The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge
Plaintiff, Spartan Dismantling Corp., ("Spartan"), brought this action to recover for damage to its barge as a result of alleged collisions with two other vessels owned by defendant, Hudson River Towing Line, Inc., ("Hudson River"). In the alternative, it seeks recovery against defendant Transit Mix Concrete Corp. ("Transit Mix"), contending that the latter's negligence allowed Hudson River's vessels to collide with plaintiff's ship.
This Court conducted a bench trial on January 28, 1983. For the reasons developed below, I conclude that plaintiff has failed to carry its burden of proof. Accordingly, this action is dismissed, and judgment will enter for the defendants.
Spartan, a New York corporation, was the registered owner of Barge No. 357 (SPARTAN 357) in March and April of 1979 when the events giving rise to this litigation occurred. At that time Spartan operated pier facilities on the Gowanus Canal in Brooklyn, New York. Mr. Charles Christie is and was the President of Spartan at all relevant times.
Hudson River, a New York corporation, was the registered owner of two separate Barges, H.R. 54 and H.R. 93, in March and April of 1979. Transit Mix was originally a third-party defendant, but, upon plaintiff's motion, was made a primary defendant. Transit Mix, also a New York corporation, owns and operates a cement plant and pier facilities on the Gowanus Canal.
Plaintiff's vessel, the SPARTAN 357, is a motorless wooden barge, 125 feet long and 30 feet wide. It was built sometime before 1950, and purchased by Mr. Christie in 1974. Captain Henry C. Halboth, Transit Mix's expert witness, testified that barges of such construction should be "dry docked" at least every two years to re-caulk, reseal, and paint the hull. Christie admitted that the barge has never been dry docked since he purchased it, but stated that caulking has been done from inside the hull. Halboth's uncontroverted testimony, however, was that caulking from inside the hull was ineffective to prevent deterioration of the vessel. In any event, it is undisputed that the SPARTAN 357 was not watertight: there were five or six inches of water in the ship's bilge two days before it sank.
Hudson River owns the other two vessels involved in this litigation. The H.R. 54 and H.R. 93 are motorless, break-bulk steel cargo scows, 120 feet in length, and 38 feet wide.
C. The Collisions and the Sinking
On the morning of March 29, 1979, a tug, called the TWIN, was delivering the H.R. 54, loaded with gravel, to Ferrar Construction, located on the Gowanus Canal almost ...