Otto Marmet Coal & Mining Co. v. Fieger-Austin Dredging Co.

• Decision Date: 03 June 1919
• Docket Number: 3182-3184.
• Parties: OTTO MARMET COAL & MINING CO. v. FIEGER-AUSTIN DREDGING CO. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

259 F. 435

OTTO MARMET COAL & MINING CO. v. FIEGER-AUSTIN DREDGING CO. ^[1]

Nos. 3182-3184.

United States Court of Appeals, Sixth Circuit.

June 3, 1919

Charles H. Stephens, Sr., of Cincinnati, Ohio, for libelant.

Lowrie C. Barton, of Pittsburgh, Pa., for respondent.

Before WARRINGTON and DENISON, Circuit Judges, and COCHRAN, District judge.

COCHRAN District Judge.

The litigation involved in these appeals grew out of a collision in Manchester chute of the Ohio river, about 73 miles above Cincinnati, near midnight, September 1, 1914, between the towboat Sallie Marmet and her tow, consisting of 13 barges loaded with coal and two flats, owned by the Otto Marmet Coal & Mining Company, which was descending the river, and the dredging plant of the Fieger-Austin Dredging Company consisting of the dredge Northern No. 2, two flats and scow which was anchored therein. Each party claimed that the other was in fault and sought damages for the injuries sustained. The lower court held both to have been in fault and divided the damages between them. Each party has appealed from its decree.

The chute is formed by two islands in the river, just above Manchester, Ohio. One, between 1 1/3 and 1 1/2 miles long and called Manchester Island, hereafter referred to as the Island, lies next the Ohio shore. The other, between one-third and one-half miles long and called the Towhead lies between the upper end of the Island and the Kentucky shore. There is no navigation on the Ohio side of the Island. At the then stage of the water, there was none running between the Island and the Towhead. They were connected by a sand bar. All navigation is next the Kentucky shore, except that in very high water passage may be had between the two islands. It is the portion of the river between the Kentucky shore, and first the Towhead, and then the Island, that is known as Manchester chute. This portion thereof is crooked, narrow, and swift. It has three bends. Two are formed by its course around the Towhead. Above, as you descend, the channel turns to the left-- i.e., towards the Kentucky shore-- and hugs it, until it gets somewhat below the middle of the Towhead, when it turns to the right and runs towards the Island, around the foot of the Towhead. The latter bend is characterized by the witnesses as a very deep bend, and is caused by a rock or gravel bar extending from the Kentucky shore out into the river. The third bend is caused by a sand bar, which puts out from the lower end of the Island, beginning not far from its middle. The channel here turns to the left, or towards the Kentucky shore, and after hugging that shore for a short distance, when below the Island it turns to the right, or towards the Ohio shore, forming a fourth bend opposite the wharfboat at Manchester. The uncontradicted testimony is that this chute is a very bad place for boats, and particularly towboats, with tows, to navigate. It is the worst place on the Ohio river between the mouth of Kanawha river, the point whence the Sallie Marmet started, and Cincinnati, its destination.

The dredging plant was anchored in about the middle of the river, about opposite the middle of the Island, about 1,200 feet below the Towhead. One witness puts it that it was at the foot thereof. It was not far from, if not right at, the beginning of the third bend; i.e., the place where the channel turns to the left, or the Kentucky shore, because of the sand bar putting out from the lower end of the Island. One flat, a repair flat, was on the Kentucky side of the dredge. The other, a fuel flat, and scow, lying tandem, were on the Ohio side. The stern of the dredge was up river. The width of the dredge and two flats was 68 feet, and the length of the fuel flat and scow 176 feet, which was considerably greater than that of the dredge or repair flat. The distance from the north side of the plant to the water's edge at the Island was 400 feet, and from its south side to such edge at the Kentucky shore was 380 feet, thus making the width of the river at this point 848 feet. The width of the navigable water does not appear.

The dredge was engaged in removing the rock bar, heretofore referred to. It began so to do August 28th, and had been so engaged for four days. It had made two cuts, each about 30 feet wide and over 200 feet long up and down the river, and had nearly completed the third cut. The material so removed was mainly sand, and it was about to enter upon the rock bar, if it had not already done so. The dredge was over the outer edge of the rock bar. There was a rise in the river, just when it began not appearing. The stage at Portsmouth, Ohio, 30 or 40 miles above, was 9 feet 8 inches. The depth over the rock bar where the dredge was located was 8 feet 7 inches, and to the north or the Island side thereof it was 15 feet 4 inches. The dredge was not at work at the time of the collision. It did not work at night. It had a single white light on the upper end of the fuel flat-- i.e., on the Ohio side of the dredge-- and another on the lower end of the scow. The former could not be seen from below, nor the latter from above. There was no light on the dredge or repair flat on the Kentucky side. The lights were placed on the Island side, because the deep water was there. The work was being done under a contract with the United States, and there was on the dredge at the time a government inspector, Capt. Howard, who supervised the work. The night was a bright moonlight night.

The rise in the river was sufficient to permit Kanawha coal to be transported from the mouth of that river to Cincinnati, and a fleet of tow boats, with tows in charge, took advantage of it. They began to pass through the chute the evening of September 1st, and by 9 o'clock the next morning 7 at least so passed; the Sallie Marmet being the third. They passed in this order: Florence Marmet, J. T. Hatfield, Sallie Marmet, D. T. Lane, Convoy, Dewey, and Matheson 2d. They all seem to have had substantially the same size of tow, though the evidence discloses nothing as to the Convoy and Dewey. The Florence Marmet passed about 9:30 and the J. T. Hatfield about 10. The Leader, a towboat without a tow, passed about 7 p.m. The Leader and the Florence Marmet passed the dredging plant on the left or Kentucky side, and the J. T. Hatfield on the right or Island side. When the others passed, the plant had been removed to the Kentucky shore. A barge of the Sallie Marmet sunk, straight up and down the river, about 235 feet below where the plant had been and 25 feet nearer the Island. The others passed to the left or Kentucky side of this barge. The Eugene Dana Smith with a tow passed on the morning of September 3d, and it, too, passed to the left, or Kentucky side of the barge. The Leader with a tow of 6 empties passed up on the morning of August 28th, after the plant had been placed, and so did the Val P. Collins with a tow of 14 empties late in the afternoon of August 31st. Each passed to the left or Island side of the plant.

The tow of the Sallie Marmet was arranged in four tiers. The first was composed of three barges and one flat, the latter being on the right or Island side, then the next two of four barges each, and the fourth, next the boat, of two barges and a flat. The barges were 26 feet wide and 126 feet long. This makes the tow 104 feet wide and 504 feet long. The length of the boat does not appear. It is not unlikely that it was sufficient to make the entire length as much as, if not more than, 650 feet. The draft was 6 feet. In the collision the flat in the first tier struck the repair flat of the plant, and the outer barge of the second tier, which was sunk, the dredge. It is likely that, if the repair flat had been removed when it became apparent that a collision was about to take place, it might have been avoided.

In determining who was to blame for the collision, the natural order calls for a consideration first of the part of the operators of the dredging plant in the transaction. The claim is that they were at fault in anchoring at that place at night, and our conclusion is that they were not only at fault in so doing, but grossly so. As heretofore stated, that place was about in the middle of the river. The middle of the river was 6 feet from the Island side of the dredge. It was, however, exactly where, at that stage of water, towboats with tows run; i.e., in what may be termed, as it was by some of the witnesses, the towboat channel. This is established by the testimony of 11 experienced pilots, who saw the dredging plant whilst it was so located, 9 of whom were on the Val P. Collins, Leader, Florence Marmet, J. T. Hatfield, and Sallie Marmet, and 2 of whom were on the Sea Lion, a towboat operated in connection with the dredging plant, then tied to the Kentucky shore, not far away, and 5 other experienced pilots, whose attention was called to its location on the witness stand, and there was no testimony to the contrary.

The claim in behalf of the operators of the dredging plant is that the deep water channel was on the Ohio side thereof. This was undoubtedly the case. But the question here is not where the channel was in extreme low water, when towboats with tows could not navigate; but where did they run when the water was of sufficient height for them to navigate-- i.e where was the towboat channel? And as to that, as stated, it is conclusively established that it was exactly where the dredging plant was located. It is further clearly established by the testimony that the location of the dredging plant at this point endangered the safety of each of the towboats and its tows, which had to pass whilst it was there. It made it a 'dangerous maneuver' for a towboat with such tows as these had to attempt to pass it on either...