Opinion
Case No. 3:02-cv-471-J-20-TEM.
December 20, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a case of admiralty and maritime jurisdiction, which arises under 28 U.S.C. § 1333, 46 U.S.C. §§ 183-89, Limitation of Liability Act and the various statutes supplementary thereto. It is an action both in personam and in rem. See Hartford Accident Indem. Co. of Hartford v. Southern Pac. Co., 273 U.S. 207 (1927).
I. BACKGROUND AND CLAIMS
Superior Construction Company, Inc. ("Superior") brought this action for exoneration from or limitation of liability pursuant to 46 U.S.C. § 183, et seq., arising out of an allision between Claimant Charles Brock's 25 foot Bilinear pleasure craft and a stationary barge and tug used by Defendant Superior in Jacksonville, Florida. The other Claimants were passengers on Brock's pleasure boat. The allision occurred at approximately 7:00 p.m., on December 29, 2001. At that time, Superior was the general contractor for the Florida Department of Transportation and was in charge of widening and expanding the Blanding Boulevard bridge over the Cedar River in Jacksonville, Florida (the "project").
Claimants, Charles Brock, Robert Bowers, Tammy Bowers, Cynthia Tipton, Jim Tipton, Betty Wright, and Connie Wright, individually and as parent and natural guardian of Ashton Wright, a minor, have denied Superior is entitled to a limitation of liability, and have filed a Complaint against Superior for Negligence, Negligent Operation (of the barge and the tug), and Negligence per se for violations of 33 U.S.C. § 2001, et seq and/or 33 U.S.C. § 1601, et seq, the applicable Code of Federal Regulations, and Chapter 327, Florida Statutes. Among other things, Claimants expressly alleged that the barge and tug "failed to display the proper lights required under the circumstances," that Superior knew the barge and tug were "improperly lighted," and that it "failed to observe the rules with regard to proper lighting." Compl. at ¶¶ 11(f), 13, and 17(b).
At the time of the allision, the barge "Mobro 605" (the Barge) was tied to the Blanding Boulevard bridge on Cedar River, and the tug "Mary Anne" (the Tug) was tied perpendicular to the Barge. Claimants allege that the Barge was used as a construction platform at the project site and to move equipment and people as the work on the project progressed. Claimants also allege that the Barge and the Tug were improperly obstructing navigable channels in the Cedar River, and that, among other things, Superior failed to properly light the Barge and the Tug, resulting in the allision and personal injury to the Claimants. Superior denies that any negligence or unseaworthiness attributable to Superior caused the allision. Instead, Superior has asserted in its Counterclaim against Claimant Brock, that Brock's negligence caused the accident and the Claimants' resulting injuries. Claimant Brock and the other Claimants deny any negligence on their part.
Claimants had the burden of proving that the allision was caused by negligence, unseaworthiness or statutory violations attributable to Superior. In re M/V Sunshine II, 808 F.2d 762, 764 (11th Cir. 1987); In re Hercules Carriers, Inc., 768 F.2d 1558, 1563-66 (11th Cir. 1985). The Court finds that the Claimants met their burden of poof.
II. SUPERIOR'S PROJECT AND USE OF BARGE AND TUG
At all times relevant thereto, Superior was a corporation organized and existing pursuant to the laws of the State of Indiana, with its principal office and place of business in Jacksonville, Florida. The Florida Department of Transportation ("FDOT") obtained the necessary permits from the United States Coast Guard Marine Safety Office prior to commencing construction on the project, informing it that Superior was planning to mobilize equipment in the Cedar River, and that boaters would remain able to navigate in the river and through the bridge during construction. As required by the contract plans, Superior also prepared and submitted a marine traffic maintenance plan to the FDOT engineer on June 19, 2001. That marine traffic maintenance plan was transmitted by the FDOT to the United States Coast Guard on June 27, 2001.
Both Gene Hoard, the FDOT engineer for the bridge project, and Superior's Julian Rozo made follow-up telephone calls to the Jacksonville Marine Safety Office of the United States Coast Guard to check on the status of the previously-submitted Marine Traffic Plan and of Superior's use of equipment in the Cedar River at the project. See Superior's Trial Exhibit Nos. 10-14, 16 and 67.
Superior and Mobro Marine, Inc. ("Mobro") entered into a bareboat charter agreement for use of the Barge. Mobro initially used a tugboat to transport the Barge up the St. Johns River and into the Ortega River. The Barge was approximately 128 feet long, 38.5 feet wide, 7 feet deep, and painted black. It was delivered on or about July 12, 2001 by Mobro to the Blanding Boulevard bridge site on the Cedar River. However, when the Barge was taken into the Cedar River, the Tug started drawing too much water to safely navigate, so a thrusting motor (Harbormaster) that was already attached to the Barge was used to navigate the Barge up the Cedar River to the project. The Barge was transporting a crane which was also under the same bareboat charter agreement when it was delivered to the project on the Cedar River. The Barge also had in tow two smaller Shugart barges which were simultaneously being delivered with the Barge and crane.
The Barge was furnished to Superior without any permanent or fixed navigational or mooring lights. The Barge was the "dumb" instrument that was passively responsible in relation to the Tug as the Barge had no operator, no crew, and no ability to maneuver alone. Superior's Richard Hamilton kept a log book during the course of the project where he documented the delivery of the Barge, the Tug, and the lights, as well as the movement of the Barge and the Tug in the Cedar River. See Superior's Trial Exh. No. 5 and Claimants' Trial Exh. No. 32.
Superior and Mobro also entered into a bareboat charter agreement for the Tug, Mary Anne. It was approximately 36 feet long and 14.5 feet wide, with a depth of 4 feet. The Tug was delivered to the project site on or about July 20, 2001 to replace the Harbormaster thrusting motor attached to the Barge, which had become inoperable shortly after the Barge had been delivered to the project.
The Tug is an uninspected pusher tug owned by Mobro. Its hull and lower superstructure were painted black. Richard Hamilton, Superior's on-site superintendent, was placed in charge of the operation of the Tug even though he was not a qualified licensed tug operator nor experienced, by Superior's own admission. The Tug was the smart watercraft or dominant mind with an operator responsible for pushing the Barge to each location to perform construction work. This responsibility of the operator made the Tug actively responsible for the Barge. The Tug operator was also responsible for lighting and safely tying up the Barge.
The day following delivery, it was noted that there was flooding in the Tug, and Mobro was asked to return to the Tug to fix it. The flooding resulted in damages to the propeller shaft-stuffing gland. Various Mobro employees completed the repairs on August 3, 2001. At that time, Mobro gave instructions to Superior on maintenance and operation of the Tug. Again, the Tug sustained flooding on or about October 1, 2001, and Mobro came once again to renew the packing of the leaking propeller shaft and repair the damage. The repair was completed on October 12, 2001.
Richard Hamilton operated the Tug. As the job superintendent, he was also in charge of the construction platform as well as the entire project. Therefore, except when Hamilton was on vacation and a licensed tug operator was brought from another job site, the Barge was always pushed by him with the Tug for construction work to be performed on the bridge. The Barge was connected by cables to the Tug at the time of the allision.
Both the Barge and the Tug were designed solely for use in inland waters and were not oceangoing vessels. The Cedar River is a navigable waterway, as confirmed in the United States Coast Guard bridge permit authorizing the widening of the Blanding Boulevard bridge, and not otherwise in dispute in this case. At all times relevant hereto, the value of the Tug was $225,000.00. At all times relevant hereto, the value of the Barge was $200,000.00.
During the course of the project, the Barge and the Tug were positioned in various areas in the Cedar River around the Blanding Boulevard bridge. Due to tidal conditions, the Barge was not moved at the end of every workday, including the day of the allision.
Prior to the allision, no other boats or other vessels had allided or collided with either the Barge or the Tug. No one complained to Superior or any law enforcement agency about the lighting on the Barge or the Tug or their placement prior to the allision. During the course of the project, from July until the time of the allision, Superior moved the Barge and the Tug across the face of the Blanding Boulevard bridge on five or six different occasions without incident. Due to the fluctuating tides, the amount of water needed to move the Barge and the Tug, and limited maneuverability in and around the bridge, as stated before, Superior did not move the Barge and the Tug to the bank of the Cedar River each night. It appears that on the day in question, Superior could have come back to the work site after the crew had left that afternoon, but before dark, to move the Barge out of the preferred travel channel it was blocking.
III. BRIDGE AND CHANNEL IN CEDAR RIVER
The Blanding Boulevard bridge is located 0.7 nautical miles from the mouth of the Cedar River. See Superior's Trial Exh. No. 16. There are many objects and structures in and around the Cedar River that are not lighted at night. In addition, the pilings rising out of the river that supported the Blanding Boulevard bridge had never been lighted prior to the allision. Further, the arrows painted on the spans of the Blanding Boulevard bridge by local boaters to designate the preferred travel channel beneath the bridge were not visible at night.
The passage under the Blanding Boulevard bridge is approximately 528 feet wide, broken up by support pilings coming out of the water and running to the underside of the bridge. On the night of December 29, 2001, the Barge was tied lengthwise to the down-river side of the bridge and parallel to the bridge, approximately 40 feet from a dock on the eastern shore. The distance from the Barge to the western shore was more than 232 feet. Much of that 232 feet consists of shallow water not generally used by boats to pass beneath the bridge.
The Cedar River does not have a federally marked channel. However, by common usage and general recognition in the boating community, two to three spans of the bridge located on its northwest side are usually used by boaters passing beneath the bridge. The water at these locations is known to be deep, and use of these spans permits recreational boaters to avoid obstacles in the water. The pilings on the edges of the generally accepted channel have been "unofficially" marked with spray-painted arrows designating the areas of the bridge which boaters usually use to pass beneath it. Even though it is not designated a channel by the United States Coast Guard, by virtue of its general acceptance by the boating community, this section of the Cedar River is a "channel." On the night of the allision, the Barge blocked all but about 38 feet of the generally recognized 120 foot wide travel channel.
Boaters traveling on the Cedar River navigate through various spans of the Blanding Boulevard bridge. The pilings of the Blanding Boulevard bridge are approximately 32 feet apart, and are positioned at an angle. At all times during the project, Superior positioned the Barge and the Tug so there were always several spans open under the Blanding Boulevard bridge through which boaters could safely navigate. On the night of the allision, there were a number of open spans under the Blanding Boulevard bridge through which Mr. Brock could have safely navigated this boat but they were not the marked nor the commonly traveled and preferred channel. IV. LIGHTING OF THE BARGE AND THE TUG
Nautical twilight was at 6:29 p.m., on December 29, 2001. At that time, it was fully dark. The Barge and the Tug were on the down-river side of the bridge. Brock was traveling from the down-side of the river, going up-river toward the Barge and the Tug, while aiming his boat to go under the bridge. From photographs, there appears to be no street lights in the area where the allision occurred. Thus, the Barge was in the shadow of the bridge and visually disappeared into the darkness below the bridge line. Richard Hamilton, the on-site superintendent for Superior and person in charge of the Tug that pushed and placed the Barge's platform for work on the bridge, never checked to see what the Barge looked like at night from the water. No one from Superior checked the visibility of the Tug and the Barge from the water. Boats were known to go through the bridge at speeds of 70 mph day and night. Hamilton acknowledged he was aware of this based upon personal observations of the boating traffic during the construction project.
A. Lighting Regulations
Experts from both sides agree there is no specific written lighting standard applicable to either the Barge or the Tug. Therefore, the Court must determine what was reasonably required.See Cliffs-Neddrill Turnkey Int'l-Oranjestead, Neddrill 2 B.V. and Neddrill (Netherland) B.V. v. M/T Rich Duke, 947 F.2d 83, 88-9 (3rd Cir. 1991); see also Diamond State Tel. Co. v. Atlantic Ref. Co., 205 F.2d 402, 408-09 (3rd Cir. 1953). The question for the Court is not whether Superior could have cast more light on the Barge and/or the Tug, but whether the Barge and/or the Tug were lighted reasonably.
Neither the Inland Navigation Rules, 33 U.S.C. §§ 2001-38, nor the Annex to those Rules, 33 C.F.R. §§ 84-88, address the lighting of a barge that is tied to a bridge under construction. Inland Navigation Rule 2, the General Prudential Rule, requires that a vessel owner take all precautions "which may be required by the ordinary practice of seamen, or the special circumstances of the case." 33 U.S.C. § 2002(a). Lighting of barges is one of those ordinary practices that is expected of barge operators, even in the absence of specific regulations addressing the precise situation that is presented.
Although not directly applicable, the Court refers to 33 CFR § 88.13(c)(2) for guidance concerning adequate lighting of a barge to get a sense of what is reasonably "required by the ordinary practice of seamen," the applicable standard set forth by Inland Rule 2.
Specifically, 33 CFR 88.13(c)(2) requires four (4) lights, one on each corner of a "moored" barge that is in a position where vessels normally navigate on both sides of the barge, and the lights must be:
• " unobstructed [i.e., defined in 33 CFR § 84.17(b) as having an arc of visibility that is not intercepted by masts, topmasts, or other structures for more than six degrees in any angular sector]
• all-around [i.e., steady, non-flashing, always on, and 360 degrees]
• white lights
• of an intensity to be visible for at least one (1) nautical mile [i.e., a minimum light output of 0.9 candelas ] and
• that meet the requirements of § 84.15 [i.e., Underwriters' Laboratories (UL) specification 1104 adopted by the Coast Guard]."
That is, 33 CFR § 88.13(c)(2) provides that four lights, one on each corner, are necessary where a barge is moored in a position where vessels normally navigate on both sides of a barge. Also, 33 CFR § 88.13(b) requires that the lights be "unobstructed all-around white lights of an intensity to be visible for at least 1 nautical mile and meeting the technical requirements as prescribed in § 84.15 of this chapter." To comply with the requirements of § 84.15, the lights must meet technical requirements of Underwriters' Laboratories (UL) specification 1104, entitled Marine Safety Lights, which have been adopted by the Coast Guard. To be considered one-mile lights, they must have a minimum light output of 0.9 candelas. Pursuant to UL specification 1104, by definition, only a steady, non-flashing light constitutes an "all-around light." Further, a light is not considered to be unobstructed if its arc of visibility is intercepted by "masts, topmasts, or other structures" for more than six degrees in any angular sector. 33 CFR § 84.17(b).
Even though these lighting standards are not completely applicable to this particular situation, the Court finds that it suggests a general guidance for the "ordinary practice" of "reasonable" lighting under the "specific circumstances of the case" as required by Inland Navigation Rule 2. Given this provision, the Court finds it significant that the lights that Superior had placed on the Barge and that were working on the night of the allision were woefully below these minimum standardsin every single aspect. Moreover, the three lights that were working on the Barge and the one light working on the Tug that night fell far below Richard Hamilton's own simple light plan (of having ten lights on the Barge), which he had personally devised on behalf of Superior at the beginning of the project five to six months earlier. As discussed more fully below, the lights on the Barge did not meet either the standard set forth in 33 CFR § 88.13(c)(2) or Hamilton's light plan. B. Hamilton's Fabricated Light Plan for Superior
How was the decision made concerning the lighting of the Barge and the Tug? Upon arrival of the Barge on the work site in July 2001, Richard Hamilton, the project superintendent, consulted the Inland Rules, the Annex thereto, and Chapman's Piloting. Hamilton determined that the lighting plan he would adopt would consist of placing five lights on each side of the Barge. All four corners of the Barge would have lights on them. Additional lights were placed at 30-foot intervals between the lights on each corner of the Barge. In addition to the portable lights, Hamilton, at times, planned to illuminate the deck of the Barge using a portable light tower. After the arrival of the Tug, Hamilton planned to place two white lights on the stern of the Tug to mark its location.
Hamilton, referring to "Chapman Plotting" which is actually Chapman Piloting, determined the Barge should have two all around lights. Hamilton told his supervisor, Ken Harp, the Field Supervisor who worked out of Superior's offices and visited the construction site periodically, that he needed a dozen lights. Julian Rozo testified that he ordered eight "barge lights" from Bob's Barricades in July 2001 at the request of Hamilton and four more in August 2001. Hamilton obtained two more at some point from Home Depot using his credit card. The lights used were portable and some disappeared from time to time. At least some of the lights were knocked into the water from the construction activity on the platform. Hamilton testified that they knew two days before the allision that some lights were blinking dredge lights. The dredge lights required by 33 CFR § 88.15 in dredging operations were yellow lights flashing 50 to 70 times a minute, but no dredging operations are involved in this case.
While fabricating his light plan, Richard Hamilton, as stated before, never went out on the river at night to determine the Barge's visibility from an approaching boater's perspective. Also, Hamilton testified that his light plan was kept "in his head" rather than put into writing. Superior never provided its workers with any written barge light safety plan or written guidelines, nor did it provide any coverage about the necessary lighting of the Barge in any of its safety meetings. It did not include any cost for this lighting in its bid estimates.
On December 29, 2001, the night of the allision, the lights no longer complied with Hamilton's lighting plan for Superior. At that time, Superior had only five lights still in existence. As stated before, others had been lost, broken, or stolen during the course of the project. On that night, Superior had equipped the Barge with two flashing white lights on the two down-river corners. Between these two lights, there was one steady but extremely dim light, which has been described by some witnesses as having the brightness of a bathroom nite-light. These lights constituted the only illumination of the Barge. Superior equipped the Tug with one flashing white light and a second light, which was not working. The single flashing light constituted the only illumination of the Tug. This history of the lighting of the project up to the night in question bears heavily on the Court's findings and conclusions.
At one point in time, the Barge and the Tug were lighted with light plants (portable generator-driven lights that flooded the area with bright shining lights) mounted on shore on the south end of the bridge. Hamilton testified that the homeowners on the south shore turned off the lights, so he relied on the Barge lights as the sole means of alerting the river traffic to the presence of the Barge and the Tug. However, the Barge was kept on the shore during this initial stage of the construction when the plant light was in use. Hamilton had no explanation for the failure to use the light plants when the Barge and the Tug were left in the middle of the river, or more specifically, when they were almost blocking the entire preferred travel channel and when the neighbors could not turn off the light plants without getting in a boat and going out to the Tug and the Barge.
Joe Nacis, a carpenter working on the site, testified that during the three-to-four weeks preceding the allision, he observed white floodlights/light plants that were rigged on the bridge to shine down on the Barge at the end of the work day. He indicated that there were always some light plants available except when nighttime work was being done, during which the lights would be used for that work. No work was being done on the bridge at the time of the allision. He also testified that he had personally rigged them at night twice before the allision. It took two men about five minutes to rig them. Although he and another worker were on the site on the day of the allision, he was not instructed to rig them. He remembered that this was part of a long holiday weekend and most workers left the site by 3:30 p.m.
33 CFR § 88.13(c)(2) requires lights in steady-burn mode, so the use of flashing lights, in addition to steady-burn lights, and the inadequate number of lights used, were not a reasonably prudent method of lighting the Barge and the Tug. Superior was under a duty to use reasonable care under the circumstances.See Diagle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980). Superior was under a duty to safeguard against the actions of a reasonable seaman. Use of floodlights (i.e., a light plant), as suggested by the Claimants, was one method that could have been used under any special circumstances contemplated by Rule 2, Inland Navigation Rules, as well as others. The floodlights could have been put on the Barge to illuminate it to boaters.
Inland Navigation Rule 30 recommends the illumination of the deck of anchored vessels, and requires vessels over 100 meters in length to "use the available working or equivalent lights to illuminate her decks." 33 U.S.C. § 2030(c). Inland Navigation Rule 36 permits vessels to direct the beams of their searchlights in "the direction of the danger" in order to warn other vessels. 33 U.S.C. § 2036. The use of the tower light to illuminate the deck of the Barge could not be mistaken for any other light authorized by the Rules and would have alerted boaters of the danger presented by the Barge being tied up across the channel. The Court, therefore, finds it reasonable under the circumstances of this case that Superior should have had a light tower illuminating the Barge.
As explained earlier, this Court holds that the lighting that existed did not meet the requirements of 33 CFR § 88.13, 33 CFR § 84.15, or Rule 2 of the Inland Rules of the Road. Hamilton knew there were flashing lights that did not meet Coast Guard requirements. He also knew they were short of the number he felt, and had previously detailed, were necessary to properly illuminate the Barge and the Tug. He knew this two days before the allision. Because Julian Rozo wrote Mobro on Friday, December 28, 2001, the day before the allision, requesting that the Tug and the Barge be picked up, this Court concludes that Superior did not want to make the effort to purchase more lights because they would shortly not be needed. This Court further concludes that for this failure alone, Superior, by admission of Richard Hamilton, the corporate representative, was negligent since Julian Rozo and Richard Hamilton knew that Superior was out of sufficient Coast Guard compliant lights two full days before the allision.
Superior claims that its own light tower on the site was inoperable on the date of the allision and that all of Superior's other light towers were in use on other projects. However, while it is a subsequent remedial measure and not admissible to show the negligence of Superior on the night in question, the Court finds that the rental of a light tower the day after the allision and its use to illuminate the Barge from that time until the Barge was removed on January 4, 2002 is admissible to show that suitable replacement light towers were readily available, and that illumination of the deck of the Barge was both feasible and practicable. C. Superior's Failure to Preserve Lights
It would have been better if Superior had preserved the lights on the Tug and the Barge. The Claimants may have been prejudiced in their ability to prove their case by any alleged spoliation of evidence. Moreover, there is evidence of bad faith on the part of Superior warranting sanctions. Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) ("In this circuit, an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith."); see also Banco Latino, S.A.C.A. v. Lopez, 53 F.Supp. 2d 1273, 1277 n. 3 (S.D. Fla. 1999) ("This court will not, however, disregard Eleventh Circuit precedent which clearly imposes a requirement of bad faith for the imposition of sanctions in connection with the destruction of evidence.").
Superior failed to preserve the lights in question despite appropriate and timely written notice by letters from counsel for Claimants on two occasions, as early as February 27, 2002, and despite knowledge that a claim would ensue from the allision. In fact, Superior itself filed its claim to limit its damages fully anticipating the claims of the Claimants within six months of the allision, but failed to attempt to preserve the lights until August of 2002. By then, it was too late. The Court finds unpersuasive Superior's assertion that the entire cause of the allision was alcohol and there was no need to preserve evidence. Superior was well aware of the potential claims and its own claim resulting from this allision. Superior performed an investigation after the allision. Superior took pictures of the allision scene. Superior was aware that lighting would be an issue. In fact, Superior created a lighting diagram that was misleading by including lights that were not present on the night of the allision, by failing to indicate that the lights were in fact out and not working on the night of the allision, and by failing to indicate whether they were flashing or steady burn, despite this knowledge being possessed by Richard Hamilton. Superior's limitation action necessarily included the issue of the lighting of the Barge and the Tug.
Due to the failure to preserve the lights, it is unknown whether or not the lights were dredge lights or the extent of their warped, cracked and dirty condition to determine the extent of the effect on visibility from a distance. Furthermore, the failure to preserve the lights affected the Court's ability to determine whether the luminosity had been reduced even further on the night of the allision based upon battery usage. Superior's own expert found in testing new lights with new batteries, that the lights failed to meet minimum requirements after one (1) week of battery use. The evidence also established that this was a construction project, that the lights sat out in the open during the day, that the construction project had been ongoing from July through December 2001 and that the lights would have necessarily suffered from the exposure to the weather conditions and the construction activity, especially dirt and dust. The testimony of independent witnesses established that the lenses of the too-few lights in existence were cracked, warped, dirty and obscured. Superior failed to produce the lights, and this Court determines that the visibility of the lights, already below minimum Coast Guard requirements for luminosity, were even less visible due to their poor condition as noted above. Therefore, on dealing with Claimants' Motion for Sanctions, the Court will resolve it by considering the new lights as a demonstration of what new lights would be like, and will consider the spoliation of the project lights as further evidence of Superior's cavalier actions, while considering the issue of its negligence. D. Evidence of Lights in Existence on Night of Allision
On the night of the allision, police officer Rosado recorded the location and type of lights that were on the Barge. In his narrative report he states, "The barge was lit with a flashing light on each end, a steady light on the south side of the mid section, and a flashing light on the tug's end." He also created a diagram where he specifically indicated that the starboard light on the Tug's stern was out. This was the extent of the lighting for these two vessels obstructing parts of, or all five of, the channels in the middle of the river. There was only one all-around light potentially visible to approaching vessels including the Claimants' boat on the down-river side of the Barge and it was not even on the corner. That does not meet the bare minimal requirements of 33 CFR § 88.13 for four all-around lights with sufficient luminosity to make the lights visible for one mile. The Court further finds that the lights fell below reasonable standards based on the suggested standards in 33 CFR § 88.13(c)(2) because at least one light was yellow or "orangish" rather than white.
In sum, on the night of the allision, the Barge only had three lights operational (out of Hamilton's 10-lights plan). That night, Superior had equipped the Barge with two flashing white lights on the two corners of the back side, down river from the Claimants' approach, and one very dim steady light on the front left side of the Barge that was described as looking like a bathroom nite-light or a distant porch light. The Tug, which was perpendicular to the Barge, had only one working light, which was a flashing white light. Therefore, the Court finds that the number of lights provided by Superior was unreasonably insufficient.
The evidence also established that the lights were intermittent or blinking (or not completely out), and that only one all-around light existed and it was not located on a corner. The lights on the far side of the Barge could not be seen from the allision side of the Barge because of wood beams and other construction equipment lining the deck of the Barge. The Barge effectively had only two working lights on it on the night of the allision. The third light was too weak to be considered to have provided any effective illumination.
The video tapes in evidence as Superior's Trial Exhibit No. 25 are instructive. They were subpoenaed from the news agencies that shot videotape on the night of the allision. The footage taken that night is the most relevant. In the first clip from Channel 4, there is footage from on top of the bridge which starts with a shot of the rescue personnel and then pans down the rescue ladder to the Barge. In the far corner is the flashing light. To the left of that light, is the mid-ship steady-burn light. Both are clearly visible from the bridge. The issue is whether they were visible from the water as a boater approached the Barge and bridge, and the type of signal that the lights sent to the boaters.
Tapes of Channels 12 and 25 showed the flashing light on the left front corner of the Barge, seen as well as the steady-burn mid-ship light. On the Fox 30 channel at regular speed, there is a shot from the shore, showing the left front corner flashing light with a mid-ship steady-burn light in the foreground. In slow motion on Channel 4, a flashing light is seen on the left front corner of the Barge. In slow motion on Fox 30, there is a shot showing the left front corner light on the Barge flashing three times; also, it shows the steady-burn mid-ship light in the foreground. Taken together, these video clips show there was definitely a flashing light on the left front corner of the Barge, a steady-burn light at the mid-ship position and a flashing light on the right front corner of the Barge.
Videotapes taken by news crews on the night of the allision show another light that was broken and laying on the deck of the Barge. Consequently, as stated before, the Barge lacked eight of the ten lights that Hamilton's lighting plan called for. Further, it only had one of the four steady all-around lights that are required pursuant to 33 CFR § 88.13(c)(2), but it was located midship, rather than on a corner as required by 33 CFR § 88.13(c)(2).
There was also evidence that the lights were not "unobstructed" as required by 33 CFR § 88.13(c)(2). The deck of the Barge was covered with eleven-inch high wooden beams. Man-lifts, barrels, wood for the manufacturing of pilings, and other obstructions were placed inside. The height of the bulb on the lights was eight inches above the base. To be "unobstructed," the lights needed to be elevated so that their arcs would not be intercepted for more than six degrees. The Court, therefore, finds that Superior, by placing the lights on the up-river side of the Barge's deck of the Barge, obstructed the lights by arcs of at least 90 degrees. As previously noted, these lights were not visible to Claimants traveling on the down-river side of the Barge. If Superior had placed two working all-around unobstructed one-mile lights on the corners of the up-river side of the Barge they might have made the size and shape of the structure identifiable as a barge, visible from the down-river side of the Barge where Claimants were traveling. They also may have provided a range of lights that a boater could use to determine how the Barge was situated in relation to the bridge. The opening and closing of the range of lights as the boat approached would have further advised a boater that the structure he was approaching was a barge.
E. Wear and Tear on Lights Affected Intensity
Superior purchased Empco Model 100 lights to illuminate the Tug and the Barge. At the time of purchase, the Empco catalogue only referred to them as "warning lights," and at the time of trial, as "dredge lights." The type of light purchased by Superior was tested by CalCoast ITL, a testing laboratory in California. Brand new lights, without any wear and tear, were found to have a luminous intensity of less than the required 0.9 candelas when the batteries were over only 7 days old. 33 CFR § 88.13(c)(2).
Hamilton testified that the batteries were generally only changed once every 8 weeks. Because Superior had purchased new batteries 17 days before the allision, it can be assumed that the batteries in the lights were at least 17 days old, and may have been up to 8 weeks old. Consequently, the intensity on the day of the allision would have been much less than the 0.9 candelas required by the Coast Guard regulations.
The luminous intensity (candelas) of the lights was also affected by the condition of the lenses. A number of witnesses, including John Chesser, who was a railroad lighting engineer responsible for making sure that railroad lighting is up to code for CSX, testified that they had seen the lights either the day of the incident or the day after. He testified that he noticed that the Barge had a "dim" light. Upon walking on the Barge the next day, Chesser noticed that the lights that were there were scratched, dirty and old, and the lenses appeared damaged by the sun, scratched, dirty, old, and generally in very bad shape.
The intensity of the lights was affected by their condition. Several months after the allision, Superior collected from its storage shed three lights that it said were of the type on the Barge the night of the allision. Even though the lights may not have been in the same condition when collected as they were on the night of the allision, the lights demonstrated the wear and tear such lights suffer on a job sit. The lenses were cloudy and rust-stained. The electrical contacts were corroded and rust-stained, and the general condition of the lights was poor. No one testified that the lights on the Barge were in better condition than the three lights produced by Superior. It can therefore be assumed that those lights are typical of the condition of the lights at the time of the allision. F. Most Lights Were Flashing
An "all-around light" is "a light showing an unbroken light over an arc of the horizon of 360 degrees." 33 U.S.C. § 2021(e). The two lights on the down-river side of the Barge were set in flashing mode. The fact that the lights were flashing could have caused them to blend in with cars' headlights, shoreside lights, or even Christmas lights on shore, as well as those reflecting onto the water behind the Barge. According to Inland Navigation Rule 21(e) and UL specifications 1104 requirements, such lights do not qualify as "all-around lights." See First Nat'l Bank of Chicago v. Material Serv. Corp., 544 F.2d 911, 917 (7th Cir. 1978); Gaspar v. United States, 460 F. Supp. 656, 660 (D. Mass. 1978); see also 33 U.S.C. § 2021 (e)-(f) (distinguishing between "all-around light" and "flashing light"). The lights were required to be uniform and steady, not flashing. Traylor Bros., Inc. v. Tug Robert Greene, No. 83-6262, 1986 WL 12229, at *5 (E.D. La. 1986) (Inland Rule 22 requires "continuous (non-flashing) lights"); Petersen v. Head Constr. Co., 367 F. Supp. 1072, 1079 (D.D.C. 1973) (Inland Rules require a vessel to carry a "clear, uniform, and unbroken light visible all around the horizon"). The Court therefore finds that the lights on the Barge were not "all-around" lights as required by 33 CFR § 88.13(c)(2).
The Tug required lights also because it was not tied parallel to the Barge, but protruded at a right angle to the Barge. On December 29, 2001, and immediately prior to the allision, the Tug was not technically anchored, but was tied perpendicular near the midship of the Barge. Because the Tug was technically not "anchored," the Tug was not required to have anchor lights. See Sunderland Marine Mut. Ins. Co. v. Weeks Marine Constr. Co., 338 F. 3d 1276 (11th Cir. 2003). Also, because the Tug was not "anchored," Rule 30 did not strictly apply. However, no other rule addresses this situation directly. It would, therefore, be "special circumstances" under Rule 2. The Tug was tied up in an open area of the river where tugs are normally not expected, so a reasonable seaman could say that the closest standard would be that of an "anchored" tug, in which case Rule 30 gives us guidance, particularly because the tied up Tug would have been observed if the all-around white lights required by Rule 30 had been in place. It is reasonable to treat the Tug as if it was "anchored" in which case its one flashing white light on deck clearly fell below the standard set by Rule 30.
That Rule also requires the white all-round lights to be visible for two miles. Superior was further negligent in not providing a white all-around light with a two-mile visibility on the Tug. The portable lights used on the Tug were interchanged with those used on the Barge and thus their illumination, or lack thereof, was the same as those on the Barge. The lone light on the Tug was not only flashing but was also non-compliant in the extent of its luminosity and poor condition.
V. SPECIAL CIRCUMSTANCE: NEGLIGENT LOCATION OF BARGE AND TUG
Rule 2 of the Inland Rules of the Road — Responsibility applies, and that Rule charges the operator of a vessel, in this case Richard Hamilton as the operator of the Tug, with the responsibility to take such precautions as may be required by the "special circumstances" of the case. This case, where the black Barge and the Tug are tied together, with the Barge tied to a bridge, through the night, almost totally blocking the preferred up-river travel channels customarily used by recreational boaters, and partially blocking another channel, is certainly a "special circumstance." A. "Anchoring" v. "Mooring" . . . Do Labels Really Matter?
One important "special circumstance" is the location of the Barge and the Tug. The Barge and the Tug were tied to the bridge in the travel channel when the work crews left the project on December 29, 2001. The Eleventh Circuit gave guidance on the difference between "mooring" and "anchoring" in the case ofSunderland Marine Mutual Insurance Co. v. Weeks Marine Construction Co., 338 F.3d 1276 (11th Cir. 2003):
Anchoring is a subset of mooring. Per Black's Law Dictionary, one can either moor via anchor or moor by making fast to the shore or dock. Black's Law Dictionary 909 (5th Ed. 1979). The traditional distinguishing factor of a moored vessel versus an anchored vessel has been that the former is moored to a permanent object such as a dock or a pier while the anchored vessel is anchored in open water. The Oxford Companion to Ships the Sea 559 (1988). "A mooring is a permanent location to which a vessel ties and thus moored vessels are located in an expected place. In contrast, an anchorage is a temporary location, often occurring in the traveled way, and thus anchored vessels are not located in expected places." Self Towing Inc. v. Brown Marine Services, Inc., 837 F.2d 1501 (11th Cir. 1988). The safety requirements for an anchored vessel, thus, are generally higher, for its presence is in unexpected places. Id. (emphasis added.)
It is clear, therefore, that an "anchored" vessel has higher safety requirements.
Moreover, it seems logical and complies with common sense that during the time the Barge and the Tug were tied to the bridge, they should be treated as "anchored" rather than "moored" because they were in the middle of a busy travel channel in a location where reasonable boaters would not expect them to be. Consequently, it would appear that the safety requirements should be greater than they would be for a barge moored alongside a shore or at a recognized dock or mooring area.
If 33 C.F.R. § 88.13(c)(2) requires four unobstructed, white, all-around steady lights with an intensity of at least one mile as lights on a barge that is "moored" to the shore where it would not interfere with boaters traveling in the channel, then it follows that a black barge that is tied to a bridge in the middle of the travel channel where it would disappear into the shadows and outlines of the bridge, where it would not ordinarily be located, and where boaters would not expect to find a barge, would most certainly have to be more fully lighted than the barge that is moored to the shore. Reasonableness in lighting regulations cannot mean less lighting but must mean more lighting for the barge in the middle of the travel channel.
In any event, here it matters not whether the Barge is described as having been "moored" (because it was tied to a permanent object such as the bridge) or "anchored" (because it was left in open water while partially blocking the channel and was thus located in an unexpected place). Regardless of whether the Barge was moored or anchored, and thus, regardless of whether the level of safety requirements was higher or lower, the Court finds that the location and lighting of the Barge and the Tug fell far below even the lowest safety requirements for numerous reasons as discussed herein.
B. Location — Obstruction of Barge and Tug
In addition to the inadequate lights used, the location of the Barge and the Tug left by Superior on the night of the allision also caused the allision. See Compania De Madres De Cianarien, S.A. v. The Queenston Heights, 220 F.2d 120, 123 (5th Cir. 1955); see also Socony-Vacuum Oil Co. v. Smith, 179 F.2d 672 (5th Cir. 1950). Where the Barge was left, it was blocking all but 38 feet of the limited 120-foot travel channel in this 410 foot-wide shallow area of the river. In other words, the Barge unexpectedly blocked two of the three spans used by boaters, thus significantly restricting, interfering with, and impeding navigation under the bridge.
Superior was negligent to have left the Barge and the Tug in that location because they posed a danger to boaters in the river. Billy Nordic, a boater passing by the Barge before dark that day, testified that he was so shocked by the Barge's location and obstruction of the channel, that he made a remark about it to his girlfriend on the boat and was about to call the Coast Guard to report it, but then was distracted by a soda spill, and forgot to follow through. Mr. Nordic felt so guilty about not calling the Coast Guard to report the dangerous condition that he asked the family for forgiveness while he was on the witness stand. Also, David Jones, a retired police officer, nearly struck the Barge two nights before the allision while driving his boat at about 15 miles per hour. John Chesser, a local boater, testified that he made three trips under the bridge on the day of the allision, and was shocked that the Barge was blocking the channel. He also testified that it had not been moved when he passed by there in the evening, and that he saw other boaters shocked and pointing at it as they passed by it.
The Bridge Permit required Superior not to obstruct the channel and Superior promised that it would not do so except perhaps during daylight working hours when all mariners would have easily seen the obstruction. Because there was no further use of the Barge, and it was known that the lights on the Barge were vandalized from time to time, there was no good business reason to leave the Barge in the center of the bridge blocking the preferred upriver span of the bridge as well as other spans used by boaters. Hamilton, the Superior person who was capable of moving the Barge, was present at 5 p.m., on December 29, 2001, when he returned to the job site after the other workers had left at 3:30 p.m. Therefore, Hamilton was fully aware that the Barge was left blocking several spans, including the span marked with the two arrows on adjacent pilings indicating the preferred channel several days before the allision. He failed to move the Barge to a safe location where it would not be obstructing the preferred channels. Such a move could have been completed within 15 to 20 minutes according to Hamilton. Even if it were not moved completely to the shoreline, it could have been moved to clear passage for the preferred channel.
On the night of the allision, the Barge and the Tug were unreasonably obstructing navigation in the Cedar River within the meaning of 33 U.S.C. § 409. See e.g., American River Trans. Co. v. Kato Kaliakra SS, 148 F.3d 446, 450-51 (5th Cir. 1998). Federal law makes it unlawful to tie up vessels or other craft in navigable channels in such a manner as to obstruct the passage of other vessels or craft. The Barge and the Tug did obstruct the navigation of boaters, particularly boaters going upriver, because they blocked the preferred spans of the bridge.
33 U.S.C. § 409 provides the general statement of the law regarding liability for obstruction of navigable waterways:
Sec. 409. — Obstruction of navigable waters by vessels; floating timber; marking and removal of sunken vessels
It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; . . . in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. . . .
The term "obstruction" is defined in 33 CFR § 64.06 as "anything that restricts, endangers, or interferes with navigation."
33 U.S.C. § 409 has been applied to situations similar to the one which the Court is presented with here. In Gaspar v. United States, 460 F. Supp. 656 (D. Mass. 1978), a fishing vessel sought to hold the Coast Guard liable for $93,000 in damages caused when it collided with an unlit barge at night in Gloucester Harbor, Massachusetts. The district court found that the Coast Guard bore the burden of establishing that the barge was properly moored and lit, or else no presumption of fault would arise against the moving vessel. Id. at 659. The court further found that anchoring the barge so that it extended into a navigable channel, but without properly lighting it, made it an obstruction to navigation under 33 U.S.C. § 409. Id. at 659-60. Therefore, under the Pennsylvania Rule, violation of the obstruction statute shifted the burden of proof to the Coast Guard to show that the statutory violation could not have caused or contributed to the collision.Id. at 660 (citing The Pennsylvania, 86 U.S. 125 (1874)).
Superior's Barge was unreasonably obstructing the passage under the bridge by occupying 128 feet of the breadth of the river. Having been on the work site for over six months, Superior should have been familiar with the presence of the generally recognized channel marked by the spray-painted arrows designating where recreational boats generally passed beneath the bridge. The Court finds that by obstructing two of the three spans regularly used by boaters, Superior was, as stated before, restricting, endangering, or interfering with navigation and, therefore, was obstructing navigation. During the course of its five to six month construction project, Superior had the opportunity to observe that certain pillars clearly marked this channel, which was commonly used by pleasure boaters passing under the bridge. Superior had been at the construction site for a long enough period of time to know, or to have the opportunity to know, that the Barge was left partially blocking and significantly interfering with a commonly used channel.
The Barge was not hard aground on the night of December 29, 2001, and could have been removed from blocking the navigational channel by using the Tug. The Barge drew only one foot, three inches, which is a shallow draft. A review of the aerial photos in Defendant's Exhibit 21 visibly shows that the area where the Barge was moored was deep water. This can further be confirmed by Claimants' Exhibit 51, a survey showing the depth of the water. The chart of the area also shows the tide ranges and demonstrates that even at low tide there would be adequate depth of water at that location to move the Barge.
If the Barge were aground at the time when Richard Hamilton visited the site on the afternoon of December 29, 2001, the Tug likely could have pulled it off the sand bottom and moved it to another location farther down the bridge. The Court finds that even if the Barge was hard aground, the tide was rising and soon would have floated the Barge so that it could have been moved. Based on the "special circumstances of the case," the Court finds that Superior's act of leaving the Barge in that location, substantially blocking the travel channel overnight and during a long weekend in which the construction workers would not even be needing it there, amounts to unreasonably impeding and interfering with boaters' navigation of the channel.
VI. OTHER NEGLIGENT ACTS OF SUPERIOR A. Failure to Notify the Coast Guard
The Court further finds that Superior was also negligent in failing to notify the Jacksonville Coast Guard Marine Safety Office to make them aware of the location, lighting, use of, and activities of the Barge and the Tug. Superior also failed to notify the Coast Guard that the Barge and the Tug would be left at night in a location that would potentially affect waterway users and unreasonably interfere with the navigation of the travel channels.
The Coast Guard is responsible for approval of the location and plans of bridges and causeways constructed across navigable waters of the U.S. The State, as owner of the bridge, must apply for, and be issued, a permit from the Coast Guard that approves the standards and configuration of a bridge before it is built or modified and sets the conditions that the permitee must meet before and during work being performed under the permit.
FDOT requested a bridge permit to modify the existing northbound fixed bridge and replace the parallel southbound fixed highway bridge on State Road 21 (Blanding Boulevard) across the Cedar River, Florida at mile 0.7. In response to the request, the U.S. DOT/U.S.Coast Guard issued a permit. Enclosed with the permit, was a letter dated October 16, 2000 sent by the U.S. DOT/U.S.Coast Guard addressed to the FDOT and copied/forwarded to the Jacksonville Coast Guard Marine Safety Office (and marked as received by the District Environmental Management Office, Permits Section, FDOT). This letter stated in part:
As stated in your bridge permit amendment, prior approval is required from the [Coast Guard] District Commander for any false work, cofferdams, or other temporary obstructions [underlining added]. . . .
You should also notify the Coast Guard Marine Safety Office in Jacksonville, Florida at (904) 232-2957 prior to the placement of any floating construction equipment in the waterway and keep them advised of any activities that would potentially affect waterway users during construction activities [underlining added].
Claimants' Exh. #46.
Contrary to the instructions given to Superior by the United States Coast Guard in the Amended Bridge Permit and in the contract, Superior failed to submit its plans to the District Commander of the local Coast Guard Marine Safety Office for approval, and failed to notify them or keep them advised of any activities that would potentially affect the waterway users during the construction project or that would unreasonably interfere with the "free navigation of the waterway." (Claimants' Exh. # 43, 46.)
Another condition of the permit was that prior to commencement of construction, a bridge lighting plan must be submitted and approved. One of the attachments to the letter forwarding the permit, was 33 C.F.R. 118.25 and 118.65 relating to navigational lights.
The Environmental Management Office received this letter and the accompanying permit on October 19, 2000. A copy of this letter was also received by Superior and produced during discovery as Bates SUPOOOO267. Drawing 209407-1-52-01 sht B-2 (General Notes, Bid item notes . . .) states:
Marine traffic:
The Contractor shall:
1. Keep the channel open for marine traffic.
2. Submit to the Engineer a plan and schedule for approval that will provide the least interruption to the normal operation of Marine Traffic. The maintenance of traffic plan shall be presented to the Engineer at the preconstruction conference.
3. Notify in writing, two (2) weeks prior to construction and 60 days prior to channel restriction:
Commanding Officer Marine Safety Office 7820 Arlington Expressway, Suite 400 Jacksonville, FL 32211-7445
All requests are to be approved by the Engineer prior to submission to the Coast Guard.
During the bridge permitting process, Superior sent a proposed plan to the United States Coast Guard Office in Miami. By letter of June 12, 2001, Superior notified the Jacksonville Coast Guard Marine Safety Office that they would be commencing work on July 6, 2001 and that
"[e]quipment will be mobilized to Cedar Creek on the East side of the existing bridges from July 19th, 2001. It is anticipated that we will keep the channel open for Marine Traffic at all times."
Superior indicated to both the local Marine Safety Office and the U.S. DOT/United States Coast Guard that it would keep the marine channel open at all times. (Claimants' Exh. # 34, 35, 38.)
No subsequent information was transmitted to the Coast Guard Marine Safety Officer or the Bridge Branch of the District Office. Lt. Ivey of the Marine Safety Office, by letter dated April 29, 2002, stated that, "[A] preliminary review of our files indicates we were unaware of the barge's location and activity prior to the accident." The letter further stated that if the Coast Guard had been aware of the position of the Barge, they would have broadcast a [local] notice to mariners to "alert the boating public of the barge's presence and position in the river."
There is no record in the bridge file of the Coast Guard that any plan for lighting was submitted or that any waiver was granted.
Superior's estimator, as stated before, did not include any funds in the bid to provide for boating safety during the construction. He testified there was nothing in writing about how boating safety was to be accounted for. The Safety Meeting Minutes, though generated weekly, also, as stated before, contained nothing about safety for the local boating traffic.
Therefore, in sum, the Coast Guard never had an opportunity to determine whether it should issue a notice to mariners or make radio broadcasts to the public about the blockage. Information in the notices to mariners does not necessarily get passed down to just those who receive them or who listen to the Coast Guard marine broadcasts. It filters down through the boating community, and it cannot be said that Brock would not have become aware of the blockage of the channel had Superior contacted the Coast Guard local district office. Several months prior to the allision, Brock had seen the Barge in the river, and knew the construction work was ongoing. However, no evidence exists that he ever saw the Tug and the Barge blocking the preferred channel under the bridge. Also, Mr. Brock had never received a notice to mariners from the United States Coast guard, and did not know how to receive such a notice.
Superior was negligent in not properly notifying the U.S. Coast Guard Marine Safety Office Jacksonville of their use of the Barge, the Tug, and associated equipment. This may not have had any relationship to the cause of the allision but it does show the cavalier attitude of Superior. Also, the Coast Guard might have taken measures to prevent the allision or to require Superior to move the Barge and the Tug at night. Superior should have either moved the Barge and the Tug near shore and lit them normally every night, or if they left them against the bridge blocking the preferred span where it could be expected vessels would be navigating, Superior should have illuminated them so they would be clearly visible. No boater, traveling at any speed, should have had any question about whether or not a tug and a barge were blocking the spans used by the local boaters. As Eddie Chesser stated, "they should have been lit up like a Christmas tree."
B. Superior had Untrained, Unlicensed, Inexperienced Operators
Superior, already looking at the additional and unbudgeted cost of the Tug, placed the untrained, inexperienced, and unlicensed Richard Hamilton in charge of the Tug instead of a licensed tug captain. Superior used licensed tug captains at other projects and even used one on the Cedar River project during Hamilton's two week vacation, but failed to maintain its own standard of using a trained, licensed, professional tug captain on the night of the allision and it took short cuts to save money. Julian Rozo was the Project Coordinator who worked with Hamilton. He had no marine experience. English was his second language, having gone to England in 1998 from Columbia to learn the language. He had only worked on a bridge construction project for less than a year in Columbia and had never worked with a barge or a tug. He had never worked with the Coast Guard. He was placed in charge of ordering lights for the Barge and the Tug and for contacting the Coast Guard in addition to his other duties as Project Coordinator.
Superior compounded the problems leading to the allision when it failed to provide Hamilton with any written rules or guidelines on operating the Tug, pushing the Barge, lighting the Tug, lighting the Barge or mooring either one in safe and acceptable locations. The ease and convenience of Superior working on the bridge became the priority instead of the safety of the local boaters and their families. This misplacement of priorities is highlighted by Superior's maintaining extensive signage for vehicle traffic on the bridge, while allowing the lighting on the Tug and the Barge to dwindle to unacceptably dangerous levels. The reduced lighting occurred while the Tug and the Barge were being maintained in the worst location of all, the middle of the river. The Court finds that these Superior employees were not adequately trained to oversee the safety and lighting of this marine construction project and that Superior was negligent in placing them in charge.
VII. SUPERIOR'S NEGLIGENCE PER SE — STATUTORY VIOLATIONS
On Claimants' Complaint for Negligence Per Se, the Court finds in favor of Claimants due to Superior's violations of the following applicable rules and regulations:
33 U.S.C. § 409 — Obstruction of navigable waters by vessels. . . . Coast Guard — Inland Rules of the Road — Rule 2 — Responsibility
(a) Nothing in these Rules shall exonerate any vessel, or the owner, master, or crew hereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.Rule 22 — Visibility of Lights
The lights prescribed in these Rules shall have an intensity as specified in Annex I to these Rules, so as to be visible at the following minimum ranges:
* * *
(c) In a vessel of less than 12 meters in length:
— a masthead light, 2 miles;
— a sidelight, 1 mile;
— a stern light, 2 miles;
— a towing light, 2 miles;
— a white, red, green or yellow all-round light, 2 miles; and
— a special flashing light, 2 miles.
Rule 30 — Anchored Vessels and Vessels Aground
* * *
(b) A vessel of less than 50 meters in length may exhibit an all-round white light where it can best be seen instead of the lights prescribed in paragraph (a) of this Rule.
c) A vessel at anchor may, and a vessel of 100 meters or more in length shall, also use the available working or equivalent lights to illuminate her decks.Federal Regulations — 33 CFR § 88.13 — Lights on Moored Barges
(a) The following barges shall display at night and if practicable in periods of restricted visibility the lights described in paragraph (b) of this section:
(1) Every barge projecting into a boused or restricted channel.
(2) Every barge so moored that it reduces the available navigable width of any channel to less than 80 meters.
(3) . . . . .
(4) Every barge not moored parallel to the bank or dock.
(b) Barges described in paragraph (a) of this section shall carry two unobstructed all-round white lights of an intensity to be visible for at least one nautical mile and meeting the technical requirements as prescribed in § 84.15 of this chapter.
(c) A barge or a group of barges at anchor or made fast to one or more mooring buoys or other similar device, in lieu of the provisions of Inland Navigation Rule 30, may carry unobstructed all-round white lights of an intensity to be visible for at least one nautical mile that meet the requirements of § 84.15 of this chapter and shall be arranged as follows:
* * *
(2) On a single barge moored in water where other vessels normally navigate on both sides of the barge, lights shall be placed to mark the corner extremities of the barge.
(3) On barges moored in group formation, moored in water where other vessel normally navigate on both sides of the group, lights shall be placed to mark the corner extremities of the group.Federal Regulations — 33 C.F.R. 118.25 Applicable Procedure [Bridge Lighting]
Approval of lights and other signals required shall be obtained, prior to construction, from the District Commander of the area in which the structure will be situated. Application shall be by letter accompanied by duplicate sets of drawings showing (a) plan and elevation of the structure showing lights and signals proposed, and (b) small scale vicinity chart showing proposed bridge and other bridges within 1,000 feet above or below the proposed bridge.
As noted by the Eleventh Circuit Court of Appeals, "`[t]he extreme blackness of water at night makes any departure from light rules `one of the most wrecklessly [sic] unlawful acts a vessel can commit.''" Sunderland Marine Mut. Ins. Co. v. Weeks Marine Constr. Co., 338 F. 3d 1276, 1278 (11th Cir. 2003) (citations omitted). Based on these violations, Superior then had the burden of proving that its violations did not contribute in any way to the allision. Id. at 1279. Superior did not meet this burden. VIII. CLAIMANTS WERE NOT COMPARATIVELY NEGLIGENT A. Charles Brock was Not a Cause of this Allision.
On December 29, 2001, and prior to the allision, the Claimants were at a family gathering at Connie Wright's home located on Fishing Creek, a tributary that flows into the Ortega River where that river links into the Cedar River. At that time, Mr. Brock was the owner of a Bilinear pleasure boat which was 25 feet long and approximately 8 feet wide. On the night of December 29, 2001, Claimant Brock invited family members for a boat ride. At the time of the allision, he had twelve people on board his boat, including six children.
Brock gave no boating safety instructions to the Claimants who were passengers on his boat. None of the passengers could have done anything differently to prevent the allision other than using a spotlight to see what was ahead of them. Brock had a spotlight on his boat that he did not use. However, there was testimony that no boater uses a spotlight when pleasure boating at night.
Brock operated his boat going upstream on the Cedar River on a course to pass beneath the Blanding Boulevard bridge and through its pilings on the commonly used channel. Upon approaching the bridge at approximately 6:52 p.m., Brock was traveling about 22 miles per hour. The Barge and the Tug were stationary.
Sitting on the bow of the boat with the best view, were Bobbie Bowers, Jimmie White and Cynthia Tipton. Jimmie White testified that he could see lights one to two blocks away. Claimants Jimmie White, Bobbie Bowers, and Tammy Bowers had been drinking at the family gathering, but they were not legally intoxicated, nor were their faculties impaired. Bobbie Bowers testified that he had no idea he was about to hit the Barge and did not see anything right before watching his mother, Betty Wright, "fly over" him at the time of impact. Immediately prior to the allision, Claimant Betty Wright had been standing near Mr. Brock and next to an open door which led to the cabin below. After the allision, Bobbie Bowers also endured a horrifying time while he was in the water, in complete darkness, screaming for his wife and children over and over again. While they did not respond, he was left wondering in anguish if they had died. Later, at the hospital, he was told he may never walk again.
Tammy Bowers testified that, before the allision, she thinks she heard someone yell and saw Betty Wright standing up in the boat and putting her hand on Mr. Brock's shoulder. Cynthia Tipton, who also sat on the bow, testified she never saw the Barge. She also testified that she had no more than a sip of beer before the allision because she had been having sinus problems.
The third person riding on the bow, Jimmie White, testified he saw the Barge only a split second before the boat's impact and barely had enough time to yell, "Barge — Jump!" right before jumping off the boat as the boat hit the Barge. In fact, the boat was so close to the Barge when Jimmie White first saw it, that he actually hit the Barge with his body after he jumped off the boat and tumbled into the water. Brock's boat then struck the Barge head-on.
Mr. Graves, who was standing on the shoreline, testified that he heard several warning shouts that lasted approximately five seconds. He testified that he heard a female scream, "Stop, Stop, Stop, Stop!" Unfortunately, we do not know where the shouts came from nor whether anyone on the boat heard them. There is no testimony that Mr. Brock heard any of these shouts.
The speed of 22 miles per hour was the minimum speed at which Brock's boat would remain on plane. Since remaining on plane gave the vessel its greatest directional stability, it made it the most maneuverable it could be for its hull design according to expert testimony. Nothing in the Inland Navigation Rules, nor the ordinary practice of seamen requires a vessel traveling at night to proceed at a speed such that it can stop within the distance of visibility. The Court, therefore, finds that the speed at which Brock was traveling was not excessive. One need only drive a car at 22 mph to see how slow that really is. B. Brock's Intoxication
As to Superior's Counterclaim and its affirmative defense alleging that Charles Brock's negligence or intoxication was the sole proximate cause of the allision, this Court finds that Brock's intoxication was not a cause of the allision. The Claimants' toxicologist testified that Brock's blood alcohol content could have increased from the time of the allision to the blood-draw because his major organs may have been affected by his injuries. Conversely, the Defendant's toxicologist testified that Brock's alcohol content would have decreased over time from the allision until the blood-draw as Brock did not consume any alcohol in the interim. Based on all of the evidence discussed below, the Court concludes that Brock's blood alcohol level was not the cause of the allision, even though Ashton Wright, who was about 4 years old at the time of the allision, testified by video deposition on October 15, 2003 (when he was 6 years old) that he had observed Brock drinking a "little bit" of beer during the boat ride. This was the only testimony that Brock drank on the boat, and the Court does not believe this to be accurate because all other passengers on the boat did not observe any drinking during the trip. Also, Betty Wright, who was very much against alcohol, was standing right next to Brock during the entire boat trip.
At the outset of the boating trip, Brock intended to go down into the St. Johns River to travel to the center of the city. Finding the water too choppy and showing good judgment and no impaired mental faculties, he made a wide turn to turn around and travel up the calmer waters of the Cedar River. As Brock entered the Cedar River, he slowed down from 34 mph to about 22 mph as shown on his speedometer. Brock chose this speed because it was the slowest speed at which he felt he could keep his boat in the planing mode.
As said before, unrefuted expert testimony established that the planing mode is the safest mode for maneuvering a boat. Brock testified that he had been through the bridge hundreds of times, frequently at night, and everything seemed routine. He had noted the Barge before, but it was near the south end of the bridge at that time. Now it was on the north end. The one time he saw it at night, light plants had lighted it, as he could see it from a long distance away. He counted the bents or pilings that he could see under the bridge and lined his boat up with the center of the commonly used and marked travel channel of the span. This again showed his eye coordination, mental faculties, and control of the boat were not impaired due to intoxication.
Three people, Robert Bowers, Cynthia Tipton, and Jimmie White were sitting on the front bow of the boat. Regardless of their position on the boat, Charles Brock had substantial and sufficient visibility due to the size and design of the front of his boat. His view was not blocked. These three people were not intoxicated and were all observing where the boat was proceeding. By observations from all of these witnesses about other lights, the bridge, the traffic on the bridge and the handling of the boat, none of these witnesses saw the Tug, the Barge or any lights that appeared to be on the Barge or the Tug or any other obstruction prior to the allision until it was too late.
Just before reaching the bridge, Betty Wright, who had been seated on the left side, stood up next to Brock, placing her right hand on his shoulder and her left hand on the doorframe of the opening leading below. She was looking ahead as were the others on the boat. As noted before, no one saw the Barge or the Tug or the lights on the Barge and the Tug except Jimmy White, who only saw lights and thought they were on the bridge. Suddenly, Jimmy White, on the port bow saw the Barge and yelled, then immediately rolled overboard on the starboard side. Brock saw the Barge and believes he heard Jimmie White exclaim, "Barge" at the same time. Brock immediately pulled the throttle back and turned the helm to starboard (right), again, showing no impairment of his mental faculties or motor skills due to alcohol. Before any significant change occurred in the boat's motion, the boat struck the Barge, throwing people forward as the boat crashed into the Barge.
There is no question that the education and experience of Claimants' expert, Captain George Greiner, qualify him to render expert opinions on vessel operation and safety. See United States v. Paul, 175 F.3d 906, 911 (11th Cir. 1998). Captain Greiner testified that "the speed of the vessel was acceptable" and "`[t]he direction the boat was headed was between the bents. That was acceptable." Greiner Depo. at 113-14.
A. Let's just talk about whether his actions were reasonable without bringing into it the alcohol aspect of it. Were his actions reasonable for a mariner? And they were.
Q. So is it your opinion that alcohol did not play a factor in him hitting the barge that evening?
A. That's correct.
Id.
In addition to Captain Greiner's testimony, the physical evidence shows that the width of the boat was 8 feet and the width of the span was 32 feet, the span opening normally being 4 times larger than the boat. The measurements made after the allision with the Barge, the Tug, the location of the mooring of these two in relation to the bridge, and the location of the markings on the Barge made by the allision, all lead to the conclusion that Brock's vessel was on course to proceed directly through the middle of the commonly used and marked travel channel span, but for the black invisible Barge blocking the selected span. Brock had perfectly aimed the boat for a correct passage under the bridge that he had reasonably believed to be unobstructed. This conclusion is further bolstered by the testimony of Bobbie Bowers, who was sitting in the front of the boat and specifically observed Brock line up the boat to proceed through the channel. Bobbie Bowers also observed lights through the bridge on the other side and did not see the Barge or the Tug tied across the bridge openings until it was too late.
The Court, therefore, finds that Claimant Charles Brock navigated his boat in a reasonable and safe manner. The fact that his boat's track line would have taken it through the middle of the preferred travel span is proof of this. Furthermore, all of the adults who were on the boat with Charles Brock felt comfortable with the speed and the approach to the bridge. No one was concerned about the boat's operation even with their own children and grandchildren on board.
The Court finds the adult testimony credible and concludes that any statutorily created presumption of intoxication is completely overcome and contradicted by the Court's findings concerning Brock's operation and control of his boat.
All three persons on the bow saw the bridge, the pilings that supported it which were white, and the lights beyond, as did the passenger seated in the left seat. None, including Brock, saw the Barge until several seconds before the allision, and by then it was impossible to avoid. The invisibility of the Barge is supported by several independent boat operators who knew it was there, including one boater who almost collided with it himself. They all felt it was a great danger to boats because of the lack of visibility.
Mr. Brock's conduct in operating his boat, was not a cause of the allision — the lack of lighting on the Barge and the Tug and their location were. The Court finds no causal relationship between Brock's blood alcohol content and the allision. While it is easy to conjecture that he would have been more alert and therefore would have seen the Barge sooner, others who were looking ahead and who had not been drinking, or who had so little to drink that it was of no physical effect, did not see the Barge either.
After hearing all of the testimonies of eye witnesses and expert witnesses, the Court finds that there is no evidence to show that Charles Brock's actions — regardless of his technically or legally intoxicated condition — were, in any way, impaired or attributable to causing the allision or the extent of the injuries of any of the Claimants. Thus, the evidence does not support Superior's causation defenses based on Brock's consumption of alcohol before the subject allision. Any evidentiary presumption created by Brock's blood alcohol level, as stated before, is overcome and vanishes due to the overwhelming evidence to the contrary. C. Claimants' Bow Riding was not Negligent
Superior also argues that Claimants were comparatively negligent because three Claimants, Cynthia Tipton, Robert Bowers, and Jimmie White, were riding on the bow, and Charles Brock allowed them to ride on the bow. The evidence established that the people riding on the bow did not obstruct Mr. Brock's view. In fact, one could easily argue that these passengers riding on the bow had the best view, and even they did not see the Barge in time to take any evasive action. In addition, the evidence shows that the boat and railings are designed to allow people to walk out to the bow and to sit on the bow. The three people on the bow did not have their legs dangling down from the boat, so they did not contribute to the cause of the allision nor to the extent of their injuries.
Also, the one person who was most severely injured, Betty Wright, was not on the bow, but was standing on the deck between the two seats in which Charles Brock and Tammie Bowers were sitting. And, although there were insufficient seats for everyone on the boat to sit on, there is no evidence to show that the boat was carrying too many passengers. Also, the two people who were sitting in seats, Charles Brock and Tammy Bowers, were severely injured and permanently disfigured as well. Regardless of whether people were sitting on the bow, standing, or sitting in seats, the Court notes that Newton's first law applied, propelling everyone forward once the boat hit the Barge. So the Court finds it irrelevant that three people chose to sit on the bow. Nobody on the boat caused the allision nor the severity of their injuries. Nobody on the boat was comparatively negligent.
Newton's first law states that every object in a state of uniform motion tends to remain in that state of motion unless an external force is applied to it.
The Court further finds that Charles Brock did not violate any law by allowing people to be seated on the bow of his boat. There is no statute or regulation that specifically prohibits people from riding in the bow area of a boat. The boat had a railing to prevent people from falling overboard and a walk-through windshield to accommodate the passage of people to the bow area. No U.S. Coast Guard regulations prohibit persons from riding in the bow of a vessel. See Becker v. U.S. Marine Co., 943 P.2d 700 (Wash.Ct.App. 1997); Summers v. Motor Ship Big Ron Tom, 262 F. Supp. 400 (D.S.C. 1967). State boating regulations prohibit persons from riding on the bow only when the bow lacks adequate guards or railings, but generally prohibit in all cases persons from sitting on the edge of the vessel. See, e.g., Ga. Code Ann. § 52-7-17(c); N.H. Rev. Stat. § 270-D:7; Okla. Stat. tit. 63. § 4210.6; Or. Rev. Stat. § 830.360(1)-(3); Utah Code Ann. § 73-18-15.1(12)(a); Wyo. Stat. Ann. § 41-13-210. Brock's Baylinear pleasure craft was equipped with guardrails on its bow.
Accordingly, and consistent with the credible testimony of Claimants' experts, Captain Greiner and Dr. Weissman-Bennan, the Court finds that "bowriding" is the operation of a vessel with any part of a human body extended over the bow and that did not happen in this case. None of the Claimants were seated on the bow with their limbs extended therefrom. The Court, therefore, finds that at the time of the allision, the Claimants were not negligent for riding on the bow because they were not actually "bowriding." Instead, it was Superior's dangerous placement, improper lighting, and failure to make any attempt to alert the Coast Guard or to warn the boating public that a huge, black, unlit Barge and Tug would be blocking travel channels popular with local boaters at night that demonstrates that it was Superior's negligent actions that caused this allision.
D. Claimants were not Negligent in Boarding Boat with Brock
Finally, Superior has asserted as a defense that the Claimants other than Brock were themselves negligent for agreeing to travel in a boat in which the operator was intoxicated. Brock was drinking beer at the family gathering. Before departing for the boat ride, he had slipped and partially fallen into the water. Several of the Claimants were aware of this. However, no evidence was presented with any probative value that indicated that any of the Claimants were aware that Charles Brock was intoxicated. The evidence established that there was a family gathering prior to the boating trip and there was substantial eating as a result of the family gathering, which was organized under the concept of a pot luck dinner. Betty Wright, the matriarch of the family, was generally against alcohol and the family members made efforts not to drink around her. The only consumption of alcohol was outside, away from Betty Wright. There was no evidence that Charles Brock drank more than one or two beers in front of anyone who participated in the boating trip.
There was no slurring of words or any other intoxicated type of behavior. In fact, the participants in the boating trip were adamant that had they known Charles Brock was intoxicated they would not have taken a boating trip. These were family members who were all comfortable with each other and certainly watchful over their children who participated in the boating trip. Some of the Claimants were inexperienced boaters and were particularly observant about the speed and the handling of the boat, and yet all of the Claimants were comfortable with the speed and comfortable with their ability to say something if they had any concerns. The Court, therefore, finds that the Claimants were not negligent in allegedly participating with a known intoxicated operator of the vessel. This finding is independent of this Court's finding that any drinking by the operator of the vessel did not cause the allision in question, which necessarily means that the Claimants were not negligent, given that Mr. Brock did not cause the allision.
IX. SUPERIOR'S LIMITATION OF LIABILITY CLAIM A. Barge and Tug are Vessels
Next, regarding Superior's Limitation of Liability claim, the Court finds that Superior carried its initial burden of proving that it entered into a bareboat charter agreement with Mobro which qualifies Superior as the "owner" of the "vessels" (i.e., the Barge and the Tug) necessary to establish exoneration or limitation under the statutory provisions of 46 U.S.C. §§ 183-89. Even though the propeller of the Barge was not functioning at the time, the Court finds that the Barge was a "vessel" because it was "capable" of being used as a means of transportation on water, as defined by the Limitation of Liability Act. 1 U.S.C. § 3.
Prior to and at the time of the allision, Superior maintained complete command, control, possession, and manning of the Barge and the Tug. Superior was, therefore, the owner pro hac vice of the Barge and the Tug at the time of the allision. In re Martell, 742 F.Supp. 1147, 1152 (S.D. Fla. 1990); Vitozi v. Balboa Shipping Co., 163 F.2d 286, 289 (1st Cir. 1947); see also 46 U.S.C. § 186.
The Barge was being used as a construction platform and to move equipment and people on the Cedar River as the work on the project progressed. It was both being used, and capable of being used, as a vessel within the meaning of the Limitation of Liability Act. 46 U.S.C. § 181, et seq.; see also 1 U.S.C. § 3; Inland Navigation Rule 3(a); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990). The Barge is considered a vessel for purposes of the Limitation of Liability Act, and the Tug is clearly a vessel. 1 U.S.C. § 3; see also In re Mobro Marine, Inc., 278 F. Supp. 2d 1290, 1292-93 (M.D. Fla. 2003) (stating that "[i]n limitation of liability cases, both tugs and barges are considered vessels.").
B. Lack of Privity not Shown
Even though the Barge and the Tug are vessels, and thus subject to a limitation of liability, the Court finds that Superior did not carry its burden of proving a lack of privity or knowledge of negligence in the lighting and location of the Barge and the Tug necessary to prevail on its Limitation of Liability claim. The Court finds that Superior's project superintendent, Richard Hamilton, and project coordinator, Julian Rozo, had personal knowledge of the inadequacy of the lights on the Barge and the Tug and of the Barge's negligent obstruction of navigation. Because of their privity with Superior, whatever they had knowledge of is imputed to Superior, so that Defendant Superior is deemed to have knowledge of these facts as well.
C. Both Barge and Tug are Vessels Responsible for the Allision
Because both the Tug and the Barge have petitioned for limitation of liability, the Court must consider that the Tug as well as the Barge was a contributing factor in the allision. The Tug was insufficiently lit and it left the Barge in the channel. So the Tug, too, bears responsibility for the loss.
In Liverpool, Brazil River Plate Steam Navigation Company v. Brooklyn Eastern District Terminal, 251 U.S. 48 (1919), a steamship was damaged while it was moored at a pier in Brooklyn when a car float allided with a disabled tug. The Supreme Court decided that the tug was at fault because the car float, although it had allided with the steamship, was a "passive instrument in the hands of" the tug. Id. at 52. Thus, where the barge merely is passive in a marine casualty, the courts have employed the concept of "dominant mind" to place liability on the tug. See e.g., Canarctic Shipping Co. v. Great Lakes Towing Co., 670 F.2d 61 (6th Cir. 1982); Alter Co. v. M/V Miss Sue, 536 F. Supp. 313 (E.D. La. 1982).
If the evidence shows some breach of duty on the part of a barge or an act of negligence attributable to it that played a part in bringing about the casualty, the barge may be found to be an offending vessel along with the tug. See Dow Chemical Co. v. Tug Thomas Allen, 349 F. Supp. 1354 (E.D. La. 1972) (observing general rules that where tug supplies motor power she becomes the dominant mind). Where both a barge and a tug commit acts of negligence that proximately cause the casualty, each becomes an offending vessel. Chevron U.S.A., Inc. v. Progress Marine, Inc., 1980 AMC 1673 (E.D. La. 1979).
The Barge in the instant action was unpowered. It is what is known as a "dumb barge," all of whose movements and lighting were controlled by the operators of the Tug. Superior's Tug crew placed the Barge in a position blocking the channel. Its crew supplied the lights to be put on the Barge, and actually placed the portable lights on the Barge. Its crew decided whether to use the light tower on the bridge and focus its light over the side of the bridge onto the Tug and the Barge, as they had done on nights before the allision. Its crew decided whether the batteries in the portable lights were sufficiently strong to use, or whether they needed to be replaced. Its crew decided whether to put lights in flashing mode. The Barge was a "passive instrument" in the hands of the Tug, while the Tug had the "dominant mind." The Court, therefore, finds that the Tug was the "controlling vessel" and is liable for damages, even if Brock's boat did not strike the Tug until after the injuries had occurred.
Superior, as the "owner" of the Barge and the Tug, did not carry its burden of proof that its violation of statutes, Inland Rules, standards, or reasonable and ordinary seaman practices regarding lighting and obstruction of navigable channels at night "could not have been a contributory cause of the allision."Sunderland Marine Mutual Ins. Co. v. Weeks Marines Construction Co., 338 F.3d 1276 (11th Cir. 2003). It was the negligence of Superior — and only Superior — that caused this allision. Therefore, Superior is not entitled to a limitation of liability.
X. DAMAGES
The Court finds that the Claimants have suffered economic damages in the following amounts:
a) Cynthia Tipton: in the amount of $425,504.69;
b) Tammy Bowers: in the amount of $249,911.23;
c) Charles Brock: in the amount of $20,841.83;
d) Ashton Wright: in the amount of $936.31;
e) Robert Bowers: in the amount of $1,000,218.00;
f) Jimmie White: in the amount of $1,317,277.00; and
g) Betty Wright: in the amount of $2,600,000.57.
Betty Wright may recover medical expenses, past and future, which she has incurred as a result of her demonstrated injuries.See e.g., Hagerty v. LL Marine Servs., Inc., 788 F.2d 315, 319 (5th Cir. 1986) (citing Ross v. United States, 640 F.2d 511, 521 (5th Cir. 1981) (Federal Tort Claim Act action applying Alabama law on damages)). She "has no duty to `mitigate' her damages award by accepting a less costly form of medical care."Ramarattan v. Burger King Corp., 656 F.Supp. 522 (D. Md. 1987). As the victim of another's tort, she is entitled, within reasonable limits, to choose her own doctors and places of confinement, if such care is necessary.
Because Betty Wright more likely than not has a future need for full-time attendant care, an award including such care is proper. Betty Wright should not be forced to accept housing in a nursing home facility. Instead, she may select from among a number of reasonable alternatives, including full-time attendant care in the comfort of her home. See Calva-Cerqueira v. United States, 281 F.Supp.2d 279 (D.D.C. 2003).
Non-economic damages for the Claimants are as follows:
a) Cynthia Tipton: in the amount of $1,500,000.00;
b) Jim Tipton: in the amount of $250,000.00;
c) Tammy Bowers: in the amount of $1,000,000.00;
d) Charles Brock: in the amount of $750,000.00;
e) Ashton Wright: in the amount of $100,000.00;
f) Robert Bowers: in the amount of $2,000,000.00;
g) Jimmie White: in the amount of $2,000,000.00; and
h) Betty Wright: in the amount of $6,000,000.00.
The Clerk is DIRECTED to enter judgment in favor of Claimants accordingly, and to close the file.
DONE AND ENTERED.