[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 98-2369

CITY OF BOSTON,

Plaintiff, Appellee,

v.

MARITRANS CORPORATION; BOSTON TOWING & TRANSPORTATION COMPANY, INC., IN PERSONAM; MARITRANS OPERATING PARTNERS, L.P.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Zachary R. Karol, U.S. Magistrate Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Selya, Circuit Judge.

Brian P. Flanagan and Arthur P. Skarmeas, with whom Flanagan & Hunter, P.C., and Clinton & Muzyka, P.C. were on brief, for appellants. Karen M. Coppa, Assistant Corporation Counsel, City of Boston Law Department, for appellee.

June 23, 1999 Per Curiam. Defendants-appellants Maritrans Operating Partners, L.P., Maritrans Corporation, and Boston Towing and Transportation Company, L.P. Inc. appeal the district court's entry of judgment following a bench trial on plaintiff-appellee City of Boston's admiralty action. The City alleged that a flotilla of vessels owned by defendants negligently caused a barge in the flotilla, the OCEAN STATES, to strike and damage the Chelsea Street Bridge while passing through a narrow area of Boston Harbor. The district court found defendants' conduct to be negligent and to be a proximate cause of the damages to the bridge, but not the sole proximate cause. Because the district court found that the City's failure to maintain a fendering system on the damaged side of the bridge was also a proximate cause of the damages, the district court apportioned the damages between the City and defendants. Finding defendants to be 40% responsible, the district court entered judgment against defendants in the amount of $35,121, which constitutes 40% of the total damages of $87,802. Defendants appeal. We affirm the judgment on the basis of the district court's November 2, 1998 Order outlining its findings of fact and conclusions of law. We pause only to add the following. Appellants challenge the district court's findings that appellants were negligent and that their negligence was a proximate cause of the damages claimed. District court determinations of negligence and proximate cause are reviewed for clear error. See Clement v. United States,

(1st Cir. 1992); Goudy & Stevens, Inc. v. Cable Marine, Inc.,

(1st Cir. 1991). The district court's finding that appellants were negligent is not clearly erroneous. The undisputed evidence was that the two tugs were preparing to guide the barge through the draw span and had properly lined up the barge to enter the span when one of the tugs, the VINCENT TIBBETTS, Jr. ("TIBBETTS"), unexpectedly turned sharply to starboard. The barge then hit the Chelsea side of the bridge and ricocheted back to strike the East Boston side of the bridge with such force that it shook the draw tender's house for the first time in the draw tender's tenure. In a statement to the Coast Guard, Tug Mate Patrick Michaud, who was aboard the barge when it struck the bridge, blamed the collision on "excessive steering by the [TIBBETTS]." The captain of the other tug, who was in command of the entire flotilla, stated that he had never seen such a sudden and unordered course change. The City's expert, Captain David Gray, testified that the exercise of judgment aboard the TIBBETTS was negligent and that it was negligent of the flotilla to fail to properly direct the TIBBETTS. Faced with this evidence, appellants offered no explanation as to why the TIBBETTS turned sharply to starboard. In fact, as the district court noted, the captain of the TIBBETTS does not even acknowledge that the turn occurred. In light of this evidence of the negligence of the TIBBETTS' course change, and in light of the absence of any explanation for it, the district court's finding that the course change was negligent can hardly be described as clearly erroneous. Nor were the district court's findings of proximate cause clearly erroneous. The court found appellants' negligence to be a proximate cause of the damages, but also found the City's failure to maintain a fendering system to be a second proximate cause. Citing Exxon Co. v. Sofec, Inc.,

(1996), appellants argue that the City's actions constituted a superseding cause that broke the causal connection between the injury and appellants' actions. We disagree. "'The doctrine of superseding cause is . . . applied where the defendant's negligence in fact substantially contributed to the plaintiff's injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable.'" Exxon,

(quoting 1 T. Schoenbaum, Admiralty and Maritime Law, 5-3, pp. 165-166 (2d ed. 1994)). It cannot be said that the injury here was "actually brought about" by a later action of the City. The damages to the bridge were "brought about" by the unexpected sharp turn of the TIBBETTS. Appellants' negligence sent the barge careening into the bridge, and the City's failure to maintain a fendering system was not the type of independent, unforeseeable act that would break the chain of causation. Appellants cite Exxon's statement that "'[s]omewhere a point will be reached when courts will agree that the link [between the defendants' actions and the injury] has become too tenuous -- that what is claimed to be consequence is only fortuity.'" See

at 838 (quoting Petition of Kinsman Transit Co.,

(2d Cir. 1964)). We agree with the district court that we have not reached that point in this case. Therefore, the district court properly considered appellants' negligence as one of the proximate causes of the injury when it apportioned the damages. See United States v. Reliable Transfer Co.,

(1975) ("We hold that when two or more parties have contributed by their fault to cause property damage in a maritime collision . . . liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault."). For the foregoing reasons, the judgment of the district court is AFFIRMED.