The opinion of the court was delivered by: DAWSON
This case concerns damage sustained by the barge Russell-Poling No. 29 at about midnight on December 7, 1954, while being towed northward in the Tremley Point Reach of the Arthur Kill between Staten Island and New Jersey. The bottom of the barge was damaged, apparently because it hit bottom. Liability is asserted against two defendants: (1) the United States is charged with negligence in regard to channel buoys which, it is asserted, were out of position; (2) Conners-Standard Marine Corporation, owner of the tug Corporal, which was towing the barge, is charged with negligent navigation.
Plaintiffs-libelants (hereinafter referred to as Russell), as owners of the barge Russell-Poling No. 29, brought suit on the civil side of the Court under the Federal Tort Claims Act, alleging that the damage to the barge was caused or contributed to by the fact that Buoys No. 20 and No. 22, marking the easterly side of the channel and under the maintenance and control of the Coast Guard, were out of position and thus lured the tow into shallow waters.
Russell also sued the tug Corporal and her owner, Conners-Standard Marine Corp., in admiralty alleging negligent towage. In the action brought on the civil side of the Court the Government filed third-party complaints against Conners-Standard Marine Corp., as operator of the lead tug Corporal, and against Russell Brothers Towing Co., Inc., as operator of the helper tug Russell No. 20. The claim of the Government with respect to the Corporal is that, among other things, her navigator relied exclusively upon Buoys No. 20 and No. 22 in shaping his course up the channel, although navigators had been cautioned by the Coast Guard and by official publications against exclusive reliance upon floating buoys. The claim of the Government against Russell Brothers Towing Co., Inc. and the helper tug Russell No. 20 was withdrawn.
For trial convenience both actions have been consolidated.
The Russell-Poling No. 29 was a 175 foot steel tank barge with drafts of 9' 6' forward and 10' aft. On the evening of December 7, 1954, this barge left Perth Amboy, New Jersey, en route to Haverstraw, New York, up the Arthur Kill between Staten Island and New Jersey, with the tug Corporal towing her on the starboard side. The night was clear with visibility good. The tide was flooding. There was no separate lookout posted on either the barge or the tug Corporal.
Shortly before the incident which gave rise to these actions the tug Russel No. 20 joined the tow as helper tug, being moored to the port side of the barge. Her draft was 10' 6'. Under tow of the two tugs the barge proceeded northward in the Tremley Point Reach Channel of the Arthur Kill. The navigation charts for this waterway indicated that the easterly side of the channel was marked by unlighted (reflective) nun buoy 20 and lighted buoy 22.
The tow proceeded without incident until about midnight when it was about 50 feet to 100 feet west of unlighted nun buoy 20 and a slight jar was felt. The tow did not stop but sheered off slightly to port or westward toward New Jersey. No soundings were taken to determine whether the barge was aground or what her position was. Shortly after this jar the barge was seen to be sinking by the bow. Investigation revealed the forward tank to be filling with water. It was decided to beach the barge further north in the Kill and this was done by pushing the barge on to the west bank of the channel. No cargo was lost. The barge was lightened and thereafter removed to drydock where a survey revealed a puncture in the very center of the bow at the foot, where the plates curve under to join the bottom plates of the tank. Several bottom plates, extending about 30 feet aft of the puncture, were apparently pressed in.
The evidence revealed that in the area adjacent to Buoys 20 and 22 dredging operations had been going on for some time. The dredging operations were carried on by contractors working under the direction of the Army Engineers. Buoy 20 had been moved to facilitate dredging operations early in October 1954, but on November 9, 1954, the buoy had been reset in the position designated on chart No. 285 issued by the United States Coast Guard. On July 13, 1954, Buoy 22 had been reserviced and its location in the proper position was certified to at that time by a tender of the United States Coast Guard.
Immediately after the accident the owners of the barge reported that their barge had struck a submerged object in the vicinity of Buoy 20. On the following day the Army Engineers surveyed the area and found no sunken obstruction. They did find, however, that Buoy 20 was approximately 75 yards slightly to the south of east of its charted position. On the next succeeding day, December 9th, the Coast Guard found this same buoy to be 350 yards southwest of its charted position, or about in the middle of the channel, and the buoy was then reset in its charted position by the Coast Guard. On this same day the Coast Guard found Buoy 22 to be off station about 200 feet toward the Staten Island shore.
The claim of the owners of the barge against the Government is based upon the contention that Buoys 20 and 22 were off their charted position at the time of the accident. The proper position of these buoys was shown on charts issued by the United States Coast Guard to indicate the boundary of the main channel. Charts put in evidence indicated that these buoys marked the shallow water toward the Staten Island shore. Testimony indicated that the bottom in this position was rocky. The buoys were therefore an indication to navigators that vessels should keep to the west of the buoys and thereby avoid the shallow bottom of the channel toward the Staten Island side. The Government recognizes that the buoys were found off their charted position on the day following the accident. The Government contends that this fact, however, does not establish that the buoys were off position at the time of the accident.
The evidence reveals that fourteen hours after the accident Buoy 20 was 75 yards south of east from its charted position and that one day thereafter it was 350 yards northwest. Buoy 22 was also observed to be wide. Despite this apparent drifting each buoy, when repositioned, was found to be still attached to its chain and anchor weighing several tons. What caused these buoys to move and drag their mooring is conjectural. However, the primary evidence on this matter did indicate ...