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Dixie Marine, Inc. v. Q JAKE M/V

United States District Court, E.D. Louisiana

August 22, 2017

DIXIE MARINE, INC.
v.
Q JAKE M/V, ET AL.

         SECTION: “J” (2)

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

         This litigation arises out of a mooring incident at the Andry Street wharf on January 26, 2016, involving Defendant M/V Q JAKE (“Q JAKE”) and Plaintiff Dixie Marine, Inc. (“Dixie Marine”). Dixie Marine sued the Q JAKE in rem claiming the vessel negligently damaged Dixie Marine's wharf while attempting to dock. The Q JAKE responded by asserting a negligence counterclaim against Dixie Marine.

         The Court held a bench trial on July 17 and 18, 2017, and took the matter under advisement. Having considered all the evidence and counsels' arguments, the Court issues the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such.

         FINDINGS OF FACT

         1.

         Plaintiff, Dixie Marine, is a ship repair business that leases the Andry Street wharf, located on the Mississippi River in New Orleans, Louisiana, from the Port of New Orleans (“Port”).

         2.

         Defendant, M/V Q JAKE, is owned by Q JAKE Shipping Ltd, which entered a restricted appearance on behalf of the vessel under Rule E of the Supplemental Rules for Certain Admiralty and Maritime Claims.

         The Q JAKE/Andry Street Wharf Incident

         3.

         The Q JAKE is a 750 foot bulk cargo carrier. The Q JAKE's deadweight tonnage capacity (DWT) - i.e., the maximum weight of cargo, stores, fuel, etc. the vessel can safely carry - is 82, 188 metric tonnes (MT). When fully loaded, the Q JAKE displaces (i.e., weighs) 94, 590 MT. Unladen, the Q JAKE displaces approximately 12, 400 MT.

         4.

         On January 20, 2016, the Q JAKE completed loading a cargo of soybeans at the ADM Terminal in Reserve, Louisiana. After loading, the Q JAKE displaced approximately 75, 000 MT and drew over 40 feet. The Mississippi River was high at this time and near flood stage with strong currents.

         5.

         At approximately 12:37 p.m., while heading down bound on the Mississippi River, the Q JAKE collided with drifting barges that had broken away from the United Bulk Terminal Facility. The collision punctured the Q JAKE's hull, near the port bow. The Q JAKE anchored at Magnolia anchorage where it awaited the United States Coast Guard and assessed the damage.

         6.

         The Q JAKE contracted with Boland Marine & Industrial, LLC (“Boland”) to perform the hull repairs. Boland's wharf was full, so Boland coordinated verbally with Dixie Marine for the use of the Andry Street wharf.

         7.

         The Andry Street wharf is a T-head type pier consisting of an approach roadway that runs perpendicular to the shoreline and a main pier platform that runs parallel to the shoreline. The wharf is approximately 900 feet long.

         8.

         Along the riverside edge of the wharf are thirteen (13) fifty-ton (50T) bollards, spaced approximately sixty (60) feet apart. Bollards are used to moor and secure a vessel to a wharf or other structure.[1] For the purposes of trial, the bollards were numbered consecutively beginning with bollard no. 1 on the furthest upriver portion of the wharf and ending with bollard no. 13 on the furthest downriver portion. Each mooring bollard is attached to the underlying dock substructure with four one-inch diameter anchor bolts.

         9.

         The wharf is composed of two main sections pertinent to the issues in this case: (1) the upriver work platform and (2) the main wharf platform. The upriver work platform, containing bollards nos. 1 and 2, is approximately 100 feet long and is connected to the main wharf platform by a walkway. The main wharf platform is 560 feet long and supports bollards nos. 3 through 13.

         10.

         On January 26, 2016, the Mississippi River was at a height of 16.38 feet on the Carrollton Gage, which was near flood stage. At 7:34 a.m. that same day, the Q JAKE left Magnolia anchorage and proceeded to the Andry Street wharf. At 11:45 a.m., compulsory pilot Steven Vogt (“Pilot Vogt”) took command of the vessel.

         11.

         Under the command of Pilot Vogt, the Q JAKE attempted to dock at the Andry Street wharf with the assistance of two tugs, the J.K. MCLEAN and the MIRIAM COOPER. The J.K. MCLEAN is a Z-drive propulsion tractor tug with a rated horsepower of 5, 360. The MIRIAM COOPER is a twin screw conventional tug with a rated horsepower of 4, 200. Pilot Vogt positioned the J.K. MCLEAN on Q JAKE's bow and the MIRIAM COOPER on Q JAKE's stern.

         12.

         At approximately 1:45 p.m., the first mooring line went out to the wharf. The Q JAKE's bow was facing upriver near bollard no. 1 and its stern near bollard no. 13. At the direction of Pilot Vogt via VHS radio, line handlers began tying the mooring lines to bollards nos. 1, 2, 3, 7, 9, and 13.

         13.

         At 1:55 p.m., bollard no. 7 failed but remained partially attached to the wharf. The Q JAKE's aft spring line also parted and the Q JAKE shifted off the wharf.

         14.

         Due to the strong current pushing the bow off the wharf, Pilot Vogt called in additional tug assistance. The ANGUS R. COOPER arrived to assist at 2:31 p.m. and the CAPT. JIMMY T MORAN (“JIMMY T”) arrived at 2:55 p.m.

         15.

         After the first mooring attempt, Walter Haley, a Boland employee, informed Dixie Marine's Vice President of Operations, Robbie Dendinger, of the damage to bollard no. 7. Dendinger arrived at the wharf as the Q JAKE was making its second mooring attempt.

         16.

         At 3:08 p.m., the Q JAKE was parallel against the wharf with all four tugs in position to commence mooring operations.

         17.

         At 4:20 p.m., all twelve lines were secure to bollards nos. 1, 2, 3, 6, 9, and 13 with two lines to each bollard. Pilot Vogt then released the JIMMY T and Dendinger departed the wharf. Three tugs, the ANGUS COOPER, the J.K. MCLEAN, and the MIRIAM COOPER, remained to assist the Q JAKE.

         18.

         At 4:50 p.m., the forward bollards nos. 1 and 2 failed and ripped completely off the wharf and the Q JAKE came off the wharf by the bow.

         19.

         Shortly after the second failed attempt, the Q JAKE's master and Pilot Vogt agreed to abandon the mooring at the Andry Street wharf. The Q JAKE temporarily berthed without incident at the Alabo Street wharf from 6:10 p.m. until 7:20 p.m. using the same three tugs, the J.K MCLEAN, the MIRIAM COOPER, and the ANGUS R. COOPER. Around 8:00 p.m., the Q JAKE moved to the Poland Avenue wharf, again using the same three tugs. Both the Alabo Street and Poland Avenue wharfs are in close proximity to the Andry Street wharf and are equipped with the same 50T bollards.

         The Q JAKE's Mooring Operations at the Andry Street Wharf

         20.

         At the time of the incident on January 26, 2016, the Q JAKE's crew was sufficiently rested in compliance with 46 CFR 15.1111.[2]

         21.

         The Court finds that the Q JAKE was equipped with and properly utilized sufficient mooring equipment for a vessel of its size during high river conditions. There was no evidence of the crew mishandling or improperly securing the lines. Twelve lines, two lines per bollard, is the industry standard, reasonable under the circumstances, and should have been sufficient to hold the Q JAKE in place at the Andry Street wharf in high river conditions.[3] The Q JAKE used 17 mooring lines at the Poland Avenue wharf merely out of an abundance of caution. Both parties' experts acknowledged that a line should typically part before a dock bollard is damaged.[4]

         22.

         Dixie Marine claims that the sudden parting of the stern lines created sudden shock loads (i.e. loads shifting from one line to the other) which caused the vessel's weight to shift upriver and the vessel's lines to rip the bollards from the wharf.[5] Dixie Marine's theory of the incident relied heavily on the testimony of Walter Haley, a Boland employee and eyewitness to the mooring attempts. Haley testified that on both attempts the sudden parting of stern lines caused the Q JAKE's stern to swing out, which in turn exerted excessive force on the other bollards. Haley also testified that the Q JAKE used only six lines on its first attempt, and twelve on the second. Haley stated that he witnessed approximately 150 vessel berthings per year. Although Haley claimed that this incident in particular was more memorable than others, the Court finds his testimony unconvincing in light of other objective evidence directly contradicting his testimony and Dixie Marine's theory. Specifically, the MRTIS video[6] shows that the vessel's bow - not its stern - swung out from the wharf on both attempts.

         23.

         The Court also finds the Q JAKE's experts more credible and their conclusions more persuasive.[7] In particular, the Court is persuaded by the testimony and report of the Q JAKE's mooring and navigation expert, Captain Maurice Ryan, who testified that although the mooring lines had a breaking load of 89 tonnes, shock loads could not be a significant factor to the bollards' failure because the elasticity of the mooring lines and the rendering point of the mooring winch brakes would minimize shock loads.[8]

         24.

         The Court finds that the Q JAKE was not obligated to utilize additional tugs on its mooring attempts. Pilot Vogt is an experienced Mississippi River pilot having piloted several vessels of the same size and draught as the Q JAKE under similar high river conditions.[9] Based on his seventeen years of experience and taking into account the river conditions as well as the condition of the Q JAKE, Pilot Vogt felt that two tugs, one of which was a Z-drive propulsion tractor tug, was appropriate under the circumstances for the first mooring attempt. Pilot Vogt testified that tractor tugs are particularly useful and efficient due to their increased horsepower and maneuverability. The Court again finds the testimony and report of the Q JAKE's expert, Captain Maurice Ryan, particularly compelling. Captain Ryan, who has berthed similar sized vessels many times in the Mississippi River, including in high river conditions, stated that Pilot Vogt's discretion for utilizing two tugs during the first mooring attempt was the industry standard for that size vessel under those river conditions.[10] Captain Ryan also confirmed that it was proper for Pilot Vogt to position the stronger, more capable tractor tug, the J.K. MCLEAN, on the bow of the vessel. Pilot Vogt testified that he and the Q JAKE's master were in constant communication with one another and that throughout the mooring attempts, the master never expressed any concern over the number of tugs. He also stated that there were no issues with the tug captains or line handlers following his commands.

         Dixie Marine's navigation expert, Captain Scruton, who has never berthed a vessel in the Mississippi River as a master, testified that two tugs were insufficient for the Q JAKE during high river conditions. However, Captain Scruton drew this conclusion based only on the number of tugs and without considering their respective horsepower. The Court agrees with Captain Ryan's testimony that consideration of the capabilities of the tugs and not just the number of them is paramount in forming an opinion on this issue.

         25.

         After the first attempt was unsuccessful, Pilot Vogt promptly called for additional tug assistance before he made another attempt. After all lines were secure, Pilot Vogt released one of the four tugs. Captain Ryan's report stated that this was reasonable and in line with the industry standard for a pilot. Bollards nos. 1 and 2 failed thirty minutes after the JIMMY T departed, despite the fact that all lines were secure and three tugs were assisting the Q JAKE. Furthermore, the same three tugs were used to dock the Q JAKE at the Poland and Alabo Street wharves and did so without incident. Accordingly, the Court finds the decision to release the forth tug after the second mooring attempt was not unreasonable.

         Condition of the Andry Street Wharf

         26.

         Dixie Marine has operated the Andry Street wharf since the 1960s when it was a timber structure. Under its lease with the Port, Dixie Marine is responsible for all maintenance and repairs of the wharf and for keeping it in a safe condition for its intended purpose of berthing vessels. Dixie Marine has made repairs to the wharf over the years by adding various reinforcements with steel and concrete.

         27.

         The upriver work platform, containing bollards nos. 1 and 2, has a four to five inch thick concrete deck supported by steel piles. The upriver work platform is connected to the main wharf platform by a steel and concrete walkway.

         28.

         The main wharf platform supports bollards nos. 3 through 13. The furthest downriver section of the main platform (i.e., approximately bollards nos. 8 through 13) is constructed with steel piles and a concrete deck, similar to the upriver work platform. However, the other portion of the main wharf platform (i.e., approximately bollards nos. 3 through 7) still has elements of the wharf's original timber structure. Specifically, beneath the concrete deck and above the steel piles, the substructure contains timber cap beams and timber stringers. In between the main wharf platform and the shore is a timber deck area which was structurally segregated from the main wharf area in 2015 due to its excessively deteriorated condition.

         29.

         Since 2008, Dixie Marine has conducted three repair projects relating to the wharf's structure totaling $433, 125.00. For each repair project at Dixie Marine, local engineer Don Barnes of Barnes Engineering Company, Inc. (“Barnes Engineering”) provided the specifications, the Port approved and permitted the repairs, and contractor Durward Dunn, Inc. performed the repairs.

         30.

         The first repair project was in 2009 when Dixie Marine repaired some damaged piles and concrete after a towing vessel allided with the upriver work platform. The project cost $229, 890.00.

         31.

         In 2012, a vessel moored at Andry Street wharf and ripped off bollard no. 4. Dixie Marine did not replace bollard no. 4 before the Q JAKE incident.

         32.

         After a fire at the wharf in 2013, the Port became aware of the unsafe condition of the timber substructure and circulated a memorandum documenting that the main wharf substructure and the approach ramp were found to be “in such poor structural condition because of age and rot that the timber substructure has failed, ” that “it is highly probable that additional substructure will collapse without warning, ” and the conditions “present a threat of loss of life and/or destruction of additional infrastructure.”[11]The memorandum also documents that the Port notified Dixie Marine of its findings.

         33.

         In June 2013, Dixie Marine conducted its second repair project to address the fire damage along the mid-fender line of the main platform. The project cost $127, 000.00 and included inter alia replacing the ...


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