St. James Stevedoring Partners, LLC v. Motion Navigation Ltd. et al

Filing 71

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Mary Ann Vial Lemmon on 8/6/2014.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ST. JAMES STEVEDORING
PARTNERS, LLC

CIVIL ACTION

VERSUS

NO: 13-541

MOTION NAVIGATION LTD., in
personam and M/V GEORGITSI, IMO
No. 9590113, her engines, tackle,
apparel, furniture, equipment and all
other appurtenances, in rem

SECTION: "S"

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff and defendant-in-counter-claim, St. James Stevedoring Partners, LLC, filed this suit
against defendants, Motion Navigation Ltd., in personam,1 and M/V GEORGITSI, IMO No.
9590113, her engines, tackle, apparel, furniture, equipment and all other appurtenances, in rem,
alleging negligence in connection with an allision that resulted in one of St. James' buoys being
severed from its anchor chain. St. James seeks: $18,243.50 for costs incurred as a result of the buoy
damage; $87,601.90 in mooring fees for providing initial docking and undocking; $55,167 for
services provided by assist tugs; $7,732.50 for assisting the M/V GEORGITSI in repairing the port
anchor windlass; and $143,750 in detention and damage charges. In the alternative, St. James, as
a provider of services to the M/V GEORGITSI, asserts a maritime lien against the M/V GEORGITSI
for necessaries provided to the vessel.
Motion and the M/V GEORGITSI contend that they were not negligent. Motion asserts a
counter-claim against St. James alleging that St. James' negligence caused the allision. Motion
claims damages in the amount of $98,022.74, which includes $42,378.01 in physical damages to the

1

Motion is also a plaintiff-in-counter-claim.

vessel, $20,091.39 in additional charges that were incurred in New Orleans, and $35,553.28 in lost
charter hire.2
The case was tried as a bench trial, and memoranda supporting the parties' respective
positions were submitted to the court.
DISCUSSION
I. Background
St. James operates and maintains three mid-stream mooring berths on the left descending
bank of the Lower Mississippi River near Mile 158. The upper and lower berths have buoy sets of
three buoys at the bow of the vessel and two at the stern. The middle buoy set had two buoys at the
bow, and two at the stern. In the mooring process, vessels are maneuvered between the buoys, the
anchors are set, and then mooring lines are tied to the buoys. Each buoy has a pad eye on its
underside to which its anchor chain is connected, and the anchor chain is secured to a pile driven
into the river bed.
The M/V GEORGITSI, a vessel owned by Motion, and operated by Efshipping Co., S.A.,
was built in 2012. On March 9, 2013, the M/V GEORGITSI left the Grandview Anchorage in the
Mississippi River and proceeded to St. James to be moored at the middle buoy set for cargo
discharge operations. When the vessel departed the Grandview Anchorage, the anchor windlasses
were fully operational and were used to heave the anchors before the journey began. The vessel was
under the command of Captain Filippos Fasilis, and being piloted by Captain David Shirah, Jr., a

2

St. James filed a motion to file an amended answer asserting that Efshipping, Co., S.A., not Motion,
is the real party in interest for Motion's damage claims (Doc. #61). In response, Motion filed stipulations and
ratifications from the United Kingdom Mutual Steam Ship Association (Doc. #61) and Efshipping Co., S.A.
(Doc. #62) stating that they agree to be bound by any decision in this action as if they had been joined as
plaintiffs. At trial, St. James indicated that the stipulations resolved the motion. (Doc. #66, p. 23). Therefore,
St. James' motion is moot.

2

compulsory Mississippi River pilot assigned call sign NOBRA 99. When Captain Shirah took the
helm, he and Captain Fasilis discussed proposed maneuvers and mooring plans. Captain Shirah has
piloted ships on the Mississippi River since 1996, and has brought vessels into the St. James
mooring buoys hundreds of times. Captains Shirah and Fasilis knew of the existence and location
of the mooring buoys before they started the mooring operation. Captains Shirah and Fasilis
remained on the bridge wheelhouse or wings during the mooring process, and there were five crew
members on the forward deck. Two sailors were assigned to ready the vessel's bow mooring lines.
The Chief Mate was assigned to the bow of the boat and his job, as assigned by Captain Shirah, was
"to talk on the radio." According to Captain Fasilis, he relayed information between the pilot and
the crew through the Chief Mate, whose job it was to give distances to Captain Fasilis and to give
the crew instructions as they were issued by Captain Fasilis. The vessel's crew used personal UHF
radios for this communication, so that they would not interfere with the pilot's communication with
the line handling boat or the tugboats on the on channel 77 of the VHF radios. The M/V
GEORGITSI also had a VHF radio that was tuned to Channel 67, which is the navigation channel.
Two tug boats owned and operated by Crescent Towing, the M/V MISSISSIPPI and the M/V
MARGARET F. COOPER, assisted in the mooring operation. The M/V MISSISSIPPI, operated
by Captain Mark St. Germain, was secured to the port bow portion of the M/V GEORGITSI, while
the M/V MARGARET COOPER, operated by Captain Carl Gengenheimer, was secured to the
starboard bow portion. Captain Shirah communicated with the tug captains using his VHF radio
tuned to Channel 77.
A line handling vessel, the LH-3, owned by St. James and operated by its employee Captain
Tony Gomez, also assisted with the mooring operation. Captain Gomez was a certified line handler.

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Also aboard the LH-3 were St. James' Operations Manager, Patrick Muscarello, as an observer, and
three line handlers. During the mooring operation, there was a crew change, and two of the line
handlers were replaced with two others. None of the line handlers were certified. The LH-3 has an
open deck without any cabin or enclosure. The line handlers aboard the LH-3 were responsible for
receiving the mooring lines from the M/V GEORGITSI and securing them to the buoys. Also,
Captain Gomez was responsible for providing Captain Shirah with the distances of the M/V
GEORGITSI from the outer and inner mooring buoys, because the mooring buoys were in a blind
spot from the vessel's bridge where Captain Shirah was operating the vessel. Captains Gomez and
Shirah communicated via VHF radios tuned to Channel 77.
The usual procedure for mooring a vessel at the St. James middle berth is to set the port
anchor first, which would be dropped when the vessel was approximately 25 feet upriver and 100
feet towards the center of the river from the outer mooring buoy on the vessel's starboard side.
Then, the tugs would help the vessel maneuver between the inner mooring buoy and the river bank
to set the starboard anchor at or below and inshore of that mooring buoy. The vessel would then
travel backwards below both forward mooring buoys and set its anchor chains at the proper tension.
Thereafter, the mooring lines were passed to the line handlers who would secure them to the buoys.
During the mooring of the M/V GEORGITSI, the vessel dropped her port anchor outside of
the outer mooring buoy, fell back and to her starboard side, then began moving forward and to her
starboard side to drop the starboard anchor. The port anchor windlass was paying out anchor chain
link-by-link in accordance with the pilot's instructions.

At this point, Captain Shirah lost

communication with Captian Gomez, and communication was not reestablished until after the vessel
had gone too far upriver and "overshot" the inner mooring buoy. The port anchor chain was taut.

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The vessel moved downriver and away from the bank, closer to the port anchor that was set in the
river. The anchor chain sagged and engaged with the buoy's anchor chain when the vessel was
falling back into position. The vessel's port anchor chain became entangled with the inner mooring
buoy's anchor chain, causing the pad eye to break. The buoy was set adrift in the river and the
anchor chain fell to the river bottom. At this point, the M/V GEORGITSI's port anchor windlass
broke, and the vessel could not heave the anchor.
The United States Coast Guard was informed of the incident and ordered the two assist tugs
to remain with the vessel. The USCG lifted the tug restriction at 1:00 p.m. on March 10, 2013, and
all remaining restrictions were lifted on March 13, 2013.
At 1:12 a.m. on March 10, 2013, Captain Fasilis emailed St. James and indicated that the
vessel was ready to discharge. At 9:58 a.m. on March 10, 013, St. James indicated that it would not
discharge the M/V GEORGITSI in the middle berth and ordered the vessel to vacate the berth by
1:15 p.m. that afternoon to be brought to the upper berth to begin discharge operations. The vessel's
local agent, Captain Elias Katsaros, informed St. James that the vessel could not vacate the middle
berth because of the broken port anchor windlass, and St. James responded that St. James would
charge the $5,000 per hour tariff for any time the vessel remained in the middle berth beyond when
she was ordered to vacate it.
The vessel interests decided to repair the port anchor windlass by using another hydraulic
motor made by the same manufacturer that was being used in one of the deck winches. This
required the use of a crane. At 3:57 p.m. on March 10, 2013, Captain Katsaros requested that St.
James provide a crane to assist in the repair operation. St. James replied that it did not have a crane
available, and Captain Katsaros could not find another in the area. At 10:29 p.m. St. James informed

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Captain Katsaros that it would have a crane free in about an hour, and that the charge was $1,500
per hour with a minimum of four hours usage. The crane came along side the M/V GEORGITSI
at 1:30 a.m. on March 11, 2013, was used in the repair operation and departed at 2:35 a.m. By 5:30
p.m. on March 11, 2013, the port anchor windlass was operational. Eventually, a new motor was
ordered from the manufacturer to replace the one taken from the deck mooring winch.
At 6:30 a.m. on March 12, 2013, the M/V GEORGITSI was made fast in the upper berth and
discharge operations began. The discharge was completed on March 14, 2013 at 3:35 a.m., and the
vessel departed the upper berth at 9:25 a.m. St. James commenced repairs to the middle anchor buoy
at 1:30 p.m. St. James was able to recover the buoy and its anchor chain from the river bottom and
reattach the buoy.
As a result of the allision, St. James seeks: $18,243.50 for costs incurred as a result of the
buoy damage; $87,601.90 in mooring fees for providing initial docking and undocking; $55,167 for
services provided by assist tugs; $7,732.50 for assisting the M/V GEORGITSI in repairing the port
anchor windlass; and $143,750 in detention and damage charges. Motion seeks damages in the
amount of $98,022.74, which includes $42,378.01 in physical damages to the vessel, $20,091.39 in
additional charges that were incurred in New Orleans, and $35,553.28 in lost charter hire.
II. Legal Standards
A. Maritime Negligence, The Oregon Rule and The Pennsylvania Rule
This court must decide whether The Oregon Rule and The Pennsylvania Rule, two rebuttable
presumptions in admiralty law, apply to this case. St. James urges the court to invoke The Oregon
Rule and apply a rebuttable presumption that the M/V GEORGITSI is at fault for the allision
because it was in motion when it came in contact with the stationary buoy. St. James also urges the

6

court to apply The Pennsylvania Rule, and apply a rebuttable presumption that the M/V
GEORGITSI's alleged failure to comply with Rules 5 and 6 of the Inland Rules of Navigation
caused the allision.
1. Maritime Negligence
To prevail on a negligence claim under admiralty law, the plaintiff must prove: (1) that the
defendant owed it a duty; (2) the defendant breached that duty; (3) the breach was the cause-in-fact
and legal cause of plaintiff's damages; and, (4) actual damages. In re Mid-S. Towing Co., 418 F.3d
526, 531 (5th Cir. 2005); see also 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW §
5-2 (2d ed. 1994). In admiralty cases, the standard of care is established by statutes or regulations3,
maritime custom, or by the general principles of negligence law. S.C. Loveland, Inc. v. E. W.
Towing, Inc., 608 F.2d 160, 165 (5th Cir. 1979); see also 1 THOMAS J. SCHOENBAUM, ADMIRALTY
AND MARITIME LAW § 5-2 (2d ed. 1994) ("In admiralty the duty of care may be derived from three

basic sources: (1) duly enacted laws, regulations, and rules; (2) custom; and (3) the dictates of
reasonableness and prudence."). If "two or more parties have contributed by their fault to cause
property damage in a maritime collision or stranding, liability for such damage is to be allocated
among the parties proportionately to the comparative degree of their fault." United States v. Reliable
Transfer Co., 95 S.Ct. 1708, 1715-16 (1975).

3

When a statute or regulation "creates a minimum standard of care . . . then an unexcused violation,
an act done with less than minimum care," is negligence per se. Dougherty v. Santa Fe Marine, Inc., 698 F.2d
232, 234-35 (5th Cir. 1983) (quoting Lowe v. Gen. Motors Corp., 624 F.2d 1373, 1381 (5th Cir. 1980)). "The
failure to follow any Coast Guard regulation which is the cause of an injury establishes negligence per se."
Id. at 235 (citing Kernan v. Am. Dredging Co., 78 S.Ct. 394, 401 (1958); Reyes v. Vantage S.S. Co., 609 F.2d
140, 143 (5th Cir. 1980)). However, if the regulation contains an ambiguous or contradictory standard, the
common law standard of reasonable care under the circumstances applies. Id.

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2. The Oregon Rule
There are presumptions and burden-shifting principles that govern the imposition of liability
for allisions on navigable waterways. Under The Oregon Rule, it is presumed that a moving vessel
is at fault when it allides with a stationary object. The Oregon, 15 S.Ct. 804, 807 (1895). Thus, the
owner of a stationary object that is hit by a moving vessel can satisfy its initial burden of
demonstrating the breach of a duty on the part of the vessel by invoking The Oregon Rule. Id. "This
presumption operates to shift the burden of proof – both the burden of producing evidence and the
burden of persuasion – onto the moving ship." Am. Petrofina Pipeline Co. v. M/V SHOKO MARU,
837 F.2d 1324, 1326 (5th Cir. 1988) (citing Delta Transload, Inc. v. M/V NAVIOS COMMANDER,
818 F.2d 445, 449 (5th Cir. 1987); James v. River Parishes Co., Inc., 686 F.2d 1129, 1131-33 (5th
Cir. 1982)). The vessel can rebut the presumption by proving, by a preponderance of the evidence,
that the stationary object was at fault for the allision, that it acted with reasonable care, or that the
allision was an unavoidable accident. Id. (citing Bunge Corp. v. M/V FURNESS BRIDGE, 558 F.2d
790, 795 (5th Cir. 1977); Delta Transload, 818 F.2d at 449; James, 686 F.2d at 1132; Woods v. U.S.,
Dep't of Transp., 681 F.2d 988, 990 (5th Cir. 1982)). The Oregon Rule "presumption derives from
the common-sense observation that moving vessels do not usually collide with stationary objects
unless the vessel is mishandled in some way." Id. (citing Delta Transload, 818 F.2d at 449; Bunge,
558 F.2d at 795). As the United States Court of Appeals for the Fifth Circuit explained:
Such accidents simply do not occur in the ordinary course of things
unless the vessel has been mismanaged in some way. It is not
sufficient for the respondent to produce witnesses who testify that as
soon as the danger became apparent everything possible was done to
avoid an accident. The question remains, How then did the collision
occur? The answer must be either that, in spite of the testimony of
the witnesses, what was done was too little too late, or if not, then the

8

vessel was at fault for being in a position in which an unavoidable
collision would occur.
Delta Transload, 818 F.2d at 449-50 (quoting Patterson Oil Terminals, Inc. v. THE PORT
COVINGTON, 109 F.Supp. 953, 954 (E.D.Pa. 1952)).
3. The Pennsylvania Rule
Under The Pennsylvania Rule, when at the time of a collision, a ship
is in actual violation of a statutory rule intended to prevent collisions,
it is no more than a reasonable presumption that the fault, if not the
sole cause, was at least a contributory cause of the disaster. In such
a case, the burden rests upon the ship of showing not merely that her
fault might not have been one of the causes, or that it probably was
not, but that it could not have been.
The Pennsylvania, 86 U.S. 125, 136 (1874).
"Although in its original form the rule of The Pennsylvania applied only to collisions
between ships, it has been extended in [the Fifth Circuit] to apply to a variety of maritime accidents
and to parties other than vessels." Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465,
1472 (5th Cir. 1991) (citations omitted). "Thus, the rule has been reformulated to apply to any
'statutory violator' who is a 'party to a maritime accident.'" Id. (citing Sheridan Transp. Co. v. United
States, 834 F.2d 467, 476 (5th Cir. 1987)).
This presumption allocates the burden of proof regarding causation to the party in violation
of the statute.4 Pennzoil Producing, 943 F.2d at 1472; see also Candies Towing Co., Inc. v. M/V

4

In Mid-S. Towing, 418 F.3d at 531 n. 5, the United States Court of Appeals for the Fifth Circuit
explained the relationship between The Oregon Rule and The Pennsylvania Rule:
It is important to distinguish at the outset between the presumption of fault
announced in The Oregon and the presumption of causation announced in
The Pennsylvania; the latter case holding that a vessel in violation of a
statutory rule designed to prevent collisions bears the burden of showing
“not merely that her fault might not have been one of the causes, or that is

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B&C ESERMAN, 673 F.2d 91, 93 (5th Cir. 1982) (The Pennsylvania Rule "constitutes an
evidentiary rule reversing the burden of proof."). However, The Pennsylvania Rule "is not pressed
to literal extremes for it does not go so far as to say that 'every [party] guilty of a statutory fault has
the burden of establishing that its fault could not, by any stretch of the imagination, have had a
causal relation to the collision, no matter how speculative, improbable or remote.'" Gele, 574 F.2d
at 248 (quoting China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769, 782 (5th Cir.
1966)). Moreover, the rule cannot "be pressed to such an extreme as to justify a division of damages
when the accident was undoubtably due to the negligence of an offending vessel whose actions
could not be anticipated." Dow Chem. Co. v. Dixie Carriers, Inc., 463 F.2d 120, 122 n. 5 (5th Cir.
1972) (quoting Webb v. Davis, 236 F.2d 90, 93 (4th Cir. 1956)).
The Pennsylvania Rule "does not fix liability" nor does it "determine a party's ultimate share
of the liability for a loss." Pennzoil Producing, 943 F.2d at 1472. "If a party fails to carry the
burden imposed on it by the rule, the rule does not require that party to bear 100% of the

probably was not, but that it could not have been.” The Pennsylvania, 19
Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1873). Compare SCHOENBAUM,
ADMIRALTY & MARITIME LAW, § 14-3, at 104-05 (classifying the rule of
The Oregon as a “presumption of fault” akin to the common law doctrine
of res ipsa loquitor “primarily applicable in allision cases,” which “creat[es]
a rebuttable presumption of negligence on the part of a party who is in
exclusive control of an instrumentality with regard to a mishap that
ordinarily does not occur in the absence of negligence”) (emphasis added),
with id. at § 14-3, at 101 (classifying the rule of The Pennsylvania as not
establishing a rule of fault but as being “limited to causation”) (emphasis
added), and DAVID W. ROBERTSON ET AL., ADMIRALTY & MARITIME LAW
IN THE UNITED STATES 384 (2d ed. 2001) (describing the rule of The
Pennsylvania as creating “a strong presumption that the statutory violation
was a cause in fact of the accident,” and distinguishing this rule from the
common-law concept of negligence per se famously applied in Martin v.
Herzog, 228 N.Y. 164, 126 N.E. 814 (1920) (Cardozo, J.)).
(emphasis in original).

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responsibility for the allision. Liability still must be apportioned according to the comparative fault
of the parties." Id.
St. James argues that the M/V GEORGITSI violations of Rules 5 and 6 of the Inland Rules
of Navigation were the sole cause of the allision.
Rule 5 provides: "[e]very vessel shall at all times maintain a proper look-out by sight and
hearing as well as by all available means appropriate under the prevailing circumstances and
conditions so as to make a full appraisal of the situation and the risk of collision." 33 C.F.R. § 83.05.
St. James contends that the M/V GEORGITSI's crew should have been stationed at the bow of the
vessel and instructed to give the pilot distances during the mooring operation.
Rule 6 provides:
Every vessel shall at all times proceed at a safe speed so that she can
take proper and effective action to avoid collision and be stopped
within a distance appropriate to the prevailing circumstances and
conditions.
In determining a safe speed the following factors shall be amount
those taken into account:
(a) By all vessels:
(i)

The state of visibility;

(ii)

The traffic density including consideration of fishing
vessels or any other vessels;

(iii)

The manageability of the vessel with special reference to
stopping distance and turning ability in the prevailing
conditions;

(iv)

At night, the presence of background light such as from
shore lights or from back scatter from her own lights;

(v)

The state of wind, sea and current, and the proximity of
navigational hazards;
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(vi)

The draft in relation to the available depth of water.

(b) Additionally, by all vessels with operational radar:
(i)

The characteristics, efficiency and limitations of the radar
equipment;

(ii)

Any constraints imposed by the radar range scale in use;

(iii)

The effect on radar detection of the sea state, weather and
other sources of interference;

(iv)

The possibility that small vessels, ice and other floating
objects may not be detected by radar at an adequate
range;

(v)

The number, location and movement of vessels detected
by radar;

(vi)

The more exact assessment of the visibility that may be
possible when radar is used to determine the range of
vessels or other objects in the vicinity.

Id.§ 83.06. St. James argues that the M/V GEORGITSI was moving too fast during the mooring
operation, which caused the allision.
4. Evidentiary Presumptions and Evidence
The Oregon Rule and The Pennsylvania Rule are evidentiary presumptions, which permit
the trier of fact, "in the absence of other evidence, . . . [to] have a solid, . . ., basis" to determine
whether a party was negligent or whether the party's actions proximately caused an accident. Rodi
Yachts, Inc. v. Nat'l Marine, Inc., 984 F.2d 880, 887 (7th Cir. 1993) Such "[e]videntiary
presumptions, . . . , are designed to fill a vacuum. Once evidence is presented, . . ., presumptions
become superfluous because the parties have introduced evidence to dispel the mysteries that gave
rise to the presumptions." Mid-S. Towing, 418 F.3d at 532 (quoting Rodi Yachts, 984 F.2d at 887);
see also GRIFFIN, THE AMERICAN LAW

OF

COLLISION, § 25, at 43 ("Such presumptions are, of
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course, not rules of law or even evidence. They merely express inferences of fact, based on
experience and probabilities, and their only effect is to put upon the vessel subject to the
presumption the burden of going forward with evidence to show that in the particular case, the
inference is unwarranted." "The exact scope and operation of these prima facie presumptions are to
cast upon the party against whom they operate, the duty of going forward in argument or evidence,
on the particular point to which they relate.").
Both parties have presented evidence regarding fault and causation.

Therefore, the

application of The Oregon Rule and The Pennsylvania Rule is not appropriate. The fact-finder has
heard all of the evidence upon which to make findings regarding fault and causation under the rules
of admiralty negligence claims.
5. Fault and Causation in the Allision
As discussed above, during the mooring operation on March 9, 2013, the port anchor chain
of the M/V GEOGITSI became entangled with the anchor chain of the inner mooring buoy at St.
James' middle berth. The buoy's anchor chain was severed, and the M/V GEORGITSI's port anchor
windlass broke. St. James argues that the M/V GEORGITSI was at fault because the vessel's crew
did not maintain a proper lookout and the vessel was moving too fast. Motion and the M/V
GEORGITSI argue that St. James was at fault because Captain Gomez failed to properly
communicate with Captain Shirah, and should have had a redundant form of communication
available when the VHF radio communication failed.
a.

Patrick Muscarello's Testimony

Muscarello is St. James' Operations manager. He was on the line handling vessel, the LH-3,
during the mooring of the M/V GEORGITSI as an observer to ensure that the LH-3's crew change

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went smoothly. He stated that the LH-3 is approximately 18 to 20 feet long and that he was at most
10 feet away from Captain Gomez. Muscarello testified that Captain Gomez was responsible for
communicating distances to Captain Shirah and that he heard Captain Gomez doing so. According
to Muscarello, it appeared that Captain Shirah was hearing Captain Gomez because Captain Shirah
was constantly asking for information and Captain Gomez was providing it, but sometimes it seemed
like Captain Shirah did not hear Captain Gomez. Further, Muscarello testified that there was a lot
of radio traffic and it is possible that Captain Shirah did not hear some of the distances Captain
Gomez called out. Muscarello also testified that everyone on the line handling boat had a cellular
telephone, but that nobody had Captain Shirah's cellular telephone number. Muscarello, who has
no maritime licenses, testified that the M/V GEORGITSI appeared to be moving faster than normal
when it arrived, but he did not know how fast. Muscarello stated that the M/V GEORGITSI came
to a stop for about 30 seconds after the anchor chain was above the buoy. After the M/V
GEORGITSI's port anchor chain and the buoy's anchor chain engaged, he heard a loud screeching
sound, and then saw additional anchor chain come out. Muscarello believes that the M/V
GEORGITSI's port anchor windlass became inoperable was a result of the anchor chains'
entanglement. He does not recall the M/V GEORGITSI's horn blowing at any time during the
mooring operation.
b. Captain Tony Gomez's Testimony
Captain Gomez testified that he has worked at St. James as a mechanic for four years. He
is also a boat pilot, has a current 100 ton master's license, and is a certified line handler. During the
mooring of the M/V GEORGITSI he could hear Captain Shirah on the VHF radio and understood
that Captain Shirah could hear him giving distances, until communication was lost at some point.

14

He knew that the communication was lost because of the manner in which Captain Shirah was
asking for distances. Captain Gomez tried to give Captain Shirah the distances, but it seemed like
Captain Shirah could not hear him. Captain Shirah was talking continuously, preventing a person
from communicating on the same channel. Captain Gomez testified that Captain Shirah and the tug
captains "walked over" his radio communications, therefore Captain Shirah could not hear Captain
Gomez giving distances. He testified that although he did not have Captain Shirah's cellular
telephone number, he would not have called because it would have been a waste of time, because
too much could happen in the time it would have taken to call. He testified that he should have
asked for Captain Shirah's cellular telephone number before the mooring operation began because
it was the continency plan for communication with the vessel if the VHF radios failed. He also
testified that it was a windy day, the LH-3's VHF radio is exposed to the wind, and that wind can
cause communication issues. Captain Gomez admitted that he had a hand held VHF radio in
addition to the LH-3's radio and could have changed his hand held VHF to channel 77 when
communication was lost, but did not. Captain Gomez thought that the M/V GEORGITSI was
moving faster than other ships, it was not a "slow and easy," but rather than a steady move. He does
not recall the M/V GEORGITSI's horn blowing at any time during the mooring operation.
c. Captain Mark St. Germain's Testimony
Captain Mark St. Germain testified that he has been employed at Crescent Towing for 32
years and is currently the captain of the tug M/V MISSISSIPPI. The M/V MISSISSIPPI has two
VHF radios, one tuned to channel 77, for work communications, and the other to channel 67, which
is the navigation traffic channel. As a tug captain, he aids vessel pilots in mooring operations and
does what the pilot instructs him to do. He lets the pilot know that he has received the instruction

15

by repeating it as he is doing it. Only one person at a time can communicate over the VHF radio.
Captain St. Germain testified that the pilot and the line handling boat had communication problems
during the entire operation. He stated that the line handling boat was not answering Captain Shirah's
requests for distances and Captain Shirah had to ask two or three times to receive a response.
Captain St. Germain testified that the M/V GEORGITSI went upriver of the inner mooring
buoy, and as the tugs were bringing the vessel back down, additional slack from the port anchor
chain dropped in front of the buoy and caught it. He thought even more anchor chain fell from the
vessel after it passed over the buoy, and if the chain stayed taut it would have passed back over the
buoy. Captain St. Germain did not think that the allision could have been avoided by stopping the
mooring operation because it all happened so fast. He testified that the M/V GEORGITSI was not
maneuvering any faster than a vessel normally would. He does not recall the M/V GEORGITSI's
horn blowing at any time during the mooring operation.
d. Captain Joseph Bridges' Testimony - Plaintiff's Expert
The court accepted Captain Bridges as an expert in vessel navigation and mooring
operations. He has a Bachelor of Science degree in Nautical Science from the California Maritime
Academy, and has held an unlimited master's license. Captain Bridges has worked in the maritime
industry for about 40 years, and has worked on the Mississippi River. He is familiar with the Inland
Rules of Navigation.
Captain Bridges opines that the crew of the M/V GEORGITSI did not maintain a proper
lookout and the vessel was not traveling at a safe speed. He testified that the line handling boat and
the Chief Mate were responsible for giving distances to the pilot, and that there was a breakdown
in communication. He opines that the allision would not have occurred if the Chief Mate were

16

providing distances to the captain. Specifically, he testified "I would say it would be fair to say that
if the linesmen and the foredeck were giving proper distances, this accident wouldn't have
happened."
Captain Bridges also opines that, when communication with the line handling boat was lost,
the pilot did not know where the buoy was, and was traveling at an unsafe speed because he had an
obligation to stop and restore communication before attempting to drop the starboard anchor.
Further, Captain Bridges opines that the crew was not properly operating the port anchor windlass
in accordance with the pilot's instructions because there would have been more anchor chain in the
water, and the vessel's anchor chain would not have become entangled with the buoy's anchor chain.
Specifically, he testified "the fact that they didn't comply with the Pilot's instructions, that was the
reason that the port anchor chain became so taut and gave the ability to go over the buoy when the
vessel overshot the buoy."
Captain Bridges testified that the anchor chain paid out after it passed over the buoy as a
result of the crew letting it out or the windlass spontaneously breaking. However, he also admitted
that if the vessel moved closer to the location where the anchor was set in the water, it would create
slack in the anchor chain. He opined that "there was some sort of defect that was not a major defect,
and it slowly manifested itself every time they used the anchor, and at that time it gave way."
Captain Bridges does not have any mechanical engineering training or expertise.
e. Captain David Shirah's Testimony
Captain Shirah has been a vessel pilot on the Mississippi River since 1996, and he has a
master's license, first class pilot license, master of towing. He has piloted around 3,500 vessels on
the river and has brought hundreds into the St. James anchorage. He boarded the M/V GEORGITSI

17

at the Grandview Anchorage and had a discussion with Captain Fasilis regarding the vessel. His
impression of the crew was that they were competent.

Captain Shirah testified that his

communication equipment was working properly. He instructed Captain Fasilis to have all of the
crew stationed at the bow of the vessel during the mooring operation, and that he wanted the Chief
Mate's only job to be communicating with the bridge and other crew members, and to be the primary
lookout. Captain Shirah testified that the line handling boat was responsible for spotting the vessel
and giving distances.

Captain Shirah said that the job was "unremarkable" until he lost

communication with the line handling boat. He called them and did not get a response, and was
worried about the "life and safety of those guys on that small boat." He testified that he asked the
tug captains if they could see the line handling boat. His next communication with the line handling
boat occurred after the M/V GEORGITSI overshot the buoy, and they said "hey, Captain, you are
too high. Your anchor chain is running over the buoy." Thereafter, he backed the vessel out using
the tugboats and "the port anchor chain went over the buoy and caught the way back and took out
the starboard mooring buoy inshore."
Captain Shirah testified that this is an operation that is "highly dependent upon good
communication" and he would have expected the line handling boat to have some sort of redundant
communication. Captain Shirah admonished the line handling boat for losing communication, but
did not admonish the M/V GEORGITSI's crew for any reason. He testified that "[t]he vessel's crew,
the tugboats, the tugboat crew, we were all in the same game. We were all in the loop. We were
all working together. It [the line handling boat] was the one piece that was out of sync, out of the
rest of us." He also testified that the people on line handling boat "are the ones that provide the
information directly to [him] as far as spot and position," because the vessel's crew would

18

communicate with him through Captain Fasilis as they work on a different radio frequency. He
testified that he did not tell the line handling boat how he wanted the distances, but "[a]s a matter
of professionalism, it is understood [that the line handling boat would give distances]. It is part of
the job on how you spot somebody. You should be singing those distances out at a regular interval
as the vessel closes and maneuvers into position." This is expected as an industry standard. When
communication is lost, the procedure is to try to reestablish it, then to sound the vessel's horn, and
if that did not work, to stop the operation. Captain Shirah did not stop the operation at any point.
Captain Shirah testified that he never lost control of the M/V GEORGITSI and that nobody
ever told him that the vessel was moving too fast.
He testified that the M/V GEORGITSI's crew, two mates and all available deck crew, were
forward, so he "would assume that there [are] enough people forward that the entire operation would
have been visible from the bow of the ship." He "would have an expectation that the crew would be
aware of what was going on with the mooring buoys and the situation on the bow of the ship." He
testified that in hindsight, "[w]e could have done a hundred different things," and they "could have
stopped and stabilized the vessel."
Captain Shirah testified that when he left the M/V GEORGITSI, the vessel was safely
moored. He thought that the vessel could have conducted cargo operations.
f. Captain Fillipos Fasilis' Deposition Testimony
Captain Fasilis received his degree from the Maritime Marine Academy in Greece in 1999,
has a Captain Class C license, and has been a master of vessels for Efshipping since August 2012.
He was the master of the M/V GEORGITSI on March 9, 2013. When Captain Shirah boarded the
M/V GEORGITSI, Captain Fasilis and Captain Shirah discussed the mooring procedure. The chief

19

mate, the bosun and three sailors were at the bow. The bosun and one sailor were operating the
anchor windlasses and the other two sailors were readying the mooring lines. The Chief Mate was
the officer in charge at the bow and had to communicate to the others to make sure the pilot's orders,
as relayed by Fasilis, were followed. The members of the vessel's crew communicate with each
other using handheld UHF radios so that they do not interfere with the pilot's communication with
the linesmen on the VHF radio. No member of the M/V GEORGITSI's crew was located on the bow
of the vessel and responsible for giving distances to the captain and pilot, but the Chief Mate was
available as a lookout, and "[i]t is common sense that if he is in any danger, to report to the bridge,
of course."
Captain Fasilis testified that the buoys and the line handling boat are in a blind spot and the
linesmen are responsible for giving the pilot distances. He testified that he and Captain Shirah could
hear the linesmen at the beginning of the mooring operation, but when they were setting the
starboard anchor, the linesmen stopped communicating with Captain Shirah. Captain Shirah got
upset with the linesmen, and "kept asking for what he needed to do his job."
Captain Shirah never complained to Captain Fasilis that the M/V GEORGITSI's crew
members were not doing their jobs or that the tugboats were acting improperly. However, Captain
Shirah did complain that the linesmen did not reply to him "because this was a critical situation of
the maneuvering, and if we did not hear from them, we were going to have an accident." Captain
Fasilis did not have any complaints during the mooring process except as to the actions of the
linesmen "because they did not give the correct distances to the pilot, and [they] had an accident
because of that." He thinks that the vessel overshot the buoy because of the lack of communication.
Captain Fasilis testified that he is "100 percent sure that the pilot did blow the whistle when we

20

approach the starboard anchor and the linesman doesn't reply to him." Captain Fasilis testified that
Captain Shirah was very professional and did not seem that he was in a hurry to get the job done.
Captain Fasilis thought that Captain Shirah "did a very good job during the mooring operation."
Captain Fasilis testified that the M/V GEORGITSI was traveling at normal, safe speed as
it approached the St. James buoys. The vessel was also maneuvering at a normal speed during the
anchor setting process. He testified that the maneuvering could not have been stopped when the
communication was lost.
Captain Fasilis testified that the port anchor chain was paid out as instructed by the pilot and
that there was no order to release more chain when the vessel was falling back after going too far
upriver. Captain Fasilis "saw additional anchor chain come out after it was placed tight from the
entanglement with the buoy. Only after the anchor became entangled with the buoy, it was
extremely tight." The port anchor windlass' hydraulic motor broke "[w]hen the anchor chain
engaged with the buoy." He also testified that the port anchor windlass was operational when it
heaved the anchor before the vessel left the Grandview Anchorage. In order to save time, the
hydraulic motor on the port anchor windlass was replaced with a hydraulic motor from another
windlass on the vessel.
After the accident, a St. James foreman came to the M/V GEORGITSI's bridge. Captain
Fasilis told him that the vessel could begin cargo operations. However, St. James refused to
commence the cargo operations and ordered the M/V GEORGITSI out of the middle berth so that
St. James could fix the buoy. The buoy repair operation did not commence until two days after the
vessel was moved.

21

g. Dimitrios Mandrochalos' Deposition Testimony
Dimitrios Mandrochalos was the Chief Engineer on the M/V GEORGITSI on March 9, 2013.
He graduated from a Greek naval academy, and has worked at sea since 1971. He has been a chief
engineer aboard vessels since 1994, and has a current chief engineer's license. Mandrochalos
testified that on March 9, 2013, the M/V GEORGITSI's port anchor windless was approximately 15
months old, it received regular maintenance, and should have lasted 18 to 20 years. The port anchor
windlass was working properly prior to the anchor chain's coming in contact with the buoy's anchor
chain. He testified that when he inspected the broken part of the hydraulic motor, it was broken
"[f]rom sudden overload of the system."
h. Eleftherios Makaris' Testimony
Makaris testified that he has worked at Efshipping, a vessel management company, since
1995, and he is currently the Assistant of Operations Department, the Deputy DPA and Crew
Manager. Efshipping manages the M/V GEORGITSI. He testified that the crew of the vessel was
fully competent to participate in mooring operations and that it was equipped with communication
devices. Makaris testified it is risky that to look down to the water from the bow of the vessel
because one must lean over the side of the vessel to do so.
i. Conclusion Regarding Fault and Causation
The evidence presented establishes that the entanglement of the M/V GEORGITSI's port
anchor chain with the buoy anchor chain which caused the port anchor windlass to break was caused
because Captain Shirah did not receive information regarding the distance of the M/V GEORGITSI
from the buoy. The failure of Captain Shirah to receive the information was caused, in part, by a
break down in communication between the line handling boat and the M/V GEORGITSI. Captains

22

Shirah and Fasilis both testified that they could not hear distances being communicated from Captain
Gomez at some point during the mooring operation. Captain St. Germain, Muscarello and Captain
Gomez all testified that they knew communications between the parties were lost. Theories at to
why Captian Shirah could not hear distance that Captain Gomez testified he was providing include
that Captain Gomez's radio communications were "walked over" by others using the same radio
frequency, that the wind prevented Captain Shirah from hearing Captain Gomez, or that there was
an equipment failure. There is no evidence that establishes that one theory is more likely than the
others.
The evidence also establishes that the Captain Gomez knew he should have had a redundant
form of communication with Captain Shirah in case the VHF radio communication failed, but that
he failed to do so. Captain Shirah testified that he would have expected the line handling boat to
have some redundant form of communication in case of a failure of the VHF radio communication.
Captain Gomez admitted that it was St. James' standard procedure for him to obtain the vessel pilot's
cellular telephone number before beginning a mooring operation, but that he did not do so in this
case. Captain Gomez also admitted that he had another radio that he could have used to contact
Captain Shirah, but that he did not do so. Therefore, St. James was at fault for failing to implement
a redundant means of communication to contact Captain Shirah when it became clear that the VHF
radio communication between the line handling boat and the M/V GEORGITSI had failed at a
critical time in the mooring operation.
Another cause of the failure to communicate proper distances was the failure of the M/V
GEORGITSI's crew to verify the distances to Captain Shirah. Captain Shirah testified that he would
have expected the vessel's crew to be aware of difficulty with the mooring lines and buoys. Further,

23

Captain Fasilis testified that the Chief Mate was an available lookout, but did not communicate
distances back to the bridge. Further, Captain Bridges opined that "I would say it would be fair to
say that if the linesmen and the foredeck were giving proper distances, this accident wouldn't have
happened." The court finds that the crew of the M/V GEORGITSI was at fault for failing to provide
a proper lookout.
The court finds that the weight of the testimony establishes that the M/V GEORGITSI was
not moving at an improper speed. Captains Shirah, Fasilis and St. Germain all testified that the
vessel was moving at a normal speed during the mooring operation. Although Muscarello and
Captain Gomez testified that they thought the vessel was moving too fast, they are not as
experienced as Captains Shirah, Fasilis and St. Germain. Captain Bridges testified that it was his
opinion that the M/V GEORGITSI was moving too fast, but he was not present at the scene. The
court finds that the speed of the M/V GEORGITSI was not a factor in the allision.
Further, the testimony establishes that the operation could not have been stopped to avoid
the allision. Captains Fasilis and St. Germain testified that the operation could not have been stopped
until communications were restored. Captain Shirah stated that stopping the operation was possible
in hindsight, but there is no indication that the allision could have been avoided because the
communication was lost after the M/V GEORGITSI overshot the buoy. The court finds that
stopping the operation after the communication breakdown was not an available option to prevent
the allision, and thus not a cause of the allision.
Further, the court finds that the port anchor windlass broke as a result of the impact of the
port anchor chain with the buoy's anchor chain. Muscarello testified that he heard a loud screeching
sound and saw additional anchor chain come out after the M/V GEORGITSI's port anchor chain and

24

the buoy's anchor chain engaged. Muscarello also testified that he believed that the M/V
GEORGITSI's port anchor windlass became inoperable as a result of the anchor chains'
entanglement. Captain Fasilis testified that he could see the port anchor windlass, knew that it was
being properly operated and thought that it broke after the entanglement. Moreover, Mandrachalos,
who has 40 years of experience as a vessel engineer, testified that after he viewed the broken parts,
he thought that a sudden impact caused the damage. Captain Bridges opined that the port anchor
windlass must have had a hidden defect that slowly manifested itself and broke at that moment. This
opinion is undermined by the fact that the port anchor windlass was only a little over a year old, had
consistent maintenance, and had a life expectancy of 18 to 20 years. Further, Captain Bridges has
not engineering training or expertise. The court concludes that the port anchor windlass broke as
a result of the impact.
In sum, the court finds that one cause of the allision was Captain Shirah's lack of
communication regarding the M/V GEORGITSI's distance from the buoys. St. James' linesmen
were primarily responsible for providing such distances. The court allocates 60% of the fault for
the accident to St. James due to its failure to have a redundant means of communication with the
vessel's pilot when the VHF radio communication failed. Motion and the M/V GEORGITSI are
allocated 40% of fault for the allision for not providing a lookout on the vessel when Captain Shirah
needed assistance in receiving communication as to the distance from the vessel to the buoy.5

5

Defendants seek an adverse inference against St. James for their failure to produce a line handling
check list for the LH-3 in relation to the M/V GEORGITSI mooring procedure. A sample copy of the line
handling checklist is Exhibit 9. It is a list of many features of the line handling boat that should be checked
before a mooring procedure. One item is "VHF Radio - functions correctly, #77/#17." Captains Shirah and
Fasilis testified that they received initial communications from the LH-3, which indicates that the "VHF
Radio" box would have been checked. There is no indication that such a checklist would impact this court's
determination that both parties were at fault for the loss of communication, and an adverse inference will not
be applied.

25

III. Damages6
A. St. James
St. James seeks $18,243.50 for costs incurred as a result of the buoy damage; $87,601.90 in
mooring fees for providing initial docking and undocking; $55,167 for services provided by assist
tugs; $7,732.50 for assisting the M/V GEORGITSI in repairing the port anchor windlass; and,
$143,750 in detention and damage charges. In the alternative, St. James asserts a maritime lien
against the M/V GEORGITSI for necessaries provided to the vessel for the tug services, initial
docking and undocking and mooring fees, and crane charges for the windlass repair.
1. Damage to the buoy
St. James has established that it incurred expenses of $18,243.50 in repairing damages to
the buoy. This represents $15,000 paid to Weber Marine and $3,243.50 paid to River Services.
Morton testified that time was of the essence in retrieving the buoy's anchor chain from the river
bottom because it could have become lost in the muddy river bottom. St. James hired Weber Marine
to do the work. For a day or two after the accident St. James thought that Weber needed only the
middle berth clear to do the salvage operation. After the M/V GEORGITSI was moved to the upper
berth, Weber informed St. James that both the upper and middle berths needed to be clear. St. James
then discharged the M/V GEORGITSI as quickly as possible using as many cranes as possible.
Weber charges a flat fee of $15,000 per day, regardless of whether the customer supplies its own tug
boat. Weber successfully retrieved the buoy's anchor chain and reattached the buoy after 8 or 10
hours. St. James paid Weber $15,000 for the work. Weber worked with a diver from River Services

6

At trial, the parties stipulated to the amounts of each others damages, but dispute their respective
liabilities.

26

who charged $3,230 for the job. St. James is awarded $18,243.50, less a 60% reduction based on
St. James' percentage of fault.
2. Unpaid Services Provided to the M/V GEORGITSI
St. James argues that it is entitled to recover the amounts related to unpaid services it
provided to the M/V GEORGITSI, including $87,601.90 in mooring fees for providing initial
docking and undocking; $55,167 for services provided by assist tugs; $7,732.50 for assisting the
M/V GEORGITSI in repairing the port anchor windlass. Motion and the M/V GEORGITSI argue
that they do not owe these charges because the time spent at the middle berth was a waste of time
due to St. James' refusal to conduct cargo discharge operations, which Motion and the M/V
GEORGITSI contend was safe.
In the alternative, Motion and the M/V GEORGITSI argue that the mooring fees for
providing the initial docking and undocking and assist tugs are not recoverable by St. James if the
linesmen were at all at fault for the allision because that would mean that they breached the implied
warranty of workmanlike performance. Motion and the M/V GEORGITSI also argue that the
dockage fees should be reduced for St. James' delay in providing a crane to assist with the anchor
windlass repair. Further, they argue that St. James should not be permitted to recover the detention
and damages charge because St. James' imposition of the $5,000 per hour tariff was unreasonable
in this case.
a. Recovery of Dockage Fees and Assist Tug Fees
i. Safety of Discharge Operations at Middle Berth
A. Muscarello's Testimony
Muscarello testified that he was concerned that discharging the cargo on the M/V
GEORGITSI was unsafe when the vessel was in the middle berth because it was only tied to one
27

buoy, which does not provide the security needed to ensure that the vessel will not shift and sway.
Also, the angle and position of the vessel was problematic because the vessel was not straight in the
current, which would place additional forces on the port side. Further, the vessel was too close to
the barge fleet on the riverbank and there would not have been room for a tug boat to pass with a
crane and barge against the M/V GEORGITSI. The owner of the barge fleet would not permit the
M/V GEORGITSI to be discharged in this position, and St. James cannot discharge a vessel if the
barge fleet owner will not provide the barges.
B. Captain Bridges' Testimony
Captain Bridges opined that it was unsafe to discharge the vessel because it was tied to only
one buoy, the port anchor windlass was inoperable, and the vessel was at a 20 degree angle in the
current.
C. Paul Morton's Testimony
Paul Morton is St. James' President. He testified that the M/V GEORGITSI was not safe to
discharge with an inoperable port anchor while tied to only one buoy at the bow because there were
multiple forces pushing the ship inshore, such as the wind and wake, and in that condition, the vessel
would not have been able to pull itself away from the shore. There was concern that the vessel
would have allided with the barge fleet and set some barges adrift. Morton also testified that St.
James' cranes are huge and there was concern that putting the discharging equipment up to the M/V
GEORGITSI would "change the dynamics of the ship" in the berth with only one fore buoy and an
inoperable port anchor windlass. He was not actively involved in the decision not to discharge the
M/V GEORGITSI, but supported the decision of his team that it was not safe.

28

D. Captains Shirah and Fasilis
Both Captains Shirah and Fasilis testified that they thought the vessel was safe to discharge
in the middle berth. Captain Fasilis also testified that the vessel remained stationary in the berth and
did not sway.
E. Conclusion Regarding Safety of Discharge in Middle Berth
The court finds that it was reasonable for St. James to conclude that it was unsafe to
discharge the M/V GEORGITSI while she was in the middle berth. Its employees and equipment
would be in danger should the vessel move, and there was the potential for various forces to act upon
and destabalize the vessel during a cargo operation while she was in the middle berth. Cargo
operations could not be conducted because there was only one fore buoy and the M/V GEORGITSI's
port anchor windlass was inoperable.

Therefore, St. James' refusal to discharge the M/V

GEORGITSI while she was in the middle berth was reasonable, and is not a basis to deny recovery
for these charges.
ii. Application of the Implied Warranty of Workmanlike Performance to
Charges of Dockage Fees and Assist Tug Fees
Motion and the M/V GEORGITSI argue that St. James cannot recover any of the mooring
fees or assist tug fees related to the M/V GEORGITSI's time at the middle berth because St. James'
linesmen breached the implied warranty of workmanlike performance when they failed to properly
communicate with Captain Shirah during the mooring procedure.
Admiralty law recognizes an implied warranty of workmanlike performance ("WWLP") that
arises from contractual relationships. Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc.,
866 F.2d 752, 763 n. 17 (5th Cir. 1989) (citing Ryan v. Pan-Atl. Steamship Corp., 76 S.Ct. 232, 23738 (1956)). It means "that the obligor in a service contract has a duty to perform his or her task with

29

reasonable care, skill, and diligence. Thus the WWLP is a legal 'construct' that was originally rooted
in the concept of negligence." T. Shoenbaum, 1 Admiralty and General Maritime Law § 5-8 at 190
(2d ed. 1994) (emphasis original).
As a contract doctrine, the WWLP is very much alive. Between
parties to a maritime contract there is generally an implied WWLP
unless it is excluded by agreement. The courts have applied the
doctrine to a wide variety of marine contracts to perform services
without supervision or control by the shipowner, such as repairs,
offshore service contracts, contracts to provide tug assistance, launch
service contracts and stevedoring contracts . . . [I]n order for the
warranty to arise, the 'putative warrantor must be performing some
type of service for the party asserting the warranty claim.
Id. at 192-93 (quotations and citations omitted).
Motion and the M/V GEORGITSI argue that pursuant to Dillingham Tug & Barge Corp. v.
Collier Carbon & Chem. Corp., 707 F.2d 1086 (9th Cir. 1983), St. James cannot recover any of the
docking fees or the fees for the assist tugs if the linesmen were at all at fault in the allision. In
Dillingham, 707 F.2d at 1091-92, a barge was lost at sea, and the towing company was found to be
60% at fault for the loss. The court found that the towage contract included an implied warranty of
workmanlike performance, which was breached, and no fees were owed for the towing. Motion and
the M/V GEORGITSI argue that St. James had a duty to perform the line handling services in a
workmanlike manner, which was breached when they failed to properly communicate with Captain
Shirah, and as a result St. James should not be entitled to recovery for the line handling fee, the tug
boat fees or the dockage fees related to the M/V GEORGITSI's time in the middle berth.
The United States Court of Appeals for the Fifth Circuit has held that the "warranty of
workmanlike performance is not a proper basis for indemnity in a property damage action." 2-I
Benedict on Admiralty § 11 (2014). In Bosner v. Tug L.A. BARRIOS, 796 F.2d 776, 785 (5th Cir.
1986), the court explained the history of the doctrine of a warranty of workmanlike performance in
30

maritime cases, and stated that in maritime property damage cases, proportional damages based on
the degrees of fault is the general rule. Then, in Rockwell Int'l Corp. v. M/V INTCOTRANS
SPIRIT, 998 F.2d 316, 319 (5th Cir. 1993), the court denied a vessel owner's indemnity claims
against a stevedore and port authority "rejecting the application of the [doctrine of WWLP] in favor
of comparative fault principles." (citation omitted). The court recognized that the WWLP exists,
but was "reluctant to expand it beyond the personal injury/seaworthiness context from which it
arose." Id. (citation omitted).
The case at bar is a property damage case, and the principles of proportional fault apply, not
the implied warranty of workmanlike performance. See Bosner, 796 F.2d at 785; Rockwell, 998 F.2d
at 319.
iii. Reduction in Dockage Fees for Delay in Providing the Crane
Motion and the M/V GEORGITSI also argue that St. James' recovery for the dockage fee
related to the M/V GEORGITSI's call to the middle berth should be reduced by an amount
commensurate with the amount of additional time the vessel remained in the berth as a result of St.
James' failure to timely provide a crane to assist with the windlass repair. Motion and the M/V
GEORGITSI contend that, in the normal course of operations, some of St. James' cranes would have
been employed to discharge the M/V GEORGITSI's cargo and at least one of these cranes should
have been available to aid in the windlass repair.
Morton testified that St. James did not have crane available for the M/V GEORGITSI to use
in the crane repair operation when the ship's agent requested it because all eight of St. James' cranes
were involved in cargo operations with the other vessels to discharge them as quickly as possible
so that the buoy repair could begin. When a crane became available, St. James rented it to the M/V
GEORGITSI at a rate of $1,500 per hour with a minimum of four hours. Morton testified that there
31

were services used that justify the mooring fees, such as the tug boats, the line handling services,
and the use or availability of launch boats. Morton's testimony establishes that St. James did not
unreasonably withhold a crane from defendants' use in order to inflate the mooring fees.
iv. Conclusion Regarding Dockage Fees and Assist Tug Fees
The court finds that none of the theories asserted by Motion and the M/V GEORGITSI
regarding the unrecoverability or reduction in the dockage and assist tug fees charged by St. James
related to the vessel's call at the middle berth hold water. Therefore, St. James is entitled to recover
the $87,601.90 in mooring fees for providing initial docking and undocking and $55,167 for services
provided by assist tugs, less a 60% reduction for fault attributable to St. James.
b. Repair of the M/V GEORGITSI's Port Anchor Windlass
St. James has established that it provided $7,732.50 in unpaid charges related to renting a
crane to the M/V GEORGITSI to aid it in repairing the port anchor windlass. Although this was a
necessary charge incurred by the vessel, it would not have been required had the allision not
occurred. Therefore, it is entitled to recover $7,732.50 for this unpaid balance, less a 60% reduction
for fault attributable to St. James.
iv. Detention Charge
St. James seeks $143,750 as a tariff for the time that the M/V GEORGITSI remained in the
middle berth after it was ordered to leave on March 10, 2013. The tariff provision of St. James' June
15, 2012, Changes in Fees Notification states:
Any ship which refuses to vacate the St. James Stevedoring buoy
system when so ordered, will be assessed a detention damages charge
of $5,000.00 per hour it remains in berth following service of notice
to vacate. This detention damages charge will also apply to ships that
St. James directs to vacate the buoy systems but are ordered to remain
in berth by Governmental organizations due to mechanical or
operating deficiencies in the ship.
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St. James Stevedoring reserves the right to order the ship out of
the buoy system when, in our sole discretion, conditions (including,
but not limited to hurricanes and tropical storms) could potentially
result in damages to the buoys. The ship must leave when ordered.
All costs to leave the buoys and return will be for the account of the
ship.
At 9:58 a.m on March 10, 2013, St. James ordered the M/V GEORGITSI to vacate the
middle berth by 1:15 p.m. that day. The vessel did not vacate the berth until 1:50 a.m. on March 12,
2013. Thus, St. James claims it is owed $5,000 per hour for 28.75 hours, which totals $143,759.
Whether stipulated damages in a maritime contract is an unenforceable penalty is a matter
of law, and it cannot be enforced if it is "so unreasonably large as to be a penalty." Int'l Marine,
L.L.C. v. Delta Towing, L.L.C., 704 F.3d 350, 354 (5th Cir. 2013). The reasonableness of
stipulated damages is determined as follows:
The first factor is the anticipated or actual loss caused by the breach.
The amount fixed is reasonable if it approximates the actual loss that
has resulted from a particular breach, even though it may not
approximate the loss that might have been anticipated under other
possible situations, or if the breach approximates the loss anticipated
at the time of making the contract, even though it does not
approximate the actual loss. The second factor is the difficulty of
proof of loss. The greater difficulty of proof of loss, the more
flexibility is allowed in approximating the anticipated or actual harm.
Farmers Export Co. v. M/V GEORGIS PROIS, 799 F.2d 159, 162 (5th Cir. 1986) (internal citations
omitted).
Morton testified that St. James charged defendants a $5,000 per hour tariff for 28.75 hours
for the time the ship was in the berth after it was asked to leave. He stated that the amount was an
estimate of the cost of unused cranes and exposure to demurrage charges St. James would have if
a vessel stayed in the berth after it was asked to leave. The amount of the tariff is based on the
assumption that St. James would be delayed from discharging another vessel, which would leave
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the cranes inoperable resulting in lost income, and cause exposure to demurrage charges. Morton
testified that there were no ships that St. James was unable to discharge because the M/V
GEORGITSI was in the middle berth. Morton also testified that when St. James ordered the M/V
GEORGITSI out of the middle berth on March 10, 2013, the plan was for the M/V GEORGITSI to
move to the upper berth, but the vessel that was occupying it did not move until March 12, 2013.
Further, at the time the M/V GEORGITSI was ordered to leave the middle berth, St. James thought
that only the middle berth needed to be cleared for the buoy repair, and later found out that both the
middle and upper berths needed to be clear. Morton testified that it is not St. James' practice and
custom to charge the tariff when the delay in vacating the berth is caused by St. James.
The court finds that St. James' charging of the $5,000 per hour tariff was unjustified and is
an unreasonable penalty in this case. Morton testified that there were no vessels waiting to be
discharged at the middle berth when St. James ordered the M/V GEORGITSI to vacate. Thus, St.
James was not exposed to any demurrage charges and it was not losing money with idle cranes
considering Morton's testimony that all of St. James' cranes were engaged in cargo operations when
the M/V GEORGITSI requested one to aid in the windlass repair. Therefore, it was unreasonable
for St. James to charge the tariff in this case, and St. James may not recovery any of the charged
tariff.
B. Motion
Motion claims damages in the amount of $98,022.74, which includes $42,378.01 in physical
damages to the vessel, $20,091.39 in additional charges that were incurred in New Orleans, and
$35,553.28 in lost charter hire.

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1. Physical Damages to the Vessel
Motion has proved that it incurred $42,378.01 in physical damages to the vessel as a result
of the allision. This amount includes: $7,103.28 for a technician to repair the windlass; $755 for a
Vessel Data Recording technician; $9,450 for a replacement hydraulic motor; $1,766 for
transporting the replacement hydraulic motor from South Korea to the Netherlands; $2,872.79 in
agency fees related to the delivery of the replacement hydraulic motor; $9,932.86 in crew overtime,
extra payments and consumables related the repair and replacement of the hydraulic motors;
$3,513.14 for replacement lubricant; $1,000 for classification society expenses; $5,985 for marine
surveyor expenses.
Mandrachalos testified that the hydraulic motor has a useful life of 18 to 20 years, which is
an average of 19 years. The motor was one year and three months old at the time of the allision. It
is reasonable to assume that the broken motor's cost was comparable to the new one purchased only
a year later. Therefore, the cost of the new motor, $9,450, should be depreciated by 6.5% (15
months used / 228 months useful life), for a total of $8,835.75. Thus, Motion's total damage claim
is $41,763.76. Motion is entitled to recover that amount, less 40% for fault attributable to it.
2. Additional Charges Incurred
Motion also claims that it incurred $20,091.39 in extra charges in New Orleans as a result
of the allision. This included $19,141.39 in additional pilot expenses and $950 in additional agency
expenses. St. James does not dispute that the charges were incurred. Therefore, Motion is entitled
to recover that amount, less 40% fault attributable to it.
3. Lost Charter Hire
Motion cannot recover the $35,53.28 in lost charter hire because it has not proved that it has
incurred these damages. Makaris testified that the vessel's charterers have indicated that they are
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going to deduct payments of $36,796.88 to reflect that the vessel was off hire for 3.7 days after the
incident, however the charters have not yet deducted this amount. There was correspondence
indicating that the charterers would make the deduction, later that they decided not to, and then that
they would if the vessel were at fault. Because it is not clear that Motion actually lost the charter
hire, this element of damages is not recoverable.
C. Interest
1. Pre-Judgment Interest
Both St. James and Motion claim that they are entitled to pre-judgment interest on their
respective damage claims. “[I]n maritime cases the award of prejudgment interest is the rule, rather
than the exception, and the trial court has discretion to deny prejudgment interest only where
peculiar circumstances would make such an award inequitable.” Corpus Christi Oil & Gas Co. v.
Zapata Gulf Marine Corp., 71 F.3d 198, 204 (5th Cir. 1995). However, “[p]eculiar circumstances
may be found where plaintiff improperly delayed resolution of the action, where a genuine dispute
over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions
against the award, or where the damages award was substantially less than the amount claimed by
the plaintiff.” Reeland Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th Cir. 1986).
Awarding pre-judgment interest would be inequitable in this matter because there was a
genuine dispute over a good faith claim and mutual fault. Further, the amount of damages awarded
is substantially less than the amounts claimed. Therefore, this court declines to award pre-judgment
interest to either side.
2. Post-Judgment Interest
Section 1961, Title 28 of the United States code permits the recovery of post-judgment
interet, and sets the rate of such interest. Thus, both St. James and defendants are entitled to interest
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on their respective damages awards at the rate established by federal law beginning on the date of
this judgment.
IV. Conclusion
The court finds that St. James was 60% at fault for the allision and Motion and the M/V
GEORGITSI were 40% at fault. Thus, St. James recovery is reduced by 60%, and Motion's
recovery is reduced by 40%, of their respective proved damages, as discussed above.

New Orleans, Louisiana, this _____ day of August, 2014.
6th

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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