Opinion
Index No. 904327-20
07-01-2024
State of New York, Plaintiff, v. New York State Marine Highway Transportation, LLC, Defendant.
Denis R. Hurley, Jr., AAG NYS Office of the Attorney General Attorneys for Plaintiff Craig M. Cepler, Esq. Denlea & Carton LLP Attorneys for Defendant
Unpublished Opinion
Denis R. Hurley, Jr., AAG NYS Office of the Attorney General Attorneys for Plaintiff
Craig M. Cepler, Esq. Denlea & Carton LLP Attorneys for Defendant
HON. JAMES H. FERREIRA ACTING JUSTICE
Plaintiff is the owner of a bridge that spans the Hudson River between Watervliet, New York, and Troy, New York (Congress Street Bridge or Bridge). In this action, plaintiff seeks damages arising from an accident that occurred on September 16, 2017 at approximately 11:00 a.m., when a barge, being pushed by a tugboat owned and operated by defendant, broke loose and struck a support pier (Pier 6) of the Bridge. Plaintiff alleges causes of action sounding in negligence and seeks damages in the amount of $512,399.94 plus interest and collection fees pursuant to State Finance Law § 18. Issue has been joined and discovery is complete.
FACTS
As background, in 2016, defendant, the registered owner of certain tugboats, entered into a five-year contract with non-party Azzil Granite Materials, LLC (Azzil), the owner of certain barges, to provide Azzil with marine cargo transportation services from ports along the Champlain Canal, which included the transportation of a quantity of stone from at or near Comstock, New York, to various ports located in downstate New York via the Hudson River (see NYSCEF No. 80). Defendant agreed to provide Azzil with a number of vessels to tow the barges loaded with aggregate materials. Azzil would load the barges with aggregate materials at certain northern ports, defendant would tow the loaded barges to the southern ports, pick up an empty barge left there by Azzil, and return to the northern ports to pick up another barge for towing. The agreement also provided that defendant was responsible to provide, "free of cost to AZZIL, all towing gear necessary to perform the services pursuant to this charter party, including hawsers, wires, bridles, fenders, etc. and shall maintain such towing gear in a condition necessary to safely carry out the services provided for in this agreement" (id. at page 25).
On September 16, 2017, the vessel owned by defendant, a tugboat also known as "the Frances," was approaching Troy southbound, pushing two barges owned by Azzil, both laden with aggregate materials, along the Hudson River. The Frances and the barges were all configured in a line, from bow to stern. The Frances was located at one end of the configuration. The stern of barge 515 (the middle barge), was located at the Frances' bow in the middle of the configuration, and was attached to the Frances by "scow lines." The stern of barge 415 was attached to the bow of the middle barge 515, also with "scow lines." In other words, the first vessel in this configuration was barge 415 (front barge 415), followed by the middle barge 515, which was followed by the Frances. The front barge 415 broke loose from the line securing it to the middle barge 515, and struck the northeast abutment of the Congress Street Bridge, also known as Pier 6 (see NYSCEF No. 81). By inspection conducted September 25, 2017, the New York State Department of Transportation (DOT) explained that
In response to plaintiff's complaint, defendant served an answer which asserted nine affirmative defenses, including that 1) the complaint fails to state a cause of action and is 2) barred by the doctrines of waiver, estoppel, laches, or unclean hands; 3) defendant's liability is limited by the Limitation of Liability Act 46 USC 30505, et seq.; 4) plaintiff failed to mitigate its damages; 5) plaintiff made repairs to the bridge that were not caused by the September 16, 2024 incident; 6) any damages were sustained by plaintiff's own culpable conduct; 7) plaintiff's claims are time barred, or 8) barred by the doctrine of unjust enrichment; and 9) defendant reserves the right to assert further affirmative defenses that are yet unknown (see NYSCEF No. 5).
"[t]he substructure unit consists of a Reinforced Concrete Pier Wall atop a Reinforced Concrete Pile/Cap footing, and is encapsulated by a steel sheetpile cofferdam with a timber fender system. The steel sheetpiling exhibits up to 1/8" section loss, and has up to 75% zebra mussel coverage with moderate algae growth. There is an area of extensive high water timber debris build up on the left nose from STA. 0+00 to 0+15. The Begin Left fender system previously and still currently exhibits missing/damaged timber planks and three levels of missing rangers from STA. 0+00 to 0+30, as well as a missing steel nose and angle plate (same as 8/22/17 inspection). Sounding measurements were taken from the 8/22/17 inspection due to the close proximity of inspection dates. The 2017 soundings compared to 2012 show aggradation up to 4.0'"
(NYSCEF No. 123).
The DOT also reported, among other things, that as a result of the September 16, 2017 incident, "[n]o damage to the pier itself was noted, however, the tops of the impacted steel sheeting of several sheets were inwardly displaced... so that they are touching or nearly touching the concrete pier wall itself[,]....[a] number of timber fender planks.... [] two (2) angle plates are missing[, and].... [s]ix (6) damaged timber fender planks loosely connected below the water surface elevation were leaning out into the East channel" (id.).
APPLICATIONS BEFORE THE COURT
Plaintiff now moves, pursuant to CPLR 3212, for summary judgment on the issue of liability and for summary judgment dismissing defendant's first, second, seventh, and eight affirmative defenses, alleging that the complaint fails to state a cause of action, that this action is barred by the doctrines of waiver, estoppel, laches, or unclean hands, that this action is time barred, and alleging unjust enrichment. Defendant opposes plaintiff's motion, except for that part that seeks summary judgment dismissing the above-referenced affirmative defenses, and also moves, pursuant to CPLR 3212, for partial summary judgment as to (a) the application of the federal Limitation of Liability Act, 46 USC 30501 , et seq.; (b) the value of the subject vessel at issue in this case; and (c) plaintiff's claims for prejudgment interest and for a collection fee under State Finance Law § 18.
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; Black v Kohl's Dept. Stores, Inc., 80 A.D.3d 958, 959 [3d Dept 2011]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see Smalls v AJI Indus., Inc., 10 N.Y.3d 733, 735 [2008]; Baird v Gormley, 116 A.D.3d 1121, 1122 [3d Dept 2014]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324; see Town of Kirkwood v Ritter, 80 A.D.3d 944, 945-946 [3d Dept 2011]). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 A.D.3d at 959; see Carpenter v Nigro Cos, Inc., 203 A.D.3d 1419, 1420-1421 [3d Dept 2022]; Winne v Town of Duanesburg, 86 A.D.3d 779, 780-781 [3d Dept 2011]).
PLAINTIFF'S EVIDENCE
In support of its motion, plaintiff presents, among other things, 1) the deposition testimony of Shane Tierney (Mr. Tierney), the deckhand responsible for securing the barges; 2) the deposition transcript of Terry Stevenson (Captain Stevenson), the captain of the Frances; 3) the Contract for Affreightment (2016 Contract), dated May 12, 2016 between defendant and Azzil; 4) a New York State Marine Highway Transport (NYSMHT) Incident Report (Incident Report); and 5) the expert affirmation and report of Captain Richard DiNapoli (Captain DiNapoli) of Fisher International Maritime Consultants, LLC. Through this evidence, plaintiff argues that its has established, as a matter of law, defendant's negligence caused damages to the bridge's pier protection system.
Deposition Testimony of Shane Tierney
At the time of the incident, Mr. Tierney was employed by defendant, and assigned to the Frances as a deckhand (see NYSCEF No. 78, page 19). Part of Mr. Tierney's job included line throwing, for which he received training. Line throwing involves throwing a rope from a vessel or a barge connected to a vessel onto a dock's bollard to tie off. Mr. Tierney would also, among other things, assist the boat's captain and engineer, act as a lookout, and make sure the lines were secure (see id., at page 21).
Plaintiff asserts, and it remains undisputed, that Mr. Tierney was acting within the scope of his employment with defendant on the date of the incident.
On the date of the accident, the Frances, captained by Terry Stevenson, was pushing two barges, also known as scows, south along the Hudson River. Mr. Tierney was on day three of a "hitch" with the Frances and, at 11:00 a.m., was close to ending his shift. While Mr. Tierney does not recall picking up or securing the middle barge 515 to the Frances, he recalls securing the front barge 415 to the middle barge 515 using scow lines located on the barges. With respect to tying the vessels, Mr. Tierney testified that,
"[i]n the typical way we would use lines either from our boat or on the scow itself. And we would use the cleats on either barge and using a particular sequence of tying off that I do not remember anymore because I haven't done it in years, but there was a specific way to do it. And I would be supervised the whole time for my first three or four hitches. I would not do any tying off without a senior officer watching me"(id. at page 27).
Mr. Tierney believed the ropes, also called scow lines, used to secure the barges were made of nylon, and came from the barges, rather than the Frances. Engineer Lee Paulmeteer supervised Mr. Tierney in attaching the front barge to the middle barge. The Frances had extra ropes or scow lines onboard if "the lines on the scow or on the dock... were unsatisfactory...[o]r if [they] needed extra ones" (id. at page 33). According to Mr. Tierney, a scow line would be considered unsatisfactory if it had "obvious signs of wear and tear, freight [sic] ends, particularly old looking" (id. at page 34).
On the date of the incident, Mr. Tierney inspected the scow lines prior to their use and did not observe any lines that he thought were unsatisfactory. There was nothing extraordinary about the weather, the boat traffic, or the choppiness of the river on the date of the incident, and Mr. Tierney described the day as sunny, calm, and peaceful (see id., at page 60). Both Mr. Tierney and Mr. Paulmeteer were on the front barge 415. At some point, while pushing the barges southbound, there was a loud bang, which Mr. Tierney assumed was the line snapping. Mr. Tierney advised the Captain that one of the lines - the left hand scow line that attached the two barges - had broken. The right side scow line remained in place. Captain Stevenson immediately put the Frances in reverse in an attempt to avoid a collision (or allusion), and Mr. Tierney observed the front barge 415 heading toward the bridge. Mr. Tierney and Mr. Paulmeteer moved off the front barge and to the back of the middle barge 515 to brace for impact. While there was still one scow line connecting the front and middle barges, the front barge 415 "swerve[d] and hit the bridge" making a loud crash (id., at page 40). After the impact, Mr. Tierney was sent to wake the rest of the crew - the other mate and deckhand - to assist in resecuring the front barge 415. After the front barge was secured, they docked and waited for the Coast Guard and company officials to arrive. Mr. Tierney does not know what caused the scow line to break, and did not actually observe it break. As for as what Mr. Tierney did observe, there were no sharp edges or areas on the vessels around where the scow line was placed that would have damaged the line, and there were no rapid movements of the Frances before the scow line broke. The scow line fell into the river after it broke and, Mr. Tierney testified that, as far as he knew, it was not recovered (see id., at page 84).
Deposition Testimony of Terry Stevenson
Terry Stevenson (Captain Stevenson) was the captain of the Frances on the date of the incident, and was, and is still licensed, as a Master of Towing of commercial towing vessels (see NYSCEF No. 79, at pages 21-22). In the summer of 2017, Captain Stevenson started working for defendant towing aggregate "up and down the Hudson River and the canal systems, the Champlain Canal" (id., at page 29). Captain Stevenson was working "two weeks on, two weeks off" at the time of the incident, which meant that when he was "on," he would be living on the Frances (id., at page 30). Captain Stevenson was charged with transporting the barges down to the Troy lock, located south of the Congress Street Bridge.
On the date of the incident, Captain Stevenson was navigating the Frances south on the Hudson River. His shift began at 6:00 a.m. that morning. Lee Paulmeteer was the vessel's engineer, Shane Tierney and Matt Rockenstyre were deckhands, and Joshua Cardoize was a mate. Deckhands were responsible for securing the lines, keeping the boat clean, cooking meals, and "keeping an eye on things out on the deck and the barge as well" (id., at page 40). The engineer would take care of the engine room and also help out on deck. The scow lines used aboard the Francis were made from two inch diameter polypropylene. The crew and, in particular Mr. Cardoize, would perform a daily check on the Frances to ensure that everything was working properly.
The Frances was pushing two barges on September 16, 2017, both filled with aggregate. The middle barge 515 was attached to the Frances in Waterford using face wires and safety lines. Face wires, tightened with a winch, extended from the stern of the Frances to the port and starboard corners of the middle barge 515 (see id., at pages 47-48). The safety lines, on the other hand, extended from the bow to the Frances crosswise to the port and starboard corners of the middle barge 515 so that the Frances was centered behind the middle barge, which would prevent the barge from moving side to side. Then, in Troy, New York, Mr. Tierney and Mr. Paulmeteer attached the front barge 415 to the middle barge 515 by attaching scow lines from the corners of the middle barge 515 to the corners of the front barge 415. Captain Stevenson was not able to watch the securing of the front barge 415 as he was located in the Frances' wheelhouse (see id., at page 52). Captain Stevenson did not inspect the front barge 415 after it had been secured, and testified that it was the deckhand's duty to inspect his own work.
Captain Stevenson testified that, before starting off with both barges, he radioed Mr. Tierney and Mr. Paulmeteer to confirm if they had "four parts," which means that the scow lines run, on either side of the barges, from the front barge 415 to the middle barge 515, back to the front barge 415, and finally back to the middle barge 515, where it is tied off (id., at pages 65- 66). The Frances was traveling approximately five knots when "[o]ne of the lines that was made up on the forward barges parted, causing the barge to veer off to the starboard" (id., at page 56). In other words, the scow line running from the port side of the middle barge 515 to the front barge 415 broke (see id., at page 71, lines 9-10). Captain Stevenson then pulled the Francis out of gear and put it in reverse, but the front barge 415 veered off to the starboard and, within a minute, collided with the abutment, or pier protection or fendering system, under the Congress Street Bridge (see id., at page 68). Captain Stevenson actually observed the scow line break, and testified that the line exploded, creating rope splinters and dust (see id., at page 69). Captain Stevenson testified that he does not know what caused the scow line to break, but also testified that sometimes a visual inspection of the line would not reveal a problem if, for example, there was dry rot inside the rope (see id., at pages 125-126).
Captain Stevenson observed the damage to the bridge's fendering system after the impact which, to the Captain, looked like broken wood. When describing the appearance of the abutment prior to the incident, Captain Stevenson testified that it
"[l]ooked like it had been worn out pretty good from ice or - and it looked like a storm hit it that was covered in debris. There was trees all over. There was all sorts of debris on it. It looked like ice damage to me. It had to be a very high tide or some heavy ice that pushed a lot of debris up against that bridge the way it was"(id., at page 120).
Both an alcohol and drug test was administered to the crew of the Francis. The alcohol test was negative for all crew members. Captain Stevenson was not told of the drug test result of the other crew, but the results of a drug test administered to Captain Stevenson was also negative.
Expert Affidavit and Report of Captain Richard DiNapoli
According to his curriculum vitae, Captain Richard DiNapoli, a graduate of the United States Merchant Marine Academy, and licensed as a Master and First-Class Pilot for vessels of any size, is an expert in marine transportation operations, including nautical sciences such as navigation, piloting, seamanship, ship handling, rules of the road, meteorology, vessel stability, vessel management, and cargo handling. In addition to his professional experience, Captain DiNapoli's opinion is based on his review of, among other things, the pleadings and discovery in this action, including the deposition transcripts of Captain Stevenson, and Shane Tierney, and Robert Goldman, one of the Frances' owners.
Captain DiNapoli asserts that the Frances, with the two barges, was traveling south on the Hudson River around a "right-then-left 'S-bend'" just north of the Congress Street Bridge. Captain DiNapoli asserts that "[t]he Tug/Tow had completed the right-hand turn to starboard for the first half of the bend, and was commencing the turn back to the left to line up for the transit beneath the bridge. It was at that point when the port (left-hand) side scow line between the two barges parted, causing barge 415 to veer to starboard and allide [or collide] [] with the bridge's western abutment" (NYSCEF No. 83, page 12; see also NYSCEF No. 75).
The Francis was operating such that it was pushing the tow barges, with the front barge 415 in the front of the middle barge 515, and the middle barge 515 in front of the Frances. Generally, a "2-in-line" configuration such as this requires that the scow lines connecting the barges are pulled as "hand tight" as possible. However, any hand tightening would not be as tight as it could be with the use of a winch. Captain DiNapoli opines that, as the Frances was in the process of "turning the Tow to port in the river bend," the tow was caused to" 'hinge' slightly at the starboard rope connection between the two barges," causing the port side scow line between the barges to strain and stretch (NYSCEF No. 83, at page 13). According to Captain DiNapoli, based on the weight of the loaded barges, the inertia from the turn accelerated to a force that was capable of "exceeding that line's breaking strength" (id.). That strain and stretch, according to Captain DiNapoli, caused the port side scow line connecting the two barges to break or "part" and, when that line parted, the front barge 415 broke loose, veered sharply to starboard resulting in the barge's the collision or allision with the Congress Street Bridge (see NYSCEF No. 75, at ¶ 7).
Captain DiNapoli assets that, to a reasonable degree of professional certainty, 1) the parting and allision resulted from defects in the port side scow line that was used, which rendered it unsuitable and unsatisfactory for the purpose of attaching the barges to each other; 2) the port side scow line used to attach the barges together had not been pulled tight enough when the initial connection was made; 3) the parting and allision was caused by multiple failures on the part of Mr. Tierney in his inspection of the port side scow line and the line securing the front barge 415 to the middle barge 515; and 4) the scow line used to attach the two barges was not sufficiently tight, defective, and not reasonably fit for its intended service. As such, Captain DiNapoli opines that the Frances and the barges were not seaworthy (see NYSCEF No. 75, pages 3-4).
DEFENDANT'S EVIDENCE
In opposition to plaintiff's motion, defendant relies on, among other things, the exhibits used by plaintiff, together with the deposition transcripts of Robert Goldman, Todd Dockstader, and David R. Robinson, the expert reports of David Tantrum and Claudio N. Crivici, the bridge and pier inspection reports/assessments dated August 12, 2008, September 1, 2010, April 17, 2012, August 22, 2017, September 15, 2017, July 10, 2017, and August 22, 2017, repair plans prepared by Todd Dockstader, dated April 12, 2018, and an email sent to Department of Transportation employes dated September 16, 2017. Through this evidence, defendant argues that
1) defendant has sufficiently rebutted any presumption that defendant's operation of the Frances was negligent, and questions of fact preclude summary judgment in plaintiff's favor on the issue of liability;
2) defendant is entitled to a limitation of its liability under the federal Limitation of Liability Act (LLA), which caps the liability of the owner's vessel involved in a maritime accident to the value of the vessel;
3) defendant's liability should be capped at $340,000.00, which is the value of the Frances;
4) plaintiff is not entitled to either prejudgment interest or fees under State Finance Law § 18.
Deposition Testimony of Robert Goldman and Todd Dockstader
Robert Goldman is a member of defendant and, together with Michelle Hayes, and Timothy Duffel, are the owners of the Frances, which is a steel hull canal tug with a telescoping pilothouse (see NYSCEF No. 90, pages 4-5). Defendant provides marine transportation services for overweight and oversized cargo. On the date of the incident, the Frances, manned by defendant's employees, was transporting two barges along the Hudson River in accordance with a contract between defendant and Azzil. With respect to the material used to secure the barges, Mr. Goldman testified that the barges "had their own lines that were provided by Azzil' (id., at page 20).
Todd Dockstader, a structural engineer for the New York State Department of Transportation (DOT) created the repair plans for the bridge (see NYSCEF No. 54; NYSCEF No. 94, pages 4-5, 9). Mr. Dockstader testified that the Congress Street Bridge - a steel girder bridge - was constructed in 1969, with an anticipated lifespan of about 75 years (see NYSCEF No. 95, page 7). General bridge inspections are constructed by the DOT every two years, and special inspections are conducted every year when there is evidence of structural issues. Mr. Dockstader identified an e-mail, dated September 16, 2017, from Hans Dunderdail, DOT's regional maintenance engineer, which stated that "although I recommend this bridge is safe for legal traffic, due to no physical damage to the pier itself, I would recommend an inspection team take a closer look at their....earliest convenience. The pier protection should also be repaired so it can effectively do its job during the next impact" (id., at page 14). The pier protection system consists of steel sheets surrounded by wooden bumpers.
Excerpts of Mr. Dockstader's deposition testimony have not been uploaded to NYSCEF in consecutive order (see NYSCEF No. 95). For example, page 3 of NYSCEF No. 95 includes, from left to right pages 17 and 19, with pages 18 and 20 following.
Expert Report David J. Tantrum
David J. Tantrum is an engineering and marine consultant, who was retained by plaintiff. Defendant refers to Mr. Tantrum's opinions regarding the Frances' value at the time of the incident. The Francis was built in 1957. Mr. Tantrum opines that, based on the sales approach, the fair market value of the Francis is $340,000.00, the value of each of the barges is $590,000.00, and the value of the freight is $33,693.00 (see NYSCEF No. 91, page 4; see also NYSCEF No. 113).
Plaintiff presents the affirmation of Mr. Tantrum in opposition to defendant's motion, which makes the same valuation conclusions (see NYSCEF No. 113). Defendant also submits the insurance policy covering the Frances, which values the Frances at 360,000.00 (see NYSCEF No. 117).
Excerpts of Bridge Inspection Reports
Defendant introduces bridge inspection reports to establish the deteriorating condition of Pier 6's pier protection system prior to the September 16, 2017 incident. Specifically, photographs and reports of Pier 6 from 2002, 2007, 2008, 2010, 2012 depicts missing timber fender sheathing on the pier protection system (see NYSCEF No. 96, pages 23 and 54; NYSCEF No. 97, page 42; NYSCEF No. 98, pages 6, 7, 12; NYSCEF No. 101. Pages 8-9, 19-20). Furthermore, an August 22, 2017 inspection, conducted approximately one month prior to the incident, revealed that the Pier 6 protection system was heavily worn, with the loss of a section of steel sheet piling and missing timber fenders (see NYSCEF No. 99; NYSCEF No. 102, page 9).
Defendant presents excepts of the deposition of David R. Robinson who took part in the August 2017 inspection of Pier 6 as a diver, and notes that the pier was given a nonstructural damage score of four (see NYSCEF No. 103, page 5). Mr. Robinson did not know if the fender system had been repaired in prior to August 2017 based on earlier inspections.
Affidavit of Value and Expert Report of Claudio N. Crivici, NAMS, CMS
Claudio N. Crivici, a marine surveyor associated with the National Association of Marine Surveyors (NAMS), was retained on defendant's behalf to provide an opinion regarding whether the Francis was seaworthy on September 16, 2017, whether defendant secured the two barges in accordance with the best practices applicable to a maritime towing operations, and the scope of repair work to the fendering system of Pier 6 as a result of the impact (see NYSCEF No 106).
Mr. Crivici bases his opinion on his experience, and his review of the deposition transcripts in this action, together with, among other things, the contract between defendant and Azzil, the deposition transcripts, dive and inspection reports from 2007 through 2017, the expert reports of Mr. DiNapoli and Mr. Tantrum, and the reports of the completed repairs. Mr. Crivici outlines the facts in this action, and summarizes that
"[t]he bow of the tug 'Frances' was made up to the first aft barge, the 'RS 515,' in push mode utilizing face wires that were mechanically tensioned via the 'Frances' deck winches. The stern of the forward barge 'RS 415' was subsequently secured to the bow of the 'RS 515,' utilizing two independent synthetic lines, one securing the port bow bitt of the 'RS 515' to the port stern bitt of the 'RS 415' and the other similarly securing the starboard bow and stern bitts. Each of the lines utilized a four-part looped configuration"
(NYSEF No. 106, page 6).
Mr. Crivici asserts that the cause of the scow line's failure is unknown, and there is no evidence that Mr. Tierney did not perform a proper inspection or that he did not property secure the equipment. Mr. Crivici notes that the line was never photographed, inspected, or examined and, other than speculation, there is no evidence that the barges "hinged" and overloaded the lines. Furthermore, Mr. Crivici opines that is no evidence that the barges were not properly secured or that the lines were not tight enough, as claimed by plaintiff. Furthermore, Mr. Crivici notes that, regardless of whether the scow lines came from the Frances or from one of the barges, there is no evidence that those lines were not properly inspected. Rather, Mr. Tierney's testimony evidences the contrary and, according to Mr. Crivici, "nothing in the record undermines the conclusion that [defendant] provided a crew and vessel that were reasonably fit and capable for the intended voyage" (id., at page 7). With respect to the Francis, itself, Mr. Crivisi opines that, "[e]ven if the line parted because it was not adequately tightened, this would not render the tug itself unseaworthy. It was always suitable for its intended purpose, the sole question for the seaworthiness inquiry. A line incorrectly tightened does not undercut that conclusion" (id., at page 18).
With respect to Pier 6, Mr. Crivisi states that the pier protection system - steel corner plates placed over wood face boards - is designed to "deflect[] objects such as debris or vessels to protect the bridge pier. As an analogy, a fendering system is designed to block a punch like a talented boxer. If a punch does land squarely on the bridge pier, the fendering can absorb and disperse the blow" (id., at page 8). The age of the Pier 6 fendering system is unknown, but its life expectancy can be reduced if it is not maintained as a result of decay, damage from icing, or vessel contact. According to Mr. Crivisi, the three reports from 2007, 2012, and 2017, and their corresponding photographs, reveal that prior to the incident, the fendering system exhibited broken and missing pieces, and corrosion, with no evidence that any maintenance of the system was undertaken. Based on its deteriorated condition, according to Mr. Crivisi, the pier protection system was unable to protect the bridge pier as it should have by deflecting the front barge 415, and the missing wood fendering exposed the metal, which resulted in metal to metal contact between the pier and the front barge 415, which essentially trapped the front barge 415 to the fendering system, causing increased damage to the fendering system.
With respect to the post-incident repairs undertaken by plaintiff, Mr. Crivisi states there was preexisting damage to the pier protection system that pre-dated the incident. Mr. Crivisi asserts that the repairs included the complete renewal of 75-100 feet of previously deficient and damaged fendering, and modified the system by installing a more expensive and more time consuming installation of steel framing system with a "three-tier rubber face fendering" (id., at page 17).
In sum, Mr. Crivisi opines, to a reasonable degree of technical and professional confidence that the Frances was seaworthy, its crew properly secured the barges with proper barge scow lines after inspecting them, the pier protection system of Pier 6 was in a state of disrepair prior to the incident, and plaintiff's post-incident repairs exceeded the damage caused by the impact.
As for the value of the Francis, Mr. Crivisi affirms that its value is $360,000.00 (see NYSCEF No. 125).
THE LAW AND ITS APPLICATION TO PLAINITFF'S MOTION
"Under federal maritime law, a negligence claim consists of four elements: (1) the existence of a duty of care owed by the defendant; (2) breach of that duty; (3) a causal connection between the conduct resulting in the breach and plaintiff's injury; and (4) actual loss, injury, or damage" (In re M/V MSC FLAMINIA, 229 F.Supp.3d 213, 219 [SDNY 2017]; see MacKay v Paliotta, 196 A.D.3d 552, 558 [2d Dept 2021]). While admiralty law recognizes a general theory of liability for negligence, it also "recognizes a presumption, first formulated in The Oregon, that applies when a vessel under its own power allides [or collides] with an anchored vessel or a stationary object... Under such circumstances, the moving vessel is presumed to be at fault and bears the burden of rebutting the presumption by showing that the allision was the fault of the stationary object, that the moving vessel acted with reasonable care, or that the allision was an unavoidable accident" (Zerega Ave. Realty Corp. v Hornbeck Offshore Transp., LLC, 571 F.3d 206, 211 [2d Cir 2009], citing The Oregon, 158 U.S. 186, 197 [1895]; see Wardell v Dept of Transp., Nat. Transp. Safety Bd., 884 F.2d 510, 513 [9th Cir 1989])."Although the Oregon rule creates a presumption of negligent operation, it does not create an additional presumption that the allision caused whatever damages are alleged" (Zerega Ave. Realty Corp. v Hornbeck Offshore Transp., LLC, 571 F.3d at 212, citing In re Mid-South Towing Co., 418 F.3d 526, 532 [5th Cir 2005] ["[T]he Oregon rule.... speaks explicitly only to a presumed breach on the part of the alliding vessel, and is not a presumption regarding either the question of causation (either cause in fact or legal cause) or the percentages of fault assigned parties adjudged negligent."]).
"As in any negligence case, the plaintiff in a maritime allision case bears the burden of proving by a preponderance of the evidence that the defendant's negligence caused the alleged damages" (id.)
Upon due consideration, plaintiff's motion is denied. Here, it is undisputed that the Frances allided with a stationary pier, and thus, plaintiff is entitled to a presumption that defendant, and its crew, negligently operated the Frances. However, while plaintiff has established its prima facie entitlement to summary judgment on the issue of negligent operation, defendant, through its opposition, has rebutted that showing by submitting evidence that the crew of the Frances acted with reasonable care in securing the barges with properly inspected scow lines. Furthermore, there is no factual basis to plaintiff's contention that the scow line was not suitable for its intended purpose or that that Mr. Tierney failed to properly inspect or tighten that line. Indeed, while Captain DiNapoli opines that the scow line was caused to strain and stretch due to a bend in the River, there is also evidence in the record that Mr. Tierney observed no defects with the line after inspecting them prior to securing the barges and that the cause of the line break is unknown. The scow line was not inspected after the incident as it went into the River, and there is no evidence in the record that indicates that Mr. Tierney failed to sufficiently tighten the line. Furthermore, there are contrary expert opinions as to whether the scow lines used resulted in the Frances being classified as unseaworthy. Finally, given the evidence that the pier protection system at Pier 6 was in a deteriorated condition prior to the incident, there is a question of fact presented regarding to what extent the damage to the fendering was caused by the allusion. Accordingly, plaintiff's motion, seeking summary judgment on the issue of liability, is denied.
However, defendant has not opposed that part of plaintiff's motion seeking summary judgment dismissing defendant's first, second, seventh, and eight affirmative defenses, alleging that the complaint fails to state a cause of action, that this action is barred by the doctrines of waiver, estoppel, laches, or unclean hands, that this action is time barred, and alleging unjust enrichment. Accordingly, because plaintiff is entitled to summary judgment dismissing defendant's first, second, seventh, and eight affirmative defenses, that party of plaintiff's motion, is granted.
THE LAW AND ITS APPLICATION TO DEFENDANT'S MOTION
In next addressing defendant's motion, defendant argues that it is entitled to partial summary judgment limiting its liability under the federal Limitation of Liability (LLA) Act, and that plaintiff not entitled to prejudgment interest or fees under State Finance Law § 18. Plaintiff opposes defendant's motion, contending that the LLA does not apply because the Frances was not seaworthy, that any limitation would also include the value of the barges with the freight, and that plaintiff is entitled to interest from the date of the accident together with a collection fee authorized by State Finance Law § 18.
The Limitation of Liability Act
"Admiralty and maritime law includes a host of special rights, duties, rules, and procedures" (Lewis v Lewis & Clark Marine, Inc., 531 U.S. 438, 446 [2001]). Pursuant to the Limitation of Liability Act (LLA),
"(a) In general.-Except as provided in section 30524 of this title, the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b) shall not exceed the value of the vessel and pending freight. If the vessel has more than one owner, the proportionate share of the liability of any one owner shall not exceed that owner's proportionate interest in the vessel and pending freight.
(b) Claims subject to limitation.-Unless otherwise excluded by law, claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner"
(46 USC 30523 [a],[b]).
"Congress enacted the [LLA] in 1851 'primarily to encourage the development of American merchant shipping'" (In re Willaims Sports Rentals, Inc., 90 F4th 1032, 1041 [9th Cir 2024], quoting Lake Tankers Corp. v Henn, 354 U.S. 147, 150 [1957]). "A limitation action requires the []court to make a two-step inquiry: (1) negligence or unseaworthiness, and (2) the owner's privity or knowledge of the negligence" (Matter of Osage Marine Servs., Inc., ___ F.Supp. ___, ___, 2024 WL 2862874, *3 [ED Mo 2024], quoting Am. River Transp. Co. v. Paragon Marine Servs., Inc., 213 F.Supp.2d 1035, 1063 [ED Mo 2002], affd 329 F.3d 946 [8th Cir 2003]).
"Before [defendant] is entitled to limit its liability, it must first be shown that the [Frances] was seaworthy[,] for it is clear that there can be no limitation of liability where the owner of a ship knew or should have known that a ship was unseaworthy due to some unsafe condition or was improperly equipped or manned" (Daniels v Trawler Sea-Rambler, 294 F.Supp. 228, 236 [ED Va 1968]). Furthermore, pursuant to the LLA, "the shipowner is not chargeable with privity or knowledge or with design or neglect when he has used due diligence to furnish a seaworthy ship, but he is so chargeable when he has failed in his duty of due diligence and has sent out a ship unseaworthy in some respect that proximately contributes to the loss" (id. at 237).
Defendant's motion, insofar as it seeks summary judgment limiting its liability under the LLA, is denied. As more fully set forth above, there are countering expert opinions as to whether the Frances was seaworthy on the date of the incident. Furthermore, there is evidence that the crew of the Frances had extensive training and experience, and there is no indication, one way or the other, as to whether defendant knew or should have known that the Frances was either seaworthy or unseaworthy.
To the extent that plaintiff argues that defendant's liability would include the barges, the value of the cargo, and the value of the Frances, the Court disagrees at this time. "Where the vessel owner proves its lack of privity or knowledge, thus establishing its entitlement to limited liability, the so-called 'flotilla doctrine' may nevertheless increase the total value of the limitation fund. That doctrine requires the [owner] to surrender the value of all the individual vessels involved in an incident-its entire flotilla-if the vessels were operating pursuant to a contract between the parties" (In re Miller Marine Servs., Inc., __ F.Supp. __, __, 2013 WL 5460937, *3 [EDNY 2013] [emphasis added]). "The flotilla doctrine requires a limitation fund to include the value of all vessels engaged in an enterprise when the vessels are: 1) owned by the same person, 2) under a single command, and 3) engaged in a common enterprise" (In re Bd. of Commissioners, 575 F.Supp.3d 669, 674 [ED La 2021]). In this matter, it is undisputed that the Frances and the barges with their freight are owned by separate entities, and there was no contract between the parties or between Azzil and plaintiff.
Next, the Court also denies defendant's motion insofar as it seeks to limit plaintiff's recovery of pre-judgment interest. "In maritime cases such as this, courts generally award prejudgment interest to prevailing plaintiffs" (SM Line Corp. v YMM Napoli Import, Inc., ___ F.Supp.3d ___, ___, 2022 WL 17820123,*2 (EDNY 2022). The rate of interest used in awarding prejudgment interest rests firmly within the sound discretion of the trial court as is the date when interest accrues, and whether it will be compounded (see Ingersoll Mill. Mach. Co. v M/V Bodena, 829 F.2d 293, 311 [2d Cir 1987]; Maersk Inc. v Ruhana Foods U.S.A., Inc., ___ F.Supp.3d ___, ___, 2014 WL 4374481, * 2 [EDNY 2014]). At this stage of the proceedings, the Court declines to make a determination with respect to pre-judgment interest. Whether pre-judgment interest is permitted, from when, and at what rate "depends upon the circumstances of each case, and rests very much in the discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury" (City of Milwaukee v Cement Div., Nat. Gypsum Co., 515 U.S. 189, 196 [1995]). The Court finds that any application for pre-judgment interest shall be made upon the conclusion of the liability portion of the action. Accordingly, defendant's motion, insofar as it seeks to limit plaintiff's recovery of pre-judgment interest, is denied, without prejudice to either party to make a future application regarding the same.
Finally, the Court denies defendant's motion insofar as it seeks, as a matter of law, to bar plaintiff from recovering the collection fee permitted under the State Finance Law § 18. "The State Finance Law authorizes a collection fee, not to exceed 22% of the outstanding debt to the state, 'to cover the cost of processing, handling and collecting' the debt where the debtor has failed to remit payment within 90 days of receiving the first billing invoice or notice" (New York State Workers' Compensation Bd. v Episcopal Church Home & Affiliates, Inc., 218 A.D.3d 1317, 1321 [4th Dept 2023], quoting State Finance Law § 18 [5])." 'The statute defines a debt as a liquidated sum due and owing any state agency, with the term liquidated being defined as an amount which is fixed or certain or capable of being readily calculated, whether or not the underlying liability or amount of the debt is disputed'" (id., quoting New York State Thruway Auth. v Allied Waste Servs. of N. Am., LLC, 143 A.D.3d 1145, 1147 [3d Dept 2016]; see State Finance Law § 18 [1] [b], [d]). Based on defendant's failure to present any authority that plaintiff is precluded, under maritime law, from seeking a collection fee pursuant to the State Finance Law §18, defendant's motion, insofar as it seeks such preclusion, is denied.
Accordingly, based upon the foregoing, it is hereby
ORDERED that plaintiff motion, made pursuant to CPLR 3212, seeking summary judgment is granted, only insofar as defendant's first, second, seventh, and eight affirmative defenses are dismissed, and plaintiff's motion is otherwise denied; and it is further
ORDERED that defendant's motion, made pursuant to CPLR 3212, seeking partial summary judgment, is denied.
This constitutes the Decision and Order of the Court, which will be uploaded to the New York State Court's Electronic Filing System (NYSCEF). Counsel is advised of 22 NYCRR 202.5-b (h) (2) relating to notice of entry.
SO ORDERED.