TWO NEW HAMPSHIRE lawyers recently won a $1.3 million plaintiff's verdict (counting damages and interest) by proving that a defendant's excessive speed caused their client to lose control and suffer a potentially catastrophic accident in a busy thoroughfare.

What made the case distinctive was that the accident involved no direct contact and happened on water, involving vessels hundreds of feet long, weighing thousands of tons apiece. Shortly before midnight on Aug. 16, 1999, a tugboat pushing a barge filled with fuel oil lost control after a close pass with a vessel carrying thousands of automobiles. The tug, lashed to the barge by two-inch thick steel cables, rammed the barge into one bank, and then, its engines in reverse, backed into the opposite bank and lost power. If not for the valiant and clear-headed efforts of the crew of the 500-foot tugboat-barge combo, said attorney David Wolowitz, an oil spill could have created an environmental disaster, or the vessel, rendered powerless after slamming into the bank, might have drifted with the swift current and struck the busy Sagamore Bridge, potentially damaging a major traffic artery.

The case posed several major challenges, said Wolowitz, who was joined as co-counsel by Stewart Richmond, both of the McLane, Graf, Raulerson & Middleton firm in representing the tugboat operator, the Moran Towing Corporation. One such challenge was proving that the defendant's vessel, a 180-meter (about 500 feet long) automobile carrier, the M/V Brilliant Ace, was traveling too fast when passing the tug-barge combo. The plaintiffs also faced the obstacle of countering the influence of federal government personnel monitoring canal traffic, who maintained that the Brilliant Ace was not traveling at an unsafe speed and whose speed detectors sounded no alarms at its passage.

The owners of the tug-barge unit, the tug Mary Turecamo and the barge Florida, sued for the damage to both vessels, cargo loss and revenue loss while the vessels were out of service. The government, named as a co-defendant because of its alleged negligence in supervising traffic that night, escaped liability. Wolowitz's attempt to find the government culpable in the case failed due to the court's finding that the canal operators were protected by "discretionary function immunity." The plaintiffs did prove, however, that the canal controllers were wrong in not considering the car carrier's progress through the canal to be excessive and that the government's speed alarms were improperly set.

Following a multi-week trial held last summer in U.S. District Court in Boston, the judge found the car carrier solely at fault and awarded $1.16 million to the owners of the tug-barge unit. The case officially came to a close late last month, when the defendants agreed to pay the damages and additional interest and not appeal the judge's verdict.

Wolowitz and Richmond successfully mastered the complexities of "hydrodynamics" (forces in water) to ensure a complete victory - proving the plaintiffs were in no way liable for the incident. Wolowitz and Richmond maneuvered the defense's own expert into admitting that the forces of attraction and repulsion experienced as the huge vessels passed within a few feet of each other would exert a greater influence on the slower vessel, leading to a whipsawing effect. Although there was testimony that the speed of the Brilliant Ace was measured but no record was kept, the plaintiffs proved to the court that the car carrier was traveling at twice the speed of the tug and barge combo.

In less than 10 seconds after passing the car carrier, the tug-barge combo veered left out of control, pulled in by the suction of the wake of the Brilliant Ace. The force of the wake was magnified by the narrow canal and, as Wolowitz and Richmond successfully contended, by the excessive speed of the car carrier. Traveling with the current made the lengthy tug-barge combo even more difficult to control, and the captain struggled to avert a violent collision with the bank. The barge made contact with the bank and sprung a small leak. Because the tugboat captain popped the clutch and reversed the engine at full-speed, the stern of the tug then hit the opposite bank. At that point, the tug and barge, lashed together, lost power and began to drift with the four-knot current toward the Sagamore Bridge. The tugboat captain then ordered the barge crew to drop its anchor, carefully timing the action so that when the anchor took hold, the tug, rather than the barge, would swing into the bank and absorb the impact instead of the oil-loaded barge.

Richmond said he admired the brave and cool-headed performance of the tug and barge crew. "The tug and barge crew reacted perfectly to the developing situation. The master kept calm, directed his crew to drop anchor at precisely the right time and, despite the lack of rudder and engine control, stopped the flotilla in such a manner as to avert further damage to the leaking hull and to avoid a collision with the bridge."

Once the drama was over, the complicated work of reconstructing what happened began, and the McLane attorneys found themselves immersed in the details of marine operations and the daunting physics of large masses moving in a narrow body of water.

"It turned out to be quite a technical and challenging case where in a short period of time we had to master complex hydrodynamic issues," said Wolowitz. He said he finds maritime law is "more black-letter, more straightforward" than landlubber law. He became involved in maritime cases nearly 10 years ago, when Kenneth Volk, one of the country's pre-eminent maritime lawyers, joined the McLane firm in its Portsmouth office after retiring from full-time practice in New York.

Wolowitz said maritime cases can juxtapose other legal practice areas in a fresh context. "Our maritime cases have involved tort, contract, workplace injury, and even criminal matters," said Wolowitz, citing a successful defense of a ship captain arrested in Penobscot Bay when his vessel became tangled in the lines of lobster traps, which in Maine is a strict liability crime. "We successfully argued that federal law trumped Maine law. I hadn't argued the supremacy clause of the U.S. Constitution since law school."

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