(dissenting):
I dissent.
The result of an affirmance of Judge Motley’s apportionment of 33V3 percent blame to Moran and 66% percent blame to the State of Connecticut will be to make it increasingly less expensive and more fun for the careless navigators of the Moran Towing and Transportation Company to crown each succeeding rendezvous with the Tomlinson Bridge with a resounding allision. I cannot agree that the obvious carelessness of the Moran navigators should be mostly at the expense of the bridge and the State.
The condition of the bridge has long been known to all those who must bring their boats up and down the Quinnipiac River. A Moran vice-president testified that his company had made the tow in question in this case approximately 150 times between 1970 and August 1, 1976, the date of the allision. (Joint Appendix at pp. 113,132). For forty-seven years since its completion in 1925 the bridge had been capable of elevation only to the angle of 65 degrees. At the time of the accident the bridge was able to open only to 57 degrees, in part because of repair work required by the allision of the same tug with the same bridge on May 17, 1972. *1033(Appellants Brief at pp. 2-3).1 Notice to this effect was published biweekly from April 23, 1975 until December, 1976 in the official U.S. Coast Guard notice to Mariners.
To be sure, the construction of the bridge deviated from the terms of the construction permit granted by the Army Corps of Engineers and, under section 9 of the Rivers and Harbors of 1899, 30 Stat. 1151, 33 U.S.C. 401, such deviation was “unlawful.” Such a statutory provision may be enough, in my view to support a shifting of the burden of proof in the first case, or first few cases, arising out of the condition.
Here the record shows that the tug Diana L. Moran has towed the barge Becraft into an allision with the Tomlinson Bridge on at least two prior occasions, May 17, 1972 and November 9, 1975. The first of this series of allisions resulted in an allocation of liability of 35 percent to the State and 65 percent to Moran, Complaint of Tug Helen B. Moran, Inc., et al., 1978 A.M.C. 1962 (S.D.N.Y.1978); the second in an apportionment of 45 percent of the liability to the State and 55 percent to Moran (Docket No. 76 Civ. 1786, filed Nov. 8, 1976, Cooper, J.). In the first of these cases Judge Lasker found that the captain of the Moran tug had actual knowledge of the limited elevation of the bridge and absolved the State of liability. This Court reversed on the ground that “[t]he violation of the statute was, as a matter of fact, a cause of the accident.” Complaint of Tug Helen B. Moran, Inc., 560 F.2d 527, 528 (2d Cir. 1977), reversing 420 F.Supp. 1282 (S.D.N.Y.1976). Here the violation of the statutory duty (the bridge’s non-compliance with the Army Corps’ terms of approval) cannot be said to have “caused” the accident. In this case the issue of negligence must be considered along with past incidents involving the same appellees and the same bridge. The majority misses the point when it distinguishes the sequence of events in this allision from those of prior allisions. It fails to give enough weight to the fact that there were prior allisions for which Moran’s men were in some part responsible.
The bridge and its leaves are stationary. The choice of course and maneuver of the Moran tugs are entirely in Moran’s control and discretion. No matter how careless the Moran navigators may be, there is nothing anybody on the bridge can do beyond elevating the leaves. By now the Moran captains are fully familiar with the hazards posed by the Tomlinson Bridge. Despite much evidence to the contrary, the law must assume that they know how to operate their tugs to avoid striking the leaves of the bridge.
The facts in this case are all conceded. We are therefore, in as good a position as the district court to apportion damages. In any event, the apportionment ordered by the district court is clearly erroneous in light of the repeated contributory negligence of the appellees. Getty Oil Co. v. S. S. Ponce de Leon, et al., 555 F.2d 328 (2d Cir. 1978).
I would reverse the judgment of the district court and dismiss the complaint.
. The majority’s opinion points out that use of a “deadman’s switch” might have added 8 degrees more of elevation to the bridge, and that the bridge operator had not been instructed in the use of the switch. However, this delict on the State’s part seems irrelevant in light of testimony by the bridge operator that he did not expect an allision until it occurred, negating any hypothetical inference that the deadman’s switch might have been used to avoid the accident. (Joint Appendix at p. 145).