COMMONWEALTH
OF MASSACHUSETTS
BARNSTABLE, ss: DISTRICT
COURT DEPT.
Civil
Action –
No.
92CV01332
JOHN F. SWEENEY, )
Plaintiff
)
)
vs. )
FINDINGS, RULINGS AND
ORDER
)
FOR
JUDGMENT
JOSEPH BATAL and )
BOAT/US, )
Defendants )
After hearing the parties
and their witnesses, and upon consideration of all of the evidence,
both real and testimonial, and the reasonable inferences to be
draw therefrom, I find that on August 19, 1991 both Plaintiff
and Defendant were boat owners. Plaintiff’s boat was a 25
foot “Alden Sloop” and Defendant’s boat was
a 36 foot “Catalina.” I find both boats had moorings
in Cotuit Bay (so-called). I find that August 19, 1991 was the
day of “HURRICANE BOB.” I find that both boats were
found on Ropes Beach after the hurricane and that Ropes Beach
is approximately one-half mile from Cotuit Bay. I find that Defendant’s
mooring was south of Plaintiff’s mooring (that is to say
closer to the open ocean). I find that the winds from Hurricane
Bob came from a general southerly direction. I find that the hurricane
winds were often in excess of 100 miles per hour. I find that
Cotuit Bay could be characterized as a “disaster area”
immediately after the hurricane. I find that upward of 200 boats
moored in Cotuit Bay were dislodged or uprooted from their moorings
and ended up on the beach or surrounding beaches – (exact
number unknown). I find that very few boats held their moorings
and most of those boats that did hold their moorings were overturned
and capsized. I find that when Hurricane Bob passed, Plaintiff’s
pennant line was found entangled in Defendant’s rudder,
again both boats ending up on Ropes Beach. I find that Plaintiff’s
boat suffered extensive damage which I find was caused by colliding
with surrounding trees and debris and not from colliding with
other boats. I find that Defendant’s boats suffered some
damage however, said damage does not appear from collision with
other boats. I find that the Defendant had a permit to moor his
boat and that the size of his mushroom (350 lbs) was known and
approved personally by the Assistant Harbormaster and Mooring
Officer. As a supplemental finding, I find that the Defendant’s
pennant line was 1” nylon. I find that the Defendant did
attempt to secure his boat from the oncoming storm (noticed as
first, high winds, then tropical storm). I find that the Defendant
used those safeguards which a skillful and vigilant boat owner
would exercise for an upcoming storm. I find no negligent conduct
by the Defendant in attempting to secure his boat. I find that
Hurricane Bob was an act of god (VIZ MAJOR) and something so catastrophic
that it triumphed over reasonable safeguards taken. I find that
the force of “Bob” was an act which human foresight
could not reasonably be expected to anticipate and prevent. I
make no finding as to how or where Plaintiff’s pennant line
became entangled in Defendant’s rudder. As a supplemental
finding, I find no proximate cause by the Defendant for the damage
sustained by the Plaintiff.
WHEREFORE, I find
for the Defendant (Batal) on Counts One and Two of Plaintiff’s
Complaint.
_______________________
GEORGE
H. LEBHERZ, JR.
Justice
ENTERED: January 19, 1994
