In Matter of Complaint of Vulcan Materials Co., Civil Action No. 2:08cv377.
| Court | United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia) |
| Writing for the Court | Henry Coke Morgan, Jr. |
| Citation | 674 F.Supp.2d 756 |
| Parties | In the matter of the COMPLAINT OF VULCAN MATERIALS COMPANY, owner of the Tug William E. Polle, for Exoneration from or Limitation of Liability. |
| Docket Number | Civil Action No. 2:08cv377. |
| Decision Date | 17 December 2009 |
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Carl D. Gray, Hunton & Williams, Norfolk, VA, John E. Holloway, Dawn Lee Serafine, Troutman Sanders LLP, Norfolk, VA, for Plaintiff, Third Party Plaintiff, and Counter Defendant.
Michael W. Kerns, Sarah Keast, U.S. Department of Justice, Civil, Washington, DC, Anita Kay Henry, United States Attorney's Office, Norfolk, VA, for Third
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Party Defendant and Counter Claimant United States of America.
Daniel O. Rose, Kreindler & Kreindler, LLP, New York, NY, Michael F. Imprevento, Breit Drescher & Imprevento, PC, Norfolk, VA, for Claimant Cassita Massiah, Executor of the Estate of Freddie N. Porter, Jr., Deceased.
HENRY COKE MORGAN, JR., Senior District Judge.
This suit in admiralty, arising out of the death of Freddie N. Porter, Jr. ("Porter"), comes before the Court following a four-day bench trial on Claimant Cassita Massiah's ("Massiah") wrongful death claim against Plaintiff Vulcan Materials Company ("Vulcan") and on Vulcan's claim for contribution against the United States. The Court ruled from the bench at the trial's conclusion. However, the Court reserved for later resolution the issue of whether the United States was properly a party to this action in light of the Feres doctrine, and withheld the entry of judgment until that matter was settled. The Court now sets forth its findings of fact and conclusions of law, thereby resolving all outstanding issues in this matter, and enters judgment in favor of Claimant Massiah.
Limitation of liability actions such as this one, arising out of a maritime collision, fall within the Court's admiralty jurisdiction. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996).
On October 11, 2007, nineteen-year-old Freddie N. Porter, Jr. and a number of fellow Navy personnel attached to Seal Delivery Vehicle Team Two departed from the United States Navy's Little Creek Amphibious Base ("Little Creek") in five rigid-hull inflatable boats ("RHIBs") for a navigation training exercise. The operation was part of a two-week coxswain course that Porter, a land-based supply clerk, had volunteered to attend. This would be the fourth and last training exercise of the course, and was intended, like the previous exercises, to give the students an opportunity to practice skills they had learned in the classroom over the duration of the course. Before leaving Little Creek, each RHIB's crew completed a preoperation inspection, verifying, inter alia, the proper functioning of the boats' running lights. Once underway, the RHIBs moved up the James River to Jordan Point, where their crews disembarked to have dinner and await their nighttime return to Little Creek.
When darkness fell, each crew conducted another pre-operation inspection, and again verified that all lights on the boats— including an all-around white light mounted next to the radar dome on the aft mast, and a set of red and green running lights mounted forward in the RHIBs—were functioning properly. This time the crewmembers also verified that each was wearing a functioning chemlight, which would help rescuers spot crewmembers in an emergency. For this return trip, the crews were instructed to stay inside the shipping channel to minimize their chances of running aground or hitting obstacles such as crab pots.
Porter boarded his RHIB, call-sign Tango-2, in the forward lookout position, and fellow student Esteban Angeles ("Angeles") took the helm. Petty Officer Albert Bollinger ("Bollinger") also boarded Tango-2, as the safety observer and qualified coxswain. Bollinger had completed the two-week coxswain course, thereby becoming a qualified coxswain, in December 2006; he subsequently served as a qualified
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coxswain in several operations. Prior to December 2006, however, Bollinger had no boating experience, and as of October 2007 he had never been a safety observer and had never made the run to Jordan Point.
Other students and safety observers boarded Tango-1 and Tango-3. Officer-in-Charge David Hupp ("Hupp") boarded a fourth RHIB, call-sign Sierra Bravo, along with Lead Petty Officer Julio Rodriguez Vargas ("Rodriguez"). Safety observer Eric Johnson, Chief Kord Nelson, and medical technician Elias Kfoury boarded the second safety boat and fifth boat overall, Sierra Charlie. Tango-2 and Sierra Bravo left Jordan Point first, but were soon passed by the other three RHIBs.
Sometime before Porter and his classmates left Jordan Point for the return trip to Little Creek, Captain Rondy Wooldridge maneuvered his tug, the WILLIAM E. POOLE, away from the Campostella docks in Norfolk, Virginia and headed up the James River pushing a six-barge flotilla that was three barges long and two barges wide. With thirty-three years of experience on the James River, Wooldridge had made similar trips thousands of times, most recently as an employee of the Vulcan Materials Company, which owned the Poole. The barges in front of the Poole on this particular trip were empty; their decks were approximately twelve feet above the waterline, and a short wall around the perimeter of each barge's cargo box (the "cargo box wall") rose an additional two or three feet off the deck. After getting underway and approximately one hour before sunset, Wooldridge instructed his deckhand, Joseph Christensen, to position and illuminate the flotilla's running lights. Christensen placed the portable lights on the forward cargo box walls of the forward two barges—a green light on the far starboard side, a flashing amber light as close to the center as possible, and a red light on the far port side.
From their perch in the Poole's wheelhouse, Wooldridge and Christensen had an expansive view of their surroundings, but a portion of that view was blocked by the empty barges, riding high in the water, that extended about five hundred and eighty-five (585) feet forward of the tug. In fact, the barges created a blind spot that extended approximately six hundred (600) feet forward of the flotilla's bow at water level. Thus, much like a driver's inability to see the road immediately in front of his car, Captain Wooldridge and his deckhand could not see the river—or an object on the river, depending on its height—for some distance in front of the flotilla.
After passing the James River Bridge, the Poole flotilla proceeded north up the James River past Fort Eustis to Hog Island, where it picked up an additional two barges. These were arranged bow-to-stern and then placed on the port side of the of the existing flotilla, such that the enlarged flotilla comprised a forward row of three barges, a middle row of three barges, an aft row of two barges (in the center and starboard positions), and the Poole, which was positioned behind the aft center barge. Christensen then relocated the red and amber lights to positions on the forward barges' front cargo box walls on the far port side and the center of the flotilla, respectively. Although placing the lights on the cargo box walls in this manner caused them to be higher up than if they were placed on the deck, it also created another blind spot, within which the lights could not be seen from someone on or in the water. This second blind spot extended approximately ninety feet forward of the bow of the flotilla at water level.
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With the lights in position, the Poole departed Hog Island at around 10:00 p.m. and continued along the James River toward Jamestown Island.
Winding inland from the Chesapeake Bay, the James River runs north past Fort Eustis and Hog Island, then makes an Scurve around the north end of Hog Island and the south end of Jamestown Island before continuing on to the northwest. Although the river is more than a mile wide throughout this area, the shipping channel through the bend at Jamestown Island is only three hundred (300) feet wide. The eastern end of the channel is marked by buoys 53 (on the south side of the channel) and 54 (on the north side of the channel). As the Poole cleared the bend around Jamestown Island and headed toward these buoys, there was little if any ambient light; the shores, the water, and the sky were dark. It was windy and the water was choppy, with swells of one (1) to two (2) feet. The swells caused clutter on the Poole's radar, making it difficult to see objects with small radar returns—such as the RHIBs—on the radar screen.
While the Poole was pushing upriver toward buoys 53 and 54, Tango-2 and the other RHIBs were traveling downriver toward the same buoys. Tango-2's crew noticed but could not identify a white light in the direction of the buoys; the light was the Poole's spotlight, which Captain Wooldridge had trained on the port bow of the flotilla so that he could better perceive the direction of the flotilla's movement in the water. Onboard Tango-2, Bollinger noted Angeles' confusion about the light and told him to slow down, make a decision about what to do, and then proceed. Angeles reduced throttle, and Sierra Bravo, trailing behind Tango-2, did the same; both boats drifted in the shipping channel with their bows pointed south while their crews tried to make out the source of the light. Rodriguez, who was at the controls of Sierra Bravo, saw a large object on his RHIB's radar, but was unable to visually identify the object. Hupp, also in Sierra Bravo, tried unsuccessfully to identify the object using a night vision monocular.
Meanwhile, Tango-1, Tango-3, and Sierra Charlie had crossed to the other side of the shipping channel and were proceeding downriver. They also saw the...
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Sher v. RBC Capital Markets. LLC, Civil Action No. GLR-11-1998
...case began as a bankruptcy proceeding and prejudgment interest is an issue of state substantive law. See In re Vulcan Materials Co., 674 F.Supp.2d 756, 772 (E.D.Va. 2009) (explaining that prejudgment interest is an issue of state substantive law), aff'd sub nom. Vulcan Materials Co. v. Mass......
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Sher v. RBC Capital Markets. LLC, Civil Action No. GLR-11-1998
...case began as a bankruptcy proceeding and prejudgment interest is an issue of state substantive law. See In re Vulcan Materials Co., 674 F.Supp.2d 756, 772 (E.D.Va. 2009) (explaining that prejudgment interest is an issue of state substantive law), aff'd sub nom. Vulcan Materials Co. v. Mass......