United States District Court, D. Massachusetts
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Sorokin United States District Judge.
United States of America has brought an in rem claim
against defendant vessels tug M/V Thuban and barge Hydra
1200, both owned and operated by Tisbury Towing &
Transportation, Inc. (“Tisbury”), for their
alleged violation of the Rivers and Harbors Act, 33 U.S.C.
§ 408, on September 19, 2013 at the New Bedford
Hurricane Barrier (“Hurricane Barrier”) near New
Bedford, Massachusetts. The parties stipulate to
defendants' liability and dispute only the amount of
damages. The Court held a bench trial on this claim on June
10-14, 2019, and now “find[s] facts specially and
state[s] its conclusions of law separately” herein as
required by Fed.R.Civ.P. 52(a). The Court awards damages on
this claim to the United States as explained herein.
FINDINGS OF FACT
Court makes the following factual findings based on materials
submitted by the parties, the credible testimony offered at
the trial, and the Court's view of the Hurricane Barrier
on June 10, 2019.
United States Army Corps of Engineers (“the
Corps”) owns and maintains the Hurricane Barrier.
Construction of the Hurricane Barrier was completed in 1966.
The barrier consists primarily of two dikes that cross the
mouth of the Acushnet River. A 150-foot opening between the
two dikes provides a navigation channel into the harbor. That
opening is gated by two 60-foot steel structures that can be
closed at times of anticipated flooding but are typically
open. The steel structures each rest on six steel wheels on
which they can turn to close off the navigation channel. When
the gates are open, eight vertical gate guide beams connected
by horizontal trusses face the navigation channel on each
side of the Hurricane Barrier. The Corps numbers these beams,
and the beams on the eastern side of the gate that are of
particular relevance to this case are numbered G-5, G-6, and
G-7. As of 2013, all but two of the gate guide beams were
original to the Hurricane Barrier's construction. Ten
wooden fenders connect each pair of gate guide beams to
protect the gate from boat impacts, for a total of seventy
the Hurricane Barrier requires maintenance, the Corps inserts
rectangular stop gates into the gate guide beams, creating a
pocket that can be drained to allow maintenance on the gate
wheels and steel trusses. The Corps calls this process
dewatering. In June 2011, the Corps performed its most recent
periodic inspection on the Hurricane Barrier. Ex. 18. It
performed its most recent dewatering in July 2012, at which
time the gate guide beams were sufficiently intact to enable
a successful dewatering.
evening of September 19, 2013, the defendant vessels
attempted to pass from the harbor into Buzzards Bay through
the Hurricane Barrier's navigation channel. The barge was
carrying 1, 232 tons of crushed blue stone. As the barge
passed through the channel, it struck the eastern portion of
the gate at gate guide beam G-6, causing damage to the gate.
Two federal employees observed the allision from the
Hurricane Barrier's operating house, located on the
western side of the gate. The allision was also captured on
film by a security camera mounted on the operating house.
October 5, 2013, the Corps conducted a dive inspection of the
damage to the Hurricane Barrier. During the inspection,
divers inspected gate guide beams G-5, G-6, and G-7 on the
Hurricane Barrier's eastern side, which were in the area
the barge struck. Gate guide beam G-6 and its truss
connections appeared damaged down to the third truss, while
the other two gate guide beams appeared undamaged. Ex. 5 at
¶ 000042-43. All the wooden fenders between gate guide
beams G-5 and G-6 were missing or damaged. Id. As a
result, Corps engineer John Kedzierski proposed replacing
gate guide beam G-6 “from the top to Truss III”
and replacing all the wooden fenders. Id.
the Corps solicited bids to repair the damage to the
Hurricane Barrier using specifications that described cutting
gate guide beam G-6, welding a replacement portion onto the
intact portion of the beam, and replacing 20 wooden fenders.
See Ex. 11. The Corps received bids for $438, 000,
$899, 000, and $574, 000, Ex. 6, and, on April 18, 2014,
awarded the contract to Kovilic Construction Co., Inc.
(“Kovilic”), the low bidder, Ex. 7 at 2. On
September 26, 2014, the Corps modified the contract with
Kovilic to include the replacement of ten additional wooden
fenders for an additional $111, 371. Ex. 8.
October 14, 2014, defendants' expert Duncan Mellor
personally inspected the damaged Hurricane Barrier with
divers from Northeast Diving Services, Inc., a commercial
diving company. Ex. 209. Mellor and the divers inspected the
damage to the Hurricane Barrier, including the gate guide
beams and wooden fenders, both above and below water.
October 25, 2014, divers working for Kovilic's
subcontractor cut gate guide beam G-6 at the third truss.
See Ex. 13 at ¶ 000166-68. After the cut was
performed, the lower portion of the beam-the portion that
remained after the portion above the third truss was
removed-was observed to be twisted and therefore still
damaged, requiring further repair. See Ex. 76
(showing the top of the lower portion of gate guide beam G-6
after the cut was made). On December 12, 2014, as a result of
the remaining damage, the Corps made a second modification to
the contract with Kovilic to include replacing the lower
portion of gate guide beam G-6 for an additional $261, 785.
Ex. 9. Kovilic then completed its performance under the
twice-modified contract on April 13, 2015. Ex. 13 at ¶
000424. The Corps paid Kovilic a total of $811, 156 for its
work on the Hurricane Barrier, of which $699, 785 was for
work to repair the damage from the barge strike and $111, 371
was for the unrelated replacement of ten additional wooden
fenders. Ex. 22 at ¶ 000683.
Corps uses a system of labor codes to track employee time. In
the normal course of business, employees record their time to
various labor codes that correspond to different areas of
work and allow the Corps to allocate employee time to various
funding sources. Each individual employee inputs how they
spent their time, and these records are then reviewed and
approved by the employee's supervisor. All employees
receive training on how to input time, and supervisors
receive additional training, including on fiscal law. After
the barge struck the Hurricane Barrier, the Corps established
specific labor codes to track the internal labor costs
incurred by its response to the incident. See Ex.
17. Internal labor was used to prepare plans and
specifications for the repair, bid and oversee the contract,
and inspect the repairs. Ex. 22 at ¶ 000681. Employees
recorded time to these labor codes as the Corps arranged the
Hurricane Barrier's repair, and those time data were
converted to dollar amounts at the Corps's standard
rates, which include an allocation of other internal Corps
costs such as rent and utilities. The total internal labor
costs attributed to repairing the Hurricane Barrier from the
barge strike was $131, 622.75, which amount was reviewed for
accuracy by the Corps's supervisory civil engineer John
MacPherson. Ex. 22 at ¶ 000683. Along with the $699, 785
paid to Kovilic, the total amount the Corps spent on
repairing the Hurricane Barrier was therefore $831, 407.75.