The opinion of the court was delivered by: SWEET
This admiralty action was the subject of a one day bench trial. Upon the following findings and conclusions and all the prior proceedings, judgment will be entered granting damages to the plaintiffs Elizabeth Turner, Inc. and Penn Maritime, Inc., the owners of the barge CHESAPEAKE, which grounded while it was being towed by the tug LUCKY D owned by defendant A-1 Towing.
The plaintiffs initiated this action against the Tug LUCKY D, in rem, and A-1 Towing, in personam, pursuant to the Court's admiralty jurisdiction within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Plaintiffs filed a summons and complaint on September 6, 1994, alleging that while the barge CHESAPEAKE, loaded with a cargo of asphalt, was in tow of the LUCKY D on a voyage from Chevron Terminal, Perth Amboy, New Jersey up the Hudson River to Chevron Terminal, Troy, New York, between April 6, 1992 and April 8, 1992, it struck bottom and was damaged. Discovery was had, and the action was tried before the Court on September 16, 1996, at which time it was considered finally submitted.
Plaintiffs are, respectively, the owners and operators of the non-self-propelled steel oil tank barge, CHESAPEAKE. The CHESAPEAKE has a length of 236', a beam of 50', and draws when loaded 15' forward and 15 1/2' aft. She has 10 cargo tanks, 5 port and 5 starboard, and has a notched stern for propulsion by a tug. The barge also has equipment to heat its cargo, customarily asphalt, in order to maintain its liquid form. The barge contains no living quarters.
The CHESAPEAKE took on its cargo, liquid asphalt, by filling the aft tanks first and then proceeding to the next tank forward. The unloading was accomplished in the reverse order. In order to accomplish both the loading and the discharge, the crew of the CHESAPEAKE was required to observe the level of asphalt in each tank. Upon discharge, each tank was visually inspected to determine the ullage. Each tank was 16 feet deep, numbered from forward to aft and was equipped with a steel ladder consisting of fifteen rungs affixed to the bottom and accessible through a hatch on the top of the tanks. The level of the asphalt was observed by the use of a flashlight at night or a mirror during the day and measured by the number of rungs covered by the cargo.
On April 6, the CHESAPEAKE was manned by Captain Warren Burke and Greg Brickhouse. She discharged a cargo of asphalt at the Exxon facility on Kill Van Kull and, following the customary procedure, the tanks were viewed by the crew. She was then towed to Morania yard, and then, on April 7, to the Chevron facility at Perth Amboy where another asphalt cargo was loaded. After the loading at Perth Amboy, the CHESAPEAKE proceeded on a voyage to the Chevron terminal at Troy, New York, propelled by the LUCKY D.
The LUCKY D was under the command of Captain Dudley Biddlecomb with David Midgett as mate and a crew consisting of an engineer and a deckhand/cook. To be qualified to serve as a pilot on the Hudson River, a minimum of 12 round trips is required, a requirement which Biddlecomb did not satisfy but Midgett did. There was no pilot on board the LUCKY D during the voyage from Perth Amboy to Troy, and Biddlecomb and Midgett stood six-hour watches on the helm of the LUCKY D. The members of the crew of the CHESAPEAKE remained on the tug while underway and took their meals there.
On April 7, by the time the tug and barge reached Kingston, the tide was near low water and the channel narrowed at the Kingston, Barrytown, and Malden-on-Hudson Reaches to a width of approximately 200 yards with shoals on each side of the reaches as well as at various portions of the channel marked by buoys. At 2350 hours, the tug and tow were at the buoy marking the beginning of the Germantown Reach, also an equally narrow channel, and Biddlecomb's watch was just ending. Biddlecomb was relieved at midnight by Midgett. As the CHESAPEAKE proceeded north to Troy, the water became brackish and the draft of the CHESAPEAKE increased by perhaps as much as one-half foot. No one on the tug was aware of any grounding or difficulty with the barge.
The tug and tow arrived at the terminal in Troy at 0745 hours on April 8, without any untoward incident noted in the log of either the tug or the barge. The barge was unloaded, and Burke observed that the ladder in the number 2 starboard tank was bent and twisted and made a log entry to that effect. On the return trip to New York, Burke intended to check further on the condition of the ladder but failed to do so. The CHESAPEAKE and the LUCKY D made another round trip from New York to Troy on April 10 and 11. again without incident or log entry of any unusual circumstance.
On April 16, 1992, the CHESAPEAKE was taken to the Union Drydock & Repair Company for the American Bureau of Shipping and Coast Guard inspections, and bottom damage was discovered. Surveyor J.P. van Grieken surveyed the hull and the defendants, who had been notified of the damage, were represented at the survey by Ian Appleby of Salvage Association Ltd. Surveyor van Grieken prepared a survey report dated June 8, 1992 in which ...