Marano v Dady

[*1] Marano v Dady 2006 NY Slip Op 51099(U) [12 Misc 3d 1168(A)] Decided on June 9, 2006 Civil Court Of The City Of New York, Kings County Bluth, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2006
Civil Court of the City of New York, Kings County

William Marano, Plaintiff,

against

John Dady, Carol Dady, Boat U.S., Defendants.



100029/05

Arlene P. Bluth, J.

Plaintiff hired defendants John Dady and Carol Dady to tow his houseboat, by water, from the Bronx to Brooklyn. He sued herein for $1,200 in damages to his boat allegedly caused by their negligence. The matter was tried before this Court on May 30, 2006.[FN1] All parties appeared pro se and testified on their own behalf; in addition, plaintiff presented one other witness, his wife. Based upon the evidence introduced at trial, and having had the opportunity to observe the demeanor of the witnesses and assess the credibility of their testimony, the Court makes the following findings.

FINDINGS OF FACT

Defendants Captain John Dady and Carol Dady are mariners and provide boat towing services.[FN2] Plaintiff William Marano hired them to tow his houseboat from the Bronx to Brooklyn. By oral agreement made over the telephone with Ms. Dady, plaintiff agreed to pay defendants $2,000 for the job; it is undisputed that said amount was paid.

On August 1, 2005, while plaintiff and his wife watched, defendant Captain John Dady and a hired hand hooked the houseboat up to their tugboat and both boats left the Bronx marina. Plaintiff drove to Brooklyn over land while Captain Dady made the trip on water. It is uncontested that the boat was damaged en route. Captain Dady who was the only eyewitness at trial as to how the boat was damaged testified that the damage occurred early in the two-and-a-half-hour trip, when some cleats of plaintiff's boat (to which the tow lines were attached) came loose. He testified that plaintiff's cleats were not properly secured, and that they had apparently been nailed into the boat without any bolts or reinforcing plates. [*2]

Plaintiff did not specifically address that claim, but he asserted that his boat was in fine condition and that defendants' actions during the tow had caused the damage. He had no eyewitness proof of negligence; indeed, he was not present on or near his boat during the tow. As proof of his damages, he produced two itemized repair estimates one for $2,305 (exhibit 2A), and the other for $1,780 (exhibit 2B). He also introduced two paid receipts for parts he purchased one in the amount of $899.47 (exhibit. 4A), and the other in the amount of $325.12 (exhibit 4B), for a total of $1,224.59. Plaintiff testified that in order to minimize the expense, he chose to buy the parts and do the repair work himself. By doing so, he mitigated his damages: The $1,200 sued for here is not only slightly less than he spent on parts, it excludes any labor costs.

Defendants did not dispute that plaintiff's boat was damaged during the towing process. They asserted, however, that plaintiff's boat was not "seaworthy," and therefore could not have

been safely towed or delivered intact.[FN3] They testified that the waters through which the boats had to pass were "treacherous." Although Ms. Dady testified that she told plaintiff that he was absolutely required to have the boat surveyed before it could be towed, defendants conceded that they did not ask to see a survey or proof that one was conducted before agreeing to tow plaintiff's boat. In any event, plaintiff did have the boat surveyed, and at trial he produced a survey dated June 3, 2005 (exhibit 1) nearly two months before the towing. That survey found the boat to be in good condition, to wit "suitable to her intended purpose and acceptable for live on." The survey did not specifically address the boat's seagoing capabilities or the strength of its cleats.

Defendants also claimed that plaintiff had misrepresented his boat when he called to arrange the towing that he told them it was a one-story fiberglass houseboat, when it was actually a two-story barge. There was no testimony about the significance of that difference.[FN4] Throughout his testimony, Captain Dady repeatedly impugned the quality of plaintiff's boat. It was clear that this negative opinion was formed when he first saw the boat upon arriving at the Bronx marina. Defendants testified that the place from which the boat had to be towed was a "graveyard of houseboats," filled with unuseable or abandoned vessels. In the Captain's view, plaintiff's boat was quite at home there. When questioned by the Court as to why, then, he undertook to tow plaintiff's boat when he saw that it was, in his determination, an unseaworthy barge, the Captain responded that by the time he saw the boat, he had already made the trip all the way to the Bronx marina with a hired hand and was, he said, "already into it for a thousand dollars."

CONCLUSIONS OF LAW

At trial, defendants argued that this case belongs in "admiralty court," and that this Court lacks jurisdiction over the matter. Thus, the Court will first address its jurisdiction to adjudicate this matter. In order for admiralty or maritime[FN5] jurisdiction to exist in tort cases, the wrong must not [*3]only have occurred in navigable waters, but it must also bear some relationship to "traditional maritime activities." Tompkins v Port Auth. of New York, 217 AD2d 269, 272, 638 NYS2d 94 [2nd Dept 1996] (quoting Executive Jet Aviation v City of Cleveland, 409 US 249, 256, 93 S Ct 493 [1972] (abandoning traditional "locality test" to add requirement of a maritime nexus). Admiralty jurisdiction "extends over all the navigable waters of the United States, and the vessels navigating the same."[FN6] Chisholm v North. Transp. Co., 61 Barb 363 [Sup Ct, NY County 1872]. Since this case centers upon damage incurred to a boat during a tow on navigable waters, it clearly satisfies the requirements for admiralty jurisdiction.

The Federal Judiciary Act confers primary jurisdiction of civil admiralty or maritime cases upon the federal district courts, "saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 USC § 1333(1). This statute vests original jurisdiction in admiralty and maritime cases concurrently in federal district courts and state courts. See Lerner v Karageorgis Lines, 66 NY2d 479, 484, 497 NYS2d 894 [1985]; Kahn v Gates Constr. Corp., 103 AD2d 438, 443, 480 NYS2d 351 [2nd Dept 1984]. "Under the saving to suitors' clause . . . state courts are competent to adjudicate maritime causes of action in proceedings in personam, that is, where the defendant is a person, not a ship or some other instrument of navigation." 11 NY Jur 2d § 15. Therefore, this Court has jurisdiction over this action.

In adjudicating maritime cases, state courts are bound to apply federal law "in order to secure a single and uniform body of maritime law." Lerner, 66 NY2d at 485. Because this case involves a tow on navigable waters, ordinary state law negligence principles do not apply. Simply put, neither a tugboat (called the tug) nor a towing company is a bailee or insurer of the boat being towed (called the tow). See South, Inc. v Morgan Towing and Transp. Co., Inc., 360 F2d 1002, 1006 [2d Cir 1966]; Frederick Snare Corp. v Morgan Towing & Trans. Co., 195 F Supp 639, 641 [SDNY 1961] ("The tug is not liable as an insurer or a common carrier, but owes to the tow the duty to exercise such reasonable care and maritime skill as prudent navigators employ in the performance of similar services."). The fact that the tow appeared to be in good condition when delivered to the tug, but arrived at its destination damaged does not give rise to a presumption of negligence. See South, Inc., 360 F2d at 1006; Frederick Snare Corp., 195 F Supp at 641. Thus, the owner of the towed boat is generally required to establish some affirmative act of negligence on the part of the tower. See Ulster Oil Trans. Corp. v The H.A. Meldrum, 122 F Supp 767, 769 [EDNY 1954]; The Eros v The Bratton, 3 FRD 40, 41 [SDNY 1942] ("the burden of proving negligence on the part of the tower is that of the owner of the towed vessel."). Further, the owner of the tow warrants that his or her boat is seaworthy and able to "withstand the ordinary perils to be encountered on the voyage." South, Inc., 360 F2d at 1005.

However, even in the absence of any proof of the tug's negligence during the towage itself, if the vessel was patently unseaworthy, the tug may be held liable for proceeding to undertake the towage in the first instance. See Bust v Cornell Steam-Boat Co., 24 F 188, 189 [SDNY 1885]; Mason v The Steam-Tug William Murtaugh, 3 F 404, 409 [SDNY 1880] (finding negligence where tow was loaded and had no hatch covers and so was obviously unfit to be towed across the bay). See also The Atlantic Edwards Lubmer & Mfg. Co. v Miller, 262 F 405 [5th Cir 1920] (holding tower liable for, inter alia, undertaking to tow motorboat obviously unseaworthy for towing); The [*4]Favorite Brand v The Favorite, 50 F 569 [D. Wash. 1892] (holding tower liable for failing to make an examination which would have revealed leaky scow). In Bust, as in the instant case, the cleats on the tow were allegedly defective and nailed to decayed planks, and they gave way during the towing. The court found that some of the defects "could have been discovered at a glance; others by a careful examination, and others still only by a minute and thorough inspection, which the defendants were not obligated to make." Bust, 24 F at 189. Whether the defendant towers should have discovered the defects, the court held, was a question of fact for the jury. Id.

Here, this Court, as the finder of fact, concludes that if the plaintiff's boat was unseaworthy, then the defects that made it so were readily visible and should have been appreciated by defendants. As stated above, Captain Dady repeatedly characterized plaintiff's boat as, in essence, a piece of junk. When asked why he chose to proceed with the towing upon seeing the condition of the boat, Captain Dady did not deny seeing anything wrong with the boat and he did not claim to be surprised when it began to founder in midstream. Rather, he made clear that, rather than choose to forfeit his time and fee, he opted to undertake the risk and hope for the best. This despite defendants' testimony that the journey the boat had to make was a treacherous one, through choppy waters and with elephantine vessels treading past. In addition, the Court notes that defendants agreed to tow plaintiff's boat without coming down to the marina to inspect it first or making a basic inspection on the date of the tow. Nor did they insist on seeing a survey, which might have alerted them as to the seaworthiness of the vessel; in the least, defendants could have called the surveyor if they had any questions. These omissions support the Court's finding that defendants were willing to take their chances with the tow. If the boat was not seaworthy, then based upon their own testimony, the Court finds that defendants knew, or at least should have known, that the boat was unseaworthy. Therefore, it was negligent for Captain Dady, who was acting on behalf of himself and Carol Dady, to undertake the tow.

Thus, the Court finds that defendants are liable for the damage caused to plaintiff's boat during the towing. As for damages, plaintiff proved his entitlement to the $1,200 sought here, covering the amount he paid for repair parts which he installed himself.

For the foregoing reasons, judgment is awarded to plaintiff against defendants in the amount of $1,200, with interest from October 4, 2005, plus costs and disbursements.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court Footnotes

Footnote 1: Plaintiff's claim against a third defendant, Boat U.S., was discontinued with prejudice on November 22, 2005.

Footnote 2: Although defendants may be affiliated with a corporate entity, they were sued in their individual capacities; they did not object or disclaim personal liability at the trial.

Footnote 3: Additionally, defendants argued that since plaintiff's boat was not seaworthy, the transport changed from a towing to a salvage job, for which they are entitled to a larger fee. They did not, however, assert any counterclaim.

Footnote 4: For its part, the survey states that the boat was a fiberglass houseboat.

Footnote 5: These terms are used interchangeably and are "virtually synonymous." Black's Law Dictionary 44 [5th ed 1979].

Footnote 6: A houseboat has been held to be a "vessel" for purposes of admiralty and maritime jurisdiction provided it is capable of locomoting or being towed. See McCarthy v The Bark Peking, 716 F2d 130, 134 [2d Cir 1983].