United States v. Chesapeake & Delaware Shipyard, Inc.

• Decision Date: 23 January 1974
• Docket Number: Civ. A. No. 20291.
• Citation: 369 F. Supp. 714
• Parties: UNITED STATES of America, Plaintiff, v. CHESAPEAKE & DELAWARE SHIPYARD, INC., Defendant.
• Court: U.S. District Court — District of Maryland

369 F. Supp. 714

UNITED STATES of America, Plaintiff, v. CHESAPEAKE & DELAWARE SHIPYARD, INC., Defendant.

Civ. A. No. 20291.

United States District Court, D. Maryland.

January 23, 1974.

COPYRIGHT MATERIAL OMITTED

George Beall, U. S. Atty., for the District of Maryland, Baltimore, Md., and Alfred H. O. Boudreau, Jr., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for plaintiff.

David L. Bowers, Harris & Bowers, Baltimore, Md., for defendant.

WATKINS, Senior District Judge.

This suit by the United States, plaintiff, against Chesapeake & Delaware Shipyard, Inc., defendant, is brought under the authority of 33 U.S.C. § 409 of the Rivers and Harbors Act of 1899 (hereinafter referred to as the "Wreck Act")¹ for costs incurred by the United States in raising and removing defendant's sunken barge from the navigable channels of the Chesapeake and Delaware Canal. During a non-jury trial, the government alleged that, under the theory of res ipsa loquitur, an inference of negligence on the defendant's part is warranted from the facts, and that, consequently, § 409 of the Wreck Act permits full recovery from the defendant. The defendant has quite properly conceded that the barge in question was sunk in the "navigable channels" of the C & D Canal and constituted a menace to navigation (Transcript 6, 17, 36), and that a finding of "negligence" by the Court would render it liable to the United States under § 409 for costs incurred in removing the barge. (Transcript 48). By admitting the applicability of § 409 (if negligent), the defendant apparently concedes that its sunken barge constitutes a "vessel" within the meaning of that section. The defendant does, however, contend that the doctrine of res ipsa loquitur either is inapplicable on the facts or, if applicable, that the plaintiff has failed to prove the requisite elements in order for the doctrine to be invoked.

Briefly, the facts of the case are as follows. Defendant's shipyard is situated on the northern side of the Chesapeake and Delaware Canal, approximately one-half mile west of the Chesapeake City Bridge. Between the evening of September 23, 1967, and the morning of September 24, 1967, defendant's intentionally sunken wooden barge, measuring ninety feet long, thirty feet wide and nine feet from keel to gunwhale, disappeared from its moorings at defendant's shipyard and came to rest under the waters of the Chesapeake and Delaware Canal. (Transcript 6).

One of the defendant's employees noticed that the barge was missing (around 8:00 a. m. of Sunday, September 24th), and reported this fact to defendant's manager, who in turn informed defendant's president. (Transcript 8, 45). Defendant conducted a fruitless search and then reported the barge's disappearance to the United States Army Corps of Engineers. After locating the sunken barge in the channel of the C & D Canal, approximately one hundred twenty-five to one hundred fifty feet from its original resting point on the bottom (Transcript 3, 24), the Corps requested that defendant raise and remove the barge. Defendant's president declined, stating that it was abandoning the barge. (Transcript 6). The Corps of Engineers subsequently removed the barge from the navigable channel at a cost of $13,555.37. The reasonableness of these expenses is not in question here.

While at one point defendant had employed the barge as a derrick and to transport pilings, sometime during 1966 the use of the barge was no longer required and the defendant sunk it at its mooring point. (Transcript 8). The barge had been scuttled because it was easier to hold fast with lines when it was aground than when floating — e. g., it was less susceptible to the wake and suction caused by passing vessels. (Transcript 37, 38). According to the testimony of both defendant's president and its manager, the barge could easily have been made seaworthy again by pumping and making some minor repairs such as caulking. (Transcript 35, 46).

While aground, and for several years prior to its sinking by the defendant, the barge was secured fast by four lines: one metal line of an inch or more in diameter, running from the barge to a tree on the land; and three nylon or manilla lines of one to two inches in diameter, one line running from the barge to a "deadman" and two lines to two "dolphins" or pilings. Although the lines were apparently susceptible to deterioration and weakening, both defendant's president and its manager testified that they did not personally check the lines; the president stated further that he did not direct anyone else to investigate for fraying, and did not know whether the lines had ever been replaced. (Transcript 13, 36, 37). This responsibility tacitly rested upon defendant's tugboat captains (Transcript 40, 41, 43, 44). There was no scheduled checking of the lines. (Transcript 44).

No direct evidence was offered as to how the barge, while resting on the bottom, managed to escape its moorings. The government introduced unrefuted evidence that weather conditions were normal and that there were no storms or unusual gusts of wind during the period in which the barge disappeared. (Transcript 18, 19). Although the defendant offered some proof that the wake and suction caused by large passing ships could have wrenched the barge loose from its lines and has in the past wrecked havoc on other moored vessels, there was no evidence that the barge had ever broken loose from its moorings before. (Transcript 30, 37). Nor was there any evidence, direct or in the form of damage to other vessels or property within the immediate vicinity, which would indicate that a large passing ship might have been responsible for the barge's breaking away. Curiously, both defendant's president and its manager testified that they could not remember checking the lines after the loss in order to endeavor to ascertain the cause of the vessel's disappearance.

Since the defendant has admitted that its barge, sunk in the navigable channel of the Chesapeake and Delaware Canal, constituted an obstruction to navigation, there are three issues before the Court: first, whether defendant's barge constitutes a "vessel, or other craft" within the meaning of § 409 of the Wreck Act (33 U.S.C. § 409); second, whether defendant "negligently" sunk his barge in navigable channels; and third, whether defendant is liable to the government under § 409 of the Wreck Act for the costs incurred by the United States in raising and removing the sunken barge. The defendant has properly conceded that, if the barge is a "vessel", and if he is guilty of negligence, he is clearly liable to the United States under § 409. (Transcript 48).

I.

There is little doubt that a barge constitutes a "vessel" within the meaning of 33 U.S.C. § 409. In re Eastern Transportation Co., 102 F.Supp. 913, 916 (D.C.Md.), aff'd sub nom. Ottenheimer v. Whitaker, 198 F.2d 289 (4 Cir. 1952). See, United States v. Moran Towing & Transportation Co., 374 F.2d 656, 663 (4 Cir. 1967) (vessels or other crafts "encompass, generally, all objects designed and intended to float on navigable waters which, when sunk, would create an obstruction similar to that of a sunken vessel."); In re Midland Enterprises, Inc., 296 F.Supp. 1356, 1360 (S.D.Ohio 1968) (wherein a barge was held to be within the meaning of "vessel" as regards 46 U.S.C.A. § 183). See also, Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); Zubik v. United States, 190 F.2d 278 (3 Cir. 1951); In re Marine Leasing Services, Inc., 328 F.Supp. 589 (E.D.La.1971). The mere fact that the barge had been sunk before its disappearance does not alter the conclusion. Humble Oil & Refining Co. v. The Tug Crochet, 422 F.2d 602 (5 Cir. 1970). Moreover, there was unqualified testimony by both defendant's president and its manager that the sunken barge was capable of being raised and used once again. That fact alone would satisfy the definition of a "vessel" in United States v. Moran Towing & Transportation Co., supra at 663 of 374 F.2d.²

II.

The second issue is whether or not the defendant was negligent in allowing its vessel to sink and obstruct the navigable channels of the Chesapeake and Delaware Canal. On the facts set out above, this Court concludes that, as explained below, the doctrine of res ipsa loquitur is applicable. Fauntleroy v. Argonaut S. S. Line, Inc., 27 F.2d 50, 51 (4 Cir. 1928).

In order for the injured plaintiff to invoke res ipsa loquitur — which literally means "the thing speaks for itself," Sweeney v. Erving, 228 U.S. 233, 33 S. Ct. 416, 57 L.Ed. 815 (1913)—three elements must be shown: (1) that the injured party is without fault (i.e., has not been contributorily negligent), (2) that the object causing the injury is under the exclusive control of the defendant, and (3) that ". . . the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care." San Juan Co. v. Requena, 224 U.S. 89, 99, 32 S.Ct. 399, 401, 56 L.Ed. 680 (1912); Jesionowski v. Boston & Maine Railroad Co., 329 U.S. 452, 457, 67 S.Ct. 401, 91 L.Ed. 416 (1947); Johnson v. United States, 333 U.S. 46, 48-49, 68 S.Ct. 391, 92 L.Ed. 468 (1948).

Applying the facts of the present case to these criteria, it is clear that the standard for invoking the doctrine has been met. Johnson v. United States, supra; Fauntleroy v. Argonaut S. S. Line, Inc., supra; Atlantic & Gulf Stevedores, Inc. v. Skibs A/S Danmotor, 342 F.Supp. 837 (S.D.Tex.1971); California v. S. S. Bournemouth, 318 F. Supp. 839 (C.D.Cal.1970). There has been no allegation that the government contributed in any way whatsoever to the sinking of the barge or its breaking away from the securing lines. Nor is there any question but that the barge was exclusively within the dominion and control of the defendant. The defendant whose shipyard was surrounded by a fence owned the barge and was solely responsible for its...