Inland marine law

What could possibly go wrong?

Frederick William “Billy” Swaim, (left) Director, and Brendan Hughes, (below) Attorney, of New Orleans based specialist marine law firm Galloway discuss the important insurance implications of complex series of allisions as three vessels attempted to pass each other on the Mississippi

Upriver of New Orleans at a community known as Norco are situated a cluster of petrochemical plants with associated marine terminals and moorings. This stretch of the Mississippi River sees a high-volume of inland traffic and features a near-90˚westward (upriver) bend known as the Hahnville Bar.

On the evening of January 31, 2016, three vessels were approaching this bend at the same time: the towboats Elizabeth and Loretta on downriver courses and the bulk carrier M/V Aris T on an upriver course.

Although conditions were fair, a light surface fog was developing, and the river was running high with strong currents of four-to-five knots. As the Elizabeth was preparing to stop and back into a barge fleet mooring facility, the Loretta sought to overtake the Elizabeth starboard-toport and the two captains confirmed their overtaking agreement. Thus, the Loretta maneuvered into the middle of the channel.

In making their overtaking agreement, the captains of the Elizabeth and the Loretta failed to acknowledge a preceding radio announcement by the pilot of the Aris T announcing her position. As such, they assumed no traffic was approaching them from downriver.

It was not until the Loretta was already overtaking the Elizabeth that the captain of the Elizabeth contacted the pilot of the Aris T, whereby they organized a port-to-port passing. This meant that the three vessels agreed to pass each other with the Elizabeth on the west moving downriver, the Aris T on the east moving upriver, and the Loretta in between them moving downriver, overtaking the Elizabeth. What could possibly go wrong?

As the Loretta attempted to pass, again, while moving downriver, instead of moving closer to the riverbank the Elizabeth remained in the middle of the river and continuously slid east during the passing, pushed by the strong current. Therefore, there was insufficient space for the three vessels to be alongside one another simultaneously. To avoid a collision with the Loretta, the pilot of the Aris T instead enacted an evasive maneuver that resulted in a series of allisions with vessels and dockage infrastructure at both the Valero and Shell/Motiva Norco facilities.

The Aris T anchored post accident on the Mississippi River at Grand View Reach Anchorage, mm 147.0, near Gramercy, Louisiana. (Photo by US Coast Guard)

LIABILITY DENIED

In the ensuing litigation the US District Court for the Eastern District of Louisiana assigned fault to the Elizabeth and the Loretta (with a small assignment of fault to the Aris T), denied limitation of liability to both towboats, and dismissed a personal injury claim of an employee of Shell/ Motiva who witnessed the allision from a separate berth from a distance of more than 300 meters.

The appeals challenging these findings were consolidatedand the US Court of Appeals for the Fifth Circuit affirmed the judgment of the district court in all respects on January 24, 2022.

In allision cases, often the focus is on whether or not the (moving) vessel was at fault. However, in this case, neither of the towboats denied they were liable. Rather, they contested the percentage of fault that had been assigned to them.

When multiple vessels are at fault in an allision or collision, liability is allocated proportionately to the comparative degree of each vessel’s fault. The trial court thus made its determination of apportionment based on the number and quality of faults per vessel, relying on the Inland Navigation Rules and the role each of these faults per vessel played in causing the allision. See 33 C.F.R. § 83.01 et seq.

The Elizabeth and Loretta were each found to have violated rules (2) prudent seamanship; (5) lookout; (7) risk of collision; (8) action to avoid collision; and, (9) keeping to the outer limit of the channel that lies on the vessel’s

“In making their overtaking agreement, the captains of the Elizabeth and the Loretta failed to acknowledge a preceding radio announcement by the pilot of the Aris T announcing her position. As such, they assumed no traffic was approaching them from downriver.’’

starboard side as is safe and practicable (Elizabeth)/failure to propose manner of passing in narrow channel (Loretta).

The Elizabeth was also found to have violated rule (17) action by stand-on vessel. The Loretta was also found to have violated rules (13) overtaking; (14) failure to propose manner of passing in meeting situation; (16) action by giveway vessel; and, (34(d)) danger signal.

The Aris T was found to have violated rules (2) and (7) as above, as well as (6) safe speed and (9) failure to hold up to allow a safe passing. The Elizabeth and the Loretta were each allocated 45% of the fault, and the Aris T was allocated 10% of the fault all based on the trial court’s evaluation of the Inland Navigation Rules. The “In allision cases, often the focus is on whether or appellate court confirmed its standard for reviewing maritime collisions/ not the (moving) vessel was at fault. However, in this allisions is simply to determine whether or not the trial court had case, neither of the towboats denied they were liable. made a clear error in the apportionments of relative fault. Rather, they contested the percentage of fault that

The appellate court concluded that the district court did not clearly err in had been assigned to them.” allocating the liability as to the three vessels. The appellate court did not regard that the district court had not evaluated whether or not the Aris T had committed additional violations of the Inland Rules (specifically, 8, 14, and 16) to be clearly erroneous.

In making this determination, the appellate court noted there was conflicting evidence on what the Aris T could have done under the circumstances, which subsequently left little room for legal error. CAUSE OF LOSS An owner may limit its liability to the value of the vessel and its freight by one of two distinct ways. First, under the Limitation of Liability Act, the owner is entitled to limitation only if they are “without privity or knowledge” of the cause of the loss. See 46 C.F.R. §§ 30501, et seq. Furthermore, if the vessel’s negligence or unseaworthiness was the proximate cause of the incident, then the owner must prove it had no privity or knowledge of the unseaworthy conditions or negligent acts. Second, the vessel is only liable in rem (thus not also in personam) if a compulsory pilot alone is at fault. As such, an owner’s ability to limit its liability under the Act turns on whether the crew was incompetent, which the owner should have known, or whether the crew made mere mistakes of navigation, which the owner could not have known about. The district court found that the owners of the Elizabeth and the Loretta could not limit their liability because they were each negligent. Accordingly, the appellate court evaluated whether the district court was in error in making these determinations. The appellate court held that the owners of the Elizabeth had privity or knowledge of the conditions that contributed to the allision because, first, the owners failed to provide her captain with training on the navigation system which was in use at the time of the allision (Rose Point navigation), which subsequently resulted in the captain not using all available means to maintain a proper lookout. Second, the owner of the Elizabeth approved the downstream maneuver to back into the fleeting service dock without a tugboat assist and it was during this unassisted maneuver that the allision sequence occurred. Although moot based on these confirmed findings of negligence, a potential third finding of negligence by the owner in hiring an incompetent master without doing a proper background check was found to be in err by the appellate court. Specifically, because the coast guard did not

cite the captain, because the captain had no relevant history of incompetence, and because his errors leading to the allision were mere mistakes of navigation that the owner could not have known of, the district court erred in finding the captain incompetent.

The owner of the Loretta could not limit its liability because it was negligent in (1) sending her out with an inadequate face-wire system, and (2) not enforcing its cellphone policy. Specifically, the court found that the Loretta was not in good working order because her towboat/barge wiring system failed. The appellate court confirmed it was proper to have accepted expert testimony, which attested to this wiring system failure and disregarded the captain’s testimony which had attempted to claim it did not fail.

Furthermore, the coast guard had cited the captain for being on his cell phone during the incident. The appellate court also confirmed that it was proper for the district court to have found that this was a distraction and a cause of the allision.

Because the ARIS T’s negligence was attributable solely to the compulsory pilot, the court affirmed her owner was only liable in rem, effectively limiting the owners’ liability to the value of the vessel and her freight.

If a vessel is being captained by a compulsory pilot, and if a maritime collision/allision is caused by the fault of the compulsory pilot, absent gross negligence, then the vessel is only liable in rem. However, if it becomes manifest that the pilot is steering the vessel into danger, then the master is negligent if he does not timely intervene. “The appellate court found no clear error in the dismissal of the Shell/Motiva’s employee’s personal injury claim. The court noted that under maritime law, causation requires that negligence of the vessel must be a substantial factor in the injury, meaning that but for the negligence, the harm would not have resulted.’’

COMPULSORY PILOT DEFENCE

The appellate court confirmed that, because the captain was monitoring the situation and because the Aris T was adequately equipped with the same navigation system as the “Mobile systems became the new holy grail of deepwa-other vessels involved, her owners could avail themselves of the compulsory pilot defence. ter exploration starting in the early 1960s with Shell Oil The court buttressed this finding by noting that the compulsory pilot had adequate knowledge of the Inland Company recognizing the advantage of Mobile Offshore Rules of Navigation, and emphasized that the point of having compulsory pilots for areas with specific navigational Drilling Units (MODUs) for fields in the Gulf of Mexico rules is to compensate for the crew’s lack of knowledge in that area. with its deeper waters and harsh weather.’’The appellate court found no clear error in the dismissal of the Shell/Motiva’s employee’s personal injury claim.

This employee, who was working on a berth more than 1,000 feet away from the other berth that was struck by the Aris T, was warned by another employee that an accident had occurred. The litigant employee panicked, lost his footing, and fell; but he was able to get up and walk immediately. He then remained at work for the rest of his shift and did not report any symptoms to his coworkers or supervisor(s). Later, he saw a series of doctors, the third of which diagnosed him with traumatic brain injury and post-traumatic stress disorder (PTSD). An independent doctor who evaluated the employee testified that the employee did not have either of these ailments. The employee had the burden of proving the alliding vessel both owed a duty to him and was the proximate cause of his injuries. The district court determined the employee could not establish this duty or cause. Rather, the district court found the cause of his injuries was his own carelessness and inattention. Regarding the claim of PTSD, the employee could not recover for emotional injuries because he was not in the zone of danger. The appellate court found no clear error in the dismissal of the Shell/Motiva’s employee’s personal injury claim. The court noted that under maritime law, causation requires that negligence of the vessel must be a substantial factor in the injury, meaning that but for the negligence, the harm would not have resulted. Foreseeability is also relevant to the proximate-cause determination. Accordingly, the appellate court agreed that the employee’s panicking was unreasonable and unforeseeable. Put another way, the Aris T striking a separate berth was not a substantial factor in the employee’s fall. Regarding the claim for PTSD, the appellate court noted that it has repeatedly declined to adopt preclude the zone of danger theory for general maritime law. In any event, the court posited that the employee would have had to have demonstrated he was (i) objectively within the zone of danger, (ii) feared for his life at the time of the incident, and (iii) his emotional injuries were a reasonably foreseeable consequence of the vessel’s alleged negligence. The court agreed the PTSD claim was without merit because the employee had ample time to leave the berth and thus was not in any danger of being hurt. Further appellate review of this case is uncertain at the time of writing. n SCF Waxler Marine, L.L.C. v. Aris T M/V, No. 20-30019, 2022 WL 202311, at *1 (5th Cir. Jan. 24, 2022)