Opinion
Civil Action No. 01-933, SECTION M
October 3, 2002
ORDER AND REASONS
Plaintiff, American Commercial Barge Line LLC, the owner of M/V LILY M. FRIEDMAN and the Barge ACBL-2928, filed this suit against Alter Barge Line, Inc., the owner of M/V BEVERLY ANN, claiming that M/V BEVERLY ANN embarrassed the navigation of M/V LILY M. FRIEDMAN and caused it to ground its tow of barges. The matter came for trial on the merits without a jury and was taken under submission. After consideration of the evidence presented and the post-trial briefs submitted by both parties, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On April 14, 1997, with river conditions some of the highest ever encountered, M/V BEVERLY ANN was southbound in the Mississippi River with a tow of 20 barges and M/V LILY M. FRIEDMAN was northbound with a tow of 28 barges. At approximately 6:00 a.m. the captains of the two vessels agreed to a two-whistle passing in the area above the point on Profit Island. Captain Carl Evans, who was navigating M/V BEVERLY ANN, informed Captain Powell, of M/V LILY FRIEDMAN, that he would hold up along the left descending bank above the point of Profit Island. Captain Powell continued to navigate upriver and steered close to the left descending bank. Captain Powell testified that when he was approximately one mile from the point, he planned to steer to the center of the channel in order to properly round the bend.
Captain Evans testified that after he stopped along the bank, river conditions made it difficult for him to hold the stern close to shore which prompted him to top his tow around and hold up with the bow of his tow upriver rather than down river. He testified that as a courtesy, he called M/V LILY FRIEDMAN to advise Captain Powell of the situation and his plans. He testified that during this call, Powell told him that M/V LILY FRIEDMAN had already grounded. Captain Evans' statement prepared the day of the accident, stated "I notified M/V LILY FRIEDMAN that I was going to top around, he in return informed M/V BEVERLY ANN that he had hit ground with his boat and broken out of tow." (Plaintiff's Exhibit 2).
Powell testified, however, that it was after Evans called on the radio and stated that he was having difficulty holding his position, that Powell put his vessel in reverse to stop his tow, which resulted in the grounding. Powell testified that he did not want to proceed around a blind bend without knowing if Evans could control his tow. Powell testified that he decided it would be best to try to stop his tow rather than come around the point and risk collision.
Captain Powell prepared an incident report immediately after the accident which identifies the following as the causes of the grounding: (1) extremely high water, (2) an oversized eddy, (3) the absence of red buoys and (4) "all the starting and stopping due to M/V BEVERLY ANN's problem had [M/V LILY FRIEDMAN] out of shape and drifted into the eddy. (Plaintiff's Exhibit 9).
CONCLUSIONS OF LAW
This is an admiralty and maritime claim within the meaning of Rule 9(H) of the Federal Rules of Civil Procedure and jurisdiction is proper pursuant to 28 U.S.C. § 1333. When a moving vessel collides with a fixed object, there is a presumption that the moving vessel is at fault.The Oregon, 158 U.S. 186, 197 (1895). This presumption applies in cases where a vessel grounds its tow Mid America Transportation Company Inc. v National Marine Service, Inc, 497 F.2d 776 (8th Cir. 1974). Consolidated Grain and Barge Co. v. General Intermodal Logistics Corp., 548 F. Supp. 424, 428 (E.D.Mo. 1982). The presumption may be overcome, however, if the moving vessel demonstrates that the collision, or grounding as in this case, was caused by an act of God, the negligence of a third party, or the fault of the stationary object. See The Oregon, 158 U.S. 186, 197 (1895); Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794-95 (5th Cir. 1977).
Considering the evidence presented at trial, the Court finds that plaintiff did not come forth with sufficient evidence that the actions taken by M/V BEVERLY ANN in holding up above the island caused or contributed to the grounding of M/V LILY FRIEDMAN. The Court finds credible the testimony of Captain Evans who stated that at the time he notified Captain Powell that he was topping around, Captain Powell indicated that he had already grounded his tow. The Court finds that Captain Powell's statement that his stopping and starting due to M/V BEVERLY ANN's problems had him out of shape and drifted into the eddy, conflicted with his trial testimony that he attempted to stop his tow after learning of M/V BEVERLY ANN's topping around.
The Court finds that M/V BEVERLY ANN did not violate its passing agreement because M/V BEVERLY ANN held up along the left descending shore above the point of the island and thus the Pennsylvania Rule is inapplicable. The Court finds that Captain Powell's navigational errors and the extreme river conditions that day caused the accident.
Accordingly, for these reasons, the Court finds in favor of defendant and against plaintiff, dismissing plaintiff's claims with prejudice, each party to bear its own costs.