PELICAN MARINE CARRIERS, INC.

v.

CITY OF TAMPA

JENKINS, United States Magistrate Judge.

THIS CAUSE comes on for consideration of a diversity action for damages resulting from an allision involving the American flagged vessel,

Louisiana Brimstone (“Louisiana”),

which occurred

on the

westerly side of Sparkman Channel in Hillsbor-ough County Florida on August 29, 1989. The parties consented to proceed before the Magistrate Judge pursuant to Title 28, United States Code, Section 636(c) and Fed. R.Civ.P. 73.

Summary judgment was granted in favor of defendants on July 30, 1991 on Count I which asserted claims of public and private nuisance and a private cause of action under Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401

et seq.

(Dkt. 52).

The case proceeded to a non-jury trial on November 25 and 26, 1991 on Count II of the amended complaint which asserted a claim of negligence against the City of Tampa and Misener Marine Construction, Inc. These findings of fact and conclusions of law are submitted pursuant to Rule 52, Fed.R.Civ.P. I

Findings of Fact

1. The

Louisiana

is an American flagged tanker-type vessel measuring 612 feet in length and 80 feet in width, and having a gross tonnage of 13,199. The

Louisiana

is owned by the plaintiff, Pelican Marine Carriers, Inc. (“Pelican”), a corporation organized under the laws of Delaware and having its principal office for the transaction of business in a state other than Florida.

2. Defendant Misener Marine Construction, Inc. (“Misener”) is a corporation organized under the laws of Florida and doing business in the State of Florida.

3. Defendant City of Tampa (“The City”) is a governmental entity organized under the Constitution and laws of the State of Florida.

4. Sparkman Channel, a navigable waterway of the United States, is 400 feet in width and runs generally in a north-south direction. The published depth of the channel is 34 feet at mean low water. 5. In October, 1948, the City applied to the United States Corp of Army Engineers (the Corps) for a permit to construct a 48-inch sewer line under Sparkman Channel from Seddon Island (Harbor Island) to the mainland at Hooker’s Point. The permit was granted on November¹, 1949 and incorporates drawings by the City which show the intended construction of the sewer line. The permit has never been amended or altered, and there have been no subsequent permits issued to the City in connection with the sewer line under Spark-man Channel.

6. On August 29, 1989, the

Louisiana

struck a portion of the sewer line which damaged the vessel’s hull.

7. The permit for the sewer line issued by the Corps required that the top of the sewer pipe be no greater than forty (40) feet below mean low water for a full channel width of 400 feet and that the sewer

*849

line not constitute an unreasonable interference with navigation.

8. When constructed, however, the sewer line was at a depth of only 34.3 feet below mean low water as it transected the 400 foot channel before starting to rise towards the shoreline. Outside the channel, the slope of the banks and the sewer line was approximately¹:3 (one foot vertical rise for every three feet horizontal distance).

9. In 1958, the sewer line was damaged during a Corps dredging operation to deepen Sparkman Channel. On December 9, 1958, the City requested permission from the Corps to construct a concrete bulkhead on the Seddon Island side of the sewer line to protect the sewer line from future damage.

10. In a letter to the City dated December 18, 1958, the Corps stated that if the sewer line “had been placed in full accordance with the permit dated November¹, 1949, it is probable that no damage [from the dredging operation] would have been encountered.” The letter noted the disparity between the pipe elevation specified in the permit — 40 feet below mean low water — and as shown by probings by the Corps taken before the dredging operation — 34.3 feet below mean low water. 11. The Corps’ letter also noted that “concrete boxes may be present at various points along the pipe and that the elevation of these boxes may be even greater than the elevation determined by the probings shown on the attached sheet.” The letter warned that the proposed concrete bulkhead would be a “menace to navigation in the sense that any vessel which for any reason veered outside of the strict limits of the channel could well be damaged,” and stated that the “best method of protection” would be to lower the sewer line.

12. The City did not lower the sewer line or build the proposed bulk-head but placed a concrete cap at the site of damage to the sewer line from the 1958 accident.

13. In 1982, the sewer line blew a hole at the site of the concrete cap, and the City contracted Misener to repair the cap. Norm Van Pelt, a commercial diver, was Misener’s superintendent in charge of the sewer line repair project.

14. In order to repair the sewer line, Misener first had to visualize the leak by removing ten (10) feet of mud or overburden. The crew then jackhammered concrete from the center of the concrete cap until the leak was exposed. Misener removed as much of the broken concrete as it could because it would have been a hazard to navigation to leave the concrete pieces in the channel.

15. Misener repaired the cap by pumping approximately ten (10) cubic yards of concrete into the structure. Misener did not remove all of the old concrete prior to pumping the new concrete, as the jackham-mering did not reach the edges of the original concrete cap.

16. Misener submitted a proposal to the City regarding repair of the sewer line, and the City approved the plan. The City did not provide any directions to Misener regarding the elevation of the repair, nor did the City instruct Misener to place a buoy or any other warning device at the site of the cap.

17. After Misener’s repair in 1982, there was approximately three to five feet of concrete over the sewer line at the cap site, and the top of the concrete cap was approximately thirty (30) feet below mean low water level.

18. Misener did not change the dimensions of the concrete cap which the City constructed on the sewer line after the 1958 accident. The cap repaired by Misener did not rise any higher after the repair job done by Misener in 1982 than it did prior to the repair. 19. At the time of the allision, the existence of the sewer line crossing Sparkman Channel was noted on the Corps’ survey charts and reports which, according to the Coast Guard, are “available and commonly referenced by the pilots.” However, neither the sewer line nor the concrete cap was noted on navigation charts and there was no surface marker marking the area of the cap at the time of the allision involving the

Louisiana.

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20. The pilot of the

Louisiana,

Warwick Cahill, knew of the general location of the sewer line crossing Sparkman Channel from the charts, as well as the fact that a warning sign had existed in the past on Seddon Island. However he did not know about the concrete cap located on top of the sewer line just outside the channel. The master of the ship, Captain Alan Hopkins, was not aware of the existence of the sewer line or cap at the time of the allision.

21. Based on their experience navigating Sparkman Channel, Pilot Cahill and Captain Hopkins had reason to believe that the bottom surface outside the channel was soft mud and did not present a hazard to navigation. It was not uncommon for vessels to leave the channel limits during docking maneuvers in the turning basin and other areas.

22. Both Pilot Cahill and Captain Hopkins held valid First Class Pilot’s Certificates for Tampa Bay issued by the United States Coast Guard.

23. On August 29, 1989, the

Louisiana

was navigating Sparkman Channel and headed for Freeport Sulphur dock located on the east side of the channel. The

Louisiana

was loaded with a cargo of liquid sulphur to a mean draft of³³ feet, 6 inches.

24. There were no adverse weather conditions limiting visibility or navigation.

25. Both pilot and master were participating in the management of the vessel.

26. The usual docking approach of the

Louisiana

was to turn the vessel in an area off of the Tampa Shipyards and back her into the Freeport dock so that the vessel would be portside to berth.

27. On August 29,1989, Pilot Cahill and Captain Hopkins used a different docking approach due to recent shoaling in the area. Captain Hopkins had used this approach on one prior occasion. The

Louisiana

proceeded north up Sparkman Channel to the Ybor City Turning Basin, turned south and headed back to the Freeport berth, approaching bow first instead.

28. This approach required that the

Louisiana

pass the

Pennsylvania Trader,

a petroleum tanker docked just north of the Freeport Sulphur dock. In order to pass the

Pennsylvania,

the

Louisiana

was required to veer to the west of the channel centerline.

29. As the

Louisiana

exited the turning basin, the tugs YVONNE and EDNA were accompanying her with slack lines. Engine speed was half a head leaving the basin at 1531 hours. At 1533 hours the

Louisiana

put her engine slow ahead. At 1538 hours the

Louisiana

put her engine dead slow ahead to approach and pass PENNSYLVANIA TRADER. At 1540 hours the

Louisiana

stopped her engine.

30. As the

Louisiana

lost headway, YVONNE was ordered to push the bow to port i.e. to the east or away from Seddon Island and toward Hooker’s Point. This was the first order to either tug since the

Louisiana

exited the turning basin. At 1541-V² hours the

Louisiana

put her engine half astern while YVONNE continued to push. Following the half astern engine order at 1541-V² hours, the bow of the

Louisiana

moved strongly to starboard, to the west of the channel and the stern moved to port. At 1542 hours the

Louisiana

stopped her engine and at 1542-V² hours came full ahead with her rudder hard left. This stopped the movement of the bow to starboard and the stern to port.

31. At 1543 hours the

Louisiana

stopped her engine. At 1544 hours she put her engine half astern and at 1545 hours full astern. The bow again moved to starboard, with the stern again moving to port. YVONNE was still pushing and EDNA was ordered to back full. At 1546 hours the

Louisiana

put her engine full ahead and her rudder hard left to stop the movement of the bow to starboard and the stern to port. At 1546-V² hours the

Louisiana

stopped her engine and put her rudder hard right to keep her stern away from the Seddon Island side of the channel. The EDNA was ordered to stop and let go.

32. The

Louisiana

was traveling at a speed of³ knots or more on its approach to the Freeport Sulphur dock from the Ybor City Turning Basin. Due to the torque caused by the bottoming effects and the

*851

excessive speed, directional control over the vessel was lost. This speed was excessive under the circumstances, especially due to the

Louisiana’s

close proximity to the

Pennsylvania Trader

and the berth.

33. The Coast Guard investigation report concluded that the

Louisiana

was proceeding at an excessive rate of speed:

The apparent cause of the grounding was loss of control of the vessel during its approach to dock. The primary contributing factor was excessive speed of the vessel (in excess of 2 knots) in the narrow channel.

(Defendant Misener’s Exhibit²)

34. At approximately 1548, the

Louisiana

collided with a submerged object which was an edge of the concrete cap on the City’s sewer line approximately five (5) feet outside Sparkman Channel and to the west of the Freeport Sulphur dock. Although the vessel was taking on water from the hull damage, it was able to regain directional control and dock without further incident. The cargo was not damaged.

35. At the time of the allision, channel conditions were one foot over mean low water. 36. Russell Younkin of International Ship Repair, a commercial diver for approximately fifteen years, dove in the area of the allision several days later. He was familiar with the site because in 1982 he assisted in locating the sewer leak.

37. Mr. Younkin located the concrete cap which was covered by a thin layer of mud except for a portion near the channel side which was exposed. He retrieved several small pieces of concrete and paint chips and gave these items to the

Louisiana’s

Port Engineer, Red Williamson.

38. At the time of the allision the layer of mud covering the sewer line and part of the cap was not solid and was easily penetrated by a probe. The mud layer did not prevent the cap from being an obstruction to navigation.

39. On a subsequent dive for a surveying company, Mr. Younkin marked the location of the cap with a floating buoy. This measure was recommended by the Coast Guard in its investigative report.

40. The officer in charge of the Coast Guard investigation of the allision noted that “[a]s best as can be determined, the presence of a hard rock area at channel edge was not known by the Tampa Bay Pilot’s Association.” This finding is reflected in a handwritten note to the file dated October 19, 1989, which is part of Defendant Misener’s Exhibit 2.

41. The paint chips retrieved by Mr. Younkin were from the

Louisiana.

The

Louisiana

also had concrete marks on its hull.

42. The concrete retrieved by Mr. Youn-kin was not the same concrete that Misener used for its repair in 1982, since it contained “aggregate” or gravel material which was not utilized by Misener to repair the cap. However, the jackhammering done by Misener to remove portions of the old repair did not reach the edges of the structure and not all of the original concrete comprising the cap was removed.

43. The concrete object which the

Louisiana

struck on August 29, 1989 was a portion of the concrete cap on the sewer line owned by the City, most likely a protruding edge of the old cap which had been constructed by the City on the sewer line in 1958. (Plaintiff’s Exhibits 5 and³³)

44. After the allision, the

Louisiana

was drydocked at the Tampa Shipyards. Repairs commenced on August 30, 1989 and the vessel left drydock on September 16, 1989.

45.

The Louisiana

was billed and paid $449,550 for drydocking costs and repairs. Of that amount, the sum of $432,557 is claimed by plaintiff as damages caused by the allision. Since the vessel was about due for drydocking, certain repairs were made which were unrelated to the casualty and those expenses are not claimed.

46. The most significant repair cost resulted from labor and materials to renew the bottom steel plating on the starboard side of the vessel damaged by the grounding: $209,826 for labor and materials and $120,539 for overtime.

*852

47. Overtime was billed at a rate of sixty-seven percent (67%) over straight-time rather than fifty-percent (50%) over straight-time which is the normal and customary overtime rate charged by shipyards in the Tampa area, according to the City’s expert witness, Charles Harden. Had the lower and customary rate been used, overtime would have been reduced by $37,211 to $120,539.

48. During drydocking, the shipyard also replaced the seal on the stern tube after detecting an oil leak. The charge for this repair was $3,500.

49. During the final maneuvers before the allision, the engines were reversed. Because of the proximity to the bottom, it was reasonable and prudent to remove the seals to inspect for damage or sand and mud infiltration to the stern tube. This repair was necessitated by the allision and was not an unrelated expense.

50. The reasonable cost of repair attributable to the allision on August 29, 1989, including drydocking, is $395,346.

51. In addition to repair costs, plaintiff claims additional out-of-pocket expenses due to the allision:

(a) Pilotage from terminal to shipyard. $ 360.00

(b) Tug service from terminal to shipyard.¹,795.00

(c) Services of ship engineer, Williamson 5,406.00

(d) Inspections and reports³,205.31

(e) Inspection at drydocking 669.61

(f) American Bureau of Shipping inspections 4,795.00

(g) Management fee 6,527.34

(h) Crew wages and repatriation 11,662.17

(i) Insurance 22,836.27

Total $57,256.70

52. Of this amount claimed by plaintiff, the insurance ($22,836.27) and the management fee ($6,527.34) would have been incurred by plaintiff even if the vessel had not been damaged and these expenses, which total $29,363.61; are not reasonably related to the casualty.

53. However, the salary of the ship engineer — $5,406.00—is related to the casualty because the ship engineer had to oversee the repairs to insure that they were properly made by the shipyard even though this expense may have been incurred by plaintiff in any event.

II

Conclusions of Law

A. Liability of the

Louisiana

1. In admiralty law, there is a presumption of fault against a moving vessel that strikes a stationary object.

Bunge Corp. v. M/V Furness Bridge,

558 F. 2d 790, 794 (5th Cir.1977),

cert. denied,

435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 518 (1978). “This presumption requires the moving vessel to show that it was without fault or that the collision was occasioned by fault of the stationary object or was the result of an inevitable accident.”

Id.

at 795.

2. However, the presumption does not apply to allisions with sunken or hidden objects.

Delta Transload, Inc. v. Motor Vessel “Navios Commander”,

818 F. 2d 445, 450 (5th Cir.1987). Therefore, the party who is invoking the presumption has the burden of proving either that the object was visible or that the vessel otherwise possessed knowledge of the object’s location.

Id.

at 450. Where those operating the vessel had knowledge of an otherwise nonvisible object at the time of the allision, this knowledge warrants the imposition of the presumption of negligence against them.

Pennzoil Producing Co. v. Offshore Express, Inc.,

943 F. 2d 1465, 1471 (5th Cir.1991).

3. Pilot Cahill, the operator of the

Louisiana

at the time of the allision, was aware a sewer line crossed Sparkman Channel and its general location. However, he did not know its depth or know about the concrete cap on the sewer line which protruded above at a height of three to five feet.

4. Captain Hopkins did not know about the sewer line or the cap. Defendants have therefore failed to establish a presumption of negligence on the part of the

Louisiana

for striking a stationary object because it was submerged and unknown to the vessel.

*853

5. Liability must also be addressed under the doctrine set forth in

The Pennsylvania,

86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874).

The Pennsylvania

rule states:

“[w]hen ... a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probable was not, but that it could not have been.”

Id.

at 136.

6. This rule serves to allocate the burden of proof for showing causation by transferring it to the party in violation of a statute or regulation intended to prevent collisions. However, it does not determine a party’s ultimate share of liability for damages.

Pennzoil Producing Co.,

943 F. 2d at 1472.

7. The

Pennsylvania

rule applies to allisions between a vessel and a stationary object.

Orange Beach Water, Sewer and Fire Protection Authority v. M/V Alva,

680 F. 2d 1374, 1381 (11th Cir.1982).

8. The burden of showing that the statutory violation could not have been the cause of the accident is strict, but it is not insurmountable.

Id.

at 1381. It does not require that the violator establish “that its fault could not by any stretch of the imagination have had any causal relation to the collision, no matter how speculative, improbable, or remote.” (citations omitted).

Ibid.

9. Rule 6 of the Inland Rules provides that a vessel has a duty to “proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.”³³ U.S.C. § 2006.

1

Further, a pilot has an obligation to proceed at a safe speed under the present conditions.

See Pennzoil Producing Co.,

943 F. 2d at 1470. As set forth in the findings of fact above, the

Louisiana

was travelling at an excessive rate of speed given the conditions and purpose of the docking maneuver and the

Louisiana’s

close proximity to the

Pennsylvania Trader. 10. In the present case, plaintiff has failed to overcome its burden under the

Pennsylvania

rule of establishing that the fault of the

Louisiana

could not have been one of the causes of the accident. On the contrary, the vessel’s excessive speed was a primary cause of the allision. Therefore, the

Louisiana

is partially at fault in this allision.

B. Liability of the City

11. 33 U.S.C. § 403 prohibits obstructions in navigable waters of the United States.

2

“The duty not to create an obstruction to navigation extends to the entire width of a navigable waterway, and is not limited to the dredged channel.”

M/V Alva,

680 F. 2d at 1382. The duty imposed by Section 403 is also breached where a structure not initially an obstruction to navigation becomes one because of improper maintenance.

Id.

at 1383. Also, it is immaterial whether a submerged structure is covered by soft mud. Navigable waters include the muds along the shore through which vessels are capable of running.

Id.

at 1383 n. 8.

12. In this case, the permit of the Corps required the City’s sewer line to be at a depth of forty (40) feet below mean water level as it transited Sparkman Channel, a navigable waterway. In fact, the

*854

sewer line itself was at a depth of 34.3 feet, and the concrete cap was approximately 30 feet below mean water level. The sewer line and its cap did not conform with the Corps’ permit and the cap was an obstruction to navigation, in violation of the permit.

13. The failure of a pipeline owner to comply with a permit issued by the Corps triggers application of the rule of

The Pennsylvania. M/V Alva,

680 F. 2d at 1383;

see also Peoples Natural Gas Co. v. Ashland Oil, Inc.,

604 F.Supp. 1517, 1528 (W.D.Pa.1985) (the failure of a pipeline owner to comply with a term of the permit issued by the United States Corp of Engineers, which required that the pipeline be four feet below the riverbed, triggered the application of

The Pennsylvania

rule to the pipeline owner.)

14. The City’s failure to maintain the sewer line and the concrete cap at the required depth constituted an obstruction to navigation and violated³³ U.S.C. § 403. As the Corps noted in its letter of December 18, 1958, the insufficient depth would be a menace to any vessel venturing outside the strict limits of the channel for any reason.

15. The

Louisiana

was only five feet outside the channel when it struck the concrete cap on the sewer line. Moreover, the

Louisiana

was drawing³³ feet and 4 inches of draft on its approach to Freeport Sulphur dock. The concrete cap on the sewer line, which was at a depth of 30 feet, posed an obvious hazard to the

Louisiana

if it veered out of the strict limits of the channel.

16. If the sewer line had been constructed at 40 feet mean low water, as the permit required, the cap would have been at a depth of approximately 36 feet mean low water, below the published depth of the channel. Although the pilot of the

Louisiana

lost control of the vessel and veered outside of the channel limits as a result, the existence of the concrete cap on the sewer line at a shallower than permitted depth was a contributing cause of the allision. It still obstructed navigation even if covered by a thin layer of mud.

17. The City has failed to show that its statutory violation could not have been one of the causes of the allision. Under the rule in the

Pennsylvania,

the City is also liable for damages.

18. The City contends that it did not need a separate permit for construction of the concrete cap because it was a minor repair to a structure which already had a permit.

See