Crowley et al v. Costa
RULING denying 36 Motion for Summary Judgment; denying 42 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 11/17/2011. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CLIFF CROWLEY ET AL.,
ANGELO COSTA ET AL.,
CIVIL ACTION NO.
NOVEMBER 17, 2011
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 36) AND
PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. No. 43)
Plaintiffs Cliff Crowley, as the owner of the yacht “Moondance,” and the New
Hampshire Insurance Company (“Crowley”) brought this admiralty and maritime action
against defendants Angelo Costa and Charles J. Costa, trustee of the Angelo P. Costa
Revocable Trust (“Costa”). Crowley seeks declaratory judgment on four counts
regarding his liability for damage to Costa’s pier caused by the Moondance when it
broke from its mooring during a storm. Costa now moves for summary judgment on the
issue of Crowley’s liability in negligence and on the issue of Crowley’s eligibility for
exoneration or limitation of liability, and Crowley cross-moves for summary judgment,
claiming that Costa cannot recover damages because his pier exceeded the length
permitted by its permit.
Crowley purchased the Moondance, a forty-four foot sailing vessel, in 2006, and
kept the boat moored at the Black Rock Yacht Club in Black Rock Harbor. Prior to the
events in question, the Moondance had a value of around $290,000. Crowley claims to
have a permit to moor the Moondance in Black Rock Harbor from the Bridgeport Harbor
Master, which Costa denies. 2 See Plaintiffs’ Local Rule 56(a)(2) Statement (Doc. No.
44) (“Pls.’ L.R. 56(a)(2) Stmt.”) ¶ 1. Crowley also claims that the Moondance’s mooring
was inspected by the Bridgeport Harbor Master in 2008, that its penants were replaced
in 2008, and that Crowley himself inspected the penants on October 19 and found them
free of appreciable wear. See Pls.’ L.R. 56(a)(2) Stmt. ¶¶ 3, 5.
Crowley used the Moondance on October 19, 2008 before leaving for a trip to
Europe. On October 25, 2008, a storm caused the Moondance to break free of its
Unless otherwise cited, the following facts are based upon the uncontested portions of the
parties' Local Rule 56(a) Statements.
Costa cites page twelve of the Deposition of Harbor Mastor Scinto for the assertion that “Harbor
Master Scinto testified that his office did not have a mooring application for Bridgeport Harbor from
Plaintiff Crowley for 2008.” Defs.’ 56(a)(1) ¶ 47. Costa does not include this page of the deposition
transcript among the pages submitted as Exhibit 6 (Doc. No. 51-8) to his Memorandum in Opposition to
Plaintiffs’ Cross-Motion (Doc No. 51). Crowley cites to page forty-four of Scinto’s deposition, which reads,
in relevant part:
Q: Does that lead you to conclude that he did, in fact, have a permit in 2008?
A: That would conclude that, yes.
Q: Okay. Now –
A. I’m sorry. Can I just see the number, the sticker number on this one?
Q: The sticker number is 0158.
Q: The –
MR. BOHONNON: You said the stucker number, is that –
THE WITNESS: Number of sides.
MR. BOHONNON: Is that the same for the –
THE WITNESS: No.
MR. BOHONNON: So it is a different sticker, different boat, okay.
MR. TISDALE: Is it a different boat?
At that point, page forty-four ends, and page forty-five is not reproduced for the court. The court is
therefore unable to evaluate either party’s claims about Scinto’s testimony.
mooring and collide with Costa’s pier. The parties disagree as to whether the weather
was worse than average or worse than had been predicted. See Defendants’ Local
Rule 56(a)(1) Statement (Doc. No. 36-2) (“Defs.’ L.R. 56(a)(1) Stmt.”) ¶ 41 (“weather
was . . . in no way unusual for October”); Pls.’ L.R. 56(a)(2) Stmt. ¶ 7 (“The . . . storm
came up suddenly and was not predicted.”). Parties also disagree as to whether the
storm constitutes an “Act of God.” See Defs.’ L.R. 56(a)(1) Stmt. ¶ 43.
Costa claims that Black Rock Yacht Club manager Ed Billings emailed club
members on the morning of October 25, 2008, about the impending weather, which
Crowley denies. See Defs.’ L.R. 56(a)(1) Stmt. ¶ 12. Mr. Billings testified that he
“usually send[s] out a blanket e-mail” to club members in case of oncoming bad
weather, “[b]ut obviously it would have been too late that morning.” Billings Dep. Tr.
(Doc. No. 46-16) 28. He further testified that he did not specifically recall sending out
such an email on October 25, 2008. Billings Dep. Tr. 29.
Crowley returned from his trip around 9 p.m. on October 25, 2008. Upon landing
in New York, Crowley found out from another club member that the Moondance had
collided with Costa’s pier. He went to view the boat around 8 a.m. on October 26, 2008.
Costa’s 320-foot pier was built in 1957, with a permit authorizing a 160-foot pier.
The parties disagree about the extent to which the pier had degraded due to its age
prior to the accident. Compare Pls.’ L.R. 56(a)(2) Stmt. ¶ 19 (90% depreciation) with
Defs.’ L.R. 56(a)(1) Stmt. ¶ 30 (no “serious depreciation”). The parties and their experts
further disagree about the difficulty Costa might have in obtaining a permit to rebuild the
pier to 320 feet. Compare Defs.’ L.R. 56(a)(1) Stmt. ¶ 39 (deponent “did not foresee
any objections retaining the pier as it is currently configured”) with Pls.’ L.R. 56(a)(2)
Stmt. ¶ 27 (“The State would not allow Costa to rebuild the dock to 320’ unless Costa
agreed to subdivide his property into three parcels.”). Costa cites estimates of
$300,000 and $351,540 to repair the pier. See Defs.’ L.R. 56(a)(1) Stmt. ¶¶ 35, 68.
Crowley cites quotes of $42,300 and $154,760 to repair the damage. Pls.’ L.R. 56(a)(2)
Stmt. ¶ 25.
Eventually, Crowley retrieved and repaired the Moondance, at a cost of around
$203,000. Crowley raced the Moondance in 2009. In fall 2009, Crowley sold the
Moondance for “somewhat less” than $275,000.
In 2009, Crowley initiated this case by filing a Complaint for Declaratory Relief
pursuant to this court’s admiralty jurisdiction. See Compl. (Doc. No. 1). He asserts four
counts: first, that he should be exonerated from all liability arising out of the allision
because he took all necessary precautions in mooring the Moondance; second, that
Costa’s pier had no economic value because it exceeded its permitted length, and
therefore Costa did not suffer any damages as a result of the allision; third, that Costa’s
pier was 90% depreciated at the time of the allision, and that Crowley’s liability should
therefore be limited to 10% of the cost of repair; and fourth, that Crowley’s liability
should be limited to the post-allision, pre-repair value of the Moondance. See Amended
Compl. (Doc. No. 10) 4-6.
Costa counter-claims that the damage to his pier was caused by Crowley’s “acts,
omissions, strict liability, fault, negligence, and breach of federal safety and operating
regulations.” Defs.’ Answer to Verified Compl. and Counterclaims (Doc. No. 18) (“Defs.’
Answer”) 5-6. Costa also asserts four affirmative defenses: that Crowley’s Petition for
Limitation and/or Exoneration is not timely; that Crowley had “privity and knowledge” of
the conditions that resulted in the Moondance breaking free; that Crowley knew of
conditions rendering the Moondance unseaworthy; and that Crowley’s claim that
Costa’s pier was “illegal” is barred by laches. Defs.’ Answer 4.
In response to Costa’s counter-claim, Crowley asserts four affirmative defenses:
failure to state a cause of action; that the damage was caused by an Act of God or peril
of the sea; that Crowley is not responsible for the loss; and that Crowley’s liability is
limited to the value of the Moondance. Plaintiffs/Counterclaim Defendants’ Answer to
Defendants’ Counterclaim (Doc. No. 31) 2.
Costa filed a timely Motion for Summary Judgment on the issue of Crowley’s
liability in negligence for the damage to Costa’s pier, and on the issue of Crowley’s
eligibility for exoneration or limitation under the Limitation of Liability Act, 46 U.S.C. §§
30501 et seq. Defs.’ Mot. for Summ. J. (Doc. No. 36). Crowley moved for summary
judgment [after the April 15 deadline] on May 18, 2011, arguing that Costa cannot
recover damages because his pier exceeded the length allowed by its permit. Pls.’
Cross-Motion for Summ. J. (Doc. No. 42).
STANDARD OF REVIEW
A motion for summary judgment “may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. See Fed.R.Civ.P. 56(c); Loeffler v. Staten
Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009).
“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific
facts' demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed.R.Civ.P. 56(e)). “A dispute about a ‘genuine issue’
exists for summary judgment purposes where the evidence is such that a reasonable
jury could decide in the non-movant's favor.” Beyer v. County of Nassau, 524 F.3d 160,
163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)); see
also Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008) (stating that
a non-moving party must point to more than a mere “‘scintilla’" of evidence in order to
defeat a motion for summary judgment) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
In his Cross-Motion for Summary Judgment, Crowley claims that judgment
should be entered in his favor because the length of Costa’s pier exceeds the length
authorized by its permit. See Pls.’ Cross Mot. 12. He cites Ertel v. Rocque, 2005 WL
469224, No. CV030100647S (Conn. Super. Jan. 21, 2005), aff’d, 108 Conn. App. 48
(2008), for the proposition that “a landowner does not have a property right in a pier that
does not conform to the permit authorizing its construction. See Pls.’ Cross Mot. 11. In
Ertel, the Superior Court rejected the claim that the Department of Environmental
Protection’s refusal to issue a permit constitutes a taking under the Connecticut
Constitution. See generally Ertel, 2005 WL 469224. That the plaintiff in Ertel lacked a
property interest in his non-conforming dock (which was subject to an order to remove)
sufficient to support a takings claim does not establish that Costa has no property
interest in his dock for the purpose of recovering damages from Crowley. Crowley
offers no other support for the proposition that the owner of a non-conforming structure
is barred from recovering for damage to the structure, nor can the court locate any such
authority. Therefore, Crowley’s Cross-Motion for Summary Judgment is denied.
Costa first argues that he is entitled to summary judgment on the issue of
Crowley’s negligence. In The Louisiana, 70 U.S. 164 (1865), the Supreme Court
established that a moored vessel that breaks away and allides with a stationary object is
presumed to be at fault unless it can show that the drifting was the result of a vis major
or inevitable accident, which “a proper display of nautical skill could not have
prevented.” Martinez v. U.S., 705 F.2d 658, 661 (2d Cir. 1983) (citing The Louisiana, 70
U.S. at 173). Essentially, the Louisiana rule shifts the burden to the ship’s owner to
show that he was not negligent. See The Charles H. Sells, 39 F.2d 631, 633 (“it means
no more than that the vessel must show herself free from ‘fault’ in the ordinary sense”).
Therefore, to prevail on his Motion for Summary Judgment, Costa must show that no
issue of material fact exists as to whether Crowley was negligent in securing the
In admiralty and maritime cases, “determination of negligence involves first the
formulation and then the application of a standard of conduct to evidentiary facts found
to be established.” Mamiye Bros. v. Barber S. S. Lines, 360 F.2d 774, 776 (2d Cir.
1996) (internal citations omitted). “The elements to establish a claim of negligence
under maritime law are the same as the elements of negligence under common law.
These elements include duty, breach of that duty, and causation.” In re Re, No. 07-CV223-JFB, 2008 WL 4069747 at *3 (E.D.N.Y. Aug. 27, 2008) (citing Petition of Kinsman
Transit Co., 338 F.2d 708, 721 (2d Cir.1964)). Judge Learned Hand famously
formulated the applicable duty as follows: “Since there are occasions when every vessel
will break from her moorings, and since, if she does, she becomes a menace to those
about her; the owner's duty, as in other similar situations, to provide against resulting
injuries is a function of three variables: (1) The probability that she will break away; (2)
the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.”
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). In general, the
standard for negligence in admiralty and maritime is the familiar, reasonably prudent
person under the circumstances. See, e.g., Rainey v. Paquet Cruises, 709 F.2d 169,
171 (2d Cir. 1983).
Costa cites the testimony of Harbor Master Robert Scinto that “it would . . . be a
practice of the prudent boater” to inspect a moored vessel prior to a predicted storm.
See Defs.’ Mot. for Summ. J. 23; Defs.’ L.R. 56(a)(1) Stmt. ¶¶ 53, 55. Crowley
characterizes Scinto’s testimony differently: that the moorings should have been
adequate and that any extra lines should only be put out in the calm before the storm.
Pls.’ L.R. 56(a)(2) Stmt. ¶¶ 12, 13. Crowley also cites the testimony of Edward Billings,
the General Manager of the Black Rock Yacht Club, that the Moondance’s moorings
were sufficient. See Pls. Cross- Mot. 16. See also Pls’ L.R. 56(a)(2) Stmt. ¶ 10
(“Billings believed the MOONDANCE was properly fitted and equipped to be securely
moored in that location throughout the season under the expected weather conditions”);
Defs.’ Resp. to Pls.L.R. 56(a)(2) Stmt (Doc. 51-10) ¶ 10 (agreeing). Thus, Crowley has
raised a triable issue of material fact as to whether his actions in securing the
Moondance before his trip were the actions of a reasonably prudent person under the
Crowley’s Entitlement to Limitation of Liability
Costa argues that Crowley is not entitled to a limitation of liability under the
Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, because the Act only limits liability
for claims arising out of events about which the owner lacked “privity or knowledge.” 45
U.S.C. §30505(b). “The phrase ‘privity or knowledge’ is a ‘term of art meaning
complicity in the fault that caused the accident.” In Re Complaint of Messina, 574 F.3d
119, 126 (2d Cir. 2009) (quoting Blackler v. F. Jacobus Transp., 243 F.2d 733, 735 (2d
Cir. 1957). The determination that privity or knowledge existed is a factual inquiry. See
Coryell v. Phipps, 317 U.S. 406, 411 (1943). To establish privity or knowledge, courts
follow a two-step inquiry. See In re Complaint of Messina, 574 F. 3d at 126. First, the
claimant must show that there was actionable conduct that caused the injury. See id.
Then, the ship’s owner must establish that he lacked privity or knowledge of the
actionable conduct. See id. at 126-27.
Because neither party has alleged that any other actor besides Costa was or
should have been responsible for securing the Moondance, the only person who could
have undertaken “actionable conduct” is Crowley himself. There is no question that
whatever acts were or were not taken to secure the Moondance were or were not taken
by Crowley. Therefore, the only issue is whether there was actionable conduct.
To determine whether there was actionable conduct, “[t]he test is, could the
collision have been prevented by the exercise of ordinary care, caution and maritime
skill?” The Jumna, 149 F. 171, 173 (2d Cir. 1906). The burden of proving actionable
conduct is on the claimant. See In re Complaint of Messina, 574 F.3d at 126. To
prevail at this stage, Costa must show that Crowley has raised no material factual
question as to whether the allision could have been prevented by ordinary skill and
caution. As discussed above, there remain triable issues of fact as to whether Crowley
exercised ordinary care. See supra at 9.
For the reasons discussed above, Costa’s Motion for Summary Judgment (Doc.
No. 36) is DENIED, and Crowley’s Cross-Motion for Summary Judgment (Doc. No. 42)
Dated at Bridgeport, Connecticut, this 17th day of November, 2011.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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