BARNSTABLE, ss:
DISTRICT COURT DEPT.
Civil Action –
No. 92CV01332
FINDINGS, RULINGS AND ORDER FOR JUDGMENT
JOHN F. SWEENEY, Plaintiff
vs.
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
