Optical Commc'ns Grp., Inc. v. Ambassador

• Decision Date: 29 March 2013
• Docket Number: No. 11 Civ. 4439(NRB).,11 Civ. 4439(NRB).
• Citation: 938 F.Supp.2d 449
• Parties: OPTICAL COMMUNICATIONS GROUP, INC., Plaintiff, v. M/V AMBASSADOR, its engines, boilers, furniture, tackle apparel, etc., in rem and Marbulk Canada, Inc., in personam, Defendants.
• Court: U.S. District Court — Southern District of New York

938 F.Supp.2d 449

OPTICAL COMMUNICATIONS GROUP, INC., Plaintiff,

v.M/V AMBASSADOR, its engines, boilers, furniture, tackle apparel, etc., in rem and Marbulk Canada, Inc., in personam, Defendants.

No. 11 Civ. 4439(NRB).

United States District Court,

S.D. New York.

March 29, 2013.

Michael E. Stern, Esq., Rubin, Fiorella & Friedman LLP, New York, NY, for Plaintiff.

Richard V. Singleton, Esq., Alan M. Weigel, Esq., Blank Rome LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

Plaintiff Optical Communications Group, Inc. (“OCG” or “plaintiff”) filed this admiraltyand maritime action against cargo vessel M/V AMBASSADOR (the “Vessel”) and its owner, Marbulk Canada Inc. (collectively, “defendants”), after the Vessel's anchor struck and damaged plaintiff's fiber optic submarine telecommunications cable. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1333.

In the motion before the Court, defendants seek (i) summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”) and (ii) an award of sanctions pursuant to Rule 11(b) of the Federal Rules of Civil Procedure (“Rule 11(b)”) and/or 28 U.S.C. § 1927 (“Section 1927”). For the reasons set forth below, we grant defendants' motion for summary judgment and deny their motion for sanctions.

BACKGROUND¹

I. Introduction

The Vessel is a self-discharging bulk carrier that is approximately 730 feet in length. Khrypunov Decl. ¶ 3. On April 11, 2010, the Vessel traveled south from the GMD Docks in Brooklyn, New York, intending to anchor in Gravesend Bay. Id. ¶ 4. After the Vessel passed under the Verrazano–Narrows Bridge, its port anchor prematurely deployed, dropping approximately 55 feet from the surface of the water to the seafloor. Id. ¶¶ 8, 15, Ex. 2. There, the anchor struck and damaged plaintiff's submarine fiber optic cable, which ran in an east/west direction between Brooklyn and Staten Island. Id. ¶ 10; Singleton Aff. Ex. D (hereinafter “Sherry Dep.”) at 23:13–20. Plaintiff now seeks approximately $3,500,000 in damages. Compl. ¶¶ 24, 29.

In support of the instant motion for summary judgment and for sanctions, defendants contend that the Vessel and OCG cannot be held liable as a matter of law because (i) plaintiff laid the fiber optic cable outside the designated cable area in violation of OCG's permit from the U.S. Army Corps of Engineers (“ACE”) and (ii) the Vessel dropped its anchor outside of the designated cable area and inside a navigation channel. Ultimately, we need only address the second claim. Nonetheless, we explore the facts and evidence underlying both issues to contextualize the parties' dispute.

II. The Installation of Plaintiff's CableA. Plaintiff's permit request

On or around October 3, 2006, Brad Ickes (“Ickes”), the President of OCG, submitted a revised application to ACE and the New York State Department of Environmental Conservation (“NYDEC”) for permission to install a 12,500 foot-long submarine fiber optic cable between Brooklyn and Staten Island. Ickes Decl. ¶¶ 1, 5; Singleton Aff. Ex. A at 1. In the revised application, Ickes represented that plaintiff would lay the cable “outside of the anchorage areas” and within “an existing cable crossing area” that ran in an east/west direction under the Verrazano–Narrows Bridge. Singleton Aff. Ex. A at 1.

A diagram attached to plaintiff's application depicted the proposed cable line running south of the Verrazano–Narrows Bridge in an existing charted cable field. Singleton Aff. Ex. A at Fig. No. 1. As demonstrated below, the diagram showed the cable running north along the Brooklyn shoreline, west across the Verazzano Narrows, and south along Staten Island:

IMAGE

Singleton Aff. Ex. A at Fig. No. 1.² On December 8, 2006, ACE approved plaintiff's application. Ickes Decl. ¶ 4, Ex. 1.

B. The laying of plaintiff's cable

After receiving the appropriate permit, Ickes retained Mark Sherry (“Sherry”) to install the cable on the seafloor. Ickes Decl. ¶ 6; see also Plf.'s R. 56.1 ¶ 7 (noting that Sherry “was responsible for laying the cable in the water”). Using a vessel called the M/V CABLE QUEEN (the “Cable Laying Boat”), Sherry and a small crew installed the cable between Brooklyn and Staten Island on January 12, 2007. Sherry Dep. 64:9–22. Ickes was not present on the Cable Laying Boat at the time the cable was laid. Ickes Decl. ¶ 6. Instead, he supervised the work ashore. Id.

The parties disagree as to where, exactly, Sherry and the Cable Laying Boat positioned plaintiff's cable. See Defs.' R. 56.1 ¶ 9; Plf.'s R. 56.1 ¶ 9. According to defendants, Sherry installed the cable “almost entirely outside of the cable area in a direct line from its terminus on the Brooklyn side to its terminus on the Staten Island side.” Defs.' R. 56.1 ¶ 9. In other words, defendants maintain that the cable did not run north along Brooklyn, west along the Verazanno–Narrows Bridge, and south along Staten Island, as depicted supra, but rather in a straight line from Brooklyn to Staten Island. Id.

In support of this position, defendants offer the testimony of Sherry, whom defense counsel deposed on October 11, 2011.³ Sherry Dep. 1. At his deposition, Sherry testified that the Cable Laying Boat traveled in an “A to B straight line” from Brooklyn to Staten Island, id. 48:18, because the crew was “concerned about the length of the available cable,” id. 48:22–23.⁴ Sherry further testified that the captain of the Cable Laying Boat, Stephen Moreau (“Captain Moreau”), id. 24:1–16, brought aboard “state-of-the-art” GPS equipment to track the Cable Laying Boat's position,⁵id. 47:21–48:4, and subsequently provided Sherry with a computer-generated diagram that confirmed the boat's path, id. 48:9–19, 82:17–21.

The diagram, copied below, shows a substantially straight line running between Brooklyn and Staten Island, with the majority of the line passing outside the marked cable field:

IMAGE

Singleton Aff. Ex. E. During his deposition, Sherry testified that the line represented the Cable Laying Boat's “track” and, thus, the location where the cable was installed. Sherry Dep. 47:10–48:19. Sherry said that he monitored the Cable LayingBoat's internal GPS system as the crew performed its task, id. 48:5–8, and confirmed that the diagram was consistent with his contemporaneous observations, id. 48:9–19.

Plaintiff disputes Sherry's conclusion that the cable was installed outside the marked cable area. Plf.'s R. 56.1 ¶ 9. To demonstrate the existence of a genuine dispute concerning the cable's location, plaintiff offers a declaration from Ickes. Ickes states that, after the Cable Laying Boat laid the cable, Sherry showed him a laptop computer depicting “the actual track of the cable as positioned, including distances from the marked cable crossing demarcation lines on the nautical chart.” Ickes Decl. ¶ 9. Ickes states that he contemporaneously recorded this information and prepared a handwritten chart, id., as follows:

IMAGE

Id. Ex. 2. According to Ickes's chart, the Cable Laying Boat installed the cable approximately 310 to 400 feet north of the cable area boundary. Id.

To buttress this position, plaintiff offers a declaration from Arnold Carr (“Carr”), the President of American Underwater Search and Survey, Ltd., a company that specializes in underwater recovery services. Carr Decl. ¶ 1, In connection with efforts to locate and recover plaintiff's cable, Carr examined side scan sonar data from seafloor areas in and around the cable field. Id. ¶ 2. Carr provides the following diagram:

IMAGE

Id. Ex. 2. According to Carr, the sonar data indicates that the cable was positioned within the charted cable area, but was pulled south of the cable field when struck by the Vessel's anchor. Id. ¶ 5. Carr notes: “Even after the cable was dragged several hundred yards, the East–West laying cable remnants were north of the location suggested by” Captain Moreau's computer-generated diagram. Id. ¶ 10.

C. Plaintiff's permit compliance certification

After the Cable Laying Boat installed the cable, Ickes submitted a Nationwide Permit Compliance Certification and Report Form to ACE and the National Oceanic and Atmospheric Administration (“NOAA”), the federal agency responsible for preparing and updating navigation charts. Ickes Decl. ¶¶ 11–12, Exs. 3–4. In his submission to NOAA, Ickes requested that the agency correct United States Chart No. 12402 (“Chart 12402”) by accounting for a strip of cable that dipped south of the charted cable area boundary near the Staten Island shoreline. See id. Ex. 3 at 1, Figure No. 1; Singleton Aff. Ex. F at Chart 12402. However, Ickes did not notify NOAA of the larger deviations suggested by Captain Moreau's computer-generated diagram.⁶See id.

Ickes maintains that he asked NOAA to correct Chart 12402 in January 2008. Ickes Decl. ¶¶ 11–12; see also id. Ex. 3 at 1 (cover letter carrying a date of January 25, 2008). However, NOAA did not receive any correspondence from Ickes until November 2011, i.e., well after plaintiff filed the instant action. See Singleton Aff. Ex. F at 1. Accordingly, it is undisputed that, at the time the allision occurred, Chart 12402 did not show any deviations or extensions to the marked cable field that were attributable to plaintiff's cable.

III. The Allision

On April 11, 2010, the Vessel departed from the GMD Docks, its officers navigating with Chart 12402. Khrypunov Decl. ¶ 4. The Vessel was equipped with a Simplified Vessel Data Radar (“SVDR”), id. ¶ 5, which defendants describe as “the maritime equivalent of a ‘black box’ for ships”: it “records and stores data from the vessel's navigational equipment, including the ship's GPS,” and “records sounds from microphones installed at various locations on the vessel's bridge,” ⁷ Defs.' R. 56.1 ¶ 21; see also Khrypunov Decl. ¶ 6.

It is undisputed that, after the Vessel passed south under the Verrazano–Narrows Bridge, its port anchor deployed, descending to the seafloor and snagging pl...