Opinion
Civil Action No. 01-0007, Section "T"(5)
July 1, 2002
ORDER AND REASONS
This cause came for bench trial on a previous date between the Plaintiff, River Parishes Co., Inc. ("RIVCO"), and the Defendant, Adrienne Shipping, Inc. as owner of the M/V FLAG ADRIENNE ("FLAG ADRIENNE"). RIVCO and its subrogated underwriters seek recovery of repair damages and loss of use of the tug ST. JAMES, a harbor tug operated by RIVCO, allegedly caused by the tug ST. JAMES grounding while in the process of assisting the FLAG ADRIENNE. The Court, having heard the testimony at trial and having considered the record, the evidence, the applicable law and the memoranda submitted by the parties, now makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial.
1. This case arises out of an alleged grounding of the tug ST. JAMES, an inland harbor tug, while the tug was assisting the M/V FLAG ADRIENNE off ground in the Mississippi River Gulf Outlet ("MRGO") on December 31, 1999.
2. Plaintiff, River Parishes Company, Inc. ("RIVCO") is the owner and/or operator of the tug ST. JAMES who brought this action on behalf of of itself and its subrogated underwriters which have paid RIVCO's claims for repairs of damages to the tug ST. JAMES that are alleged to be a result of the events in the early morning hours on December 31, 1999 while the ST. JAMES was assisting the FLAG ADRIENNE.
3. Defendant, Adrienne Shipping, Inc., appears in this litigation restrictively, specially, and solely pursuant to Rule E(8) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, as claimant of the FLAG ADRIENNE, her engines, tackle, apparel, etc.
4. A letter of undertaking was posted as security for the FLAG ADRIENNE, and the vessel's owner, Adrienne Shipping, Inc., a foreign corporation not subject to the jurisdiction of this Court, has made a special appearance to defend the lawsuit with respect to the M/V FLAG ADRIENNE, in rem in accordance with Rule E(8). There are no other defendants in this lawsuit.
5. On December 30, 1999, the FLAG ADRIENNE was traveling outbound through MRGO. Log Extract, Exhibit 6.
6. At about 1930 hours, the FLAG ADRIENNE grounded approximately 600 feet north of the channel line. Exhibit 7; Testimony of Paul Vogt, Vol. I, p. 62, lines 6-9.
7. The draft of the FLAG ADRIENNE was 16.27 feet at the stem and 9.80 feet at the bow. Exhibit No. 5.
8. Despite various maneuvers with the ship's engine, the FLAG ADRIENNE was still hard aground, and at 2000 hours, the Associated Branch pilot on board the ship called for harbor tugs to assist the ship off ground. Statement of Facts, Exhibit 7.
9. The tugs ST. JAMES and the ASCENSION, operated by RIVCO, responded to the request for tug assistance and arrived in the area of the FLAG ADRIENNE at about 0200 on December 31, 1999. Statement of Facts, Exhibit No. 7. The reported draft of the tug ST. JAMES was approximately 13.5 feet. Testimony of Captain Jerry Canton, Vol. I, p. 99, lines 14-16.
10. At around 0200, Pilot Paul Vogt of the Associated Branch Pilots relieved the compulsory pilot onboard the FLAG ADRIENNE. Log Extract, Exhibit 6.
11. Pilot Vogt initially requested that the tug ST. JAMES get alongside the FLAG ADRIENNE in order to attach a hawser line off the stern of the ship do that the ST. JAMES could pull the ship back into the channel. Testimony of Captain Jerry Carlton, Vol. I, p. 100, lines 8-11, Dragram Position 41, Exhibit 10.
12. The ST. JAMES' master, Captain Jerry Carlton, reported that the ST. JAMES grounded and stopped while attempting to reach the stern of the FLAG ADRIENNE. Captain Carlton was unable to work the ST. JAMES in the area and reported this information to Pilot Vogt. Testimony of Captain Jerry Carlton, Vol. I, p. 100, lines 8-11.
13. In response to Captain Carlton's request, Pilot Vogt called the Pilot's boat back to the area to bring a messenger line to the ST. JAMES enabling the ST. JAMES to send a line to the FLAG ADRIENNE. Testimony of Captain Jerry Carlton, Vol. I, p. 100, lines 11-14.
14. The tugs ST. JAMES and ASCENSION were secured on hawser lines from the stern of the FLAG ADRIENNE. The tugs successfully pulled the FLAG ADRIENNE off ground and into the channel at 0505 hours. Exhibit 10, Testimony of Pilot Vogt, p. 67 lines 2-4, Testimony of Captain Jerry Carlton, Vol. I, p. 101, lines 2-3.
15. Although the FLAG ADRIENNE was floating in the channel, there was not enough room in the channel for the ship to use its own power and turn toward sea. Testimony of Pilot Vogt. Vol. I, p. 67, lines 8-13.
16. Pilot Vogt requested the tugs ST. JAMES and ASCENSION to pivot the ship around so that the ship would face outbound to continue its voyage. Testimony of Pilot Vogt, Vol. I, p. 67, hues 8-13; Exhibit 10.
17. The tugs pivoted the FLAG ADRIENNE to face outbound parallel n the channel; however, the ship landed too close to the bank and rested up against the sloped bank of the channel. Testimony of Pilot Vogt, Vol. I, p. 67, lines 8-13, Exhibit 10, Position No. 4.
18. The FLAG ADRIENNE was not moving and Pilot Vogt was unable to move the ship back into the middle of the channel because the stern of the ship was resting against the bank. Testimony of Pilot Vogt, Vol. I, p. 68, lines 7-17; p. 89, lines 8-10.
19. At this location, the depth of the water around the FLAG ADRIENNE was unknown. No soundings were taken and the tug ST. JAMES was not equipped with a fathometer. Testimony of Captain Jerry Carlton, Vol. I, p. 115, hues 3-11.
20. Pilot Vogt requested that the tug ST. JAMES move to the FLAG ADRIENNE's port bow. Captain Carlton reported to Pilot Vogt that he was unable to get in position on the bow of the ship because the ST. JAMES grounded. Testimony of Captain Jerry Carlton, Vol. I, p. 102. lines 24-25. p. 103. lines 1-2.
21. Pilot Vogt then asked the tug ASCENSION to get on the port bow and requested the ST. JAMES to attempt to get on the stern of the ship. The ASCENSION was able to position itself on the ship's bow with no problem. Testimony of Captain Jerry Carlton, Vol. I, P. 103, lines 6-7: Testimony of Royce Legg, Vol. I, P. 137, lines 5-7.
22. When Captain Carlton approached the stern of the ship, he was unaware of the water depth in the area. He made no objection, however, to maneuvering on the port quarter of the ship. Testimony of Captain Jerry Carlton, Vol. I, p. 115, lines 3-11, p. 105, lines 11-13.
23. Captain Carlton came in parallel to the stern of the FLAG ADRIENNE and Pilot Vogt gave the order to the tugs to start pushing the ship back in the channel. Testimony of Captain Jerry Carlton, Vol. I, p. 104, lines 17-20.
24. Plaintiff, RIVCO, alleged that the FLAG ADRIENNE engaged its engine which caused the stern of the ship to force the ST. JAMES closer to the shallow water. Captain Carlton admitted at trial, however, that any maneuver by the FLAG ADRIENNE produced very slow, almost imperceptible movement in the ship. Captain Carlton did not notice any movement by the ship until the ST. JAMES stopped moving. Testimony of Captain Jerry Carlton, Vol. I, p. 108, lines 13-17.
25. The Court finds that the FLAG ADRIENNE was unable to move from its position at that time Pilot Vogt testified at trial that the ship was resting against the bank; therefore there was 110 room for the stern to move farther out of the channel because the stern was leaning against the bank. Testimony of Pilot Vogt, Vol. I, P. 75, lines 19-20. In addition, Royce Legg, the captain of the ASCENSION, testified that the FLAG ADRIENNE was not moving while the ST. JAMES was working on the port quarter. Testimony of Captain Royce Legg, Vol. I, p. 139. lines 22-24.
26. Captain Carlton's statement prepared shortly after the incident describes that he had difficulty getting in position "when [he] tried to push straight in on the ship my stern would not come around." Exhibit 9 and Figure No. 1 attached thereto. The Court finds that the ST. JAMES was unable to get perpendicular to the ship, as per Pilot Vogt's instructions.
27. Roth Captain Canton and William Langston (the eyewitnesses on the ST. JAMES) testified to the fact that the first time the ST. JAMES experienced engine problems was when the ST. JAMES was laying parallel to the FLAG ADRIENNE. Testimony of Captain Jerry Carlton, Vol. I, p. 107, lines 7-11; Testimony of William Langston, Vol. II, p. 41, lines 4-9.
28. The Court recognizes that the ST. JAMES made many maneuvers while assisting the FLAG ADRIENNE, any of which could have caused the tug to run aground.
29. The trial testimony established that Captain Jerry Carlton was responsible for the safety of the ST. JAMES and was in a position to object to Pilot Vogt's request to work on the port quarter of the ship.
30. Several times prior to assisting the ship on the port quarter, Captain Carlton had objected to a particular request and Pilot Vogt accommodated Captain Carlton. Testimony of Captain Jerry Carlton, Vol. I, p. 100, lines 8-14; p. 103, lines 5-7.
31. Captain Carlton did not object to Pilot Vogt's request to work on the port quarter and neither he nor Captain Legg felt that Pilot Vogt put the ST. JAMES or the ASCENSION in the way of an\ danger. Transcript of Captain Jerry Carl/on, Vol. I. p. 118, lines 11-15: Transcript of Captain Royce Legg, Vol. I, p. 143, lines 6-21.
32. Once Captain Canton reported that the tug ST. JAMES was touching the bottom, Pilot Vogt told him to get out of that position. Testimony of Pilot Vogt, Vol. L p. 82, lines 19-21, Testimony of Captain Carlton, Vol. I, p. 108, lines 24-25, p. 109, line 1.
33. Tug captains are responsible for the safety of their own vessel. Captain Carlton testified that in order to protect the lug while navigating in shallow water, a captain must use caution and be familiar with the area that the vessel is operating in and know the location of the shallow spots. Testimony of Captain Carlron, Vol. I, p. 125. lines 10-16. Captain Carlton was not familiar with this area of the MRGO. Testimony of Captain Carlton, Vol. I, p. 100. Lines 15-18. He had no equipment on his vessel to monitor the water depth. Testimony of Captain Carlton, Vol. I, p. 100. Lines 6-11.
34. The Court finds that RIVCO failed to demonstrate any negligent act on behalf of the FLAG ADRIENNE.
CONCLUSIONS OF LAW
1. Plaintiff's case presents an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure.
2. This Court is vested with subject matter jurisdiction pursuant to 28 U.S.C. § 1333 and venue is proper in the Eastern District of Louisiana.
3. Adrienne Shipping Inc., as claimant to the M/V FLAG ADRIENNE, appears in this litigation restrictively, specially, and solely pursuant to Rule E(8) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. The claims against the Adrienne Shipping Inc., in personam were voluntarily dismissed pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. There are no other defendants in the lawsuit. The only claim to be decided is the claim against the MN FLAG ADRIENNE in rem.
4. General negligence principles guide the analysis of a maritime tort case. Remolcadores de
Malaga, S.A., et al v. United States of America, 1992 AMC 14 (E.D.La 1992); Consolidated Aluminum Corp, v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987), cert. denied, 486 U.S. 1055.
5. A tug owes a duty to its tow to exercise reasonable care and that degree of maritime skill which prudent navigators employ in performing similar services. Tidewater Marine Activities, Inc. v. American Towing Company. Inc., 437 F.2d 124 (5th Cir. 1970); Stevens v. White City, 285 U.S. 195, 52 S.Ct. 347 (1932); River Terminals v. Southwestern Sugar and Molasses Co., 274 F.2d 36 (5th Cir. 1960); "Negligence must be affirmatively shown and the burden of proving negligence rests upon those seeking to establish liability therefore." Stall McDermott v. The Southern Cross, 196 F.2d 309 (5th Cir. 1952); Hart v, Blakemore, 410 F.2d 218 (5th Cir. 1969).
6. In a contract of towage, the towing company undertakes that it possesses sufficient knowledge and skill to perform the contract safely; that it will use its best endeavors, skill and diligence for that purpose; that it will provide a seaworthy vessel, properly equipped and manned, and of sufficient capacity and power to perform the task undertaken, under conditions which are to be reasonably anticipated. A. Parks, The Law of Tug, Tow and Pilotage, 127 (3d Ed. 1994); United States v. LeBeouf Bros. Towing, 1978 AMC 2195, 2199 (ED. La. 1978).
7. The tug operator has a duty to supply a tug with sufficient power and proper and efficient equipment in light of conditions reasonably to be anticipated. Cranberry Creek Coal Co. v. Red Star Towing Transp., 33 F.2d 272 (2nd Cir. 1929), cert. denied, 280 U.S. 596 (2d Cir. 1929); El Salvador-Russel No. 18, 1966 AMC 1777, 248 F. Supp. 15 (SDNY 1966).
8. The failure of a tug's machinery or gear is within the class of cases where the facts are peculiarly within the knowledge of the tug owner who must explain the occurrence or be held liable for the resulting damages. Cranberry Creek Coal Co. v. Red Star Towing Transp., 33 F.2d at 274. The duty extends not only to disclosing what happened, but what was done to avoid, and what would have been necessary to prevent the failure of the tug's machinery or gear. Id.
9. A tug has a duty to navigate itself properly and prudently which requires knowledge of the nature of the navigable channel and so conducting its maneuvers so it can avoid a casualty. A. Parks, The Law of Tug, Tow, and Pilotage, 144-45 (3d Ed. 1994).
10. The master of a tug has a duty to know at all times the tug's position in the water with relation to known hazards through the use of charts, navigational aids, and fixed navigational markers. The tug may be held liable for failure to use available procedures to check for shoaling prior to proceeding when the tug operator is aware of the grounding risk in the area. SCNO Barge Line v. Sun Transportation, 775 F.2d 221, 224-25 (8th Cir. 1985).
11. A tug master is required to pay attention to the actions of the vessel undertow, and to foresee what effect those actions might have on the tug. It is not the duty of the compulsory pilot to warn the tug of danger arising from its own maneuvers. The tug has the duty to exercise those maneuvers as required under the circumstances and the tug master has the duty to look out for the safety of the tug. Remolcadores de Malaga, S.A. et al v. United States of America, 1992 AMC 14 (E.D. La 1992); Houston Towing Co. v. United States, 23 F.2d 528 (S.D. Tex. 1928)
12. A compulsory Pilot's decisions are not negligent if they are the decisions a competent compulsory pilot might reasonably have made under the same circumstances. Due care and skill are required of a compulsory pilot. United Fruit Company v. Mobile Towing and Wrecking Company, Inc., 177 F. Supp. 297, 302 (S.D. Ala. 1959); American Zinc Co. v. Foster, 313 Supp 671, 682 (S.D. Miss. 1970).
13. The court finds that the preponderance of the evidence shows that the FLAG ADRIENNE was not operated in a negligent manner.
14. Accordingly, judgment is entered in favor of the Defendant, Adrienne Shipping, Inc., and against the Plaintiff, River Parishes Co., Inc., dismissing the Plaintiff's claims with prejudice.