The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
IN RE: PLIMSOLL MARINE, INC. NO: 19-14757
SECTION: “H”
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a limitation action brought by Plimsoll Marine, Inc. (“Plimsoll”)
as owner of the M/V OKALOOSA (“the OKALOOSA”), arising out of an allision
on the Mississippi River on June 30, 2019 with water intake dolphin structures
owned by Claimant the City of Gretna (“Gretna”). Plimsoll has filed a Third-
Party Complaint against Empire Stevedoring, Inc. (“Empire”) and the Board
of Commissioners of the Port of New Orleans (“the Port”) and has tendered
them to Gretna under Federal Rule of Civil Procedure 14(c), alleging that they
are at fault for the allision under general maritime law.
This case proceeded to a bench trial on March 9 through 11, 2022.
Having considered the evidence admitted at trial, the arguments of counsel,
and the pre-trial briefing, this Court makes the following findings of fact and
conclusions of law. To the extent a finding of fact constitutes a conclusion of
law, and vice versa, the Court adopts it as such.
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FINDINGS OF FACT
1. The Port is the owner of First Street Wharf (“the Wharf”), which was the
subject of a lease agreement between the Port and Empire, dated October
29, 2014.
2. At all relevant times, Empire was the lessee of the Wharf and its
exclusive operator. It did not, however, enjoy exclusive use of the Wharf,
and other vessels were permitted to tie up at the Wharf as well.
3. As lessee of the Wharf, Empire was obligated to maintain it as a public
maritime cargo terminal.
4. At all relevant times, Plimsoll was the owner of the M/V OKALOOSA, a
U.S. flagged inland towing vessel, bearing official no. 560924 with an
overall length of 66.4 feet.
5. At all relevant times, Calvin Williams was the Captain of the
OKALOOSA.
6. At all relevant times, Gretna was the owner of three water intake
defender dolphin structures across the Mississippi River from the Wharf.
Procedural Background
7. Following an incident involving the OKALOOSA on June 30, 2019,
Plimsoll initiated this limitation action seeking exoneration from or
limitation of liability pursuant to the Shipowner’s Limitation of Liability
Act, 46 U.S.C. § 30501 et al.
8. Gretna was the only party to file a claim in that limitation action
claiming that the water intake dolphins owned by Gretna had been
damaged by the OKALOOSA as a result of the vessel alliding with them.
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9. Plimsoll then filed a Third Party Complaint against Empire and the Port
pursuant to Federal Rule of Civil Procedure 14(a) and 14(c), asserting
that Empire and the Port are liable under general maritime law for any
damage to the OKALOOSA and for any damage caused to Gretna.
Plimsoll contends that Empire and the Port breached their duty to
provide a safe berth.
The Incident
10. On Sunday, June 30, 2019, employees of Empire unloaded cargo from a
cargo ship onto two barges that were located on the river side of the cargo
ship. Upon completing the loading of the barges, Empire contacted the
fleet to release the barges to their care. Someone from dispatch with the
fleet requested permission to hold the barges at the Wharf, which
Empire granted. Around 1330, the Old Glory tug delivered an empty
barge to the cargo ship and moved the two full barges to the Wharf.
Deckhands on the Old Glory tied the barges to the Wharf. Empire’s
employees continued unloading the cargo ship into the empty barge.
11. At about 1930, Empire again contacted the fleet to request that the
barges be picked up from the Wharf. The OKALOOSA was dispatched to
pick up the two barges from the Wharf.
12. Upon approaching the Wharf, Capt. Williams noticed a line tied to
bollard #21 and hanging into the water approximately 100 feet upriver
from where the OKALOOSA tied up. Capt. Williams could not see how
long the line hung underneath the water.
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13. At approximately 2245, while attempting to depart the Wharf with the
two barges in tow, the OKALOOSA caught a line in its starboard
propeller, which stopped the starboard engine.
14. The line that fouled the OKALOOSA’s propeller was attached to the
Wharf, preventing the vessel from navigating away from the dock and a
nearby ferry.
15. The line that caught the OKALOOSA’s propeller was under the water
line. Because the incident occurred at night, the Captain could not see
hazards beneath the water. The hazard was therefore hidden and not
open and obvious.
16. Capt. Williams did not act negligently in failing to remove the line from
the bollard prior to the incident or steer clear of it where the hazard
presented by the line was hidden beneath the water.
17. As a result of her starboard engine being disabled, the OKALOOSA lost
power and steerage. After he ordered the crew to evacuate the vessel, the
Captain moved out onto the barges for his own safety.
18. Prior to evacuating the wheelhouse, the Captain was attempting to
maneuver the OKALOOSA away from the dock and adjacent ferry. When
he evacuated the wheelhouse for his own safety, he left the port engine
in gear.
19. The incident was an emergency situation.
20. Capt. Williams did not act negligently in leaving the vessel in gear when
he evacuated the wheelhouse. He exercised reasonable care given the
emergency situation.
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21. At some point, the OKALOOSA and the two barges in tow broke away
from the Wharf and began to drift across the Mississippi River.
22. The OKALOOSA drifted to the Gretna water intake facility and
contacted some or all of the defender dolphins protecting the water
treatment pump.
23. No party was disciplined as a result of the incident.
The Line
24. Following the incident, a part of a ship line was removed from the
starboard propeller of the OKALOOSA.
25. Both the portion of the line removed from the OKALOOSA propeller and
the portion removed from the Wharf bollard were examined by Kyle
Smith Marine Surveying, Inc. and Bartlett Engineering and tested by
Akron Rubber Development Laboratory.
26. The line removed from the bollard had a manufactured spliced eye on
one end and was tied in a bowline knot at the other with no measurable
tail sticking out past the knot.
27. The line removed from the OKALOOSA’s propeller had a manufactured
spliced eye on one end and was frayed on the other.
28. This Court found the expert testimony of Robert Bartlett, an expert in
engineering and material science in the field of maritime, credible and
compelling. Mr. Bartlett opined that the line segments matched in size,
material, construction, and internal and external coloring. He opined
that the segments were pieces of the same line that broke at the bowline
knot.
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29. Based on Mr. Bartlett’s testimony, this Court finds that the line removed
from the bollard and the line removed from the OKALOOSA were pieces
of the same line.
30. Accordingly, the line hanging from bollard 21 of the Wharf caused the
OKALOOSA’s propeller to stall, which ultimately resulted in damage to
Gretna’s defender dolphins.
Liability
31. The line was left on the bollard by an unknown third party. The rope did
not belong to Empire and was not placed on the Wharf by Empire.
32. Empire’s employees regularly remove trash—such as a ship line left on
the bollard—from the Wharf and were trained to do so. Empire’s
employees would have removed the line from the bollard if they had seen
it.
33. Empire has two employees who clean and sweep the Wharf all day
Monday through Friday.
34. The Wharf was cleaned on Friday, June 28, prior to closing for the
weekend.
35. The Wharf is closed on the weekend and was therefore closed at the time
of the incident.
36. There was no evidence that the ship line was placed on the bollard prior
to the closing of the Wharf for the weekend.
37. Despite being closed, the Wharf was still used by vessels to tie up during
the weekend.
38. Empire’s employees were not working on the Wharf on the day of the
incident. They were, however, unloading the cargo ship, which was
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moored on the farthest end of the Wharf from where the OKALOOSA
picked up the barges.
39. No Empire employees were working or present in the area where the
rope was hanging from the bollard between close of business on Friday
and the time the incident occurred on Sunday.
40. No one from Empire saw the rope on the bollard prior to the incident
involving the OKALOOSA.
41. Empire exercised reasonable diligence to furnish a safe berth.
42. Empire was not negligent in failing to remove the rope from the bollard
because it did not know or could not have known about the line placed
on the bollard while the Wharf was closed and its employees were not
present.
43. The unidentified third party who left the line on the bollard hanging into
the water is 100% at fault for the incident and for the damage caused to
the OKALOOSA and to Gretna’s defender dolphins.
44. Because the responsible party was not named in this action, this Court
need not quantify the amount of damages sustained by Gretna or
Plimsoll.
CONCLUSIONS OF LAW
1. The Court has admiralty jurisdiction over this matter, pursuant to 28
U.S.C. § 1333 and the parties’ Rule 9(h) declaration. Venue is proper
because a substantial part of the events giving rise to this claim
occurred in this judicial district. 28 U.S.C. § 1391(b).
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2. Plimsoll seeks limitation of liability under the Limitation of Liability
Act. The Limitation of Liability Act provides in relevant part that “the
liability of the owner of a vessel for any claim, debt, or liability described
in subsection (b) shall not exceed the value of the vessel and pending
freight.” 46 U.S.C. § 30505. Because the post-casualty value of the
OKALOOSA plus pending freight exceeds the amount of the claims in
this matter, limitation of liability is irrelevant.
3. “The rule of THE OREGON creates a presumption of fault that shifts
the burden of production and persuasion to a moving vessel who, under
her own power, allides with a stationary object. The rule of THE
LOUISIANA creates the same presumption for a vessel who drifts into
an allision with a stationary object.” Combo Mar., Inc. v. U.S. United
Bulk Terminal, LLC, 615 F.3d 599, 604 (5th Cir. 2010) (internal
citations omitted).
4. “These presumptions shift the burden of production and persuasion on
the issue of fault. . . . Application of [one of these presumptions] does
not supplant the general negligence determination which requires a
plaintiff to prove the elements of duty, breach, causation and injury by
a preponderance of the evidence.” Id. at 605.
5. “Evidentiary presumptions . . . are designed to fill a factual vacuum.
Once evidence is presented . . . presumptions become superfluous
because the parties have introduced evidence to dispel the mysteries
that gave rise to the presumptions.” In re Mid-S. Towing Co., 418 F.3d
526, 531 (5th Cir. 2005) (internal quotation omitted).
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6. A defendant can rebut either presumption if it can demonstrate: “(1)
that the allision was the fault of the stationary object; (2) that the
moving vessel acted with reasonable care; or (3) that the allision was
an unavoidable accident.” Combo Mar., Inc., 615 F.3d at 605.
7. Even assuming that the LOUISIANA Rule or the OREGON Rule
applies here, Plimsoll carried its burden to show that the OKALOOSA
acted with reasonable care given the emergency circumstances.
8. To establish maritime negligence, the claimant bears the burden of
proving by a preponderance of the evidence that: (1) the defendant owed
the plaintiff a duty; (2) the defendant breached that duty; (3) the
plaintiff sustained an injury; and (4) the breach caused the plaintiff’s
alleged injuries. Canal Barge Co. v. Turco Oal Co., 220 F.3d 370, 376
(5th Cir. 2000).
9. “Under maritime law, a plaintiff is owed a duty of ordinary care under
the circumstances.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d
201, 211 (5th Cir. 2010).
10. Captain Williams and Plimsoll owed a duty of ordinary care under the
circumstances.
11. Captain Williams and Plimsoll did not breach their duty of ordinary
care given the emergency circumstances.
12. Empire and the Port owed a duty to provide a safe berth and remove
hazards from the Wharf. A wharfinger is “‘under a duty to exercise
reasonable diligence to furnish a safe berth and to avoid damage to the
vessel. This includes the duty to ascertain the condition of the berth, to
make it safe or warn the ship of any hidden hazard or deficiency known
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to the wharfinger or which, in the exercise of reasonable care and
inspection, should be known to him and not reasonably known to the
shipowner.” Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795
(Sth Cir. 1977) (quoting Trade Banner Line, Inc. v. Caribbean
Steamship Co., S.A., 521 F.2d 229, 230 (5th Cir. 1975)). However, “it is
well settled that a wharfinger is not the guarantor of the safety of a ship
coming to his wharf.” Id.
13. Empire and the Port did not breach their duty to Plimsoll where the
hazard was not known and could not have been known to them.
14. Plimsoll’s third-party claims against Empire and the Port are
dismissed.
15. Gretna’s claim in limitation against Plimsoll and claims pursuant to
Rule 14(c) against Empire and the Port are dismissed.
CONCLUSION
For the foregoing reasons, all claims in this matter are DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana this 13th day of April, 2022.
g TRICHE Lh 3
UNITED STATES DISTRICT JUDGE
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