the sandbar, and there was only one red buoy marking the left descending shore in the vicinity of the job site.
2. The Cofferdam
The cofferdam was located along the right descending bank and was outside of the navigable channel. Constructed of reinforced steel sheeting driven vertically into the riverbed, the cofferdam was approximately 129 feet long and 45.5 feet wide, with the longer side running roughly parallel to the river bank.
Prior to the construction of the cofferdam, the Coast Guard had issued to ICC certain guidelines and conditions. The primary guideline required that "all work . . . be so conducted that the free navigation of the waterway [would] not be unreasonably interfered with." In addition, further guidelines mandated that "all temporary structures . . . be marked with lights, reflective material and buoys as prescribed by the United States Coast Guard." Specifically, these guidelines required that the upstream and downstream channelward corners of the cofferdam be marked with red lights showing a horizontal arch of 360 degrees and be of sufficient candle power so as to be visible against the background lighting at a distance of at least 2000 yards 90% of the nights of the year. In addition, the upstream and downstream channelward sides of the cofferdam had to be marked with red reflectors installed near the top of the cofferdam to reflect effectively the searchlight of an approaching vessel. ICC's responsibility, however, did not cease upon installation of the lights and reflectors, for it had to inspect and maintain all lights and reflectors to ensure that they were properly displayed.
Although the cofferdam originally may have had reflective tape or paint, by the time of the allision any strips of red reflective tape had peeled off, and the fluorescent paint had been affected by rust on the steel sheeting and, therefore, was not reflective. Despite the lack of reflective paint or tape, though, the cofferdam nevertheless was properly illuminated. The structure was lighted by two red or amber steady-burn battery lights,
located on the upstream and downstream corners, that were visible from 2000 yards at night and, therefore, were of sufficient intensity and brightness to satisfy the Coast Guard requirements. In fact, not only were the lights visible from the guardhouse located across the river on the south bank,
but they also could be seen at night by motorists crossing the Shippingsport Bridge, which was approximately one mile away from the cofferdam.
At the time of the allision, the cofferdam was surrounded by two crane barges, several small deck barges, and a work boat. In addition, the M/V Becky R. (a green and white boat) was moored on the downriver side of the cofferdam.
D. The Trip and the Subsequent Allision
On the night of December 1, 1984, the M/V Sunshine, with its tow of eleven loaded barges,
was proceeding up the Illinois River at an appropriate speed of approximately 6-8 m.p.h (against a 1 1/2 m.p.h. current). Although there had been a number of difficult steers, including passage through narrow locks and bridges, Captain Wolfe successfully navigated the vessel past these obstacles and encountered no problems with the handling of the vessel and its tow.
At approximately 11:20 p.m., Joe Williams took over the controls from Captain Wolfe and began piloting the vessel at the Shippingsport Bridge. Williams held up for a southbound vessel and then successfully navigated through the Shippingsport Bridge and proceeded up to the I.C. Railroad Bridge. There had been a lookout stationed on the bow of the tow as the vessel proceeded through the Shippingsport Bridge, since the passageway was rather narrow. But as the vessel reached the I.C. Railroad Bridge there was no additional lookout (other than Captain Williams, who was in the wheelhouse approximately twenty-eight feet off the deck), since lookouts were not customarily used at this bridge and there were no reported problems or other special circumstances in the area.
Williams steered the vessel toward the bridge at about 3 m.p.h. (again, an appropriate speed), guiding himself by the navigational light located at approximately Mile 225.8. At this point Williams discontinued using the vessel's radar, since the structures in the area produced a shadowy, "ghosting effect" on the screen, rendering the radar inappropriate for use as a navigational guide. Instead, as Williams proceeded through the bridge he attempted to use his searchlight to spot the Coast Guard buoys that normally marked the sandbar. At that time, however, he realized not only that the black buoys were missing but also that he had steered the vessel too far to the left of center of the bridge to permit safe passage around the bend of the river; in other words, the vessel was too close to the north bank (and the sandbar).
He began steering to starboard, but soon thereafter the stern of the second barge out from the vessel on the port side (OR 3349) hit ground, as did the entire side of the first barge out (OR 3890). He then reduced the throttle to idle speed and continued trying to steer to starboard. As he proceeded along the sandbar, he perceived what appeared to him to be a white boat (the M/V Becky R.) located on the downriver side of the cofferdam and, fearing that the head of the tow was dangerously close to the boat, steered to avoid hitting it.
As he proceeded upriver, his tow began to swing to port because of the downstream current hitting the starboard side of the tow. He continued to steer to starboard, and as soon as his stern cleared the sandbar, he began backing his stern toward the north bank in an effort to swing the head of the tow to the right. These efforts came too late, however, because the lead barge on the port strand (USL 430) then allided with the cofferdam, causing $ 850,000 in damage.
The Coast Guard subsequently conducted an investigation of the allision, and although it had the authority to institute license suspension and revocation proceedings against a pilot for negligence, it chose not to level any charges against Williams in connection with the allision.
III. Jurisdiction and Venue
This court has admiralty and maritime jurisdiction over this action pursuant to 28 U.S.C. § 1333(1) (1982). The defendant does not contest that venue is proper in the Northern District of Illinois or that this court has personal jurisdiction over it.
Logan has complied with the procedural requirements of the Limitation of Liability Act, 46 U.S.C. app. §§ 181-196 (Supp. I 1983), and this court therefore has jurisdiction to determine whether Logan is entitled to exoneration from liability or, in the alternative, whether it is entitled to limit its liability pursuant to section 183.
IV. COLLISIONS ON THE NAVIGABLE WATERS
A. General Admiralty Principles
Liability for collisions on the navigable waters is governed by a series of presumptions and burden-shifting principles. As in other civil cases, the plaintiff has the burden of proving by a preponderance of the evidence that the defendant vessel was negligent and that this negligence was a proximate cause of the injury. When the plaintiff owns a stationary object hit by a moving vessel, however, the plaintiff can satisfy this initial burden and establish a prima facie case of negligence by invoking the " Oregon rule," which provides that a moving vessel which allides with a stationary object (such as an anchored vessel or other fixed object) is deemed to be presumptively at fault for the accident. The Oregon, 158 U.S. 186, 197, 39 L. Ed. 943, 15 S. Ct. 804 (1895); see, e.g., Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794 (5th Cir. 1977), cert. denied sub nom. Furness Withy & Co. v. Bunge Corp., 435 U.S. 924, 55 L. Ed. 2d 518, 98 S. Ct. 1488 (1978); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 726 (5th Cir. 1967); In re Texaco, Inc., 570 F. Supp. 1272, 1278 (E.D. La. 1983). The burden of proof then shifts to the defendant vessel, which can overcome the presumption only by proving that 1) it actually was without fault, 2) the stationary object was at fault, or 3) the collision was inevitable. See, e.g., City of Boston v. S.S. Texaco Tex., 773 F.2d 1396, 1398 (1st Cir. 1985); Bunge Corp., 558 F.2d at 795.
On the other hand, if any party violates a statutory or regulatory rule designed to prevent collisions, that party is guilty of per se negligence and, under the so-called " Pennsylvania rule," has the burden of proving that its statutory fault was not a contributing cause of the accident:
When . . . a [party] 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 [party that violated the rule] of showing not merely that [its] fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.
The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L. Ed. 148 (1874). Thus, when the stationary object that has been struck by a moving vessel is in violation of a navigational statute intended to prevent collisions, the normal presumption of fault that attaches to the vessel under the Oregon rule is shifted back to the stationary structure:
While such a structure may not be injured negligently by a passing vessel with impunity, nevertheless the vessel which strikes it is not presumptively negligent or careless, but the [structure] owner is presumptively at fault, unless he can show that the failure to comply with the requirements was not one of the factors or causes which contributed to the injury.