United States District Court, D. Massachusetts
For Sterling Equipment, Inc., Plaintiff: Kirby L. Aarsheim, Thomas J Muzyka, LEAD ATTORNEYS, Clinton & Muzyka, P.C., Boston, MA.
For M/T GREAT EASTERN, and her Engines, Machinery, Tackle, Appurtenances, etc., In Rem, FB Tankship IV Ltd, In Personam, Defendants: Brandon L. Bigelow, LEAD ATTORNEY, Nathaniel P. Bruhn, Bingham McCutchen LLP - MA, Boston, MA; Robert E. McDonnell, LEAD ATTORNEY, Bingham McCutchen LLP, Boston, MA.
MEMORANDUM & ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
The Plaintiff, Sterling Equipment, Inc., is the owner of a deck barge, Excalibur. On the night of January 30, 2012, a crane aboard Excalibur sustained damage apparently caused by the wake of a passing vessel. Believing that passing vessel to be the M/T Great Eastern, Sterling has sued Great Eastern along with its owner, FB Tankship IV LTD., alleging negligence and gross negligence.
Through a summary judgment motion, the defendants contend that the evidence unearthed during discovery is insufficient to show that the damage was caused by Great Eastern, rather than by another vessel or source, and so seek summary judgment in their favor.
I. FACTUAL BACKGROUND
A. The Wake Incident
In the early hours of January 30, 2012, the barge Excalibur, along with the tugboat, Miss Yvette, were anchored outside the ship channel of the East Passage of Narragansett Bay, just south of the Pell Bridge in Newport Rhode Island. Aboard the Excalibur was a Manitowac 4600 crane owned and operated by Sterling.
That evening, the Miss Yvette had four crew members on board. The Excalibur was unmanned. Captain Louis Gilliken was the designated master of the Miss Yvette, while Captain William Hoolahan was the " second captain." The crew was scheduled to work in pairs in six hour shifts. Captain Gilliken and crew member John Dolliver were on the watch scheduled from 6:00 pm until midnight on January 29, 2012. They were relieved by Captain Hoolahan and crew member Edwin Rose who were scheduled for the " mid watch" from midnight until 6:00 am on January 30, 2012. Captain Gilliken testified in his deposition that he was relieved by Captain Hoolahan " at midnight on January 30th, 2012." Captain Hoolahan was somewhat less precise in his deposition, testifying that the change-over occurred " somewhere close" to midnight.
Captain Gilliken testified that he, Captain Hoolahan, and the two crew members were below deck in the galley at the time of the shift change when they felt a wave hit the barge. He testified that this event " [h]appened right after midnight. At midnight. It could be a thirty minute difference, but it was at midnight." While at one point, he testified that he was " certain" the accident occurred between midnight and 12:30 am on January 30, 2012, he qualified this somewhat later in his deposition, saying that the wake occurred " somewhere around midnight, 1:00, somewhere." In response to questions, he further explained: " Q: It was right at the time of the turnover on your watch, is that right? A. Exactly, or a little after my turnover. Q. And the turnover of our watch was at midnight, is that right? A. Exactly."
After feeling the wave strike the tugboat, Captain Gilliken opened the galley door to check on the barge and crane. He could only see part of the barge and could not see all of the crane, but he could hear the two blocks of the crane striking together.
Captain Hoolahan testified that he was in the wheelhouse when he saw an outbound ship moving quickly. He then went down to the galley and was there when the wave struck. Captain Hoolahan described the wave hitting the barge as " severe" and said " we got smashed with like a whomp, like a huge offshore." He said that the tugboat " felt like it was lifted up in the air and thrown against the Excalibur" by the wave. He returned to the wheelhouse after talking with the crew and observed the aft of the passing vessel. He testified that he observed a " large ship" traveling away " really fast." He also noted that the vessel had a large superstructure on its aft section. Captain Hoolahan testified that the wave struck the barge " sometime after midnight" and that he did not remember " the exact time," but it was while he was on watch. Captain Hoolahan believed and believes that the wake was caused by the Great Eastern, but he could not recall or state a basis for his belief.
Neither Captain Gilliken nor Captain Hoolahan radioed the passing vessel that had caused the wake.
B. The Transit of the Great Eastern Past the Pell Bridge
The Great Eastern was docked pierside in Providence, Rhode Island at midnight on January 30, 2012, approximately 20 miles north of the Pell Bridge in Newport Rhode Island. The pilot for the Great Eastern that day was Vincent Kirby. Captain Kirby boarded the Great Eastern shortly before midnight and the vessel departed Providence at approximately 12:12 am on January 30, 2012. Captain Kirby reported that visibility was excellent on the outbound transit of Narragansett Bay.
The Great Eastern passed Sabin Point on the Providence River at approximately 12:40 am. After that time, it maintained a speed between 14 and 15 knots until it passed under the Pell Bridge at approximately 1:50 am. During the outbound transit, Captain Kirby monitored Automatic Identification System (" AIS" ) transmissions, radar and VHF radio channels. He encountered no traffic during his navigation from Providence to the Pell Bridge
and received no communications other than from the tugboats that undocked the Great Eastern in Providence. He was, however, aware of a Local Notice to Mariners issued by the Coast Guard describing work being performed on the Pell Bridge and the presence of barges in the area. That Notice also stated that " Mariners are requested to reduce speed through the ...