Philadelphia Electric Co. v. Curtis Bay Towing Co. of Pa., 16512 and 16513.

• Decision Date: 29 February 1968
• Docket Number: No. 16512 and 16513.,16512 and 16513.
• Citation: 390 F.2d 125
• Parties: PHILADELPHIA ELECTRIC COMPANY v. CURTIS BAY TOWING COMPANY OF PENNSYLVANIA and TUGBOAT J. H. DEINLEIN, Her Engines, Tackle, Apparel and Equipment v. UNITED STATES of America, Appellee, and American Dredging Company, Curtis Bay Towing Company of Pennsylvania (Claimant-Respondent), Appellant. Margaret C. WALLING, Ritner E. Walling and Richard C. Walling, Co-Partners trading as Oliver Transportation Company v. CURTIS BAY TOWING COMPANY OF PENNSYLVANIA and Tugboat J. H. Deinlein, Her Engines, Tackle, Apparel and Equipment v. UNITED STATES of America, Appellee, and American Dredging Company, Curtis Bay Towing Company of Pennsylvania (Claimant-Respondent), Appellant.
• Court: U.S. Court of Appeals — Third Circuit

390 F.2d 125 (1968)

PHILADELPHIA ELECTRIC COMPANY v. CURTIS BAY TOWING COMPANY OF PENNSYLVANIA and TUGBOAT J. H. DEINLEIN, Her Engines, Tackle, Apparel and Equipment v. UNITED STATES of America, Appellee, and American Dredging Company, Curtis Bay Towing Company of Pennsylvania (Claimant-Respondent), Appellant.

Margaret C. WALLING, Ritner E. Walling and Richard C. Walling, Co-Partners trading as Oliver Transportation Company v. CURTIS BAY TOWING COMPANY OF PENNSYLVANIA and Tugboat J. H. Deinlein, Her Engines, Tackle, Apparel and Equipment v. UNITED STATES of America, Appellee, and American Dredging Company, Curtis Bay Towing Company of Pennsylvania (Claimant-Respondent), Appellant.

Nos. 16512 and 16513.

United States Court of Appeals Third Circuit.

Argued January 19, 1968.

Decided February 29, 1968.

Richard W. Palmer, Rawle & Henderson, Philadelphia, Pa., for appellant in both cases.

Norman G. Knopf, Atty., Civil Division, Appellate Section, Dept. of Justice, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Drew J. T. O'Keefe, U. S. Atty., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., on the brief) for appellee the United States.

Before HASTIE, Chief Judge, GANEY, Circuit Judge, and WEINER, District Judge.

OPINION OF THE COURT

GANEY, Circuit Judge.

The tug J. H. DEINLEIN, operated by the appellant, Curtis Bay Towing Company, on the clear winter morning of December 22nd, 1959, grounded the barge ELECTRIC #20 while towing the barge down the Delaware River in a southerly direction. The owner of the barge, Oliver Transportation Company, and the owner of the cargo of coal carried by it, the Philadelphia Electric Company, each filed a separate libel against the tug and Curtis Bay Towing Company for damage caused by the grounding. In each action Curtis impleaded the United States under the Suits in Admiralty Act, as amended, 74 Stat. 913, 46 U.S.C. § 742, and the American Dredging Company claiming their negligence caused the grounding. Both actions were consolidated for trial without a jury and after a trial lasting some seven weeks, the lower court exonerated the United States and the American Dredging Company from liability, finding that the sole cause of the grounding was the negligence of the appellant, Curtis Bay, and its tug. Curtis Bay Towing has appealed from that portion of the judgment exonerating the United States and finding Curtis solely at fault.

The tug DEINLEIN had arranged to tow the barge ELECTRIC #20 from Windy Point down the river to Chester, Pennsylvania, at approximately 10:00 a. m. as the tide was ebbing since it was customary in the towing trade to tow loaded coal barges down the Delaware River at ebb tide. The loading operation was not completed when the tug DEINLEIN arrived and it was therefore necessary for it to wait two hours until the barge was ready to be moved which made the time somewhere in the neighborhood of 12:00 o'clock noon, and as a result of which the water in the river in the vicinity of Windy Point was two feet lower than it had been at 10:00 a. m. The tug was in the charge of Captain Kelly who was an experienced pilot, having towed coal barges from Windy Point to Chester many times and during the six months prior to December 22, 1959, he had towed the loaded barge ELECTRIC down the river to Chester some six times, although on each of these six times, he had begun earlier in the ebb tide than this one.

The channel in the middle of the river near Windy Point is 40 feet deep and 1,000 feet wide and staying within this channel a navigator could avoid the hazards lurking in the water immediately outside the channel. One particular hazard here...