Inland Tugs Co. v. Ohio River Co.

• Decision Date: 08 June 1983
• Docket Number: Nos. 81-5742,81-5808,s. 81-5742
• Citation: 709 F.2d 1065
• Parties: INLAND TUGS COMPANY and American Barge Line Co., Plaintiffs-Appellees, Plaintiffs-Appellants, v. The OHIO RIVER COMPANY, Defendant-Third Party Plaintiff-Appellant, and United States of America, Defendant-Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1065

709 F.2d 1065

1984 A.M.C. 1943

INLAND TUGS COMPANY and American Barge Line Co., Plaintiffs-Appellees, Plaintiffs-Appellants, v. The OHIO RIVER COMPANY, Defendant-Third Party Plaintiff-Appellant, and United States of America, Defendant-Third Party Defendant-Appellee.

Nos. 81-5742, 81-5808.

United States Court of Appeals, Sixth Circuit.

Argued March 9, 1983.

Decided June 8, 1983.

William P. Schroeder (argued), Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, W. Scott Miller, Jr., Miller & Miller, Louisville, Ky., for Ohio River Co.

John K. Gordinier (argued), Wallace, Rice & Gordinier, Louisville, Ky., for Inland Tugs, et al.

Alexander Taft, U.S. Atty., Hancy Jones, III, Asst. U.S. Atty., Louisville, Ky., Thomas L. Jones (argued), Trial Atty., Torts Branch, U.S. Dept. of Justice, Washington, D.C., for U.S.

Before EDWARDS, Chief Circuit Judge, KRUPANSKY, Circuit Judge, and SWYGERT, Circuit Judge. ^*

KRUPANSKY, Circuit Judge.

This admiralty action joins legal inquiry into the Coast Guard's exposure to liability, either primary or secondary, for injuries and damages resulting from its failure to mark a privately owned and non-abandoned sunken vessel. On October 24, 1978, Barge OR-39, while in tow of the M/V Pat Chotin, sank for reasons unknown in the navigable channel of the Ohio River at Mile 769.4; both Barge OR-39 and its towing vessel were owned and operated by the Ohio River Company. On that same date the sunken barge was located and marked with a red aid to navigation buoy with the letters WR and attached light by the United States Coast Guard buoy tender Chippawa at the request of Ohio River Company. On October 26, 1978, the services of Owensboro Harbor Service were engaged by Ohio River Company to monitor and verify the position of the buoy marking Barge OR-39 twice daily until salvage operations could be initiated. These services were performed until November 15 at which time Columbia Marina Services commenced salvage operations. By November 28, 1978 substantially all of the cargo had been removed from the barge although it had not been refloated. Inclement weather and river conditions caused the salvage operation to be suspended.

At a date between December 10, 1978, the last date upon which the salvors visually observed the location of the sunken barge, and December 26, 1978, the Coast Guard buoy marking the site of the sunken hulk was carried off-station. The Ohio River Company owned marking buoys and other marking aids to navigation which were available within the geographical vicinity of the sunken barge and it could have re-marked the barge within several hours after having received notice that the original buoy had been carried off its station. On December 26, 1978, the Company, instead of relocating the buoy marking its wreck, elected to inform the Coast Guard at Owensboro, Kentucky that Barge OR-39 was no longer buoyed. The following day, December 27, 1978, the Coast Guard advised Ohio River Company that the barge would be re-buoyed no later than the morning of December 28, 1978, and further represented that Ohio River Company would be contacted if circumstances warranted. Ohio River Company made no further efforts to insure the marking of the sunken barge or to determine if the Coast Guard had in fact re-buoyed the wreck.

The Coast Guard never reset the buoy. Rather, from its erroneous mathematical computations, it determined that, although the river was falling, approximately 25 feet of clearance existed between the barge and the surface of the river which afforded sufficient clearance for typical vessels with maximum drafts of 9 feet to safely traverse the area where the hulk of Barge OR-39 rested on the bottom of the river. The actual water clearance between the wreck and the river's surface was, however, less than 9.5 feet. The Coast Guard did not advise the Ohio River Company of its election to defer marking the wreck.

The tug M/V Owen Childress, owned by the Inland Tugs Company, operated a regular run which traversed the river in the area of the sunken barge on an average of every two days. Its pilot, DeWayne McCreery (McCreery), and regular captain, Louis Enlow (Enlow), were aware of the sunken barge and had circumnavigated the wreck approximately 30 times between October 24, 1978, the date upon which the barge sank, and December 31, 1978. On December 27, 1978 when the Owen Childress was passing the wreck, McCreery observed that the Coast Guard buoy was no longer on station. This information was conveyed to Enlow. On December 28 relief captain Robert Haynes (Haynes) boarded the Owen Childress to relieve captain Enlow. Haynes had last circumnavigated the sunken barge approximately 30 days earlier at which time the marking buoy for the sunken barge had been on station. On December 28 neither McCreery nor Enlow notified Haynes that the wreck lay unmarked although both were afforded ample opportunity to do so. At approximately 7:00 a.m. on December 31, 1978, the Owen Childress, with 14 empty barges in tow, was downwind from Madison, Indiana under the command of Haynes. As Haynes approached the area where he remembered the wreck to be positioned with his tow of 14 empty barges ahead of his vessel, he proceeded to push his tow down river on the assumption that the sunken barge was still buoyed at the position he remembered it to be. Since it was just beginning to break day and the visibility was limited by haze and fog, he backed his engines to lose headway, disengaged the engines and proceeded to float downstream with the current estimated to be at 4 to 5 m.p.h. while visually probing the river ahead for the marking buoy via radar and carbon searchlights. It was during this maneuver that the Owen Childress struck the unmarked wreck and sank with the loss of life to Albert Vandenabeele.

Inland Tugs Company initiated this admiralty action against the Ohio River Company for damages resulting from the loss of the Owen Childress. Ohio River Company filed a third-party complaint against the United States seeking indemnity as predicated upon the Coast Guard's negligent conduct in failing to mark the barge. Inland Tugs Company, by amended complaint, also asserted a similar cause of action against the United States. The district court, sua sponte, concluded that the record failed to join a cognizable cause of action against the United States and entered summary judgment accordingly. Following trial, Ohio River Company was adjudged to have been solely liable for the collision, and was assessed damages of $1.3 million. Both Inland Tugs Company and Ohio River Company appealed from the district court's entry of summary judgment in favor of the United States. Ohio River Company further appealed the entry of final judgment.

The Wreck Act, 33 U.S.C. 409 (1899), ¹ charges the owner of a sunken vessel with the duty to immediately secure and maintain a marking and diligently prosecute removal of the wreck:

* * * And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally 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; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently...

The marking mandates a lateral system of buoyage established by regulations ² and failure to discharge Wreck Act obligations exposes the owner to liability for resulting damage to the public. ³

Ohio River Company submits that it was relieved of its Wreck Act obligation to mark the sunken barge when the Coast Guard on October 24, 1978 exercised its discretion to secure a marking under 14 U.S.C. Sec. 86 which pertinently provides:

Sec. 86. Marking of obstruction.

The Secretary may mark for the protection of navigation any sunken vessel or other obstruction existing on the navigable waters ... in such manner and for so long as, in his judgment, the needs of maritime navigation require. The owner of such an obstruction shall be liable to the United States for the cost of such marking until such time as the obstruction is removed or its abandonment legally established or until such earlier time as the Secretary may determine. * * * This section shall not be construed so as to relieve the owner of any such obstruction from the duty and responsibility suitably to mark the same and remove it as required by law.

Ohio River Company argues that (1) its Wreck Act duty to mark was replaced with a duty to reimburse the United States for expenditures and (2) it was statutorily precluded from establishing its own independent marking by the dictates of 14 U.S.C. Secs. 83 ⁴ and 84 ⁵ which foreclose private entities from interfering with aids to navigation effected by the Coast Guard. See, e.g.: The Plymouth, 225 F. 483, 484-85 (2d Cir.1915), cert. denied, sub nom. LeHigh & Wilkesbarre Coal Co. v. Hartford & New York Transportation Co., 241 U.S. 675, 36 S.Ct. 725, 60 L.Ed. 1232 (1916) (The owner "could not have moved the [Coast Guard] buoy or interferred with it in any way, whether it thought it properly placed or not, and if [the owner] had itself buoyed the wreck the [Coast Guard] ... could have changed the location of the buoy or replaced it with another"); Berwind-White Coal Mining Co. v. Pitney, 187 F.2d 665, 669 (2d Cir.1951) ("the private owner cannot interfere with the manner in which the government agency uses its discretion in the manner of marking").

Ohio River Company further asserts that it was relieved of its Wreck Act obligation to maintain the Coast Guard marking since the latter was charged under 14 U.S.C. Sec. 2 with the statutory responsibility to maintain all aids to navigation including discretionarily established wreck...