(dissenting).
I cannot vote to affirm because there is a plain theory of recovery advanced by the pleadings, never abandoned, supported by the evidence, but entirely neglected in the district court’s findings. The majority, unable to deal with this theory of recovery on the merits because the district court failed to do so, selectively edits the record to conclude that the theory was never in the case. The Federal Rules of Civil Procedure were intended to eliminate gamesmanship theories of pleading. What the majority has done is to restore the gamesmanship that I thought our system of law had outgrown.
This case commenced with the filing of a maritime complaint against the United States charging that it negligently published and distributed to mariners an inaccurate notice and an inaccurate chart showing minimum depth as 37.5 feet at mean low water in a 400 foot wide channel in the Delaware River in the vicinity of Pier 77 North, Philadelphia. The complaint alleged that the vessel, with a draft of 37 feet grounded in that channel at a time when the tide was 2 feet above mean low water, and “that the vessel’s bow or front end was impaled on an uncharted, unknown, submerged obstruction in the 400 foot channel.” (Complaint 1 6).
The government’s factual theory was stated in its pretrial memorandum filed December 10, 1968:
The channel limits of 37.5 feet were exceeded by having a vessel which was drawing 37 feet without allowing for sinkage and squat and for the roughness in the natural bottom of the river.
The government contended, in other words, that the vessel’s draft exceeded the charted depth.
Pursuant to a pretrial order the parties entered into a stipulation of uncontested facts. That stipulation established that upon departure from its anchorage at Mantua Creek the vessel had “a draft of 36 feet 10 inches forward, 36 feet 10 inches aft and 37 feet at mid-ship (fresh water draft).” (Stipulation, K 9; 49a). The stipulation also established that when the vessel passed under the Walt Whitman Bridge at approximately 10:55 a. m. the tide gauge on the bridge-pier was observed to read one and one-quarter feet above mean low water, and that when the vessel passed under the Ben Franklin bridge at 11:30 a. m. the tide gauge read two feet above mean low water. (Stipulation, f 8; 49a).
*78The court found that the grounding occurred at 11:39 a. m. Finding of Fact 39, 388 F.Supp. at 281. Thus the stipulation established that at the time of the grounding the tide was flooding and that there should have been at least two feet more water in the channel than the depths shown on the published depth statements. The stipulation also established that the pilot navigating the vessel at the time of the grounding had a channel depth statement which “reported the following minimum depths for the 40 foot project depth, 400 foot wide channel in the area from Ben Franklin Bridge to Cumberland Street: left channel edge 35.3 feet; left outside quarter 37.5 feet; left inside quarter 39.4 feet; right inside quarter 41.6 feet; right outside quarter 42.5 feet; right channel edge 42.1 feet. . ” These minimum depths are calculated to mean low water. (Stipulation, K 5; 48a).
Thus the stipulation established that in the 400 foot wide channel above the Ben Franklin Bridge at the time of the grounding there should have been at least these minimum depths: left channel edge 37.3 feet; left outside quarter 39.5 feet; left inside quarter 41.4 feet; right inside quarter 43.6 feet; right outside quarter 44.5 feet; right channel edge 44.1 feet. The court found as a fact:
The entire vessel was well within the limits of the 400 foot or deepwater channel at the time of the first impact. The impact caused the vessel immediately to lose her headway, and the engines were promptly stopped. . The ship remained shaped up in the channel after the striking at 11:39 A.M.
As soon as the vessel got underway [about 11:41 A.M.] she again struck bottom heavily and she immediately lost all headway.
Findings of Fact 43, 46, 388 F.Supp. at 282 (emphasis supplied).
The court found that the vessel was well within the limits of the 400 foot channel at the time of the grounding for the simple reason that there is no evidence whatsoever placing her elsewhere. What little dispute there is in the testimony about the vessel’s location tends to suggest that she was nearer to the center of the 400 foot channel than to the left outside quarter. No evidence places her on the left channel edge.
Therefore it is undisputed that a vessel with a stipulated draft of 37 feet grounded in a channel in which by the stipulated facts at the time of the grounding there should have been at least 2.5 feet of water under the hull. The stipulated facts and the court’s finding as to the vessel’s location at the time of the grounding establish that it hit something on the river bottom which extended at least 2.5 feet above the depth charted by the government and relied upon by the pilot.1
It is of course conceivable that the something which the vessel certainly hit in the 400 foot channel was an object which came to rest there after the surveys on which the government relied in preparing its channel depth statement were made. Thus the location of the grounding and the stipulated facts are not alone sufficient to establish negligence in surveying for the published depth statement. But there are two other facts found by the court which, when added to other uncontradicted and unimpeached evidence to which the court makes no reference, establish a prima facie case of negligent surveying.
The court found that at the time of the grounding the vessel was proceeding at slow ahead, making 6-7.5 knots over the ground. The 20,910 ton vessel was carrying 53,340 long tons of iron ore. Findings of Fact 23, 24, 37, 388 F.Supp. at 280-81. The court found that when she grounded “the impact caused the vessel immediately to lose her headway. ” Thus an object weighing in excess of
*7974,250 tons, moving over the ground at between 6 — 7.5 knots, was stopped instantly by whatever it hit. If what it hit was an indigenous rock ledge extending two feet higher in the channel than the charts show, the libelant has made out a prima facie case. There is almost nothing that I can imagine lying loose on the bottom that could have absorbed enough energy to stop the vessel’s headway in the manner found by the court.
At this point I must turn to testimony to which the court makes no reference. Murphy, an expert witness for the vessel owner, testified that only indigenous rock could have stopped suddenly so heavily laden a ship steaming at 6-7.5 knots. The court did not reject this testimony, but simply ignored it. It is nowhere contradicted and it seems, at least to me, entirely reasonable. Of course the district court could have rejected Murphy’s expert opinion on credibility grounds, but it did not do so.
It seems to me that by overlooking the testimony that only indigenous rock could have caused the physical phenomenon which it found to have occurred, the court arbitrarily refused to consider a separate theory of liability.
It is true that the vessel owner attempted to identify specific indigenous rocks as the cause of the grounding, and failed to convince the trier of facts. But that effort did not indicate any abandonment of the pleaded theory that the vessel grounded on an “uncharted, unknown, submerged obstruction in the 400 foot channel.” It may be that the object which was struck shattered in absorbing the enormous energy of the impact, and cannot be identified. But Murphy’s testimony makes out a prima facie case that the object was indigenous rock in a place where there should have been none.2 Since I cannot pass on Murphy’s credibility I would remand for further findings on this theory of liability. The theory certainly was tried. See Rule • 15(b) Fed.R.Civ.P.
. The court found as a fact that “[t]he master of the Ore Chief relied on the channel depth statement as being correct.” Finding of Fact 29, 388 F.Supp. at 281.
. I do not share the majority’s view that appellant committed itself to the three-rock theory at trial and thus should be barred from raising res ipsa loquitur on appeal. The complaint makes no reference to a collision with any specific rocks. Nor does a pretrial memorandum filed by appellant in late 1968. In a 1973 memorandum entitled “Libellant’s Proposed Findings of Fact Before Trial”, appellant contends that the Ore Chief struck “at least” two of the rocks specifically identified at trial. U 15. I do not believe that appellant thereby intended to foresake the opportunity to present evidence and to argue that the collision occurred with some other unidentified object. Indeed, I believe that this is the thrust of Murphy’s testimony. The uncontradicted testimony of this expert was to the effect that indigenous rock in general collided with the Ore Chief, not that the three specific rocks were indigenous. In fact, Murphy never refers in his testimony to those particular rocks.
The majority says that the appellant is foreclosed from raising res ipsa on appeal because of the “prejudice” the government would suffer. Since I believe the issue was in the case all along, I disagree. It is also worth noting that nowhere has the government protested as unfair our consideration of this issue on appeal. I therefore believe that the majority was unwarranted in making such a finding sua sponte.