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AMERICAN RIVER TRANSPORTATION CO. v. PHELPS

August 2, 2001

AMERICAN RIVER TRANSPORTATION COMPANY, PLAINTIFF/PETITIONER,
v.
CHARLES PHELPS AND AMERICAN COMMERCIAL BARGE LINE COMPANY, CLAIMANTS/RESPONDENTS.



The opinion of the court was delivered by: Michael J. Reagan, United States District Judge.

    ORDER FOLLOWING BENCH TRIAL

I. Introduction

On July 17, 1997, Charles Phelps, a deckhand employed by American Commercial Barge Lines, was injured on a barge owned by American River Transportation Company. In February 1998, Phelps sued American Commercial Barge Lines ("ACBL") in the Circuit Court of Madison County, Illinois under the Jones Act, 46 U.S.C. § 688, et seq. ACBL filed a third party action against American River Transportation Company ("ARTCO"). Phelps then amended his state court complaint to add ARTCO as a Defendant.
In January 2000, ARTCO filed suit in this Court seeking exoneration from liability or limitation of liability under 46 U.S.C. § 181, et seq. Initially, the case was assigned to the Honorable David R. Herndon. Judge Herndon restrained the commencement of prosecution of any other suits involving this accident and directed all parties having claims arising from the accident to file them in this Court on or before March 12, 2000. Charles Phelps filed a claim on January 26, 2000. American Commercial Barge Lines filed a claim on March 13, 2000.
Judge Herndon ordered that the claims of both Phelps and American Commercial Barges Lines could proceed. He defaulted all other claims as untimely-filed. Subsequently, the parties filed cross-claims, counterclaims, and amended claims. In late October 2000, the case was transferred to the undersigned Judge and given a firm trial setting. The various claims presented at trial may be summarized as follows.

ARTCO, as owner of Barge XL-737, seeks exoneration from liability for any loss, damages, or injury arising out of the July 17, 1997 incident (Doc. 1).

In his second amended claim against ARTCO (Doc. 64), Phelps alleges that, as owner of Barge XL-737, ARTCO owed him a duty of reasonable care under the circumstances, and ARTCO breached that duty of reasonable care by negligently allowing a slippery substance to get on the deck of Barge XL-737 near the kevels, failing to warn Phelps that the slippery substance was on the deck, and failing to coat the working area of Barge XL-737 with non-skid paint. Phelps seeks $500,000 in damages from ARTCO.

Against ACBL, Phelps brings a two-count amended cross-claim based on the Jones Act (Doc. 65).*fn1 Count I alleges that ACBL owned, operated, and controlled the tug-boat M/V William Norman, that the William Norman was used to perform work on the navigable waters, and that ACBL breached the nondelegable duty it owed Phelps to maintain ACBL vessels in seaworthy condition by (a) failing to warn Phelps of a slippery substance on the deck of Barge XL-737, (b) failing to inspect the deck of Barge XL-737 to ascertain if any slippery substance was present, and (c) allowing Phelps to use a kinked or twisted face wire on the M/V William Norman. Count II of Phelps amended cross-claim against ACBL alleges that ACBL committed the following negligent acts or omissions: (a) failing to warn Phelps that a slippery substance was on the deck of Barge XL-737 while knowing that this substance presented a hazard to Phelps, (b) failing to inspect the XL-737's deck to ascertain if there was any slippery substance present, and (c) allowing Phelps to use a wire which was in a kinked or twisted position. Phelps seeks $500,000 plus costs and prejudgment interest from ACBL.

ARTCO's amended counterclaim against ACBL (Doc. 26), an admiralty and maritime claim under FEDERAL RULE OF CIVIL PROCEDURE 9(h), alleges that any injuries to Phelps were caused by the fault, carelessness, or negligence of ACBL, the unseaworthiness of the M/V William Norman, and/or ACBL's failure to carry out its tasks in a safe and workmanlike manner. ARTCO prays for indemnification from ACBL if the Court finds ARTCO liable to Phelps, plus reasonable attorneys' fees from ACBL for the fees incurred by ARTCO to defend against the claims of Charles Phelps.

ACBL's claim against ARTCO (Doc. 9) alleges that all of Phelps' injuries and damages are due to ARTCO's failure to use reasonable care and/or failure to maintain Barge XL-737 in a seaworthy condition by (a) allowing oil to get on the deck of Barge XL-737, (b) failing to inspect the barge deck, (c) failing to warn persons in the vicinity of the deck kevels, and (d) failing to provide a barge with a reasonably safe walking surface. ACBL seeks indemnity from ARTCO for any damages which may be awarded to Phelps. Alternatively, ACBL seeks contribution from ARTCO, i.e., recovery from ARTCO of that percentage of the judgment awarded to Phelps which is equal to ARTCO's degree of fault in causing Phelps' damages.
II. Findings of Fact
1. American Commercial Barge Lines ("ACBL") owned, operated, and controlled the Motor Vessel William C. Norman.
2. On May 27, 1997, ACBL entered into a "Fully Found Charter" agreement with Upper River Services, Inc. ("URS"). The term of the Charter was five months, commencing on November 1, 1997. Under this arrangement, ACBL provided the M/V William Norman, fully crewed, for towing services on URS' fleet on the upper Mississippi River near St. Paul, Minnesota.
3. URS operated a fleeting, switching, and maintenance service for barges in the St. Paul area. URS dispatched the M/V William Norman to move barges, transport supplies, and transport individuals, while ACBL retained ownership and operation of the M/V William Norman.
4. At all times relevant herein, American River Transportation Company ("ARTCO") owned a box barge known as Barge XL-737.
5. Equipped with fiberglass covers, Barge XL-737 was an inland river hopper barge used to transport dry cargo products on the inland rivers, including the Mississippi River.
6. On June 13, 1997, Barge XL-737 was cleaned, inspected, and repaired at ARTCO's facilities in New Orleans, Louisiana. The inspection included scrutiny of Barge XL-737's deck and deck fittings. Repairs were made, included welding on the port stern corner of the barge.
7. On June 18, 1997, Barge XL-737 was moved into the tow of an ARTCO line boat, the M/V American Heritage, to begin traveling north on the Mississippi River. Barge XL-737 was empty during this northward journey.
8. In St. Louis, Missouri, Barge XL-737 (still empty) was taken from the tow of the M/V American Heritage and placed in the tow of another ARTCO line boat, the M/V Cooperative Vanguard.
9. Barge XL-737 was in the tow of the Cooperative Vanguard until it arrived at URS in St. Paul, Minnesota on July 7, 1997.
10. The general procedure and practice during the time Barge XL-737 was in tow on this northward trip was to check the condition of the XL-737 at least once during each six-hour watch. This check including inspection of fittings on the barge deck. Upon arrival at URS in St. Paul, the XL-737 was checked again.

11. ARTCO's Barge Maintenance Supervisor, Mike Wade, received no reports of any problems with Barge XL-737 at any time after June 13, 1997 (when the barge was cleaned, inspected, and repaired in New Orleans) up through July 7, 1997 (when the barge was delivered to URS).

12. No barges surrounding Barge XL-737 were pumped while the tow was en route from New Orleans to St. Paul.

13. Barge XL-737 was dropped at Mile 839 when it arrived at URS on July 7, 1997.

14. The normal practice when a barge, like those in the tow of the Cooperative Vanguard in July 1997, was dropped at URS was that fleet boat personnel would (a) inspect the barge and (b) replace any "hard" rigging on the tow with soft lines. Barges then would be dispersed into URS fleets.

15. ARTCO received no notification or any problem regarding Barge XL-737 when it arrived, was inspected, and was accepted into the URS fleet on July 7, 1997.

16. Barge XL-737 was moved at least twice within URS' fleeting facility between July 7, 1997 (when it was dropped at URS by the Cooperative Vanguard) and July 17, 1997 (the date of the accident involved herein).

17. On July 9, 1997, a barge breakaway occurred at the URS fleeting area. Twelve loaded barges broke away from the Kaposia Fleet. The Kaposia Fleet was operated by URS. Thereafter, URS hired an independent marine surveyor — Gerald E. Chapman of Manley & Manley, Inc. — to survey and report on any damage from the breakaway.

18. Chapman has worked in the marine industry for 35 years, has a license to operate a towboat, has attended numerous courses and seminars on safety involving vessels on the inland river system, and has served as supervisor of a barge cleaning and repair facility.

19. As part of the inspection following the breakaway, Chapman conducted an inspection of Barge XL-737 during the daylight hours of July 10, 1997. At that time, Barge XL-737 was on the outside of a URS fleet located at Mile 834. The barge was positioned in a manner such that its starboard and stern ends were open, and at least one barge was located on its port side.
20. Chapman visually inspected the open stern end as the tug approached the barge from the down river side. Then he boarded the XL-737, walked around the entire barge, inspected the deck fittings, and stood on each corner of the barge to check for damage.

21. Chapman, who carefully inspected the port and starboard corner kevels,*fn2 saw no oil or other slippery substance on the deck of the XL-737 on July 10, 1997. Chapman did report minor damage to the starboard side of Barge XL-737, which URS agreed to repair at no cost to ARTCO. That repair work was done at a later date, after the incident at issue herein.*fn3

22. ARTCO's Barge Maintenance Operator Mike Wade received no information, from Chapman or otherwise, that any foreign substance was present on the deck of Barge XL-737 on July 10, 1997.

23. In July 1997, Charles Phelps was working as a lead deckhand or "leadman" aboard the M/V William Norman.

24. Phelps had been employed by ACBL since 1988 and was an experienced deckhand.

25. On July 16 or 17, 1997, URS dispatched the M/V William Norman to move some barges in its fleet.

26. Just after midnight on July 17, 1997, the William Norman pulled up to an empty box barge located in the URS fleet and began the process of "facing up" to the empty barge. The empty barge was ARTCO's Barge XL-737.

27. The crew of the M/V William Norman in the late night hours of July 16, 1997 and the early morning hours of July 17, 1997 consisted of Thomas Ball (the pilot), Phelps (the leadman), and Michael Craig (the deckhand). Ball, Phelps, and Craig were working the aft or "after watch" — noon to 6:00 p.m. and midnight to 6:00 a.m.

28. Craig was the crew member immediately subordinate to Phelps. Phelps had the authority and responsibility to direct Craig.

29. As part of facing up to the barge, Phelps needed to secure several loops or "bites" of face wire around the kevels on Barge XL-737.

30. The empty XL-737 was riding higher in the water than the M/V William Norman. Two sets of triangular steps known as "tow knees" were used to access the barge from the William Norman.
31. As an initial step in the process of facing up, a rope (sometimes referred to as a "capstain line") was run between the sets of tow knees and fastened around the center kevel on the stern of Barge XL-737. This process commenced just after midnight on July 17, 1997.
32. The area where the M/V William Norman was facing up to Barge XL-737 was well lit. Flood lights were shining down on the work area. Phelps also was equipped with a flashlight. He was wearing steel-toed boots and a life-vest.
33. Phelps was attempting to secure two bites or loops of face wire to each of two corner kevels on Barge XL-737. Phelps walked up the port tow knee steps, stepped on to the deck of Barge XL-737, walked over to the port corner of the barge, straddled the port corner kevel, and placed one bite of wire around the kevel without difficulty. That wire was attached to the port winch.
34. Phelps then took a few steps back toward the port tow knee, lifted the second bite of the port face wire, and returned to the port corner kevel. Phelps straddled the kevel, so that his right foot was roughly one inch from the edge of the barge. He was holding the second bite of face wire in both hands, while he looked around for deckhand Craig.
35. Phelps needed Craig's assistance to pull slack out of the port wire due to kinks in the wire. Craig had left his position on the port side of the M/V William Norman and was not present to pull slack for Phelps.

36. The kinks in the port winch wire on the M/V William Norman caused the wire to be heavier in Phelps' hands and added strain on his back. Phelps had used that wire before and had reported the kinked condition of the wire to the mate on the William Norman.*fn4

37. Craig was not where Phelps expected him to be, as Phelps looked around for Craig's help. Phelps stood there for a "couple of seconds" and was about to yell for Craig, when Phelps' feet slid out from under him. Phelps fell backwards onto the deck and rolled off the edge of the Barge XL-737 into the river. His left arm was caught on the horn of the kevel and fractured near the elbow. Craig was on the starboard side of the William Norman when he heard the splash of Phelps falling into the river.
38. Pilot Tom Ball was on watch and witnessed Phelps fall into the river. Ball sounded the general alarm. Phelps was pulled out of the river, taken to the dock, and transported to a hospital in St. Paul, Minnesota. After waiting roughly three hours for treatment, during which time a variety of tests were run,*fn5 Phelps underwent surgery on his arm. He spent three days at the St. Paul, Minnesota hospital where surgery was performed.
39. Pilot Ball completed an accident report ("Vessel Employee Personal Injury Report") and faxed it to ACBL's office. The report contains no reference to any oil on the deck of Barge XL-737. Ball was unaware of the presence of oil on the deck at that time.
40. In the light of day on July 17, 1997, crew members of the M/V William Norman located Barge XL-737, boarded the barge, and took photographs of the deck. Those photographs show oil on both stern corner deck fittings, including the area in which Phelps was standing when he fell.

41. Ball both saw and felt the oil on the deck of Barge XL-737 at that time.

42. Jerry Oleson, chief engineer on the William C. Norman on the date of the accident, climbed aboard Barge XL-737 and saw and felt oil on the deck.

43. Captain Jerry Beasley, the other pilot of the M/V William Norman, and Elwin J. Elmore, a mate on the M/V William Norman, also saw oil in the area of the deck where Phelps fell.

44. The oiling and lubricating of ratchets is (and was in July 1997) a common practice while barges are being moved and tows are being broken and coupled to go through river locks.

45. In effect in July 1997 were certain safety rules promulgated by ARTCO, including Rule 41, which provided:

"All areas of the deck, including all gangways and walkways, must be kept free of all oil, grease, debris and foreign substances of every type and description. Report any such conditions at once to your supervisor. Clean up such areas with proper ...

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