USCA1 Opinion

       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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, 980 F.2d 48, 53 (1st Cir. 1992); Goudy &

Stevens, Inc. v. Cable Marine, Inc., 924 F.2d 16, 19 (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., 517 U.S. 830, 837 (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, 517 U.S. at 837 (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 id. at 838 (quoting Petition of Kinsman

Transit Co., 338 F.2d 708, 725 (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., 421 U.S. 397, 411 (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.