Nos. 76 Civ. 2496 (MEL), 77 Civ. 1283 (MEL) and 77 Civ. 3148 (MEL) | S.D.N.Y. | Jul 2, 1979
On April 3, 1976, the dredge GL-51, owned by Great Lakes Dredge and Dock Co. (Great Lakes), dredged a section of the Passaic River opposite the foot of River Drive in Passaic, New Jersey, as part of an Army Corps of Engineers’ program of mainte
The case as to liability was tried to the court; this opinion constitutes the findings of fact
Two issues must be resolved: First, whether the dredging undertaken by Great Lakes under contract for the Corps of Engineers in fact caused the casualty which befell Casper’s River Barge. Second, assuming the dredging was the cause, whether the casualty was an inadvertent consequence of dredging planned and conducted with reasonable care, the cost of which must lie where it fell, or whether it was caused by the negligence of Great Lakes or the Corps, or both.
I.
The dredging contract between Great Lakes and the Corps of Engineers provided for the removal, within the channel proper, of all material except ledge rock to a depth of ten feet below mean low water, with a permissible overdraft of up to two feet. In addition, Great Lakes was to remove material outside the channel to create a one in three grade sloping upwards from the outside edges of the channel. This was a “pay slope” — it was not contemplated that Great Lakes would in fact dredge a one in three grade; rather, Great Lakes was to make a vertical “box cut,” dredging to the full channel depth outside the channel limits, in expectation that in due course the side of the cut would fall in, creating a slope with a grade approximating one in three.
Casper’s River Barge had a draft of between two and two and one-half feet. It floated at all times except low water, when it rested on a broad mud flat extending into the river from the west shore. The plaintiffs assert that as a consequence of the dredging on April 3rd, the mud flat on which the barge rested at low water gave way at its offshore edge on April 13th, when the river was uncommonly low. As the offshore edge of the mud flat subsided, the barge tilted until it took on water, slid “down” the mud flat, and broke its moorings.
The defendants contend that the barge was not watertight, and that on April 13th the combination of a strong offshore wind (20 knots) and rotten timbers securing the mooring bollards on the deck of the barge caused the casualty. This explanation, however, is not convincing. Although the defendants argue the barge was never properly caulked, the barge floated (except at low water) without taking on excessive water. What water did seep through the hull was discharged by bilge pumps. (Testimony of Komar, Wilson) Thus, there is no reason to believe that the barge would not float once it broke its moorings, unless it took on water above its high water line. With regard to the mooring bollards, one of which pulled out during the casualty, there was conflicting testimony respecting the condition of the timbers supporting them. It appears, however, that though some deck timbers were rotten at the time of the
In short, Casper’s River Barge had rested without incident at the foot of River Drive for over ten years, floating at high water and resting on the mud flat at low water. (Testimony of Komar) The defendants’ explanation for the casualty of April 13th is not plausible enough to overcome the inference that something other than everyday circumstances was the cause of the sinking.
In contrast, the plaintiffs’ explanation is plausible and supported by the evidence. They argue that the dredging decreased the support for the mud flat on which the barge rested at low water, causing it to give way under the weight of the barge at a time when that weight was especially great because the river was unusually low. Subsidence was the contemplated result of the box cut used by Great Lakes in dredging the river. (Testimony of Woolworth, Zenger) Indeed, since the offshore edge of the barge was only thirty feet from the channel limit, if the river bottom had subsided to match the one in three pay slope specified in the dredging contract, the slope would have extended at least to the offshore edge of the barge, and as much as six feet beneath it, depending upon whether the channel was dredged to the minimum ten foot depth specified in the contract or to the maximum twelve feet. Finally, although one of the defendants’ witnesses who inspected the mud flat shortly after the casualty testified that they saw no evidence of “bank collapse,” he seems to have meant by that term something more catastrophic than plaintiffs contend occurred here. (Testimony of Andrews) Moreover, several photographs taken at the time suggest that offshore edge of the mud flat did indeed subside (Plaintiffs’ Exhibits 21, 22, 45, 49, 50, 64, 91B, 91C), and Robert Woolworth, a civil engineer specializing in soil mechanics, concluded on the basis of his investigation and analysis that this is what happened, and that it happened as a consequence of the dredging ten days earlier.
Based on this evidence, and the defendants’ failure to suggest any other plausible explanation for the casualty, we find that as a consequence of the dredging on April 3rd, the support for the mud flat on which the barge rested at low water was undermined, and that on April 13th, when the river was lower than usual and the weight of the barge on the mud flat correspondingly greater than usual, the flat subsided, tilting the barge until it took on water above the high water mark, and putting such strain on the moorings that they gave way.
II.
That the casualty of April 13th was caused by the dredging of April 3rd does not establish that Great Lakes or the United States is liable for the resulting injury. The plaintiffs must also establish that negligence on the part of one or both of the defendants contributed to the casualty. The plaintiffs assert that the Corps of Engineers was negligent in preparing dredging specifications which required dredging dangerously close to the barge, that Great Lakes negligently dredged even closer than required by the specifications, that neither defendant properly supervised dredging operations, and that although both had reason to believe the dredging might endanger the barge, neither gave any warning or took any other steps to avoid injury to the barge.
As noted earlier, the contract specifications called for a slope outside the channel with a grade approximating one in three. Such a slope would extend at least to the edge of the barge, and could extend up to six feet beneath it since the edge of the barge was only thirty feet from the channel. The plaintiffs argue that the Corps of Engineers was negligent in preparing such a specification, because in such circumstanc
Testimony regarding how close to the barge dredging operations actually came was conflicting. The western edge of the channel was thirty feet east of the offshore (eastern) edge of Casper’s River Barge. (Testimony of Zenga; Plaintiffs’ Exhibit 14 (chart showing north end of barge thirty feet from channel, south end ten feet from channel)). The “box cut” required dredging five to ten feet outside the channel. (Testimony of Zenga) John Benson, who was operating the dredge bucket at the time dredging was conducted in the area of Casper’s River Barge, testified that he did not dredge more than five feet outside the channel. John Zenga, Great Lakes’ superintendent for the dredging project, testified that soundings taken after the dredging operation show that dredging occurred ten feet outside the channel. Mr. Komar, however, testified that he saw the bucket dredging “three to five feet” from the barge, more than twenty-five feet outside the channel. The dredging took place at night, however, and he may have misjudged the distance. Based on this evidence, plaintiffs have not shown that the dredging in fact occurred substantially closer to the barge than required by the specifications.
Nor have the plaintiffs shown that either defendant failed to provide adequate supervision as required by the specifications, since they have not shown that any of the personnel in direct control of dredging operations at any time did not fall within the rather general language of the specifications. (Plaintiffs’ Exhibit 24 at 4,13) That is, they presented no evidence that the supervisory personnel were not adequate in number or competent to supervise the operation.
The crux of the plaintiffs’ case is their assertion that each of the defendants was aware that Casper’s River Barge rested on a mud flat at low water, and that each should have appreciated the danger to the barge that the dredging operations consequently posed and warned Komar of it. Had they done so, Komar could have moved the barge until the river bottom had stabilized, or adjusted its moorings, or taken other appropriate precautionary measures. To establish liability on the part of either defendant on this theory, the plaintiffs must show that the defendant had actual notice that the barge rested on the mud flat at low water, and that in the circumstances it was unreasonable not at least to warn Komar of the possibility that the dredging might pose a threat to the barge.
The United States had actual notice that the barge rested on the mud flat at low water. Elwood Andrews, the assistant project manager for the Corps of Engineers, conducted a survey of the dredging area to identify potential dangers. This survey was conducted at low water, and Andrews observed the barge resting on the mud flat. (Plaintiffs’ Exhibit 15 (Andrews deposition) at 18-19, 27) Great Lakes also had actual notice. The project supervisor, Zenga, also observed the barge resting on the mud flat at low water. (Testimony of Zenga; Plaintiffs’ Exhibit 23 (Zenga deposition) at 19-20) In addition, employees of both defendants were in the area constantly, and it is reasonable to assume that at one time or another they observed the barge resting on the mud flat.
The question, then, is whether the defendants, aware that the barge rested on a mud flat at low water, were negligent in
In determining whether the defendants were negligent, it is necessary to consider how burdensome the task that they allegedly omitted was. Here, all that might have been required was to give informal notice to the owners of Casper’s River Barge that there was some possibility that the dredging operations might pose a threat to the barge. Even though the perceived risk was remote, and might not have warranted any more burdensome precautions than this, we find that it was negligent of the defendants not to warn Komar of the possibility, however remote, that their dredging operations might endanger the barge. Even though the risk seemed slight it was clear that the stakes were great and the cost of taking precautions against it was so minimal that it was unreasonable not to provide warning.
The defendants suggest that if they were negligent in failing to appreciate the danger to Casper’s River Barge and apprising Komar of it, Komar himself was contributorily negligent in failing to recognize the danger for himself. However, Komar knew nothing of dredging, and had no reason to know that defendants were employing a box cut intended to cause the river bed to subside, which might in turn have had the result which in fact ensued. If he had any apprehension, as apparently he did, when he saw the dredging proceeding near the barge, his fears were allayed when nothing of moment happened during or shortly after the dredging.
In sum, we find that the defendants dredging operations were the cause of the casualty that befell Casper’s River Barge on April 13, 1976, that both defendants were negligent in failing to warn the plaintiffs of the risk to the barge created by the dredging, and that the plaintiffs were not contributorily negligent in failing to appreciate that risk themselves.
For the reasons stated, judgment as to liability is granted for the plaintiffs.
It is so ordered.
. The testimony at trial has not been transcribed. Findings are based on the court’s extensive notes, undisputed facts and exhibits.