Plaintiffs, the insurer of the Oyster Bend Marina (“the Marina”) and William Lindwall (“Lindwall”), owner of a houseboat, brought this action to recover for property damage caused by tugboats and barges owned and operated by defendant Reinauer Transportation Companies (“Reinauer”). After consideration of the evidence presented at a five-day bench trial, the Court, for the reasons set forth below, finds for defendants on all claims.
BACKGROUND
A THE PROJECT
The Oyster Bend Marina Project (“the Project”) is a real-estate venture located on one of two sharp turns along the Norwalk River in East Norwalk, Connecticut. The Project includes thirty-six condominiums that abut a marina comprised of eighty marina slips. Tr. at 56. The owner of the Marina, Richard Scalise, Sr. (“Scalise”), hoped that
The Marina utilized bubbling devices to prevent ice from forming near the pilings so that there was clear water immediately adjacent to the piers.
During the thirteen-month period between January 16, 1994, and February 9, 1995, four incidents occurred in which tugs and barges owned by Reinauer and operated along the Norwalk River, pushed ice into the Marina, thereby causing substantial damage to docks and dolphins in the Marina and to the houseboat owned by Lindwall.
B. THE INCIDENTS
a.Incident of January 16,1994.
On January 16,1994, at approximately 8:30 p.m., tug Cissi Reinauer (“Cissi ”), under the command of Captain William Sanford (“Sanford”), entered the Norwalk River with barge RTC-330, which contained approximately 12,000 barrels of home-heating oil, in tow. The tug and barge were en route to Devine Brothers Dock (“Devine Bros.”), located upriver from the Marina. At 9:30 p.m. the tug and barge, while near the Metro North Bridge, encountered ice between eight and ten inches thick. Sanford separated the tug from the barge and proceeded upriver in the tug, past the Oyster Bend Marina, to Devine Bros. In doing so, Sanford broke ice in the federal channel. Thereafter, he returned to his barge, attached it to the tug, and delivered it to Devine Bros. These maneuvers forced ice into the Marina, thereby causing substantial damage to plaintiffs’ docks, pier, dolphin, and ice management equipment. b. Incident of January 24,1994
On January 24, 1994, tug Cissi, under the command of Capt. Robert Markuske (“Mar-kuske”), entered the Norwalk River with barge RTC-330 in tow, carrying heating oil to be delivered to Devine Bros. At approximately 7:00 a.m. Markuske encountered ice, between six and ten inches thick, in the vicinity of the Metro North Bridge. The United States Coast Guard vessel Ballard, a sixty-five foot tug boat, navigated ahead of the Cissi and past the Marina in an effort to help clear the ice. After the Ballard trav-elled past the Marina, breaking ice, Mar-kuske navigated tug Cissi, pushing barge RTC-330 stem first, past the Marina. Plaintiffs, informed by the bridge tenders that a tug would navigate upriver on the morning of the twenty-fourth, captured on videotape the tug’s attempt to pass the Marina. The tug’s maneuvers forced ice into the Marina, thereby causing substantial damage to plaintiffs’ pilings and piers.
c. Incident of February 6,1994
On February 6, 1994, at about 5:00 a.m., the tug Leigh Ann Reinauer (“Leigh Ann”), under the command of Capt. Norman Bo-urque (“Bourque”), entered the Norwalk River with the barge Fulton, laden with home-heating oil. At about 6:10 a.m. the tug and barge encountered ice approximately two to four inches thick, in the vicinity of the Metro North Bridge. Bourque navigated the tug, which was pushing the barge stern first, past the Marina to Devine Bros. Plaintiffs, armed with their video camera, witnessed the passage, which resulted in ice once again being pushed into the Marina. At 6:20 p.m. Bourque navigated the tug and barge back down river pushing more ice into the Marina. These two passings caused substantial damage to plaintiffs’ docks.
d. Incident of February 9,1995
On February 9, 1995, the tug
Cissi,
captained by Sanford, with the barge
Peter Heame
laden with home-heating oil, entered the Norwalk River, en route to Devine Bros. Upon encountering ice between four and six inches thick near the Metro North Bridge, Sanford disattaehed the tug from the barge
C. THE DAMAGE
The damage in this case is relatively uncontested. During the first incident, on January 16, 1994, ice pushed into C dock (see exhibit 1A attached) bending pilings and breaking docks. Tr. at 220. During the second incident, on January 24, 1994, C dock experienced similar damage as did the northern-most finger pier and dolphin of A dock. At trial, Captain Olsen testified that the damages caused to C dock as a result of the first two incidents totalled $13,939, and the damage to A dock was $2,700.
During the third incident, on February 6, 1994, finger floats and pilings on A dock were broken (Tr. at 238-40). Similar damage to B dock and D dock occurred.
On February 9, 1995, during the last incident, the flotation pontoons of the main dock areas were forced from underneath the dock resulting in A dock sustaining damage. Defendant’s surveyor estimated that the damages to the Marina totalled $30,000, and the damages to the Lindwall houseboat totalled $12,500. (Pl.Ex. 38 and 39).
D. THE NORWALK RIVER
The Norwalk River is a winding river that flows in a southerly direction from the town of Norwalk, Connecticut, through Norwalk Harbor, and empties into the Long Island Sound. The Norwalk River is described in the U.S. Coast Pilot (“the Pilot”) as a navigable river comprising two sections: the section south of the Metro North Bridge, which passes the town of South Norwalk, and the section north of the Metro North Bridge, which leads to the town of Norwalk. Def.Trial Ex. KK (“Def.Ex.”).
A river is considered “navigable” if it is capable of being used by the public for the purposes of transportation and commerce.
Pitship Duck Club v. Town of Se-quim,
In the instant case it is uncontested that the Norwalk River is a navigable river. There has been some discussion, however, as to whether the Norwalk River was navigable at the time each of the above incidents took place. Specifically, plaintiffs contend that the expert testimony, of Capt. Peter Stalkus (“Stalkus”) established that during the four relevant time periods, the section of the Nor-walk River in question was closed to navigation. Pis.’ Post-Trial Mem. at 6. Buttressing plaintiffs’ assertion, the Pilot states that “the harbor and river above South Norwalk are covered with ice during a part of the winter ... a channel is ordinarily kept open to the [1-95] highway bridge, but the East Norwalk Channel and the channel in the river [north of the Metro North Bridge] are usually closed for about six weeks each winter.” Def.Ex. KK. Despite these contentions the Court finds that the Norwalk River north of the Metro North Bridge was open to navigation during the four relevant periods. A distinction must be made between a river classified as unnavigable and a river closed to navigation for a particular period but nonetheless classified as navigable. This distinction, coupled with the evidence adduced at trial, supports the conclusion that the section
Scalise testified that he was aware that the river remained open to navigation throughout the year. Tr. at 62. Further, the excerpt from the Pilot, cited supra, states only that the river is “usually” closed for a certain period each winter. ' Def.Ex. KK. It does not specify the months during which the river is actually closed. In fact, defendants have provided ample proof that the river was not closed to navigation for the months of January and February, 1994 and February, 1995; the bridge logs for the Washington Bridge, the southernmost bridge on the Nor-walk River, show that numerous vessels navigated up river on at least eight other days in January, 1994, and eleven other days in February, 1994. Def.Ex. NN. So too, in February, 1995, a variety of vessels navigated up river on at least ten days during the month. Id.
Moreover, the Court has not been presented with any evidence in the form of a Coast Guard order or any other form of notice stating that the river was closed during the periods in question. Even Salkus, plaintiffs’ expert witness, admitted that he was not aware of any such notice having been issued for any of the dates in question. Tr. at 375. In fact, Salkus’ testimony supports the conclusion that the Coast Guard had not closed the northern section of the Norwalk River. Specifically he stated, “in my opinion it [the river] was highly restrictive [to] normal navigation.” Id. (emphasis added). He did not state that the river was in fact, or should have been, closed.
In light of the evidence, the Court concludes that the Norwalk River north of the Metro North Bridge was in fact open to navigation for the dates in question. Defendants’ reliance upon the affirmative defense of the paramount right of navigation is thus well-placed.
E. THE PARAMOUNT RIGHT OF NAVIGATION
Navigation for the purpose of commerce constitutes the paramount use of navigable waterways.
Penn Central Co. v. Buckley & Co.,
F. WAKE DAMAGE
Plaintiffs have argued with some persuasiveness that the harm suffered in the instant case is closely analogous to the damage caused by the wake of a passing ship. Tr. at 16, 18. It is well-established that the damage produced from swells constitutes prima-facie evidence of liability on the part of the vessel that created the swell.
See, e.g., West India Fruit & S.S. Co. v. Raymond,
Were the Court to accept the wake-damage analogy, we would proceed to employ a two-step analysis. First, plaintiffs would have to show that the damage caused by the ice was not to be “reasonably anticipated.”
O’Donnell,
G. LEGAL PRECEDENT
This Court is aware of only a handful of cases that deal with the issue of damage caused to a stationary object by ice displaced by the movement of another vessel. Of those cases, two are clearly distinguishable from the instant ease. In both
New York, N.H. & H.R. Co. v. Erie R. Co.,
Both defendants and plaintiffs have discussed the ease of
Scott-Paine v. Motortanker V.L. Keegan II,
In
O'Reilly v. The New Brunswick, Amboy & New York Steamboat Co.,
The complexity of the issues raised in the instant matter, however, precludes us from limiting our discussion to this type of general analysis. Rather, we deem it more prudent to analyze the case in the greater context of maritime collision law, which is “not restricted to those cases in which two vessels or a vessel and a shore installations come together in direct, physical contact,” but which also encompasses cases of damage caused by displacements of ice.
R & H Dev. Co. v. Diesel Tanker, J.A. Martin, Inc.,
DISCUSSION
APPLICATION OF MARITIME COLLISION LAW
The facts of
R & H Development
and the collision-law analysis employed in
A. THE RULE OF THE PENNSYLVANIA
In
The Pennsylvania,
In the instant case each party contends that its adversary was in violation of a statutory obligation and, therefore, its adversary carries the burden of showing, per the Pennsylvania Rule, that the violation could not have caused the damage. Specifically, plaintiffs assert that Reinauer violated 33 U.S.C. § 2002 on each of the four incidents. Section 2002 provides, in relevant part:
[n]othing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
33 U.S.C. § 2002. Plaintiffs argue that defendants “did not take the necessary and reasonable precautions mandated by the attending circumstances, including proper assessment of the ice choked conditions on the Norwalk River, nor did they exercise prudence or reasonable care in navigating past the marina.” Pis.’ Post-Trial Mem. at 64.
1. January 16,1994
With regard to the January 16, 1994, incident, plaintiffs’ argument is untenable. Plaintiffs themselves admit that there were no eyewitnesses to the event, Pis’. Post-Trial Mem. at 8, that the evidence provided is “circumstantial,” 3 and that Sanford did not have “any specific recollection of the voyage,” Sanford Dep. at 76. Plaintiffs’ circumstantial evidence establishes nothing more than the simple fact that the Cissi passed the Marina on the date and time in question. It fails to advance plaintiffs’ proposition that a statutory violation occurred or that Sanford “neglected] [] any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the ease.” 33 U.S.C. § 2002.
Plaintiffs assert that during the January 24, 1994, incident, defendants failed to take proper precautions, thereby violating Section 2002. Scalise and his son, Richard, Jr. (“Scalise, Jr.”), both of whom witnessed and videotaped the passing of the Coast Guard vessel Ballard and defendants’ tug Cissi testified that it was the Cissi due to its greater width when combined with the barge, that damaged certain parts of the Marina. Tr. at 35, 52-53, 233-34, 237. Plaintiffs stress that Markuske, the captain of the Cissi on that date, continued navigating past the Marina even though he heard yelling from the dock. Markuske Dep. at 47. Plaintiffs also argue that Markuske failed to comply with Coast Guard regulations pertaining to navigational equipment aboard his vessel; specifically, he did not consult the Pilot for the Norwalk River on the voyage in question. Markuske Dep. at 43; Pis.’ Post-Trial Mem. at 18. Plaintiffs also note that it is unclear whether Markuske filed an incident report as he was required to do under the Reinauer Operations Manual. Markuske Dep. at 45-46, Pl.Post Trial Mem. at 17.
None of these arguments, however, in any way establishes the violation of a statutory safety measure intended to prevent collisions. Even if Markuske were aware that the man was screaming from the Marina because damage being caused, 4 such knowledge would fall far short of establishing a violation of a safety statute. Indeed, the Court has not been presented with, nor are we aware of, any safety statute that bars navigation in a federal channel if the navigation would result in unavoidable damage to a riparian structure. Moreover, it cannot be maintained that by continuing upriver, Markuske contravened Section 2002’s general requirement that a captain exercise the “ordinary practice of seamen [in those] circumstances.” 33 U.S.C. § 2002. The facts plainly show that the ordinary practice of seamen is to traverse the Nor-walk River despite difficulties presented by ice. The Devine Bros, fuel storage facility long pre-existed the construction of the Marina. As discussed at length supra, pp. 1211-1212, the Norwalk River was open to navigation on the dates in question. Mar-kuske’s failure to consult the Pilot is of no consequence. While plaintiffs argue that this is a violation of Coast Guard regulations, Pis.’ Post-Trial Mem. at 18, the Court is unaware of a specific regulation requiring a captain to reread the Pilot prior to each voyage. 5 Finally, Markuske’s failure to file an incident report pursuant to company regulations, even if true, is hardly a violation of a statutory safety measure intended to avoid collisions. Therefore, we conclude that defendants were not in violation of Section 2002.
Plaintiffs also assert that the Reinauer vessel was in violation of 33 U.S.C. § 2005, which requires “[e]very vessel [to] at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 U.S.C. § 2005;
see
Markuske Dep. at 66-67; Pis.’ Post-Trial Mem. at 64. Interestingly, plaintiffs do not contend that a look-out was absent, but rather that defendants’ lookout was improperly positioned. Pis.’ PreTrial Mem. at 10; Pis.’ Post-Trial Mem. at 64-65. They assert that the look-out ought to have been posted on the barge, not in the wheelhouse. Pis.’ Pre-Trial Mem. at 10; Pis.’ Post-Trial Mem. at 64-65. But, as plaintiffs point out in their Post Trial Memorandum, it is the duty of a tug to maintain a look-out on a barge only when required by conditions of navigation. Pis.’ Post-Trial Mem. at 65;
see, e.g., Gulf Oil Corp. v. The Socony No. 16,
The testimony and evidence presented at trial indicate that when the January 24,1994, incident took place, the Cissi was traveling at a slow speed, that the accident occurred during daylight hours, and that there was no risk of sudden collision, given that the Cissi was following a narrow passage through the ice created by the Coast Guard Vessel Ballard. Markuske Dep. at 31; Pl.Ex. 23. We thus find, in light of these conditions and circumstances, that placing the look-out in the wheelhouse was proper under 33 U.S.C. Section 2005. Therefore, we hold that defendant did not commit a statutory violation in regard to the January 24, 1994, incident.
3. February 6,1994
As to the third incident of February 6,1994, plaintiffs claim that defendants again failed to take proper precautions while navigating and therefore violated Section 2002. Pis.’ Post-Trial Mem. at 40. However, they have proffered no evidence to support this contention. Plaintiffs’ memoranda simply outline the facts of the incident and speak only to the issues of causation and the measure of damages. Pis.’ Pre-Trial Mem. at 12-16; Pis.’ Post-Trial Mem. at 19-25. There is no evidence that Capt. Bourque was traveling too fast or that he was even aware that his passage was causing damage to the Marina. Bourque Dep. at 69. Therefore, we conclude that there was no violation of Section 2002.
Plaintiffs assert that defendants also violated Section 2005. Again, plaintiffs do not contend that a look-out was absent, but rather that defendant’s look-out was positioned improperly in the wheelhouse instead of on the barge. Pis.’ Post-Trial Mem. at 21, 64. As mentioned supra, p. 1215, it is the duty of a tug to maintain a lookout on a barge only when required by conditions of navigation, and that this question is one of fact to be determined in reference to prevailing circumstances and conditions. See supra, p. 1215.
The testimony and evidence presented to the Court indicate that the February 6,1994, incident took place during daylight hours, on a clear day, and that there was no risk of sudden collision, given that the river upstream was a field of solid ice. Bourque Dep. at 60, 62; Pl.Ex. 23; Def.Ex. NN. We thus find, in light of these conditions and circumstances, that placing the look-out in the wheelhouse was proper under 33 U.S.C. Section 2005 and that no statutory violation occurred.
4. February 9,1995
In regard to the last incident of February 9, 1995, the only claim of a statutory violation is one of general negligence, presumably made under 33 U.S.C. Section 2002. Pis.’ Pre-Trial Mem. at 24. Plaintiffs make no assertion other than that the tug and barge, captained by Sanford, attempted to navigate upriver despite Sanford’s knowing that these attempts were causing damage to the Marina. Tr. at 164 — 65, 172-74. Under the Rule of The Pennsylvania, plaintiffs must establish that a statutory violation occurred.
The Pennsylvania,
In response to plaintiffs’ assertion that defendants violated statutory law, defendants contend that plaintiffs violated 33 U.S.C. § 403 by failing to secure the required Army Corps of Engineers permit to build the southernmost dolphin. Under the Pennsylvania Rule, plaintiffs have the burden of proving that this violation could not have been the cause of the damage.
The Pennsylvania,
B. LIABILITY OF A MOVING VESSEL THAT COLLIDES WITH A STATIONARY OBJECT
It is a well-established proposition of maritime collision law that when a moving vessel collides with a stationary object, “an inference of negligence arises and the burden is then upon the owners of the vessel to rebut the inference of negligence.”
General Petroleum Corp. v. Los Angeles,
As discussed supra, pp. 1216-1217, defendants did not violate any safety statutes. We also find that at no time did defendants’ vessels travel at an excessive speed. In fact, ice conditions were such that vessels could only navigate at slow speeds. Finally, plaintiffs have admitted that the mere fact of attempting to navigate up the river does not, by itself, constitute a failure to use reasonable care. Tr. at 15. These factors suffice to rebut the inference of negligence and support our conclusion that, with respect to all four incidents, there was no negligence on the part of defendants.
C. RIPARIAN PROPRIETOR’S ASSUMPTION OF RISK 6
It is well-established at common law that a riparian proprietor whose land is bounded by a navigable stream has certain rights, including the right of access from the front of his lot to the navigable part of the river and the right to build a landing, wharf, or pier for his own or for public use. These rights are subject to such general rules and
The common-law right of riparian proprietors to build wharfs as far as the navigable water line has been superseded by 33 U.S.C. § 403. Section 403 prohibits the construction of “any obstruction ... any wharf, pier [or] dolphin ... in any ... navigable river ... except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.” 33 U.S.C. § 403. With the one caveat discussed swpra, p. 1216, it is uncontested that plaintiff Marina produced the appropriate Department of the Army Permit, Pl.Ex. 1; Def.Ex. OO, and thus did not violate Section 403.
Along with the rights of riparian owners comes the assumption of certain risks and obligations. Specifically, docks must be maintained in good condition, vessels tied to them must be seaworthy and properly moored, and the dock owner must anticipate harm from passing vessels and guard against such damage.
O’Donnell Trans.,
1. The Marina
The question before us, then, is whether plaintiffs could have reasonably anticipated the ice damage.
See O’Donnell,
The only issue that remains is whether plaintiffs could have reasonably anticipated the possibility of ice damage on January 16, 1994, the date of the first incident. A plaintiff assumes a risk of harm only when “the particular plaintiff in fact sees, knows, understands and appreciates” the risk involved. Restatement (Second) of Torts § 496D cmt. e. “One who has spent a substantial time upon a particular premises ordinarily would be found in fact to understand and appreciate the normal, ordinary risks of those premises.” Id. cmt. d.
While it is true that prior to building the Marina, Scalise had no maritime experience, Tr. at 61, we find that the possibility of ice damage should nonetheless have been foreseeable to him from the outset. Notably, the Marina had been in operation for nearly five years before the events that gave rise to this action. Scalise had ample opportunity to
Taken together, this evidence leads us' to conclude that the ice damage suffered by plaintiffs should have been reasonably anticipated by them and that they therefore assumed the risk of such harm. Accordingly, as to all four incidents in question, we find that defendants are not liable to the Marina for the damage caused by defendants’ vessels.
2. Lindwall
As to plaintiff Lindwall, the houseboat owner whose property was damaged as a result of the February 9,1995, incident, we find that like the Marina, Lindwall assumed the risk of ice damage. In so concluding, we view a houseboat as a “riparian structure.” Its owner, like any other riparian proprietor, thus assumes foreseeable risks. 7
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, which prohibits any unauthorized riparian “obstruction” of the navigable capacity of the waters of the United States, contains a long, non-exclusive enumeration of riparian obstructions. 33 U.S.C. § 403; see
United States v. Republic Steel Corp.,
The fact that a houseboat is capable of moving on its own, does not, by itself, preclude the conclusion that it is a “permanently moored vessel” and thus a riparian structure. “The capacity to navigate is not the only factor to be considered in [such an] analysis. Such capability is only one of the factors to be considered. It is not determinative.”
United States v. Seda Perez,
Consequently, viewing the houseboat as a riparian structure, we find its owner to have assumed the same risks as any other riparian proprietor. Lindwall, a middle-aged man, has owned boats since he was twelve years old. Tr. at 174. Based on these years
CONCLUSION
This litigation presents an unusually clear conflict between the rights of riparian owners and the paramount right of navigation. Although plaintiffs embellish their claims with allegations of safety violations and negligence, we have found (and plaintiffs’ counsel has on occasion acknowledged, Tr. at 16, PI. opening statement) that the gist of plaintiffs’ claim is defendant’s exercise of the right of navigation through the federal channel of the Norwalk river. We speak of “exercise” of that right to emphasize several factors:
1. Here, unlike what appears to have been the case mR &HDevelopment 8 , there was no readily available alternative route for barge delivery of heating oil during the winter months to the pre-existing Devine Bros, facility. If in fact it was a violation of plaintiffs’ rights to make or attempt passage in front of the marina during ice conditions the economic consequences to the owner of the oil storage facility and its local customers might be significant. We make reference to this factor simply to note that the use of the river for barging oil was not optional or merely recreational and that therefore, the passage of barges in this body of water was entirely foreseeable.
2. We find that there was no negligence in the staffing, equipment, or operation of the tug. There was no use of excessive speed or force or poor seamanship.
That the consequence of a vessel passing the marina in the manner required to pass under the nearby bridge, would disperse ice in the vicinity of the marina was entirely foreseeable. The impact of such ice was increased by plaintiffs’ use of bubbling devices to prevent ice from forming near the Marina, thereby increasing the force which the dispersed ice would gather as it passed through the clear water immediately adjacent to the piers. We conclude that defendants are not liable for the damage to the Marina and to Lindwall’s houseboat on the dates in question.
SO ORDERED.
Notes
. The record before us includes depositions taken in connection with this matter. See Tr. at 331. These depositions state that all the captains involved had many years of experience navigating the Norwalk River. Sanford Dep. at 6-10, Bo-urque Dep. at 5-10, Markuske Dep. at 5-15. Presumably, then, they were aware of the possible danger to riparian structures that might result from navigating up an ice-bound river.
. In admiralty, a moving vessel’s striking a stationary object is referred to as an "allision."
Weyerhaeuser Co. v. Atropos Island,
. See Tr. at 26, 30, 54, 87, 90 (Scalise testimony); id. at 212-14, 220-21 (testimony of Richard Scalise, Jr.); Pl.Ex. 24 (Cissi logbook); Pl.Ex. 42, Def.Ex. NN (Washington Bridge logs).
. The evidence does not conclusively support this supposition. See Markuske Dep. at 48-49.
. Plaintiffs have pointed to no such regulatory violation. They instead maintain that the presumption arising from Markuske’s not reading the Pilot is simply that he lacked knowledge concerning the possible closing of the river: “he was not aware that the Norwalk River was closed for six weeks of the year due to icing conditions during the winter.” Pis.' Post-Trial Mem. at 17. However, the Norwalk River was not closed to navigation on the dates in question. See supra pp. 1211-1212.
. It is well-established that assumption of risk is not a defense in admiralty law.
See United States v. Reliable Transfer,
Although, defendants do not explicitly label this defense “assumption of risk,” their pre-trial and post-trial memoranda, as well as their cross examination during trial, so strongly imply that assumption of risk is the legal theory presented that plaintiffs directly address this issue in their post-trial memorandum. See Defs.’ Pre-Trial . Mem. at 20-22, Defs.’ Post-Trial Mem. at 25-29; Tr. at 58-63; Pis.’ Post-Trial Mem. at 58-60. We hold that application of the assumption-of-risk defense is appropriate here.
Defendants invoke the concept of "inevitable accident.” Our focus, however, is on the acts and omissions of the plaintiffs in the construction and location of their property, rather than the conduct of the defendants. Hence, we employ the terminology of "assumption of risk.” Of course, the "risk” assumed is the occurrence of accidents despite due care by navigators.
. Were we instead to characterize a houseboat as a “naval vessel” the assumption-of-risk defense would be unavailable to defendants. See supra note 6.
. The Court in
R & H Development
concluded, "The plaintiff sought ordinary relief for damages. Since we find the vessel was guilty of a statutory fault before the accident, the burden fell upon the defendant to absolve itself from liability ... it cannot be said that it was unreasonable for the court to find, as it did, that on the facts of the case there were reasonable alternatives of navigation the pursuit of which could have prevented the damage without imposing an onerous burden on the vessel."