The opinion of the court was delivered by: NEAHER
Plaintiff, Hinfin Realty Corporation ("Hinfin"), brings this action in admiralty
to recover damages allegedly caused to its dock and terminal by the negligent operation of a vessel owned by defendant Poling Transportation Corporation. After trial upon the facts the court finds for the plaintiff.
Hinfin, a New York corporation, is the owner of a waterfront bulkheaded dock and oil terminal located in Glenwood Landing, New York. It leases these facilities to Harbor Fuel Co., Inc., a local fuel distributor. The property, situated on the eastern bank of a channel in Hempstead Harbor, is bounded on the north by the Long Island Lighting Company ("LILCO"). LILCO also has a shorefront bulkhead which forms a continuous line with plaintiff's dock.
Hinfin's original bulkhead was constructed in 1929. Steel sheeting, 18 inches wide, was pile driven into the harbor bed and bolted near the top to horizontal steel bars ("whalers"). The whalers in turn were anchored by two-inch diameter steel tie rods to chestnut or locust hardwood piles ("deadmen") sunk 40 feet east of the bulkhead. The tie rods prevented the sheeting from buckling outward when the excavation between the bulkhead and deadmen was packed with fill. The flow of subterranean springs, running from the high ground to the harbor, was collected by open-jointed tile pipes imbedded in the subsoil. The pipes, inserted in holes cut through the bulkhead, discharged the run-off water into the harbor.
In 1955 the sheeting showed extensive signs of corrosion and Hinfin decided to extend its dock slightly to the west of the old bulkhead to form a continuous line with LILCO's contiguous bulkhead to the north. Hinfin contracted J. Richard Steers, Inc., an engineering firm specializing in large marine construction, to perform the reconstruction. Steers excavated behind the old bulkhead, inspected the whalers and tie rods and found them to be in good shape. Sections of interlocking z-shaped steel sheeting 40 inches wide were then pile driven 16 feet into the loam-bottomed channel four feet west of the old bulkhead. The sheeting was bolted together, five feet from the top, by horizontal T-bar whalers. The new sheeting was held in position by tie rods fastened to both the old and new whalers. In order to permit the run-off of water from the springs metal pipes were fastened to the discharge holes in the old bulkhead and extended through holes cut in the new sheeting. Wooden piles for mooring ships were driven between the old and new bulkheads and the area was backfilled. Construction was completed by topping the new bulkhead with wooden stringpieces. Plaintiff drove 300 feet of sheeting for the northern half of the dock in 1955 and completed the 300-foot southern portion in the same manner in 1959.
The harbor channel is trafficked by ships delivering petroleum and other products to both plaintiff's and LILCO's facilities. Approximately 320 ships a year berth at Hinfin's dock.
At the dock the distance between the channel bed and the stringpieces measures 24 feet and the mean low water mark 12 feet. Distant 305 feet west of plaintiff's dock the highpoint of a sandbar protrudes two feet above the mean low water mark. From there the bar slopes into the channel until, 235 feet from the bulkhead, the water reaches a mean low water depth of eight feet. To the north of plaintiff's dock the channel spreads slightly and forms a ship-turning basin which is marked by a buoy.
At 0300 hours on August 25, 1969, the M/V Poling Bros. No. 7 ("No. 7"), a coastwise motor tanker owned by Poling Transportation Corporation and captained by Thomas Cassidy, left Port Reading, New Jersey to deliver a cargo of gasoline to Harbor Fuels, Inc. No. 7, a steel tanker with a length of 253 feet and a breadth of 40 feet, is powered by two 1800-horsepower diesel engines. Each screw measures 3 1/2 feet in diameter. The vessel has a gross tonnage of 1235 tons and can carry approximately 700,000 gallons of gasoline. On August 25, No. 7, carrying 570,000 gallons, drew 11 feet forward and 11'6" aft.
Between 0700 and 0730 No. 7 entered the channel above LILCO's dock, passed through the turning basin and pulled abreast of the north end of Hinfin's bulkhead. At 0700 the tide had risen 3'4"
above the mean low water mark giving the channel a depth of 15.15 feet at plaintiff's bulkhead. Cassidy swung No. 7's bow to the west in an attempt to turn and berth with the bow facing north. The maneuver was to be completed by running the prow onto the bar and pivoting the stern to the south. Unfortunately the water was insufficiently deep to permit the ship far enough onto the bar to allow the stern to clear plaintiff's bulkhead.
When he attempted the turn, Cassidy was in the pilot box, 100 feet aft of the bow and 18 feet above the main deck. He admitted he could not see whether the ship would clear the bulkhead and posted a watch, Lewis, on the stern to notify him if the turn could not be completed. Cassidy also testified he had previously made similar turns off the Hinfin dock, although at a spot slightly to the north and at times when the tide was higher. He contended the turn could have been successfully completed if the water had been one foot deeper. Despite the crucial nature of the water's depth and his admission that he did not know how much water covered the shoal, Cassidy sent no one forward to take a depth reading.
Robert Sofield, then an employee of Harbor Fuel Co., Inc., testified that on August 25, 1969 he observed No. 7 approaching the Hinfin dock at about 0700. It swung its prow in the direction of the bar, the stern pivoted from north to south and came to rest with its port side against the bulkhead. The boat's screws were churning up sand from the channel bottom and throwing water up the stern of the ship. This continued for 10 minutes until the stern of the ship moved 15 feet from the bulkhead. The engines then stopped and the stern came to rest in its original spot against the dock. The ship again ran its engines for five minutes, this time throwing water over the ship's deck and causing the pier to shake. Its engines again stopped, re-started and the ship moved slowly away from the bulkhead. No. 7 finally berthed with its bow south.
James W. Feeny, an operating engineer employed by Long Island Asphalt, a company located adjacent to the Hinfin dock, corroborated Sofield's testimony. He saw the tanker "boiling up water" for five to eight minutes while touching the bulkhead and 15 minutes later again saw shells and sand being churned up off the channel bottom by the ship's screws.
Cassidy and Lewis admit the vessel attempted to turn in the location testified to by Sofield but differ as to the wash of the props and the length of time the ship's screws were turning while adjacent to the pier. Cassidy said No. 7 spent no more than five minutes on the bar. He also testified that while attempting to pivot he ran the port screw ahead, sometimes at full throttle, and the starboard screw astern. He admitted he could not see whether or not the stern actually touched the bulkhead but recalled a phone call from Lewis telling him the stern would not clear the pier. Lewis, positioned on the top deck, about 25 feet above the main deck, testified the maneuver lasted about five minutes and recalled no water splashing over the main deck of the ship. Lewis and Cassidy both testified that after five minutes No. 7 backed to the north and then pulled slightly ...