COMPLAINT OF WALKER'S MIDSTREAM FUEL AND SERVICE CO.

• Decision Date: 04 June 1986
• Docket Number: C-82-0059-P.,Civ. A. No. C-81-0189-P
• Citation: 636 F. Supp. 339
• Parties: In the matter of the Complaint of WALKER'S MIDSTREAM FUEL AND SERVICE COMPANY, a corporation, for Exoneration from, or Limitation of Liability.
• Court: U.S. District Court — Western District of Kentucky

636 F. Supp. 339

In the matter of the Complaint of WALKER'S MIDSTREAM FUEL AND SERVICE COMPANY, a corporation, for Exoneration from, or Limitation of Liability.

Civ. A. Nos. C-81-0189-P, C-82-0059-P.

United States District Court, W.D. Kentucky, Paducah Division.

June 4, 1986.

COPYRIGHT MATERIAL OMITTED

Gary T. Sacks, Goldstein and Price, St. Louis, Mo., W. Pelham McMurry, Paducah, Ky., for Walker's Midstream.

James A. Harris, Jr., Paducah, Ky., W.J. Larzelere, Jr., New Orleans, La., for R & W Marine, Inc.

Ann D. Nunn, Louisville, Ky., James A. Lewis, for the U.S.

Frank Thacktson, Greenville, Miss., Richard C. Roberts, Paducah, Ky., for Bunge Corp.

MEMORANDUM OPINION

JOHNSTONE, Chief Judge.

This admiralty action arose out of a marine casualty which occurred during the early morning hours of March 3, 1981, at the Smithland Locks and Dam near Mile 918.5 of the Ohio River. On that date, the downriver bound M/V ROBERT DARON (hereinafter "DARON") and its tow of six loaded grain barges struck the upriver end of a guard wall causing damage to the barges, their cargoes, and the dam. Walker's Midstream Fuel and Service Company (hereinafter "Walker Midstream") owns the DARON and employed the crew which manned the vessel at the time of the accident. Bunge Corporation, Bunge Towing, Inc., and Marine Office of America Corporation (hereinafter called collectively "Bunge") are respectively the owner, charterer and insurer of the barges that were in the DARON's tow. R & W Marine, Inc. (hereinafter "R & W"), secured the services of the DARON for Bunge upon the latter's request for towage. The United States of America owns and operated Smithland Locks and Dam.

The action commenced with the filing of Walker Midstream's complaint for exoneration or limitation of liability pursuant to 46 U.S.C. §§ 181-195. In addition to limitation, Walker Midstream seeks indemnification from the United States and, accordingly, has tendered the United States to all claimants as a third-party defendant. Bunge answered Walker Midstream with a claim for damages to its barges and their cargoes, and also filed a third-party complaint against R & W. R & W responded by filing a claim for indemnification or contribution against Walker Midstream and a crossclaim against the United States. The United States filed a separate action against the DARON in rem and Walker Midstream in personam for violation of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 408, 409. That action was subsequently consolidated with the action now before the court. The court has jurisdiction pursuant to 28 U.S.C. §§ 1333, 1345 and 46 U.S.C. § 740 et seq.; the claims of the parties are within the scope of Rule 9(h) of the Federal Rules of Civil Procedure.

By order of the court, the case was bifurcated for separate proceedings on the issues of liability and damages. The liability portion of the case was tried before the court without a jury on August 22-29, 1983. The court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties, and being otherwise sufficiently advised, hereby makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. Walker Midstream Fuel & Service Company was, at all times relevant to this action, a corporation duly organized and existing under law and was the owner and operator of the M/V ROBERT DARON, a river towboat, which it manned, maintained, victualed and supplied.

2. The M/V ROBERT DARON was, at all time relevant to this action, a steel hulled river towboat approximately 75 feet long, 22 feet wide, and 7½ feet deep. The vessel was powered by a single 149-15 Detroit diesel engine and was propelled by a single propeller with a diameter of 71 inches and a pitch of 54 inches. Although rated for 900 horsepower at 1800 RPMs, the DARON's engine could turn only 1750 RPMs and develop between 675 and 815 horsepower when pushing a tow.

3. Bunge Corporation and Bunge Towing Company, Inc., were, at all times relevant to this action, corporations duly organized and existing under law and were the owners and charterers of six steel-hulled river barges known as Bunge 72B, Bunge 205B, AD204B, Bunge 11, AD757, and Bunge 51. These barges, each measuring about 200 × 35 feet with draughts of 9 feet, comprised the tow of the DARON on March 3, 1981.

4. Marine Office of America Corporation, was, at all times relevant to this action, the underwriter for Bunge.

5. R & W Marine, Inc., was, at all times relevant to this action, a corporation duly organized and existing under law. Although R & W owned and operated several river towboats, it did not own or operate the DARON.

6. The United States of America is a sovereign and was, at all times relevant to this action through the Army Corps of Engineers, the operator of the Smithland Locks and Dam located at approximately Mile 918.5 on the right descending shore of the Ohio River.

7. The Smithland Locks consist of two lock chambers, each 1200 feet long and 110 feet wide, which parallel the Illinois bank of the river. The chamber closest to the shore is known as the land chamber. A guard wall separates the land chamber from the second lock which is known as the river chamber. The Smithland Dam consists of 11 tainter gates, each 110 feet wide, located directly riverward of the lock chambers. A fixed weir connects the dam with the Kentucky shore. This design — a center dam flanked by a pair of locks and a fixed weir — funnels the river's flow through the tainter gates in the center dam.

8. Extending upstream from the locks are three guard walls designed to assist tows in lining up for lockage. The longest guard wall (hereinafter "longwall"), approximately 1800 feet in length, is located immediately riverward of river chamber and separates the lock from the dam. A middle wall, approximately 600 feet in length, separates the river chamber from the land chamber. A short wall extends about 1500 feet upstream from the land side of the land chamber.

9. The Army Corps of Engineers began planning the Smithland Locks and Dam in the 1960s. The Corps' Nashville District was responsible for the initial design. Refinements of the design to ensure proper navigational conditions at the locks and dam were achieved by use of a scale model of the facility which was constructed at the Corps' Waterways Experiment Station (hereinafter "WES") located near Vicksburg, Mississippi. After studying the model, designers concluded that openings, or "ports", in the longwall would reduce the effects of outdraft on upstream approaches to the locks. Outdraft, which is also called "set", is the lateral current created when a river's flow is diverted around a stationary object. Outdraft tends to increase as current strengthens.

10. Although the final design of the Smithland Locks and Dam differed from the model constructed at WES — e.g., the model contained 17 tainter gates, the dam only 11 — the final design incorporated the recommendation calling for ports in the longwall. The completed wall contains 48 ports, each 20 feet wide and 12 feet high, spaced at 10 foot intervals with their bases at an elevation of 290 feet. The ports are designed to allow the river's current to flow through the lockwall, thereby reducing the outdraft which would exist were the entire flow diverted around the upstream end of the wall. Tests made at WES in 1967 showed that, once Smithland reached its intended pool level, optimal flow conditions would be obtained if all ports were open and that conditions would deteriorate as ports were closed.

11. In 1973, during construction of the Smithland facility, concrete closure panels were placed over 36 of the 48 ports in the longwall. Six ports were completely covered and 30 partially closed. As soon as the locks became operational in September 1979, a full year before completion of construction of the fixed weir, tows encountered outdraft. Outdraft was especially strong whenever the dam was running more than 150 feet of water; that is, when the openings of the 11 tainter gates totaled more than 150 feet.

12. In October and November of 1979, both the Louisville District office of the Corps of Engineers and the United States Coast Guard issued navigation notices warning of an outdraft above the longwall at Smithland Locks and Dam. The notices stated that the current had caused tows to break-up on the wall.

13. In February 1980, Wayne Kelly, the Smithland lockmaster, attended a meeting in Louisville Kentucky to discuss navigation problems at the locks and dam. At that meeting, the effect of the port closure panels on outdraft above the lock was discussed at length. Later, in April 1980, the Corps' Louisville District office, which oversees the Smithland facility, requested WES to perform tests on the Smithland model using the port closure configuration described above in paragraph 11. The 1980 tests confirmed the findings made in the 1967 tests: the effectiveness of the locks' design for controlling outdraft deteriorates as ports are closed. The new tests also indicated that the ill effects of port closure would increase as the volume of water flowing through the dam increased.

14. With Completion of the fixed weir in September 1980, the port closure panels no longer served as an aid to construction at Smithland. By January 1, 1981, the dam had achieved a pool elevation of 320 feet above mean sea level, and on January 25 the dam achieved its intended pool of 324 feet. These elevations, coupled with the low volume of water running through the tainter gates at that time, presented ideal conditions for removal of the port closure panels. Nevertheless, the panels remained in place and outdrafts continued to occur.

15. In February 1981, the Ohio River began to rise. On February 22, when the tainter gates were open a total of 182 feet to accommodate the rising water level,...