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In re Marquette Transportation Co. LLC

United States District Court, E.D. Louisiana

February 14, 2018


         SECTION "L"(3)



         This case arises out of a December 29, 2014 allision between barges in the tow of M/V MYRA ECKSTEIN, a tugboat owned and operated by Marquette Transportation Company, LLC (“Marquette”), and barges MISS DARLENE and MISS ASHLEY, owned by Monticello Equipment Corporation (“Monticello”) and operated by Kostmayer Construction, LLC (“Kostmayer”). At the time of the allision, Marquette was operating the M/V Myra Eckstein near the CEMUS Dock Facility located on the East Bank of the Mississippi River in Baton Rouge, LA. The M/V Myra Eckstein “contacted” the two crane barges operated by Kostmayer. At the time of the accident, the MISS DARLENE crane barge was spudded down off the East Bank of the Mississippi River, in relation to work Kostmayer was completing on an upriver mooring dolphin attached to the CEMUS dock near the 190 bridge in Baton Rouge at mile post 233.8 AHP. The MISS ASHLEY was secured to the CEMUS dock. Plaintiffs Joseph Solomon (“Solomon”) was employed by Ameri-Force Craft Services, Inc. (“Ameri-Force”) and assigned to work for Kostmayer. At the time of the accident, Solomon was working on the MS Ashley, one of the crane barges involved in the allision.

         On June 25, 2015, Marquette filed for limitation of liability relating to this incident. R. Doc. 1. On July 31, 2015, Solomon answered the limitation of liability as a claimant. Solomon avers that when the M/V Myra Eckstein allided with the barge where he was working, he sustained personal injuries. Solomon seeks various damages, including loss of earnings and earning capacity, pain and suffering, and mental anguish and emotional trauma. Solomon also brought a third-party claim against Kostmayer as his Jones Act employer. He seeks damages under the Jones Act, 46 U.S.C. § 30104, and general maritime law.

         On January 6, 2016, Interested Builders Risk Underwriters (“IBRU”) answered Marquette's limitation in liability as a claimant. IBRU was an insurer of Kostmayer for the barges and dock involved in the allision. IBRU claims that it is legally and/or contractually subrogated to the rights or claims of Kostmayer by virtue of payment of claims for the damage caused by the allision.

         This matter came on for trial without a jury on the liability portion of the case on February 8, 2018. The trial lasted two days. The Court has carefully considered the testimony of all of the witnesses, the exhibits entered into evidence during the trial, as well as the record. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact may be construed as conclusions of law, the Court hereby adopts them as such. To the extent that any conclusions of law constitute findings of fact, the Court adopts them as such.


         (1) Marquette Transportation Company, LLC (“Marquette”) is a company in the marine transportation business. It regularly moves cargo in barges along the inland waterway including the Mississippi River. Marquette is the owner of the M/V MYRA ECKSTEIN. Marquette was the employer of the crew, including the Captain (Keith Trout), aboard the M/V MYRA ECKSTEIN on December 29, 2014.

         (2) Ameri-Force Craft Services, Inc. (“Ameri-Force”), is a domestic corporation that in part provides skilled professionals and laborers to the marine, industrial, heavy construction industry.

         (3) Signal Mutual Indemnity Association, Ltd. (“Signal”), is a group self-insurer, authorized by the Department of Labor to discharge the liability of its members, including Ameri-Force, under the Longshore and Harbor Workers' Compensation Act 33 U.S.C. 901 et seq. (LHWCA) as a result of injuries to their employees.

         (4) Kostmayer Construction Company, LLC (“Kostmayer”) is an industrial construction contractor and its operations include maritime construction within the State of Louisiana.

         (5) Joseph Solomon is a resident of Ascension Parish, Louisiana and has worked most of his life as a welder and fitter on industrial construction projects, some of which were maritime in nature.

         (6) On February 17, 2014, CEMUS contracted with Kostmayer for the performance of repairs to the CEMUS dock facility (the “CEMUS project”), with the condition that Kostmayer was obligated to obtain all necessary permits and ensure the work was performed pursuant to the permits. Kostmayer received specifications showing the 1998 plans (Drawing 19430-10 shows a 200-foot walkway) and a separate drawing in the same bid package (19430-52) that shows the extension for two ships to the property line. The 2012 plans, through drawing 19430-52, positioned the UMD 285 feet upriver from the Upper Dock, 85 feet further upriver than shown in the 1998 plans approved by the Corps of Engineers. While work was performed at the UMD and Upper 9 Dock, Kostmayer was also involved in construction work at the lower end of the dock. The construction work began in July 2014 and was progressing at the time of the December 29, 2014 allision.

         (7) In order to complete the CEMUS project, Kostmayer utilized a fleet of barges, some of which it owned and others which were leased but were under the direction and control of Kostmayer, including the MISS ASHLEY and MISS DARLENE. Kostmayer also hired some employees through Ameri-Force. One such employee, Joseph Solomon, filled out his application on September 26, 2014, and was hired as a structural fitter. Beginning the following week, Solomon commenced working from Kostmayer barges repairing and constructing the dock. Solomon was supervised by Kostmayer employees, Kostmayer provided tools and other equipment for him to perform his tasks, and Solomon was directed by Kostmayer employees at the CEMUS project. Mr. Solomon had never worked under the direct and/or control of Kostmayer before he began working on the CEMUS project.

         (8) At all relevant times, Solomon was the payroll employee of Ameri-Force and the borrowed employee of Kostmayer. From October through the time of the incident, Solomon worked almost exclusively from the man-lift on one barge, the MISS ASHLEY. The MISS ASHELY was 30 feet wide and 120 feet long with a raked bow. The MISS ASHLEY was outfitted with a man-lift and cherry picker which were utilized by the Kostmayer employees to work on the CEMUS dock. The MISS ASHLEY was moved by a tug into position along the dock. It was periodically moved and repositioned as the work progressed. When the barge was moved, Solomon, among other employees, assisted with the lines and positioning equipment to allow the barge to be moved safely. Solomon worked as a structural fitter, repairing and constructing the dock structure by removing old metal framework and installing new beams and supports. This work was conducted using the man-lift to access and remove the damaged portions of the dock. The new pieces were measured and cut from the deck of the barge. These pieces were raised with the cherry picker and then fitted into place from the man-lift. On occasion, structural fitters would complete some of this work from the scaffolding attached to the dock. However, Solomon rarely worked from the scaffolding. The MISS ASHLEY was equipped with a cherry picker crane and a man-lift, including a built-in generator, and all other equipment necessary to complete the fitting tasks. The fitting tools were stored in a seacan on the barge. Additionally, the employees working on the barge, including Solomon, were provided and required to wear a work vest equipped with floatation for their safety.

         (9) At the time of the December 29, 2014 accident, Solomon worked from the man-lift, equipment installed on the MISS ASHLEY throughout his employment, as the barge was operating from the Mississippi River. Except for a few times during his employment, he always worked from the MISS ASHLEY which utilized both the man-lift and a cherry-picker to construct the dock throughout the CEMUS project. Between October and the time of the accident in December 2014, all of the structural fitting and work he performed occurred from the barge. He never worked from the dock to remove the damaged decking. Instead, he used the man-lift positioned on the barge MISS ASHLEY, almost exclusively to remove this old material.

         Solomon's work as a fitter for Kostmayer/Ameri-Force was essential to accomplishing the mission of the MISS ASHLEY, namely constructing the dock structure by removing old metal framework and installing new beams and supports.

         (10) On December 29, 2014, Marquette's tugboat, M/V MYRA ECKSTEIN, was proceeding down bound on the Mississippi River pushing a fleet of 35 standard river barges, 5 barges long and barges wide. The barges assemblage measured approximately 245 feet in width and 1000 feet in length. The tug generated 7200 horsepower. Captain Keith Trout was the captain on watch aboard the M/V MYRA ECKSTEIN on December 29, 2014. Prior to reaching the 190 bridge, the M/V Myra Eckstein came around Wilkerson Point, which is a hair over a mile from the U.S. 190 bridge. Captain Trout visually observed the Kostmayer barge from a distance of 1 mile. The Kostmayer barge was also visible on the Captain's radar at a distance of 1 mile. As the M/V MYRA ECKSTEIN navigated through a standard location for passage under the Highway 190 Bridge between the number 1 and 2 bridge spans, it allided with Kostmayer's barge, MISS DARLENE, spudded on the center channel side of an upriver mooring dolphin (“UMD”) under construction by Kostmayer and continued down river and struck the MISS ASHLEY which was moored to the CEMUS dock.

         (11) Prior to December 29, 2014 allision, Captain Trout had transited under the U.S. 190 bridge 30 to 50 times. Captain Trout had been through the bridge southbound within a month of the incident. When the Captain last passed through the area there were barges in the vicinity of the mooring dolphin. Captain Trout knew about the ongoing work being performed upriver of the CEMUS dock prior to arriving in the area on December 29, 2014. Captain Trout had passed the location in the past and observed the work being performed on the dock from moored barges. In addition, Marquette had created a River Conditions Summary that informed Marquette's captains of hazards on the river referencing the locations of the hazards by river mile. By August 11, 2014, Marquette had disseminated a River Conditions Summary to its captains that specifically identified the construction at the CEMUS dock as a high risk hazard.

         (12) Captain Trout's original plan was to navigate the tug and tow as close as possible to the western leg/support column of the U.S. 190 bridge, referred to as pier number 2. He state that as he rounded the bend at Wilkerson Point he was deeper in the bend than he intended and came close to striking a dock upriver from the 190 bridge. After coming around Wilkerson Point, Captain Trout visually observed the Kostmayer barge moored to the upriver mooring dolphin at a distance of 1 mile. Captain Trout stated that while at the controls of the MYRA ECKSTEIN, he lost focus on the task at hand. After coming around Wilkerson Point, Captain Trout focused solely on the barge that was alongside the mooring dolphin and lost situational awareness. Captain Trout testified, “I was focused on that (the barge) and wasn't paying attention to the task at hand.” As a result, Captain Trout navigated the MYRA ECKSTEIN too close to the east bank of the river. The starboard corner of the MYRA ECKSTEIN barge was approximately 200 feet from pier number 2 while Captain Trout intended be closer than 100 feet from the pier.

         (13) No adverse weather conditions or traffic conditions prevented Captain Trout from piloting his tow more towards the middle of the river. It was an average day, visibility was good, there was no fog or rain, the winds were light, 5 mph and, notably, the current was very minimal, less than 2 mph. When the M/V MYRA ECKSTEIN came around Wilkerson Point there was no traffic between her and the U.S. 190 Bridge. The M/V MYRA ECKSTEIN was not meeting any northbound upriver traffic, no other traffic was coming through the bridge, there was no moving vessel traffic, and there was nothing in the water obstructing the path of the M/V MYRA ECKSTEIN.

         (14) Kostmayer had two barges onsite, which were struck by the Marquette tug and tow: the first, the MISS DARLENE, was a crane barge moored beside the upriver mooring dolphin while the second, the MISS ASHLEY, was a smaller barge equipped with a “cherry picker” crane and a man lift and was moored beside the dock down river from the mooring dolphin. The dimensions of the crane barge, MISS DARLENE, are a length of 145 feet and breadth of 70 feet. She has a raked bow for ease of movement.

         (15) Just beneath the 190 bridge, the M/V MYRA ECKSTEIN struck the crane barge positioned beside the upriver mooring dolphin with the port-side front corner of her foremost barge under tow. The M/V MYRA ECKSTEIN then traveled down river and struck the barge with the cherry picker and man lift pushing the barge into the dock. The M/V ...

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