Bordelon Marine, Inc. v. Laship, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BORDELON MARINE, INC. CIVIL ACTION

VERSUS NO. 22-3046

LASHIP, LLC, ET AL SECTION “L” (5)

FINDINGS OF FACT & CONCLUSIONS OF LAW

This suit arises out of alleged damages to the M/V Shelia Bordelon when the M/V Joshua

Chouest, owned by Reel Pipe LLC (Reel Pipe) and cold stacked (stored long term) at the LaShip,

L.L.C. docking facility (LaShip) became unmoored on August 29, 2021, when Hurricane Ida made

landfall, and crashed into the M/V Shelia Bordelon. Bordelon Marine, Inc (Bordelon), owner of

the Shelia, seeks damages including cost of repair and other incidental and related expenses.

Defendants, Reel Pipe LLC and LaShip deny liability and assert that all damages were caused by

Hurricane Ida, a fortuitous event, force majeure, or Act of God. These alternate views created a

question of fact which must be resolved at trial. Consequently, this matter came on for trial before

the Court, without a jury, on October 30, 2023.

After considering all of the testimony, exhibits introduced into evidence, and the applicable

admissible portions of the record, the court issues the following findings of fact and conclusions

of law. To the extent that any finding of fact constitutes a conclusion of law, the Court finds it as

such, and to the extent that any conclusion of law constitutes a finding of fact, the Court finds it as

such.

FINDINGS OF FACT

A. The Parties and Relevant Vessels:

1. LaShip L.L.C. (LaShip) is a vessel docking facility and shipyard located in Houma,

Louisiana and bounded on the West by the Houma Navigational Canal and the South by a dead

end canal known as the Munson Slip.

2. Reel Pipe, LLC (Reel Pipe) owned the M/V Joshua Chouest at all relevant times,

including August 29, 2021.

3. Offshore Service Vessels Inc. did not own, manage or operate the Joshua Chouest and

did not operate the LaShip facility on August 29, 2021.

4. The Joshua Chouest, official #1203475, was at all relevant times herein an offshore

supply vessel owned by Reel Pipe that was moored at LaShip's facility during Hurricane Ida. The

Joshua Chouest is an ABS "Maltese Cross A1" class vessel rated at 131 long tons deadweight

(empty) and 4.4577 long tons at full cargo load. She measures 288 feet in length and 66 feet across

the beam. The Joshua Chouest had no crew aboard and had been docked at the LaShip facility at

its dock on the Munson Slip since July 10, 2018.

5. The Shelia Bordelon is owned by Bordelon Marine Inc. She is an ultra-light intervention

vessel (ULIV) measuring at approximately 2312 gross tons and was moored at Bordelon's dock

on the Munson canal directly across from the Joshua Chouest.

B. The Incident:

1. Hurricane Ida made landfall on August 29, 2021, as a category 4 hurricane with

estimated winds of 150 miles per hour.

2. On the afternoon of August 29, 2021, the Joshua Chouest broke her mooring lines drifted

across the Munson Slip and forcefully struct the Shelia Bordelon. After colliding with the Shelia

Bordelon at about 4:28 pm, on August 29, 2021, the unmanned Joshua Chouest continued to bang

against and made repeated contact with the Shelia Bordelon.

C. Pre-Incident Occurrences and Preparations for the Storm:

1. The Joshua Chouest transited to LaShip to be "cold stacked" in July of 2018, nearly 3

years before the storm. In order to get to the LaShip facility, the Joshua Chouest was deballasted

and had minimal fuel and almost no liquid in any tanks due to the shallow depths along the transited

route and within the LaShip facility. At all times pertinent here the Joshua Chouest remained

deballasted in order to remain afloat at LaShip's facility.

2. Reel Pipe delegated care, custody, and control of the Joshua Chouest to LaShip and did

not man, attend, inspect, moor or otherwise oversee the Joshua Chouest between the day of her

arrival at the LaShip facility on July 10, 2018 and the arrival of Hurricane Ida on August 29, 2021.

3. LaShip had no licensed mariners working at its facility. It used its regular employees

including carpenters, painters, and pipefitters to select and arrange the mooring lines for the vessels

docked at the facility which, at the time of the storm numbered 19 vessels.

4. The Joshua Chouest was berthed directly against the south bulkhead of the LaShip

facility along the Munson Slip. She was moored starboard to the dock with 15 lines, ten of which

were rope lines and five wire cables. At the time of Hurricane Ida, the Joshua Chouest was secured

to six mooring structures by two wires at the bow and three wires along the broadside length of

the vessel. One of those wires was attached to a padeye at the bow which was almost horizontal to

the shoreside mooring bitt. The wires were supplemented with four ropes at the bow, four ropes at

the stern, and two ropes along the broadside length of the vessel. The ropes were an eight-strand

braised polypropylene and polyethylene rope with a nine-inch circumference (approximately two

and a half inches in diameter). This type of rope had a measured breaking strength of 129,370 lbs.

The steel wire was one inch in diameter and had a measured breaking strength of 162,800 lbs. The

lines were attached to mooring structures which were located on the dock about ten feet from the

water's edge. They are single pile structures consisting of twenty-four-inch diameter pipe driven

vertically into the seabed filled with concrete and extending approximately six feet above ground

with a cross bar approximately four feet above ground.

5. On August 29, 2021, Hurricane Ida made landfall in Southeast Louisiana as a category

4 storm. The storm center traveled slowly northwest while its eyewall, the area of highest winds,

passed over the LaShip facility on the Houma Navigational Canal. The data, research, and findings

indicate that the LaShip location was exposed to winds gusting between 125 and 135 mph during

a ninety-minute period on the afternoon of August 29, 2021. Wind direction, while initially from

the northeast, became northerly, then northwest and finally westerly as the center of Ida passed to

the east of LaShip. The force of the wind over the exposed length of the Houma Navigation Canal

was creating waves up to six feet high traveling south in the channel. See Expert Report of

Meteorologist E. Craig Setzer, Exhibit 42.

6. Based on visual accounts, a computer program known as Optimore, and as the

eyewitness videos indicate, the mooring lines that secured the bow of the Joshua Chouest were

over stressed and parted. See Testimony of Thomassie, page 11, line 7. Defendants’ expert,

William Thomassie indicates that the forward most wire closest to the bow failed first and then the

second wire failed. Thereafter, the third wire failed, and the winds increased causing the fourth

wire to fail. He believes that the remaining mooring lines and wire held until the wind speed

reached between 126 and 135 mph. The testimony is that the total wind force on the vessel was

479,000 pounds. At that point the rope lines at the bow were fully extended and reach their

breaking strength and failed while the mooring lines that held the stern remained secure, allowing

the vessel's bow to rotate to the port side away from the bulkhead and collide with the Bordelon

vessel.

7. The Lilly Bordelon was moored at the Bordelon dock nearest to the Houma Navigational

Canal and was unmanned both prior to and throughout the passing Hurricane Ida.

8. The Gerry Bordelon and Marcelle Bordelon were also moored at the Bordelon dock

abreast of the Shelia Bordelon.

9. All of these Bordelon vessels remained securely moored throughout the passing of

Hurricane Ida on August 29, 2021. Defendants’ expert William Thomassie attributes this to the

fact that the direction of the winds pushed the Bordelon vessels toward the Bordelon dock whereas

the same winds pushed the Joshua Chouest away from the dock toward the Shelia Bordelon.

10. Defendant's expert Thomassie, the only expert who testified on the manner in which

the Joshua Chouest was moored, was asked about whether there was anything wrong about mixing

steel wires with rope lines and he testified as follows: “Not in the way they were handled in this

case, no.” He went on to explain: “If I had steel wires and soft synthetic lines and I had two going

from the same point in the vessel to the same point onshore, then that's a very general mixed

mooring that just will not perform as well as you would expect. You don't get the sum of the two

lines. But in this case, all the synthetic mooring lines were in one position doing one thing, and all

of the steel mooring lines were more of less supplemental and in a different area doing something

a little bit differently. So, to me, even though they were using both steel and synthetic in this

instance, based on the evaluation, it wasn't detrimental.” No one contradicted his testimony.

11. Initially a question was raised about the angle of the mooring lines. Thomassie testified

as follows: “It's a trade-off. The preferred angle, fleeting angle of the line would be less than–you

wouldn't want it to be vertical. You would want it to be more horizontal than vertical, but at what

expense. If you stretch out the line to the next available bollard and you have a better angle, now

you've got a longer line, and it's, again, more compliant and would provide less load resistance.

So, just because it's at a better angle doesn't necessarily make it a better solution.” Testimony, page

10, line 23

12. Finally, Thomassie concluded that LaShip did everything that was appropriate to

prepare the Joshua Chouest for Hurricane Ida. “If not for the speed of the winds, the strength of

the storm, I think that would have been an adequate mooring pattern for most conditions.”

Testimony, page 61, line 8.

CONCLUSIONS OF LAW

I. Jurisdiction

1. This case arises under the Court’s admiralty and maritime jurisdiction within the meaning

of 28 U.S.C. § 1333, Rule 9(h) of the Federal Rules of Civil Procedure, and Rule C of the

Supplemental Rules for in rem actions. Venue is proper in the Eastern District of Louisiana

pursuant to 28 U.S.C. § 1391(b)(2).

II. Negligence

2. Under general maritime law, a party asserting negligence must show the following to

succeed: (1) duty; (2) breach of duty; (3) proximate cause; and (4) actual damage. In re

Great Lakes Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010) (quoting Canal Barge

Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000)). The determination of a tortfeasor’s

duty is a question of law. In re Signal International, LLC, 579 F.3d 478, 490 (5th Cir.

2009). “That determination [of a tortfeasor’s duty] involves a number of factors, including

most notably the foreseeability of the harm suffered by the complaining party.”

Consolidated Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987). The

duty owed under maritime law is one of ordinary care under the circumstances. In re Great

Lakes Dredge & Dock Co., 624 F.3d at 211.

III. Maritime Presumptions and the Act of God Defense

3. “Liability for collisions on the navigable waters is [often] governed by a series of

presumptions and burden-shifting principles.” Illinois Constructors Corp. v. Logan

Transp., Inc., 715 F. Supp. 872, 879 (N.D. Ill. 1989).

4. The Oregon Rule establishes a presumption of fault upon a moving vessel that allides with

a properly moored vessel or other stationary structure. The Oregon, 158 U.S. 186, 192

(1895); In re Mid-South Towing Co., 418 F.3d 526, 531 n.5 (5th Cir. 2005) (distinguishing

the Oregon Rule from the Pennsylvania Rule because the Oregon Rule is a presumption

of fault more “akin to the common law doctrine of res ipsa loquitor” while the

Pennsylvania rule is a presumption of causation as a result of a statutory violation).

5. The Louisiana Rule “creates a rebuttable presumption that in collisions or allisions

involving a drifting vessel, the drifting vessel is at fault.” Combo Maritime, Inc. v. U.S.

United Bulk Terminal, LLC, 615 F.3d 599, 602 (5th Cir. 2010) (citing James v. River

Parishes Co., Inc., 686 F.2d 1129, 1131-32 (5th Cir. 1982); The Louisiana, 70 U.S. 164,

173 (1865).

6. Courts treat the Louisiana and Oregon presumptions “similarly, looking to law on one to

inform decisions on the other.” Combo Maritime, 615 F.3d at 605 (citing Fischer v. S/Y

NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007)).

7. To rebut the foregoing presumptions, a party “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. . . . Each independent argument, if sustained,

is sufficient to defeat liability.” Id. (quoting S/Y NERAIDA, 508 F.3d at 493). The rebutting

party must make such showing by a preponderance of the evidence. Brunet v. United Gas

Pipeline Co., 15 F.3d 500, 503 (5th Cir. 1994) (citing American Petrofina Pipeline Co. v.

M/V Shoko Maru, 837 F.2d 1324, 1326 (5th Cir. 1988)).

8. A party invoking the Act of God defense does so pursuing that third argument, by showing

“that the accident could not have been prevented by ‘human skill and precaution and a

proper display of nautical skills[.]’” James, 686 F.2d at 1133 (quoting Petition of United

States, 425 F.2d 991, 995 (5th Cir. 1970)).

9. Noting that the “common sense behind the rule makes the burden a heavy one,” the Fifth

Circuit has required vessels asserting the Act of God defense to “exhaust every reasonable

possibility which the circumstances admit and show that in each they did all that reasonable

care required.” Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 (5th Cir. 1977)

(quoting Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724,

726 (5th Cir. 1967)).

10. To successfully invoke the defense, a party must show that the weather was heavy and that

they took “reasonable precautions under the circumstances as known or reasonably to be

anticipated.” Petition of the United States, 425 U.S. at 995. Therefore, a hurricane in and

of itself is not sufficient to invoke the Act of God defense. See, e.g., In re Skanska, 577 F.

Supp. 3d 1302, 1323 (N.D. Fla. 2021) (finding that the barge owner “received ample

warning about Hurricane Sally’s approach” and its failure to relocate its barges to available,

safer alternative locations constituted negligence and the vis major defense was thus

unavailable to it); Paragon Asset Co. Ltd. v. Gulf Copper & Manufacturing Corp., 622 F.

Supp. 3d 360, 403-04 (S.D. Tex. 2022) (noting that while Hurricane Harvey undeniably

brought bad weather, the Act of God defense was inapplicable because the vessel owner’s

“delayed decision and inadequate mooring system represented unreasonably deficient

actions”).

11. The Fifth Circuit has stated that liability “must turn on whether the [vessel] causing the

damage ought ever to have been in that predicament” and therefore the court examines the

actions taken in the days preceding a hurricane to assist in such an analysis. Boudoin v. J.

Ray McDermott & Co., 281 F.2d 81, 82 (5th Cir. 1960) (discussing damage resulting from

Hurricane Audrey).

LIABILITY OF THE DEFENDANTS

1. Bordelon seeks to recover damages from the collective Defendants on the basis that LaShip

was negligent in its mooring and storm preparations, and it is therefore liable for the Joshua

Chouest’s breakaway and the subsequent damage to the Shelia Bordelon.

2. The Court has found that Offshore Service Vessels did not own, manage, or operate either

the Joshua Chouest or the LaShip facility on August 29, 2021 and therefore finds Offshore

Service Vessels not liable with respect to this litigation.

3. The Joshua Chouest was a drifting vessel at the time of the allision with the Shelia

Bordelon. Therefore, the Court finds that the Oregon presumption and the Louisiana

presumption facially apply to this set of facts. These presumptions however are rebuttable

by a showing that the allision or collision was the fault of the stationary object, that the

drifting or moving vessel acted with reasonable care, or that the allision or collision was

the fault of an unavoidable accident, that is, that the weather was heavy and “that the

accident could not have been prevented by ‘human skill and precaution and a proper

display of nautical skills[.]’.” Combo Maritime, 615 F.3d at 605; James, 686 F.2d at 1133;

Petition of the United States, 425 U.S. at 995. This showing is also known as the Act of

God defense.

4. Defendants have successfully rebutted the foregoing presumptions, showing by a

preponderance of the evidence that Hurricane Ida constituted an Act of God and that

LaShip did all it reasonably could under the circumstances. Specifically, LaShip put forth

evidence that the mooring of the Joshua Chouest was reasonable in light of the anticipated

weather conditions posed by Hurricane Ida.

5. To demonstrate the heavy weather, Defendants offered meteorologist Craig Setzer as an

expert who provided a report on the severity of Hurricane Ida. The undisputed evidence in

this case reveals that Hurricane Ida tied the record for being the strongest hurricane to make

landfall in the United States west of the mouth of the Mississippi River. Upon landfall,

Ida’s maximum sustained winds were 130 knots, or 150 miles per hour. The only other

hurricane to tie this record was Hurricane Laura in 2020, but Laura struck Louisiana

approximately 150 miles away and brought no hurricane winds to the Houma area. The

only other hurricane to strike the Houma area with similar conditions was the August 1856

Last Island Hurricane. As Setzer reported, “No one alive at this location had ever

experienced anything as powerful as Hurricane Ida.” Expert Report of Meteorologist E.

Craig Setzer, Exhibit 42, page 7.

6. Plaintiff did not refute the evidence presented on the strength and severity of Hurricane

Ida. Plaintiff offered no evidence to suggest that Defendants could have or should have

moved the Joshua Chouest out of the Houma area or out of the path of the hurricane, nor

did Plaintiff offer evidence to suggest that Defendants could have or should have moored

the Joshua Chouest at a different dock within the LaShip facility such that it would have

been further away from other moored vessels along the Slip. Plaintiff argued only that

Defendants were not reasonable in light of the anticipated conditions and therefore were

not entitled to the defense, but offered no evidence to support that assertion.

7. The Joshua Chouest was moored with fifteen lines total, constituting a mix of ten

polypropylene ropes and five steel wires. While Plaintiff argued that mixed mooring line

arrangements are unreasonable because of the varying breaking strengths and tension

characteristics of the two materials, Defendants offered the report and testimony of

engineering expert William Thomassie to refute this assertion. Thomassie testified that the

specific arrangement used on the Joshua Chouest was reasonable because of the way the

different materials operated in relation to one another. Specifically, he explained that the

wire and the rope did not go from the same point on the vessel to the same point onshore,

which is an arrangement that will not perform as well because you do not get the sum of

the two lines. On the Joshua Chouest, however, “all the synthetic mooring lines were in

one position doing one thing, and all of the steel mooring lines were more or less

supplemental and in a different area doing something a little bit differently.” Testimony,

page 12, lines 7-10.

8. Plaintiff failed to offer evidence that refuted Thomassie’s testimony and report as to the

adequacy of the mixed mooring arrangement as used on the Joshua Chouest. Plaintiff did

not offer an expert on engineering or mooring arrangements. Further, in cross examining

Thomassie, Plaintiff failed to refute his conclusions that the mooring was sufficient but for

Hurricane Ida’s severe winds, which were strongest at the time of the breakaway.

9. The Court accordingly must find that Defendants in this case have shown by a

preponderance of the evidence that the weather was heavy and that they took all the

reasonable precautions under the circumstances. Defendants have shown in this instance

that the accident could not have been prevented by proper nautical skill or precaution and

therefore Defendants are not liable to Plaintiff for the damage to the Shelia Bordelon. In

this event, the Court does not reach the question of damages.

New Orleans, Louisiana, this 22nd day of November, 2023.

United States District Judge

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