Opinion
CIVIL ACTION NO. 01-3187, (REF: ALL CASES), SECTION "L"(4)
July 8, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial on June 9, 2003. By agreement of the parties and the Court, trial in this matter was held only on the issues of limitation and exoneration. The issues of quantum or, perhaps more accurately stated, the presence, nature, and/or extent of injuries were bifurcated and will be resolved at another time.
PROCEDURAL HISTORY
This case arises out of a collision or contact in the Mississippi River on September 17, 2000 at approximately 8:00 p.m. between the M/V MISS ALLY, owned and operated by Crescent Ship Service, Inc. ("Crescent") and the M/V WANDA LEE, a vessel owned by Lynchburg Shipyard ("Lynchburg") and operated by Dixieland Towboat Management, Inc. ("Dixieland"). Claims were filed in state court by several longshoremen who allege they were injured as a result of the collision.
On October 22, 2001, Lynchburg and Dixieland filed in this Court a petition for exoneration from or limitation of liability pursuant to the Limitation of Liability Act, 46 U.S.C. § 183 et. seq. This action was docketed Civil Action No. 01-3187. At the time the complaint was filed, this Court issued an order restraining prosecution of claims in any other forum against the petitioners arising out of the incident on September 17, 2000. The Court further ordered that all parties asserting claims against Lynchburg and Dixieland file their claims in this Court no later than January 7, 2002.
Prior to that date, claims were filed in this Court by claimants, Claude Banks (Banks), Allen Dabney (Dabney), Jadi Steward (Steward) and Daryl Billington (Billington). These individuals allege that they were longshoremen who suffered personal injuries as a result of the collision between the M/V WANDA LEE and the MTV MISS ALLY. Crescent also filed a claim in Lynchburg/Dixieland's limitation proceeding asserting that it is entitled to indemnity and contribution from the petitioners for its potential liability resulting from the collision. Finally, the Louisiana Insurance Guaranty Association (LIGA) intervened in the action as the Longshore Harbor Workers' Compensation Act carrier for the claimants Banks and Dabney.
On February 21, 2002, Crescent, as owner of the MISS ALLY, also filed a petition for exoneration from or limitation of liability for the incident on September 17, 2000. That action was docketed Civil Action No. 02-484 and was consolidated for trial with Civil Action No. 01-3187.
As in the Lynchburg action, the Court issued a stay of all other proceedings against Crescent and directed all claimants to file claims in this Court. Banks, Dabney, Steward and Billington filed claims against Crescent. Lynchburg and Dixieland also filed a claim against Crescent asserting their rights to contribution and/or indemnity. LIGA also intervened as to the claimants Banks and Dabney. A trial proceeded on these consolidated matters focused only on the exoneration and or limitation issues.
The Court has carefully considered the testimony of all of the witnesses, reviewed the exhibits entered into the evidence, looked over the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure hereby enters the following findings of fact and conclusions of law.
To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts it as such. To the extent that any conclusion of law may be considered a finding of fact, the Court also adopts it as such.
FINDINGS OF FACT 1.
The M/V WANDA LEE was owned by Lynchburg but was operated by Dixieland pursuant to a bareboat charter. The vessel was built in 1981, is 52.5 feet long, 22.2 feet wide and 8.2 feet deep, and has a total horsepower of 800. The captain was Adam Abadee, who was employed by Dixieland.
2.
The M/V MISS ALLY was owned and operated by Crescent. The vessel was built in 1999; she is 45 feet long, 14.5 feet wide, 7 feet deep and has a total horsepower of 600. The captain was David Ronquille, employed by Crescent.
3.
On and prior to September 17, 2000, the M/V SPRING WOOD, a deep sea cargo vessel, was anchored at a midstream anchorage in the lower Mississippi River at mile post 111 and was being offloaded by longshoremen employed by Maritrend Stevedoring Company. Longshoremen were brought to and from the M/V SPRINGWOOD by the M/V MISS ALLY.
4.
There were two barges secured to the sides of the M/V SPRINGWOOD. One was on the starboard side and the other on the port side, forward of the ship's gangway.
5.
Claimants, Banks, Dabney, Steward, and Billington, were among the members of the longshore crew unloading the M/V SPRINGWOOD. On September 17, Banks and Dabney were working on the barge moored alongside the M/V SPRINGWOOD on its starboard side. About 8:00 p.m., after they had concluded their work for the day, Banks and Dabney and at least one other longshoreman were picked up by the M/V MISS ALLY which then proceeded around the stern of the M/V SPRINGWOOD to the port side of the vessel intending to go to the gangway for the purpose of picking up the rest of the longshore crew. It was dusk, and the area was illuminated by the vessel's lights.
6.
At the time the M/V MISS ALLY was proceeding around the M/V SPRINGWOOD, the M/V WANDA LEE with five empty barges, all positioned abreast, was getting ready to proceed upriver. The M/V WANDA LEE was moving the barges from one tier of a fleeting area to another tier of the same fleeting area located some 800 to 1200 feet upstream. The captain of the M/V WANDA LEE estimated that the port side of the M/V SPRINGWOOD was a little more than 200 feet off the shoreline. This did not include the width of the barge on the port side of the M/V SPRINGWOOD. The M/V WANDA LEE's tow was about 175 feet wide. The captain of the M/V WANDA LEE testified that he routinely navigated tows with barges five-abreast in the area between vessels located at the same anchorage as the M/V SPRINGWOOD and the shore. The captain further testified that his employers were aware that this was frequently done.
7.
The M/V MISS ALLY proceeded to the gangway of the M/V SPRINGWOOD and was positioned aft of the barge on the port side. The M/V MISS ALLY was being held in position near the gangway by her engine so the longshoremen could step off the gangway onto the bow of the M/V MISS ALLY and be transported to shore.
8.
The M/V WANDA LEE continued upstream with her tow intending to pass between the M/V SPRINGWOOD and the shore. The tow passed alongside the M/V SPRINGWOOD, and the starboard-most barge of her tow grazed the barge on the port side of the M/V SPRINGWOOD. This contact or collision caused the tow to pivot back and inward and strike, graze or come in contact with the port side of the M/V MISS ALLY, causing that vessel to jolt or rock in the direction of the M/V SPRINGWOOD's gangway. Dabney, Banks, and Billington claim they were aboard the M/V MISS ALLY and were knocked to the deck and sustained injuries. Steward claims he was on the M/V SPRINGWOOD's gangway and that the M/V MISS ALLY struck the gangway and knocked him down causing him to sustain injuries.
9.
The parties do not dispute that Dabney and Banks were picked up from the barge on the starboard side of the M/V SPRINGWOOD and were on the M/V MISS ALLY at the time of the collision. However, there is a dispute as to the location of Billington and Steward.
10.
Testimony at trial disclosed the following discrepancies in testimony.The captain of the M/V MISS ALLY, David Ronquille, testified that only two longshoreman boarded his vessel from the barge on the starboard side of the M/V SPRINGWOOD. He further testified that no one had come aboard his vessel between the time it arrived at the gangway on the port side of the M/V SPRINGWOOD and the moment of contact with the M/V WANDA LEE's tow.
Dabney and Banks, on the other hand, testified that they boarded the M/V MISS ALLY from the barge on the starboard side of the M/V SPRINGWOOD along with two other longshoreman, David Gordon and Paul Wiggins. Dabney testified that he was sitting on the port stern of the M/V MISS ALLY. Dabney further said that he was thrown to the floor of the M/V MISS ALLY and that when he stood up in the middle of the back deck he saw Darryl Billington on the M/V MISS ALLY and grabbed him for safety. Billington, on the other hand, stated that while he was walking on the starboard side of the M/V MISS ALLY, he saw Dabney running toward him from the stern of the vessel in an attempt to get off the M/V MISS ALLY. Billington said he told told Dabney not to come that way and the men proceeded to the stern of the vessel.
11.
Banks testified that he was seated on the stern of the M/V MISS ALLY and saw Billington board the crew boat immediately before the moment of impact. He further testified that Steward was standing on the gangway at the time of the collision. This conflicts with the testimony of Gordon Willhoft, the owner and President of Crescent Ship Service, who testified that someone seated on the stern of the vessel could not see anyone board the vessel.
12.
Steward testified that he was coming down the gangway to board the M/V MISS ALLY and was third in line behind Billington and another longshoreman. He testified that Billington had boarded the M/V MISS ALLY, and, just as his feet hit the deck of that vessel, the collision occurred. Steward testified that he began running back up the SPRINGWOOD's gangway and was injured when he fell on the gangway. This conflicts with the testimony of the longshore superintendent who said Steward was on the M/V MISS ALLY at the time of the collision. It also conflicts with the testimony of the captain of the M/V MISS ALLY who said no one came aboard his vessel while she was adjacent to the gangway prior to the collision.
13.
Billington testified that customarily he was always the first person off the gangway and that on this occasion he had just stepped aboard the M/V MISS ALLY when the collision occurred. He testified that he grabbed a handrail on the M/V MISS ALLY and that the movement of the vessel toward the SPRINGWOOD's gangway caused his back to strike the gangway. This conflicts with the testimony of the longshore superintendent, Sidney Vincent.
14.
Sydney Vincent testified that he was working on the stern of the M/V SPRING WOOD when he heard the job foreman yelling for him to come down. When he arrived at the gangway the collision had already occurred and he saw the tug boat moving away from the M/V MISS ALLY with its barges in tow. He stated that he proceeded down the gangway to go aboard the M/V MISS ALLY to inspect for damage and that he saw Billington standing at the top of the gangway. Vincent further stated that when he boarded the M/V MISS ALLY he saw only three people aboard: Banks, Dabney, and Steward. Vincent testified that on September 17, 2000 Steward was working on the barge moored to the starboard side of the M/V SPRINGWOOD, and was picked up by the M/V MISS ALLY along with Dabney and Banks. This conflicts with the testimony of the captain of the M/V MISS ALLY, Dabney, Banks, Billington, and Steward.
15.
Vincent further testified that once he assured himself that there was no damage to either vessel, he told the rest of the crew to come down the gangway and board the M/V MISS ALLY so they could be brought to the dock. On the other hand, Dabney, Banks, Billington and Steward testified that Vincent came aboard the M/V MISS ALLY after the collision and after the longshore crew had boarded the vessel.
16.
On September 18, 2000, the day following this incident, Sidney Vincent provided Maritrend, Inc. with an incident report regarding the collision. In pertinent part, the report stated: "There were no injury's [sic] reported to me at this time, I personally asked the 3 employees that were on the crew boat if the bump was hard, and the 3 men responded that the boat and barge just brushed against each other." Vincent did not record the names of the three employees.
17.
In summary, there is general agreement among the witnesses that Banks and Dabney were on board the M/V MISS ALLY at the time of the collision. There is no agreement, however, as to the whereabouts of Steward and Billington. Nevertheless, under any version of the testimony, Steward and Billington were either on the gangway of the SPRINGWOOD or on the M/V MISS ALLY at the time of the collision.
CONCLUSIONS OF LAW 1.
The Court has jurisdiction over these matters by virtue of 28 U.S.C. § 1333, the General Maritime Law, and the Limitation of Liability Act, 46 U.S.C. § 183 et. seq. Under the Limitation of Liability Act the Court must first determine whether or not acts of negligence or fault of the vessel caused an incident or collision or contact between the two involved vessels. In re Farrell Lines, Inc., 530 F.2d 7, 10 (5th Cir. 1976). See also THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW, § 15-5 at 344 (3d ed. 2001).2.
The burden of proof in a limitation proceeding is divided between the parties and involves a two-step process. Id. The initial burden of proving negligence rests with the claimants. Farrell Lines, 530 F.2d at 10. If the claimants establish negligence, the burden then shifts to the vessel owner to prove the negligence was not within the owner's privity or knowledge and that the owner is entitled to limit its liability to the value of their vessel. In re Hellenic Lines, 252 F.3d 391, 394 (5th Cir. 2001); Brister v. A.W.I, Inc., 946 F.2d 350, 355 (5th Cir. 1991).
3.
With these principles in mind, the Court analyses the actions of each vessel with a view toward focusing on the presence or absence of any negligence or fault, and, if there is negligence, the alleged injuries and the rights of the parties to maintain limitation.
A. M/V MISS ALLY
There is evidence the captain of the M/V MISS ALLY did not have a legal license. There is also evidence that he could not read or write and, therefore, had no ready access to safety manuals. Furthermore, there was no deckhand or look-out on the vessel. This may well constitute negligence but these insufficiencies did not cause the accident. In fact they had nothing to do with the accident. The M/V MISS ALLY was in essence parked behind the barge attached to the M/V SPRINGWOOD. This is where the MA' MISS ALLY should have been. She was not out in the open but in a confined area or a seemingly protected area. The M/V MISS ALLY came in contact with the M/V WANDA LEE's tow only because the M/V WANDA LEE's tow hit the barge immediately in front of the M/V MISS ALLY causing the tow to pivot into the M/V MISS ALLY. The Captain of the M/V MISS ALLY did see the tow as he rounded the stern heading to the gangway but at the time nothing looked amiss. The barges were still in the fleet and because of the distance and angle of sight he could not see that five barges were abreast or know that an unacceptable risk would be created until it was too late to do anything about it. Furthermore, there is no evidence that a lookout was needed or would have been able to see anything more than what the captain saw. Since there is no causal relationship between the actions or inactions of the captain of the M/V MISS ALLY and the collision, the M/V MISS ALLY is entitled to exoneration.B. M/V WANDA LEE
As mentioned above, the M/V WANDA LEE's tow came in contact with a vessel at anchor.
The M/V SPRINGWOOD was located in an established anchorage and was secured properly. The M/V WANDA LEE's tow was simply too wide to safely navigate between the M/V SPRINGWOOD and its attached barge and the shore. At the beginning of the move, the captain of the M/V WANDA LEE knew he had limitations of vision, both because of the breadth of the tow and the fact that the barges were light and rode high in the water. He nevertheless persisted in attempting to push this tow through the narrow space. His actions were clearly negligent, and, since he was in the course and scope of his duties at the time, his employer is liable for his actions. The issue is whether or not this liability should be limited to the owner or operator's interest in the vessel and/or tow. An analysis of this issue should begin with a re-statement of the applicable law.
A vessel owner is entitled to limitation only where the loss occurred without the owner's privity or knowledge regarding a negligent condition. Verdin v. C B Boat Co., 860 F.2d 150, 156 (5th Cir. 1988). Section 186 of the Limitation of Liability Act provides that the charterer of a vessel (i.e., Dixieland) is deemed the owner of the vessel for purposes of seeking limitation. See 46 U.S.C.A. § 186. Where a corporate defendant is concerned, as it is in this case, the question is whether the owner knew or should have known of the negligent condition. Id.; Brister, 946 F.2d at 355. This question is resolved by focusing on the cause of the collision. Was the collision caused by the negligent navigation of the master thereby permitting the owner/operator to limit under 46 U.S.C.A. § 183, et seq., or caused by a negligent practice or unseaworthy condition which preceded the commencement of the voyage and was known and condoned by the vessel owner/operator?
The preponderance of the evidence in this particular case supports the conclusion that the M/V WANDA LEE's tow was too wide to safely navigate between the shoreline and the M/V SPRINGWOOD. According to the captain of the M/V WANDA LEE the practice of moving five barges abreast in this area of the river in which there was a mid stream anchorage for ocean going vessels was allowed by his employer, the operator of the M/V WANDA LEE, and, approved and condoned by them. The margin of error in such an operation is just too small and the risk it creates too great. Because this practice was known by the operators and because it persisted prior to the commencement of the move, there is privity and knowledge and, therefore, limitation is not permitted regarding the claims against Dixieland as operator of the M/V WANDA LEE.
The Court now considers the extent of Lynchburg's negligence. The owner of a vessel subject to a demise, or bareboat charter, is liable only to the extent that its negligence pre-exists the charter. See Kerr-McGee Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973). This rule recognizes that "when the owner of the vessel enters into a demise charter, he surrenders all possession and control of the vessel to the charterer." Id. The Court finds no evidence that Lynchburg was negligent as owner of the vessel. Thus, Lynchburg is entitled to exoneration.
Having determined that the operator of the M/V WANDA LEE was in fact negligent and not entitled to limitation, the Court now considers the significance of the conflicting testimony regarding the location of Steward and Billington at the time of the collision. There is no way to reconcile these conflicts on the basis of mistake. With regard to Steward, he says he never got on the M/V MISS ALLY prior to the collision and was on the M/V SPRINGWOOD's gangway when the M/V MISS ALLY was struck. Vincent says he saw Steward on the M/V MISS ALLY immediately after the collision and knows Steward was on the vessel at the time of the collision because he was picked up by the M/V MISS ALLY from the barge on the starboard side of the M/V SPRINGWOOD at the same time as Banks and Dabney. With regard to Billington's whereabouts, Billington says he was on the M/V MISS ALLY at the time of the collision and remained on the vessel. Steward, Dabney, and Banks agree with him. But Vincent says he saw Billington on the gangway immediately after the collision and knows Billington was not on the M/V MISS ALLY at the time of the collision. The testimony of Ronquille, the captain of the M/V MISS ALLY, supports Vincent's testimony.
Under a different scenario the location of the claimants could be significant in discerning causation which would be relevant for evaluating exoneration regardless of the M/V WANDA LEE's negligence. If, for example, there was evidence that either Billington or Steward was at home, or on shore and not even at the site, then any alleged injuries could not be related to the collision as a matter of law and exoneration would be appropriate even though the vessel was neglegent. However, in the instant case, under any version of the testimony Billington and Steward were either aboard the M/V MISS ALLY or on the SPRING WOOD'S gangway. Both of these structures were affected in some way by the collision and individuals on both structure were or could have been exposed to some risk. Whether they were injured and, if so, the nature and extent of their injuries is a factual question and not a legal one. The location of Billington and Steward at the time of the collision is relevant but only in connection with the presence, nature and extent of their injuries. These issues were not before the Court in this trial. Only the issues of exoneration and/or limitation' were tried. The location of Steward and Billington at the time of the collision has no relevance in the determination of exoneration and/or limitation. Thus the testimony regarding their location is also irrelevant. These conflicts should be resolved at the quantum trial. Thus this Court need not and should not attempt to resolve the conflicting testimony at this time.
CONCLUSION
For the foregoing reasons, the Court finds that the owner/operator of the M/V MISS ALLY is entitled to exoneration for any injuries sustained on September 17, 2000. The Court further finds that petitioner Lynchburg, as owner M/V WANDA LEE, is entitled to exoneration. Finally, Dixieland, as operator of the M/V WANDA LEE, was negligent and that negligence was within Dixieland's privity or knowledge. Accordingly, it is entitled to neither exoneration nor limitation.