The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
This is an action for damages, brought under the court's admiralty and maritime jurisdiction, 28 U.S.C. § 1333, arising out of the alleged negligent operation of a tug and a barge owned and operated by the defendant. According to the plaintiffs, due to an allision of the tug, the barge or debris carried by the barge with the plaintiffs' bulkhead structure*fn1 on the Westchester Creek, in Bronx County, New York, the bulkhead structure collapsed, causing damage to the plaintiffs' property.
Pursuant to 28 U.S.C. § 636(c), the parties consented to having a non-jury trial of this action, presided over by a United States magistrate judge. That trial has been completed. The following are the Court's findings of fact and conclusions of law, made pursuant to Rule 52 of the Federal Rules of Civil Procedure.
Plaintiffs Zerega Avenue Realty Corp. and Fred Todino & Sons, Inc. are corporations which, at all relevant times, owned the premises located at 1000 Zerega Avenue ("Zerega property") in Bronx County, New York. Zerega property, abutting Westchester Creek, measures approximately 62,000 square feet and contains a bulkhead and a one story office building, with a basement. Defendant Hornbeck Offshore Transportation, LLC., at all relevant times, owned and operated the tug Stapleton Service ("tug") and the Barge E-2201 ("barge").
On October 29, 2002, pulling the barge on gate lines, the tug was traveling southbound in Westchester Creek. The barge was approximately 250 feet long and between 50 and 60 feet wide and in a light condition. Mate Steven Spurlock ("Spurlock") operated the tug, assisted by a trainee Mate, Eric Fuerstinger ("Fuerstinger"). Spurlock testified at trial*fn2 that, at approximately 3:30 p.m., the tug and the barge were in the immediate vicinity of Zerega property, while waiting for the Unionport Bridge to open.
The Unionport Bridge took longer than usual to open. As Spurlock waited for the bridge to open, he became concerned that the stern of the barge was coming too close to the retaining wall of the Zerega property. He maneuvered the tug to starboard in order to straighten the barge. While he operated the tug, Spurlock could not see the rear end of the barge. Fuerstinger, who was inside the tug's wheelhouse at that time, also did not have a direct view of the rear of the barge, on the starboard side. Spurlock testified that the stern of the barge drifted toward the Zerega property's dock. Spurlock recalled that he was concerned the barge would come into contact with the retaining wall because of the narrowness of the channel they were in and, furthermore, if the wind picked up or gusted, the barge, in its light condition, could hit the retaining wall. Although Spurlock's affidavit containing his direct testimony indicated that the wind, at that time, was very light and blowing from the starboard side, moving the tug and the barge away from Zerega property, he stated in his pretrial deposition testimony that the wind was blowing toward the dock. Fuerstinger testified that the wind was light and blowing off the dock. However, Fuerstinger also testified, at his pretrial deposition, that the wind was light, and it may have been blowing toward the dock. The Court finds that the wind was blowing toward the dock because that direction is consistent with Spurlock's statements about his concerns with the wind and the concomitant actions he took respecting his concerns about the effect of the wind on the barge.
Apprehensive about the wind, Spurlock asked Fuerstinger to check the barge's status. Thereafter, Fuerstinger informed him that the barge was drifting toward the Zerega property retaining wall. At the time the barge drifted toward Zerega property, Spurlock was looking forward toward the Unionport Bridge opening and did not know whether the barge had come into contact with the retaining wall. At his deposition, Spurlock stated he would not have felt any contact with the retaining wall if the barge hit it. According to Spurlock's deposition testimony, Fuerstinger would not have been able to tell, with certainty, whether the barge hit the wall.
Christopher Todino ("Todino") testified that, on October 29, 2002, at approximately 3:30 p.m., he was meeting with Michael Justino ("Justino"), a salesperson for Caterpillar, Inc., in his office, located at the southern end of the office building on Zerega property. While sitting with Justino at a table, two feet away from the office window, Todino suddenly felt a strong jolt. He jumped up, looked out the window and observed a barge up against and striking approximately the center of the plaintiffs' bulkhead structure. He then went outside to the relieving platform and observed the barge, with an inscription "Energy 2201" on its side, proceeding south bound toward the Unionport Bridge, towed by a tug. Todino also testified that he observed the barge bounce off both sides of the Unionport Bridge.
Justino testified that, while he was meeting with Todino, in the office building on Zerega property, on October 29, 2002, at approximately 3:30 p.m., he felt a jolt. He looked out the office window immediately and observed a barge up against and striking a portion of the plaintiffs' property. He exited the office promptly with Todino, and observed the barge being pulled away from the plaintiffs' property. He also observed the barge swerve back and forth, as it pulled away, and then strike the sides of the Unionport Bridge.
Louis Bruno, an office manager, employed by Fred Todino & Sons, Inc., testified that, during the afternoon of October 29, 2002, at approximately 3:30 p.m., he was working on computer servers in an office located near the center section of the office building on Zerega property, when he felt a thump and heard Todino and Justino yelling in another part of the building that a barge hit the retaining wall. Louis Bruno saw Todino and Justino hurrying outside. He went to Todino's office, looked through the window and observed a barge being pulled away by a tug from the bulkhead structure on Zerega property.
Laura Bruno, vice-president of Fred Todino & Sons, Inc., testified that, on October 29, 2002, at approximately 3:30 p.m., she was performing clerical work in an office located in the center section of the office building on Zerega property. At that time, she heard Todino and Justino yelling, in another office, something to the effect that a barge hit the retaining wall. She then went to the photocopy room, across from the office where she was working at the time, and, upon looking through the window overlooking Westchester Creek, observed a barge being pulled away from the bulkhead structure on Zerega property by a tug. On or prior to November 11, 2002, a significant portion of the bulkhead structure on Zerega property collapsed into Westchester Creek.
Spurlock indicated, through his direct testimony, that he observed a sinkhole and sawhorse barricades just behind the retaining wall on the Zerega property and that the sinkhole grew in size before October 29, 2002.*fn3 However, he conceded, during cross-examination, that his pretrial deposition statements that he: (i) never looked at the dock or noticed that the dock was falling apart; (ii) considered the dock and the retaining wall as the same thing and was not able to testify to the condition of the retaining wall; and (iii) was unable to pinpoint with any accuracy where the sinkhole was on the Zerega property were correct. Spurlock also testified during his deposition that, although he had seen the sinkhole on the Zerega property when he passed it prior to October 29, 2002, he was unable to recall when that passage occurred. While being cross-examined, Spurlock also confirmed the correctness of this statement.
Fuerstinger, as well noted, in his direct testimony, that he saw a sinkhole on the land behind the dock wall at the Zerega property. However, at his pretrial deposition, he testified that he never looked at any part of the Zerega property, aside from the retaining wall, and that Spurlock never said anything to him about the sinkhole. Under cross-examination, Fuerstinger persisted in his statement that he saw a sinkhole, while acknowledging he could not be one hundred percent sure about what he saw. A photograph, received in evidence by stipulation, taken in or about January 2002 and depicting the Zerega property from a southward ...