the engineer's conclusions. This Court finds the engineers testimony logical, persuasive and trustworthy.
Finally, an experienced marine diver who surveyed the river's bottom using a sophisticated scan sonar technique, also concluded that prior to the collision the pipeline sat on top of the riverbed for a distance of approximately 83 feet. His sonar tracing revealed no evidence of a trench where Peoples claimed its pipeline was buried. Nor did the diver discover any riprapping material in the area where the pipeline had been previously repaired in 1961. The diver's testimony was also substantially uncontroverted and believed by this Court. Clearly the substantial weight of the evidence established that Peoples' pipeline sat on top of the riverbed prior to being struck by the defendant's towboat.
Congress has expressly declared that "the creation of any obstruction . . . to the navigable capacity of any waters of the United States is hereby prohibited. . . ." See Obstruction to Navigable Waters, 33 U.S.C. § 403 (1899). This duty is said to extend to the entire width of the navigable waterway and is not, contrary to Peoples assertion, limited to the mid or dredged channels of the river. See Orange Beach Water, Sewer And Fire Protection Authority v. M/V Alva, 680 F.2d 1374, 1382 (11th Cir. 1982). Moreover, the duty to maintain a free and navigable channel is breached whenever a structure not initially an obstruction becomes one through improper maintenance. Id. at 1383.
Under the facts of this case, Peoples' pipeline unquestionably created an obstruction to navigation. Although Peoples' pipeline was struck close to the shore, the overwhelming weight of the credible evidence established that vessels with drafts similar to the Aetna Louisville frequently maneuvered close to the western shore of the river to access the Reserve Petroleum Dock. In the area where the pipeline was ruptured, Peoples had been warned by its marine diver years before the accident that towboats maneuvered directly over its pipeline close to the shore to spot oil barges.
The evidence also established that Peoples failed to maintain its Pipeline 4 feet below the riverbed for the width of the channel as required by the Corps' permit. Several courts have held that failure to comply with a term of the permit issued by the Corps triggers application of The Pennsylvania rule. Accord Orange Beach Water, 680 F.2d at 1383 and cases cited therein. This Court agrees. In addition, this Court holds that the congressional mandate that navigable waters be free from obstruction and the permit provision requiring Peoples' pipeline to be 4 feet below the riverbed were both designed to prevent the precise type of collision that occurred in this case. See generally Orange Beach Water, 680 F.2d at 1383; Gulf Oil Corp. v. Tug Gulf Explorer, 337 F. Supp. 709 (E.D. La. 1971), aff'd, 472 F.2d 1406 (5th Cir. 1973).
This Court need not expound on Peoples' burden under The Pennsylvania to prove that its statutory violations could not have been a cause of the collision in this case because the Aetna Louisville sustained no damages and sought to recover nothing by this suit. Were she damaged, however, United States v. Reliable Transfer Co., 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975), would require the allocation of liability in proportion to the relative fault of the parties. It is enough to note that the evidence established that Peoples failure to maintain its pipeline below the riverbed was the only cause of the collision. Since the exposed pipeline was the sole cause of the collision, Peoples must bear the entire responsibility for damages.
An appropriate order follows.
And now, to wit, this 26th day of March, 1985, after consideration of the applicable rules of law and the evidence adduced at trial and in accordance with the findings of fact and conclusions of law in the above-captioned case, it is ORDERED ADJUDGED and DECREED that Judgment be and the same is hereby entered for the Defendant, Ashland Oil, Inc.
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