Dixie Marine, Inc. v. Q Jake M/V et al

Filing 50

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Q JAKE is not liable to Dixie Marine, and Dixie Marine is liable to the Q JAKE in the amount of $58,211.00 plus prejudgment interest at a rate of 6% running from the date of the incident until paid. All costs other than attorneys fees shall be borne by Dixie Marine in accordance to Federal Rule of Civil Procedure 54(d). Judgment will be entered accordingly. Signed by Judge Carl Barbier.(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DIXIE MARINE, INC.

CIVIL ACTION

VERSUS

NO: 16-12415

Q JAKE M/V, ET AL.

SECTION: “J”(2)

FINDINGS OF FACT AND CONCLUSIONS OF LAW
This litigation arises out of a mooring incident at the Andry
Street wharf on January 26, 2016, involving Defendant M/V Q JAKE
(“Q JAKE”) and Plaintiff Dixie Marine, Inc. (“Dixie Marine”). Dixie
Marine sued the Q JAKE in rem claiming the vessel negligently
damaged Dixie Marine’s wharf while attempting to dock. The Q JAKE
responded by asserting a negligence counterclaim against Dixie
Marine.
The Court held a bench trial on July 17 and 18, 2017, and
took

the

matter

under

advisement.

Having

considered

all

the

evidence and counsels’ arguments, the Court issues the following
findings of fact and conclusions of law in accordance with Federal
Rule of Civil Procedure 52(a). To the extent any of the following
findings of fact constitute conclusions of law, they are adopted
as such. To the extent any of the following conclusions of law
constitute findings of fact, they are adopted as such.

FINDINGS OF FACT
1.
Plaintiff, Dixie Marine, is a ship repair business that leases
the Andry Street wharf, located on the Mississippi River in New
Orleans, Louisiana, from the Port of New Orleans (“Port”).
2.
Defendant, M/V Q JAKE, is owned by Q JAKE Shipping Ltd, which
entered a restricted appearance on behalf of the vessel under Rule
E of the Supplemental Rules for Certain Admiralty and Maritime
Claims.
The Q JAKE/Andry Street Wharf Incident
3.
The Q JAKE is a 750 foot bulk cargo carrier. The Q JAKE’s
deadweight tonnage capacity (DWT) – i.e., the maximum weight of
cargo, stores, fuel, etc. the vessel can safely carry – is 82,188
metric tonnes (MT). When fully loaded, the Q JAKE displaces (i.e.,
weighs) 94,590 MT. Unladen, the Q JAKE displaces approximately
12,400 MT.
4.
On January 20, 2016, the Q JAKE completed loading a cargo of
soybeans at the ADM Terminal in Reserve, Louisiana. After loading,
the Q JAKE displaced approximately 75,000 MT and drew over 40 feet.
The Mississippi River was high at this time and near flood stage
with strong currents.
2

5.
At approximately 12:37 p.m., while heading down bound on the
Mississippi River, the Q JAKE collided with drifting barges that
had

broken

away

from

the

United

Bulk

Terminal

Facility.

The

collision punctured the Q JAKE’s hull, near the port bow. The Q
JAKE anchored at Magnolia anchorage where it awaited the United
States Coast Guard and assessed the damage.
6.
The Q JAKE contracted with Boland Marine & Industrial, LLC
(“Boland”) to perform the hull repairs. Boland’s wharf was full,
so Boland coordinated verbally with Dixie Marine for the use of
the Andry Street wharf.
7.
The Andry Street wharf is a T-head type pier consisting of an
approach roadway that runs perpendicular to the shoreline and a
main pier platform that runs parallel to the shoreline. The wharf
is approximately 900 feet long.
8.
Along the riverside edge of the wharf are thirteen (13) fiftyton (50T) bollards, spaced approximately sixty (60) feet apart.
Bollards are used to moor and secure a vessel to a wharf or other
structure. 1

For the purposes of trial, the bollards were numbered

1 The mooring bollards in this case are cast steel attachment points with a
rectangular base of about two feet by three feet and a bulbous head that stands
approximately two feet off the base.

3

consecutively beginning with bollard no. 1 on the furthest upriver
portion of the wharf and ending with bollard no. 13 on the furthest
downriver

portion.

Each

mooring

bollard

is

attached

to

the

underlying dock substructure with four one-inch diameter anchor
bolts.
9.
The wharf is composed of two main sections pertinent to the
issues in this case: (1) the upriver work platform and (2) the
main

wharf

platform.

The

upriver

work

platform,

containing

bollards nos. 1 and 2, is approximately 100 feet long and is
connected to the main wharf platform by a walkway. The main wharf
platform is 560 feet long and supports bollards nos. 3 through 13.
10.
On January 26, 2016, the Mississippi River was at a height of
16.38 feet on the Carrollton Gage, which was near flood stage. At
7:34 a.m. that same day, the Q JAKE left Magnolia anchorage and
proceeded to the Andry Street wharf. At 11:45 a.m., compulsory
pilot Steven Vogt (“Pilot Vogt”) took command of the vessel.
11.
Under the command of Pilot Vogt, the Q JAKE attempted to dock
at the Andry Street wharf with the assistance of two tugs, the
J.K. MCLEAN and the MIRIAM COOPER. The J.K. MCLEAN is a Z-drive
propulsion tractor tug with a rated horsepower of 5,360. The MIRIAM
COOPER is a twin screw conventional tug with a rated horsepower of
4

4,200. Pilot Vogt positioned the J.K. MCLEAN on Q JAKE’s bow and
the MIRIAM COOPER on Q JAKE’s stern.
12.
At approximately 1:45 p.m., the first mooring line went out
to the wharf. The Q JAKE’s bow was facing upriver near bollard no.
1 and its stern near bollard no. 13. At the direction of Pilot
Vogt via VHS radio, line handlers began tying the mooring lines to
bollards nos. 1, 2, 3, 7, 9, and 13.
13.
At 1:55 p.m., bollard no. 7 failed but remained partially
attached to the wharf. The Q JAKE’s aft spring line also parted
and the Q JAKE shifted off the wharf.
14.
Due to the strong current pushing the bow off the wharf, Pilot
Vogt called in additional tug assistance. The ANGUS R. COOPER
arrived to assist at 2:31 p.m. and the CAPT. JIMMY T MORAN (“JIMMY
T”) arrived at 2:55 p.m.
15.
After the first mooring attempt, Walter Haley, a Boland
employee, informed Dixie Marine’s Vice President of Operations,
Robbie Dendinger, of the damage to bollard no. 7. Dendinger arrived
at the wharf as the Q JAKE was making its second mooring attempt.

5

16.
At 3:08 p.m., the Q JAKE was parallel against the wharf with
all four tugs in position to commence mooring operations.
17.
At 4:20 p.m., all twelve lines were secure to bollards nos.
1, 2, 3, 6, 9, and 13 with two lines to each bollard. Pilot Vogt
then released the JIMMY T and Dendinger departed the wharf. Three
tugs, the ANGUS COOPER, the J.K. MCLEAN, and the MIRIAM COOPER,
remained to assist the Q JAKE.
18.
At 4:50 p.m., the forward bollards nos. 1 and 2 failed and
ripped completely off the wharf and the Q JAKE came off the wharf
by the bow.
19.
Shortly after the second failed attempt, the Q JAKE’s master
and Pilot Vogt agreed to abandon the mooring at the Andry Street
wharf. The Q JAKE temporarily berthed without incident at the Alabo
Street wharf from 6:10 p.m. until 7:20 p.m. using the same three
tugs, the J.K MCLEAN, the MIRIAM COOPER, and the ANGUS R. COOPER.
Around 8:00 p.m., the Q JAKE moved to the Poland Avenue wharf,
again using the same three tugs. Both the Alabo Street and Poland
Avenue wharfs are in close proximity to the Andry Street wharf and
are equipped with the same 50T bollards.

6

The Q JAKE’s Mooring Operations at the Andry Street Wharf
20.
At the time of the incident on January 26, 2016, the Q JAKE’s
crew was sufficiently rested in compliance with 46 CFR 15.1111. 2
21.
The Court finds that the Q JAKE was equipped with and properly
utilized sufficient mooring equipment for a vessel of its size
during high river conditions. There was no evidence of the crew
mishandling or improperly securing the lines. Twelve lines, two
lines per bollard, is the industry standard, reasonable under the
circumstances, and should have been sufficient to hold the Q JAKE
in place at the Andry Street wharf in high river conditions. 3 The
Q JAKE used 17 mooring lines at the Poland Avenue wharf merely out
of an abundance of caution. Both parties’ experts acknowledged
that a line should typically part before a dock bollard is damaged. 4
22.
Dixie Marine claims that the sudden parting of the stern lines
created sudden shock loads (i.e. loads shifting from one line to
the other) which caused the vessel’s weight to shift upriver and
the vessel’s lines to rip the bollards from the wharf.

2

5

Dixie

Exhibit 66, Q JAKE Crew ILO Rest Hour Records.
See Captain Ryan’s testimony; Exhibit 67 at 1, Q JAKE Mooring Arrangement
Plan.
4 See Captain Ryan testimony; William Janowsky testimony; Captain Scruton
testimony; Exhibit 117 at 6, Captain Scruton Report.
5 Exhibit 117 at 6, 7, Captain David Scruton Report.
3

7

Marine’s theory of the incident relied heavily on the testimony of
Walter Haley, a Boland employee and eyewitness to the mooring
attempts. Haley testified that on both attempts the sudden parting
of stern lines caused the Q JAKE’s stern to swing out, which in
turn exerted excessive force on the other bollards. Haley also
testified that the Q JAKE used only six lines on its first attempt,
and

twelve

on

approximately

the

150

second.

vessel

Haley

berthings

stated
per

that

year.

he

witnessed

Although

Haley

claimed that this incident in particular was more memorable than
others, the Court finds his testimony unconvincing in light of
other objective evidence directly contradicting his testimony and
Dixie Marine’s theory.

Specifically, the MRTIS video 6 shows that

the vessel’s bow – not its stern – swung out from the wharf on
both attempts.
23.
The Court also finds the Q JAKE’s experts more credible and
their conclusions more persuasive.

7

In particular, the Court is

persuaded by the testimony and report of the Q JAKE’s mooring and

6

MRTIS is a database of marine vessel traffic on the lower Mississippi River.
Vessels equipped with an AIS(Automatic Identification System) transmit data via
satellite to the MRTIS database. Exhibit 75, MRTIS AIS Data Recording.
7 The Court also gives little weight to the testimony of Captain David Scruton,
Dixie Marine’s expert on vessel navigation and mooring. Captain Scruton opined
that shock loading caused the bollards to fail; however, his opinion was based
on the belief that the stern of the ship swung out after the stern lines parted.
Furthermore, Captain Scruton’s report did not take into account certain factors
such as the Q JAKE’s mooring winch brake rendering points or the elasticity of
the mooring lines. Captain Scruton’s analysis also erroneously concluded that
only two tugs assisted the Q JAKE on the second attempt when, in fact, four
tugs assisted. Exhibit 117 at 7, Captain Scruton Report.

8

navigation

expert,

Captain

Maurice

Ryan,

who

testified

that

although the mooring lines had a breaking load of 89 tonnes, shock
loads could not be a significant factor to the bollards’ failure
because the elasticity of the mooring lines and the rendering point
of the mooring winch brakes would minimize shock loads.

8

24.
The Court finds that the Q JAKE was not obligated to utilize
additional

tugs

on

its

mooring

attempts.

Pilot

Vogt

is

an

experienced Mississippi River pilot having piloted several vessels
of the same size and draught as the Q JAKE under similar high river
conditions. 9 Based on his seventeen years of experience and taking
into account the river conditions as well as the condition of the
Q JAKE, Pilot Vogt felt that two tugs, one of which was a Z-drive
propulsion tractor tug, was appropriate under the circumstances
for the first mooring attempt. Pilot Vogt testified that tractor
tugs are particularly useful and efficient due to their increased
horsepower

and

maneuverability.

The

Court

again

finds

the

testimony and report of the Q JAKE’s expert, Captain Maurice Ryan,
particularly compelling. Captain Ryan, who has berthed similar
sized vessels many times in the Mississippi River, including in

8

The Q JAKE was equipped with six double drum mooring winches which were set
to render at 42.04 tonnes. The mooring lines had a breaking load of 89 tonnes
and a 12% elongation factor (i.e. elasticity) which allowed the lines to absorb
energy under load. Exhibit 118 at 6, Captain Maurice Ryan Report; Exhibit 53,
Q JAKE Mooring Winches Brake Holding Tests; Exhibit 59, Q JAKE Mooring Line
Certificates.
9 Testimony of Captain Steven Vogt.

9

high river conditions, stated that Pilot Vogt’s discretion for
utilizing
industry

two

tugs

standard

during
for

the

that

first

size

mooring

vessel

attempt

under

was

those

the

river

conditions. 10 Captain Ryan also confirmed that it was proper for
Pilot Vogt to position the stronger, more capable tractor tug, the
J.K. MCLEAN, on the bow of the vessel. Pilot Vogt testified that
he and the Q JAKE’s master were in constant communication with one
another and that throughout the mooring attempts, the master never
expressed any concern over the number of tugs. He also stated that
there were no issues with the tug captains or line handlers
following his commands.
Dixie Marine’s navigation expert, Captain Scruton, who has
never berthed a vessel in the Mississippi River as a master,
testified that two tugs were insufficient for the Q JAKE during
high

river

conditions.

However,

Captain

Scruton

drew

this

conclusion based only on the number of tugs and without considering
their respective horsepower. The Court agrees with Captain Ryan’s
testimony that consideration of the capabilities of the tugs and
not just the number of them is paramount in forming an opinion on
this issue.

10

Exhibit 118 at 5, Captain Ryan Report.

10

25.
After the first attempt was unsuccessful, Pilot Vogt promptly
called

for

additional

tug

assistance

before

he

made

another

attempt. After all lines were secure, Pilot Vogt released one of
the

four

tugs.

Captain

Ryan’s

report

stated

that

this

was

reasonable and in line with the industry standard for a pilot.
Bollards nos. 1 and 2 failed thirty minutes after the JIMMY T
departed, despite the fact that all lines were secure and three
tugs were assisting the Q JAKE.

Furthermore, the same three tugs

were used to dock the Q JAKE at the Poland and Alabo Street wharves
and did so without incident. Accordingly, the Court finds the
decision to release the forth tug after the second mooring attempt
was not unreasonable.
Condition of the Andry Street Wharf
26.
Dixie Marine has operated the Andry Street wharf since the
1960s when it was a timber structure. Under its lease with the
Port, Dixie Marine is responsible for all maintenance and repairs
of the wharf and for keeping it in a safe condition for its intended
purpose of berthing vessels. Dixie Marine has made repairs to the
wharf over the years by adding various reinforcements with steel
and concrete.

11

27.
The upriver work platform, containing bollards nos. 1 and 2,
has a four to five inch thick concrete deck supported by steel
piles. The upriver work platform is connected to the main wharf
platform by a steel and concrete walkway.
28.
The main wharf platform supports bollards nos. 3 through 13.
The

furthest

downriver

section

of

the

main

platform

(i.e.,

approximately bollards nos. 8 through 13) is constructed with steel
piles and a concrete deck, similar to the upriver work platform.
However, the other portion of the main wharf platform (i.e.,
approximately bollards nos. 3 through 7) still has elements of the
wharf’s original timber structure.

Specifically, beneath the

concrete deck and above the steel piles, the substructure contains
timber cap beams and timber stringers. In between the main wharf
platform and the shore is a timber deck area which was structurally
segregated from the main wharf area in 2015 due to its excessively
deteriorated condition.
29.
Since 2008, Dixie Marine has conducted three repair projects
relating to the wharf’s structure totaling $433,125.00. For each
repair project at Dixie Marine, local engineer Don Barnes of Barnes
Engineering

Company,

Inc.

(“Barnes

12

Engineering”)

provided

the

specifications, the Port approved and permitted the repairs, and
contractor Durward Dunn, Inc. performed the repairs.
30.
The

first

repair

project

was

in

2009

when

Dixie

Marine

repaired some damaged piles and concrete after a towing vessel
allided

with

the

upriver

work

platform.

The

project

cost

$229,890.00.
31.
In 2012, a vessel moored at Andry Street wharf and ripped off
bollard no. 4. Dixie Marine did not replace bollard no. 4 before
the Q JAKE incident.
32.
After a fire at the wharf in 2013, the Port became aware of
the unsafe condition of the timber substructure and circulated a
memorandum documenting that the main wharf substructure and the
approach ramp were found to be “in such poor structural condition
because of age and rot that the timber substructure has failed,”
that “it is highly probable that additional substructure will
collapse without warning,” and the conditions “present a threat of
loss of life and/or destruction of additional infrastructure.” 11
The memorandum also documents that the Port notified Dixie Marine
of its findings.

11

Exhibit 93, 3/18/13 Port Interoffice Memo.

13

33.
In June 2013, Dixie Marine conducted its second repair project
to address the fire damage along the mid-fender line of the main
platform. The project cost $127,000.00 and included inter alia
replacing

the

concrete

foundation

and

the

timber

stringer

supporting bollard no. 6.
34.
In July 2013, the Port was still concerned about the wharf’s
condition and asked Waldemar S. Nelson and Co., an engineering and
architectural firm, to perform a general condition survey limited
to a visual inspection. The report (“2013 Nelson Report”) revealed
damaged areas of the wharf that significantly reduced the capacity
of the structure. 12 The Port commissioned a more detailed report
in early 2014 (“2014 Nelson Report”). 13
35.
The 2014 Nelson Report offered five repair options at various
costs

with

corresponding

maximum

allowable

berthing

loads

if

completed. In particular, Option 1 would have allowed a maximum
berthing load of 35,000 DWT and would have cost $80,000. Option 3
would have allowed a maximum berthing load of 95,000 DWT and would
have cost $450,000.

12
13

Exhibit 5 at 3, 2013 Nelson Report.
Exhibit 3, 2014 Nelson Report.

14

36.
By letter dated January 15, 2015, Dixie Marine responded to
the 2014 Nelson Report stating that it “represent[ed] a fair and
honest evaluation of Andry without any bias to either The Port or
[Dixie Marine].” 14 However, Dixie Marine continued that “current
market conditions preclude[d] the investment needed to return the
severely damaged areas to working condition.” Therefore, Dixie
Marine suggested that “[u]nless the Port is [1] willing to invest
in the Wharf or [2] the Port has another facility on the River it
can make available to [Dixie Marine], then [it] ha[d] no choice
but to continue use of the Wharf, as is, and deal with the
deficiencies and issues of a 60+ year-old dock located immediately
downriver from the Inner Harbor Navigation Canal.”
37.
The

Port

responded

by

letter

dated

January

30,

2015

acknowledging Dixie Marine’s preference for deferring repairs “as
long as it can.” 15 However, the Port explained that the 2014 Nelson
Report “outlines minimal repairs that are required for Dixie to
continue its typical operations. 16 The Port relayed that the cost
for these minimal repairs would be $80,000.00 and would allow a

14

Exhibit 80 at 1, 1/15/15 Dixie Marine Response to Nelson Report.
Exhibit 101 at 1, 1/30/15 Letter from the Port to Kronenberger.
16 The minimal repairs included disconnecting the timber deck area “from the
remainder of the wharf to stop the progression of damage, performing some horse
leg repairs of timber piles, and barricading off an area of a missing steel
pile.” The Port also recommended that the fender system be replaced.
15

15

maximum berthing load of 35,000 DWT (i.e., Option 1). The Port
placed the burden for repairs on Dixie Marine as per the lease but
stated

that

“If

Dixie

requires

different

[than

35,000

DWT]

allowable loading, or has an alternate plan, to let [the Port]
know.”
38.
In response, Dixie Marine commenced its third repair project
(“2015 repairs”) and commissioned Don Barnes to submit repair
specifications based on the 2014 Nelson Report. In June 2015, the
Port approved of the repair specifications which cost $76,235.00. 17
39.
Between 2013 and 2016, neither of the Nelson Reports nor the
Barnes repair specifications mentioned the mooring bollards or the
mooring capacity of the wharf. Instead, they focused exclusively
on addressing the berthing and live load capacity of the wharf.
The Court understands berthing capacity to mean the wharf’s ability
to withstand lateral forces that are exerted onto it as a vessel
is placed in a desired position; live load capacity to mean the
wharf’s ability to withstand force or weight placed on top of the
wharf; and mooring capacity to mean the wharf’s ability to secure
and hold a vessel in place by the attachment of mooring lines to

17

Rather than repairing the timber piles with horse legs, Dixie Marine installed
additional steel piles and steel cap beams on the downriver portion of the main
wharf “as needed,” but it did not install a new fendering system.

16

bollards on the wharf. The Court also understands, based on the
expert testimony at trial, that berthing and live load calculations
would factor into a mooring analysis; however, a mooring analysis
requires a more comprehensive examination of, inter alia, the
entire wharf structure and the vessel.
40.
Dixie Marine provided Nelson with some information about the
vessels that have previously docked at the wharf. Specifically,
Dixie Marine informed Nelson of the deadweight tonnage (DWT)
capacity

of

the

vessels

that

have

docked

at

the

wharf.

As

previously explained, DWT is the maximum weight of cargo, stores,
fuel, etc. the vessel can safely carry. Nelson also learned that
the wharf is used for vessel repairs and, consequently, that the
vessels are typically loaded to less than 5% of the DWT capacity.
Based on that information, Nelson made three important assumptions
in

its

2014

Nelson

Report

analysis:

(1)

the

wharf

berthed

lightweight vessels 18; (2) the LWT of a vessel was between 20 and
30% of its DWT; and (3) the vessels were loaded to 5% capacity. In
other words, Nelson assumed, based on the information that Dixie
Marine provided, that the displacement of the vessels docking at
Andry Street wharf was about 35% of their DWT.

18

The Court understands lightweight to mean the weight of unladen vessels
(LWT).

17

41.
Dixie Marine claims that it provided a safe berth to the Q
JAKE because its 2015 repair project satisfied Option 3 of the
2014 Nelson Report, giving the wharf a maximum berthing capacity
of 95,000 DWT. However, Dixie Marine misconstrues the Nelson
Report’s findings. Even assuming that Dixie Marine’s 2015 repairs
satisfied Option 3, a maximum allowable capacity of 95,000 DWT
meant that the wharf could berth a vessel that displaced (i.e.,
weighed) no more than 33,250 MT. 19 Although the Q JAKE was a 82,188
DWT vessel, its displacement on the day of the incident was
actually around 75,000 MT, which is more than twice the wharf’s
allowable amount. Barnes, Dixie Marine’s expert, admitted at trial
that a loaded vessel exerts a greater force on a wharf because
currents and wind impact the vessel more when it is deeper in the
water.
42.
Dixie Marine’s Vice President, Robbie Dendinger, testified
that Haley “may have suggested” to him that the vessel was fully
laden with cargo. Dendinger further stated that even if he was
aware of that information, he still would have approved the wharf’s

19

Applying the calculation outlined in the 2014 Nelson Report, vessels were
assumed to be lightweight (20 to 30% of the DWT) plus 5% capacity (5% of DWT).
Therefore, applying the upward end of the calculation (35%) to the maximum
allowable DWT for Option 3 (95,000 DWT), the wharf could berth vessels that
displaced no more than 33,250 MT.

18

docking of the Q JAKE because, according to Dixie Marine, the wharf
had no limitations to its use.
43.
Contrary to Dixie Marine’s claims, the 2015 repairs did not
permit Dixie Marine to safely operate the wharf without limitation
or

restriction.

Dixie

Marine

was

aware

that

the

2015

repair

specifications were based on the 2014 Nelson Report, which was
limited in scope as a general condition survey and did not address
the mooring capacity of the wharf. Dixie Marine was also aware
that

the

analysis

assumed

that

vessels

would

be

in

light

condition. 20 Even if the Court assumes that (1) the 2015 repairs
satisfied Option 3 of the 2014 Nelson Report and (2) that the
respective allowable berthing capacity equated to an allowable
mooring

capacity,

the

wharf

was

far

from

capable

of

safely

accommodating the Q JAKE. Dixie Marine also should have known about
the unsuitability of the wharf because most of the damages it
alleges actually pre-existed the Q JAKE incident. Furthermore, the
deteriorated condition of the substructure underneath bollard no.
4 had been exposed on the wharf since 2012. 21

20

Exhibit 105 at 9, Excerpts from Nelson Documents.
In 2012, Bollard No. 4 was ripped off the wharf by another vessel. The damaged
foundation revealed corroded rebar and dark and deteriorated wood framing
beneath the bollard.
Dixie Marine has never replaced the bollard. See Janowsky
Testimony.
21

19

44.
With the exception of replacing the foundation underneath
bollard no. 6 following the fire in 2013, the repair projects did
not involve any enhancement or repair of the wharf’s bollards or
its mooring capacity.
45.
The Court also finds that bollards nos. 1 and 2 failed because
they were attached to the wharf with excessively corroded anchor
bolts.

The

Q

JAKE’s

forensic

expert

in

marine

structural

engineering, William Janowsky, was the only expert to specifically
analyze the wharf’s mooring points. The Court gives significant
weight

to

his

testimony.

Janowsky

stated

that

the

allowable

capacity of a bollard is a function of its installation and its
parts.

He

explained

that

although

the

rated

capacity

of

the

bollards was 50T, the allowable capacity of the bollards was
actually less than 26.6T because they were assembled with four
one-inch

diameter

bolts

instead

of

one-and-one-quarter

inch

diameter bolts and the bolts were corroded. 22 Janowsky further
concluded that bollards no. 1 and 2 failed because the bolts
sheared off the concrete pedestal due to their reduced capacity.

22

Exhibit 119 at 5, Janowsky Report.

20

46.
The Court finds bollard no. 7 failed because it was attached
to deteriorated and negligently maintained timber. Janowsky noted
that the bolts in bollard no. 7 did not shear; in fact, they held
fast to the timber substructure beneath the concrete deck. However,
Janowsky concluded that bollard no. 7 failed because that timber
was charred, black, and deteriorated. 23

Janowsky testified that

the condition of the timber under bollard no. 7 most likely stemmed
from the fire in 2013 because it appeared to be very similar to
the charred wood depicted in photographs of bollard no. 6 from
that time. 24 Dixie Marine’s engineer, Don Barnes, admitted at trial
that he did not remove all of the damaged and charred wood after
the 2013 fire. 25
Damages
47.
Dixie Marine claims that Q JAKE’s forward mooring lines,
attached

to

bollards

no.

1

and

2,

lifted

the

concrete

deck

vertically to such an extent that the steel supports underneath
fell

over

and

large

pieces

of

concrete

fell

off

the

wharf.

Photographic evidence, however, shows that this damage pre-existed
the incident. 26

Dixie Marine also claims that the vessel’s stern

23 Exhibit 119 at 15, Janowsky Report; see also Exhibit 70 at 3, Fernandes
Report; Exhibit 103 at 91, Barnes 2013 Repairs.
24 Exhibit 117 at 15.
25 Don Barnes Testimony.
26 Exhibits 119 at 6, 17-20, Janowsky Report;

21

lines snapped unexpectedly, cracking bollards no. 9 and 13 and
their foundations. Janowsky testified that some of the cracks
appear to have pre-existed the incident.
48.
Dixie Marine obtained a $263,000.00 quote from its contractor
to repair the damage to the wharf. Dixie Marine has not made any
repairs to the wharf since the incident.
49.
The

Q

JAKE

claims

a

total

of

$58,211.00

in

damages.

Specifically, the Q JAKE claims additional pilot fees in the amount
of

$2,126.20;

tugboat

expenses

in

the

amount

of

$47,194.50;

replacement mooring lines in the amount of $4,843.76; and surveyor
fees in the amount of $4,046.54.
CONCLUSIONS OF LAW
1.
This is a case of admiralty and maritime jurisdiction, brought
under the provisions of the Admiralty Extension Act, 46 U.S.C. §
30101; 28 U.S.C. § 1333, and is an admiralty and maritime claim
within the meaning of Rule 9(h) of the Federal Rules of Civil
Procedure.
2.
Dixie Marine has a sufficient proprietary interest to recover
economic loss for its damage or loss of use because it has (1)
actual possession or control, (2) responsibility for repair, and
22

(3) responsibility for maintenance. Louisville & N.R.R. v. The
Bayou

Lacombe,

597

F.2d

469,

474

(5th

Cir.

1979);

see

also

Diversified Group, LLC v. Louisiana Carriers, Inc., 12-1161, 2013
WL 2147547, at *2 (E.D. La. May 15, 2013).
The Louisiana and Oregon Rules
3.
Dixie Marine invokes the Louisiana Rule and the Oregon Rule,
either of which create a rebuttable presumption of fault against
a moving vessel when it allides with a stationary object. See The
Oregon, 158 U.S. 186, 197 (1895); The Louisiana, 70 U.S. 164, 168
(1865).
4.
Courts recognize that the presumptions apply to different
types of situations. The Louisiana Rule applies to vessels that
are not operating under their own power and drift into other
property as a result of external forces such as wind or current.
The Louisiana, 70 U.S. at 168. The Oregon Rule applies to vessels
operating under their own power which allide with stationary
objects. The Oregon, 158 U.S. at 197; see also Combo Mar., Inc. v.
U.S. United Bulk Terminal, LLC, 615 F.3d 599, 602 (5th Cir. 2010).
5.
Application

of

either

presumption

will

satisfy

the

plaintiff’s prima facie case of negligence. Brown & Root Marine
Operators v. Zapata Off-Shore, Inc., 377 F.2d 724, 726 (5th Cir.
23

1967). However, the scope of the rules are limited to a presumed
breach on the part of the alliding vessel and not a presumption of
causation (either in cause or in fact) or the percentages of fault
assigned to negligent parties.

In re Mid-S. Towing Co., 418 F.3d

526, 532 (5th Cir. 2005).
6.
Presumptions of fault do not supplant the traditional duty,
breach, causation, and injury analysis. Combo Mar., Inc. v. U.S.
United Bulk Terminal, LLC, 615 F.3d 599, 605 (5th Cir. 2010). They
are merely evidentiary devices “designed to fill a vacuum.” Id.
“Once evidence is presented . . . presumptions become superfluous
because

the

parties

have

introduced

evidence

to

dispel

the

mysteries that gave rise to the presumptions.” Id. (internal
quotations and citations omitted).
7.
A

vessel

may

rebut

the

presumption

by

showing

by

a

preponderance of the evidence: (1) the allision was the fault of
the stationary object, (2) the vessel acted with reasonable care,
or (3) the allision was an unavoidable accident.

Am. Petrofina

Pipeline Co., 837 F.2d at 1326 (citing Bunge Corp. v. M/V Furness
Bridge, 558 F.2d 790, 795 (5th Cir. 1977)).
8.
The Fifth Circuit has recognized that in order to apply the
Oregon or the Louisiana Rules the contact between a vessel and a
24

stationary object “must rise to a certain minimal level before it
constitutes a collision.” Id. The presumptions will not apply where
contact between a vessel and stationary mooring object occurred
during “normal” mooring procedures, and when the object should
have been able to withstand the handling of the vessel without
damage. Id. (citing Phillips Petroleum Co. v. Trinidad Corp., 1979
A.M.C. 1352, 1358 (M.D. Fla. 1978)).
9.
Here, the Louisiana Rule is inapplicable because the Q JAKE
was constantly under its own power and was not a drifting vessel.
10.
The Court also finds that the Oregon Rule does not apply to
the facts of this matter. The incident at issue was not a berthing
incident, but rather a mooring incident. In other words, the forces
that were exerted onto the wharf were not a result of the Q JAKE
making contact with the wharf. In fact, the Q JAKE itself did not
make contact with the wharf at any point in time. Rather, the
forces that caused damage to the wharf were from the Q JAKE’s
mooring lines pulling on the bollards as the river current pushed
the vessel away from the wharf.
contact

to

consider

this

Because there was insufficient

incident

presumption does not apply.

25

an

allision,

the

Oregon

11.
Even if the Oregon presumption were to apply, the Court finds
that Q JAKE rebutted any such presumption by proving that this
incident was the result of a defective wharf.
The Pennsylvania Rule
12.
The Pennsylvania Rule imposes a presumption of causation on
a vessel involved in an allision or collision if the vessel was in
actual violation of a statutory or regulatory rule that is intended
to prevent such incidents. The Pennsylvania, 86 U.S. 125, 136
(1873); see also Petro United Terminals, Inc. v. J.O. Odfjell Chem.
Carriers, 756 F. Supp. 269, 274 (E.D. La. 1991).
13.
A

plaintiff

must

establish

three

elements

for

the

Pennsylvania Rule to apply: “(1) proof by a preponderance of the
evidence of violation of a statute or regulation that imposes a
mandatory duty; (2) the statute or regulation must involve marine
safety or navigation; and (3) the injury suffered must be of a
nature that the statute or regulation was intended to prevent.”
Folkstone Maritime, Ltd. V. CSX Corp., 64 F.3 1037, 1047 (7th Cir.
1995).

26

14.
Dixie Marine attempts to avail itself of the Pennsylvania
Rule by arguing that the Q JAKE had insufficient mooring lines and
a fatigued crew in violation of 33 CFR 162.80(b)(1) and 46 CFR
15.1111.
15.
33 CFR 162.80(b)(1) provides: “When tied up individually or
in fleets, vessels shall be moored with sufficient lines and shore
fastenings to insure their remaining in place and withstanding the
action of winds, currents and the suction of passing vessels.” 46
CFR

15.1111

prescribes

work

hours

and

rest

periods

for

crew

members. Specifically, it requires a minimum of 10 hours of rest
in any 24-hour period and 77 hours of rest in any 7-day period.
16.
As

discussed

insufficient

above,

contact

to

the

Court

consider

this

finds

that

incident

an

there

was

allision;

therefore, the Pennsylvania Rule does not apply. To the extent
that the Pennsylvania Rule may apply, the Court finds that Dixie
Marine has failed to establish a safety violation.
17.
At the time of the mooring operations at the Andry Street
wharf, the Q JAKE crew was in full compliance with the work hour
and rest period requirements of CFR 15.1111. Dixie Marine’s counsel
conceded the point at trial.
27

18.
Furthermore,

the

Court

finds

that

the

Q

JAKE

utilized

sufficient mooring lines and fastenings in compliance with 33 CFR
162.80(b)(1). The fact that lines parted alone is insufficient to
prove the lines were not suitable for their intended purpose or
that there were too few out at the time. Expert testimony showed
that mooring lines are designed to break at a certain point and
generally should part before a bollard fails. 27
mooring

equipment

utilized

by

the

Q

JAKE

was

In fact, the
certified

and

confirmed by Captain Ryan to be “suitable for its intended use.” 28
19.
Dixie Marine has failed to show by a preponderance of the
evidence that the Q JAKE violated 33 CFR 162.80(b)(1) or 46 CFR
15.1111. Accordingly, the Court will not apply The Pennsylvania
presumption against the Q JAKE for any alleged crew fatigue or
insufficient line equipment.
Negligence of the Q JAKE
20.
In the absence of any presumption, traditional common law
principles of negligence apply to claims under general maritime

27

See Captain Ryan testimony; William Janowsky testimony; Captain Scruton
testimony; Exhibit 117 at 6, Captain Scruton Report.
28 Exhibit 118 at 6, Captain Ryan Report. Specifically, Captain Ryan also
testified that the mooring equipment was designed to safely hold the vessel at
a fully loaded condition with external forces of a 40-knot wind and a 6-knot
current.

28

law. See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th
Cir. 2000).
21.
In a maritime tort case, the plaintiff has the burden of
proving by a preponderance of the evidence that the defendant owed
a duty to the plaintiff, there was a breach of that duty, the
plaintiff suffered an injury, and there is a causal connection
between the defendant’s conduct and the plaintiff’s injury. In re
Katrina Canal Breaches Consol. Litig., 05-5724, 2011 WL 1792542,
at *19 (E.D. La. Jan. 20, 2011) (citations omitted).
22.
“The existence and scope of a duty under the general maritime
law turns primarily on the foreseeability of the harm suffered by
the complaining party.” Consolidated Aluminum Corp. v. C.F. Bean
Corp., 833 F.2d 65, 67 (5th Cir. 1987).
23.
The

test

and

standard

for

a

finding

of

negligence

is

reasonable care under the circumstances. Folkstone Mar., Ltd. v.
CSX Corp., 64 F.3d 1037, 1046 (7th Cir. 1995)
24.
A vessel is liable in rem for the damages caused by the
negligence of a compulsory pilot. Probo II London v. M/V ISLA
SANTAY, 92 F.3d 361, 365 (5th Cir. 1996). A compulsory pilot’s
decisions are not negligent if they are the decisions a competent
29

compulsory

pilot

might

reasonably

have

made

under

the

same

circumstances. Virginia Int'l Terminals, Inc. v. M/V KATSURAGI,
263 F. Supp. 2d 1025, 1037 (E.D. Va. 2003).
25.
A compulsory pilot “is in supreme command of the vessel while
he is navigating her.” Evans v. United Arab Shipping Co. S.A.G.,
4 F.3d 207, 218 (3rd Cir. 1993). A vessel’s master retains the
authority to countermand a pilot’s orders which would place the
vessel in a position of apparent and avoidable danger. Delta
Transload Inc. v. The Navios Commander, 818 F.2d 445, 451 n.17
(5th Cir. 1987).
26.
Causation has two sub-elements: “(a) cause in fact and (b)
proximate or legal cause.” In re Mid South Towing Co., 418 F.3d
526, 532 (5th Cir. 2005). To establish cause in fact, the plaintiff
must show that the incident would not have occurred but for the
defendant's

negligence.

In

re

Katrina

Canal

Breaches

Consol.

Litig., 2011 WL 1792542, at *20.
27.
“[W]here there are concurrent causes of an accident, the
proper inquiry is whether the conduct in question was a substantial
factor in bringing about the accident.” Id. (quoting Hennigan v.
Cooper/T. Smith Stevedoring Co., Inc., 2002-282 (La. App. 4 Cir.
12/30/2002), 837 So. 2d 96, 102). If the plaintiff’s injury would
30

have occurred in the absence of the defendant’s act or omission,
then the defendant’s conduct is not a substantial factor. Id.
(citing Thomas J. Schoenbaum, Admiralty and Maritime Law, §5-3
(4th ed. 2004)).
28.
“Proximate

cause

involves

a

policy

determination

as

to

whether the plaintiff's injuries were a reasonably foreseeable
result of the defendant's alleged negligent conduct.” Id. (citing
Consolidated Aluminum Corp., 833 F.2d at 68).
29.
The Court finds that the Q JAKE did not breach its duty to
approach the wharf with reasonable skill and care and to avoid
causing damage to it. See Bunge Corp., 588 F.2d at 799. The
evidence shows that the Q JAKE’s mooring operations were consistent
with local custom and prudent seamanship. As already discussed,
the number and condition of the mooring lines utilized by the Q
JAKE was not negligent.
30.
The Court finds that the use of two tugs during the first
mooring attempt was not negligent. Alternatively, if the use of
two tugs during the first attempt was negligent, it was not the
cause of the damage to the wharf because the failure of bollard
no. 7 would have occurred with or without the use of more tugs.

31

31.
Similarly, the Q JAKE was not negligent for using four tugs
to dock the vessel on the second attempt and then three tugs to
maintain the vessel alongside the wharf. It was the condition of
the wharf and not the number of tugs that caused damage to the
wharf. Accordingly, the Court concludes that the Q JAKE was not
negligent in its mooring attempts at the Andry Street wharf.
Negligence of Dixie Marine
32.
A wharfinger is not the guarantor of the safety of a ship
berthing

at

his

wharf,

but

he

is

under

a

duty

to

exercise

reasonable diligence to furnish a safe berth and to avoid damage
to the vessel. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790,
795 (5th Cir. 1977).
33.
A wharfinger must ascertain the condition of his berth and
warn the vessel of any hidden hazard or deficiency known to the
wharfinger or, in the exercise of reasonable care and inspection,
should be known to him. Id.
34.
There is no duty to warn if the wharf’s hazard or deficiency
is open and obvious to those in control of the vessel or if those
persons have actual knowledge of the condition. Id. (citing Delta
32

Commodities, Inc. v. M/T JO OAK, 88-1349, 1989 WL 149253, at *3
(E.D. La. Dec. 6, 1989)).
35.
Dixie Marine is responsible for maintaining and operating the
Andry Street wharf in a suitable and safe condition. Dixie Marine
had the duty to exercise reasonable care and inspection to furnish
a safe berth and warn the Q JAKE of any hidden hazard or deficiency
that was known to Dixie Marine or should have been known to it.
36.
The

Court

finds

that

Dixie

Marine

breached

its

duty

as

wharfinger by failing to provide a safe berth and failing to warn
the Q JAKE of its hidden deficiencies that were known to Dixie
Marine or shown have been known to it.
37.
Based on, inter alia, the 2014 Nelson Report, the minimal
repairs

performed

by

Dixie

Marine

over

the

years,

and

Dixie

Marine’s correspondence with the Port, Dixie Marine knew or should
have known that the wharf was in a deteriorated state and was an
unsafe berth for the Q JAKE, especially in high river conditions. 29
As described above, the Port repeatedly expressed its concern over
the integrity and capacity of the wharf. Dixie Marine acknowledged

29

See Exhibit 93, 2013 Port Internal Memorandum; Exhibit 80, 1/15/15 Letter
from Dixie Marine to the Port; Exhibit 101, 1/30/15 letter from the Port to
Dixie Marine.

33

the concern and the need for repairs but failed to make substantial
improvements.
38.
Expert

testimony

demonstrated

that

Dixie

Marine

knew

or

should have known that the Q JAKE was loaded. Dixie Marine had a
responsibility to verify that the wharf had the necessary capacity
to safely accommodate the vessel in its current condition and
failed to do so. 30
39.
The Q JAKE had no knowledge of the defects and deficiencies
of the wharf because they were hidden and not open or obvious. The
deteriorated state of the wharf’s substructure and bollard anchors
was hidden below the concrete deck and out of the view of the crew.
Moreover, the Nelson Reports and other documents discussing the
deteriorated state of the wharf’s substructure were only available
to Dixie Marine, the Port, and those involved in the repairs.
40.
The Court finds that Dixie Marine’s negligence was the sole
and proximate cause of the damage to the wharf. Bollards nos. 1
and 2 failed because of the deteriorated and corroded condition of

30

Dixie Marine’s Vice President, who was present at the wharf for the second
mooring attempt, testified that he may have known about the Q JAKE’s loaded
condition. However, he stated that even if he knew about the cargo, it would
not have prevented him from approving the Q JAKE’s berth because, according
to Dixie Marine, the wharf had no limitations.

34

their bolts. 31 Bollard no. 7 failed because it was attached to
heavily

deteriorated

and

charred

timber

substructure.

To

the

extent that the Q JAKE was negligent in any respect, the bollards
were in such poor condition that the damage would have otherwise
occurred.
41.
Dixie Marine also did not communicate any risks to the Q JAKE
either before or during the mooring attempts. Had Dixie Marine
warned the Q JAKE, or had Dixie Marine notified local pilots’
associations and local agents, of the condition of the wharf, the
Q JAKE could have considered the risk, especially during high river
conditions.
42.
Accordingly,

the

Court

concludes

that

Dixie

Marine

was

negligent for failing to provide a safe berth and for failing to
warn the Q JAKE of its hidden defects, and that such negligence
was the sole and proximate cause of the damage to the wharf.
Damages
43.
Where the appropriate measure of damages is the cost of
repairs, a party incurring property damage is entitled to no more

31

A post-incident survey revealed that many of the anchor bolts to the Andry
Street wharf exhibited significant corrosion, which reduced the effective
diameter of the steel bolts and reduced the capacity of the bollards. (Exhibit
119, William Janowsky Report.

35

than restoration of the property to its condition prior to the
accident. City of New Orleans v. Am. Commercial Lines, Inc., 662
F.2d 1121, 1124 (5th Cir. 1981); see also Marathon Pipe Line Co.
v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985).
44.
The party at fault for a maritime accident bears the cost of
damage surveys. In Re M/V Nicole Trahan, 10 F.3d 1190, 1196 (5th
Cir. 1994)
45.
Because the Q JAKE was not negligent during the attempted
mooring at the Andry Street wharf nor otherwise liable to Dixie
Marine, the Q JAKE owes no damages to Dixie Marine.
46.
As to the Q JAKE’s damages, the Q JAKE claims a total of
$58,211.00. Specifically, the Q JAKE claims additional pilot fees
in the amount of $2,126.20; tugboat expenses in the amount of
$47,194.50; replacement mooring lines in the amount of $4,843.76;
and surveyor fees in the amount of $4,046.54.
47.
The

Court

finds

these

damages

are

reasonable

under

the

circumstances and awards these amounts to the Q JAKE. Accordingly,
the Court awards $58,211.00 in compensatory damages to the Q JAKE.

36

48.
Generally,

prejudgment

interest

should

be

awarded

in

a

maritime case unless there are exceptional circumstances, such as
undue delay by the prevailing party in bringing suit. City of
Milwaukee v. Cement Div., Nat'l Gypsum Co., 515 U.S. 189, 195
(1995). The rate of prejudgment interest, as well as the date from
which it accrues, is within the Court’s discretion. See Thomas J.
Schoenbaum, Admiralty and Maritime Law, §5-3 (4th ed. 2004)). The
Court finds that the Q JAKE is entitled to prejudgment interest at
a rate of 6% from the date of the incident until paid.
49.
The general rule is that litigants are responsible for their
own attorneys’ fees. Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 247, 257 (1975). However, federal courts
possess “inherent power” to assess fees as sanctions when the
losing party has “acted in bad faith, vexatiously, wantonly, or
for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–
46 (1991). The Court finds no reason to assess attorneys’ fees as
sanctions. Accordingly, the parties shall be responsible for their
own attorneys’ fees.
50.
The Q JAKE’s costs other than attorneys’ fees shall be borne
by Dixie Marine according to Federal Rule of Civil Procedure 54(d).

37

51.
In the Fifth Circuit, under general maritime law, punitive
damages may be imposed for reckless, willful and wanton conduct.
In Re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico on
April 20, 2010, 21 F. Supp. 3d 657, 749 (E.D. La. 2014). There is
no evidence that Dixie Marine’s negligence was willful or wanton,
thus the Q JAKE is not entitled to punitive damages.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of
Law, the Q JAKE is not liable to Dixie Marine, and Dixie Marine is
liable to the Q JAKE in the amount of $58,211.00 plus prejudgment
interest at a rate of 6% running from the date of the incident
until paid.

All costs other than attorneys’ fees shall be borne

by Dixie Marine in accordance to Federal Rule of Civil Procedure
54(d). Judgment will be entered accordingly.
New Orleans, Louisiana, this 22nd day of August, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

38