The opinion of the court was delivered by: MOTLEY
This case concerns a waterfront structure known as Pier 17 located in Manhattan on the Hudson River, a navigable waterway of the United States. Since 1962 it has been owned by defendant and third-party plaintiff Irving Maidman (Maidman).
Pier 17 is located in an area of the Hudson River which is subject to a lease agreement entered into between the third-party defendants City of New York (City) and Battery Park City Authority (Authority). The terms of the lease require the City to acquire by eminent domain defendant Maidman's interest in Pier 17 within ninety (90) days of a request by the Authority, and then to convey the premises to the Authority. However, the Authority has not yet requested condemnation and delivery of defendant's interest in Pier 17, and does not intend to do so until at least 1974.
Pier 17 is approximately 900 feet long and 75 feet wide. It consists of wooden pilings, a wooden deck, and a tall, one-story superstructure made of steel trusses, corrugated metal siding and a wooden roof. The superstructure runs the length of the pier. At intervals along both sides of the superstructure are wide loading door openings. For the last few years piles of rubble, mainly masonry, have covered most of the deck. There is a continuous row of windows along the upper portion of both sides of the superstructure.
On July 7, 1971 a massive fire of undetermined cause broke out at Pier 17, requiring 180 firemen and many firefighting vehicles to extinguish. In the course of suppressing the blaze, the Fire Department cut a trench across the width of the pier, causing timbers and wooden debris to fall into the Hudson. This trench was necessary because the fire hose access holes on the deck were buried under mounds of rubble. Large quantities of burning and charred roofing boards were carried upward by the rising heat and smoke and then fell into the river. Other boards and debris were swept into the river by the force of powerful sprays from the fire boats used to extinguish the blaze.
Debris loosened by the fire continued to fall into the Hudson after the blaze was put out, prompting the United States to seek a preliminary and permanent injunction against further violations of 33 U.S.C. §§ 407, 411, 441. On July 14, 1971, the date the complaint was filed, Judge Irving Ben Cooper of this Court signed a temporary restraining order which, with the consent of defendant Maidman, has continued in force to this date.
On July 26, 1971, Maidman filed a third-party complaint against the City of New York and the Battery Park City Authority seeking to have any injunctive relief ordered run against the third-party defendants rather than him.
On August 27, 1971, upon the Government's petition, the Court signed an order to show cause in criminal contempt for violation of the temporary restraining order by Irving Maidman.
Hearings were held on August 24, 25, and 31, 1971, September 1 and 2, 1971, and October 6, 1971 on all of these matters. The parties have stipulated that evidence taken at any of the hearings may be considered in reaching findings of fact and conclusions of law on any matter in the case. The court visited and inspected Pier 17 on September 28, 1971.
Pier 17 is currently in a thoroughly dilapidated condition, and is unsuited for virtually any commercial use. In fact, the pier has not been used commercially for over four years, except as a berth for the "Peace Ship." The pilings and deck of the pier are structurally sound, but the superstructure is extensively damaged.
Approximately 75 feet of the westernmost portion of the superstructure has collapsed in a heap on the deck, at points jutting out from the deck over the river. Interlaced with the fallen steel trusses are charred timbers and other debris.
The remainder of the superstructure, though still standing, is far from intact. Many, if not most, of the roofing boards are missing. Of those remaining, a significant portion are loose and charred; others are only tenuously attached. Both rows of windows along the upper sides of the superstructure have been knocked out. Aside from the rubble which covers most of the deck, timbers and other burnable debris are present inside the superstructure. As of September 28, 1971 there were large openings in the sides of the superstructure.
Defendant, pursuant to the temporary restraining order issued by Judge Cooper, had constructed a log boom around the pier in an effort to contain debris from the pier that falls into the river. However, this boom did not hold. Moreover, the boom did not enclose all four sides of the pier. That is, it did not form a full and unbroken rectangle or oval around the portion of the pier that stands in the river.
In the pier's present state, there is a strong likelihood that winds, with the force to be expected for that location, will cause numbers of the remaining roof boards to be blown into the river. There is also a likelihood that loose timbers and debris will be swept from the deck into the water. Winds, in combination with high tides and inclement weather, ...