Turn Servs. v. Gulf S. Marine Transp.
| Docket Number | Civil Action 20-3012-WBV-JVM |
| Decision Date | 13 January 2023 |
| Parties | TURN SERVICES, LLC v. GULF SOUTH MARINE TRANSPORTATION, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
TURN SERVICES, LLC
v.
GULF SOUTH MARINE TRANSPORTATION, INC.
Civil Action No. 20-3012-WBV-JVM
United States District Court, E.D. Louisiana
January 13, 2023
SECTION: D (1)
ORDER
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WENDY B. VITTER, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This case arises from an allision that occurred on February 22, 2020 between several barges that were in Turn Services, LLC's (“Turn Services'”) fleet and the M/V ASTORIA HARMONY. Four of the barges and the M/V ASTORIA HARMONY sustained damages as a result of the incident.
On November 6, 2020, Turn Services filed a Complaint for Negligence, Breach of Contract, and Demand for Indemnity against Gulf South Marine Transportation, Inc. (“Gulf South”), asserting claims for negligence and breach of contract.[1] Gulf South filed an Answer to the Complaint, denying those claims.[2] The owner and the manager of the M/V ASTORIA HARMONY, Naviera Grace Victoria, Inc. and H&J Marine Inc., respectively (collectively, “Intervenors”), intervened in this action to
recover damages sustained by the M/V ASTORIA HARMONY during the allision.[3]Thereafter, Turn Services, Gulf South, and the Intervenors filed a Joint Stipulation into the regard, stating that the Intervenors claim $54,319.93 for damages associated with the February 22, 2020 barge breakaway that resulted in barges alluding with the moored M/V ASTORIA HARMONY.[4] The parties further stipulated that the Intervenors will be entitled to a judgment in the amount of $54,319.93 against the party or parties found at fault in this litigation.[5] In light of the Joint Stipulation, counsel for the Intervenors waived his appearance at trial, without objection from counsel for the remaining parties.[6]
This matter was tried before the Court without a jury on December 12 and 13, 2022.[7] The Court has carefully considered the testimony of all of the witnesses and the exhibits entered into evidence during the trial, as well as the record in this matter. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court enters the following Findings of Fact and Conclusions of Law. To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts it as such. To the extent any conclusion of law may be construed as a finding of fact, the Court hereby adopts it as such.
II. FINDINGS OF FACT
1. In February 2020, Gulf South owned and operated the M/V CAPT. ZIGGY and the M/V CORKY.[8]
2. The M/V CAPT. ZIGGY is a 76-foot twin screw, uninspected, inland-service towing vessel with a four-man crew, while the M/V CORKY is a 65-foot twin screw, uninspected, inland service towing vessel with a four-man crew.[9]
3. In February 2020, the M/V CAPT. ZIGGY was operating as a towing vessel under a Time Charter Agreement entered into between Turn Services and Gulf South.[10]
4. The purpose of the Time Charter Agreement was “towing barges upon the instruction of the Charterer, Turn Services, LLC, to various destinations on the Lower Mississippi and on the Intracoastal Waterway.”[11]
5. In February 2020, Turn Services operated a barge fleeting facility located in the Mississippi River that spanned both the East and West Bank at or near Lower Mississippi River mile marker 91 (hereafter, the “Dockside Fleet”).[12]
6. In February 2020, Turn Services owned and operated spar barges that formed the base for each tier of barges in its fleet. The barges in Turn Service's fleet were secured or lashed together with wires and lines supplied by Turn Services while in the fleet.[13]
7. In February 2020, Turn Services owned and operated the M/V KELSO, the main fleet vessel for Turn Services' Dockside Fleet on the East and West banks of the Mississippi River.[14]
8. In February 2020, Turn Services chartered the M/V CAPT. GORDON V to assist the M/V KELSO in fleet operations. The Dockside Fleet Order for February 22, 2020 confirms that the only fleet boats for the Dockside Fleet were the lead boat, the M/V KELSO, and the assisting boat, the M/V CAPT. GORDON V.[15]
9. In February 2020, Turn Services was responsible for employing a fleet mate as the designated person in charge of the Dockside East and West bank fleeting areas.[16]
10. The fleet mate hired by Turn Services, Jordan Chauvin, worked Monday through Friday.[17]
11. Chauvin was not on duty on Saturday, February 22, 2020.[18]
12. On February 22, 2020, Turn Services assigned the M/V KELSO as the lead boat for the fleet, and the M/V KELSO was assigned the duties of the fleet mate.[19]
13. It was the responsibility of the M/V KELSO crew or fleet mate to ensure that the wire or the riggings was correctly placed and in good shape.[20]
14. In February 2020, the M/V CAPT. ZIGGY was the towing vessel for Turn Services' Dockside Fleet.[21]
15. The captain of the lead vessel, the M/V KELSO, testified that the responsibilities of the M/V CAPT. ZIGGY when it is in the Dockside Fleet awaiting lock turn it to follow “whatever order I would give to him in the fleet.”[22]
16. In February 2020, pursuant to the Time Charter Agreement and Turn Services' instruction, the M/V CAPT. ZIGGY worked to shift barges and to await transport through the locks to their intended destination.[23]
17. On February 22, 2020, the M/V CAPT. ZIGGY was “made up” to three barges in its tow: the RM-3315, IN-65499, and WMG779R.[24]
18. On February 22, 2020, the M/V CORKY and her tow of seven loaded dry cargo barges, the VLB-9169, MEM-2254, ACL-23424, ACL-07107, AEP-507, AEP-7036, and PTC-8910, were secured in the Dockside West Bank Fleet with the assistance of the M/V KELSO.[25]
19. On February 22, 2020, the Mississippi River experienced high water conditions. The Carrollton gauge showed the river stage at 15.61 feet.[26]
20. A Marine Safety Information Bulletin issued by the United States Coast Guard, “Carrollton Gauge at 15 Feet and Rising,” was in effect on February 22, 2020 - the date of the allision.[27]
21. The Marine Safety Information Bulletin issued by the Coast Guard imposed additional high water requirements found in 33 C.F.R. § 165.803(m) for the Lower Mississippi River.[28]
22. Pursuant to these additional high water requirements, the person in charge of a fleeting facility must ensure that each fleet consisting of eight or more barges is attended by at least one radar-equipped towboat for each 100 barges or less, and that each fleet has two or more towboats when: (1) barges are withdrawn from or moved within the fleet and the fleet at the start of the operation contains eight or more barges; or (2) barges are added to the fleet and the number of barges being added plus the fleet at the start of the operation total eight or more. The person in charge of each of these towboats is also required to maintain, “When moored, a continuous watch on the barges in the fleeting facility.”[29]
23. Due to the high water stage of the Mississippi River and for its additional responsibilities, Turn Services charged the owners of the barges in its fleet a 33% High Water Surcharge on February 22, 2020.[30]
24. On February 22, 2020, Turn Services instructed the M/V CAPT. ZIGGY to build tow with three loaded barges for transit through the locks.[31]
25. On February 22, 2020, the M/V CAPT. ZIGGY and her three-barge tow were connected by wires and lines in Turn Services' West Bank Fleet, awaiting clearance to travel through the Industrial Canal Locks. The M/V CAPT. ZIGGY's turn was number 36, indicating an approximate 36-hour delay.[32]
26. In the afternoon of February 22, 2020, Turn Services' spar wires in its West Bank Fleet parted without warning or notice to either the M/V CAPT. ZIGGY or the M/V CORKY. Those spar barge wires were the responsibility of Turn Services.[33]
27. At the time of the breakaway, the M/V CAPT. ZIGGY and the M/V CORKY were in Turn Services' Dockside West Bank Fleet, both awaiting their respective lock turns.[34]
28. There was no evidence introduced at trial that either the M/V CAPT. ZIGGY or the M/V CORKY in any way caused the breakaway.
29. As a result of the breakaway, all sixteen barges in Turn Services' West Bank Fleet broke free from the spar barges. The sixteen barges and the M/V CAPT. ZIGGY and M/V CORKY were connected together and began floating downriver as a block of vessels.[35]
30. The cause of the spar wires breakage has not been determined by either party.[36]
31. After noticing the breakaway, Artie Brito, the Turn Services dispatcher whose job was to coordinate boats and fleets, called the captain of the M/V CAPT. ZIGGY who sounded distraught.[37]
32. The Turn Services dispatcher noticed that it appeared that the M/V CAPT. ZIGGY and M/V CORKY were racing towards the M/V ASTORIA HARMONY following the breakaway.[38]
33. At the time of the breakaway, the M/V ASTORIA HARMONY was anchored downriver from the Dockside West Bank Fleet.[39]
34. After being alerted of the breakaway, Captain Jason Segura, who was in the M/V CAPT. ZIGGY wheelhouse, immediately instructed the tug's deckhand to start the engines.[40]
35. The engines of the M/V CAPT. ZIGGY were not on at the time of the breakaway.[41] The engines of the M/V CAPT. ZIGGY started within sixty seconds of the breakaway notification.[42]
36. While Turn Services' dispatcher testified that he advised someone aboard the M/V CAPT. ZIGGY to keep its engine on prior to the breakaway, the witness
was unable to recall who he so instructed. Further, the witness' notes made on that day failed to include notes of any such instruction.
37. The captain of the M/V CAPT. ZIGGY, Captain Jason Segura, testified that he was not advised to keep his engines running on the day of the collision.[43]Captain Segura's testimony in other respects is supported by documentary and other evidence, including MRTIS and AIS-maritime information systems-as well as Turn...
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