Turecamo Maritime, Inc. v. Weeks Dredge No. 516, 92 Civ. 2542.

• Decision Date: 09 December 1994
• Docket Number: No. 92 Civ. 2542.,92 Civ. 2542.
• Citation: 872 F. Supp. 1215
• Parties: TURECAMO MARITIME, INC., Plaintiff, v. WEEKS DREDGE NO. 516, her tackle engines, boilers, etc., in rem, and Tug Gregory, her tackle, engines, boilers, etc., in rem and Weeks Marine, Inc., in personam, Defendant.
• Court: U.S. District Court — Southern District of New York

872 F. Supp. 1215

TURECAMO MARITIME, INC., Plaintiff, v. WEEKS DREDGE NO. 516, her tackle engines, boilers, etc., in rem, and Tug Gregory, her tackle, engines, boilers, etc., in rem and Weeks Marine, Inc., in personam, Defendant.

No. 92 Civ. 2542.

United States District Court, S.D. New York.

December 9, 1994.

COPYRIGHT MATERIAL OMITTED

Chalos & Brown, P.C., New York City, for plaintiff.

Connell Losquadro & Zerbo, New York City, for defendant.

OPINION and ORDER

SCHWARTZ, District Judge:

JURISDICTION

This action arises out of an allision on the Hudson River in the vicinity of the cities of Athens and Hudson, New York, between plaintiff's tugboat the CATHERINE TURECAMO (the "CATHERINE") (towing the empty tank barge B-45 belonging to an unrelated third party) and an anchor cable of the anchored dredge belonging to defendant Weeks Marine, Inc. This Court conducted a bench trial on June 21-24, and 28, 1994 and July 15, 1994. Jurisdiction is based on 28 U.S.C. § 1333 and Rule 9(h) of the Federal Rules of Civil Procedure and is uncontested.

BACKGROUND

The following uncontested facts serve as a description of the parties and vessels. Plaintiff Turecamo Maritime, Inc. ("Turecamo") owns and operates a fleet of tugboats including the CATHERINE, a 4000 horsepower, twin propeller, steel tug. At all material times Turecamo owned and operated approximately 29 tugboats of various sizes and power in several ports on the east coast of the United States, with about 12 of them assigned to the Port of New York and its tributaries. Turecamo engages in the business of general towing (of barges) and ship docking.

Defendant Weeks Marine, Inc. ("Weeks") is, among other things, in the marine construction business and owns and operates a fleet of crane barges and tugboats. These are used on construction projects including dredging. At the relevant time, Weeks owned and operated dredge # 516 ("WEEKS # 516"), a crane barge having no motor power or steering facilities of its own, and the tug GREGORY, an assist tug of 900 horsepower, measuring 60 feet in length and having a deep draft of about 7 feet.

The CATHERINE measures 99 feet in length. At all material times, the tug carried a crew of 5 consisting of a Captain, Mate, two deckhands and one engineer. The Captain and Mate, each with one deckhand, stand six hour alternating watches 24 hours a day.

The CATHERINE has a pilothouse measuring 10 to 12 feet in width, port bulkhead to starboard bulkhead, and about 10 feet deep from the after bulkhead to the forward windows. She is equipped with navigational equipment which was operational at all relevant times, including radar, compasses, and VHF radios for communication with other vessels. She also carried navigation charts (NOAA charts) with parallel rulers and dividers for measuring distances and plotting courses on a chart.

WEEKS # 516 is 160 feet long and is equipped with a large bucket crane located at the bow. The boom length is 185 feet. The total distance from the water line to the top of the boom is 200-225 feet. It is an anchor dredge which holds itself in position with four large anchors which are set out from each corner of the dredge. Each anchor is secured to a 1¼ inch diameter steel cable connected to and coiled on four large drums located amidship on the port side. The two double drum winches for the anchors are located in the "mate's shack". Several VHF marine frequency radios are aboard, one each for the shift supervisor, the crane operator and the mate. VHF channel 67 (Weeks' working channel) is usually used by the dredge crew for their work. The GREGORY, equipped with two such radios, monitors two channels at all times: channel 67 for communication with the dredge crew and channel 13 for communication with other vessel traffic in the river.

FINDINGS OF FACT

(1)

Some time prior to the fall of 1991, Iroquois Gas Transmission ("Iroquois Gas") contracted with Pentzien, Inc. ("Pentzien") to act as the general contractor for the installation of Iroquois Gas' natural gas pipeline which was to extend from Canada to Long Island. Pentzien retained Weeks to act as a subcontractor on this project for the purpose of digging and backfilling a subaqueous trench across the Hudson River where Iroquois Gas' pipeline was to be laid. Weeks began the dredging operation in early September, 1991 and completed the operation in mid-November, 1991.

(2)

The width of the Hudson River from bank to bank where the subaqueous trench was to be dug and where the pipeline was to be laid is approximately 2,500 feet. According to the National Oceanic and Atmosphere Administration Chart No. 12347 ("NOAA Chart"), the chart to which mariners refer in transmitting this area, the width of the navigable channel at this site is 400 feet. The 400 foot channel depicted on the NOAA Chart is referred to as the project channel and constitutes the section of river which was dredged and is currently maintained by the Army Corps of Engineers for the safe transit of vessels. Army Corps of Engineers Chart, Pl.Exh. 25. The project channel is marked by floating aids to navigation, known as navigation buoys, positioned outside—east and west—of the project channel. In practice, the navigable channel extends at least to the navigation buoys. On the evening of October 15, 1991, the date of the allision, the red 78 buoy ("78 buoy"), located approximately 100 feet east of the project channel, and just south of the dredge site, marked the eastern edge of the navigable channel.

(3)

The WEEKS 516 was manned by marine construction personnel and operated 24 hours a day with three eight hour shifts: 7:00 a.m.—3:00 p.m.; 3:00 p.m.—11:00 p.m.; and 11:00 p.m.—7:00 a.m.. The WEEKS 516 was anchored with four Dansforth anchors, each weighing approximately 10,000 pounds. One anchor was set out from each corner of the dredge—two bow anchors (port and starboard anchors) and two stern anchors (port and starboard anchors). Each anchor was connected to the WEEKS 516 by steel cable approximately 1¼ inch in diameter.

(4)

The Tug GREGORY supported and assisted the WEEKS 516 in performing the dredging operation. Periodically, the GREGORY would set out the WEEKS 516's bow anchors. The GREGORY was also used to shuttle crews from and to shore. The GREGORY, a sixty foot tug boat with a seven foot draft, was manned by three Weeks' employees. The WEEKS 516 and the GREGORY communicated with each other on VHF Channel 67, Weeks' work channel. The GREGORY also had the task of monitoring the bridge to bridge communication channel, VHF Channel 13, in order to communicate with approaching vessels. The CHRISTIE, another small boat, was used for transporting Weeks personnel from and to shore when the GREGORY was otherwise occupied.

(5)

Aboard the WEEKS 516 there were two sets of hydraulic driven winches which were the means by which the dredge moved forward or backward towards its anchors. Although the WEEKS 516's winches had the capacity to pull in on the anchor cables, the winches could not mechanically "pay-out" (slacken) the cables. Instead, Weeks personnel had to manually slacken the dredge's bow and stern anchor cables, using one of three methods.

The first two methods involved the use of the GREGORY, while the third method was used when the GREGORY was not available. The first method involved using the GREGORY to push or pull the dredge off the trench's center line, which caused one cable to be slackened. The process would then be repeated for the second cable. The second method involved using the dredge's crane bucket. The crane bucket would push each cable to the bottom while the tug held the dredge on line. The third method also employed the dredge's crane. The crane operator, using the crane bucket, would grab the river bed and swivel the crane boom back and forth to slacken the cables, one at a time.

(6)

The Setting Out and Location of the WEEKS # 516 Anchors on October 15, 1991

Based on the testimony of Captain Davenport, captain of the GREGORY, we find that on the afternoon of October 14, 1991, the Gregory set out the WEEKS 516's two bow anchors on the east side of the river. In setting the port (northern) bow anchor, the GREGORY's crew picked up and tied the port bow anchor buoy to a cleat on the tug's bow and towed the port bow anchor toward the eastern shore. The port anchor, connected to the anchor buoy by a 50 foot pennant, trailed underneath the GREGORY while the tug proceeded toward the eastern shore. According to Captain Davenport, once the GREGORY's seven foot draft touched bottom, the anchor buoy and anchor were released. This procedure initially placed the port anchor outside of the navigable channel "up on the flats" on the eastern side of the river. The Weeks personnel aboard the dredge then tightened up on the port cable and the anchor moved west until it dug into the river bed. This procedure was repeated for the starboard (southern) anchor.

Both Captain Davenport and Daniel Mowers (Weeks project superintendent) testified that, set out in this manner, the southern bow anchor was located at least 20-25 feet east and 20-25 feet north of the 78 buoy.¹ The northern bow anchor was set approximately 300 feet north of the southern anchor, but approximately 50 feet closer in towards shore. Both of these anchors were positioned outside and east of the eastern boundary of the navigable channel, as marked by the 78 buoy. Moreover, the northern anchor, the anchor furthest east, was situated, at a minimum, 150-175 feet east of the project channel while the southern anchor was located approximately 120-125 feet east of the project channel. Based upon the consistent and thoroughly credible testimony of Captain Brown, plaintiff's expert, a licensed Hudson River tug pilot for nearly 19 years and presently a docking pilot for the Metropolitan Pilots' Association, as well as the Army Corps of Engineers chart and Iroquois Gas' overview drawing # WTX-HU-101, we find that due to...