion of Law No. 13). I do not agree. The phrase "navigable channel" as used in the Act is not limited to those deeper channels marked by buoys and used by larger vessels. Red Star Towing & Transportation Co. v. Woodburn, 18 F.2d 77 (2d Cir. 1927). A vessel may navigate at any part of a river containing navigable waters. Jones Towing, Inc. v. United States, 277 F. Supp. 839, 848 (E.D.La.1967), including an anchorage area, Seeley v. Red Star Towing & Transp. Co., 396 F. Supp. 129, 132 (S.D.N.Y.1975). See also Reading Co. v. Pope & Talbot, Inc., 192 F. Supp. 663 (E.D.Pa.1961); American Dredging Co. v. Calmar S.S. Corp., 121 F. Supp. 255, 263 (E.D.Pa.1954), aff'd 218 F.2d 823 (3rd Cir. 1955). Thus Barge 417, lying submerged in water 10 or 12 feet deep, struck by M/V Three Rivers presented a hazard and obstruction to users of the river and was a hazard and obstruction to navigation.
The plaintiff wants not only to recover the cost of removal in the amount of $19,091.98, less the salvage value in the amount of $1,360.14, but it also wants the court to impose a penalty of not more than $2,500 or less than $500 upon Osage. 33 U.S.C. §§ 411 and 412. As heretofore stated, I think the latter claim is not warranted and is unjustified. See fn. 2. This action is in personam and not in rem as in the cases cited by plaintiff, i.e., United States v. Ohio Valley Co., 510 F.2d 1184, 1185 (7th Cir. 1975); United States v. The Republic No. 2, 64 F. Supp. 373, 377 (S.D.Tex.1946). The penalty specified in § 411 is mandatory only in an in rem action against the vessel under § 412. No indictment or information has been filed against Osage which would warrant imposing the fine set forth in § 411. Even if a criminal action had been instituted, it is extremely doubtful that a conviction could be sustained on a bare presumption of negligence. Cf. United States v. Raven, 500 F.2d 728, 732-733 (5th Cir. 1974).
I find the fair and reasonable removal cost to be $5,700 which, together with the salvage value of $1,360.14 received by the plaintiff, makes a total recovery for the cost of removal in the amount of $7,060.14. I think interest should be awarded to plaintiff at 6% from the date of the bill the Engineers sent to the defendant on July 22, 1974 (PX 20).
Defendant's witness, Elmer P. Grimm, is an admittedly reputable and competent salvage contractor. (Tr. 342). Mr. Grimm has been raising sunken vessels in the rivers around Pittsburgh since 1946 and has salvaged approximately 100 barges. He testified that if asked he would have been interested in bidding on raising Barge 417.
The actual cost of removal incurred by the plaintiff was not proved; several items were estimated. Whereas, Mr. Grimm testified that he could have removed the barge in two and one-half days with 5 men including himself, the plaintiff took five days and engaged 38 men. We think the extra time and personnel were grossly excessive and unnecessary and the total sum demanded is unfair and unreasonable. If the plaintiff had taken bids as authorized, it could have determined what the reasonable cost of removal should have been. But as Mr. Eugene Homyak, Chief of Plant Section, testified, the government does not attempt to make its rates competitive with the rates charged by river salvage contractors. It appears that plaintiff desired to log as much time as possible for its employees, plant and equipment.
The foregoing shall be deemed to constitute the findings of fact and conclusions of law required by Rule 52 Fed.R.Civ.P.
An appropriate order will be entered.