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TURECAMO MARITIME, INC. v. WEEKS DREDGE NO. 516

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 9, 1994

TURECAMO MARITIME, INC., Plaintiff, against WEEKS DREDGE No. 516, her tackle engines, boilers, etc., in rem, and Tug GREGORY, her tackle, engines, boilers, etc., in rem and WEEKS MARINE, INC., in personam, Defendant.

ALLEN G. SCHWARTZ, U.S.D.J.

The opinion of the court was delivered by: ALLEN G. SCHWARTZ

OPINION and ORDER

ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 JURISDICTION

 This action arises out of an allision on the Hudson River in the vicinity of the cities of Athens and Hudson, New York, between plaintiff's tugboat the CATHERINE TURECAMO (the "CATHERINE") (towing the empty tank barge B-45 belonging to an unrelated third party) and an anchor cable of the anchored dredge belonging to defendant Weeks Marine, Inc. This Court conducted a bench trial on June 21-24, and 28, 1994 and July 15, 1994. Jurisdiction is based on 28 U.S.C. ยง 1333 and Rule 9(h) of the Federal Rules of Civil Procedure and is uncontested.

 BACKGROUND

 The following uncontested facts serve as a description of the parties and vessels. Plaintiff Turecamo Maritime, Inc. ("Turecamo") owns and operates a fleet of tugboats including the CATHERINE, a 4000 horsepower, twin propeller, steel tug. At all material times Turecamo owned and operated approximately 29 tugboats of various sizes and power in several ports on the east coast of the United States, with about 12 of them assigned to the Port of New York and its tributaries. Turecamo engages in the business of general towing (of barges) and ship docking.

 Defendant Weeks Marine, Inc. ("Weeks") is, among other things, in the marine construction business and owns and operates a fleet of crane barges and tugboats. These are used on construction projects including dredging. At the relevant time, Weeks owned and operated dredge #516 ("WEEKS #516"), a crane barge having no motor power or steering facilities of its own, and the tug GREGORY, an assist tug of 900 horsepower, measuring 60 feet in length and having a deep draft of about 7 feet.

 The CATHERINE measures 99 feet it length. At all material times, the tug carried a crew of 5 consisting of a Captain, Mate, two deckhands and one engineer. The Captain and Mate, each with one deckhand, stand six hour alternating watches 24 hours a day.

 The CATHERINE has a pilothouse measuring 10 to 12 feet in width, port bulkhead to starboard bulkhead, and about 10 feet deep from the after bulkhead to the forward windows. She is equipped with navigational equipment which was operational at all relevant times, including radar, compasses, and VHF radios for communication with other vessels. She also carried navigation charts (NOAA charts) with parallel rulers and dividers for measuring distances and plotting courses on a chart.

 WEEKS #516 is 160 feet long and is equipped with a large bucket crane located at the bow. The boom length is 185 feet. The total distance from the water line to the top of the boom is 200-225 feet. It is an anchor dredge which holds itself in position with four large anchors which are set out from each corner of the dredge. Each anchor is secured to a 1 1/4 inch diameter steel cable connected to and coiled on four large drums located amidship on the port side. The two double drum winches for the anchors are located in the "mate's shack". Several VHF marine frequency radios are aboard, one each for the shift supervisor, the crane operator and the mate. VHF channel 67 (Weeks' working channel) is usually used by the dredge crew for their work. The GREGORY, equipped with two such radios, monitors two channels at all times: channel 67 for communication with the dredge crew and channel 13 for communication with other vessel traffic in the river.

 FINDINGS OF FACT

 (1)

 Some time prior to the fall of 1991, Iroquois Gas Transmission ("Iroquois Gas") contracted with Pentzien, Inc. ("Pentzien") to act as the general contractor for the installation of Iroquois Gas' natural gas pipeline which was to extend from Canada to Long Island. Pentzien retained Weeks to act as a subcontractor on this project for the purpose of digging and backfilling a subaqueous trench across the Hudson River where Iroquois Gas' pipeline was to be laid. Weeks began the dredging operation in early September, 1991 and completed the operation in mid-November, 1991.

 (2)

 The width of the Hudson River from bank to bank where the subaqueous trench was to be dug and where the pipeline was to be laid is approximately 2,500 feet. According to the National Oceanic and Atmosphere Administration Chart No. 12347 ("NOAA Chart"), the chart to which mariners refer in transmitting this area, the width of the navigable channel at this site is 400 feet. The 400 foot channel depicted on the NOAA Chart is referred to as the project channel and constitutes the section of river which was dredged and is currently maintained by the Army Corps of Engineers for the safe transit of vessels. Army Corps of Engineers Chart, Pl. Exh. 25. The project channel is marked by floating aids to navigation, known as navigation buoys, positioned outside -- east and west -- of the project channel. In practice, the navigable channel extends at least to the navigation buoys. On the evening of October 15, 1991, the date of the allision, the red 78 buoy ("78 buoy"), located approximately 100 feet east of the project channel, and just south of the dredge site, marked the eastern edge of the navigable channel.

 (3)

 The WEEKS 516 was manned by marine construction personnel and operated 24 hours a day with three eight hour shifts: 7:00 a.m. - 3:00 p.m.; 3:00 p.m. - 11:00 p.m.; and 11:00 p.m. - 7:00 a.m. . The WEEKS 516 was anchored with four Dansforth anchors, each weighing approximately 10,000 pounds. One anchor was set out from each corner of the dredge -- two bow anchors (port and starboard anchors) and two stern anchors (port and starboard anchors). Each anchor was connected to the WEEKS 516 by steel cable approximately 1 1/4 inch in diameter.

 (4)

 The Tug GREGORY supported and assisted the WEEKS 516 in performing the dredging operation. Periodically, the GREGORY would set out the WEEKS 516's bow anchors. The GREGORY was also used to shuttle crews from and to shore. The GREGORY, a sixty foot tug boat with a seven foot draft, was manned by three Weeks' employees. The WEEKS 516 and the GREGORY communicated with each other on VHF Channel 67, Weeks' work channel. The GREGORY also had the task of monitoring the bridge to bridge communication channel, VHF Channel 13, in order to communicate with approaching vessels. The CHRISTIE, another small boat, was used for transporting Weeks personnel from and to shore when the GREGORY was otherwise occupied.

 (5)

 Aboard the WEEKS 516 there were two sets of hydraulic driven winches which were the means by which the dredge moved forward or backward towards its anchors. Although the WEEKS 516's winches had the capacity to pull in on the anchor cables, the winches could not mechanically "pay-out" (slacken) the cables. Instead, Weeks personnel had to manually slacken the dredge's bow and stern anchor cables, using one of three methods.

 The first two methods involved the use of the GREGORY, while the third method was used when the GREGORY was not available. The first method involved using the GREGORY to push or pull the dredge off the trench's center line, which caused one cable to be slackened. The process would then be repeated for the second cable. The second method involved using the dredge's crane bucket. The crane bucket would push each cable to the bottom while the tug held the dredge on line. The third method also employed the dredge's crane. The crane operator, using the crane bucket, would grab the river bed and swivel the crane boom back and forth to slacken the cables, one at a time.

 (6)

 The Setting Out and Location of the WEEKS #516 Anchors on October 15, 1991

 Based on the testimony of Captain Davenport, captain of the GREGORY, we find that on the afternoon of October 14, 1991, the Gregory set out the WEEKS 516's two bow anchors on the east side of the river. In setting the port (northern) bow anchor, the GREGORY's crew picked up and tied the port bow anchor buoy to a cleat on the tug's bow and towed the port bow anchor toward the eastern shore. The port anchor, connected to the anchor buoy by a 50 foot pennant, trailed underneath the GREGORY while the tug proceeded toward the eastern shore. According to Captain Davenport, once the GREGORY's seven foot draft touched bottom, the anchor buoy and anchor were released. This procedure initially placed the port anchor outside of the navigable channel "up on the flats" on the eastern side of the river. The Weeks personnel aboard the dredge then tightened up on the port cable and the anchor moved west until it dug into the river bed. This procedure was repeated for the starboard (southern) anchor.

 Both Captain Davenport and Daniel Mowers (Weeks project superintendent) testified that, set out in this manner, the southern bow anchor was located at least 20-25 feet east and 20-25 feet north of the 78 buoy. *fn1" The northern bow anchor was set approximately 300 feet north of the southern anchor, but approximately 50 feet closer in towards shore. Both of these anchors were positioned outside and east of the eastern boundary of the navigable channel, as marked by the 78 buoy. Moreover, the northern anchor, the anchor furthest east, was situated, at a minimum, 150-175 feet east of the project channel while the southern anchor was located approximately 120-125 feet east of the project channel. Based upon the consistent and thoroughly credible testimony of Captain Brown, plaintiff's expert, a licensed Hudson River tug pilot for nearly 19 years and presently a docking pilot for the Metropolitan Pilots' Association, as well as the Army Corps of Engineers chart and Iroquois Gas' overview drawing #WTX-HU-101, we find that due to shoaling east of the 78 buoy, both anchors were in relatively shallow water - approximately 15-20 feet. *fn2" Both anchors remained in the same position until the casualty.

 We also credit the testimony of plaintiff's expert, naval architect Martin Levin, who, based upon data consistent with our foregoing findings regarding the placement of the bow anchors, calculated that the fourteen foot clearance point for the dredge's port bow anchor cable occurred approximately 300 feet from the western edge of the project channel. Accordingly, for vessels with a draft of 14 feet or greater, such as the CATHERINE, three quarters of the project channel was completely obstructed.

 (7)

 The Positioning and Movement of the WEEKS #516 on October 15, 1991

 Edward O'Donnell, the 11:00 p.m. to 7:00 a.m. shift superintendent, testified at his deposition that after his crew placed the dredge back to the position it had occupied prior to the casualty, he took a fix and determined the exact location of the dredge's bow. *fn3" This position, which he determined approximately one half hour after the casualty, was station 32. O'Donnell, reviewing the Iroquois Gas dredge prints given to Weeks to use during this operation, testified that station 32 is located 105 feet east of the project channel's western edge.

 O'Donnell's testimony contradicted that of Blemaster and Johnson, namely, that the dredge was at position 9 at the time of the incident *fn4" -- a position well outside of the project channel. We credit O'Donnell's testimony. The testimony of Mowers revealed that, during the 7:00 a.m.- 3:00 p.m. shift, the dredge moved twice in order to backfill in three locations, thereby suggesting that the dredge-- which could backfill only 30-40 feet before moving to a new position-- would move forward approximately every 2-3 hours if it was engaged in continuous backfilling. It is undisputed that WEEKS #516 backfilled continuously during the entire 3:00 p.m. - 11:00 p.m. shift. We thus do not find it credible that, as Blemaster and Johnson assert, WEEKS #516 moved only once during the latter shift. Rather, we credit O'Donnell's suggestion that the dredge made a second move during this shift, to 32.

 (8)

 Based on the foregoing findings, we find that at the time of the casualty WEEKS #516 was located 105 feet east of the project channel's western edge, thereby. Its two bow anchor cables extended across the remaining portion of the navigable channel in a straight line from the dredge's bow to the two submerged anchors.

 (9)

 WEEKS #516's Procedures for Allowing Ships to Pass

 O'Donnell testified that Weeks has no operations manual for operating dredges and has never issued to its personnel any written guidelines which could assist their employees in determining when to slacken anchor cables for approaching vessels. At all relevant times, there existed aboard the WEEKS 516 Mr. Mowers' "standing order" that the shift superintendent was to decide whether the dredge should slacken the anchor cables for a passing vessel. Evidence adduced at trial, however, revealed that during the 3:00 p.m. - 11:00 p.m. shift, the crane operator and the mate would often make this decision.

 Arthur Johnson, a mate on the WEEKS #516, testified that in determining whether to slacken the cables, Weeks personnel considered only the dredge's proximity to the center of the channel and the draft of the oncoming vessel. No consideration was given to the amount of cable that was paid out, the weight of the anchor cable, the strength of the current, the size of the anchors or the tension on the cables.

 We note that on October 15, 1991, the day of the casualty, the 7:00 a.m. - 3:00 p.m. shift twice lowered the cables for passing vessels even though the dredge was not protruding as far into the channel as it was at the time of the casualty.

 (10)

 The Upbound Transit of the CATHERINE and the NORTH STAR

 On October 14, 1991, the day before the incident, the CATHERINE, *fn5" Tug NORTH STAR ("NORTH STAR") *fn6" and their respective tows traveled northbound up the Hudson River en route to Rensselaer, New York. During their northbound transits, both units passed the WEEKS 516 which was engaged in backfilling operations just west of the navigable channel. The dredge's bow anchor cables extended across the navigable channel to the anchors which had been set earlier that day, as described above.

 During the NORTH STAR's upbound transit, the NORTH STAR was towing a loaded tank barge which had a draft of 17-18 feet. As the NORTH STAR approached the dredge, the dredge contacted the NORTH STAR and inquired as to the unit's direction and the draft of the barge. Captain Allen of the North Star informed the dredge that his loaded barge drew 17 1/2 feet. The dredge advised the NORTH STAR that its anchor buoys were on the eastern side of the channel, and that due to the barge's draft, the cables would have to be lowered. WEEKS #516 subsequently slackened the cables.

 During their upbound transits, both the CATHERINE, NORTH STAR and their respective tows passed by the WEEKS 516 without incident.

 (11)

 The Events of October 15, 1991: The Downbound Transit of the CATHERINE and the NORTH STAR

 At approximately 7:50 p.m. on October 15, 1991, the CATHERINE towing the empty tank barge B. No. 45 ("B-45"), *fn7" owned by Bouchard Transportation Company, Inc. ("Bouchard"), departed the Agway Terminal in Rensselaer, New York and proceeded south on the Hudson River towards New York Harbor. When the tug and tow departed the Agway Terminal, Captain Frabel was on duty, along with Engineer Joe LeBreton and Deckhand Roland Hellengreen. Captain Frabel and Deckhand Roland Hellengreen testified that Captain Frabel was in the wheelhouse navigating the unit southbound by means of the center steering controls. Hellengreen, serving as lookout, sat on the settee located in the tug's wheelhouse. LeBreton remained below in the engine room, while the tug's other two crew members, the tug's mate and the other deckhand, were below in their quarters. During the downbound transit, Captain Frabel utilized his Furuno radar, and was monitoring channel 13 (the bridge to bridge channel) and channel 18a (Turecamo's house channel) on the tug's two VHF radios.

 In the vicinity of Fitch's Wharf, Captain Allen located the CATHERINE and B-45 on the NORTH STAR's radar. At that time the NORTH STAR, towing the empty tank barge ETHEL H ("ETHEL H"), was proceeding southbound at approximately 8 knots. Captain Allen estimated that the CATHERINE and B-45 were approximately one mile behind the barge he was towing. As the more powerful and faster CATHERINE and B-45 began to near the NORTH STAR and ETHEL H, and Captain Frabel and Hellengreen saw the large outline of the ETHEL H's stern and her stern light, Captain Frabel slowly reduced speed and fell in line behind the NORTH STAR and ETHEL H. The CATHERINE closed to within 1500-1750 feet behind the ETHEL H's stern and then further reduced speed to a little more than dead slow, thereby matching the speed over the ground that the NORTH STAR and her tow were travelling.

 Captain Frabel testified that, based on his recent transits through this area, he knew that the WEEKS 516 was performing dredging operations just south of Middle Ground Flats and had requested advance notice of a vessel's approach. Hence, at approximately 10:00 p.m., while the two units were just south of an area known as Four Mile Point, Captain Frabel attempted to contact the WEEKS 516 on channel 13 to advise the dredge that the units would be passing within 20 minutes.

 The GREGORY, which was traveling to shore to pick up the 11:00 p.m. - 7:00 a.m. crew and monitoring channel 13, responded to Captain Frabel's call. Captain Frabel advised the GREGORY that his tug was towing a "light barge on a short wire", that his tug and tow were the second of two units proceeding southbound, and that the CATHERINE'S draft was 14 feet. According to Captain Frabel, the GREGORY responded by instructing him "to hug the red [or left, or east] side of the channel and you won't have any trouble." Captain Allen, monitoring this call, averred that the GREGORY advised Captain Frabel that the anchor buoys were in the same place as they were the night before and instructed the CATHERINE to "stay on the eastern side of the channel and you boys will have no problems."

 Shortly thereafter, Captain Allen called the WEEKS 516 and stated: "This is the NORTH STAR, I am towing a light barge. I will be the first one you meet and I am drawing 14 1/2 feet." The GREGORY gave the NORTH STAR identical passing instructions. Captains Frabel and Allen each testified that they interpreted Weeks' instructions to mean that sufficient clearance existed on the east side of the navigable channel for their respective units to safely pass over the dredge's bow anchor cables.

 WEEKS #516 did not attempt to take any action to move out of the channel and did not slacken its bow anchor cables. On the dredge, Weeks' personnel prepared for the upcoming crew change. According to Johnson, by 10:10 p.m. some of the crew members had already begun washing up and getting ready for change of shift.

 Captain Allen testified that, at approximately 10:15 p.m., as the NORTH STAR passed the Hudson Boat Basin near the 79 buoy, he first sighted the WEEKS #516, observing that the dredge was situated within the channel, on the west side. The dredge was well lit by its bright flood lights. Captain Frabel testified that he sighted the WEEKS #516 a minute or two later, as the CATHERINE passed the 79 buoy.

 The Hudson River, from the 79 buoy south to Hudson Light, bends gradually to the right. Accordingly, as the units passed the 79 buoy they each had to make a gradual turn towards starboard to remain within the channel. However, because of the presence of the WEEKS 516 on the west side of the channel, Captain Allen had the NORTH STAR and her tow take a wide berth toward the east side of the channel through the bend. Captain Frabel testified that, in attempting to follow the NORTH STAR and her tow, the CATHERINE did likewise.

 The Hudson River south from Hudson Light to the 78 buoy the channel is virtually straight. Vessels proceeding from Hudson Light towards the 78 buoy generally favor the west side of the channel to avoid the known mud flats and shoaling east of the 78 buoy. Captain Allen testified, however, that due to the presence of the WEEKS 516 on the west side of the channel, the NORTH STAR and her tow were forced to favor the east side of the channel. Captain Allen testified that as the NORTH STAR and her tow approached the WEEKS 516. both his own visual scan of the river and his radar indicated that the CATHERINE and her tow remained approximately one-quarter of a mile directly astern of the NORTH STAR. *fn8"

 Captain Allen testified that, in accord with the GREGORY's instructions, he steered the NORTH STAR along what he believed to be the navigable channel's east edge. Captain Allen testified that the NORTH STAR came within 50 feet of the southern anchor buoy. As a consequence of this extreme eastward position, Captain Allen stated that he had to alter his course to starboard in order to pass on the channel side of the 78 buoy.

 (12)

 The Navigation of the CATHERINE

 Captain Frabel testified at trial that he sought to follow the NORTH STAR's path as the two units approached the dredge site. His trial testimony, however, also indicated that during its approach toward the WEEKS #516, the CATHERINE failed to utilize numerous aids of navigation available to her. More precisely, Captain Frabel stated that he was aware that the cables ran to anchors marked by anchor buoys east of the ship channel, but he nonetheless did not look for the anchor buoys visually or on radar. Nor did the CATHERINE utilize her 1000 watt searchlight to locate the anchor buoys. In addition, although Captain Frabel knew that if the CATHERINE utilized her radar she would be able to observe the red flashing 78 buoy and the 76 buoy marking the east side of the navigable channel, he did not employ the radar for that purpose or even attempt to sight these channel markers visually. The CATHERINE did not use her radar for any purpose-- to determine her distance off Hudson Light upon her passage of that point; to locate WEEKS #516; or to locate the red flashing 78 buoy or the 76 buoy which mark the easterly channel line. Finally, Captain Frabel did not steer courses or utilize the CATHERINE's gyro or magnetic compass for any purpose.

 Rather, Captain Frabel averred that he relied on his local knowledge (accrued during nearly 500 navigations of the Hudson River) and certain visual aids-- including the eastern shore, the power stanchions located thereon, and the 78 buoy-- to take visual distances that (to his mind) confirmed that the CATHERINE was maintaining a course on the east side of the channel as he attempted to pass the dredge.

 (13)

 The Sequence of Events During the Actual Allision

 Captain Frabel testified that as the CATHERINE came abeam of the WEEKS 516, he suddenly saw (while looking over the tug's starboard bow) a taut, horizontal cable leading off the WEEKS 516's port bow and entering the water only 50-75 feet from the CATHERINE. It was readily apparent to Captain Frabel that there was not going to be sufficient clearance for the CATHERINE to pass over the cable, and he told Hellengreen: "I don't think we're going to make it." Captain Frabel immediately reduced speed to dead slow, but in the hope of clearing the cable, he intentionally kept his engines engaged. Hellengreen testified that, a few seconds later, the CATHERINE snagged the anchor cable, causing the tug to come to an abrupt stop. Captain Frabel promptly sounded the tug's alarm and ordered Hellengreen below to warn the other crew members of the imminent collision with her barge, B-45.

 Seconds after the CATHERINE snagged the dredge's anchor cable, the B-45 struck and overrode the tug's stern, causing the tug's bow to rise and the stern to fall. Captain Frabel and Hellengreen testified that the B-45's bow came to rest against the CATHERINE's aft steering station, otherwise known as the doghouse. Water began pouring over the tug's stern and reached as far forward as the engine room's aft doorways. The engineer and the other deckhand were able to secure these doors before the water could flood the engine room. The engineer then gathered life jackets and survival gear and placed them in the tug's galley in case the crew was ordered over the side. Captain Frabel testified that at that time, he believed that the CATHERINE was going to be "sucked down" and he was prepared to order the crew to abandon ship.

 A few seconds later, however, the port bow anchor cable snapped, causing the CATHERINE to shoot out from under the barge in a westerly direction. The CATHERINE continued moving in a westerly direction for approximately 100 feet before Captain Frabel could regain control of the vessel and steer in a southerly direction.

 Blemaster testified that due to the combined effects of the broken anchor cable and the ebb tide, the WEEKS 516 drifted south in the direction of the overhead power wires. Although the WEEKS 516 swung south, the dredge's stern cables kept the dredge from moving further east into the channel. Although the CATHERINE and her tow moved west in the direction of the dredge, the tug did not collide with the dredge and at no time was Captain Frabel or any of the Weeks crew members concerned that a collision would occur.

 Once he had the CATHERINE back under control, Captain Frabel made numerous unanswered calls to the WEEKS 516 to find out why Weeks had "tightened the wire." Eventually, Blemster responded to Captain Frabel's repeated calls and inquired whether everyone aboard the CATHERINE was okay. After confirming that everyone was okay, Captain Frabel again inquired why the dredge did not provide sufficient clearance for his unit to pass. Blemaster ignored the inquiry and told Captain Frabel to proceed on with his downbound transit.

 Captain Frabel testified that after the incident had taken place, during the remainder of the CATHERINE's transit to New York Harbor, the crew members felt vessel vibrations which they had not experienced prior to the incident. In spite of these vibrations, the tug's crew was able to navigate the remainder of the trip without further incident. On the morning of October 16, 1991, the CATHERINE and B-45 met the tug ELIZABETH TURECAMO ("ELIZABETH") off the World Trade Center. The ELIZABETH relieved the CATHERINE and took the B-45 to Caddell's Shipyard in Staten Island. The CATHERINE proceeded to Pier 5 in Staten Island where divers examined the tug's hull for damage.

 (14)

 The Position of the CATHERINE Immediately Before and During the Casualty

 Turecamo presented evidence intended to establish that the CATHERINE complied with the GREGORY's instruction to favor the eastern side of the channel. During his deposition, Captain Allen averred that the CATHERINE was directly astern of his tow when his unit began to pass the WEEKS 516. Captain Frabel and First Mate Hellengreen testified that Captain Frabel, using the ETHEL H's stern light, as well as the NORTH STAR's and her tow's quick water, was following directly behind Captain Allen's unit as he navigated past the dredge. Both men estimated that the CATHERINE was approximately 200 feet away from the dredge when it snagged the cable. In light of our finding supra that the dredge was 105 feet into the channel, this testimony paces the CATHERINE's starboard side 300 feet from the project channel's western side, and (accounting for the CATHERINE'S width of 30 feet), places the CATHERINE'S port side approximately 70 feet from the east side of the project channel. Accordingly the B-45, which significantly exceeded the size of the tug, would have been even closer to the project channel's eastern edge. Situated in this position, the CATHERINE would have been in compliance with the GREGORY's instruction.

 In support of its contention that the CATHERINE was on the west side of the channel when it snagged the cable, Weeks presented the testimony of Blemaster and Johnson, who testified that at the time the CATHERINE made contact with the dredge's anchor cable the tug was between 70 feet (Blemaster) and 100 feet (Johnson) off the bow of the WEEKS #516. Several factors, however, persuade us that this testimony is not credible. First, at the time the CATHERINE made its final approach toward the dredge, neither Blemaster nor Johnson was out on deck. Blemaster was in his office and Johnson was in the mate's shack changing his clothes. Second, Johnson conceded that when he first saw the CATHERINE and the NORTH STAR approach, the CATHERINE was directly astern of the NORTH STAR. Johnson conceded, however, that his view was obstructed at the time of the casualty *fn9" and that he was peering into darkness from a well-lit dredge. Nor, despite alleged proximity of the CATHERINE to the dredge, could Johnson recall any other relevant distances or estimate the size of the CATHERINE or its tow.

 Moreover, as the CATHERINE made her final approach (allegedly within 100 feet of the dredge), trial testimony indicated that no warnings were given aboard the WEEKS 516 and no one appeared alarmed. According to Johnson, it was only right before the CATHERINE snagged the cable, when "it was too late to do anything," that he noticed that the CATHERINE was within 100 feet of the dredge and that it was going to snag the cable. Johnson and Blemaster also testified that although the CATHERINE was within 70 feet of the dredge when the tug snagged the cable, at no time were they ever concerned that the CATHERINE or its 300 foot x 60 foot barge would collide with the dredge.

 The foregoing testimony of Johnson and Blemaster with respect to the position of the CATHERINE at the time of the casualty is simply inconsistent with their own testimony, and that of others, concerning the sequence of events during and after the CATHERINE's contact with the anchor cable. According to both Captain Frabel, and Blemaster himself, after the cable snapped, the CATHERINE shot out from under the barge at a 90 degree turn to starboard, in a westerly direction, for approximately 100 feet before Captain Frabel was able to gain control of his unit. If, in fact, the CATHERINE had been only 70 feet from the dredge when this incident occurred, both Johnson and Blemaster would have certainly felt that a collision was imminent when the CATHERINE shot out from under the barge and headed in the direction of the WEEKS 516.

 In light of the foregoing, we find that the CATHERINE attempted to comply with the GREGORY's instruction, and, in doing so, had by the time of the casualty steered somewhere between 100 and 200 feet from the WEEKs #516. We find, however, that although there is evidence that the CATHERINE slowed, it nonetheless maintained a course and speed that enabled it (in Captain Frabel's view) to pursue the path tracked by the North Star.

 (15)

 Causes of the Allision

 The Court finds that the protrusion of the WEEKS #516 into the navigable channel and its failure to slacken its bow anchor cables upon the approach of the NORTH STAR and CATHERINE constituted hazards which partly caused the allision. The Court also finds that the failure of the CATHERINE to utilize all of its navigational aids and further slow down to accommodate clear and separate passage partly contributed to the allision. The Court attributes 66 2/3% of the fault to the WEEKS #516 and 33 1/3% of the fault to the CATHERINE.

 (16)

 Damage to the B-45

 On the day following the accident, Turecamo placed Weeks on notice that Turecamo intended to hold Weeks liable for all damages Turecamo would incur as a result of the casualty. In response, Weeks denied any liability and advised Turecamo that the company was holding Turecamo liable for damage to the WEEKS #516 incurred as a consequence of the incident. James Newman, a vice-president of Turecamo, and Peter Austen, Risk Manager for Bouchard, testified that shortly thereafter, Bouchard placed Turecamo on notice for all of their damages associated with this incident.

 On October 18, 1991, a joint survey of the B-45 occurred at the Caddell Shipyard in Staten Island, New York, while the barge was lying in drydock. Newman testified at trial that Norman C. Jensen attended the joint survey on behalf of Turecamo's underwriters' interests, while other parties in attendance included Johan P. Van Grieken - representing Bouchard's underwriters; Robert Massa -- representing Caddell Drydock & Repair Company; Robert Bouchard, Jr. -- representing Bouchard's interests; and George Wittich -- representing Weeks' interests. Testimony at trial established that the surveyors discovered damage to the barge's bow rake, damage to the barge's bottom plating (areas of which had been pushed in significantly), and internal structural damage above the damaged bottom plates. Austen testified that the surveyors, with the exception of Mr. Wittich, *fn10" determined that due to the nature of this damage the barge was not seaworthy. Accordingly, Austen testified at trial, the barge was taken out of service so that immediate repairs could be made. With the exception of Wittich, the surveyors involved in the joint survey were of the opinion that all of the damages noted were reasonably attributable to the Weeks incident. Both Newman and Austen testified that Bouchard's total damages included: Repairs to the B-45: $ 84,800.00 Tank cleaning and gas freeing of the barge prior to the commencement of work: $ 17,125.00 Towing expenses associated with placing the B-45 in and out of drydock: $ 2,606.75 Survey charges: $ 3,404.00 Loss of hire of the B-45 for 232.5 hours $ 58,125.00 Total Amount of Damages: $ 166,060.75

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