Sterling Equipment, Inc. v. M/T GREAT EASTERN

Filing 42

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 26 Motion for Summary Judgment; the Clerk is directed to enter judgment for the defendants. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STERLING EQUIPMENT, INC.,

)
)
Plaintiff,
)
)
)
v.
)
)
M/T GREAT EASTERN and her engines, )
machinery, tackle, appurtenances, )
etc., in rem, and
)
FB TANKSHIP IV LTD., in personam, )
)
Defendants.
)

CIVIL ACTION NO.
12-11501-DPW

MEMORANDUM & ORDER
September 19, 2014
The Plaintiff, Sterling Equipment, Inc., is the owner of a
deck barge, Excalibur.

On the night of January 30, 2012, a crane

aboard Excalibur sustained damage apparently caused by the wake
of a passing vessel.

Believing that passing vessel to be the M/T

Great Eastern, Sterling has sued Great Eastern along with its
owner, FB Tankship IV LTD., alleging negligence and gross
negligence.
Through a summary judgment motion,1 the defendants contend
that the evidence unearthed during discovery is insufficient to
show that the damage was caused by Great Eastern, rather than by
another vessel or source, and so seek summary judgment in their
favor.

1

I note that if this admiralty case were to go to trial, I
would be the fact finder. But my role in summary judgment
practice is not to find facts but rather to determine whether
there are any genuine issues of material fact for whoever is the
ultimate fact finder to resolve.
-1-

I. FACTUAL BACKGROUND
A.

The Wake Incident
In the early hours of January 30, 2012, the barge Excalibur,

along with the tugboat, Miss Yvette, were anchored outside the
ship channel of the East Passage of Narragansett Bay, just south
of the Pell Bridge in Newport Rhode Island.

Aboard the Excalibur

was a Manitowac 4600 crane owned and operated by Sterling.
That evening, the Miss Yvette had four crew members on
board.

The Excalibur was unmanned.

Captain Louis Gilliken was

the designated master of the Miss Yvette, while Captain William
Hoolahan was the “second captain.”
work in pairs in six hour shifts.

The crew was scheduled to
Captain Gilliken and crew

member John Dolliver were on the watch scheduled from 6:00 pm
until midnight on January 29, 2012.

They were relieved by

Captain Hoolahan and crew member Edwin Rose who were scheduled
for the “mid watch” from midnight until 6:00 am on January 30,
2012.

Captain Gilliken testified in his deposition that he was

relieved by Captain Hoolahan “at midnight on January 30th, 2012.”
Captain Hoolahan was somewhat less precise in his deposition,
testifying that the change-over occurred “somewhere close” to
midnight.
Captain Gilliken testified that he, Captain Hoolahan, and
the two crew members were below deck in the galley at the time of
the shift change when they felt a wave hit the barge.

He

testified that this event “[h]appened right after midnight.
-2-

At

midnight.

It could be a thirty minute difference, but it was at

midnight.”

While at one point, he testified that he was

“certain” the accident occurred between midnight and 12:30 am on
January 30, 2012, he qualified this somewhat later in his
deposition, saying that the wake occurred “somewhere around
midnight, 1:00, somewhere.”

In response to questions, he further

explained: “Q: It was right at the time of the turnover on your
watch, is that right?
turnover.

Q.

that right?

A.

Exactly, or a little after my

And the turnover of our watch was at midnight, is

A.

Exactly.”

After feeling the wave strike the tugboat, Captain Gilliken
opened the galley door to check on the barge and crane.

He could

only see part of the barge and could not see all of the crane,
but he could hear the two blocks of the crane striking together.
Captain Hoolahan testified that he was in the wheelhouse
when he saw an outbound ship moving quickly.

He then went down

to the galley and was there when the wave struck.

Captain

Hoolahan described the wave hitting the barge as “severe” and
said “we got smashed with like a whomp, like a huge offshore.”
He said that the tugboat “felt like it was lifted up in the air
and thrown against the Excalibur” by the wave.

He returned to

the wheelhouse after talking with the crew and observed the aft
of the passing vessel.

He testified that he observed a “large

ship” traveling away “really fast.”

He also noted that the

vessel had a large superstructure on its aft section.
-3-

Captain

Hoolahan testified that the wave struck the barge “sometime after
midnight” and that he did not remember “the exact time,” but it
was while he was on watch.

Captain Hoolahan believed and

believes that the wake was caused by the Great Eastern, but he
could not recall or state a basis for his belief.
Neither Captain Gilliken nor Captain Hoolahan radioed the
passing vessel that had caused the wake.
B.

The Transit of the Great Eastern Past the Pell Bridge
The Great Eastern was docked pierside in Providence, Rhode

Island at midnight on January 30, 2012, approximately 20 miles
north of the Pell Bridge in Newport Rhode Island.
the Great Eastern that day was Vincent Kirby.

The pilot for

Captain Kirby

boarded the Great Eastern shortly before midnight and the vessel
departed Providence at approximately 12:12 am on January 30,
2012.

Captain Kirby reported that visibility was excellent on

the outbound transit of Narragansett Bay.
The Great Eastern passed Sabin Point on the Providence River
at approximately 12:40 am.

After that time, it maintained a

speed between 14 and 15 knots until it passed under the Pell
Bridge at approximately 1:50 am.

During the outbound transit,

Captain Kirby monitored Automatic Identification System (“AIS”)
transmissions, radar and VHF radio channels.2

2

He encountered no

AIS is a system used by ships and vessel traffic for the
identification of vessels at sea. AIS transceivers transmit and
receive information concerning the identification, position,
course, speed, and other ship data.
-4-

traffic during his navigation from Providence to the Pell Bridge
and received no communications other than from the tugboats that
undocked the Great Eastern in Providence.

He was, however, aware

of a Local Notice to Mariners issued by the Coast Guard
describing work being performed on the Pell Bridge and the
presence of barges in the area.

That Notice also stated that

“Mariners are requested to reduce speed through the bridge
construction area and should also exercise caution while
transiting the area.”
While transiting beneath the Pell Bridge, Captain Kirby
observed two barges and a tugboat moored in the vicinity of the
bridge, but observed no lights or activity on the barges or
tugboats and received no AIS signal from them.

At the nearest

point of approach, the Great Eastern passed within approximately
1,000 feet of the moored barges.
Captain Kirby disembarked from the Great Eastern at
approximately 6:00 am, unaware of any wake incident involving the
barges at the Pell Bridge.
C.

Sterling’s Investigation of the Incident
At approximately 8:15 am on January 30, 2012, Captain

Gilliken called the Northeast Marine Pilots (“NEMP”) dispatch
office seeking the name of the ship that had passed the Pell

Although the tugboat Miss Yvette is equipped with AIS, it was not
functional on the evening of January 30, 2012. As a result, the
Miss Yvette was not visible on the AIS displays of passing
vessels, nor did it receive data transmitted by passing vessels.
-5-

Bridge around midnight.

NEMP’s dispatcher, Timothy Rochford,

gave him the name Great Eastern and the time that the vessel left
Providence.
Captain Gilliken regularly recorded events occurring on the
Miss Yvette in a log book which he transferred to an electronic
spreadsheet.

He made an entry for the date January 29, 2012

“0001 The Ship Great Eastern thur a five or six wake coming thur
Newport Bridge.”

He explained that the entry was mistakenly

entered for January 29, when, in fact, it should have been dated
January 30 and that it indicated an event occurring at 12:01 am.
This entry was made during the day on January 30, 2012, after
Captain Gilliken had spoken with NEMP dispatch.
On January 30, 2012, Captain David Clark, who was assigned
by Sterling to investigate the incident, submitted a Marine
Accident Report to the Coast Guard.

That report stated:

The Excalibur was anchored 300 yards east of main ship
channel under the Newport Bridge. Shortly after
midnight the Tanker Great Eastern went by at a high
rate of speed. The resulting wake made the crane barge
roll severely and the main block and ball swung into
the crane lacing (support structure for the boom).
During this the ball was ripped off the secondary hoist
and was lost overboard. An visual inspection was made
of the boom and the paint on the lacings was gouged by
the block and ball. The actual extent of the damage
will not be known until the boom is lowered.
The report indicated that the incident occurred at 12:30 am on
January 30, 2012.
When preparing this report, Captain Clark spoke by phone
with Captains Gilliken and Hoolahan, and with crane mechanic
-6-

Kevin Stinson.

He also looked at historical AIS data available

on a Marine Traffic internet site.

His review of that website

showed that, aside from the Great Eastern, “there was no other
traffic that went by . . . there was nothing after midnight and
it was the only vessel moving at what I would consider a pretty
quick speed.”

Captain Clark’s conclusion that the wake damage

was caused by the Great Eastern was based on his review of the
Marine Traffic site and his conversations with the Miss Yvette
crew members.
D.

The Prior Wake Incident
Two days prior to the wake incident, on January 28, 2012,

Pilot Howard McVay had navigated the Great Eastern north under
the Pell Bridge.

During that inbound trip to Providence, Pilot

McVay received a radio call while passing the Pell Bridge that
said “Thanks for the wake, Cap’t.”
the call.

He did not know the source of

Captain Hoolahan testified that he was particularly

upset about the January 30, 2012 wake incident because the same
vessel had passed just days earlier “throwing a wake.”
E.

The Plaintiff’s Expert Reports
The plaintiff has submitted three expert reports in this

matter.

The first, written by Captain David Witherill, provides

an opinion regarding the Notice to Mariners that was in effect on
January 30, 2012, and whether the Great Eastern violated that
Notice when it transited under the Pell Bridge that day.
-7-

Captain Witherill opined that “the [Notice to Mariners]
requested a speed reduction that was not made by the M/T Great
Eastern on the morning of January 30th, and [he] can find no
reason in the [Notice to Mariners] for not adhering to this
request.”

He also opined that the Great Eastern’s speed of 14-

15 knots “seems to indicate that it was traveling much faster
than full ahead maneuvering speed.”

He concluded:

In summary I find that the local Notice to Mariners in
affect for January 30, 2012 were very clear in the
request for a speed reduction at the Newport Pell
Bridge. The M/T GREAT EASTERN did not reduce speed in
its transit under the bridge and likely were transiting
at a higher speed than full maneuvering. The wake from
the GREAT EASTERN is responsible for causing damages
incurred by the Sterling Equipment barges.
In doing so the GREAT EASTERN violated the request in
the Notice to Mariners for a speed reduction. The
GREAT EASTERN also violated Rule 2a of the U.S. Inland
Rules of the Road. A reasonable operator of a vessel
the size of the M/V GREAT EASTERN under known
circumstances would reduce speed when transiting past
moored vessels.
The plaintiff’s second expert report, drafted by Moses
Calouro, includes a review of the AIS system and the AIS data
recorded in the vicinity of the Pell Bridge from 11:30 pm on
January 29, 2012 until 3:50 am on January 30, 2012.

His report

states that the Great Eastern crossed the Pell Bridge at 1:55 am
on January 30th 2012.

It concludes by stating that:

The Great Eastern was the only AIS equipped vessel
underway near the Claiborne Pell Bridge during the
report period. While the Great Eastern was within [the
vicinity of the Pell Bridge], its speed was never less
than 14.7 knots.
-8-

In response to this report, the defendants have noted the
undisputed testimony of Captain Witherill in which he explained
that vessels will only appear on AIS systems if those vessels are
equipped with AIS systems themselves, if those systems are
functional, and if those systems are turned on.
The plaintiff’s third expert report, drafted by Stephen
Perry, discusses the damage sustained by the crane aboard the
Excalibur on the evening of January 30, 2012.

Mr. Perry opines:

Upon inspection of the crane boom it became apparent
that the one of the two hoist ropes and a roller along
with its mounting brackets was damaged likely due to
excessive movement created by wave action. In which
the auxiliary hoist line became entangled with the
mounting bracket used to fix the roller to the boom.
In addition to the observed damage it was also reported
to me that the headache ball used to overhaul the
auxiliary hoist line was missing and presumed to have
been knocked loose, apparently falling into the water.
II.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The

question is whether, viewing the facts in the light most
favorable to the nonmoving party, there is a “genuine dispute as
to any material fact.”

Fed. R. Civ. P. 56(a); Casas Office

-9-

Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 684 (1st
Cir. 1994).
III.
A.

ANALYSIS

The Plaintiff Cannot Establish the Wake that Damaged
Sterling’s Crane was Caused by the Great Eastern.
It is a well-established rule of admiralty law that if the

wake generated by a passing ship damages a docked vessel, the
moving vessel is presumed to be at fault.

See, e.g., Maxwell v.

Hapag-Lloyd Aktiengesellschaft, Hamburg, 862 F.2d 767 (9th Cir.
1988); West India Fruit & Steamship Co. v. Raymond, 190 F.2d 673,
674–75 (5th Cir. 1951).

At the same time, it is an “essential

part” of a wake damage claim that the plaintiff demonstrate that
the swells causing damage “came from the particular vessel
against which the claim is asserted.”

O’Donnell Transp. Co. v.

M/V Maryland Trader, 228 F. Supp. 903, 909 (S.D.N.Y. 1963).

See

also New Orleans Steamboat Co. v. M/T Hellespont Glory, 562 F.
Supp. 391, 392 (E.D. La. 1983) (“Once a properly moored vessel
proves that a passing vessel caused swells or suction that
resulted in damage to the moored vessel, the passing vessel is
obligated to exonerate itself from blame.”)(emphasis added).

If

the plaintiff is unable to establish the essential causation
element, its claim fails.
The defendants’ motion for summary judgment hinges on
whether Sterling, the plaintiff, can establish this “essential”

-10-

element and demonstrate that the wake that hit its barge and
damaged its crane was caused by the Great Eastern--rather than by
another ship or some other vessel.
The plaintiff musters the following evidence to demonstrate
that the Great Eastern was the source of the wake that hit the
Excalibur and damaged the crane aboard it: (1) the Great Eastern
navigated past the Pell Bridge at 1:50 am on January 30, 2012;
(2) at the time that it passed beneath the Pell Bridge, the Great
Eastern was making approximately 14 knots; (3) no other vessel
equipped with a functioning and operational AIS system transited
past the Pell Bridge between 11:30 pm on January 29, 2012 and
3:50 am on January 30, 2012; and (4) the pilot of the Great
Eastern did not observe any other vessels during his outbound
route from Providence through the Pell Bridge.
None of this evidence, however, demonstrates that Great
Eastern was the source of the wake that damaged Sterling’s crane.
First, the uncontradicted evidence is that the Great Eastern
passed the Pell Bridge at 1:50 am, while the wake incident
happened at some earlier time.

Captain Gilliken testified that

he was “certain” the wake incident occurred between midnight and
12:30 am, but later extended this period to nearly 1:00 am.

He

also testified that the wave strike occurred close to the time of
the change of watch, which occurred at or close to midnight.
Captain Hoolahan testified that the incident occurred during his

-11-

watch (which began at midnight) and the incident occurred
sometime after midnight, but he could not recall the precise
time.

Their deposition recollections were supported by the

reports filed by Captain Clark--which noted the incident happened
“shortly after midnight” based upon the statements of the
captains--and by the log book in which Captain Gilliken recorded
the event as occurring at 12:01 am.

Accordingly, given the

uncontradicted evidence of the direct witnesses to the event, the
wave strike occurred at or around midnight – or at the latest
close to 1:00 am.

The Great Eastern, however, did not pass the

Pell Bridge until 1:50 am--meaning that the Great Eastern could
not be the source of the wake damage.
Second, although no other AIS transmissions were recorded in
the vicinity of the Pell Bridge in the hours surrounding the
wave-strike (aside from those from the Great Eastern), this does
not demonstrate that no other vessels transited through the area
in the relevant time frame.

As the plaintiff’s own expert,

Captain Witherill, confirmed, a vessel that was not equipped with
AIS, whose AIS was not functional, or whose AIS was not turned on
would not be recorded on the AIS system.

The AIS data does not

eliminate the possibility that such a vessel transited beneath
the Pell Bridge between 11:30 pm on January 29, 2012 and 3:50 am
on January 30, 2012.

In addition, there is no evidence, expert

or otherwise, that a wave of the size which struck the Excalibur

-12-

can only be generated by a 300-ton or greater ship, the type of
vessel required to carry an AIS transmitter.3

Finally, the fact

that Captain Kirby did not encounter any traffic during his
outbound transit from Providence through the Pell Bridge is
inconsequential.

If another vessel, also outbound, had passed

the Pell Bridge ahead of the Great Eastern, the Great Eastern,
headed the same direction, would not necessarily cross its path.4
B.

The Burden of Proof is Not Shifted under the “Pennsylvania”
Rule
To anchor its claim, Sterling seeks to invoke the rule

established in The Steamship Pennsylvania v. Troop, 86 U.S. 125
(1874).

Pennsylvania held that when ships collide and “a ship at

the time of a collision 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.”

Id. at 136.

3

At most, the plaintiff can point to the inconclusive
testimony of Captain Witherill that he cannot recall seeing a tug
under 300 tons throw a wake of more than one to four feet and
Captain Hoolahan’s observation of the aft of a “big ship”
following the wave strike. Captain Witherill notably testified
that was unable to say whether or not a 100 ton tug could throw a
wake larger than one to four feet.
4

Plaintiff repeatedly refers to an incident on January 28,
2012 during which “someone” called the Great Eastern by radio and
said, “[T]hanks for the wake, Cap’t.” A different pilot, Captain
McVay, was navigating the Great Eastern during that transit.
While I draw all inferences in favor of plaintiff here as the
nonmovanat, this prior wake incident does not permit an inference
that the Great Eastern, piloted by Captain Kirby, was the source
of the wake that caused damage to the crane on January 30, 2012.
-13-

Accordingly, where a colliding ship is in violation of a
statutory prohibition, that ship has the burden “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.”

Id.

The plaintiff points to violations of Rule 2 and Rule 6 of
the Inland Navigation Rules as predicates for triggering
application of the Pennsylvania Rule.5

Rule 2 states that

“[n]othing in these Rules shall exonerate any vessel, or the
owner, master, or crew thereof, from the consequences . . . of
the neglect of any precaution which may be required by the
ordinary practice of seamen, or by the special circumstances of
the case.”

33 CFR § 83.02.

As I have previously explained,

“[i]f the Pennsylvania Rule was triggered by this ‘good
seamanship’ requirement . . . it would apply in almost every
maritime case.”

In re Alex C Corp, 2011 A.M.C. 157, 2010 WL

4292328, at *7 n.14 (D. Mass. Nov. 1, 2010).

Because Rule 2 is

simply a precatory statement and the Inland Navigation Rules run
alongside rather than supplant existing Maritime Rules and
Customs, Rule 2 does not stand as a statutory

5

The Inland Navigation Rules were originally enacted by
Congress and codified as 33 U.S.C. §§ 2001-2038. They were
repealed in 2010 and subsequently promulgated as Part 83 of Title
33 of the Code of Federal Regulations. The Rules “apply to all
vessels upon the inland waters of the United States.” 33 C.F.R.
§ 83.01.
-14-

rule the violation of which would provide a basis for invoking
the Pennsylvania Rule’s burden shifting regime.
Rule 6 provides that “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” and
lists factors to be taken into account in determining an
appropriate speed.

33 CFR § 83.06.

Though defendants claim that

this rule is too indefinite to act as a predicate trigger for the
Pennsylvania Rule, more than one court has held the contrary.
See, e.g., In re Backcountry Outfitters, Inc., 2008 WL 516792, at
*8 (N.D. Fla. Feb. 22, 2008) (invoking Pennsylvania Rule based
upon violation of Rule 6); Maritime & Mercantile Intern. L.L.C.
v. U.S., 2007 A.M.C. 814, 2007 WL 690094, at *22-23 (S.D.N.Y.
February 28, 2007)(same).

I agree with these courts.

The rule

requires that vessels proceed at a sufficiently safe speed to
avoid collisions, taking into account prevailing conditions and
other factors.

Violation of Rule 6 is a sufficient predicate to

triggering the Pennsylvania Rule.
In addition, the expert opinion of Captain Witherill that a
“reasonable operator of a vessel the size of the M/V GREAT
EASTERN under known circumstances would reduce speed when
transiting past moored vessels,” coupled with evidence regarding
the Great Eastern’s speed when passing the Pell Bridge and the

-15-

Notice to Local Mariners requesting a reduction in speed when
transiting the area, is sufficient to raise a genuine dispute
regarding whether the Great Eastern violated Rule 6 by failing to
reduce its speed when approaching and crossing beneath the Pell
Bridge.
There exists, however, another, and in this case
insurmountable, obstacle to triggering and applying the
Pennsylvania Rule.

While that rule alters the burdens of

demonstrating causality, it does not relieve the plaintiff
entirely of its burden in this regard.

As the First Circuit has

explained, “[i]f a plaintiff can establish both that the
defendant breached a statutory duty and that the breach is
relevant to the casualty in question, the defendant assumes the
burden of proving that its breach could not have caused
plaintiff’s damages.”

Pan American Grain Mfg. Co., Inc. v.

Puerto Rico Ports Authority, 295 F.3d 108, 115–16 (1st Cir. 2002)
(emphasis added).

Thus, “the violation or ‘fault’ must have

contributed to the casualty, at least in some degree . . . a
plaintiff must establish a relationship between the regulatory
violation and the injury in order to invoke the Pennsylvania
Rule.”

Poulis-Minott v. Smith, 388 F.3d 354, 364 (1st Cir.

2004).
In Poulis-Minott, the First Circuit faced “a casualty for
which it is virtually impossible to identify the cause” and so

-16-

found it impossible to determine whether the statutory violations
“contributed to the casualty.”

Id. at 364.

In such

circumstances, the court concluded that the Pennsylvania Rule was
inapplicable.

Much the same logic applies here.

If the Great

Eastern violated Inland Navigation Rule 6 but was not the cause
of the wake which damaged the barge Excalibur, there is no
relationship between the statutory violation and the injury.
“There must be, in other words, proof that under the
circumstances there was a reasonable possibility that compliance
with the regulatory standard would have prevented the accident.”
Id.

Because, as discussed above, the plaintiff is unable to show

that the Great Eastern generated the wake which caused the harm
to the crane aboard the Excalibur, this proof is lacking and the
plaintiff is unable to invoke the burden-shifting regime of the
Pennsylvania Rule.
IV.

CONCLUSION

For the reasons set forth more fully above, Defendants’
motion for summary judgment (Dkt. No. 26) is hereby GRANTED.

The

Clerk of the Court is hereby ordered to enter judgment in favor
of the Defendants, M/T Great Eastern and FB Tankship IV Ltd.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT

-17-