2. January 24, 1994
Plaintiffs assert that during the January 24, 1994, incident, defendants failed to take proper precautions, thereby violating Section 2002. Scalise and his son, Richard, Jr. ("Scalise, Jr."), both of whom witnessed and videotaped the passing of the Coast Guard vessel Ballard and defendants' tug Cissi, testified that it was the Cissi, due to its greater width when combined with the barge, that damaged certain parts of the Marina. Tr. at 35, 52-53, 233-34, 237. Plaintiffs stress that Markuske, the captain of the Cissi on that date, continued navigating past the Marina even though he heard yelling from the dock. Markuske Dep. at 47. Plaintiffs also argue that Markuske failed to comply with Coast Guard regulations pertaining to navigational equipment aboard his vessel; specifically, he did not consult the Pilot for the Norwalk River on the voyage in question. Markuske Dep. at 43; Pls.' Post-Trial Mem. at 18. Plaintiffs also note that it is unclear whether Markuske filed an incident report as he was required to do under the Reinauer Operations Manual. Markuske Dep. at 45-46, Pl. Post Trial Mem. at 17.
None of these arguments, however, in any way establishes the violation of a statutory safety measure intended to prevent collisions. Even if Markuske were aware that the man was screaming from the Marina because damage being caused,
such knowledge would fall far short of establishing a violation of a safety statute. Indeed, the Court has not been presented with, nor are we aware of, any safety statute that bars navigation in a federal channel if the navigation would result in unavoidable damage to a riparian structure. Moreover, it cannot be maintained that by continuing upriver, Markuske contravened Section 2002's general requirement that a captain exercise the "ordinary practice of seamen [in those] circumstances." 33 U.S.C. § 2002. The facts plainly show that the ordinary practice of seamen is to traverse the Norwalk River despite difficulties presented by ice. The Devine Bros. fuel storage facility long pre-existed the construction of the Marina. As discussed at length supra, pp. 5-7, the Norwalk River was open to navigation on the dates in question. Markuske's failure to consult the Pilot is of no consequence. While plaintiffs argue that this is a violation of Coast Guard regulations, Pls.' Post-Trial Mem. at 18, the Court is unaware of a specific regulation requiring a captain to reread the Pilot prior to each voyage.
Finally, Markuske's failure to file an incident report pursuant to company regulations, even if true, is hardly a violation of a statutory safety measure intended to avoid collisions. Therefore, we conclude that defendants were not in violation of Section 2002.
Plaintiffs also assert that the Reinauer vessel was in violation of 33 U.S.C. § 2005, which requires "every vessel [to] at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision." 33 U.S.C. § 2005; see Markuske Dep. at 66-67; Pls.' Post-Trial Mem. at 64. Interestingly, plaintiffs do not contend that a look-out was absent, but rather that defendants' look-out was improperly positioned. Pls.' Pre-Trial Mem. at 10; Pls.' Post-Trial Mem. at 64-65. They assert that the look-out ought to have been posted on the barge, not in the wheelhouse. Pls.' Pre-Trial Mem. at 10; Pls.' Post-Trial Mem. at 64-65. But, as plaintiffs point out in their Post Trial Memorandum, it is the duty of a tug to maintain a look-out on a barge only when required by conditions of navigation. Pls.' Post-Trial Mem. at 65; see, e.g., Gulf Oil Corp. v. The Socony No. 16, 162 F.2d 869 (2d Cir. 1947). Both Section 2005 and pertinent case law clearly indicate that what constitutes a proper look-out within the meaning of the statute is an issue of fact to be determined upon making explicit reference to "prevailing circumstances and conditions." 33 U.S.C. § 2005; Walker v. Braus, 861 F. Supp. 527, 531 (E.D. La. 1994) (citing Inland Oil and Trans. Co. v. Ark-White Towing Co., 696 F.2d 321, 325 (5th Cir. 1983)).
The testimony and evidence presented at trial indicate that when the January 24, 1994, incident took place, the Cissi was traveling at a slow speed, that the accident occurred during daylight hours, and that there was no risk of sudden collision, given that the Cissi was following a narrow passage through the ice created by the Coast Guard Vessel Ballard. Markuske Dep. at 31; Pl. Ex. 23. We thus find, in light of these conditions and circumstances, that placing the look-out in the wheelhouse was proper under 33 U.S.C. Section 2005. Therefore, we hold that defendant did not commit a statutory violation in regard to the January 24, 1994, incident.
3. February 6, 1994
As to the third incident of February 6, 1994, plaintiffs claim that defendants again failed to take proper precautions while navigating and therefore violated Section 2002. Pls.' Post-Trial Mem. at 40. However, they have proffered no evidence to support this contention. Plaintiffs' memoranda simply outline the facts of the incident and speak only to the issues of causation and the measure of damages. Pls.' Pre-Trial Mem. at 12-16; Pls.' Post-Trial Mem. at 19-25. There is no evidence that Capt. Bourqe was traveling too fast or that he was even aware that his passage was causing damage to the Marina. Bourque Dep. at 69. Therefore, we conclude that there was no violation of Section 2002.
Plaintiffs assert that defendant's also violated Section 2005. Again, plaintiffs do not contend that a look-out was absent, but rather that defendant's look-out was positioned improperly in the wheelhouse instead of on the barge. Pls.' Post-Trial Mem. at 21, 64. As mentioned supra, p.17, it is the duty of a tug to maintain a lookout on a barge only when required by conditions of navigation, and that this question is one of fact to be determined in reference to prevailing circumstances and conditions. See supra, p. 17.
The testimony and evidence presented to the Court indicate that the February 6, 1994, incident took place during daylight hours, on a clear day, and that there was no risk of sudden collision, given that the river upstream was a field of solid ice. Bourque Dep. at 60, 62; Pl. Ex. 23; Def. Ex. NN. We thus find, in light of these conditions and circumstances, that placing the look-out in the wheelhouse was proper under 33 U.S.C. Section 2005 and that no statutory violation occurred.
4. February 9, 1995
In regard to the last incident of February 9, 1995, the only claim of a statutory violation is one of general negligence, presumably made under 33 U.S.C. Section 2002. Pls.' Pre-Trial Mem. at 24. Plaintiffs make no assertion other than that the tug and barge, captained by Sanford, attempted to navigate upriver despite Sanford's knowing that these attempts were causing damage to the Marina. Tr. at 164-65, 172-74. Under the Rule of The Pennsylvania, plaintiffs must establish that a statutory violation occurred. The Pennsylvania, 86 U.S. at 136, 22 L. Ed. 148. Plaintiffs have failed to prove that merely attempting to traverse up river itself amounts to a statutory violation. Nor have plaintiffs shown that in attempting to navigate upriver, Sanford neglected any precaution required by the ordinary practice of seamen. Therefore, we conclude that the Pennsylvania Rule is not applicable to either the damage done to the Marina or the damage done to Lindwall's houseboat.
In response to plaintiffs' assertion that defendants violated statutory law, defendants contend that plaintiffs violated 33 U.S.C. § 403 by failing to secure the required Army Corps of Engineers permit to build the southernmost dolphin. Under the Pennsylvania Rule, plaintiffs have the burden of proving that this violation could not have been the cause of the damage. The Pennsylvania, 86 U.S. at 136. Defendants urge us to follow precedent and apply the Pennsylvania Rule here. Board of Comm. v. M/V Agelos Michael, 390 F. Supp. 1012 (E.D. La. 1974) (applying Pennsylvania Rule to stationary structures lacking the permit required by Section 403); Dow Chem. Co. v. Dixie Carriers, Inc., 330 F. Supp. 1304 (S.D. Tex. 1971), aff'd, 463 F.2d 120 (5th Cir. 1972) (same); United States v. Norfolk-Berkley Bridge Corp., 29 F.2d 115, 125 (E.D. Va. 1928) (same); Fast v. Western Trans. Co., 288 Ore. 193, 604 P.2d 400 (Or. 1979) (same); William B. Patton Towing Co. v. Spiller, 440 S.W.2d 869 (Tex. Civ. App. 1969) (same). However, the cases cited by defendants all involve a Section 403 violation that concerned an obstruction to navigation. Obstructions to navigation have historically included floating docks in navigable waters, see, e.g., Fast, 288 Ore. 193, 604 P.2d 400, and an overhang into navigable waters, see, e.g., Agelos Michael, 390 F. Supp. 1012. Here, the dolphin in question was set back from the navigable water line and in no way obstructed navigation. Pl. Ex. 1A. As there was no obstruction to navigation we, find the Rule of The Pennsylvania to be inapplicable.
B. LIABILITY OF A MOVING VESSEL THAT COLLIDES WITH A STATIONARY OBJECT
It is a well-established proposition of maritime collision law that when a moving vessel collides with a stationary object, "an inference of negligence arises and the burden is then upon the owners of the vessel to rebut the inference of negligence." General Petroleum Corp. v. Los Angeles, 42 Cal. App. 2d 591, 109 P.2d 754, 756 (Cal. Dist. Ct. App. 1941); see, e.g., Farrell Lines, Inc. v. The Birkenstein, 207 F. Supp. 500, 505 (S.D.N.Y. 1962). Therefore, the issue becomes whether defendants have presented sufficient evidence to rebut the presumption of negligence.
As discussed supra, pp. 12-20, defendants did not violate any safety statutes. We also find that at no time did defendants' vessels travel at an excessive speed. In fact, ice conditions were such that vessels could only navigate at slow speeds. Finally, plaintiffs have admitted that the mere fact of attempting to navigate up the river does not, by itself, constitute a failure to use reasonable care. Tr. at 15. These factors suffice to rebut the inference of negligence and support our conclusion that, with respect to all four incidents, there was no negligence on the part of defendants.
C. RIPARIAN PROPRIETOR'S ASSUMPTION OF RISK
It is well-established at common law that a riparian proprietor whose land is bounded by a navigable stream has certain rights, including the right of access from the front of his lot to the navigable part of the river and the right to build a landing, wharf, or pier for his own or for public use. These rights are subject to such general rules and regulations as the legislature may see proper to impose. Yates v. Milwaukee, 77 U.S. 497, 504, 19 L. Ed. 984 (1870); New York, New Haven & Hartford R. Co. v. Long, 72 Conn. 10, 21, 43 A. 559 (1899). The right to construct a wharf derives from the right of access to "navigable" or "deep" water. 1 H.P. Farnham, Water and Water Rights § 62. For that reason, "as soon as the point of navigability is reached, the purpose of the pier is fulfilled, and the right to construct it ceases at that point." Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018, 13 S. Ct. 110 (1892). It has been held that the commercial operation of a marina, whose docks do not extend beyond the point of navagibilty, is a reasonable use of riparian rights. Huntington v. Wood, 97 A.D.2d 781, 468 N.Y.S.2d 520, 523 (1983).
The common-law right of riparian proprietors to build wharfs as far as the navigable water line has been superseded by 33 U.S.C. § 403. Section 403 prohibits the construction of "any obstruction . . . any wharf, pier [or] dolphin . . . in any . . . navigable river . . . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army." 33 U.S.C. § 403. With the one caveat discussed supra, p. 19, it is uncontested that plaintiff Marina procured the appropriate Department of the Army Permit, Pl. Ex. 1; Def. Ex. OO, and thus did not violate Section 403.
Along with the rights of riparian owners comes the assumption of certain risks and obligations. Specifically, docks must be maintained in good condition, vessels tied to them must be seaworthy and properly moored, and the dock owner must anticipate harm from passing vessels and guard against such damage. O'Donnell Trans., 228 F. Supp. at 909; see also Polerized Chicago Corp. v. Hannah Inland Waterways Corp., 1981 AMC 762, 766 (N.D. Ill. 1980). Additionally, shore installations, by reason of their location, are "subject to the dangers incident to the paramount right of navigation, . . . [such as] accidents resulting from moving craft along the waterway." R & H Dev., 203 A.2d at 770.
1. The Marina
The question before us, then, is whether plaintiffs could have reasonably anticipated the ice damage. See O'Donnell, 228 F. Supp. at 909. In resolving this issue, we note the existence of videotaped evidence for the events of January 24, 1994, and February 6, 1994. Pl. Ex. 23. The fact that plaintiffs had a video camera readily available to record future damage by defendant is a strong indication that such damage was foreseeable. Moreover, upon inspecting the damage to the Marina on January 25, 1994, Capt. Olsen commented in his report that "it appears that this is going to be an ongoing problem for as long as there is ice on this river." Def. Ex. XX. Finally, Scalise, Jr., testified that he had called the tenders of the Metro North Bridge on the evening of January 23, 1994, the night before the second incident, to inquire whether there would be any bridge openings that night or morning. Upon being informed that there would be one the following morning, he arrived at the Marina an hour early "to witness if there's going to be any damage or problems." Tr. 216-17. Thus, the Court is led to the inescapable conclusion that the latter three incidents not only should have been reasonably anticipated but, in light of Scalise, Jr.'s testimony, were in fact reasonably anticipated by plaintiffs.
The only issue that remains is whether plaintiffs could have reasonably anticipated the possibility of ice damage on January 16, 1994, the date of the first incident. A plaintiff assumes a risk of harm only when "the particular plaintiff in fact sees, knows, understands and appreciates" the risk involved. Restatement (Second) of Torts § 496D cmt. c. "One who has spent a substantial time upon a particular premises ordinarily would be found in fact to understand and appreciate the normal, ordinary risks of those premises." Id. cmt. d.
While it is true that prior to building the Marina, Scalise had no maritime experience, Tr. at 61, we find that the possibility of ice damage should nonetheless have been foreseeable to him from the outset. Notably, the Marina had been in operation for nearly five years before the events that gave rise to this action. Scalise had ample opportunity to familiarize himself with a variety of risks involved in operating a marina situated north of the Metro North Bridge. Scalise testified that before he began the Marina project, he was aware that the Norwalk River was open to navigation twelve months out of the year, Tr. at 62, and that the Marina was built only ten feet from the navigation line, on one of the most severe turns in the Norwalk River, Tr. at 59. Moreover, he knew that oil and sand businesses were located upriver and that they received barge deliveries several times a week. Tr. at 60-61. Finally, the Pilot, a document with which any marina proprietor should have at least some familiarity, states that "the harbor and river above South Norwalk are covered with ice during a part of the winter." Def. Ex. KK.
Taken together, this evidence leads us to conclude that the ice damage suffered by plaintiffs should have been reasonably anticipated by them and that they therefore assumed the risk of such harm. Accordingly, as to all four incidents in question, we find that defendants are not liable to the Marina for the damage caused by defendants' vessels.
As to plaintiff Lindwall, the houseboat owner whose property was damaged as a result of the February 9, 1995, incident, we find that like the Marina, Lindwall assumed the risk of ice damage. In so concluding, we view a houseboat as a "riparian structure." Its owner, like any other riparian proprietor, thus assumes foreseeable risks.
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, which prohibits any unauthorized riparian "obstruction" of the navigable capacity of the waters of the United States, contains a long, non-exclusive enumeration of riparian obstructions. 33 U.S.C. § 403; see United States v. Republic Steel Corp., 362 U.S. 482, 4 L. Ed. 2d 903, 80 S. Ct. 884 (1960); Sierra Club v. Andrus, 610 F.2d 581, 594-97 (9th Cir. 1979), rev'd on other grounds, 451 U.S. 287 (1981). Included in this list is the term "other structures," defined in the Army Corps of Engineers' regulations to cover a "permanently moored floating vessel." 33 C.F.R. § 322.2(b)(1993). In light of this definition, a number of courts have found that houseboats may fall within Section 403's prohibition, United States v. Boothby, 16 F.3d 19, 21 (1st Cir. 1994); United States v. Boyden, 696 F.2d 685, 687 (9th Cir. 1983); United States v. Oak Beach Inn Corp., 744 F. Supp. 439, 444 (S.D.N.Y. 1990), noting, however, that the question of whether a houseboat is a "permanently moored floating vessel" is one of fact. Oak Beach, 744 F. Supp. at 444.
The fact that a houseboat is capable of moving on its own, does not, by itself, preclude the conclusion that it is a "permanently moored vessel" and thus a riparian structure. "The capacity to navigate is not the only factor to be considered in [such an] analysis. Such capability is only one of the factors to be considered. It is not determinative." United States v. Seda Perez, 825 F. Supp. 447, 452 (D.P.R. 1993); c.f. Boothby, 16 F.3d at 22 (houseboat certified as navigable defined as a permanently moored vessel). In making our determination as to the houseboat's proper classification, we pay particular attention to the houseboat's primary purpose. C.f. Tonnesen v. Yonkers Contracting Co. Inc., 82 F.3d 30, 36 (2d Cir. 1996) (In determining, under the Jones Act, whether a floating structure is a "vessel in navigation" the present primary purpose of the structure is of extreme importance). The houseboat served as Lindwall's place of residence at the Marina for more than seven months prior to February 9, 1995. Tr. at 135. Thus, as the primary purpose of Lindwall's houseboat was residential, and as there is no evidence that the houseboat was ever moved during the seven-month period, we conclude that the houseboat is a "permanently moored vessel," subject to Section 403.
Consequently, viewing the houseboat as a riparian structure, we find its owner to have assumed the same risks as any other riparian pro/rietor. Lindwall, a middle-aged man, has owned boats since he was twelve years old. Tr. at 174. Based on these years of experience he should have been familiar at least with the existence of the Pilot for the Norwalk River. Moreover, the Marina's vulnerable location was easily observable. Thus, even without having consulted the Pilot, Lindwall should have anticipated the possibility of ice damage and, as an experienced boat owner, should have questioned the Scalises about berthing conditions during the winter. There is no evidence that Lindwall ever asked these questions, although he plainly had the opportunity to question the Scalises on this point: Lindwall testified that he had negotiated a winter berthing for his houseboat with the Scalises prior to the start of the winter season. Tr. at 155-56. Thus, based upon Lindwall's prior experience as a boat owner, his ability to observe the location of the Marina, and his opportunity to question the Scalises, who were well-aware of the prior incidents, we conclude that Lindwall assumed the risk of the harm caused by defendants' vessels and that defendants accordingly are not liable to him for that damage.
This litigation presents an unusually clear conflict between the rights of riparian owners and the paramount right of navigation. Although plaintiffs embellish their claims with allegations of safety violations and negligence, we have found (and plaintiffs' counsel has on occasion acknowledged, Tr. at 16, Pl. opening statement) that the gist of plaintiffs' claim is defendant's exercise of the right of navigation through the federal channel of the Norwalk river. We speak of "exercise" of that right to emphasize several factors:
1. Here, unlike what appears to have been the case in R & H Development
, there was no readily available alternative route for barge delivery of heating oil during the winter months to the pre-existing Devine Bros. facility. If in fact it was a violation of plaintiffs' rights to make or attempt passage in front of the marina during ice conditions the economic consequences to the owner of the oil storage facility and its local customers might be significant. We make reference to this factor simply to note that the use of the river for barging oil was not optional or merely recreational and that therefore, the passage of barges in this body of water was entirely foreseeable.
2. We find that there was no negligence in the staffing, equipment, or operation of the tug. There was no use of excessive speed or force or poor seamanship.
That the consequence of a vessel passing the marina in the manner required to pass under the nearby bridge, would disperse ice in the vicinity of the marina was entirely foreseeable. The impact of such ice was increased by plaintiffs' use of bubbling devices to prevent ice from forming near the Marina, thereby increasing the force which the dispersed ice would gather as it passed through the clear water immediately adjacent to the piers. We conclude that defendants are not liable for the damage to the Marina and to Lindwall's houseboat on the dates in question.
Leonard B. Sand
Dated: August 8, 1996
New York, New York
[SEE PLAINTIFF'S EXHIBIT 1A IN ORIGINAL]