Summary
In Conagra, the court addressed whether a fleet operator violated the Rivers and Harbors Act when it operated with a lapsed Corps permit.
Summary of this case from In re Magnolia Fleet, LLCOpinion
No. 97-1019, c/w 98-3829, Section "A".
July 7, 2000.
OPINION
This matter was tried to the Court, without a jury. Findings of fact and conclusions of law are hereby entered based upon the record, the evidence presented at trial, and the applicable law. To the extent a finding of fact constitutes a conclusion of law, and vice versa, it is adopted as such. To provide a background, the facts will first be stated very briefly.
Plaintiff Conagra, Inc. d/b/a Peavey Barge Lines ["Peavey"] owned a barge, the PV5989. That barge was delivered into the custody of defendant Weber Marine, Inc. ["Weber"], a barge fleeter. Weber inserted the PV5989 into a group of barges and moored the group to the Mississippi River shore with a wire rope, or "shorewire," attached to a fixture on the PV5989. That fixture broke, releasing the group of barges from the mooring.
Before the barges could be caught by Weber's boats, they drifted down-river and damaged a bridge owned by the State of Louisiana and a dock owned by IMC-Agrico, Inc. The issue at trial was whether the breakaway and consequent damages were caused by the negligence of Weber, by a defect in Peavey's barge, or by a combination of both.
The amounts of the damages suffered by the State and IMC-Agrico were stipulated, and those parties did not participate at trial.
In the findings of fact, the Court will first set out the basic facts of Weber's operation, then the facts related to the construction and history of Peavey's barge, and, finally, the facts regarding the breakaway itself.
Most of the material facts in this matter are not disputed, and no citations will be provided for those facts. The Court will provide citations or explanations for only the finding of a fact which was disputed.
FINDINGS OF FACT
Weber's Fleeting OperationA barge fleet is composed of barges which are being held in a fleeting facility and out of commerce for a period of time. In the fleet, barges are attached together in groups, or "tiers." Within each tier, the barges are arranged in rows, one row behind another. Each tier is moored by a shorewire from the river bank to a barge in the upstream row. The barges in the moored tiers comprise the fleet in the custody of the fleeter.
A permit from the United States Army, Corps of Engineers ["Corps"] is required for each fleeting facility on the River. The fleeting of barges is governed by regulations in the Code of Federal Regulations ("CFR"]. The United States Coast Guard inspects the fleets to insure compliance with the CFR. Coast Guard personnel regularly perform detailed and previously scheduled inspections of every facet of a fleeting operation. They also perform spot-checks, in which no advance notice is given and a sampling of the fleet is examined.
Weber operated two fleeting facilities across the River from each other near mile 167.9 Above the Head of Passes. Weber owned the facility on the east bank of the River, and had a Corps permit for that facility. That permit allowed Weber to place up to seven barges in a row.
Weber did not own the west bank facility, but leased space as needed from the owner, River Repair, Inc. However, Weber had installed the mooring facilities and Weber alone controlled the barges it fleeted in the west bank facility. Weber was solely responsible for the barges on the west bank. (Accordingly, the Court previously granted a motion for summary judgment presented by River Repair, dismissing it as a defendant in these actions.)
Unknown to Weber, River Repair did not have a current Corps permit for its facility. The permit had lapsed in 1984. The lapsed permit had provided that the rows of barges in the west back facility could be no more than six barges wide.
That fact was discovered only shortly before the trial of this matter.
Peavey's Barge
Peavey's barge PV5989 was ordered by Peavey from Jeffboat, Inc. ["Jeffboat"]. The issue herein as to that barge involves the barge's center bow kevel.
Also spelled "cavil" or "cavel" in some publications. The Court adopts the spelling used by the parties. "Kevel" is used herein generally to refer to such attaching fixtures, though there are other types. Similarly, the Court will not discuss mooring facilities dissimilar to the facilities at issue herein.
Kevels are fixtures on a barge to which lines are attached to secure the barges to each other in tiers or to moor them to the river bank. The kevels on the PV5989 included one at each corner of the bow and one in the center of the bow. With Peavey's approval, Jeffboat installed fabricated kevels on the PV5989. Those kevels were made by welding parts together and were purchased from a third-party suppler.
As opposed to another standard type, which is cast from one piece of steel.
The center bow kevel on the PV 5989 was shaped like a squat "T" with two vertical posts between the top cross-piece and the bottom deck plate. The top cross-piece extended beyond the posts to form "horns." The deck plate was welded to the barge's deck, securing the kevel to the barge.
Unknown to Jeffboat or Peavey, the PV5989's center bow kevel was incorrectly manufactured. Rather than properly welding the cross-piece to the top of the left, or port, post, the welder had inserted rods of welding material, "slugs," between the post and the cross-piece. "Slug welding" produces a weak join, and is unacceptable in any circumstance. That welding problem was not apparent to unaided vision, and neither Jeffboat nor Peavey performed any tests of the kevels which would have revealed the slug welding. Neither of them had any information about the strength of the kevel or the materials from which it was made. As will be seen infra, the undetected slug welding between the port post and the cross-piece was the major factor in the breakaway.
This was discovered only after the breakaway at issue.
Also, the kevel did not meet Jeffboats specifications in other particulars. As examples, other welds were only a quarter-inch thick, rather than a half-inch; and the center posts were made of half-inch thick rolled and (incompletely) welded tubing, rather than three-quarter inch mechanical tubing. [D. Ex. C-7 (Jeffboat design), and D. Ex. 61 (Report of expert Robert Bartlett of December 15, 1997).] These problems were also unknown to Peavey or Jeffboat.
On completion, the PV5989 was delivered to Peavey and put into commerce. Peavey was responsible for maintaining its barges. To accomplish this, Peavey depended largely on reports from companies which handled the barges. If a company reported that maintenance or repairs were needed, Peavey authorized and paid that company to perform the work. Several such repairs were made to the PV5989.
The known repairs are irrelevant herein. Peavey also had its own barge inspectors in the field, including two in Louisiana. But, they had no regular schedule of inspections. Peavey's records show that the PV5989 was inspected by Peavey inspectors only four times, all between March, 1994, and July, 1995.
In addition to the repairs of which Peavey knew, the center bow kevel on the PV5989 had been damaged and repaired by someone unknown at a time unknown before its delivery to Weber. After that repair, the port post of the kevel was bent slightly forward; there was a large amount of weld material at the base of the starboard post; and a tear through the metal underneath the starboard post was unrepaired. Those repairs, or lack thereof, did not contribute to the breakaway at issue, and would not have put an observer on notice that the kevel was deficient.
Testimony of Courtney Busch, Peavey's expert, and Robert Bartlett, Weber's expert.
The PV5989 was delivered into the custody of Weber in January, 1997.
The breakaway
In the spring of 1997, the River was at its highest level in several years. In the area of Weber's operations, the current in the main channel of the River was very swift; but the current was slight near shore. C.F.R. "high water" regulations were in effect. Because of the high water, the Coast Guard increased the number and frequency of its inspections. Coast Guard personnel did two full inspections of Weber's fleet in January, 1997, and a few problems were noted which were corrected. None of those problems were related to the breakaway at issue, which occurred in April, 1997. A spot-check was performed in March, 1997, after another, unrelated, breakaway and no problems were noted.
The high-water condition did not constitute an "emergency." An emergency is "a sudden, urgent, usually unforeseen occurrence or occasion, requiring immediate action." Random House College Dictionary, Revised ed. 1982. The steady rising of the River to a high level during the spring was not sudden, urgent or unforseen, and did not require immediate action. Furthermore, Weber did not report the high water condition to the Coast Guard as an emergency.
When the PV5989 was received by Weber, it was placed in the second tier, "Tier 2," in the west bank facility. In the course of the movement of barges into and out of Tier 2, the PV5989 became the second barge from the shore in the upstream row. At the time of the breakaway, Tier 2 was composed of three rows totaling seventeen barges — with seven in the first, and widest, row, six in the second and four in the third. There would have been less pressure from the river current on the tier had there been fewer than seven barges in the first row. All the barges in Tier 2 were loaded, and had a total weight of approximately 34,000 tons.
On April 1, 1997, because of changing river conditions, Weber decided to re-moor its tiers of barges. As a part of that task, the shorewire on Tier 2 to the shore was to be repositioned. A Weber fleet boat, the Miss Ginger, was assigned that task. The Miss Ginger approached the center of the downstream end of Tier 2 and was attached to it with lines. Three deckhands walked from the boat onto the tier and to the upstream row.
At that time, the shorewire was attached to the center bow kevel of a Peavey barge lying beside the PV5989. In the shipping industry, no distinction is made between the use of corner and center kevels for mooring. They are used as seems appropriate. Peavey never advised fleeters that center kevels should not be used to secure barge tiers to the shore.
There is a dispute in the testimony about whether the shorewire was on the inside barge, against the bank, or on the barge outside the PV5989. The Court need not resolve that irrelevant matter.
When Miss Ginger's deckhands reached the first row of Tier 2, the lead deckhand inspected the center bow kevel of PV5989 and saw nothing to prohibit its use. The Captain of the Miss Ginger was contacted by radio, and he applied power to push the tier slightly and create slack in the shorewire. Two deckhands lifted the shorewire from the kevel on the other Peavey barge and walked it to the center bow kevel of PV5989. The loop on the end of the shorewire was placed over the starboard horn of the cross-piece of the kevel. The shorewire was then passed behind the vertical posts of the kevel, and it ran to the shore under the port horn of the cross-piece.
The lead deckhand testified by deposition that the loop in the line was simply dropped over the entire kevel and around both posts. Deposition of Jerry Billiott, Jr pages 33, 35. But, a preponderance of the evidence shows that the line was arranged as stated here. See the testimony of the other deckhands. Jerry Billiott, Sr. and Jake Zeringue, and the report and testimony of expert Bartlett, regarding the physical evidence and testing after the breakaway the shorewire. That twisting caused the bottom of the starboard post to break away from the deck plate. The cross-piece and the starboard post fell into the River and were never recovered. All that remained of the kevel on the barge were the deck plate and the port post. The tier of seventeen barges was suddenly freed from its moorings and drifted out into the swift current of the River.
The deckhands advised Miss Ginger's Captain that they were finished. The Captain let the boat and the tier drift back, slowly putting the weight of the tier on PV5989's kevel. The deckhands stayed near the kevel for a few minutes to ensure there were no problems, and then returned to the Miss Ginger. The boat left Tier 2 on the west bank and went to a tier on the east bank to move its shorewire. About 45 minutes to an hour later, the center bow kevel of PV5989 failed.
Because of the manner in which the shorewire was placed on and around the kevel, the wire exerted a clock-wise twisting force on the kevel as a whole and a combination of forward and shore-ward forces on the port horn of the cross-piece. As stated supra, the cross-piece was improperly and weakly slug-welded to the port post. Because of that weak join, the cross-piece broke free of the port post and was lifted and twisted clock-wise by
At that time, Weber had five fleet boats working, all in its east bank fleeting facility. No Weber boat was within 500 yards of the barges on the west bank. Weber's boat crews heard a radio message about the breakaway. Every available Weber boat and boats from other fleets moved to intercept the drifting tier. Weber's fleet boats were designed and powered to move one or two barges in the River. They were not powerful enough to control an entire tier in the river current.
Testimony of Arthur Sargent. Weber's expert.
Before any boats reached the drifting tier of seventeen barges, the tier struck the State's bridge and broke into two sections. The larger section was not captured or controlled in the river current, but was pushed against the river bank and stopped further down river. A Weber fleet boat unsuccessfully tried to stop the other section of four barges. The four barges pushed that boat against the IMC-Agrico dock and almost caused the boat to capsize.
Deposition of Richard Bishop, pp 69-71.
CONCLUSIONS OF LAW
This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1333. Venue is proper in this district.In a maritime action, liability "is to be allocated among the parties proportionately to the comparative degree of their fault. . . ." United States v. Reliable Transfer, 421 U.S. 397, 95 S.Ct. 1708 (1975). Causation in a maritime action is highly specific to the circumstances of the case. Inter-Cities Navigation Corporation v. United States, 698 F.2d 1079, 1081 (CA5 1979). In the circumstances of this action, both Peavey and Weber are liable for the damages caused by the breakaway.
Liability of Peavey
A barge owner has a "continuing and nondelegable duty" to deliver a seaworthy barge to a fleeter. See Eagle Marine Industries, Inc. v. Valley Line Company, 541 F. Supp. 297, 301 (E.D.Mo. 1982) (Barge owner was partially liable for a breakaway when a barge's timberhead broke and released the wire securing the barge to a tug), aff'd as to barge owner's liability, rev'd on other grounds, sub nom. Consolidated Grain and Barge Company v. Archway Fleeting Harbor Service, Inc., 712 F.2d 1287 (CA8 1983). A barge is unseaworthy if a line-attaching fixture on it has a latent and not-apparent defect which renders the fixture incapable of bearing reasonably anticipated stresses. Ibid.
Peavey's barge, the PV5989, had a latent defect in the center bow kevel. It was improperly and weakly welded at one point (at least), and it broke apart at that point. The stresses put on the kevel could have been reasonably anticipated by Peavey. Though Peavey now suggests that center bow kevels should not be used for mooring tiers of barges, in fact that is a common occurrence and the center bow kevel of another Peavey barge had securely held the tier before the shorewire was moved to the PV5989.
The center bow kevel of the PV5989 had a latent defect, which rendered the PV5989 unseaworthy and caused the breakaway. Peavey breached its duty to provide a seaworthy barge.
Liability of Weber
A fleeter is responsible for the care of barges in its custody, and that includes a duty to ensure that the barges are adequately moored. John I. Hay Co. v. The Allen B. Wood, 121 F. Supp. 704, 708 (E.D. La. 1954), aff'd, 219 F.2d 237 (CA5 1955) The custodian of a vessel that goes adrift and causes damage is faced with a legal presumption that the vessel was adrift through the custodian's negligence, and the custodian "bears the burden of disproving fault by a preponderance of the evidence." James v. River Parishes, Inc., 686 F.2d 1129, 1132-1133 (CA5 1982). But, a fleeter is entitled to assume that a fixture on a barge delivered into its custody can withstand reasonable stresses. Eagle Marine, supra.
Peavey suggests that Weber was negligent in mooring the tier to the center bow kevel because that kevel had obviously been damaged and repaired, indicating a weakened condition. The kevel was not in an unrepaired and clearly defective condition. Weber was entitled to assume that the kevel was adequate for mooring the tier. Furthermore, the previous damage and repairs played no part in the breakaway. Weber was not negligent in using the center bow kevel of the PV5989.
Peavey contends that Weber was negligent in putting seven barges in the first row of the tier because a narrower row would have been subjected to less pressure from the river current. Before the shorewire was moved to PV5989's defective kevel, it had been seven barges wide and had been securely moored to another, seaworthy, Peavey barge. The width of the upstream row of the tier did not create unbearable stresses, for a seaworthy barge, which caused the breakaway. Weber was not negligent in putting seven barges in the upstream row.
Possible statutory or regulatory violations by Weber must also be considered. Pursuant to the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125 (1873), "if a party violates a statue which is designed to preclude an accident from occurring, that party bears the burden of proof in showing that its fault did not contribute to the accident." Sheridan Transportation Company v. United States, 897 F.2d 795, 797 (CA5 1990). The Pennsylvania rule "shifts the burden of proof as to causation to the statutory offender, but it does not ipso facto impose liability" on the offender. Otto Candies, Inc. v. M/V Madeline D, 721 F.2d 1034, 1036 (CA5 1983).
Peavey contends that Weber violated The Rivers and Harbors Act by operating its facility on the west bank without a required Corps permit, and by having an upstream row of seven barges when the lapsed permit for that facility permitted a row only six barges wide. As applicable herein, 33 U.S.C. § 403 and 409 provide that no structures affecting navigability of the river may be created except as authorized by the Corps; and "vessels or other craft" may not be moored in navigable channels so as to obstruct navigation. The Court need not address the issues of whether Weber might be liable for leasing spaces in an unpermitted fleeting facility, or for violating a lapsed permit. The Pennsylvania rule would not apply to those violations in any event.
The Pennsylvania rule applies to violations of statutes designed to prevent the incident which occurred. A Corps permit for a barge fleet, and the limitations in the permit, are meant to prevent obstruction of the river. American River Trans Co. v. Kavo Kaliaker SS , 148 F.3d 446, 449 (CA5 1998). The accident at issue was a barge breakaway. The requirement for a permit is not designed to prevent breakaways. Therefore, the Pennsylvania rule is inapplicable to the alleged statutory violations.
Next to be considered is a regulation. The C.F.R. provides that "Barges moored in tiers may be shifted to mooring devices if the shoreward barge at the upstream end of the tier is secured to at least one mooring device. . . ." 33 C.F.R. § 165.803 (e)(2). (Emphasis added.) Weber moored the breakaway tier by using the second barge from the shore, not the shoreward barge, however, the evidence shows that attaching the shorewire to a barge further from the shore pulls a tier closer to the shore and out of the swift current of the river. Therefore, the violation of this regulation actually reduced the pressure on the tier, while compliance with the regulation would have increased the pressure. Attaching the shorewire to a barge outside the shoreward barge did not contribute to the breakaway.
The final regulatory violation to be addressed does cast liability on Weber. "During high water . . . (i) Each fleet consisting of eight or more barges must be attended by at least one . . . towboat for each 100 barges or less; [and] (iii) Each towboat . . . must be . . . (D) within 500 yards of the barges. . . ." § 165.803(m)(2). That regulation is clearly directed toward the prevention of breakaways. When the breakaway occurred, all of Weber's boats were more than 500 yards away, across the River at Weber's east bank facility.
Weber attempted to show compliance with this regulation by offering testimony that the regulation requires only that a boat be within 500 yards of a fleet, and that Weber's east and west bank facilities were one fleet, so the boats working on the east bank satisfied the regulation. However, the regulation does not refer to a boat within 500 yards of a fleet. It requires a boat for each 100 barges or fewer, and that a boat be within 500 yards of "the barges" Weber violated § 165.803(m)(2).
Under the Pennsylvania rule, the burden was on Weber to prove that its violation "did not contribute to the accident." Sheridan Transportation, supra. Weber proved that a fleet boat could not have controlled the drifting tier once it was in the river current. But, that does not prove that a boat close enough to the tier when it broke away could not have prevented the tier from getting into the swift current at the beginning of the incident.
The evidence suggests that a fleet boat close enough to the tier might have prevented the tier's getting into the current. The Miss Ginger was able to bear the strain of the tier in the slight current near the shore when the shorewire was moved to the PV5989. After the breakaway, another boat was able to push a portion of the tier against the shore and hold it there. A fleet boat could control tiers of barges near the shore.
Weber did not prove that its violation of the 500-yard regulation did not contribute to the accident which the regulation was designed to prevent. Therefore, Weber bears some liability for the accident and the resultant damages.
Peavey's and Weber's portions of liability
Peavy breached its duty to provide a seaworthy barge. Peavey's defective kevel broke, actually causing the breakaway. Weber violated a regulation designed to prevent breakaway barges from getting into the River, and Weber did not prove that the violation did not contribute to the damages. Because Peavey's unseaworthy barge actually caused the breakaway, it is more liable than Weber for the damages.
The Court finds the degree of Peavey's fault was seventy percent; and the degree of Weber's fault was thirty percent.
DAMAGES
Except for one item, the amounts of the parties' damages have been stipulated as follows: $860,000 for the State of Louisiana; $43,000 for IMC-Agrico; $142,204.67 for Peavey; and $20,176.46 for Weber.
Peavey's undisputed fact 55. This figure is the net of $150,762.82 in total damages originally set out less $8,555.15 for the claims for loss of use of two barges, which claims were withdrawn by Peavey at trial.
Weber's undisputed fact 272, as amended.
The agreed damages of Weber are exclusive of the value of Weber's undamaged shorewire, which was removed from the fleeting facility and held for possible evidentiary use. Weber claims the value of that shorewire as an element of its damages. The undamaged wire was not lost to Weber and can be used by Weber as a shorewire, so its value will not be added to the stipulated amount.
CONCLUSION
In consideration of the foregoing findings of fact, conclusions of law, damages and allocation of fault, Peavey and Weber are liable in the following amounts:
Regarding the damages of the State of Louisiana, Peavey is liable in the sum of $602,000 and Weber is liable in the sum of $258,000;
Regarding the damages of IMC-Agrico, Peavey is liable in the sum of $30,100, and Weber is liable in the sum of $12,900.
Regarding the damages of Peavey, Peavey is liable in the sum of $99,543.27 and Weber is liable in the sum of $42,661.40.
Regarding the damages of Weber, Peavey is liable in the sum of $14,123.52, and Weber is liable in the sum of $6,052.94.
Regarding the damages for which Peavey and Weber are liable to each other, deducting the sum owed by Peavey to Weber from the sum owed by Weber to Peavey, the remainder is a liability owed by Weber to Peavey in the sum of $28,537.88.
IT IS ORDERED that the Clerk of Court is to prepare a judgment in accordance with the conclusions set out supra, and in accordance with the summary judgment previously granted to River Repair, Inc., dismissing all claims against that party.