CAMPBELL TRANSPORTATION COMPANY, INC.

Filing 85

ORDER denying 81 Motion to Increase the Value of the Limitation Fund and for Increased Security. Signed by Judge Cathy Bissoon on 10/16/2014. (sje)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COMPLAINT OF:
CAMPBELL TRANSPORTATION
COMPANY, INC.
For Exoneration or Limitation of Liability

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Civil Action No. 13-395
Judge Cathy Bissoon

MEMORANDUM ORDER
I. MEMORANDUM
For the reasons stated below, the Motion to Increase the Value of the Limitation Fund
and for Increased Security (Doc. 81), filed by Claimants Raymond and Patricia Kirich, will be
denied.
BACKGROUND
Plaintiff Campbell Transportation Company (“CTC”) brought the instant action pursuant
to the Limitation of Liability Act, 46 U.S.C. § 30501 et seq., seeking exoneration or limitation of
liability from an incident that occurred on April 1, 2010. See generally Compl. (Doc. 1). CTC
brought the action after being sued by Claimants Raymond and Patricia Kirich on a theory of
negligence, for the same April 1, 2010 incident. Id. at ¶ 13. Specifically, the Kiriches, in their
lawsuit, claimed that Mr. Kirich suffered injuries when he fell onto the gunnel of one of CTC’s
barges, while it was docked at Mile 2.2 on the Monongahela River. Id. At the time of the
alleged incident, Mr. Kirich, an employee of Richard Lawson Excavating, was unloading gravel
from the barge, which had been transported to Mile 2.2 by CTC pursuant to a contract between
CTC and Hanson Aggregates (“Hanson”). Id.; Claimants’ Br. (Doc. 82) at 6.
Upon filing the instant action, CTC, in accordance with Supplemental Admiralty Rule
F(1) of the Civil Rules of Civil Procedure, deposited as security the fair market value of the

barge involved, and also provided an affidavit indicating that there was no pending freight at the
time of the incident. See id. at ¶¶ 21-24. Claimants Raymond and Patricia Kirich have now
filed the pending motion to increase the limitation fund to include the entire value of the
aforementioned contract between CTC and Hanson as pending freight, and CTC has filed a brief
in opposition (Doc. 83).
ANALYSIS
Under the Limitation of Liability Act, the owner of a vessel may limit his liability to the
value of the vessel and any pending freight. 46 U.S.C. § 30505(a). The Supreme Court has
defined pending freight as the “earnings of the voyage.” The Main v. Williams, 152 U.S. 122,
131 (1894). In doing so, the Supreme Court recognized that the purpose of the statute is to
“limit the liability of vessel owners to their interest in the adventure.” Id. “[P]ending freight is
limited to the particular voyage at issue.” Collins v. Cottrell Contracting Corp., 733 F. Supp. 2d
690, 706-07 (E.D.N.C. 2010). Therefore, the Court must identify the relevant “voyage” in order
to determine the amount of pending freight. The term “voyage,” however, “will not always have
a fixed meaning.” The Black Eagle, 87 F.2d 891, 894 (2d Cir. 1937). Indeed, determining the
relevant voyage “is a fact-specific inquiry that depends on the particular circumstances of the
situation presented.” Collins, 733 F. Supp. 2d at 696.
Here, Claimants ask the Court to increase the limitation fund to include the entire value
of the Transportation Agreement between CTC and Hanson, which was in operation at the time
of the April 1, 2010 incident, as pending freight under 46 U.S.C. § 30505A. Claimants’ Br.
(Doc. 82) at 5. In doing so, Claimants essentially argue that the relevant “voyage” here consists
of the entirety of the towage services performed by CTC under its contract with Hanson. To
support their argument, Claimants point to several cases where courts have found the value of

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agreements, such as towing or dredging contracts, to be pending freight. Id. at 3-5. On the other
hand, CTC argues that, given the nature of its contract with Hanson, to include its entire value
would increase the fund beyond the scope of the voyage. Pl.’s Br. (Doc. 83) at 6. The Court
agrees with CTC.
The contract between CTC and Hanson was in effect for multiple years, and provided
that CTC would transport barge loads of sand, gravel, and crushed stone for Hanson between
various points and zones of origin and destination on the Allegheny, Monongahela and Ohio
Rivers. See Agreement (copy attached under Doc. 83-2). The contract provided for an annual
minimum tonnage that would be transported by CTC, but did not set specific dates or times that
CTC would transport the tonnage. Id. at ¶¶ 2-3. Instead, CTC was to transport such tonnage as
designated by Hanson. Id. at ¶ 3. In exchange, Hanson would pay CTC for each barge load
transported, with such compensation depending on the tonnage of the barge, as well as both the
origin and the destination of the trip. Id. at ¶¶ 6-7. Importantly, the agreement provided that
freight was considered fully earned when the tow was delivered to its destination. Id. at ¶ 6.
These provisions reveal that the master contract consisted of several separate and distinct
voyages, rather than one overarching, multi-year voyage. As such, pending freight must be
limited to the particular voyage at issue under the contract, not the entirety of the master
transportation agreement. See Collins, 733 F. Supp. 2d at 697 (finding that the pending freight
of the vessel, which was engaged in a discrete phase of a multi-phase contract, included only the
amount allotted to the discrete phase at issue); In re Pacific Inland Nav. Co., 263 F. Supp. 915,
918 (D. Haw. 1967) (finding that the agreement was “one which contemplated a series of
separate and distinct voyages” and therefore the total earnings of the tug during the entire charter
period were not pending freight); In re Offshore Specialty Fabricators, Inc., 2002 WL 827398, at

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*5 (E. D. La. Apr. 30, 2002) (finding that, given the distinct phases of the project, the value of
the pending freight must be limited to the portion of the contract pertaining to the relevant
phase). To include the entire value of the master transportation agreement as pending freight
would be to “increase the fund beyond the scope of the voyage.” See Offshore Specialty
Fabricators, 2002 WL 827398, at *5.
Turning to the relevant voyage here, the record reveals that CTC’s barge was already
docked at Mile 2.2 on March 30, 2010, two days prior to Mr. Kirich’s accident. See Pl.’s Br
(Doc. 83) at Ex. A. As such, the voyage already had ended by the time Mr. Kirich fell on the
barge on April 1, 2010. See The Pelotas, 21 F.2d 236, 238-39 (E.D. La. 1927) (“a voyage of a
vessel has been consistently recognized and defined as the sailing or passage or transit of a ship
from her port of origin to her port of destination. The voyage ends when the vessel is safely
moored at her port of final destination, and is ready for unloading.”). Moreover, at the time the
barge was docked, freight was already considered fully earned, pursuant to the terms of the
master contract. See Agreement (copy attached under Doc. 83-2) at ¶ 6. Accordingly, there was
no pending freight, and under these circumstances, the Court will not increase the limitation fund
to include any compensation received by CTC under its agreement with Hanson. See The
Pelotas, 21 F.2d at 238-39 (finding that a vessel’s voyage had ended when it was safely anchored
in the harbor, regardless of whether there was still cargo aboard); The C.F. Coughlin, 25 F. Supp.
649, 650 (W.D.N.Y. 1938) (“The limits within which [the vessel] would earn her freight should
determine the limits of her voyage.”).
II. ORDER
Consistent with the foregoing, Claimants’ Motion to Increase the Value of the Limitation
Fund and for Increased Security (Doc. 81) is DENIED.

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IT IS SO ORDERED.

October 16, 2014

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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