Ingram Corp. v. Ohio River Co.

• Decision Date: 01 November 1974
• Docket Number: No. 73-1488,73-1488
• Citation: 505 F.2d 1364
• Parties: INGRAM CORPORATION et al., Plaintiffs-Appellees, v. The OHIO RIVER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1364

505 F.2d 1364

INGRAM CORPORATION et al., Plaintiffs-Appellees, v. The OHIO RIVER COMPANY, Defendant-Appellant.

No. 73-1488.

United States Court of Appeals, Sixth Circuit.

Nov. 1, 1974.

John S. Stith, Cincinnati, Ohio, James G. Apple, T. Kennedy Helm, Jr., Louisville, Ky., for defendant-appellant.

William P. Schroeder, Cincinnati, Ohio, for plaintiffs-appellees.

Before WEICK and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit judge.

O'SULLIVAN, Senior Circuit Judge.

We consider the appeal of The Ohio River Company (Ohio), defendant in a suit in admiralty, from a judgment awarding damages to plaintiff, Ingram Corporation (Ingram), in the amount of $51,635.87 and to plaintiff, Texaco, Inc., in the amount of $7,145.01. ¹ These damages allegedly arose as a consequence of a collision between a barge owned by Ingram and a barge owned by Ohio which had sunk and was lying beneath the surface of the Ohio River. The award to Ingram was for the cost of repairs to and the loss of use of its damaged barge and its vessel M/V (motor vessel) BROADFOOT. The award to Texaco was for its loss of a cargo of gasoline which was being transported in the damaged barge owned by Ingram. The involved vessels had, prior to the casualty, been underway upstream between Louisville, Kentucky and Cincinnati, Ohio. The location of Ohio's sunken barge was given as being opposite Mile 533.2. This means that the barge was five hundred thirty-three and two-tenths miles downstream from Pittsburgh, Pennsylvania. A vessel navigating upstream in this area would have Kentucky on its right or starboard side and Indiana on its left or port side.

The case was tried to District Judge David S. Porter sitting in the United States District Court for the Southern District of Ohio, Western Division, at Cincinnati. His Opinion and Order are reported as Ingram Corporation v. Ohio River Company, at 382 F.Supp. 481 (1974).

We affirm.

For their respective causes of action Ingram and Texaco charged first, that the captain of defendant Ohio's M/V (motor vessel) the ZIMMER, navigating upstream in the Ohio River, was negligent, in a maneuver which brought about the sinking of one of its barges and second, that Ohio was negligent in its failure to mark the location of such sunken barge in compliance with relevant rules of navigation.

Defendant's answer, denying the negligence charged to it, asserted that the captain and crew of Ingram's M/V BROADFOOT, also navigating upstream in the Ohio River, were guilty of negligence in proceeding to the point of collision, notwithstanding the knowledge that they had, or should have had, of the location of Ohio's sunken barge.

The tow of the ZIMMER (Ohio's boat) consisted of seventeen barges; fifteen of them were arranged forward of the ZIMMER in five rows of three barges each and there was one barge on each side of the ZIMMER. On Sunday, November 3, 1968, at about 2:30 a.m., this assemblage arrived at the vicinity of Markland Lock as a vessel ahead of it was in the process of locking through, and the ZIMMER had to await the other boat's clearance of the lock. To hold the ZIMMER and its barges from drifting during this period, the ZIMMER'S master decided to secure the front end of the tow against a sandbar on the Indiana side of the river at the mouth of Log Lick Creek. In attempting this action, however, he hit the sandbar so fast and hard that it became difficult to free his tow therefrom, and in an effort to overcome this problem, the ZIMMER'S engines were put in reverse and extra power was applied. As a consequence, the wheel wash from the ZIMMER began to flood the barge attached to the right-- starboard-- side of the ZIMMER, causing it to sink. Thereafter, the sunken barge, identified as the OR 740, was lying some seven to nine feet below the surface of the navigable channel of the river. So positioned, it was an obstruction to navigation and, as such, called for obedience to the provisions of the Wreck Act, 33 U.S.C. 409, and regulations promulgated thereunder. Section 409 provides in part:

'And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidently or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; . . .'

Regulations issued under 409, 33 C.F.R., 64.01, provided:

'64.01-1 General.

(a) The owner of a vessel sunk in the navigable waters of the United States who fails to mark the wreck immediately for the protection of navigation with a buoy or daymark during the day and a light at night may in addition to being in violation of 33 U.S.C. 409, be liable for resulting damage to the public. The owner of a sunken obstruction other than a vessel which creates an obstruction to the navigable capacity of any of the waters of the United States may, in addition to being in violation of 33 U.S.C. 403, be liable for resulting damage to the public.

(b) The Coast Guard is authorized to mark for the protection of navigation any sunken vessel or other obstruction that is not suitably marked. Marking by the Coast Guard does not relieve the owner of any such obstruction from the duty and responsibility suitably to mark the obstruction and remove it as required by law.

64.01-5 Marking by owners.

Buoys, daymarks, and lights established by owners of sunken vessels or other obstructions to mark such obstructions for the protection of navigation shall conform to the lateral system of buoyage prescribed by Subpart 62.25 of this chapter. Such markings shall be maintained until the obstruction is removed or the right of the owner to abandon is legally established and has been exercised.'

The Ohio vessel, the ZIMMER, did not have aboard the buoys needed to comply with Section 409 and after being advised that such buoys were not available at the Markland Lock, its captain-- Rogers-- sought to provide substitute warnings. He found an empty grease can (36 inches in length and 16-18 inches in diameter) and anchored it on the upstream end of the sunken barge. An empty bleach (Clorox) bottle was similarly attached to the downstream end. Captain Rogers then requested that Markland notify the Coast Guard of the sunken barge. He then, at about 5:00 a.m., continued on his way and after locking through the Markland Lock proceeded upstream. At 9:30 a.m., Ohio's Captain Rogers called Ohio's office in Huntington, West Virginia informing it of the sunken barge and the markers which had been used.

The Coast Guard evidently received the news of the sunken barge (probably from Markland Lock) in the morning of November 3, 1968, and soon thereafter issued a notice to mariners which read as follows:

'SAFETY BROADCAST. USCG NOTICE TO MARINERS 2ND DIST NR 571. OR. THE LOCK MASTER AT MARKLAND LOCK AND DAM REPORTED A BARGE SUNK AT MILE 533.0 OHIO RIVER, IT IS MID CHANNEL 300 FT BELOW MARKLAND LIGHT COVERED WITH 6 OR 7 FEET OF WATER AND MARKED WITH A BLUE & WHITE OIL DRUM AT UPPER END AND A WHITE GALLON JUG AT LOWER END. CAUTION IS ADVISED.'

Such messages were generally sent by teletype to two radio stations, one near St. Louis, and the other near Pittsburgh, ² so that they could be periodically broadcast to river craft.

There was evidence that the above maritime notice was, in fact, broadcast periodically on November 3 and 4 on the Pittsburgh station, but the log of the St. Louis station was no longer in existence at the time of trial and there was no positive proof that the maritime notice NR 571, was broadcast from that station.

There was testimony by a man on duty at McAlpine Lock-- one McCarty-- that by radio he advised plaintiff's boat, the BROADFOOT, of the sunken barge and its location, and that he got an acknowledgment of his message from some unidentified member of the BROADFOOT crew. The captain of the BROADFOOT, as well as all members of the crew, however, denied receiving any messages, by radio or otherwise, telling of the sinking of Ohio's barge OR 740 and its location in the river. There was evidence, also, of many circumstances including poor atmospheric conditions and other natural phenomena which could have interfered with the crew of the BROADFOOT actually receiving any radio messages claimed to have been given. The District Judge fully considered all of these factors, and made a factual finding resolving, in favor of plaintiff, the issue of whether the BROADFOOT had received notice of the sinking of Ohio's barge and its location. His opinion sets out the reasoning which led him to that conclusion.

The Coast Guard sent a message to Ohio's office in Cincinnati by which Ohio was informed of its duty to mark the sunken barge. This message, sent on November 3, 1968, at about 9:30 a.m. stated:

'UNCLASSIFIED. INFORMATION HAS BEEN RECEIVED BY THIS OFFICE THAT YOUR BARGE OR 740 HAS BEEN SUNK AT MILE 533.0, OHIO RIVER. THE LAW REQUIRES THIS SUNKEN VESSEL TO BE MARKED BY A BUOY OR DAY MARK DURING THE DAY AND A LIGHT AT NIGHT. YOU HAVE A LEGAL DUTY TO MARK THIS BARGE UNTIL IT IS EITHER REMOVED OR YOUR RIGHT TO ABANDON IT HAS BEEN LEGALLY ESTABLISHED AND HAS BEEN EXERCISED AS PROVIDED IN 33 CFR 67.01. 'IF YOU CANNOT SUITABLY MARK THIS BARGE, THE COAST GUARD WILL UNDERTAKE MARKING AT YOUR EXPENSE IN ACCORDANCE WITH 33 CFR, 64.05. PLEASE ADVISE THIS OFFICE OF YOUR INTENTIONS REGARDING MARKING.'

At about 2:02 p.m., on the same date, the Coast Guard received a reply from Ohio saying: 'Requested sunken barge be marked with lighted buoy as soon as possible.' Subsequently, a Coast Guard cutter was dispatched to the site of the sunken barge, but it had to come from St. Louis, Missouri, and did not arrive at the scene until about three o'clock in the afternoon the next day, November 4th, some 33 hours after the sinking of the OR 740 had...