Compania de Maderas de Caibarien, S.A. v. Queenston Heights, 220 F.2d 120, 122-23 (5th Cir. 1955). The reasoning of this court in Dow Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), applies in this case. In Dow Chemical, a tugboat owned by Dixie Carriers had, on three occasions, struck a stationary railroad bridge fender system constructed by Dow. Stressing that Dixie was aware of the location of the fender system, this Court found that Dow Chemical's failure to secure approval from the Army Corps of Engineers for the system, although technically a violation of the Rivers and Harbors Act, did not cause the collisions.

In fact, Charlton Nettles, Chief of the Operations Division of the COE in New Orleans, testified that no fleet could be designed to ensure that its vessels would remain secure against drifting vessels from upriver. In Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), we held that the mere location of an object on navigable waters, in technical violation of federal statute, did not amount to negligence on the part of the owners when the object (in this case a fender system) was struck by barges. There we found that the fender system neither obstructed navigation nor was inherently dangerous, and we further found that a different design or placement of the structure could not necessarily have avoided the collisions.

For example, a genuine dispute over a good faith claim in a mutual fault setting has been held to be a peculiar circumstance creating discretion to deny prejudgment interest. Nat G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89, 97 (5th Cir.), modified on other grounds, 520 F.2d 1104 (5th Cir. 1975); Dow Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120, 123 (5th Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1972). Other cases suggest that improper delaying tactics by the claimant might justify a discretionary denial of prejudgment interest.

Board of Commissioners of the Port of New Orleans v. M/V Agelos Michael, 390 F. Supp. 1012, 1015 (E.D.La. 1974); American Zinc Co. v. Foster, 313 F. Supp. 671, 680-81 (S.D.Miss. 1970), modified on other grounds, 441 F.2d 1100 (5th Cir.) (per curiam), cert. denied sub nom. Ingalls Shipbuilding Division of Litton Systems, Inc. v. American Zinc Co., 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); see Dow Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120, 122 n. 4 (5th Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1972); see also Petition of Kinsman Transit Co., 338 F.2d 708, 718 (2d Cir. 1964) (this rule applies to drifting vessels as well), cert. denied sub nom. Continental Grain Co. v. Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965).

The Pennsylvania, 86 U.S. (19 Wall) 125, 136, 22 L.Ed. 148 (1874); Dow Chemical Company v. Dixie Carriers, Inc., 330 F. Supp. 1304, 1308-09 (S.D.Texas 1971), aff'd. 463 F.2d 120 (5th Cir. 1972). Essentially, under the Pennsylvania Rule, if a bridge or pier which has been struck by a moving vessel is in violation of a navigational statute, then the normal presumption of fault that attaches to the vessel is shifted to the stationary structure.

In National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974) we held the McIlhenny canal retained its private character despite its navigability. In Down Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), cert. denied 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1973), a private canal constructed by Dow for the sole purpose of transporting by barge materials between two of its plants in Houston, Texas was navigable and admiralty law was applied. Although the damage sustained was beneath the surface of the water it was "damage caused by a vessel in navigation" on navigable waters and was within the intent of the Admiralty Extension Act, 46 U.S.C.A. § 740.

C.A. 5th Cir. Certiorari denied. Reported below: 463 F. 2d 120.

" This is because the crew of the M/V ROBERT E. FRANE was aware of the dolphin's existence and location, and Defendants provided no evidence that the dolphin "actually obstructed navigation, that it was inherently dangerous, or that any change in its design or placement would have prevented the collisions." Dow Chem. Co. v. Dixie Carriers, Inc., 463 F.2d 120, 122 (5th Cir. 1972). The allision was caused by the M/V ROBERT E. FRANE's previous allision with the Vicksburg Bridge; the captain of the ship admitted as much. The district court properly held Defendants liable.

This language has been used before in construing the meaning of the Pennsylvania rule. E.g., Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120, 122 n. 5 (5th Cir. 1972) (then Chief Judge Brown stated: "Although it might be argued that Dow's statutory violation rendered it presumptively liable for damages . . .") (emphasis added); and United States v. Sabine Towing, 289 F. Supp. 250, 260 (E.D.La. 1968) (violation of its statutory duty makes the bridge presumptively negligent and liable under the doctrine of The Pennsylvania.") (emphasis added). FEC's semantic attack on the trial court's use of the language "presumptively liable" is unacceptable.

Indemnity clauses, especially those indemnifying the indemnitee against his own negligence, are in general strictly construed. Certainly in a time, as opposed to bareboat, charter, the shipowner and captain are in the ideal position where matters involving management and control of the vessel are involved. Dow Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120, 1972 AMC 2137 (5th Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490, 1973 AMC 539 (1972). Cf. Nitram, Inc. v. Cretan Life, 599 F.2d 1359, 1366-67 (5th Cir. 1979); Hanson Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528, 541 (S.D.Ga. 1978); Camiolo v. Felicitas-Rickmers Line K.G. Co., 449 F. Supp. 18, 19-21 (S.D.N.Y. 1978); Klishewich v. Mediterranean Agencies, Inc., 302 F. Supp. 712, 713, 1969 AMC 359, 360 (E.D.N.Y. 1969).