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
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 to use the mooring
The court may grant summary judgment under Rule 56(c),
Fed.R.Civ.P., only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter
of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106
S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The burden rests on
the movant to demonstrate the lack of a genuine issue of fact.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970). All reasonable inferences
must be drawn in favor of the non-movant. United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
Defendants argue that because the court dismissed for lack
of standing that part of Buchanan's claim for injunctive
relief based on section 10 of the Rivers and Harbors Act (the
Act), 33 U.S.C. § 403, Buchanan Marine, supra, 670 F. Supp. at
472, Buchanan has no basis to enjoin defendants from using the
However, Buchanan also makes a claim for relief under
Connecticut state law, arguing in opposition to defendants'
motion that their use of the mooring is a trespass to a
A person commits a trespass to a chattel by "intentionally
(a) dispossessing another of the chattel, or (b) using or
intermeddling with a chattel in the possession of another."
See Restatement (Second) of the Law of Torts § 217 (1965).
A person is liable to the possessor, the owner, of the
chattel "if, but only if, (a) he dispossess the other of the
chattel, or (b) the chattel is impaired as to its condition,
quality, or value, or (c) the possessor is deprived of the
use of the chattel for a substantial time, or (d) bodily harm
is caused to the possessor, or harm is caused to some person
or thing in which the possessor has a legally protected
interest." Id. at § 218.
A person may recover "for all the harm to the chattel and
for incidental damages proximately caused by the
intermeddling." See Harper James & Gray, The Law of Torts (2d
ed 1986) § 2.6 at 185.
There is no reason to doubt that Connecticut would follow
the Restatement. Accord State v. Tully, 348 A.2d 603, 612 n. 3
(Conn. Sup.Ct. 1974) (Bogdanski, Associate Justice, dissenting)
(protecting another from harm justifies trespass to chattel).
Buchanan alleges it bought and maintained the eight by
eight foot steel drum that, placed in the Harbor, has become
the commercial mooring buoy at issue. Buchanan says it has
not consented either expressly or by implication to
defendants' use of the buoy and has not abandoned the buoy.
For purposes of the motion the court holds that the mooring
buoy, whether sitting on land or floating in Stamford harbor,
is Buchanan's chattel, and that defendants' meddling with it
is either a trespass to a chattel or perhaps a conversion for
which Buchanan may seek relief in the form of damages and an
Buchanan may not base its trespass claims on alleged
ownership rights created by the state mooring permit issued
by the harbor master. Presumably he issued Buchanan the
permit pursuant to his statutory authority to maintain "safe
and efficient" operation of the Harbor, Conn.Gen.Stat.Ann.
§ 15-1 (West 1988). But Buchanan has cited no authority and the
court has discovered none that recognizes a private right of
action to enforce the terms of a mooring permit. It is up to
the Commissioner of the Department of Transportation for
Connecticut (the Commissioner) or his designee, the harbor
master, to interpret and enforce the permit. This court,
sitting in Brooklyn, will not assume the harbor master's
discretionary control over navigation in the Harbor.
Defendants further urge that to permit Buchanan's exclusive
use of the only commercial mooring buoy in the Harbor would
violate the Commerce Clause of the United States
Constitution. However, Buchanan has not sought to prevent
others from placing their own mooring buoys in the Harbor. If
the Commissioner or the harbor master precludes defendants
from placing their own buoys in the Harbor or refuses to
replace Buchanan's buoy with a community use" buoy, defendant
may seek relief against those persons.
Defendants also contend that the federal permit issued by
the Corps to the harbor master was for a "community use" buoy
and thus vests defendants with the right to use the mooring
buoy at issue and prevents Buchanan from enjoining defendants
from its use. That federal permit gives defendants no direct
rights against Buchanan.
While § 10 of the Rivers and Harbors Appropriation Act (the
Act) prohibits the "creation of any obstruction not
affirmatively authorized by Congress to the navigable capacity
of any of the waters of the United States", 33 U.S.C. § 403,
the Act does not purport to alter state created property rights
between private parties. See, e.g., 33 C.F.R. 320.4(g)
("Authorization of work or structures by [the Department of the
Army] does not convey a property right, nor authorize any
injury to property or invasion of other rights."); see also 33
The federal permit at issue itself provides under its terms
and "General Conditions" that
this permit does not convey any property rights,
either in real estate or material, or any
exclusive privileges; and that it does not
authorize any injury to property or invasion of
rights or any infringement of Federal, State, or
local laws or regulations.
See General Condition (i).
If Buchanan has a property interest in the buoy under state
law, but failed to receive the requisite federal permit to
use the buoy, then Buchanan may be fined by the federal
government for maintaining the "obstruction" and its buoy
removed. See 33 U.S.C. § 406. But failure to have a federal
permit does not divest the owner of the physical buoy of the
state property interest in it.
Defendants argue that Buchanan's claim for injunctive
relief should be dismissed on the ground that the admiralty
courts have no equitable power to issue injunctions. See, e.g.,
The Eclipse, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269 (1899).
During the past several decades, that principle has been
substantially eroded. See Pino v. Protection Maritime Insurance
Co., 599 F.2d 10, 16 (1st Cir.), cert. denied, 444 U.S. 900,
100 S.Ct. 210, 62 L.Ed.2d 136 (1979); Lewis v. S.S. Baune,
534 F.2d 1115, 1121 (5th Cir. 1976). While the Court of Appeals for
the Second Circuit has yet expressly to abandon the old rule,
it has noted that if "confronted with an appropriate case" it
might find that "admiralty courts may issue injunctions." Eddie
S.S. Co. Ltd. v. P.T. Karana Line, 739 F.2d 37, 39 (2d Cir.),
cert. denied, 469 U.S. 1073, 105 S.Ct. 568, 83 L.Ed.2d 508
(1984). This may well be such a case. It would be premature to
dismiss Buchanan's claim for injunctive and declaratory
The parties dispute whether or not Buchanan owns the buoy
under state law or has consented to community use. Summary
judgment for Buchanan is therefore inappropriate.
Defendants' motion for summary judgment and for sanctions
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