The opinion of the court was delivered by: Samuel P. King, District Judge, Sitting by Designation
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court conducted a non-jury trial of this action on August 8 and 9,
2002. After the close of the trial, the Court took the matter under
advisement and, after a period for preparation of trial transcripts, the
parties submitted proposed Findings of Fact and Conclusions of Law in
November and December of 2002.
The Court has carefully reviewed the evidence and arguments, and has
conducted further research as necessary. Pursuant to Fed.R.Civ.P. 52(a),
the following constitute the Court's Findings of Fact ("Findings") and
Conclusions of Law ("Conclusions"). To the extent any Findings as stated
may also be deemed to be Conclusions, they shall also be considered
Conclusions. Similarly, to the extent any Conclusions as stated may be
deemed to be Findings, they shall be considered Findings. See In re.
Lemmons & Company, Inc., 742 F.2d 1064, 1070 (7th Cir. 1984) ("The
labels of fact and law assigned by the trial court are not
controlling"); Benrose Fabrics Corp. v. Rosenstein, 183 F.2d 355, 357
(7th Cir. 1950) (labeling of a finding as one of law as opposed to fact
is not determinative of its true nature).
A. THE EAST 95TH STREET BRIDGE
1. The East 95th Street in the City of Chicago crosses the Calumet
River over a double-leaf trunnion, iron-bascule bridge. APTO3; PX5;
2. The Calumet River is a navigable waterway. APTO2; PX19.
3. The East 95th Street bridge is held in trust by the City of Chicago
for the benefit of the public. APTO4.
4. The City of Chicago has maintenance responsibility for the East 95th
Street bridge. T22, 24, 251.
5. Masonry walls form the east and west piers of the bridge, which
support it and contain the machine houses. The masonry walls are 206 feet
apart. APTO6; PX5; PX6.
6. The clear channel under the draw of the East 95th Street bridge is
200 feet because the lattice work of the bridge's superstructure comes
down near the piers. PX13; T30; T106.
7. The maximum navigable channel under the East 95th Street bridge is
204 feet. APTO100.
8. All City bascule bridges use submarine cables. The cables transmit
power for bridge motors, gates, bells, and other controls from the bridge
tower to the far side of the bridge. T31.
9. The East 95th Street bridge is operated from the bridge tower
located on the northeast corner of the bridge. APTO7; PX5; PX6.
10. The bridge is opened and closed through the use often submarine
electrical cables. The cables run from the bridge tower down a cable slot
recessed in the face of the bridge's east pier. APTO8; PX5; T31-32.
11. The submarine cables were originally laid on the Calumet River
bottom and may have been covered with mud or became covered with mud silt
over time. APTO9; PX2; T31-32.
12. The Calumet River bed is 25 feet below the water line. PX6; T219.
13. Eight of the ten cables leave the channel bottom within two feet of
the western pier face, while the remaining two cables leave the channel
bottom four feet from the western pier face. PX3; T219-20.
14. The cables run up the bridge's western pier face in another
recessed cable slot. The cables then enter the machine house controlling
the bridge's western leaf. APTO10; PX5; PX6; T31-32.
15. The navigable channel beneath the East 95th Street bridge does not
include the slot that is recessed into the western pier in which the
cables run. APTO101; PX20 at 57-58.
16. The submarine cables in the cable slot on the western pier of the
East 95th Street bridge are outside of the navigable channel. PX20 at
B. THE CITY OF CHICAGO'S PROTECTION SYSTEMS
17. It is fairly common for barges and vessels to touch or rub —
and in that sense "allide" with — the substructures of bridges.
18. When a vessel allides with a bridge in the City of Chicago the
damage to the bridge is most often to the superstructure. T30-31.
19. It is more common for a vessel to allide with a bridge through
rubbing rather than striking at an acute angle. T213.
20. There was no evidence presented of any specific allision with the
East 95th Street bridge before April 17, 1998. T217; T270. There was,
however, some indication that vessels had rubbed against parts of the
bridge in the past. T228.
21. A dolphin is a pile cluster placed in the waterway just outside of
the draw of a bridge. A dolphin protects the bridge piers and the lower
portions of the bridge superstructure. T25; T29-31.
22. There are two timber-pile, steel-clad dolphins located just south
of the draw of the East 95th Street bridge, one adjacent to each of the
piers. PX6; PX9.
23. Dolphins are the most important structures for protecting the East
95th Street bridge because they protect those areas of the bridge that
are most subject to damage by an allision. T29-31; T34.
24. The City protected the submarine cables on the East 95th Street
bridge from damage by placing them in a slot recessed into the face of
the pier and, for other lengths of the cables, by burying them under the
Calumet River bottom. T31-32. Nevertheless, without more, the cables on
the face of the pier were somewhat exposed to the river and thus exposed
to possible allisions at certain angles. E.g. DX9, Photo. 5; DX13 at P4,
25. A fender is typically a wooden rub rail that runs along the face of
a substructure of a bridge. APTO 17. Fenders are also known as rub rails
or timber walers. APTO 18; PX20 at 14; T240.
26. A fender is designed to provide a non-sparking and non-tearing
surface that will share an impact between a vessel and a bridge. APTO89;
PX20 at 18.
27. Fenders primarily serve to protect vessels that come into contact
with the bridge piers. T34; T46. In the design of the East 95th Street
bridge, however, fenders also provided a horizontal cover over the
perpendicular recessed slot in which the ten electrical cables were
placed. In this sense, the fenders had some function in covering the slot
and thus protecting the electrical cables. See. e.g., DX9, Photo. 5; DX13
at P4, EP3-EP7.
28. Documents in the United States Coast Guard file relative to the
East 95th Street bridge depict a fender system on the west pier of the
East 95th Street bridge. TR248. For example, a document contained in the
United States Coast Guard file entitled "Sketch Showing Clearance of the
95th Street Bridge Over Calumet River," dated December 19, 1958,
indicates fenders or timber walers on the west pier covering the cable
slot where the submarine cables are located. APTO22.
29. The fender or timber walers on the face of the concrete river piers
have existed as a part of the present East 95th Street bridge since it
was constructed and opened to vehicular traffic in 1958. DX2, 14, 15,
16, 27; APTO23.
30. By at least 1994 a fender or timber waler covering the cable slot
in the west river wall of the East 95th Street bridge had deteriorated
and was missing. DX 8, 9, 10; R44, 45.
31. The City retains outside consultants to conduct the required biennial
inspections of the 350 bridges located in the City. T36-37.
32. Several previous inspection reports indicated that a fender or
fenders were missing over the cable slot on the western pier of the East
95th Street bridge before the April 17, 1998 allision. DX 8, 9, 10;
T44-45. For example, a December 1994 report prepared for the City of
Chicago by Collins Engineering stated that "On the West River Pier at the
north end, the two timber rub rails/fenders had been damaged by impact
for a length of approximately 15 feet. the timbers were essentially
crushed, and had up to 50 percent loss of section." DX9, at 4.
Similarly, a "1997/1998 Structural Bridge Inspection Project" report by
T.Y. Lin International BASCOR Inc., based upon an inspection of July 21,
1997, indicated "The timber rail on the west seawall has collision
damage." DX10, at 8.
33. Not all of the reports recommended replacing the missing fender or
fenders, and the reports generally characterized the condition of the
existing fenders as good to fair. DX8; T23-24; T43-45; T57-58. A December
1994 report recommended replacing the timber fenders. DX9, at 5.
34. If a consultant's inspection report pointed out a bridge
deficiency, the City acted on the recommendation depending on the
severity of the deficiency. T38.
35. Stan Kaderbek is Deputy Commissioner-Chief Engineer of the City of
Chicago Department of Transportation, Bureau of Bridges. Kaderbek
admitted that the City had notice that the fenders or timber walers
across the cable slot had been missing from the west pier of the East
95th Street bridge since at least December 1994. APTO26, T23, 43.
36. According to Kaderbek, replacement of the fenders or timber walers
was not a priority. The focus was on dolphins as a method of protection
of bridge superstructures. T29-30, 38.
37. Without a fender or timber waler, the cables were exposed to the
river. The cables, however, were protected from sideways, i.e.,
parallel, contact by being placed in a slot. It was nevertheless
reasonably foreseeable that the cables could be damaged by a minor
allision in the form of the
fairly common "rubbing" or "touching." DX 8, 9, 10; R44, 45.
C. THE UNITED STATES COAST GUARD PERMIT FOR THE EAST
95TH STREET BRIDGE
38. Bridges that cross navigable rivers in the United States come under
the authority of the United States Coast Guard. APTO11; PX20 at 6-7.
Before 1967, bridges that crossed navigable rivers in the United States
came under the authority of the United States Army Corps of Engineers.
APTO12; PX20 at 24-25.
39. The purpose of the United States Coast Guard authority over bridges
is to make sure that they do not impede navigation. APTO13; PX20 at 8.
40. A bridge permit represents the end result of a process that starts
with an application to the Coast Guard for construction of a bridge
across a United States waterway. APTO15; PX20 at 10.
41. A bridge permit is a one- or two-page document to which is attached
a set of 8 1/2-by-11-inch plan and elevation views with a Coast Guard
stamp affixed to each page. PX20 at 10-11.
42. Drawings that are typically submitted to the Coast Guard during the
permit process are type and size drawings, which are general configuration
drawings of the bridge. T58-59.
43. During the bridge permit process, the type of navigation utilizing
a waterway will be reviewed and a determination will be made on a
case-by-case basis whether a bridge protection system in the form of
fenders will be required. PX20 at 19.
44. There is no regulation or United States Coast Guard rule that
categorically requires a bridge owner to install a rub rail or fender.
45. When the United States Coast Guard took over the bridge permitting
program in 1967, the Army Corps of Engineers transferred all bridge files
to the Coast Guard. PX20 at 25.
46. The Coast Guard keeps a bridge file for the East 95th Street bridge
containing all permit documents and Coast Guard correspondence regarding
the bridge. PX20 at 10-11.
48. The Army Corps of Engineers issued a permit for construction of the
East 95th Street bridge in 1952-53. APTO90; PX20 at 23.
49. The 1952-53 permit for the East 95th Street bridge does not depict
a fender on the western pier of the East 95th Street bridge. APTO90; PX20
50. There are no permit documents in the United States Coast Guard file
indicating that rub wales or fenders are required on the East 95th Street
Bridge. PX20 at 18; PX20 at 47-48; DX23.
51. The correspondence and other documents in the Coast Guard file
indicating that the Coast Guard knew that the East 95th Street bridge had
wales or fenders on its piers, does not necessarily mean that the Coast
Guard had issued a permit allowing or requiring fenders or wales on the
piers. Such correspondence and documents merely suggest that the Coast
Guard recognized that the bridge, with its fenders or wales, was a legal
structure. PX20 at 35; PX20 at 47-50.
52. City of Chicago files contain drawings dated as early as 1953 that
depict fenders or rub rails on the piers of the East 95th Street bridge,
but there is no evidence that the Army Corps of Engineers or the United
States Coast Guard ever reviewed these drawings. T273-74.
53. City of Chicago files contain some other drawings of the East 95th
Street bridge from that same time period that do not depict fenders on
the piers. DX23; T271.
54. The United States Coast Guard has never issued a permit violation
to the City of Chicago for missing timber fenders on the East 95th Street
bridge. APTO97; PX20 at 50-51.
D. THE PRELIMINARY ACTIVITIES OF THE MORGAN AND ITS
CREW ON APRIL 17, 1998
55. The Morgan is a 134-ton tugboat owned by Kindra Lake Towing, L.P.
56. James Long was the captain of the Morgan on April 17, 1998. Brian
Grzybowski was the deck engineer, and John Kindra and Ryan Campbell were
the deck hands. PX14; T97; T119-20.
57. Long had been working for Kindra Lake Towing for only 2 1/2 months
before April 17, 1998. T121.
58. Kindra did not normally work on the Morgan or any other vessel.
Rather, he worked in the office as a manager. T119-20.
59. Campbell did not normally work on the Morgan. Rather, he worked in
the office doing ...