The opinion of the court was delivered by: JOHNSTONE
EDWARD H. JOHNSTONE, CHIEF UNITED STATES DISTRICT JUDGE
This admiralty action arose out of a marine casualty which occurred during the early morning hours of March 3, 1981, at the Smithland Locks and Dam near Mile 918.5 of the Ohio River. On that date, the down-river bound M/V ROBERT DARON (hereinafter "DARON") and its tow of six loaded grain barges struck the up-river end of a guard wall causing damage to the barges, their cargoes, and the dam. Walker's Midstream Fuel and Service Company (hereinafter "Walker Midstream") owns the DARON and employed the crew which manned the vessel at the time of the accident. Bunge Corporation, Bunge Towing, Inc., and Marine Office of America Corporation (hereinafter called collectively "Bunge") are respectively the owner, charterer and insurer of the barges that were in the DARON's tow. R&W Marine, Inc. (hereinafter "R&W"), secured the services of the DARON for Bunge upon the latter's request for towage. The United States of America owns and operated Smithland Locks and Dam.
The action commenced with the filing of Walker Midstream's complaint for exoneration or limitation of liability pursuant to 46 U.S.C. Appx. §§ 181-195. In addition to limitation, Walker Midstream seeks indemnification from the United States and, accordingly, has tendered the United States to all claimants as a third-party defendant. Bunge answered Walker Midstream with a claim for damages to its barges and their cargoes, and also filed a third-party complaint against R&W. R&W responded by filing a claim for indemnification or contribution against Walker Midstream and a crossclaim against the United States. The United States filed a separate action against the DARON in rem and Walker Midstream in personam for violation of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 408, 409. That action was subsequently consolidated with the action now before the court. The court has jurisdiction pursuant to 28 U.S.C. §§ 1333, 1345 and 46 U.S.C. Appx. § 740 et seq.; the claims of the parties are within the scope of Rule 9(h) of the Federal Rules of Civil Procedure.
1. Walker Midstream Fuel & Service Company was, at all times relevant to this action, a corporation duly organized and existing under law and was the owner and operator of the M/V ROBERT DARON, a river towboat, which it manned, maintained, victualed and supplied.
2. The M/V ROBERT DARON was, at all time relevant to this action, a steel hulled river towboat approximately 75 feet long, 22 feet wide, and 7 1/2 feet deep. The vessel was powered by a single 149-15 Detroit diesel engine and was propelled by a single propeller with a diameter of 71 inches and a pitch of 54 inches. Although rated for 900 horsepower at 1800 RPMs, the DARON's engine could turn only 1750 RPMs and develop between 675 and 815 horsepower when pushing a tow.
3. Bunge Corporation and Bunge Towing Company, Inc., were, at all times relevant to this action, corporations duly organized and existing under law and were the owners and charterers of six steel-hulled river barges known as Bunge 72B, Bunge 205B, AD204B, Bunge 11, AD757, and Bunge 51. These barges, each measuring about 200 x 35 feet with draughts of 9 feet, comprised the tow of the DARON on March 3, 1981.
4. Marine Office of America Corporation, was, at all times relevant to this action, the underwriter for Bunge.
5. R&W Marine, Inc., was, at all times relevant to this action, a corporation duly organized and existing under law. Although R&W owned and operated several river towboats, it did not own or operate the DARON.
6. The United States of America is a sovereign and was, at all times relevant to this action through the Army Corps of Engineers, the operator of the Smithland Locks and Dam located at approximately Mile 918.5 on the right descending shore of the Ohio River.
7. The Smithland Locks consist of two lock chambers, each 1200 feet long and 110 feet wide, which parallel the Illinois bank of the river. The chamber closest to the shore is known as the land chamber. A guard wall separates the land chamber from the second lock which is known as the river chamber. The Smithland Dam consists of 11 tainter gates, each 110 feet wide, located directly riverward of the lock chambers. A fixed weir connects the dam with the Kentucky shore. This design -- a center dam flanked by a pair of locks and a fixed weir -- funnels the river's flow through the tainter gates in the center dam.
8. Extending upstream from the locks are three guard walls designed to assist tows in lining up for lockage. The longest guard wall (hereinafter "longwall"), approximately 1800 feet in length, is located immediately riverward of river chamber and separates the lock from the dam. A middle wall, approximately 600 feet in length, separates the river chamber from the land chamber. A short wall extends about 1500 feet upstream from the land side of the land chamber.
10. Although the final design of the Smithland Locks and Dam differed from the model constructed at WES -- e.g., the model contained 17 tainter gates, the dam only 11 -- the final design incorporated the recommendation calling for ports in the longwall. The completed wall contains 48 ports, each 20 feet wide and 12 feet high, spaced at 10 foot intervals with their bases at an elevation of 290 feet. The ports are designed to allow the river's current to flow through the lockwall, thereby reducing the outdraft which would exist were the entire flow diverted around the upstream end of the wall. Tests made at WES in 1967 showed that, once Smithland reached its intended pool level, optimal flow conditions would be obtained if all ports were open and that conditions would deteriorate as ports were closed.
11. In 1973, during construction of the Smithland facility, concrete closure panels were placed over 36 of the 48 ports in the longwall. Six ports were completely covered and 30 partially closed. As soon as the locks became operational in September 1979, a full year before completion of construction of the fixed weir, tows encountered outdraft. Outdraft was especially strong whenever the dam was running more than 150 feet of water; that is, when the openings of the 11 tainter gates totaled more than 150 feet.
12. In October and November of 1979, both the Louisville District office of the Corps of Engineers and the United States Coast Guard issued navigation notices warning of an outdraft above the longwall at Smithland Locks and Dam. The notices stated that the current had caused tows to break up on the wall.
13. In February 1980, Wayne Kelly, the Smithland lockmaster, attended a meeting in Louisville Kentucky to discuss navigation problems at the locks and dam. At that meeting, the effect of the port closure panels on outdraft above the lock was discussed at length. Later, in April 1980, the Corps' Louisville District office, which oversees the Smithland facility, requested WES to perform tests on the Smithland model using the port closure configuration described above in paragraph 11. The 1980 tests confirmed the findings made in the 1967 tests: the effectiveness of the locks' design for controlling outdraft deteriorates as ports are closed. The new tests also indicated that the ill effects of port closure would increase as the volume of water flowing through the dam increased.
14. With Completion of the fixed weir in September 1980, the port closure panels no longer served as an aid to construction at Smithland. By January 1, 1981, the dam had achieved a pool elevation of 320 feet above mean sea level, and on January 25 the dam achieved its intended pool of 324 feet. These elevations, coupled with the low volume of water running through the tainter gates at that time, presented ideal conditions for removal of the port closure panels. Nevertheless, the panels remained in place and outdrafts continued to occur.
15. In February 1981, the Ohio River began to rise. On February 22, when the tainter gates were open a total of 182 feet to accommodate the rising water level, lockmaster Wayne Kelly observed a considerable increase in outdraft above the longwall. On February 24, Kelly instructed his lockmen to begin warning downbound vessels that there was an outdraft and suggested that small vessels with heavy tows be assigned the land chamber when locking downstream.
17. On or about February 28, 1981, James M. Fultz, a barge dispatcher for Bunge, telephoned Ray Bledsoe, a boat dispatcher for R&W, to request movement of six barges from Mount Vernon, Indiana to Cairo, Illinois. Bledsoe told Fultz that "R&W would get the barges moved," and that he would call Fultz back when he knew "when and by whom."
18. Bledsoe first checked the availability of R&W's own boats. When he discovered that none of the company craft were available, he began looking for an outside boat. Paul Floyd, another boat dispatcher for R&W, assisted Bledsoe in his search for an outside boat and eventually secured the services of the DARON from Walker Midstream. Bledsoe then called Fultz and informed him that the M/V ROBERT DARON would tow Bunge's barges.
19. Bledsoe and Fultz did not discuss towage rates, for both understood that R&W would bill Bunge for towage in accordance with a published rate schedule. No follow-up letters or cables were exchanged by Bunge and R&W to document the terms of the booking or the responsibilities of the parties. However, in the event of problems or complaints about towage by the outside boat, Bledsoe expected Bunge to contact R&W, not Walker Midstream. Bledsoe's expectation was consistent with the course of dealing between Bunge and R&W: in booking towage, Bunge dealt solely with R&W and had no contact whatsoever with Walker Midstream.
20. On other occasions when R&W secured outside boats to move Bunge's barges, R&W, not the boat owners, billed Bunge. On all such occasions R&W's bills were for "towage", never "brokerage".
21. On or about March 1, 1981, pursuant to its towage contract with R&W, Walker Midstream dispatched the DARON to pick up Bunge's barges. The vessel was manned by its usual crew consisting of two pilots, Jack Slagle and Hughie W. Scott, and two deckhands, Joe D. Egner and David Robinson.
22. Jack Slagle became a licensed river pilot in 1974 and began piloting boats for Walker Midstream in 1978. While at Walker Midstream, Slagle spent the majority of his time piloting the DARON on shuttle runs up and down the Tennessee and Ohio Rivers. Prior to March 1981, he had successfully piloted the vessel through the Smithland Locks on about a dozen occasions, including a run on January 26, 1981, on which he piloted a tow of six loaded barges downstream through the locks without mishap. On that occasion, with the dam running about 20 feet of water, the lockman told Slagle to expect a slight outdraft. The DARON encountered the outdraft as she moved along the longwall to enter the river chamber; however, she had no difficulty getting into the lock.
23. Hughie W. Scott began piloting boats for Walker Midstream in 1975.
24. Joe D. Egner and David Robinson were experienced deckhands who, prior to March 1981, had tended the DARON's tows through the Smithland Locks on numerous occasions.
25. On March 2, 1981, the DARON picked up three loaded grain barges at Newburgh, Indiana and another three at Mount Vernon, Indiana before heading for Cairo, Illinois. The crew arranged the tow in two files of three barges each with the files faced up to the vessel. The lead barge in the port file was a "box", that is, both its bow and stern were square. The bow of the lead barge in the starboard file was raked.
26. The DARON's tow was properly made up and, as stipulated by the parties, the barges were well secured. As further stipulated, Bunge's barges were free from fault and did not contribute to the accident.
27. On March 2, 1981, while the DARON was making up her tow in Indiana, the M/V CHEMICAL EXPRESS, a 2250 h.p. vessel pushing a tow of seven loaded grain barges, was attempting to lock up-river through the river chamber of the Smithland Locks. As soon as the vessel exited the chamber, the pilot encountered an outdraft. The outdraft increased as the vessel moved up-river and ultimately pinned the tow against the longwall. Despite numerous attempts using full power to push the tow off the wall, the CHEMICAL EXPRESS could not escape the outdraft. Eventually, with a lockman's assistance, the vessel backed into the river chamber, locked down-river, and then locked up-river through the land chamber. Upon exiting the land chamber, the vessel hugged the shore and escaped the outdraft.
28. Shortly after Midnight on March 3, 1981, the DARON reached Stewart's Island located approximately five miles up-river from the Smithland Locks and Dam. Upon arriving at the island, Captain Slagle radioed the lock to advise lockman Bill Schnake of his presence and of his intention to navigate down river through the lock. The lockman informed Slagle that another vessel, the M/V A.N. PRENTICE, was using the lock and that he must therefore hold his position until called down. The lockman asked Slagle for the size of his tow and informed him that the dam was running 230 feet of water. In fact, the dam was running 275 feet of water, the greatest volume of water ever funneled through the dam to that time.
29. While waiting at Stewart's Island, Slagle contacted a Walker Midstream dispatcher to inform him of the DARON's estimated time of arrival in Paducah. Shortly after 2:00 A.M., Slagle radioed the Captain of the PRENTICE to inquire about conditions at the lock. The PRENTICE, a 5600 h.p. vessel pushing a tow of nine loaded coal barges and six empties, had just completed locking downstream through the river chamber when Slagle called. The Captain informed Slagle that there was some outdraft at the lock.
30. After the PRENTICE completed lockage, the lockman called the DARON down. The lockman instructed Slagle to use the land chamber and to "come down slow" staying close to the Illinois shore. Before proceeding downstream, Slagle inquired whether anyone was having trouble getting into the lock. The lockman said no. Although it is disputed whether the lockman informed Slagle about the outdraft, the record shows that he neither described the strength of the outdraft nor informed Slagle that, on the previous morning, the outdraft had pinned the up-river bound CHEMICAL EXPRESS against the longwall.
31. When the DARON came abreast of Old Maid's Light, a point on the Illinois shore about a mile above the longwall, Slagle reduced the vessel's headway to less than two miles an hour and the deckhands then went out on the tow to assist with lockage. One deckhand, stationed at the front of the tow, had a walkie-talkie. The other, stationed at the back of the tow, did not.
32. Slagle kept within 75 feet of the Illinois shore as he approached the locks. By "knuckling" the engine in and out of gear, he maintained the vessels speed at less than two miles an hour.
33. While still within 75 feet of the shore and about 250 feet above the longwall, an outdraft began to swing the bow of the tow to port. Slagle was able to bring the tow back in line with the lock by applying starboard rudder. However, at about 200 feet up-river of the longwall, a powerful outdraft began to push the entire tow away from the bank. Slagle came full ahead in an attempt to outrun the outdraft, but the DARON had insufficient power to accomplish this maneuver. When the front of the tow was within 50 feet of the head of the longwall, Slagle reversed engines in an attempt to kill his headway. He then radioed the lockman and instructed him to open the river chamber. Moments later, the lead port barge struck the head of the longwall. The tow broke up and the barges were swept around the longwall into the dam. Although the dam, the barges and their cargoes were damaged, sunk or lost, none of the DARON's crew suffered injury.
35. Based on the facts articulated above, the court finds that two circumstances contributed to the allision of the M/V ROBERT DARON with the longwall: 1) the outdraft above the locks which was augmented by closure of the ports in the longwall, and 2) the inappropriate speed at which the DARON approached the lock, which was due in part to the lockman's inadequate response to Slagle's inquiry and in part to Slagle's misapplication of the information before him. Because legal liability will be apportioned on the basis of the comparative fault of the parties, United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975), the court makes the following allocation of fault: 1) for its failure to remove the closure panels placed over the longwall ports, and for the lockman's inadequate response to Captain Slagle's inquiry about conditions at the lock, The Army Corps of Engineers bears 50% of the fault; and, 2) for Captain Slagle's error in approaching the lock too slowly under the circumstances known to him, Walker Midstream bears 50% of the fault. The legal significance of these findings of fact is discussed below.
1. The M/V ROBERT DARON is liable for damage to the Smithland Locks and Dam, but not for obstructing navigation.
The United States claims that the DARON and its owner, Walker Midstream, are liable under the Rivers and Harbors Act of 1899 (hereinafter "Act") for damage to the Smithland Locks and Dam and for sinking barges in a navigable channel and otherwise obstructing navigation on the Ohio River.
Section 14 of the Act, 33 U.S.C. § 408, makes it "unlawful for any person to . . . alter, deface, destroy, move, injury . . . or in any manner whatever impair the usefulness of any work built by the United States for the preservation and improvement of any of its navigable waters or to prevent floods." Locks and dams are works of the type described in § 408. See e.g., Hines, Inc. v. United States, 551 F.2d 717 (6th Cir. 1977). Consequently, the Smithland Locks and Dam are protected by the Act.
Section 15 of the Act, 33 U.S.C. § 409 (also called the Wreck Act), makes it unlawful "to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels . . . in such manner as to obstruct, impede, or endanger navigation." See Argi-Trans Corp. v. Gladders Barge Line, Inc., 721 F.2d 1005, 1010 (5th Cir. 1983) (negligent sinking without obstruction of navigation does not constitute violation of Wreck Act).
Section 16 of the Act, 33 U.S.C. § 412, provides, in part, that any vessel used in a violation of § 408 or § 409 shall be liable for pecuniary penalties described in 33 U.S.C. § 411, "and in addition thereto for the amount of the damages done by "said vessel, and that said vessel "may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof."
Section 10 of the Act, 33 U.S.C. § 403, prohibits the "creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." Violations of § 403 are punishable by fines and imprisonment described in 33 U.S.C. § 406.
For the past decade, there has been general agreement among the courts that § 408 imposes strict liability on vessels that cause damage to government works. See, e.g., Id. at 724. Further, contributory negligence has not been a defense to liability under § 408 and, absent proof that the government was solely at fault, has not been a basis for apportioning or otherwise reducing damages. United States v. Tug Colette Malloy, 507 F.2d 1019, 1022 (5th Cir. 1975). See also United States v. Central Soya, Inc., 697 F.2d 165, 169 n.4 (7th Cir. 1982); United States v. Logan & Craig Charter Service, 676 F.2d 1216, 1219 (8th Cir. 1982). However, in a recently reported § 408 case, Chotin Transp., Inc. v. United States, 784 F.2d 206 (6th Cir. 1986), the Sixth Circuit Court of Appeals broke with precedent and ordered an apportioning of damages on the basis of comparative fault saying, "we also believe that where the fault of the United States is such as to equal that of [the vessel], a result which as here makes the United States whole (or better than whole) is obviously unfair." Id. at 210 (footnote omitted); see also Id. at 211 n.3. The court has found that the United States bears half the responsibility for the accident at Smithland. Consequently, although the DARON has violated § 418 and Walker Midstream is liable, without the benefit of limitation, for damages (and possibly penalties) to be assessed under § 412, Walker Midstream shall pay no more than 50% of the costs of repairing the locks and dam.
Although both § 409 and § 403 prohibit obstruction of navigable waterways, § 409 addresses actual, present obstructions while § 403 concerns "the potential or capacity to obstruct navigation currently or in the future." Sierra Club v. Morton, 400 F. Supp. 610, 629 (N.D. Cal. 1975), quoted in Bunge Corp. v. Agri-Trans Corp., 542 F. Supp. 961, 971 (N.D. Miss. 1982), modified 721 F.2d 1005 (5th Cir. 1983). A threshold question for establishing the DARON's or Walker Midstream's liability under either statute is whether navigation through or around the Smithland Locks and Dam was obstructed, impeded or endangered as a consequence of the accident.
The record before the court includes numerous depositions from marine surveyors describing the salvaging of the barges that made up the DARON's tow. From that testimony, it appears that several of the barges eventually sank, some above the dam and at least one below it. Although a sunken barge may constitute an obstruction to navigation within the meaning of § 403 or § 409, this court cannot find Walker Midstream liable for creating such obstructions absent evidence that the barges sank in a navigable channel and, in fact, constituted a present or potential impediment to navigation. Because the United States has not developed these essential factual issues on the record, the court finds that the government has not sustained its burden of proof under § 403 and § 409.
2. The United States is not immune to liability.
Walker Midstream has tendered the United States to all parties as a third-party defendant. The Suits in Admiralty Act authorizes suit against the United States in situations where, "if a private person or property are involved, a proceeding in admiralty could be maintained." 46 U.S.C. Appx. § 742. The discretionary functions exception to liability has been read into the Suits in Admiralty Act. Gemp v. United States, 684 F.2d 404, 408 (6th Cir. 1982); In Re Ohio River Disaster Litigation, 579 F. Supp. 1273, 1277-79 ...