Opinion
Civil Action No. 99-3007 Section "T" (4)
July 31, 2001
ORDER AND REASONS
This cause came for bench trial on a previous date between the Plaintiff, M/G Transport Services, Inc. ("M/G Transport"), and the Defendant, Devall Towing Boat Services of Hackberry, Inc. ("Devall"), for damages arising from the sinking of the MG-511, a typical inland hopper barge owned by M/G Transport. 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 the sinking of Barge MG-511, a typical inland hopper barge, on October 2, 1998.
2. Plaintiff M/G Transport is the owner of Barge MG-511. The remaining Plaintiffs are the barge's hull insurers at the time of the sinking.
3. The Devall Defendants are the owners and operators of a barge fleet located on the Calcasieu River near Lake Charles, Louisiana.
4. The Devall Defendants also own and operate the JAY DEVALL and other towing vessels that tend the barges in the fleet and shuttle them back and forth between the Devall Fleets and nearby dock facilities.
5. Defendants Lake Charles Carbon Company (hereinafter "Lake Charles Carbon") and Reynolds Metals are the owners and operators of the Lake Charles Carbon dock. Said parties were the owners of the cargo of anode butts that was aboard the vessel at the time of the sinking.
6. Defendant Crowley American Transport, Inc. was the owner and operator of ocean-going tugs that were based at a facility on the same waterway as the Lake Charles Carbon dock.
7. Defendant Kinder Morgan was a "middle man" between Lake Charles Carbon and M/G Transport. Lake Charles Carbon hired Kinder Morgan to discharge Lake Charles Carbon's cargoes from ocean vessels in Darrow, Louisiana, load those cargoes into barges, and transport the barges to Lake Charles, Louisiana, where they were to be discharged by Lake Charles Carbon at its facility.
8. In turn, Kinder Morgan hired M/G Transport to provide barges and a towboat to tow the barges from Darrow to Lake Charles.
9. M/G Transport does not own towboats. Therefore, it hired a vessel to tow the MG-511 and other barges from Darrow to Lake Charles.
10. M/G Transport hired Devall to perform various fleeting and towing services while the barges were in Lake Charles. These services included fleeting the barges upon their arrival until Lake Charles Carbon called them up for discharge. Devall also shifted M/G Transport's loaded barges from Devall's fleets to the Lake Charles Carbon dock. Following discharge of the cargo from the barges, Devall retrieved the empty barges from Lake Charles Carbon, returned them to the Devall fleet and held them in the fleet until they were picked up by a line boat hired by M/G Transport. Trial Testimony of Toll McDaniel.
11. As part of its services to M/G Transport and its barges, Devall inspected the barges after they arrived at the fleet, and if necessary, provided pumping and minor repairs to the barges. Trial Testimony of George Landry; Deposition Testimony of Gordie Hicks at pages 15, 16, 18-21, 35-37, 39, 48, 49, 61; Deposition Testimony of Elmer Sullivan at page 21.
12. The MG-511 received its cargo of anode butts at Darrow, Louisiana in September 1998.
13. Prior to receiving this cargo, the MG-511 received repairs at St. John Cleaning Repair, Inc. on September 3, 1998. See Plaintiffs' Trial Exhibit No. 3, page 47.
14. Following these repairs M/G Transport's barge maintenance manager, Kenny Jones inspected the barge and found it suitable to receive cargo. Trial Testimony of Kenny Jones.
15. After loading, the MG-511 and five other M/G Transport barges laden with anode butts were placed in the tow of the towboat MARINE COURIER, which towed the barges to Devall's fleet in Lake Charles.
16. The loading of the barge and the towage to Lake Charles was accomplished without incident.
17. The MG-511 arrived at Devall's East Fleet at approximately 10:30 p.m. on September 21, 1998. See Plaintiffs' Trial Exhibit No. 7, page 1.
18. The following morning, at about 7:00 a.m., Devall's fleet maintenance man, George Landry, inspected the stem compartment and all wing tanks of MG-511 and found three to five feet of water in each tank. Trial Testimony of George Landry; Plaintiff's Trial Exhibit No. 16, page 2 (George Landry Written Statement).
19. Upon discovering the partially flooded tanks, Landry immediately placed a pump on the barge and began the process of dewatering the tanks. Trial Testimony of George Landry; See also Plaintiffs' Trial Exhibit No. 8 (Landry's Log of Pumping times).
20. With respect to Devall's duty to M/G Transport while in the custody and control of the MG-511, Devall's employees described Devall as M/G Transport's "eyes and ears" while M/G's barges were fleeted with Devall. Trial Testimony of George Landry; Deposition Testimony of Gordie Hicks, page 48.
21. The testimony of Devall's employees make it clear that from the time M/G Transport's barges arrive at the Devall fleet, through their discharge at Lake Charles Carbon Company, and up until the time the barge is picked up from the fleet by M/G Transport's designated line boat, Devall is charged with performing the necessary inspections and pumping to keep the barges safely afloat.
22. M/G Transport's barge was leaking when it arrived at Devall's fleet on September 21, 1998. However, Devall quickly discovered the barge's flooded tanks and took action to protect the barge. Devall's actions, combined with the testimony of its employees, convey without question Devall's duty to inspect M/G Transport's barges for leaking conditions, and to take appropriate action to protect the barges.
23. Devall's normal procedure when discovering a leaking barge is to put pumps on it and to pump to keep the barge afloat. Sometimes Devall will itself remove cargo from the barge to increase the freeboard. Devall also shingles barges as a temporary repair measure. According to Devall's dispatcher, Gordie Hicks, it is Devall's job to exercise their best efforts to keep the barge afloat. However, the exact course of action taken depends upon the severity of the leak. Deposition testimony of Gordie Hicks, pages 15-16, and 39.
24. Devall did not need to obtain M/G Transport's instruction before putting a pump on one of M/G's barges, and it was Devall's decision whether to keep a pump on a leaking barge that was going to be shifted to Lake Charles Carbon Company for discharge. Id., pages 18-19.
25. Devall's daytime dispatcher, Gordie Hicks, testified that on September 22, 1998, he informed both Lake Charles Carbon and M/G Transport that the MG-511 was leaking. Deposition of Gordie Hicks, pages 11-13. However, whether such a report was made is in dispute. Lake Charles Carbon's employees say they were never told of the barges's leaking condition. Trial Testimony of Garland Poole (Lake Charles Carbon's Green Mill Supervisor and Harbor Master) and John Ogea (Lake Charles Carbon's Night Supervisor); See also Deposition Testimony of Bill Blevins (Lake Charles Carbon Supervisor), page 9; Lake Charles Carbon Crane Operator Harold Doucet, page 64; Lake Charles Carbon Crane Operator Daniel Fontenot, Page 16.
26. Furthermore, M/G Transport's Toll McDaniel does not recall receiving a call or telefax from Hicks about the condition of the MG-511, but testified that if he had received such advice from Devall, he would have relayed the reported information to Lake Charles Carbon. Trial Testimony of Toll McDaniel.
27. While there is conflicting evidence on the issue, the weight of the evidence "supports the conclusion that Devall did not report the leaking problem to either Lake Charles Carbon or M/G Transport. The only evidence concerning this point is the testimony of Devall's daytime dispatcher, Gordie Hicks, and a handwritten note that Hicks says he sent to Toll McDaniel at M/G Transport. The Court finds such evidence unpersuasive for several reasons. First, all of the Lake Charles Carbon witnesses deny having received any such report from Devall. See paragraph 25 of these findings, supra. Second, Toll McDaniel has no recollection of receiving such a report and he did not have a copy of Hicks' fax in his file. Trial testimony of Toll McDaniel. Third, neither the original of the Hicks fax nor the fax transmission sheet have been produced. Finally, there was no evidence to show that the MG-511 was called up early in the discharge rotation as was common with reported leakers. Trial testimony of Garland Poole and John Ogea; Deposition Testimony of Bill Blevins, Page 16. In fact, the barge remained at the fleet an additional ten days before it was shifted to Lake Charles Carbon.
28. Accordingly, this Court finds that the preponderance of the evidence suggests that Devall did not report the barge's leaking condition to either Lake Charles Carbon or M/G Transport on September 22, 1998.
29. Furthermore, this Court finds that even if Hicks had reported a problem to Lake Charles Carbon and M/G Transport on September 22, 1998, this single notification would not have been sufficient to put either Lake Charles Carbon or M/G Transport on notice as to the extent of the MG-511's leaking condition. The day that Hicks claims to have told Lake Charles Carbon Company and M/G Transport of the barges problem was the first day that Landry (Devall's barge maintenance man) began pumping the barge. As Devall pumped the barge during the ten days following the barge's arrival at the fleet, no further reports were given to Lake Charles Carbon or M/G Transport with respect to the extent of the barge's leaking problem.
30. Additionally, the handwritten note that Hicks purports to have sent to M/G Transport regarding the MG-511's leaker status did not describe the extent of the leak or the extent of the pumping that Devall performed to maintain the barge afloat. At no time during the succeeding nine days that the MG-511 was in Devall's fleet did any of Devall's dispatchers follow-up with Lake Charles Carbon Company or M/G Transport to inform them of the amount of pumping Devall was performing. Deposition Testimony of Gordie Hicks, page 110; Deposition Testimony of Elmer Sullivan, page 18.
31. The evidence shows that Devall performed substantial pumping of the barge's tanks. Starting at the stern end, Devall's George Landry pumped each tank sequentially, each successive day, at least four hours per day, for the ten days the barge remained in Devall's fleet. Trial Testimony of George Landry; Plaintiffs' Trial Exhibit No. 8.
32. The pumping sequence was as follows:
September 22nd Stem and No. 4 September 23rd No. 3 September 24th No. 2 September 25th No. 1 September 27th Stern and No. 4 September 28th No. 3 September 29th No. 4 September 30th No. 2 October 1st No. 3
The Court notes that George Landry did not make an entry in his pumping log on September 26, 1998; however, Landry testified that he was confident that he pumped the barge on that day just as he had pumped the barge on the other nine days that it remained in Devall's fleet.
33. On several occasions Landry found that tanks that he previously pumped had refilled to their original level. For example, on September 22, 1998, he pumped the No. 4 tank for four hours. The next three days he pumped tanks 3, 2, and 1 in succession. On the fifth day Landry saw that tank No. 4 had refilled with water, so he pumped that tank again. He pumped the No. 4 tank yet a third time on September 29, 1998. See Plaintiffs' Trial Exhibit No. 8; Trial Testimony of George Landry.
34. Landry testified that Devall's night maintenance crew may also have pumped the barge's tanks but no records of the night crew were ever produced and the night crew could not recall any pumping they might have performed on the barge during the ten days the barge was at Devall's fleet. Trial Testimony of George Landry. Additionally, Elmer Sullivan, the Devall dispatcher who was on duty when the MG-511 departed the fleet for Lake Charles Carbon, did not know if the Devall night time maintenance man performed any pumping on the barge. Deposition Testimony of Sullivan, pages 12-13.
35. Landry testified at trial that he believed that if he stopped pumping the MG-511, the barge would have sunk. Trial Testimony of George Landry.
36. Despite the pumping activity conducted on the MG-511 by Devall during the ten day period beginning September 22nd and continuing to October 1st, Devall never made any follow up reports to Lake Charles Carbon or M/G Transport regarding the MG-511's leaker status. Deposition Testimony of Gordie Hicks, page 110; Deposition Testimony of Elmer Sullivan, page 18.
37. Gordie Hicks (the Devall daytime dispatcher who was on duty when the MG-511 entered the fleet) went off duty on September 27, 1998. Deposition Testimony of Hicks, page 17. Hicks did not know the extent of pumping that Devall's maintenance man, George Landry, performed on the MG-511. Deposition Testimony of Gordie Hicks, pages 63-64. Hicks was relieved by Elmer Sullivan, who came on duty on September 28, 1998. Deposition Testimony of Sullivan, pages 15-16.
38. During the time the MG-511 was in the Devall fleet, Devall was very busy and as a result, the workers "didn't communicate a whole bunch." Deposition Testimony of Gordie Hicks, pages 93-94.
39. Sullivan knew that George Landry had been pumping the MG-511 since the time it arrived in the fleet. Deposition Testimony of Sullivan, page 11. Despite this knowledge, he never discussed the barge's leaking condition or the extent of the pumping performed by Devall, with either Lake Charles Carbon or M/G Transport. Id. page 18, 65-66.
40. Sullivan was not told how much water was found in the barge or the details of the pumping performed by Landry or others at Devall. Deposition Testimony of Elmer Sullivan, pages 11, 12-13.
41. On October 1, 1998, Lake Charles Carbon called Devall and requested that the MG-511 be brought to the Lake Charles Carbon dock for discharge. Trial Testimony of John Ogea.
42. At about 7:10 p.m. Devall's towboat JAY DEVALL arrived at the Devall East Fleet to pick up the MG-511. Upon doing so the boat's captain, Michael Morvant, saw a pump on the barge. Morvant testified that the pump was not running, that the barge had "good" freeboard, and that his crew inspected all the barge's internal compartments and found no water in the tanks. Trial Testimony of Michael Morvant.
43. Accordingly, the crew of the JAY DEVALL contacted Devall's dispatcher, Elmer Sullivan, to determine whether to leave the pump on the barge while it was at Lake Charles Carbon. Trial Testimony of Michael Morvant.
44. Sullivan ordered the pump removed from the barge based on Morvant's advise that the water level in the barge's tanks was "fine." Trial Testimony of Michael Morvant; Deposition Testimony of Sullivan, pages 17-18. The crew of the JAY DEVALL removed Devall's pump from the MG-511 before delivering the barge to Lake Charles Carbon.
45. While Michael Morvant testified that there was not water in the barge's tanks when his crew inspected the MG-511's wing tanks, the Court finds that evidence to be unpersuasive based on the overwhelming evidence indicating that the MG-511's tanks continued to fill with water throughout the ten days it remained at Devall's fleet. Morvant never looked into the tanks himself and therefore, has no personal knowledge of the condition of the tanks. Furthermore, Morvant's testimony about the condition of the tanks is completely inconsistent with the testimony of George Landry, who inspected and pumped the barge daily and who consistently found three to four feet of water in the barge's tanks. Trial Testimony of Landry. Additionally, according to the JAY DEVALL's log, the tug was at the fleet for only five minutes. See Plaintiffs' Trial Exhibit No. 10. During this short interval the crew had to perform several tasks to secure wires and lines to make up the tow with the M/G-511 for the trip to Lake Charles Carbon. After taking all of this into consideration, the Court finds that Landry's observations over the ten day period are more credible than the less-than-five minute observation of Morvant's crew. Therefore, the Court finds that it is more likely than not that the MG-511 had water in its tanks prior to being towed to Lake Charles Carbon's dock.
46. Both of Devall's dispatchers testified that if they knew that a barge had three feet of water in its wing tanks, they would have ordered Devall's fleet boat to stand by with a pump on the barge while it was discharged. In this case, neither Hicks nor Sullivan, who were the Devall employees empowered with the decision of whether to remove a pump from a barge, knew how much water was in the MG-511's tanks when she was shifted to Lake Charles Carbon. Trial Testimony of Michael Morvant; Deposition Testimony of Gordie Hicks, pages 30, 70-72, and 115-116; Deposition Testimony of Elmer Sullivan, pages 39-40 and 58.
47. This Court finds that the failure of the JAY DEVALL's crew to determine accurately the barge's condition prior to towing the MG-511 to Lake Charles Carbon and to take the appropriate action with respect to the water in the barge's wing tanks constitutes negligence, which was a contributing cause of the sinking.
48. When Devall's dispatcher, Elmer Sullivan, called Lake Charles Carbon to advise that the MG-511 was on its way to Lake Charles Carbon, Sullivan did not report any problems with the barge to the Lake Charles Carbon supervisor, nor did he advise Lake Charles Carbon that he ordered Devall's tug to remove a pump from the barge prior to dispatching it to Lake Charles Carbon. Deposition Testimony of Sullivan, page 44.
49. The JAY DEVALL arrived with the MG-511 at Lake Charles Carbon's dock at 8:00 p.m. on October 1, 1998. By 9:15 p.m. the barge was spotted and the JAY DEVALL was underway back to Devall's fleet. See Plaintiffs' Trial Exhibit No. 10.
50. The crew of the JAY DEVALL did not inform Lake Charles Carbon's dockman that the barge arrived at Devall's East Fleet with three to four feet of water in her wing tanks, that the barge was continuously pumped since her arrival at the East Fleet, or that the JAY DEVALL's crew removed the pump from the barge before delivering her to Lake Charles Carbon Company. Trial Testimony of Michael Morvant and John Ogea; Deposition Testimony of Daniel Fontenot (Lake Charles Carbon's crane operator who met the barge and assisted tying up the barge at the dock). page 16.
51. The Court finds that Devall's failure to notify Lake Charles Carbon upon the MG-511's arrival at the Lake Charles Carbon dock that the barge was a "leaker" constitutes negligence, which was a contributing factor in the sinking of the barge.
52. The barge sank within approximately twenty hours of its arrival at Lake Charles Carbon. In that interval, two shifts of Lake Charles Carbon's workers discharged cargo from the barge. The night shift began discharging butts from the barge at about 10:30 p.m. on October 1, 1998. Except for the worker's break periods, the discharge continued until the end of the night shift at about 7:00 a.m. on October 2, 1998.
53. The day shift crane operators, Harold Doucet and Jerry Sonnier. testified that part of their shift was spent repairing a crane and performing other duties, which resulted in their shift discharging the MG-511 for only two hours on October 2, 1998. Deposition Testimony of Doucet, pages 7-8, and 27; and Sonnier, pages 40-41.
54. Because neither Elmer Sullivan, the Devall dispatcher on duty, nor the crew of the JAY DEVALL told Lake Charles Carbon of the MG-511's leaking condition, Lake Charles Carbon discharged the barge in the customary manner. This procedure involved digging cargo from the stem of the barge first and then moving to the bow end of the hopper. This procedure results in the barge having a trim that was slightly down by the head.
55. During the Lake Charles Carbon workers' meal break on the afternoon of October 2, 1998, the barge sank at Lake Charles Carbon's dock with no eyewitnesses.
56. While there are some claims that the Lake Charles Carbon workers did not properly unload the MG-511, this Court finds that the weight of the evidence suggests that Lake Charles Carbon's workers performed the unloading process in the normal and customary manner. Accordingly, this Court finds that Lake Charles Carbon's crew was not negligent in unloading the MG-511.
57. Rather, the Court finds that Devall proximately caused the sinking of the MG-511 through the following negligent actions: the failure of Devall to adequately report the leaking problem to either Lake Charles Carbon or M/G Transport while the barge remained at the Devall fleet; the failure of Devall's barge maintenance personnel, dispatchers, and fleet boat crews to sufficiently communicate barge conditions and pumping details; the failure of the JAY DEVALL crew to assess accurately the amount of water in the MG-511's tanks and to take the appropriate precautions prior to towing the barge to Lake Charles Carbon's dock; and the failure of the JAY DEVALL's crew to notify Lake Charles Carbon at the time of delivery that the MG-511 was a leaker and that they had removed a pump from the barge prior to delivering it to Lake Charles Carbon.
58. While one of the Lake Charles Carbon workers claims to have heard high revving engines of a passing ocean-going tug bearing the colors of Crowley Maritime, none of the witnesses saw the wake of this vessel hit the barge. The Court finds that there is insufficient evidence to substantiate placing any fault on the passing tug.
59. With respect to M/G Transport's duty in the present case, as the owner of the M/G-511, M/G Transport was responsible for the barge's seaworthiness. That is, M/G Transport was charged with providing a vessel that was reasonably fit to carry the particular cargo that it agreed to transport.
60. At the time of its sinking, the M/G-511 had been in service for 20 years and was approaching the end of its usual life span. Furthermore, the M/G-511 had an extensive history of repairs.
61. Immediately prior to being loaded with the cargo of anode butts, the M/G-511 was drydocked for repairs. See trial testimony of Kenny Jones (Barge Superintendent for M/G Transport), trial testimony of Toll McDaniel (Barge Dispatcher for M/G Transport). Toll McDaniel testified that a significant amount of water had to be pumped from the M/G-511 in order to prepare the barge for loading. In fact, McDaniel even criticized Kinder Morgan for loading this barge with anode butts in light of the barge's condition. Id.
62. The MG-511 was inspected by two marine surveyors after the sinking. Robert N. Hanson of Gulf Coast Surveyors reported that the barge had a prior history of void leaks. See Deposition of Robert N. Hanson, page 18. During his survey of the barge after the sinking, Hanson specifically found 16 hull leaks and 26 hopper leaks in the MG-511. See Deposition of Robert N. Hanson, Exhibit 2, page 17. Hanson further found "near paper-thin plate thickness in two (2) areas viewed during the damage survey." Id. Hanson concluded that the aforementioned damage preceded the cargo recovery and salvage of the barge. See Deposition of Robert N. Hanson, page 60; see also, id., Exhibit 2, page 17. Hanson further concluded that such evidence indicates that the MG-511 was "not in suitable condition." Id. That is, the barge was not suitable for transporting cargo of anode butts, or any other cargo, in September 1998. See Deposition of Robert N. Hanson, pages 22, 73.
63. The second Marine Surveyor to inspect the MG-511 after the sinking, Kyle Smith, reported that "the numerous splits, cracks and fractures in the hull and the hopper of the barge existed prior to the sinking," as evidenced by Devall's logs. Deposition of Kyle Smith, Exhibit 1, page 5. Furthermore, Smith testified that the "barge was in bad — bad shape prior to the sinking." Id. at page 7. Smith concluded that in his opinion as a Certified Marine Surveyor "the barge `MG-511' was not fit for its intended route and services." Id. at pages 7-8; Exhibit 1, page 5.
64. After considering the aforementioned testimony regarding the extensive pumping performed on the MG-511 while at Devall's fleet, the fact that the barge sank in fair weather and calm waters, and the conclusions of the Certified Marine Surveyors with regard to the condition of the MG-511, this Court is of the opinion that the MG-511 was unseaworthy at the time that it sank. This Court finds that the overwhelming weight of the evidence supports the notion that the MG-511 was unfit for transporting the cargo of anode butts in September 1998. Furthermore, this Court finds that said unseaworthiness was a proximate cause of the sinking of the MG-511.
65. Following the sinking of the MG-511, M/G Transport arranged and paid for the salvage of the cargo and the barge. Once raised, the barge was transported to Halter-Calcasieu Shipyard to determine the extent of damage and to ascertain if the barge was a constructive total loss. The consensus among the numerous surveyors who inspected the barge was that the cost of repairs would exceed the sound fair market value and therefore, the barge was a constructive total loss.
66. The court finds that the fair market value of the MG-511 at the time of the sinking was $95,000. This value is supported by the testimony of James Pritchard of Merrill Marine Services, which the court found to be credible. It is further supported by the opinion of Devall's surveyor, Kyle Smith, who opined that the barge's fair market value was $125,000. See Deposition of Kyle Smith, Exhibit 1, page 4.
67. M/G Transport's President, Jack Lordo, testified that it was M/G's practice to insure is equipment at less than market value as a method of self insuring a portion of its risk. Based on this explanation, the Court is satisfied that the barge's insured value of $50,000 does not reflect fully the barge's fair market value.
68. The costs incurred by M/G Transport to salvage the cargo and remove the sunken barge from Lake Charles Carbon's berth can be summarized as follows:
Kelly's Dive Service: Diver's to assist with salvage of cargo and barge. $ 3,755.00
Triple A Construction, Inc.: Barge-mounted crane to salvage cargo. $ 7,439.00
Continental Dredging, Inc.: Barge-mounted crane to salvage cargo. $ 32,670.00
Patton-Tully Transportation: Raising sunken barge hull. $ 77,500.00
Marine Inland Transportation M/G-T Services, Inc.: Towage service from Lake Charles Carbon to Shipyard for survey and from Shipyard to scrap yard. $ 2,500.00
Halter-Calcasieu, L.L.C.: Expense to drydock barge for survey. $ 3,460.00
Merrill Marine Services, Inc.: Survey fees related to salvage operation and barge damage survey. $ 11,086.23
Total Expenses $138,410.23
69. The court finds that the aforementioned expenses incurred by M/G Transport are fair and reasonable and were necessarily incurred as a result of the sinking. See the April 20, 1999 report of surveyor Steven King, introduced into evidence as Plaintiffs' Exhibit 20.
70. M/G Transport sold the damaged hull to the highest bidder for the price of $8,000.
71. Lake Charles Carbon reimbursed M/G Transport $25,000 of the Patton-Tulley barge salvage cost in order to expedite the raising of the hull.
72. The total loss to M/G Transport, inclusive of the value of the damaged barge and the extra expenses, but reduced by the $8,000 salvage sale and the $25,000 reimbursement from Lake Charles Carbon, was $200,410.23.
CONCLUSIONS OF LAW
1. Plaintiffs' 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.
3. Prior to the trial of this action, Plaintiffs settled their claims against Lake Charles Carbon, Reynolds, Crowley and Kinder Morgan. In addition, Lake Charles Carbon settled its counterclaim for lost cargo and extra expenses with all counterclaim-defendants. As a result of the settlement, the only claim that remains to be decided by the court is Plaintiffs claim against Devall.
4. A fleet operator is a kind of limited bailee whose liabilities depend on the obligations he has undertaken in his contract with the owners of vessels entrusted to his care. Noonan Construction Company v. Federal Barge Lines. Inc., 453 F.2d 637, 640 (5th Cir. 1972); John I. Hay Co. v. The Allen B. Wood, 121 F. Supp. 704 (E.D.La. 1954), aff'd sub nom., Martin Oil Service v. John I. Hay Company. 219 F.2d 237 (5th Cir. 1955).
5. The operator of a barge fleeting facility, as a bailee, has a duty to exercise reasonable care and maritime skill in the care of barges entrusted to it. Noonan. supra at 641; Monsanto Company v. Edwards Towing Corp., 318 F. Supp. 13 (E.D. Mo. 1969) (citing Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941)).
6. When one voluntarily assumes a duty, he is bound to perform it with care. If he performs this duty negligently, then he is liable for damages resulting from such negligence. Stauffer Chemical Company v. Brunson, 380 F.2d 174, 182 (5th Cir. 1967), aff'd after remand, 409 F.2d 1327 (5th Cir. 1969).
7. "Part of the fleeter's obligation entails recognizing when such barges become in danger of capsizing or sinking and taking available measures for the safety of the barge. Noonan, supra at 641.
8. The duty to exercise reasonable care and maritime skill is not lessened by the fact that the vessel in question was unseaworthy, if the bailee of the vessel is aware of or placed on notice of the vessel's condition. See Gulf Ware Towing Company v. V.J. Mitchell, 176 F. Supp. 636, 640 (E.D.La. 1959).
9. In the present case, Devall became aware of the barge's leaking condition and initially took the proper measures to maintain the barge in a safe condition. However, through poor communication between its maintenance, dispatching, and fleet boat personnel, Devall stopped the pumping that was necessary to keep the barge safely afloat. Furthermore, it failed to properly notifying Lake Charles Carbon or M/G Transport as to the extent of the pumping activity conducted on the MG-511 while at the Devall fleet. In addition, the crew of Devall's fleet boat failed to notify Lake Charles Carbon's dock personnel of the pumping activities that took place on the MG-511 prior to being towed to the Lake Charles Carbon dock. As stated above, these actions and/or inactions of Devall constitute breaches of its duty to exercise reasonable care and maritime skill while in the care and custody of the MG-511. See Flowers Transportation Inc. v. MN Peanut Hollinger, 526 F. Supp. 611, 615-16 (E.D.La. 1980). Furthermore, this Court finds that such negligence was a proximate cause of the sinking of the MG-511.
10. The owner of a barge is responsible for the seaworthiness of his vessel. See Federal Barge Lines. Inc. v. Granite City Steel, 608 F. Supp. 142, 147 (5th Cir. 1985); Consolidated Grain Barge Co. v. Marcona Conveyor Corp. et al., 716 F.2d 1077, 1081 (5th Cir. 1983).
11. The warranty of seaworthiness ensures that the vessel in question is reasonably fit to carry the particular cargo that it has agreed to transport. See id.
12. Generally, the owner of a barge is at fault when its vessel is unseaworthy. See Ohio River Co. v. M/V Irene Chotin, 238 F. Supp. 114, 118 (E.D.La. 1965).
13. The fact that a barge sinks in fair weather and clam waters is not prima facie proof that the barge is unseaworthy; rather, it is merely one of several factors for courts to consider. See Federal Barge Lines. Inc., supra at 147-48.
14. In the present case, this Court finds that a preponderance of the evidence indicates that the MG-511 was unseaworthy at the time that it arrived at the Devall fleet laden with a cargo of anode butts. Furthermore, this Court finds that said unseaworthiness was a proximate cause of the sinking of the MG-511.
15. Furthermore, because there exists substantial evidence indicating that Devall improperly handled the MG-511 while in the care and custody of said vessel, M/G Transport will not be held liable for all damages incurred as a result of the barge's sinking.
16. After a thorough review of all of the evidence, this Court finds that the sinking of the MG-511 was caused by the barge's unseaworthiness coupled with Devall's breach of its duty to exercise reasonable care and maritime skill while in the care and custody of the MG-511.
17. The Court finds that the negligence of the Plaintiff, M/G Transport, in providing an unseaworthy barge contributed to the sinking in the proportion of 50%.
18. The Court finds that the negligence of the Defendant, Devall, in breaching it's duty to exercise reasonable care and maritime skill while in the care and custody of the MG-511 contributed to the sinking in the proportion of 50%.
19. The Court finds that there is insufficient evidence to prove negligence on the part of Lake Charles Carbon.
20. The Court finds that there is insufficient evidence to prove negligence on the part of Crowley Maritime.
21. Accordingly, the Plaintiff is entitled to recover 50% of the damages of $200,410.23 from Defendant Devall.
22. Under maritime law, the awarding of prejudgment interest is the rule rather than the exception, and in practice, is well-nigh automatic. A trial court has the discretion to deny prejudgment interest only where peculiar circumstances would make such an award inequitable. Peculiar circumstances may be found where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exist in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award is substantially less than the amount claimed by plaintiff. In the Fifth Circuit, prejudgment interest is ordinarily awarded from the date of the loss to ensure that the injured plaintiff is compensated for the use of funds to which the plaintiff is entitled, but which the defendants had the use of prior to judgment. C. Itoh Co. (America) v. M/V Hans Leonhardt. 719 F. Supp. 479, 511 (E.D.La. 1989) (quoting Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir. 1986)).
23. None of the circumstances surrounding Plaintiffs' claim warrant the denial of prejudgment interest in this case.
24. Accordingly, the Clerk of Court is instructed to enter judgment in accordance with this opinion in favor of M/G Transport Services, Inc., and against Devall Towing Boat Services of Hackberry, Inc., in the amount of $ 100,205.12, together with prejudgment interest at the judicial rate from the date of the loss to the date that judgment is entered.