City of Chicago v. M/V Morgan

• Decision Date: 09 July 2004
• Docket Number: No. 03-1789.,03-1789.
• Citation: 375 F.3d 563
• Parties: CITY OF CHICAGO, Plaintiff-Appellee, v. M/V MORGAN, Kindra Lake Towing, L.P., and Kindra Lake Towing, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

375 F.3d 563

CITY OF CHICAGO, Plaintiff-Appellee, v. M/V MORGAN, Kindra Lake Towing, L.P., and Kindra Lake Towing, Inc., Defendants-Appellants.

No. 03-1789.

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2003.

Decided July 9, 2004.

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Myriam Zreczny (Argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Plaintiff-Appellee.

Gary T. Sacks (Argued), Goldstein & Price, St. Louis, MO, for Defendants-Appellants.

Before FLAUM, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The M/V Morgan, a tugboat pushing four barges, allided¹ with the 95th Street Bridge in Chicago, Illinois. The impact disabled the bridge, severing eight of its ten electrical cables. A suit by the City followed. The district court, applying the Oregon presumption of fault against a moving vessel which strikes a stationary object, The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943 (1895), found the M/V Morgan presumptively at fault based on its negligent reaction to a mechanical failure but also held the City partially liable for the allision for failing to adequately protect the electrical cables. The court determined that the parties were equally liable and apportioned damages accordingly. The M/V Morgan appeals, arguing that the district court erred in its application of the Oregon rule and its apportionment of damages. We find that the Oregon rule applies, the M/V Morgan failed to exonerate itself from liability, and the record supports the district court's decision to apportion damages equally. Therefore, we affirm.

I. BACKGROUND

On April 17, 1998, the M/V Morgan,² a 134-ton tugboat, was pushing four barges, weighing approximately 5,000 tons, down the Calumet River in Chicago, Illinois, from the Federal Marine Terminal to the Ceres Trans-Oceanic Service Terminal, a trip which required passing under the 95th Street Bridge. During its voyage, the M/V Morgan's starboard winch³ brake failed causing its crew to lose control of the vessel and strike the western pier face of the 95th Street Bridge. The foremost barge struck the bridge at an acute angle such that it entered a recessed slot which housed the cables.

The 95th Street Bridge is managed and maintained by the City of Chicago in trust for the general public. The bridge uses submarine electrical cables to control its mechanical functions. The electrical cables run from the eastern pier face of the bridge, 25 feet below the waterline, to its western pier face. From its western pier face, the cables travel above ground into a machine house, from which the bridge operator controls the opening and closing of the bridge. Though the full distance from the eastern to the western side of the bridge is 206 feet, the navigable waterway spans only 200 feet and the portion of the bridge which houses the electrical cables on the western pier face is outside of the navigable channel. To protect the superstructure of the bridge from common allisions, horizontal rubbing, or incidental contact with vessels, the City installed protective dolphins⁴ and fenders⁵ along the sides of the bridge. The City attempted to protect the submarine cables by placing them in a recessed slot; however, the cables remained exposed to river debris or vessels moving at certain angles. Prior to 1994, the recessed slot was also covered by a wooden fender.⁶ However, upon the deterioration of the fender, the City chose not to replace it.⁷

The M/V Morgan's crew included James Long, serving as Captain, Brian Grzybowski, the deck engineer, and John Kindra and Ryan Campbell, serving as deck hands. The crew was inexperienced with the M/V Morgan. Captain Long began his employ with Kindra Inc. two and one half months prior to the accident, while Kindra and Campbell had primarily served in an administrative capacity as office staff.

The four barges were tied two long and two abreast, forming a square. The M/V Morgan was positioned behind the barges, which allowed it to push the barges forward. The barges and the boat were connected at three points. First, the nose of the boat abutted the two rear barges at the center point of the boat. This connection was maintained solely through contact rather than by an independent line. The second point of connection was a line which ran from the winch located on the starboard (right) deck of the vessel to the starboard cleat⁸ on the rear-most barge. Lastly, another line ran from the winch located on the port (left) deck of the vessel to the port cleat on the rear-most barge. The two winches on the M/V Morgan were approximately four feet high and controlled electrically.⁹ When the winch lines are taut, the M/V Morgan and barges form a single body, and the vessel is deemed "facing up." Winches control the degree of tension on the lines and in turn control the steering of the unit. Winch brakes also maintain the tension on the line when the vessel's motor is not powered. Thus, if the starboard winch line is released, the vessel turns left and if the port winch line is released, the vessel turns right.

To depart from the Federal Marine dock that morning, Captain Long directed the crew to tighten the winch lines, start the vessel's motor and draw in the starboard winch line to move the vessel right and away from the dock. Captain Long then put the boat in reverse and slowly began to back out of the dock. As the vessel proceeded, he noticed that the rear of the M/V Morgan was too close to the dock. In response, he put more slack in the starboard winch line to force the rear of the vessel to move away from the dock. After achieving a safe distance from the dock and down the river, Captain Long tightened the starboard winch line using the green button on the control panel to face up the M/V Morgan. However, when he released the green button controlling the starboard winch line, the starboard winch brakes failed and the line began paying out (unwinding). This caused the vessel to turn to port (left). The starboard winch brake failure also meant that the Captain lost the ability to steer the vessel to starboard (right).

Captain Long responded to this unexpected mechanical failure by contacting Grzybowski by radio and asking him to send someone to the deck of the M/V Morgan to stop the paying out of the starboard winch line. To reduce the forward momentum of the vessel, Captain Long put the engines in reverse. He also radioed the bridge and asked that it be opened to prevent the vessel's coaming¹⁰ from striking the underside of the bridge. At this time, the vessel was approximately 100 feet south of the bridge and favoring port (gliding left).

Kindra responded to Grzybowski's request, although he had to travel over 400 feet from the front end of the barges, across the vessel, to the starboard winch. Captain Long directed Kindra, by radio, to dog the starboard winch, which prevents the winch line from unwinding, and also to put out a fiber line from the center of the vessel to the center of the barges. The fiber line alone would not have caused the M/V Morgan to line up, but, both measures caused the vessel and the barges to properly face up. By this time, the lead barges were passing under the draw of the bridge.

While moving at approximately one mile per hour, the barge made contact with the bridge. It slid down the fenders located on the western pier face and into the recessed slot which housed the electrical wires without causing any visible damage to the fenders it impacted or to the barge itself. The impact was so slight that neither Long nor Kindra were aware that the barge had made contact with the bridge. Even at this slow speed, however, the vessel's angular impact damaged the bridge by severing the electrical cables. The damage was extensive, requiring replacement of the eight cables which cost the City of Chicago $625,128.11.

The district court conducted a two-day bench trial, during which the M/V Morgan presented evidence that the starboard winch functioned properly on the morning of April 17 prior to the accident and that winches were inspected weekly. However, Grzybowski, the deck engineer, was not able to identify which day of the week was designated for inspection, the last day the winches were actually inspected, or which member of the crew inspected the winches on the day of the accident. In addition, the Captain admitted that he did not inspect the winches as he did not consider that a necessary part of his routine. The court then rendered a written decision listing several findings of fact which this court will accept absent clear error. Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir.1995). Specifically, the trial court found the following:

17. It is fairly common for barges and vessels to touch or rub — and in that sense "allide" with — the substructures of bridges.

18. When a vessel allides with a bridge in the City of Chicago the damage to the bridge is most often to the superstructure.

19. It is more common for a vessel to allide with a bridge through rubbing rather than striking at an acute angle.

20. There was no evidence presented of any specific allision with the East 95 Street bridge before April 17, 1998.

37. Without a fender or timber waler, the cables were exposed to the river. The cables, however, were protected from sideways, i.e., parallel, contact by being placed in a slot. It was nevertheless reasonably foreseeable that the cables could be damaged by a minor allision in the form of the fairly common "rubbing" or "touching."

85. Long has no explanation why the brake shoes on the starboard winch failed.

104. One way to have restored tension to the starboard line earlier would have been to draw in the starboard line using the motor on the winch. That is, even if the brake in the winch did not hold, the line could have been drawn in periodically.

105. If...