The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW.
The above-named plaintiff, Bouchard Transportation Co., Inc. ("Bouchard") filed a complaint against two defendants, one against Tug "Gillen Brothers" and Henry Gillen's Sons Lighterage, Inc. ("Gillen"). This was based upon an agreement between Gillen and plaintiff whereby Gillen entered into a contract of towage to transport Barge B. No. 55, owned by plaintiff, to the Texaco pier and terminal on the Hudson River at Albany, New York; plaintiff contends that on or about October 29, 1969, while the Barge B. No. 55 was in tow of Tug "Gillen Brothers" and under the control of said tug, the barge was caused to go aground while approaching the Texaco pier and terminal at Albany, New York allegedly because of the failure of defendant Gillen to perform its contract of towage in a safe, proper and workmanlike manner and because of the negligence of Gillen in performing the towage agreement; that as a result thereof the Barge B. No. 55 sustained severe damage necessitating that it be taken out of service, that extensive repairs be effected and as a result thereof plaintiff has suffered damages in the amount of $30,000.
The complaint in the second cause of action alleges a cause of action against defendant Texaco Inc. ("Texaco"). The gist of this cause of action is that at relevant times defendant Texaco maintained a pier and terminal facility at Albany, New York and impliedly represented that the same would be maintained in a safe and proper manner and invited or directed plaintiff to send its Barge B. No. 55 to the aforesaid premises as a safe berth; further, that on or about October 29, 1969 while the Barge B. No. 55 was approaching said terminal and pier facility it was caused to go aground and sustained severe damages; that the said grounding was in part due to the failure and negligence of defendant Texaco to maintain the approach to its pier and terminal facility in a reasonable condition and its failure to supply a safe berth to plaintiff and in its failure to warn plaintiff of conditions and dangers of which it was or should have been aware.
The complaint alleges that as a result of the breach of its contract by Gillen and the breach of its duty by Texaco to maintain its terminal, the Barge B. No. 55, owned by plaintiff, sustained severe damage necessitating that it be taken out of service, that extensive repairs be effected and as a result thereof plaintiff has suffered damages in the amount of $30,000.
Defendants Gillen and Texaco deny liability by their respective answers and assert cross-claims against each other, alleging that if there is any liability found it is due entirely to the negligence of the other.
Texaco had filed a third-party complaint against Marine Contracting International, Inc., but this cause of action was discontinued by stipulation before trial.
After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law with respect to liability of each defendant:
1. On October 29, 1969 plaintiff Bouchard, a corporation incorporated under the laws of New York, was the operator of the Barge B. No. 55, which it owned through a subsidiary corporation. (Tr. 5.)
2. On October 29, 1969 defendant Gillen, a corporation incorporated under the laws of New York, owned, operated, manned and controlled the Tug "Gillen Brothers."
3. On October 29, 1969 defendant Texaco, a foreign corporation incorporated under the laws of a state other than New York, owned, operated and maintained a waterfront oil terminal on the west side of the Hudson River, six miles south of Albany, New York. (Tr. 6, 108.)
4. On October 29, 1969 the Texaco terminal was composed of a main ship dock and a ballast dock. The main ship dock was abutted on each side by a large circular cofferdam, sometimes referred to as a "dolphin." (Tr. 77, 78.)
5. The aforesaid ballast dock was approximately 200-300 feet south of the southern cofferdam and consisted of a circular group of pilings six feet in diameter, connected to the shore by a catwalk. (Tr. 78, 79, 142, 143.)
6. On October 29, 1969 the Esso Company operated an oil terminal south of the Texaco terminal on the west bank of the Hudson River. The Esso terminal consisted of an upper dock and a lower dock. The Esso upper dock was approximately 100 to 150 feet south of the Texaco ballast dock. (Tr. 27, 72, 144.)
7. Prior to October 29, 1969 Texaco maintained a black spar buoy, a private aid to navigation, which marked a rock outside the river channel approximately 50 feet due east of the Texaco ballast dock. The exact location of the said spar buoy had been at a point 930 yards, 345 degrees true from the upper Hudson River Light 65. (Tr. 6, 113, 114, 130.)
8. At some time in 1969 Texaco engaged the services of Marine Contracting International, Inc. to dredge the area of its docks to a depth of 31 feet to accommodate deeper draft vessels. From the time when the Texaco terminal was dredged in 1968 until October 29, 1969 the terminal had been servicing vessels with drafts up to 28 feet. (Tr. 6, 121, 142-145.)
9. Subsequent to the dredging performed in 1968 and prior to October 29, 1969 Texaco caused the black spar buoy to be removed, with the approval of the United States ...