In re American Milling Co.

• Decision Date: 12 June 2003
• Docket Number: No. 4:98CV575SNL.,4:98CV575SNL.
• Citation: 270 F.Supp.2d 1068
• Court: U.S. District Court — Eastern District of Missouri
• Parties: In re in the Matter of the Complaints of the AMERICAN MILLING COMPANY, Unlimited, H & H Marine, Inc., and American Milling, L.P. a limited partnership, and Winterville Marine Services, Inc., for exoneration from or limitation of liability, Petitioners.

Page 1068

270 F.Supp.2d 1068

In re in the Matter of the Complaints of the AMERICAN MILLING COMPANY, Unlimited, H & H Marine, Inc., and American Milling, L.P. a limited partnership, and Winterville Marine Services, Inc., for exoneration from or limitation of liability, Petitioners.

No. 4:98CV575SNL.

United States District Court, E.D. Missouri, Eastern Division.

June 12, 2003.

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Ralph Levy, III, Oelbaum and Brown, Kirkwood, MO, for Karen G. Cruse.

Bertram Cooper, Kurt C. Hoener, Bertram and Cooper, P.C., St. Louis, MO, for Larry Dees.

Keith G. Liberman, Liberman Law Firm, LLC, Clayton, MO, Stan J. Goodkin, Goodkin Law Office, St. Louis, MO, for Sonya Owten.

John R. Halpern, Gary T. Sacks, Daryl F. Sohn, Goldstein and Price, L.C., St, Louis, MO, for American Milling Company.

William B. England, St. Louis, MO, for Lue Willie Harvey and James Lewis Brown.

William R. Bay, Raymond L. Massey, Michael D. O'Keefe, Sr., John S. Farmer, Suzanne L. Montgomery, Thompson Coburn, St. Louis, MO, for President Riverboat Casinos, Inc.

MEMORANDUM OPINION

LIMBAUGH, Senior District Judge.

This is an admiralty action involving the allision of the M/V ANNE HOLLY with the Eads Bridge, and the secondary allision by one or more barges in the M/V ANNE HOLLY's tow with the ADMRAL, on April 4, 1998. Pending before the Court are three lawsuits, two of which are consolidated Complaints for Exoneration and/or Limitation of Liability filed pursuant to 46 U.S.C. § 181 et seq. by American Milling Co. and Winterville¹ and a negligence action brought by President Casino and certain barge owners against defendant John 0. Johnson filed pursuant to 28 U.S.C. § 1331(1).² In the exoneration/limitation cases, the claimants include President Casino, certain barge owners, the City of St. Louis, and numerous individuals alleged to have been aboard the ADMIRAL and suffered personal injuries when it was struck by one or more of the runaway barges. Counterclaims and crossclaims for indemnity and/or contribution have been filed by American Milling and Winterville against the President Casino for failure to take reasonable steps to protect the ADMIRAL from runaway barge(s) allisions.

At all material times, American Milling Co., UN Ltd., H & B Marine, Inc. and American Milling, LP (hereinafter referred collectively as American Milling) was the owner and operator of the M/V ANNE HOLLY, an inland river towboat. American Milling's base of operations is located in Alton, Illinois.

At all material times, Winterville Marine Services (hereinafter referred to as Winterville) was a marine service company providing crewing services for American Milling and other towboat owners and operators. At the time of the subject allision(s), Winterville was providing the crew for the M/V ANNE HOLLY. Winterville is based out of Greenville, Mississippi.

At all material times, President Riverboat Casino-Missouri, Inc, (hereinafter referred to as President Casino) was the owner and operator of the ADMIRAL, a moored vessel upon which is situated a gambling casino. At the time of the subject allision(s), the ADMIRAL was moored to the Missouri bank of the Upper Mississippi River (UMR) immediately below the Eads Bridge, within the City of St. Louis, Missouri.

At all material times, defendant John 0. Johnson was a licensed riverboat pilot and captain employed by Winterville and working as the river towboat captain aboard the M/V ANNE HOLLY.

At all material times, claimants Pinnacle Barge Co. LLP and/or Pinnacle Transportation, Brennan Marine, Riverland Resources, and Robert B. Miller & Associates (hereinafter referred to collectively as the "barge claimants") were owners of barges in the tow of the M/V ANNE HOLLY at the time of the April 4, 1998 allision(s). Specifically, Pinnacle Barge owned and/or operated Barges PIN 348B and PMC 8101B; Brennan Marine owned and/or operated Barges MWO 211 and ABC 767; Riverland Resources operated Barge SB 15B; and Robert B. Miller & Associates owned and/or operated Barges RM41, CGB 219, and ITEL 206.³

At all material times, City of St. Louis was a political subdivision of the State of Missouri and owned that part of the levee where the ADMIRAL was moored on April 4,1998.⁴

At all material times, the approximately 150 personal injury claimants not specifically named herein were alleged patrons of the ADMIRAL at the time of the accident. Since the Court bifurcated the proceedings in this admiralty action, conducting a separate trial on the issues of liability and limitation, the personal injury claimants' claims were not addressed at this time. Their individual claims will be addressed in a future proceeding.

Trial of this case was bifurcated. Due to the complex nature of this litigation, the Court elected to separate the issues of liability and limitation concerning the primary allision with the Eads Bridge and the secondary allision with the ADMIRAL, from issues of liability concerning the personal injury claimants' claims. Thus, a separate trial on the issues of liability and limitation commenced on June 13, 2000 and concluded after recesses, on September 28, 2000.⁵ An extended post-trial briefing period followed and the matter is now ripe for disposition.⁶

As stated previously, this opinion will only address the issues of liability and limitation of liability. The issues of damages and (if deemed applicable) prejudgment interest will be addressed separately at a later date. In order to present properly the Court's final determinations, background data in accordance with this Court's factual findings regarding the MV ANNE HOLLY, the M/V ANNE HOLY's crew, American Milling and Winterville's marine operations and working relationship, the ADMIRAL, the St. Louis Harbor, and the Eads Bridge is provided along with the Court's findings of fact pertaining to the M/V ANNE HOLLY's voyage on April 3-4, 1998 through the St. Louis Harbor and allisions with the Eads Bridge and the ADMIRAL Finally, the Court's factual findings are provided regarding certain post-April 4, 1998 events concerning the subject allisions.

After due consideration of the testimony and exhibits introduced at trial, and the parties' stipulations and briefs, the Court makes the following findings of fact and conclusions of law in accordance with Rule 52 Fed.R.Civ.P. All objections to trial evidence taken with the case are overruled with the exception of the objections made to certain National Transportation and Safety Board (NTSB) exhibits and Coast Guard exhibits, as well as certain exhibits pertaining to the "no contest" plea entered by Capt. Johnson in connection with a Coast Guard disciplinary action. The subject NTSB and Coast Guard administrative exhibits (not including the "no contest" plea exhibits) were all offered by President Casino and are as follows: A-4, B-t, B-10, C-3, C-10, E-9, F-9, G-4, G-9, J-9, and L-9.

The NTSB is granted authority to investigate certain marine casualties pursuant to 49 U.S.C. § 1131(a)(1)(E). The investigative authority granted to the NTSB is limited to "factfinding proceedings" with broad powers granted to the Chairman of the Board of Inquiry to designate parties to the investigation, and to conduct interviews of witnesses. No party or witness to a NTSB investigation can be represented by an attorney or by any person who also represents claimants or insurers. 49 C.F.R. § 845.1 et. seq. With regard to NTSB reports, 49 U.S.C. § 1154(b) provides: "No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report."

The NTSB exhibits offered into evidence consist of interviews with various witnesses in connection with the events of April 4, 1998, as well as the NTSB hearing transcript. The Court finds these exhibits inadmissible under Rule 801 F.R.E. These documents contain statements by persons not represented by counsel and questioned by persons other than judicial or legal officers of a court. These statements are offered solely for the truth of the matter asserted; i.e. the legal liability (negligence) of parties involved in this litigation. As to documents offered pursuant to Rule 801(d)(1) against Capt. Johnson, the Court finds that such documents are not admissible for impeachment purposes as Capt Johnson's trial testimony was consistent with all prior testimony at these administrative hearings. Nor does this Court consider these documents admissible under Rule 804 F.R.E. American Milling was not designated a party in interest to the NTSB hearing, and therefore, did not have the right to participate and develop the testimony offered through direct, cross, or redirect examination.

Subsequent to the subject allision(s), the Coast Guard also conducted an investigation pursuant to 46 U.S.C. § 6301. Offered into evidence by President Casino is Exhibit C-10, a transcript of the Coast Guard investigatory hearing conducted on April 8, 1998. The admissibility of a documents produced in the course of a Coast Guard casualty investigation is governed by 46 U.S.C. § 6308, which states:

"Notwithstanding any other provision of law, no part of a report of a marine casualty investigation conducted under § 6301 of this title, including findings of fact, opinions, recommendations, deliberations or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceeding other than administrative proceedings initiated by the United States ...".

The purpose of § 6308 is made clear by the regulations governing Coast Guard § 6301 investigations:

"An investigation of marine casualties and accidents and the determinations made are for the purpose of taking appropriate measures promoting safety of life and property at sea and are not intended to fix civil or criminal responsibility."

46 C.F.R. §...