high river and less during periods of low water conditions when Dam 49 was raised. When the dam at Lock 49 was lowered and open river conditions existed, the current in the pass at Uniontown approached 6 to 8 miles per hour and the current between Lock 49 and Uniontown was approximately 1 mile per hour. If, however, the dam at Lock 49 was raised and the beartraps were not running, the current between Lock 49 and Uniontown was negligible. Further complicating navigation was the predisposition of the Ohio River to shift and change its sandbars and shoals very rapidly.
In June, 1972 the Forwarder and its tow of barges moved up river. The Forwarder is a 5000 horsepower towboat, 168 feet long by 40 feet wide. On June 26 and 27, the master of the Forwarder was Stanley Roll. The pilot was Charles Young and the mate was Leon Lyle. Young was an experienced Ohio River pilot who held a license issued by the Coast Guard and endorsed by it for the Ohio River. At approximately 12:00 a.m., E.S.T., the watch changed and pilot Young received the helm of the Forwarder from Captain Bell. At that time, the vessel was approximately nine miles below the Uniontown Lock and had in tow 17 iron ore laden barges, 15 of which were ahead of the Forwarder (3 barges wide and 5 barges long) and 2 of which were lashed to the side. Each of the barges measured 35 feet by 195 feet. The total length of the flotilla was approximately 1070 feet and the width was approximately 105 feet.
Every six hours at each change of the watch, the Forwarder's officers and crew checked the vessel and its tow. In checking the tow, they opened the hatches on the barges to determine that the voids had not filled with water. They assured themselves that the tow was trim, that the lashings were secure and that the signal lights were in proper working order.
After receiving the helm from Captain Roll at approximately 1:00 a.m., the local time at Uniontown, Mr. Young and the Forwarder proceeded upstream until, approximately three-quarters of a mile below Uniontown, they were required to maneuver to the Indiana shore to permit a downbound vessel to pass. After the southbound tow had yielded sufficient channel, the Forwarder, its searchlights on ahead of it, commenced its final approach towards the Uniontown pass. When he left the Indiana shore, pilot Young brought the Forwarder to full throttle as he approached the head at the pass. When the flotilla was approximately 600 feet from the Uniontown cofferdam, the three lead barges, OBL35, 62 and 92, suddenly dove beneath the water and sank, approximately 300 to 400 feet out from the Uniontown lockwall.
The sinking of the three barges in the Uniontown pass on June 27, 1972 in no way was contributed to or caused by any actions of the United States or any of its agents. The sinking was solely caused by the actions, negligence or otherwise, of the defendant in the circumstances as they existed at the time and place. After the three barges had sunk the Coast Guard was informed and as a result the Coast Guard Cutter Lantana was dispatched to the scene, arriving at noon on June 27th. The Lantana marked the position of the barges.
On July 8, 1972, the Coast Guard was notified that the buoy marker which the cutter Lantana had placed on the water above the barges on June 27 had disappeared and that the barges appeared to have shifted. The Lantana was again dispatched and arrived at Uniontown on July 9. It found that one of the barges, subsequently identified as OBL35, had shifted and was then approximately 200 feet from the Uniontown lower lockwall. At that time, responsible and authorized officials of the United States Army Corps of Engineers decided that these three sunken barges constituted an obstruction to navigation through the Uniontown pass, and thereupon closed
the pass to vessel traffic until the last barge was raised. These three barges remained within the navigable channel of Uniontown pass from the time they sank until they were removed. Two of the three barges, OBL62 and 92, were raised from approximately the same position in which they had sunk. The actions of the United States in closing the pass and keeping it closed until all the barges were removed was reasonable under the circumstances.
During the periods of July 25 to August 3, 1972, and August 10 to August 20, 1972, Dam 49 was raised. The raising of Dam 49, together with the closure of the pass, required vessel traffic in both directions to proceed from Uniontown lock on one side of the river and Lock 49 on the other side of the river. Because of the navigational hazards created between Lock 49 and Uniontown by the three sunken barges, the Corps determined sometime after the Uniontown pass was closed to hire a helper boat to safeguard the life and property of all who used the Ohio River, including the United States. The Corps reasonably determined that the services of a helper boat would be needed based on the fact that the pass had been closed and the knowledge that vessels crossing between Uniontown Lock and Lock 49 would be subjected to strong currents, crosscurrents and eddies.
After soliciting bids for a helper boat, the Corps contracted for the use of the M/V Jeffery Lynn. The contract provided that the Corps pay $ 35.00 per hour for each hour the Jeffery Lynn devoted to the job of providing towing assistance between Uniontown and Lock 49 and that such hourly charge was to commence when the Jeffery Lynn departed its home port of Mt. Vernon, Indiana, and ceased when it arrived back at Mount Vernon. The Jeffery Lynn was hired for those periods when the pass was closed due to the obstruction to navigation posed by the sunken barges and when vessels had to lock through both Uniontown and Lock 49. The Jeffery Lynn was to assist only those vessels which requested assistance. Specification 40 of the dam construction contract did not obligate the contractor to provide helper boat service provided by the Jeffery Lynn.
The contract for services entered into between the Corps of Engineers and the Jeffery Lynn was fair and reasonable under the circumstances. The reasonable value of the Jeffery Lynn's services during the periods between July 25 to August 3, 1972 and August 10 to August 20, 1972, was $ 16,345.00, that is, 467 hours of service at $ 35.00 per hour. OBL35 was raised on July 30, 1972. OBL62 was raised on August 17, 1972. OBL92 was finally raised August 19, 1972.
Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U.S.C. § 403
, provides in part as follows:
"That the creation of Any obstruction not affirmatively authorized by Congress, To the navigable capacity of any of the water of the United States is hereby prohibited; . . ." (Emphasis supplied).
Decisional law construing this statute instructs that this provision be read "charitably in light of the purpose to be served (i. e., protection of the navigable capacity of waters of the United States)," which "forbids a narrow, cramped reading" of the section. United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S. Ct. 884, 890, 4 L. Ed. 2d 903 (1960). In fact, § 403 expressly states that any obstruction, regardless of how it is caused, is prohibited. It is clear therefore that the mere creation of an obstruction, negligently or otherwise, to the navigable capacity of any body of water gives rise to liability under this section.
Section 401 et seq., is an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U.S. 405, 45 S. Ct. 176, 69 L. Ed. 352 (1925), over the navigable waters of the nation, United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 63, 33 S. Ct. 667, 672, 57 L. Ed. 1063 (1913) and "subject to all the requisite legislation by Congress", Gilman v. Philadelphia, 70 U.S. (3 Wall) 713, 725, 18 L. Ed. 96 (1866); United States v. Rands, 389 U.S. 121, 123, 88 S. Ct. 265, 19 L. Ed. 2d 329 (1967). The "great design of this legislation", United States v. Republic Steel Corp., supra, 362 U.S. at page 492, 80 S. Ct. 884, includes the obligation "to maintain and promote the safety of navigation", Atlantic Refining Co. v. Moller, 320 U.S. 462, 466, 64 S. Ct. 225, 227, 88 L. Ed. 168 (1943).
As observed by Mr. Justice Holmes in New Jersey v. New York, 283 U.S. 336, 342, 51 S. Ct. 478, 479, 75 L. Ed. 1104 (1931), "a river is more than an amenity, it is a treasure." For this reason the Supreme Court has consistently interpreted the Act broadly to fully effectuate its purposes. (See, e.g. Sanitary District v. United States, supra; United States v. Republic Steel Corp., supra, 362 U.S. at page 490, 80 S. Ct. 884; United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966); Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967); United States v. Pennsylvania Industrial Chem. Corp., 411 U.S. 655, 93 S. Ct. 1804, 36 L. Ed. 2d 567 (1973). This broad interpretation in favor of the United States is mandated not only by the laudatory purpose of the Act, but also by the fact that "a principal beneficiary of the Act if not the principal beneficiary, is the Government itself." Wyandotte Transp. Co. v. United States, supra, 389 U.S. at page 201, 88 S. Ct. at page 386.
Indeed this court has previously had reason to interpret the first clause of § 403. In earlier proceedings on this same cause of action, I found that a barge, whether negligently or intentionally sunk in a navigable river of the United States, is an obstruction within the meaning of 33 U.S.C. § 403. United States v. Ohio Barge Lines, Inc., 432 F. Supp. 1023 (W.D.Pa.1977).
Although this particular issue has already been resolved, the defendants raise two others by the application of § 403 to this case: (1) did the sunken barges diminish the navigable capacity of the river and thus constitute an actionable obstruction, and (2) is the cost of helper boat service properly cognizable as a removal expense?
The defendants' contention that the three sunken barges did not constitute an "obstruction" to navigation because they did not diminish the navigable capacity of the river is without merit since the evidence shows that all the barges were within the 500 foot wide navigable channel located at the Uniontown Pass. The defendants' argument that traffic continued to navigate through the pass after it was closed is irrelevant. The reasonableness of the Coast Guard's determination that a real obstruction to navigation existed is not in any manner repudiated simply because certain mariners acted contrary to Coast Guard instructions. In fact, the evidence shows that after sinking the barges bobbed up and down. One of the barges (OBL35) even shifted its position considerably and caused damage to the Coast Guard cutter Lantana as she was attempting to locate the positions of the sunken barges.
The evidence is ample to establish a reasonable basis for the Coast Guard's decision to close the pass and the Corps' decision to retain a helper boat. In light of its knowledge of the sunken barges within the channel itself, the Coast Guard would have been derelict in its responsibility to maritime traffic to permit vessels to use the Pass. The Corps of Engineers had previously (without sunken barge obstruction) made the determination that whenever the Uniontown Pass would be closed due to construction on the Uniontown Dam, and vessels would have to lock through at both Uniontown Lock and Lock 49, a helper boat should be provided to assist requesting vessels in the making of this transit. This decision was based on the Corps' knowledge of the velocities and flow of the currents, crosscurrents and eddies in the area. It had been made months, if not years, prior to this occurrence. See e.g., Technical Report H-15-9, Navigation Condition at Uniontown Locks and Dam, Ohio River. This determination was one which Congress delegated to the Corps to make because it is the agency which has both responsibility over and expertise in the protection of the navigable waterways of the nation. The expertise of the agency concerned is a cogent factor in analyzing the reasonableness of any of its action. Alton R. Co. v. United States, 315 U.S. 15, 62 S. Ct. 432, 86 L. Ed. 586 (1942).
The term "navigable capacity" has been judicially defined as the capability of being navigated over any part of waters when in their normal condition. Hubbard v. Fort, 188 F. 987 (3 Cir.). The law is clear as to the broad sweep of § 403, and definitive authority is supplied from the landmark interpretation of this statute in Republic Steel, supra, 362 U.S. at pages 487 and 488, 80 S. Ct. at page 888,
"There is an argument that § 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words "any obstruction' in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708 (19 S. Ct. 770, 777, 43 L. Ed. 1136), decided not long after the 1899 Act became effective, gave the concept of "obstruction', as used in § 10, a broad sweep: "It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition.' This broad construction given § 10 of the 1890 Act was carried over to § 10 of the 1899 Act in Sanitary District v. United States, 266 U.S. 405, 429 (45 S. Ct. 176, 69 L. Ed. 352), the Court citing United States v. Rio Grande Dam & Irrigation Co., supra, with approval and saying that § 10 of the 1899 Act was "a broad expression of policy in unmistakable terms, advancing upon' § 10 of the 1890 Act."