Ingram Corporation v. Ohio River Company

• Decision Date: 16 February 1973
• Docket Number: No. 7722.,7722.
• Citation: 382 F. Supp. 481
• Parties: INGRAM CORPORATION et al., Plaintiffs, v. The OHIO RIVER COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

382 F. Supp. 481

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

No. 7722.

United States District Court, S. D. Ohio, W. D.

February 16, 1973.

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

John S. Stith, Cincinnati, Ohio, for defendant.

OPINION & ORDER

DAVID S. PORTER, District Judge.

This is an admiralty case growing out of a collision on the Ohio River between a gasoline tow and a sunken barge with makeshift markings. There are several questions, one being whether the statutory duty of an owner to mark a wreck as required by 33 U.S.C. § 409 (and the regulation contained in 33 C.F.R. § 64.01.1; § 64.01-5; § 62.25-1; and § 62.25-5) can be and is lessened by custom and advice (for want of a better word) from the Coast Guard. Another question is whether notice to the Coast Guard relieves the owner of its statutory duty. Lastly, there are two factual questions, one being whether there was actual or constructive notice of the location of the wreck and its makeshift markings received by the vessel which collided with the wreck. The other is the amount of damages.

These questions were thoroughly briefed after a trial which, for the most part, was by deposition, making this in part a "paper" case, inasmuch as the key witnesses were not present in Court. From the stipulations and the depositions and live testimony the Court makes the following findings of fact in which the parties will be referred to as they are in "shore courts," i.e., plaintiffs and defendant.

FINDINGS OF FACT

1. On November 3, 1968, a Sunday, the M/V William H. Zimmer was proceeding upstream on the Ohio River with 17 barges in tow. The tow was made up three barges wide, five barges long, with one barge on either side of the Zimmer. The tow reached the vicinity of the Markland Lock and Dam, Mile 533, on the Ohio River, at approximately 2:30 a.m. Another tow, the M/V Memphis Zephyr, was either locking through or waiting to lock through ahead of the Zimmer. The Pilot of the Zimmer, Delmar Gardner, a veteran pilot, while waiting to lock through Markland Dam, maneuvered to put the head of the tow up against a sandbar at the mouth of Log Lick Creek on the Indiana side of the river, to hold the tow until the Zimmer received permission from the lock personnel at Markland Lock to lock through. He misjudged his speed, went too fast, and the lead barges became grounded on the sandbar. The Pilot started backing the tow down to get the lead barges off the sandbar and to straighten out the tow. He knew that in such a maneuver wheel wash coming off the aft rudders created a hazard of sinking the barges lashed to the vessel. He backed as slowly as he could and twisted the boat around. During this operation water came up between the Zimmer and Barge OR 740, into the barge, causing it to sink. The barge which sank was 175 feet long and approximately 30 feet wide.

2. The barge sank (entirely in the channel) at approximately Mile 533.2 of the Ohio River. The channel in that vicinity runs near the Indiana shore and is marked with black buoys on the Indiana side of the river and red buoys on the Kentucky side. Outside the channel the river is nine feet or less deep. The Ohio River in that area bends to the east from a northeasterly direction.

The barge sank near one of the red buoys, approximately 50 to 100 feet below and on the channel side of the buoy. The bow of the barge was 50-100 feet from and below the red buoy and 350-400 yards from the Indiana shore. The sunken barge was covered with approximately seven feet of water. See Drawing No. 1.

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The Captain of the Zimmer knew that vessels having a draft of seven feet or more could not pass over the sunken barge without striking it.

3. The barge was marked by the crew of the Zimmer by placing a blue and white empty oil or grease drum on the upstream end and a white Clorox bottle on the downstream end. These markers were tied to either end of the sunken barge with lines. See Drawing No. 2.

4. The grease drum was three feet long and 15-18 inches in diameter. A rope was tied around the grease drum several times before the drum was attached to the end of the sunken barge. The end of the drum was also sealed watertight before it was placed in the water. When dropped in the water the drum floated high in the water with the lines around its middle clearly visible.

5. A line was also attached to the handle of the white Clorox bottle with the cap on and screwed tight. The line was then attached to the lower or down-river end of the barge. The top of the Clorox bottle to which the line was attached was underwater when the bottle was placed in the river. The bottom or lower half of the Clorox bottle was visible. Clorox bottles so tied down with the bottom up float differently from Clorox bottles floating freely. When such bottles float free, they float with the neck up or on their side.

6. Towboats did not at that time, and do not now, customarily carry buoys on board, and these markers were the best available markers. Such markers are commonly used to mark sunken barges, and it was generally known on the river that they are so used.

7. The Master of the Zimmer immediately notified the personnel of the Markland Lock about the sinking of the barge. He asked the lock personnel at Markland Lock to notify the Coast Guard Station in Louisville of the sinking, and the Coast Guard Station was notified early that same morning.

8. The Zimmer, after marking the barge, proceeded around it on the Indiana side of the river and went upstream to lock through Markland Lock at approximately 5:00 a.m.

9. At 9:30 a.m. the same day, the Zimmer docked the remainder of its tow at a rock terminal 18½ miles upstream from the sunken Barge OR 740 and the Captain telephoned the defendant's Port Captain in Wheeling, West Virginia, advising him of the sinking of OR 740, its position, the manner in which it was marked, the position of the Zimmer, and that the Lockmaster had been requested to notify the Coast Guard. He also notified the home office of The Ohio River Company in Cincinnati on the morning of the sinking. The home office of the defendant, The Ohio River Company, is located in Cincinnati, Ohio, approximately 50 miles from the sunken barge.

10. At the time of such notification to the defendant's Port Captain, the capabilities of the Zimmer in reference to the location of the wreck and the location of the home office of the owner were such that the Zimmer could have proceeded to the Defendant's home office at Cincinnati and returned to the location of the wreck with or without its tow prior to the time the sunken barge was hit by the plaintiff, Ingram Corporation's barge Illinois in tow of its motor vessel Nelson M. Broadfoot.

11. Highways on land were open and in use between the home office of the defendant in Cincinnati and the location of its sunken barge OR 740 on the Ohio River, and the driving time from the defendant's home office to the location where the barge sank was 1½ to 2 hours. However, there was no evidence that The Ohio River Company stored any marker buoys or other suitable means of marking wrecks at its home office.

12. At 9:30 a.m. on November 3, 1968, when defendant's Port Captain received information of the sunken barge OR 740, he issued no change in orders for the Zimmer and tow which were to proceed up river away from the location of the wreck.

13. On the morning of November 3, 1968, the defendant received a telegram from the District Commander of the Second Coast Guard District in St. Louis, Missouri, notifying it of the sunken barge and the defendant's legal duty to mark the barge with a buoy or day mark, and stating that if the defendant could not mark the barge as required the Coast Guard would commence marking at the Company's expense.

14. The Ohio River Company's Port Captain in Huntington, West Virginia, sent a telegram to the Commander of the Second Coast Guard District in St. Louis at 2:00 p.m. on November 3, 1968, advising of the sinking of the barge and requesting the Coast Guard to mark the sunken barge with a lighted buoy as soon as possible.

15. The Coast Guard prepared notices to mariners for broadcast over marine radio stations with transmitters at Granite City, Illinois, and Irwin, Pennsylvania.

16. The notice to mariners concerning the sunken barge was No. 571. We find that in all probability it was broadcast that day and the next day over the radio station at St. Louis to which the plaintiff listened. There is no doubt that it was broadcast that day and the next at the radio station in Irwin, Pennsylvania, and by the Coast Guard's own radio station in St. Louis.

17. The defendant was not able to establish that the notice to mariners, i.e., safety broadcast, advising of the existence and location of the sunken barge OR 740 was received aboard the Broadfoot. Such radio communications are far from sure-fire, since they are adversely affected by null (a freak occurrence which happens when the vessel is located where different radio waves come together). Radio communications are also adversely affected by conditions of the ionosphere, jamming, weather, and topography.

18. Lockmasters at McAlpine and Markland Dams were notified of the sunken barge and its position. They were instructed to instruct all traffic of the hazard.

19. Approximately 10 tows passed the sunken barge during the morning, afternoon and evening of November 3, 1968, and on the morning of November 4, 1968, and did so without incident. The lock personnel at both Markland and McAlpine apparently complied with instructions and advised all passing tows of the location of the sunken barge.

20. One of the tows passing the sunken barge was M/V L. Fiore, owned by The Ohio River Company. The Master of that vessel, Captain Howard Garland, was notified at McAlpine Lock on the evening of November 3, 1968 and also by a passing tow of...