Essentially, then, the court finds that it was the bottom surveys in 1976 and 1985 that revealed the pipeline was exposed; that under the circumstances, such recurrence of erosion put plaintiff on notice that there might be future recurrences; that in fact at the time and place of the allision, the erosion of the rip-rap cover installed in 1976, and again sometime after 1985, had recurred leaving the pipeline in the vicinity of the CAPTAIN DANN incident exposed in 1990; and the vehicular inspections of the pipeline conducted by Texas Eastern following the recurrence of erosion in 1985 constituted very ineffective and imprudent monitoring of the pipeline's cover, and consequently, the new erosion existing on the date of the allision was not discovered by Texas Eastern.
CAPTAIN DANN is a steel hull tugboat measuring 114 feet in length and 33 feet in breadth. The tug has an upper and a lower operational pilothouse, the upper being 20 feet higher than the lower. Obviously, visible objects may be better viewed from the upper pilothouse in the event there is a restricted view from the lower pilothouse. At the time of the allision, CAPTAIN DANN carried a crew of six, including Captain Robert Gossett and Mate James Loflin, referred to infra.
Barge B No. 55, which allided with the pipeline, is a typical tank barge measuring 300 feet in length and 58 feet in width. At the relevant time, the barge was empty and had a draft of about 2 to 3 feet at the bow and 4 to 4-1/2 feet at the stern where its skegs (fixed rudders for directional stability) are located.
On November 23, 1990, the empty barge in "hip-tow" of the CAPTAIN DANN (the tug was made up to the barge's port quarter) under the command of Captain Gossett, left New Haven, Connecticut destined for the Exxon terminal in Bayway, New Jersey (just south of the Goethals Bridge). Shortly after midnight, at 0100 hours on November 24, 1990, Gossett arrived at Exxon only to learn that an open berth at the terminal would become available in about one-half hour later. Gossett remained nearby the terminal waiting to berth. As it developed, after waiting in the river for one-half hour, a berth still did not become available and Gossett continued to wait. At 0215/0230 hours, Gossett went off duty and was relieved by Mate Loflin. At that point in time, Loflin assumed command of the tug, which he operated from the fully equipped lower pilothouse, as had Gossett in making the theretofore uneventful trip from New Haven to Exxon, Bayway, New Jersey.
When Loflin relieved Gossett and assumed operation of the tug, the flotilla lay perpendicular to the river - in an east-west direction - and according to Loflin (who was on duty at the time), the bow had already beached on the Staten Island bank of the river. Before Loflin took command finding the flotilla in the perpendicular position, Gossett had not posted a lookout on either CAPTAIN DANN or the barge, and as previously noted, Gossett operated the tug from the lower rather than upper pilothouse. There is no evidence that after assuming duty from Gossett, Loflin posted a lookout on either the tug or barge.
At approximately 0230 hours on November 24, 1990, Loflin backed the flotilla away from the Staten Island bank westerly across the river (toward New Jersey), then came ahead and to the left thus turning the flotilla with bow facing north into the ebbing tide, which kept the flotilla from drifting further south. Loflin was then still near the Staten Island shore in shallow waters, well out of the main ship channel and in a designated pipeline area. The vicinity of the flotilla was minimally illuminated by the lights on the opposite shore at the Exxon refinery some distance away. On the Staten Island shore, there was no visible pipeline leading into the water, but the pipeline crossing area was clearly indicated on the navigation chart and concededly Loflin was advised by Gossett that the flotilla was in a pipeline area. Additionally, Loflin could see Texas Eastern's warning signs on the shore regarding not anchoring or dredging.
At approximately 0250 hours on the morning of November 24, 1990, after Loflin had backed away from the Staten Island bank and turned, putting the flotilla parallel with the river and "stemming the tide," as described supra, the barge's position in the river was approximately fifteen to twenty feet off the bank and in waters approximately 4-1/2 feet in depth. Also, as noted above, the area was poorly illuminated. At such point in time and position in the river, Mate Loflin felt a bump concurrent with a metallic sounding noise (i.e., like metal hitting against metal), and a spout of water was observed on the surface of the river, indicative that a natural gas pipeline had been ruptured. The court finds that the barge, drawing 4-1/2 feet at the stern, and plaintiff's pipeline, which at that location and at that point in time was below approximately 4-1/2 feet of water but exposed above the riverbed, came into contact tearing a small hole near the top of the pipeline.
As a result of the allision, the pipeline was not flattened, the barge was not damaged, and neither the barge nor tug was stranded or grounded at the time or location of the allision. The court further finds from a preponderance of credible evidence, including documentary evidence generated by plaintiff's employees, that the pipeline at the point of contact and at the time of the allision was exposed above the riverbed and not covered with rip rap.
About two weeks after the allision, on December 9, 1990, engineers P & O performed their bottom survey of the pipeline for the full width of the river and recorded the findings on a drawing bearing the identification "P & O File No. D26-1501-23" and dated December 14, 1990 (exh. 16). After the December 1990 bottom survey was completed, Texas Eastern's Area Superintendent, J.W. Roberts, forwarded the survey results with a narrative report to his immediate superior, Roy Hartstein, Technical Operations Superintendent at Texas Eastern's Division office in Harrisburg, Pennsylvania.
Of particular pertinence to the problem of "insufficient" or "questionable" cover of the pipeline at the allision site at time of the allision due to recurrent erosion, and thus plaintiff's duty to continually monitor such erosion of cover, the Roberts memorandum recites:
Line # 1-R Arthur Kill River Crossing has insufficient or questionable cover at the following locations (survey stations per those shown on attached Pyburn & Odum survey, D26-1501-23).
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