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GREAT AMERICAN INS. CO. v. TUGS "CISSI REINAUER"

August 8, 1996

GREAT AMERICAN INSURANCE COMPANY a/s/o OYSTER BEND MARINA AND WILLIAM LINDWALL, Plaintiffs, against TUGS "CISSI REINAUER," "LEIGH ANN REINAUER," their engines, boilers, etc., and the Barges "RTC 330," "FULTON," and "PETER R. HEARNE," their boilers, etc., and REINAUER TRANSPORTATION COMPANIES, INC., Defendants.


The opinion of the court was delivered by: SAND

 Sand, J.

 Plaintiffs, the insurer of the Oyster Bend Marina ("the Marina") and William Lindwall ("Lindwall"), owner of a houseboat, brought this action to recover for property damage caused by tugboats and barges owned and operated by defendant Reinauer Transportation Companies ("Reinauer"). After consideration of the evidence presented at a five-day bench trial, the Court, for the reasons set forth below, finds for defendants on all claims.

 BACKGROUND

 A. THE PROJECT

 The Marina utilized bubbling devices to prevent ice from forming near the pilings so that there was clear water immediately adjacent to the piers.

 During the thirteen-month period between January 16, 1994, and February 9, 1995, four incidents occurred in which tugs and barges owned by Reinauer and operated along the Norwalk River, pushed ice into the Marina, thereby causing substantial damage to docks and dolphins in the Marina and to the houseboat owned by Lindwall.

 B. THE INCIDENTS

 
a. Incident of January 16, 1994

 On January 16, 1994, at approximately 8:30 p.m., tug Cissi Reinauer ("Cissi"), under the command of Captain William Sanford ("Sanford"), entered the Norwalk River with barge RTC-330, which contained approximately 12,000 barrels of home-heating oil, in tow. The tug and barge were en route to Devine Brothers Dock ("Devine Bros."), located upriver from the Marina. At 9:30 p.m. the tug and barge, while near the Metro North Bridge, encountered ice between eight and ten inches thick. Sanford separated the tug from the barge and proceeded upriver in the tug, past the Oyster Bend Marina, to Devine Bros. In doing so, Sanford broke ice in the federal channel. Thereafter, he returned to his barge, attached it to the tug, and delivered it to Devine Bros. These maneuvers forced ice into the Marina, thereby causing substantial damage to plaintiffs' docks, pier, dolphin, and ice management equipment.

 b. Incident of January 24, 1994

 On January 24, 1994, tug Cissi, under the command of Capt. Robert Markuske ("Markuske"), entered the Norwalk River with barge RTC-330 in tow, carrying heating oil to be delivered to Devine Bros. At approximately 7:00 a.m. Markuske encountered ice, between six and ten inches thick, in the vicinity of the Metro North Bridge. The United States Coast Guard vessel Ballard, a sixty-five foot tug boat, navigated ahead of the Cissi and past the Marina in an effort to help clear the ice. After the Ballard travelled past the Marina, breaking ice, Markuske navigated tug Cissi, pushing barge RTC-330 stern first, past the Marina. Plaintiffs, informed by the bridge tenders that a tug would navigate upriver on the morning of the twenty-fourth, captured on videotape the tug's attempt to pass the Marina. The tug's maneuvers forced ice into the Marina, thereby causing substantial damage to plaintiffs' pilings and piers.

 c. Incident of February 6, 1994

 On February 6, 1994, at about 5:00 a.m., the tug Leigh Ann Reinauer ("Leigh Ann"), under the command of Capt. Norman Bourque ("Bourque"), entered the Norwalk River with the barge Fulton, laden with home-heating oil. At about 6:10 a.m. the tug and barge encountered ice approximately two to four inches thick, in the vicinity of the Metro North Bridge. Bourque navigated the tug, which was pushing the barge stern first, past the Marina to Devine Bros. Plaintiffs, armed with their video camera, witnessed the passage, which resulted in ice once again being pushed into the Marina. At 6:20 p.m. Bourque navigated the tug and barge back down river pushing more ice into the Marina. These two passings caused substantial damage to plaintiffs' docks.

 d. Incident of February 9, 1995

 On February 9, 1995, the tug Cissi, captained by Sanford, with the barge Peter Hearne laden with home-heating oil, entered the Norwalk River, en route to Devine Bros. Upon encountering ice between four and six inches thick near the Metro North Bridge, Sanford disattached the tug from the barge and proceeded north in order to break the ice. Sanford reached a point approximately two-hundred yards from the Marina and, after two failed attempts, decided to turn back rather than navigate further upriver. As a result of these attempts, large sheets of ice were pushed into the Marina, causing substantial damage to both the docks and the houseboat owned by Lindwall.

 C. THE DAMAGE

 The damage in this case is relatively uncontested. During the first incident, on January 16, 1994, ice pushed into C dock (see exhibit 1A attached) bending pilings and breaking docks. Tr. at 220. During the second incident, on January 24, 1994, C dock experienced similar damage as did the northern-most finger pier and dolphin of A dock. At trial, Captain Olsen testified that the damages caused to C dock as a result of the first two incidents totalled $ 13,939, and the damage to A dock was $ 2,700.

 During the third incident, on February 6, 1994, finger floats and pilings on A dock were broken (Tr. at 238-40). Similar damage to B dock and D dock occurred.

 On February 9, 1995, during the last incident, the flotation pontoons of the main dock areas were forced from underneath the dock resulting in A dock sustaining damage. Defendant's surveyor estimated that the damages to the Marina totalled $ 30,000, and the damages to the Lindwall houseboat totalled $ 12,500. (Pl. Ex. 38 and 39).

 D. THE NORWALK RIVER

 The Norwalk River is a winding river that flows in a southerly direction from the town of Norwalk, Connecticut, through Norwalk Harbor, and empties into the Long Island Sound. The Norwalk River is described in the U.S. Coast Pilot ("the Pilot") as a navigable river comprising two sections: the section south of the Metro North Bridge, which passes the town of South Norwalk, and the section north of the Metro North Bridge, which leads to the town of Norwalk. Def. Trial Ex. KK ("Def. Ex.").

 A river is considered "navigable" if it is capable of being used by the public for the purposes of transportation and commerce. Pitship Duck Club v. Town of Sequim, 315 F. Supp. 309 (D.C. Wash. 1970); Alabama Power Co. v. Gulf Power Co., 283 F. 606 (D.C. Ala. 1922); see also Cardwell v. American Bridge Co., 113 U.S. 205, 28 L. Ed. 959, 5 S. Ct. 423 (1885). Navigability does not depend on there being no occasional difficulties in navigation, as long as the river, in its natural and ordinary condition, affords a channel for commerce. Pennsylvania Envtl. Council, Inc. v. Bartlett, 315 F. Supp. 238 (D.C. Pa. 1970), aff'd, 454 F.2d 613 (1971). Therefore, a river remains navigable regardless of whether its waters are in fact navigable throughout the entire year, U.S. v. Florida, 269 F. Supp. 903 (D.C. Fla. 1967), as long as its practical utility as a means of transportation has not been permanently destroyed. Harrison v. Fite, 148 F. 781 (8th Cir. 1906). Finally, the finding of whether a river is navigable is an issue of fact. U.S. v. 101.88 Acres of Land, 616 F.2d 762 (C.A. La. 1980).

 In the instant case it is uncontested that the Norwalk River is a navigable river. There has been some discussion, however, as to whether the Norwalk River was navigable at the time each of the above incidents took place. Specifically, plaintiffs contend that the expert testimony of Capt. Peter Stalkus ("Stalkus") established that during the four relevant time periods, the section of the Norwalk River in question was closed to navigation. Pls.' Post-Trial Mem. at 6. Buttressing plaintiffs' assertion, the Pilot states that "the harbor and river above South Norwalk are covered with ice during a part of the winter . . . a channel is ordinarily kept open to the [1-95] highway bridge, but the East Norwalk Channel and the channel in the river [north of the Metro North Bridge] are usually closed for about six weeks each winter." Def. Ex. KK. Despite these contentions the Court finds that the Norwalk River north of the Metro North Bridge was open to navigation during the four relevant periods. A distinction must be made between a river classified as unnavigable and a river closed to navigation for a particular period but nonetheless classified as navigable. This distinction, coupled with the evidence adduced at trial, supports the conclusion that the section of the Norwalk River in question was navigable on the dates in question.

 Scalise testified that he was aware that the river remained open to navigation throughout the year. Tr. at 62. Further, the excerpt from the Pilot, cited supra, states only that the river is "usually" closed for a certain period each winter. Def. Ex. KK. It does not specify the months during which the river is actually closed. In fact, defendants have provided ample proof that the river was not closed to navigation for the months of January and February, 1994 and February, 1995; the bridge logs for the Washington Bridge, the southernmost bridge on the Norwalk River, show that numerous vessels navigated up river on at least eight other days in January, ...


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