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United States v. Tisbury Towing and Transportation Inc.

United States District Court, D. Massachusetts

July 25, 2019

TISBURY TOWING & TRANSPORTATION, INC., Tug M/V THUBAN, its engines, boilers, tackle, etc., in rem, and Barge HYDRA 1200, its appurtenances, etc., in rem, Defendants.


          Leo T. Sorokin United States District Judge.

         The 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.


         The 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.

         The 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 wooden fenders.

         When 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.

         On the 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.

         On 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.

         Accordingly, 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.

         On 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.

         On 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.

         The 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.

         II. CONCL ...

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