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AMERICAN RIVER TRANSPORTATION CO. v. PHELPS
August 2, 2001
AMERICAN RIVER TRANSPORTATION COMPANY, PLAINTIFF/PETITIONER,
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
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
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
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
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
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'
Trial commenced on June 26, 2001 and concluded on July 9, 2001.
Following trial, the parties supplemented the record with
admissions, and additional evidence. As directed by the Court, counsel
submitted proposed findings of fact and conclusions of law on or before
Monday, July 23, 2001. The Court has heard and observed the witnesses,
scrutinized the documentary evidence, and carefully reviewed all
materials submitted by counsel. In accord with FEDERAL RULE OF CIVIL
PROCEDURE 52(a), the Court now FINDS and CONCLUDES as follows.
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.
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
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
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
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
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
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
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
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
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
41. Ball both saw and felt the oil on the deck of Barge XL-737 at that
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
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