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UNITED STATES v. OSAGE CO.

June 11, 1976

UNITED STATES of America, Plaintiff,
v.
OSAGE COMPANY, INC., Defendant



The opinion of the court was delivered by: MARSH

 In its complaint, the United States sues the defendant, Osage Company, Inc., (Osage) pursuant to 33 U.S.C. § 409 for $17,878.09 *fn1" being the net cost of removal of sunken Barge 417 belonging to Osage, and a penalty of not more than $2,500 nor less than $500 pursuant to 33 U.S.C. § 411.

 This is an admiralty and maritime claim under Rule 9(h) Fed.R.Civ.P. The court has jurisdiction of the action under 28 U.S.C. § 1345.

 After non-jury trial, it is my opinion that the evidence as to the alleged cost of removal of the barge was not shown to have been fair and reasonable, but was grossly excessive. I find that the reasonable cost of removal amounted to $5,700. (Tr. 298).

 I find that the civil penalty requested, absent indictment or information, is not warranted against Osage in this in personam action. *fn2"

 The Monongahela River is a navigable waterway of the United States and is used extensively by commercial as well as recreational vessels. At Mile 16.3, where Barge 417 was sunk, the River is approximately 750 feet wide. The commercial channel is in the center.

 Osage had leased Risher's Landing on the left bank of the Monongahela River from Consolidation Coal Company which lease apparently gave Osage the right to moor two barges to each other and to the willow trees on the land. These vessels were called spar barges and were used as a landing dock for other vessels to keep the latter off the bank and in deeper water. There was no guard or fence on the land to prevent access to the spar barges and the mooring trees.

 The two barges were identified as Barge 126 and Barge 417, the latter being moored on the downstream end of Barge 126. The ends of the two barges were lashed together on the land side by a steel cable 7/8th inches thick tied around the timberheads and tightened with a ratchet; on the river side they were lashed together by a rope tied around the timberheads. Barge 126 was tied fore and aft to willow trees on the river bank by steel cables of the same size. Barge 417 was tied aft to a large tree. The barges and their lines were inspected each week by Osage's master mechanic, Lester E. Deily, during the summer of 1970 and 1971 until September 27, 1971, and the barges were inspected a couple of times in July, 1971 by John R. Ross, who came to Osage as vice-president in July, 1971.

 Sometime prior to the early morning of September 27, 1971, Barge 417 mysteriously left its mooring site and sank approximately 200 feet downstream of its original position. It lay diagonally on the river bottom with its downstream outboard corner approximately 150 feet from the left bank. In the morning of September 27th it was struck in its sunken position by M/V Three Rivers whose Captain reported the casualty to the Coast Guard.

 Upon being advised of this casualty Vice-President Ross went to Risher's Landing, observed the sunken barge and engaged a diver, Vincent J. Hammill, to inspect it and to mark it with a 55-gallon drum market. Mr. Ross notified the Coast Guard and the Pittsburgh District Corps of Engineers of this action. The Engineers placed a buoy over the barge to warn river traffic of the danger.

 On October 20, 1971, Osage sent a letter to the District Corps of Engineers, tendering abandonment of Barge 417. On November 1, 1971, the Corps acknowledged receipt of Osage's letter but refused to accept the tendered abandonment, and refused to waive any right to enforce liability for cost of removal. I find nothing in the Rivers and Harbors Act, 33 U.S.C. § 401, et seq., which requires the plaintiff to accept an offer of abandonment.

 Osage abandoned the barge for economic reasons in that the sunken barge was worth two, three or four thousand dollars and it would cost five or six thousand dollars to remove it. (Tr. 218).

 Later the Engineers determined that the sunken barge constituted an obstruction to navigation; funds for the removal were requested and obtained. It took five days to remove the barge. (Tr. 67-70). The Engineers used their own equipment and personnel. The barge was cut up during removal and the remains were transported to Neville Island and subsequently sold for $1,360.14. The total cost alleged to have been incurred by the Engineers was $19,091.98, the net cost being $17,731.84 which is demanded of Osage. On July 22, 1974, the ...


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