(dissenting). The policy insured for damages “ caused by failure to raise and/or remove obstructions or spoil ” in connection with plaintiff’s dredging operations. The court below found that when the barge (pushed by the tug) attempted to pass by plaintiff’s dredge, the barge “ struck a rock which had not yet been removed.” There is absolutely no evidence in the record to support the finding that the barge “ struck a rock ”.
The evidence is that the barge “ grounded ” while attempting to pass plaintiff’s dredge. In the report of the Division of Canals and Waterways of the Department of Public Works on the grounding of the barge it is stated: 1 ‘ The barge ‘ Seaboard No. 44 ’ and the tug ‘ John Nichols ’ traveling slowly, were passing on the north side of the dredge, and as the barge came even with the bow of the dredge it scraped bottom going hard aground when the pool level was dropped about five inches due to the surge in the drawing of the water at Lock #21 for locking purposes.”
Plaintiff-respondent argues that the barge failed to find sufficient depth to accommodate her because “ plaintiff’s dredge crew had failed to do their work by removing everything which constituted an obstruction to the passage of the barge through such water.” However, the difficulty with this argument is *850that the record does not support it and that it is predicated solely upon conjecture. In fact, plaintiff’s contention is based on the assumption that the barge struck some “ high spot ” on the bottom which plaintiff had failed to remove. If that were the proven fact then clearly defendant would be liable. But all that the record evidence demonstrates is that the barge went hard aground, that it struck bottom. That evidence is not sufficient to sustain plaintiff’s burden of proof to such extent that the accident resulted from failure to remove an ‘ ‘ obstruction ’ ’. Merely to prove that the barge went1 2‘ aground ’ ’ is not to prove that it went aground upon an “ obstruction ” which plaintiff failed to remove.
The learned trial court’s reference to unremoved “ rocks ” can find no support anywhere in the record.
I think that the judgment below should be reversed and a new trial granted, with costs to appellant to abide the event, to give the plaintiff an opportunity to prove that the barge went aground because of an “ obstruction ” which plaintiff failed to remove, if such proof be available. The proof in its present state is insufficient to establish this essential point to justify fastening liability upon the insurer.
Hammer, J., concurs with Hoestadter, J.; Pécora, J., dissents in opinion.
Judgment affirmed.