United States District Court, E.D. Louisiana
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FACTUAL AND PROCEDURAL HISTORY
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
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.
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.
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.
FINDINGS OF FACT
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.
Ameri-Force Craft Services, Inc. (“Ameri-Force”),
is a domestic corporation that in part provides skilled
professionals and laborers to the marine, industrial, heavy
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.
Kostmayer Construction Company, LLC (“Kostmayer”)
is an industrial construction contractor and its operations
include maritime construction within the State of Louisiana.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...