Marine Contracting & Towing Co. v. McMeekin Const. Co.

• Decision Date: 01 August 1969
• Docket Number: Civ. A. No. 68-986.
• Citation: 302 F. Supp. 804
• Court: U.S. District Court — District of South Carolina
• Parties: MARINE CONTRACTING AND TOWING CO., a South Carolina Corporation, Plaintiff, v. McMEEKIN CONSTRUCTION CO., a South Carolina Corporation, Defendant.

302 F. Supp. 804

MARINE CONTRACTING AND TOWING CO., a South Carolina Corporation, Plaintiff, v. McMEEKIN CONSTRUCTION CO., a South Carolina Corporation, Defendant.

Civ. A. No. 68-986.

United States District Court D. South Carolina, Charleston Division.

August 1, 1969.

T. E. Pedersen, Charleston, S. C., for plaintiff.

Charles H. Gibbs, Sinkler, Gibbs & Simons, Charleston, S. C., for defendant.

FINDINGS OF FACT, CONCLUSION OF LAW, AND ORDER

DONALD RUSSELL, District Judge.

This is an action in Admiralty to recover damages sustained by a barge owned by the Plaintiff, when it struck an allegedly unmarked obstruction in the Ashley River, a navigable stream, near Charleston, South Carolina.

The Defendant is a contracting firm, organized as a corporation under the laws of South Carolina, which in this instance was engaged in the demolition of a railroad bridge over the Ashley River at the point where Plaintiff's barge sustained its damage under contract with the Seaboard Air Line Railroad Company. In the course of such work, it was alleged by the Plaintiff that the Defendant had negligently left unmarked in a navigable part of the river an underwater obstruction, which its barge struck in the course of navigating up the river, causing damage in the amount of $61,361.15 for which it sought judgment.

The Defendant denied any fault or negligence on its part contributing to Plaintiff's damages, and, by way of affirmative defenses, asserted both that Plaintiff's damages were due wholly to its own negligence and, alternatively, that there was mutual fault.

With issue thus joined, the cause came on for trial before me on May 15, 1969. After hearing the testimony and argument of counsel for the parties, I make the following Findings of Fact and Conclusions of Law in compliance with Rule 52, Federal Rules of Civil Procedure:

FINDINGS OF FACT

1. For many years prior to 1968, the Seaboard Air Line Railroad (hereinafter called "Railroad") had maintained a trestle and drawbridge across the Ashley River, constructed under a permit duly issued by the Army Engineers. The portion of the bridge over the river itself rested on nine (9) piers, consisting of piles encased in concrete. The piers were designated by numbers. The pier numbered 1 was closest to the Charleston side of the river and was located on the river's east side. Pier 2 was 110 feet west of pier 1 and constituted the east rest pier for the swing draw span. Pier 3 was the pivot pier, supporting the drawbridge turntable and pier 4 was the west rest pier for the draw span. The drawbridge span, from pier 2 to pier 4 was 260 feet. Piers 5, 6, 7, 8 and 9 completed the support for the trestle across the west side of the river. Pier 5 was 110½ feet west of pier 4. Both rest piers and the center pivot pier were protected by fenders and dolphins, the dolphins generally being located channel-ward of the fenders.

The entire distance from the center of pier 1 to pier 9 was 902 feet. Pier 5 was 481 feet west of pier 1 or the eastern bank of the river, and 421 feet east of pier 9 on the western bank of the river. It was thus not far from being equidistant from both pier 1 and pier 9.

2. U. S. Coast and Geodetic Chart No. 470 corrected to January 29, 1968, was in effect on September 11, 1968. This chart shows the river occupied by the railroad bridge and trestle and reflects the existence of a swing bridge with a horizontal clearance of 100 feet on each side of the pivot pier and a vertical clearance of 9 feet. It, also, gives the depth of the river between piers 1 and 9. It showed that the deepest portion of the Ashley River at the bridge site was west of pier 4, where it indicated a depth of 32 feet.

3. The chart's "dredged" channel at the point where the trestle was located apparently was the area between piers 2 and 4, but, while the bridge was standing, it seems to have been customary for pilots, when not meeting other ships, to favor the left-hand or west side of the drawbridge. In fact, the Defendant offered in evidence certain photographs that included a ship proceeding along such course up the west side of the old drawbridge area.

4. The only navigational aids in the area where the trestle had been are red buoys R6 and R8 on the east or Charleston side of the channel, and black day marker R10 far to the west and north of the channel of the river. Buoy 6 is about 600 yards south of the railroad bridge, Buoy 8 is about 400 yards north of the bridge, and Buoy 9, located as indicated, on the west side of the channel, is about 800 yards north of the trestle. While the trestle itself was in place, it constituted to some extent a navigational aid, since its fender and piling system indicated the dredged channel.

5. As a result of the consolidation of the Seaboard and Coast Line Railroads, it was determined to abandon the Railroad's trestle over the Ashley River; and, in the spring of 1968, a contract was entered into between the Railroad and the Defendant whereby the Defendant was to demolish and remove the railroad bridge including all piers and other obstructions connected therewith, entirely from the river. While requiring no formal permit for such demolition and removal, the Army Engineers notified by letter the Railroad and hence the Defendant that, incident to such removal, it would be necessary to remove all portions of the bridge "to a depth of -32' mlw (mean low water)". The contract between the Defendant and the Railroad also provided that, "The work is to be accomplished without interruption to river traffic. The Contractor shall make arrangements with the Corps of Engineers, Charleston District, for any temporary blockage or occupancy of the navigational channel, and shall arrange with local navigation interests for prior notification of approaching vessels in order to clear the channel for their passage." Under the original permit for the construction of the bridge and subsequent addition or repair permits, the Railroad was required to provide such navigational aids as required by the Coast Guard.

6. The Defendant proceeded promptly with the demolition of the bridge. It apparently began by removing first piers 2, 3 and 4 so as to clear the dredged channel. It then proceeded to other parts of the bridge. As of September 11, 1968, the demolition of all visible portions of the bridge from the bank on the west side of the river to the marsh line on the east side had been removed with the exception of a solitary dolphin where the old drawspan formerly was. This single remaining dolphin consisted of a cluster of seven or eight black creosoted piles and, though unmarked, was clearly visible in the river.

Pier 5 had not been completely removed at this time and some of its formerly concrete-encased piles were protruding above the mud line to a point approximately 11 feet below the surface, representing a submerged obstruction and hazard to all vessels drawing more than 11 feet. There were no buoys or warnings of any kind to indicate submerged obstructions in any part of the river's channel between what had formerly been piers 9 and 1. And at 3:30 p.m. on that date there were no work crews or floating demolition equipment at or near the bridge site. The weather was clear and there were no breaks in the water or other turbulence to indicate any underwater obstruction around the site of the former bridge.

7. At about 3:30 p. m. on September 11, 1968, the tug "Admiral Dewey", towing along its starboard quarter the barge "Martoco #10", was proceeding, with a strong ebb tide running, north up the Ashley River over the area where the trestle had previously been. The tug was 95.7' long, 21' wide and 11.5' deep. The barge was 178.1' long, 38.1' wide and 14.0' deep. Both vessels were owned by and were being operated at the time by the Plaintiff.

The barge was loaded with creosote, which it was transporting to a point some distance beyond the spot where the trestle had been. So loaded, it drew 12' of water with 1' of freeboard.

The combined width of the tug and barge, proceeding in their normal course (which was at a slight sliding angle) was some 78 to 85 feet.

The tug "Admiral Dewey" was manned by a licensed captain, engineer, two deckhands, and a cook, and was equipped with a compass, U. S. Coast & Geodetic Chart No. 470 corrected to 1/29/68 (the latest chart), binoculars, radio and a pair of dividers, all constituting the usual and standard navigational equipment for tugs plying Charleston Harbor and tributaries. The tug captain had been up the Ashley River many times and was familiar with the structure of the bridge and its fender and dolphin system described above, as well as the depths shown on the Coast & Geodetic Chart, including the depth of the area where the barge stranded. He knew of the demolition work being carried out at the site of the old bridge but there was no evidence about the site on September 11, 1968, to indicate that such work was still in progress; indeed, all circumstances pointed to the conclusion that the removal of all obstructions, save for the plainly visible dolphin had been removed.

8. All navigation in these waters is by visual and/or line of sight methods. The tug did not have aboard a pelorus for use by the pilot in locating his position in the river. However, a pelorus was not considered standard equipment for navigating the river and was not customarily used for such purpose. As stated above navigation at the points involved in this accident was customarily by visual or "eye-ball" method.

9. As the tug and barge were proceeding at a speed of about 3 miles per hour along the river at the site of the old trestle, the barge stranded upon the unmarked, submerged remains of the concrete-encased pier 5, which were not visible in any way to anyone on the tug. The depth at the point of stranding was such that, had there been no unmarked obstruction, the barge could have passed over such point easily without any damage and the tug...