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 personnel management. T120.
60. The Morgan's starboard and port decks each contained a winch. T89.
61. Each winch was approximately four feet high and was bolted to the
Morgan's deck. APTO41.
62. Grzybowski did not inspect the winches on the Morgan's deck on
63. The winches on the Morgan's deck were inspected weekly, but
Grzybowski did not know on what day of the week the crew inspected the
Morgan's winches, when they were last inspected, or who had last
inspected them before April 17, 1998. APTO31-32.
64. Long did not physically inspect the winches or their brake shoes on
April 17, 1998 or any other day because that was not part of his routine.
Someone else checked the winches and the brake shoes. T118-19.
65. On the morning of April 17, 1998, prior to the allision with the
East 95th Street bridge, the Morgan moved a barge at the Kindra Lake
Towing dock located on the east bank of the Calumet River at
approximately East 98th Street in the City of Chicago. APTO33; T95-96.
66. The starboard winch functioned properly when the Morgan moved the
barge on the Kindra Lake Towing dock. APTO34; T96.
E. THE MORGAN'S ARRIVAL AT FEDERAL MARINE DOCK
67. The Morgan had been chartered to move four barges north on the
Calumet River from the Federal Marine Terminal to the Ceres Trans-Oceanic
Service Terminal. APTO35; PX14; T121.
68. The Federal Marine Terminal is located on the east bank of the
Calumet River immediately south of the East 95th Street bridge. The Ceres
Terminal is located near the mouth of the Calumet River near Lake
Michigan. APTO36; DX30; T96-97.
69. The barges were tied two long and two abreast to the Federal Marine
dock. APTO39; PX14; T99.
70. The barges contained coke, and the combined weight of the Morgan, the
barges, and the coke was approximately 5,000 tons. T121-22.
F. THE CAPTAIN AND THE CREW'S PREPARATION FOR LEAVING THE FEDERAL
71. The crew began to face up the Morgan with the south end of the
barges by extending a single one-and-one-eight-inch loop wire from each
of the starboard and port winches located on the Morgan's
deck to the
furthest outboard cleat on the respective aft starboard and port barges.
72. Facing up created three points of connection between the Morgan and
the barge cluster: (1) the contact between the nose of the Morgan and the
rear end of the barges; (2) a wire line connection running from the
starboard winch to the rear-most starboard cleat on the barge cluster;
and (3) a wire line running from the port winch to the rear-most port
cleat on the barge cluster. T69.
73. The winches put tension on the lines while the winch brakes
maintain the tension on the line when the motor is not powered. T70.
74. By facing up the Morgan with the barges, the Morgan and the barge
cluster turned into a single rigid body. T68; T122-23.
75. A three-point connection was important to permit the Morgan to
steer the barge cluster. If one of the side connections were lost, the
ability to steer in that direction would be lost. T70-71.
76. Two buttons controlled each winch, a green one to draw in the
wire, and a red one to release the wire. Releasing the button braked the
wire automatically and held it in place. APTO42; T90.
77. Once the starboard and port wires had been cast, Long tightened
them by using the buttons on the electric control box located in the
pilot house. APTO43.
78. Long did not encounter any problems in drawing in the wires, and
the Morgan and the barges faced up. APTO44.
G. LEAVING THE FEDERAL MARINE DOCK
79. To leave the Federal Marine dock, Long first kicked the head of the
tow (i.e., turned the barges starboard). T103-05; T123. This put strain
or tension on the starboard wire. T124-25.
80. Long then backed on the outboard engine and began to back out. As
he was swinging the tow into the center of the river, he noticed that the
Morgan was getting close to the dock, so he gave the tug more room by
putting a foot or two of slack in the starboard wire. T103-05; T123-25.
81. Long put slack in the starboard wire by hitting the button in the
pilot house that controlled the starboard winch. T104.
82. Once Long knew that the tug would not touch the dock, he tightened
up the starboard wire by using the button on the control panel to face up
the Morgan with the barges. When Long released the control button for the
starboard winch, the brakes failed to hold the wire and it began to pay
out. T104-06; T127.
H. THE CAPTAIN AND CREW'S RESPONSE TO THE FAILURE OF THE BRAKE ON THE
83. When the winch failed to brake the starboard wire, the barges began
to fall to port. APTO49.