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Alexander Rozenberg v. Jack Schachner and Tow Boat U.S. Jamaica Bay

March 8, 2011

ALEXANDER ROZENBERG, PLAINTIFF,
v.
JACK SCHACHNER AND TOW BOAT U.S. JAMAICA BAY, DEFENDANTS.



The opinion of the court was delivered by: Gold, S., U. S. Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiff, Alexander Rozenberg, brings this action pro se seeking to recover damages from defendants Jack Schachner and Tow Boat U.S. Jamaica Bay. Defendants removed the action, which was originally filed in Kings County Small Claims Court, pursuant to this Court's admiralty jurisdiction. The parties have consented to reassignment of their case to a Magistrate Judge for all purposes. Docket Entry 21. I held a bench trial on February 18 and March 7, 2011. For the reasons stated below, I find in favor of defendants.

FACTS

On August 26, 2009, plaintiff Alexander Rozenberg and his wife Marina set out in their 26-foot Sea Ray cruiser for a day of recreational boating in Jamaica Bay. At about 1:30 in the afternoon, they reached a favorite spot near Breezy Point, dropped anchor, and began to relax. Within a short period of time, however, their boat ran aground near shore.

On the date in question, the Rozenbergs were members of the Boat Owners Association of the United States. Plaintiff's Exhibit ("PX") 8. Defendant Jack Schachner is one of two partners in Tow Boat U.S. Jamaica Bay, a marine towing and salvage company that, among other things, provides services to members of the Boat Owners Association of the United States. These services include free towing, but only when a vessel is soft, as opposed to hard, grounded. A Tow Boat U.S. document received in evidence at trial describes a vessel that is "soft grounded" as "one that has become stuck on a soft bottom (sand/mud)" and "can be dislodged with the assistants [sic] of one towing vessel and no special equipment." PX 9. The same document describes a vessel as "hard grounded" when, whether it is trapped on a hard or soft bottom, "more assets are required for refloating than described above under soft grounding." Id. The Towboat U.S. document goes on to note that "re-floating" of a hard grounded craft may require more than one vessel. Id. Freeing a hard grounded vessel is considered a salvage operation and is not covered by the Rozenbergs' Towboat U.S. membership. Id.; Defendants' Exhibit ("DX") B.

After their boat ran aground, plaintiff and his wife attempted to refloat it themselves. Unable to dislodge their boat, the Rozenbergs called for assistance. Defendant Jack Schachner responded to their call and, at about 2:00 p.m., approached their boat. Plaintiff asked Schachner to throw a line to his boat and tow it into deeper water. Schachner, after observing the Rozenbergs' situation, determined that he could not safely tow their vessel free with a single line pulled only by his vessel. Accordingly, Schachner told the Rozenbergs that he would charge them $3,500 to tow their boat into deeper water. The Rozenbergs, convinced that their craft was soft grounded and that they were entitled to be towed without charge, refused Schachner's demand for payment. Schachner alerted the Rozenbergs that the tide was going out and that their situation would therefore only become worse. Nevertheless, plaintiff and his wife persisted in their refusal to pay the fee Schachner sought and continued their efforts to free their craft themselves. Schachner then notified the Fire Department that the Rozenbergs' craft had run aground and left the area.

At about 4:00 p.m., defendant Schachner approached the Rozenbergs again. By this time, the Rozenbergs' efforts to dislodge their vessel had proven unsuccessful and they were eager to leave the area quickly. Ms. Rozenberg testified that she was exhausted and afraid to stay on the boat after dark. The next high tide, however, was not due to arrive until approximately one o'clock in the morning. PX11.

Anxious to leave but unable to free their boat themselves, the Rozenbergs negotiated with defendant Schachner, who eventually agreed to tow their boat into the water for a fee of $3,000, paid in cash. Once the parties agreed to these terms, Schachner sought assistance from his partner, John Dady, who captained a second vessel. By this time, plaintiff's boat was on the beach, approximately thirty feet from the water. PX 3. After an initial unsuccessful attempt, the two tow vessels, working together, returned plaintiff's vessel to the water. Schachner then towed plaintiff's boat, with the Rozenbergs inside, to plaintiff's home, where plaintiff paid him $3,000 in cash.

The next time the Rozenbergs used their boat, they noticed that their water pump was cycling on approximately every thirty minutes. Concerned that their boat might be leaking, they contacted their mechanic. The mechanic, Ted Fatscher, removed the engine and found a fresh crack in the aluminum gimbal housing. Fatscher opined at trial that the crack was caused by negligently towing plaintiff's boat from its side, thereby putting more pressure on its outboard stern drive than the gimbal housing could withstand. PX 20. Fatscher repaired the damage for $6,538.13. As a result of the damage and necessary repairs, the Rozenbergs were unable to use their boat from late August until the beginning of October.

DISCUSSION

Plaintiff's allegations, liberally construed, give rise to two claims. First, plaintiff contends that defendants breached their contractual obligation to him as a Boat Owners Association member when Schachner refused to free his vessel without charge and instead falsely claimed he was hard grounded and would have to pay a substantial fee to be towed. Second, plaintiff contends that, after he agreed to Schachner's demand for a fee, defendants carried out the towing operation negligently, causing damage to his boat. Plaintiff seeks to recover the $3,000 he paid defendant for towing services and the $6,538.13 he paid Fatscher to repair his boat. In addition, plaintiff seeks compensation for the time his boat was unavailable to him and for the anxiety and pain and suffering he experienced because of defendants' actions.

1. Was plaintiff's boat hard grounded or soft grounded?

Plaintiff did not produce any expert evidence with respect to whether his vessel was hardor soft grounded. Rather, plaintiff relies on his own testimony and that of his wife describing the water level around the boat and other surrounding circumstances. According to plaintiff and his wife, their boat was in waist-deep water when they first spoke with defendant Schachner and could easily have been freed with a tug from a single line. The Rozenbergs stated that their boat ...


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