The opinion of the court was delivered by: ROSENBERG
The plaintiff, the United States of America, brought this admiralty claim against the defendant, Ohio Barge Line, Inc. (hereinafter called "OBL"), In personam, and against the defendant, M/V Steel Forwarder (hereinafter called "Forwarder"), In rem, pursuant to both the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., specifically §§ 403 and 409 thereof, and the Federal common law of nuisance. This court has jurisdiction of this action under Title 28 U.S.C. § 1345. Damages are sought for $ 16,345.00, an amount which represents the cost incurred by the plaintiff for the hiring of a helper boat, the M/V Jeffery Lynn, for certain periods during July and August, 1972. The Jeffery Lynn was hired after the defendant had sunk three barges in what was then referred to as Uniontown Pass in the Ohio River.
The Ohio River is one of the nation's navigable rivers over which commercial traffic regularly operates. Lock and Dam 49, until its destruction after 1972, was located at Mile 845 on the Ohio River. The lock was on the left descending bank of the river, the Kentucky shore. On the opposite shore was the State of Indiana. The dam at Lock 49 was a "wicket-type" which could be submerged during high or "open" river conditions. At such times vessel traffic ordinarily did not lock at Lock 49 but navigated directly over the dam through a navigable pass which was approximately 900 feet wide. When the dam at Lock 49 was in the raised position, the flow of water past the dam was controlled by the operation of a number of movable wickets and two "beartraps". The beartraps were located on the Indiana side of the river.
A "beartrap" is a dam component constructed in two sections or leaves which are hinged at their lower ends and placed between two concrete piers. Among other things, its purpose is to rapidly lower the upper pool and to pass floating debris and ice. A "wicket" on the other hand, is a heavy timbered shutter which is pivoted on a line-like steel frame. This in turn is pivoted on the dam's concrete foundation to restrain the wicket from lateral movement.
Uniontown Lock and Dam is located on the Ohio River at Mile 846 approximately 3.5 miles downstream from Uniontown, Kentucky. The dam portion was designed to replace Dams 48 and 49. At this time, permanent locks had been constructed along the Indiana bank, and a cofferdam and fixed weir section of the dam had been constructed near the Kentucky bank, leaving an open river pass, or chute, between the cofferdam and the locks. Traffic was afforded the option of locking through Uniontown or of navigating through the pass.
The main lock chamber of Uniontown is 110 feet wide and 1200 feet long. There is also an auxiliary lock which is 110 feet wide and 600 feet long. Uniontown dam as constructed was approximately one mile downstream from the dam at Lock 49. The distance from the downstream lockwall of Lock 49 to the upstream lockwall of Uniontown lock was approximately 3500 feet.
In contemplation of the building of Uniontown lock and dam, the Corps of Army Engineers in 1963 authorized model tests to be made of the existing and anticipated river and navigational conditions at the Uniontown site before, during and after construction. That study concluded that during the period of time that Uniontown was under construction, while the dam at Lock 49 had not yet been removed, the river between those structures would be dominated by an eddy created by the flow of water coursing through the beartraps. They similarly concluded that such an eddy was likely to produce an impediment to navigation.
By June of 1972 the first stage cofferdam and low weir section of the Uniontown Dam had been completed leaving a 500 foot wide navigable pass between the cofferdam and the outer lock wall of the Uniontown lock. The operation of the beartraps at Dam 49 continued to create a large eddy below the dam. In addition, the construction of the Uniontown cofferdam and low weir section had created a navigable "head", i. e., a difference in elevation of the water above and below the pass.
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.
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 ...