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American River Transportation Co., LLC v. M/V Polesie

United States District Court, E.D. Louisiana

October 16, 2019

M/V POLESIE, her engines, tackle, apparel etc., in rem

         SECTION “I” (4)



         The plaintiff's Motion to Quash/Limit Subpoena Duces Tecum to Kyle Smith (Rec. Doc. No. 10) came before the Court on October 9, 2019, with oral argument. Based on the briefs, the arguments of counsel, and the Court's reasons given at the hearing, as supplemented herein, the Court orders the following.

         I. Factual Background

         American River Transportation Co., L.L.C. d/b/a ARTCO Stevedoring (“ARTCO”) operates three midstream ship buoy systems in the Mississippi River at Mile 110 near Waggaman, Louisiana. ARTCO holds a permit from the U.S. Army Corps of Engineers as a berth for deep draft ships. The facility has three berths each with three mooring buoys at the head or upriver end of the berth and two more at the downstream end. They are typically referred to as ARTCO Mile 110 and separately as Mile 110 upper, Mile 110 middle, and Mile 110 lower. The ships using each berth have an area where they moor and drop their anchors, and the berthing areas do not overlap. No. ship is allowed to berth at the ARTCO buoys without signing a berth application. The application requires that the ship leave when cargo operations are finished and if it fails to do so it must pay a charge for failure to vacate.

         In March 2019, during extreme high river conditions, the M/V POLESIE, a deep draft ship, was called by her charter to unload its fertilizer cargo for ADM. ADM is the parent company for the subsidiary ARTCO Mile 110. The M/V POLESIE's agent and Master signed the berth application, which was accepted by ARTCO, and the ship moored to discharge its cargo. She was berthed at Mile 110 upper. Neither ADM nor ARTCO Mile 110 warned the vessel's officers or her owners about any history of stuck anchors and broken mooring hawsers, winches, and windlasses at ARTCO Mile 110 during extreme high river conditions.

         When she finished offloading and was supposed to leave, the M/V POLESIE could not do so because she could not lift her port anchor. The parties disagree as to the reason for this failure. The plaintiff contends that the vessel's port anchor windlass (the motor that hoists the anchor chain) was in poor condition and had not been properly maintained. The defendant argues that, when she arrived at the berth, the vessel was seaworthy and in class with no deficiencies of her anchor or mooring machinery. In either case, the M/V POLESIE tried to leave on April 11, 2019 at around 9:00 a.m. (local time) while still under extreme high river conditions. However, her port anchor was stuck in the riverbed, and her port windlass was found to be broken during the efforts to heave up the anchor. The M/V POLESIE claims that this damage was the result of the “foul holding ground” in the extreme high river conditions and not the condition of the vessel. To avoid arrest of the vessel by ARTCO when she finally left on April 12, 2019, a Letter of Undertaking was provided as a security against ARTCO's alleged delay claim in the amount of $350, 000. ARTCO claims, among the other charges, liquidated damages of $216, 900 (28.92 hours x $7500 per hour) for the delayed “stand-by” time under the ARTCO Stevedoring Published Ship Mooring & Associated Fees and Rules. The vessel timely paid the commercial wharfage fee in the amount of $72, 685.22 and challenges ARTCO's liquidated damages as unreasonable and punitive.

         II. The Subpoena and Plaintiff's Motion to Quash/Limit

         On September 20, 2019, the in rem claimant/defendant, Ares Nine Shipping, Ltd. on behalf of the M/V POLESIE propounded discovery and issued a Subpoena Duces Tecum to ARTCO's surveyor, Kyle Smith, served through ARTCO's counsel. Smith was the marine surveyor who inspected the M/V POLESIE's damaged winch system at a repair facility after it was taken off of the vessel. The Subpoena seeks the information specified in three section of Exhibit A (Rec. Doc. 10-2. p. 4) attached thereto which read as follows:

I) A copy of all of your joint survey inspection files and reports from January 1, 2011 to present regarding your attendance at ARTCO Mile 110 midstream buoys or at local vessel repair yards and aboard deep draft and bulk carrier vessels being repaired there concerning alleged stuck anchors, fouled anchors, anchor windlass issues, mooring hawser issues, mooring winch issues, and any other issues allegedly causing delay to a deep draft and bulk carrier vessel anchored and/or moored at ARTCO Mile 110 midstream buoys (upper, lower, or however else designated - all the berths for deep draft vessels at ARTCO Mile 110), including but not limited to the periods of:
a. May 1, 2011 to July 1, 2011;
b. July 1, 2015 to August 31, 2015;
c. January 1, 2016 to March 31, ...

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