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BOUCHARD TRANSP. CO. v. MORAN TOWING & TRANSP. CO.

March 9, 1977.

BOUCHARD TRANSPORTATION CO., INC., as Operators and B NO. 95 Corporation, as owner of the BARGE B NO. 95, Plaintiffs,
v.
MORAN TOWING & TRANSPORTATION CO., INC. and the TUG JUDY MORAN, her engines, tackle, etc., Defendants and Third-Party Plaintiffs, and United States of America, Third-Party Defendant.



The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

This is an admiralty action tried to the Court arising out of the grounding of an oil barge ("Barge B No. 95") which was being push towed by the tug JUDY MORAN north up the Hudson River on the evening of October 17-18, 1973. The defendants and third-party plaintiffs, Moran Towing & Transportation Co., Inc. and the tug JUDY MORAN (hereinafter collectively referred to as "Moran"), settled with the plaintiffs in damages and have now brought this third-party action against the United States claiming that the grounding was occasioned by Buoy 35 being off station by some 50 feet and for other reasons hereinafter discussed.

 According to the testimony at trial, the tug JUDY MORAN and Barge B No. 95 (hereinafter collectively referred to as "the flotilla") were proceeding north up the Hudson River in the vicinity of Buoy 35 which was located on the west side of the channel. The grounding occurred east of the channel and apparently was occasioned when Barge B No. 95 struck the remains of an old lighthouse. Shortly before the grounding, the flotilla passed a self-propelled tank barge, the MORANIA 300 (hereinafter "MORANIA") which was proceeding south down river. The passing was made port to port at about the location of Buoy 35.

 Factual Background

 It is undisputed that Buoy 35 was off station some 50 feet east of the channel's westerly edge at the time of the grounding. Robert L. Maynard, captain of the JUDY MORAN, testified that on the evening of October 17-18, 1973 he was steering a course of 005 degree north between Buoy 30 and Buoy 35 with Houghtaling Dike Light, No. 36, dead ahead. He also testified that he changed the course left to 355 degree as he came abeam of Buoy 35 and steered for Light 40 on the east side of the channel and to the west of Houghtaling Island. Shortly thereafter, the grounding occurred some 900 feet south of Houghtaling Dike Light, No. 36.

 Captain John Aitken of the Pilots Association of the Hudson River testified for third-party plaintiff Moran that Buoy 35 is often used as a guide in making a turn or change of course in the Hudson River and that the position of this Buoy is therefore important. Captain Aitken also testified as to the use of navigation charts and the function of the gyrocompass in maintaining a ship's course in the Hudson River.

 The Government called Captain Thomas Sullivan, a Hudson River pilot, who testified that passing in the vicinity of Buoy 35 is not generally recommended because there is a bend in the River and the channel narrows at that point and that, in his opinion, a better area for passing would be in the straight-away off Stuyvesant Anchorage south of Buoy 35.

 Numerous exhibits and the deposition testimony of several witnesses were also received into evidence at the conclusion of the trial.

 Discussion

 Moran contends that the Government is liable for damages caused by the grounding because (1) the Coast Guard failed to maintain Buoy 35 on station properly; (2) the Coast Guard failed to mark the position of the hazardous underwater obstruction, the so-called "rock pinnacle", with a buoy or other warning signal; (3) the Marine Chart Division of the Department of Commerce neglected to insert proper notations for this hazard on the only chart available for the area; (4) the Chart Division failed to produce a chart with a scale large enough to permit the navigator to obtain an accurate determination of his position in the channel; and (5) the Coast Guard failed to maintain a range on Reach 23, the area of the grounding, so as to enable navigators visually to confirm their position on the Hudson River.

 At the trial, Captain Maynard testified that before passing the MORANIA the flotilla was proceeding on a straight course of 355 degree, within a degree, heading for Light 40 on Houghtaling Island with Light 32 under its stern. (Transcript at 66-67, 76-77) (hereinafter "Tr."). In addition, Maynard testified that his searchlight was on the black can buoy on the port bow which was Buoy 39 off Mattews Point. (Tr. at 79). Maynard also testified that he did not change courses between the time of the passing of the MORANIA and the grounding of Barge B No. 95. (Tr. at 79-80).

 From the evidence produced at trial, it appears that the flotilla had already passed Buoy 35 at the time of the grounding and that Captain Maynard was no longer navigating with any reference to Buoy 35. Surveys were made of the channel following the grounding, but no obstructions were found. (See Deposition Testimony of Herbert S. Wright, dated January 23, 1975, Exhibit 23 at 15-17; Deposition Testimony of Raymond F. Weidman, dated May 13, 1975, Exhibit 28 at 55-56). Surveys were then made immediately outside and to the east of the channel line which revealed a sounding of some 17 feet in the area of the grounding near the remains of the old Bug Island Light. See Exhibit 24, position "C".

 The plaintiff has the burden of proving that the alleged "fault" of the defendant was the cause of the grounding and not merely a condition. See The Socony No. 19, 29 F.2d 20, 22 (2d Cir. 1928); The Perseverance, 63 F.2d 788 (2d Cir. 1933); The Syosset, 71 F.2d 666 (2d Cir. 1934); Matton Oil Transfer Corp. v. The Greene, 129 F.2d 618 (2d Cir. 1942); see also Gilmore & Black, The Law of Admiralty 494 (2d ed. 1975).

 Here, Captain Maynard testified that he was navigating in the channel at all times. In addition, the captain of the MORANIA, Bjorn Roal Eliassen, testified that the flotilla appeared to be in good position. (See Deposition Testimony of Bjorn Roal Eliassen, dated May 1, 1974, Exhibit 9 at 10-11). Nevertheless, the channel was found to be clear following the grounding, and the only low spots appeared to be some 100 feet ...


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