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BUCHANAN MARINE v. MCCORMACK SAND CO.

August 10, 1990

BUCHANAN MARINE INC., PLAINTIFF,
v.
MCCORMACK SAND COMPANY, MCCORMACK AGGREGATES, RMW SCOW REALTY COMPANY, MCCORMACK SAND COMPANY, INC., AND CREEK TOWING CORP., DEFENDANTS.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

  Plaintiff Buchanan Marine Inc. (Buchanan), an owner and
operator of tugboats and barges in Connecticut and elsewhere,
brought this action to enjoin defendants from using its
commercial barge mooring in Stamford Harbor, Connecticut, and
to recover damages allegedly arising from defendants' use of
the mooring. In a memorandum and order, dated October 2,
1987, Buchanan Marine, Inc. v. McCormack Sand Co., 670 F. Supp. 469
 (E.D.N.Y. 1987), aff'd 847 F.2d 834 (2d Cir. 1988),
familiarity with which is assumed, the court denied Buchanan's
motion for a preliminary injunction, holding that it had failed
to demonstrate irreparable harm.

Defendants now move for summary judgment, arguing that Buchanan is not entitled to exclusive use of the buoy and that its claims for injunctive and declaratory relief should be dismissed. Defendants also ask for sanctions.

I

The facts detailed in the court's previous decisions may be summarized as follows.

Buchanan owns and operates tug boats and barges for the delivery of stone and other bulk material in, among other places, Connecticut. Defendants operate barges in Stamford Harbor (the Harbor).

Both Buchanan and defendants have customers in the Harbor and say they require a harbor mooring to do business in the area. Apparently, placing a mooring outside the Harbor would cause a hazard to navigation and is thus not feasible.

Buchanan claims to own the physical buoy and to have obtained a permit in October 1981 from the Stamford Harbor master John Sheridan to maintain the buoy at a particular location in the Harbor. While allegedly never authorizing others to use the buoy, Buchanan admittedly tolerated until 1983 the occasional such use by defendants. See Affidavit of Allen H. Birk, Buchanan's Chief of Maintenance.

In July 1982, Buchanan notified other companies towing barges in the Harbor that it would charge them for unauthorized tie-ups at the mooring. In response to Buchanan's notice, defendant McCormack Sand Company Inc. allegedly asked Sheridan for its own mooring permit and received a response that only one commercial anchorage would be permitted in the Harbor.

In February 1983, Buchanan and Sheridan jointly filed an application for a federal permit from the U.S. Army Corps of Engineers (the Corps) to authorize Buchanan's mooring in the Harbor in conformity with Section 10 of the federal Rivers and Harbors Act, 33 U.S.C. § 403 (1986), requiring federal approval for any "obstructions" placed in the navigable waterways.

In May 1983 Sheridan issued Buchanan a new mooring permit pursuant to his authority under state law. Six months later, the Corps issued to the "City of Stamford Harbormaster (Buchanan Marine)," a federal permit to maintain a commercial barge mooring buoy in the Harbor.

Buchanan asserts that on November 5, 1985 certain of the defendants wrongly secured barges to the buoy. Because of their weight, the outermost three barges broke away and drifted to the Greenwich Town Beach. Buchanan's barge was damaged, and it incurred costs for cleaning up the beach.

Despite repeated oral and written warnings by Buchanan to remove their barges, defendants continue ...


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