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Moench v. M/V Salvation

United States District Court, W.D. Louisiana, Lafayette Division

April 24, 2015

DR. GEORGE T. MOENCH, ET AL
v.
M/V SALVATION, ET AL

JUDGMENT

RICHARD T. HAIK, Senior District Judge.

This matter involved an allision between the SES EKWATA, owned by the George T. Moench Irrevocable Trust, whose co-trustees are Dr. George T. Moench and Jennifer J. Aregood, and the M/V SALVATION, owned and operated by Marquette Transportation Company Inland Gulf, LLC ("Marquette"). The SES EKWATA was moored at the facilities owned by Basin Fleeting, Inc. ("Basin") at the time of the allision.

A trial was held in the above captioned matter on May 5-6, 2014. At that time, oral Rule 52 motions as to both damages and liability were argued by Marquette and DENIED. Basin joined in the motion for damages. An oral Rule 52 Motion for Liability by Basin was GRANTED. Based on the evidence presented at trial, the Court rules as follows:

FACTUAL FINDINGS

In 2005, the SES EKWATA, a 116'×40' fiberglass trimaran, was purchased by the plaintiffs. The vessel is owned by the George T. Moench Irrevocable Trust, of which Dr. Moench and his daughter are the trustees. Dr. Moench had some construction experience and had owned various other vessels in his lifetime, some of which he refurbished on his own prior to purchasing the EKWATA (Doc. #136, Trial Transcript, Pages 9-12). Dr. Moench testified and presented evidence that the vessel was essentially a hull when he purchased it, that he had completed significant renovations on the vessel prior to the allision, that he had lived on the EKWATA prior to the allision, and that he had plans to make the vessel his permanent home. The vessel did not have shafts and was without a rudder at the time of the incident.

On May 17, 2011, the United States Coast Guard issued Captain of Port Order 11-033 requiring the plaintiffs to move their vessel, the SES EKWATA, a fiberglass trimaran, from its location at 1681 Front Street in Morgan City, Louisiana, to a secure location prior to the opening of the Morganza Spillway Locks. The Coast Guard provided alternative docking locations, one of which was Basin Fleeting, Inc. located in Berwick, Louisiana ("Basin") Plaintiffs entered into an agreement with Basin, who towed and moored the EKWATA at its fleeting facility located on River Road in Berwick, Louisiana, located at Mile 122 of the Atchafalaya River and Mile 97 of the ICW on May 18, 2015. The United States Coast Guard rescinded the Order 11-033 once it was determined the vessel was properly moored.

On June 10, 2011 shortly before 1:00 a.m., the M/V SALVATION, owned and operated by Marquette Transportation Company Gulf Inland, LLC ("Marquette") and towing two barges, allided with the EKWATA. Captain Clyde Harrah was the pilot of the SALVATION at the time. Prior to the allision, the Captain was given orders by the Berwick Traffic Control to hold his position and stand by at a point in the navigational channel of the Atchafalaya River. The Captain was aware that there were higher than normal currents in that location at the time. (Doc. #136, Trial Transcript, Page 192, Line 2-4). The Captain held the position until he briefly left the controls for a cup of coffee, at which time he lost control of the vessel and was unable to recover. (Doc. #136, Trial Transcript Pgs. 201-204). The deck hand on duty who was supposed to be on watch was, instead, below deck when the situation arose and the allision occurred (Doc. #136, Trial Transcript, Page 215, Lines 6-14). The Captain failed to sound the general alarm prior to the allision until immediately prior to contact (Doc. #136, Trial Transcript, Page 215, Lines 15-18). The Captain also failed to radio BERWICK VTS to let them know he was in trouble (Doc. #136, Trial Transcript, Page 215, Lines 10-20). Further, the Captain failed to use an assist boat once he lost control of the vessel. There are no records of the Captain calling for assistance or to warn at any time. There are no records of the Captain calling Basin Fleeting prior to making contact with its fleet.

At the time of the allision, the EKWATA was afloat (Doc. #136, Trial Transcript, Page 214, Lines 16-17) and was, according to Dr. Moench's testimony, in the process of being refurbished. The testimony of Joey Galloway, General Manager of Basin Fleeting, was that the EKWATA was lit at the time of the allision. (Trial Transcript, Doc. #136, page 305, line 19-page 306, line 3). Following the allision, the vessel was severely damaged and took on water. Additionally, the unrebutted testimony was that the vessel was vandalized post-allision, resulting in the loss of purchased equipment. (Trial Transcript, Doc. #136, page 33, line 19-page 36, line 13).

An intervention was filed in this matter on June 11, 2014 by Emile Leonard Price and Jo Marie P. Musso alleging the vessel was wrongfully on their land, on a sandbar, unmoored, and unlit. They alleged the vessel was a hazard to navigation. According to a Status Update filed by the plaintiffs on November 18, 2014, Dr. Moench had the vessel moved from the intervenor's property to a new location, where it was properly moored. Marquette Transportation notified the Court on February 20, 2015, however, that the vessel had been improperly moored and was, once again, set adrift. Duval Arthur, director of the St. Mary Parish Department of Homeland Security confirmed that the SES EKWATA had been adrift for a significant period of time, ultimately colliding with a bridge in Berwick, Louisiana. The location of the vessel is currently unknown to the Court.

LAW and APPLICATION

The plaintiff has argued that the presumption of fault set out in The Oregon, 158 U.S. 186 (1895) and the presumption of causation announced in The Pennsylvania, 86 U.S. 125 (1874) both apply to the instant case. The Court agrees. The Oregon allows a presumption of fault by a moving vessel when it allides with an anchored vessel or a fixed object. Such was the case here. The exceptions to the presumption of fault set out in The Oregon do not apply in this case as the Court does not find from the evidence that the defendant acted with reasonable care, the allision was the fault of the EKWATA, or that the allision resulted from an "inevitable accident." (Id. at 192.)

The EKWATA was properly moored, according to the United States Coast Guard, and stationary at the time it was struck by the defendant's vessel. (Trial Transcript, Doc. #136, page 32, lines 19-22) The evidence shows the defendant's captain had no lookout, was aware of the difficult conditions, and left the wheel of the vessel, resulting in the accident at hand.

The Pennsylvania sets out a presumption of causation. That is, when a vessel at the time of an allision is in violation of a statutory rule intended to prevent allisions it is presumed to be a cause of the accident. In order to exonerate itself, a vessel owner must show that the violation could not have contributed to the allision. As set forth in the evidence, Marquette failed to have a proper lookout, the vessel improperly came to a holding pattern in a navigation channel, the Captain worked excessive hours, the Captain left the wheel of the vessel in difficult conditions, the Captain failed to use an assist boat after losing control of his tow, and the Captain failed to failed to sound the general alarm. The evidence clearly supports a finding that these statutory violations were the cause of the allision between the EKWATA and the M/V SALVATION.

In In re: Mid-South Towning Co., 418 F.3d. 526 (5th Cir., 2005), the Court noted, "Evidentiary presumptions... are designed to fill a factual vacuum. Once evidence is presented... presumptions become superfluous because the parties have introduced evidence to dispel the mysteries that give rise to the presumptions." In this matter, the Court finds the evidence clearly supports a finding of fault by Marquette without the application ...


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