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In the Matter of the Complaint of

July 13, 2011

IN THE MATTER OF THE COMPLAINT OF MATTESON MARINE SERVICE, INC., AS OWNER OF THE M/V BETTE LYNN AND BRUCE T, FOR EXONERATION FROM OR LIMITATION OF LIABILITY. IN THE MATTER OF THE COMPLAINT OF ALTER BARGE, INC. FOR EXONERATION FROM OR LIMITATION OF LIABILITY. THIRD-PARTY DEFENDANTS.


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Wednesday, 13 July, 2011 03:52:07 PM

Clerk, U.S. District Court, ILCD

ORDER & OPINION

This is an admiralty case brought pursuant to this Court's jurisdiction under 28 U.S.C. § 1333. Pending before the Court is Claimant BNSF Railway Company's Motion for Summary Judgment as to Liability (Doc. 100); Matteson Marine Service and Alter Barge Lines' Motion for Partial Summary Judgment with respect to damages (Doc. 101); and Matteson Marine Service and Alter Barge Lines' Motion in Limine to Exclude Expert Testimony (Doc. 98).*fn1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn2

Matteson Marine -- Ownership and Management Matteson Marine Service, Inc. is a harbor and fleeting company whose main business involves moving barges in and around the Burlington, Iowa area of the Mississippi River and keeping the barges secure in fleets. (Doc. 100 at 7). Larry Matteson, Jr., Vice President of Matteson Marine, and his father, Larry Matteson, Sr., President, purchased Matteson Marine in 1985 and are the only two stockholders. (Doc 100 at 7). Matteson, Jr. runs the company, and Matteson Sr. is uninvolved in its operations. (Doc. 104 at 7). Following a period about one year in which the previous owner stayed on to help with the transition, Matteson, Jr. brought in Jim Larsen as Port Captain in 1986. (Doc. 100 at 7). From 1986 to present, Larsen, who had no prior experience with fleeting operations, has been responsible for overseeing the pilots and deckhands in Matteson Marine's fleeting operation. (Doc. 100 at 7). Larsen reports to Matteson, Jr. (Doc. 100 at 7). As a general rule, Matteson, Jr. and Larsen do not instruct the river pilots regarding how to perform their jobs because the pilots are experienced. (Doc. 100 at 7). Larsen occasionally checks the fleets to see how they are moored to the bank or locked to each other, and to make sure the deckhands check the head wire for bad spots, as all the pilots do. (Doc. 100 at 7).

Matteson Marine has eight fleeting areas on the upper Mississippi River, with several made up of two or more sub-fleets, each sub-fleet on its own head wire.

(Doc. 100 at 7). The head wire is the primary attachment for each sub-fleet to the shore. (Doc. 100 at 7). The head wire configuration generally involves a one and one-eighth inch wire from an anchor (in this case a tree) on the shore out approximately 15 feet to a used, heavy-implement road tire that has coiled wire inside of it. (Doc. 100 at 7-8). The line from the anchor runs through the center of the tire, and then comes back and is wound back into itself and clamped with a procedure known as a "farmer's eye." (Doc. 100 at 8). A separate wire of the same size and type runs from the tire to the first barge of the fleet, with farmer's eyes on either side of that wire as well. (Doc. 100 at 8). The purpose of the tire between the two separate wires is to absorb shock. (Doc. 100 at 8). As the tires wear over time, they become less flexible and more likely to snap. (Doc. 100 at 8). The head wire/tire systems are inspected visually, to the extent they can be seen, by the pilots/deckhands whenever a barge is hooked onto them. (Doc. 100 at 8). Additionally, the river usually shuts down for some period each winter, and when it opens each spring the head wire systems are inspected via Matteson's crane boat by lifting the system to the deck of the boat for the inspection. (Doc. 100 at 8). Jim Larsen orders these inspections and operates the crane boat during them. (Doc. 100 at 8). During these inspections, wires are replaced if they appear to the naked eye to be broken, frayed, or worn excessively in one spot. (Doc. 100 at 8). However, the parties dispute the frequency of replacement with respect to head wires that do not show visible signs of wear or damage. There is testimony indicating that so long as a head wire looks good, Matteson Marine leaves the wire in service, regardless of its age. (Doc. 100-7 at 75-78, Doc. 100-5 at 47-48, 50-51). There is also testimony indicating that Matteson Marine replaces all of its head wires every 12-18 months. (Doc. 100-1 at 83). Occasionally, on an annual or semiannual basis, Matteson, Jr. goes out, usually alone by johnboat, and inspects the fleets. (Doc. 100 at 9). On these inspections, he looks for how things are being done, where their anchors are, and the age and conditions of the head wires and tires. (Doc. 100 at 9). He can tell a wire is old if it is stiff or inflexible. (Doc. 100 at 9). Occasionally, on these inspections, Matteson, Jr. has requested that Larsen replace a tire. (Doc. 100 at 9). Matteson Marine has a supply of new head wires on hand and all necessary equipment to repair or replace the head wires and tires, etc., as needed. (Doc. 100 at 9). Matteson Marine keeps no record of when head wires are replaced, as it is Matteson Marine's practice to only log activities for which they can bill customers. (Doc. 100 at 9). Absent any specific recollection by a Matteson Marine employee, the only way to figure out how long a wire or tire has been in place is by examining the condition of the wire itself. (Doc. 100 at 9).

Matteson Marine -- Fleeting Practices and River Conditions Matteson Marine has no written procedures for tying off barges at fleets or performing inspections on those fleets. (Doc. 100 at 9). Matteson Marine has no set policy for how fleets are to be checked or how many times they are to be checked during high water conditions. (Doc. 100 at 10). The 407 fleet is used for loaded barges because there is deeper water there. (Doc. 100-5 at 9-10). The number 5 wire sub-fleet of the 407 ("407-5"), the wire that broke on May 1, 2008, holds up to six loaded barges when full. (Doc. 100-5 at 10).

The stage of the river on any given day is at least somewhat predictable. Matteson, Jr. and other staff members can go to the National Oceanic and Atmospheric Association ("NOAA")'s website and obtain the anticipated river stage when extreme changes are expected. (Doc. 100 at 9; Doc. 104 at 3). Also, the river levels are in the local newspaper every day and the next day's forecast in the newspaper every evening. (Doc. 100 at 9). The river level information is communicated to the pilots by radio every morning. (Doc. 100 at 9). In weeks leading up to May 1, 2008,*fn3 the Mississippi River was rising. (Doc. 100 at 9). The Coast Guard records show repeated warnings to mariners regarding "extreme high water," as early as April 27. (Doc. 100 at 9). As early as April 26, the Matteson Marine crews were moving loads in fleets to secure for high water conditions. (Doc. 100 at 9). The 407-5 tire can be seen when the water is at flood stage (15 feet) and disappears under water when the river reaches 16 feet. (Doc. 100 at 9). Leading up to May 1, the Mississippi River had not been below 16 feet since April 13. (Doc. 100 at 9). Thus, at least 18 days had passed since anyone could have seen the tire or the wire on shore. (Doc. 100 at 9).

In 1993, and possibly on other occasions as well, there was a flood as severe as the flood experienced during the May 1, 2008 breakaway. (Doc. 100 at 9). In the 1993 flood, the Matteson Marine pilots used johnboats and tugboats to inspect the fleets every few hours. (Doc. 100 at 9-10). Matteson Marine had no breakaways during the 1993 flood. (Doc. 100 at 10). High water conditions such as those that existed in the days leading up to May 1, are tense, and the pilots have to be more vigilant, keeping their eyes on the fleets at all times. (Doc. 100 at 10). While both Matteson, Jr. and Larsen tell the pilots to take additional precautions in high water conditions, the specific decisions of how to fleet are left to the pilot's discretion. (Doc. 100 at 10).

In high water conditions, there are pilots assigned to watch the fleets at all times, the pilots add extra lines where possible, and the pilots try to position themselves where they can see as many of the fleets as possible. (Doc. 100 at 10). The pilots are authorized to tie off and sit at the number 6 wire of the 405 fleet. (Doc. 100 at 10). From this position, they can use their spotlights and radar to monitor the fleets. (Doc. 100 at 10).

The Breakaway -- April 30/May 1

On April 30, 2008 in the Burlington area, Matteson Marine pilots Charles Marshall and Bruce Turner worked the day shift, and Robert Basham and Kenneth Martinson worked the night shift. (Doc. 100 at 10). In the early morning hours of May 1, while Martinson and Basham were on duty, the 407-5 head wire broke, releasing five loaded barges. (Doc. 100 at 10). On April 29, Bruce Turner had performed a drive-by check on the 407 fleet. (Doc. 100 at 10). However, in a drive-by check, the pilot and deckhand are unable to see whether a head wire is about to break. (Doc. 100 at 10). Charles Marshall also had performed a drive-by check of the 407 fleet on the morning of April 30. (Doc. 100 at 10). However, he had not instructed his deckhand to walk any of the fleets on April 30, because he felt that he had been able to see everything during the drive-by. (Doc. 100 at 10).

On April 30, Turner was on barge AGS-411B, the second barge out from the shore on the upstream end in the 407-5 fleet. (Doc. 100 at 10). Turner and his deckhand checked the entire 407-5 fleet at that time. (Doc. 100 at 11). However, due to the high water level, they could not see the tire or where the wire attached to the tree on shore. (Doc. 100 at 11). At that time, there was a head wire and two safety wires from the barge fleet to the shore. (Doc. 100 at 11).

At 6:00 pm on April 30, Martinson in the M/V Bette Lynn left to go up and sit in the fleet, check the fleets and stand by on the fleets. (Doc. 100 at 11). Among the fleets checked by Martinson was the 407 fleet. (Doc. 100 at 11). For each and every fleet, with one exception, Martinson dropped off his deckhand to walk down each barge and ensure they were properly tied to the shore and to each other. (Doc. 100 at 11). The one exception was the 407 fleet -- the fleet that later broke away. (Doc. 100 at 11). While Martinson testified that any other time he would have had his deckhand walk the 407 fleet, neither Martinson nor his deckhand walked the 407 fleet because Bruce Turner has informed Martinson during the shift change that Turner had previously inspected the 407 fleet and everything had looked good. (Doc. 100 at 11).

After completing the walking inspections of other fleets and a drive-by inspection of the 407, Martinson tied off to a mooring at the number 6 wire of the 405 fleet, approximately 1 mile and a half south of the 407-5 fleet. (Doc. 100 at 11). From that position, Martinson shined his starboard incandescent light on the 405 constantly, and then every 30 minutes shined his port "xenon" light on the 407 fleet. (Doc. 100 at 11). From that distance, Martinson could not see the wires or lines on the 407 fleet, but he could see whether or not the barges had broken loose and were drifting towards him. (Doc. 100 at 11). Martinson and his deckhand were sitting in the pilothouse together, with the deckhand sitting in the pilothouse chair. (Doc. 100 at 11). Martinson had radar on that night, set to a two-mile range, which would allow him to see the 407 fleet a mile and a half away. (Doc. 100 at 12). If Martinson had been looking at the radar at the time of the breakaway, it would probably have shown him that the 407-5 sub-fleet had broken loose and was drifting downstream. (Doc. 100 at 12). Martinson knew to keep a close eye on the radar yet he did not do so. (Doc. 100 at 12). Martinson could not see his radar in time to know the fleet had broken away because his deckhand, Mike, was sitting in a position that blocked Martinson's view of the radar screen. (Doc. 100 at 12).

At 12:45 am on May 1, Basham was sitting on the James L. at the mooring at the dock south of both the 407-5 sub-fleet and Martinson in the Bette Lynn, doing general cleaning and maintenance on the James L. (Doc. 100 at 12). After the breakaway, Matteson, Jr. asked Basham why Basham was not up with Martinson watching the fleets. (Doc. 100 at 12). Basham stated that the reason he did not assist Martinson in the fleet checks was he was in a good position to help in case of an accident in Matteson Marine's upper pool (by jumping in his truck and driving there), or if Martinson had a problem in Burlington, he could help there too. (Doc. 100 at 12-13). Matteson, Jr. deemed this response acceptable. (Doc. 100 at 13).

After the barges broke free, they floated downriver three and a half miles, past Martinson, and Martinson did not become aware of this until someone called the Matteson Marine dispatcher and informed her that five barges had broken free and that one had already struck the MacArthur Highway Bridge, located approximately a mile upstream from the BNSF Bridge. (Doc. 100 at 13).

Attempts to Recover Drifting Barges

Following the breakaway on May 1, Martinson, Turner, and others tried to recapture the barges. (Doc. 100 at 13). Basham caught barge AGS-431B, secured it to his boat with face wires, and then attempted to corral a second barge. (Doc. 100 at 13). Initially, Basham planned to take barge AGS-431B to a nearby dock. (Doc. 100 at 13). However, there was a third barge, the ACBL-4130, which was still astray. (Doc. 100 at 13). Consequently, both Martinson on the Bette Lynn and Basham on the James L., with barges in tow, attempted to capture the ACBL-4130, but missed. (Doc. 100 at 13). At this point, Basham could not continue to hold the AGS-431B, as Basham was dropping down river due to the strong current. (Doc. 100 at 13). Basham ran out of room and, for safety reasons, instructed his deckhand to remove the lines and release the AGS-431B into a railroad bridge owned by BNSF (the "Bridge"). (Doc. 100 at 13).

Examination of Head Wire and Tire Following Breakaway Afterwards, when the water receded, the tree was still there, as was the cable going from the tree to the tire and the tire itself. (Doc. 100 at 14). The wire that previously went from the tire to the barge was gone. (Doc. 100 at 14). Both the subject wire and tire were retrieved following the breakaway. (Doc. 100 at 14). With respect to the tire; Matteson, Jr., examined it and testified its condition was stretched, and that if he had seen it before the breakaway, he would have had it replaced. (Doc. 100 at 14). Martinson and Turner likewise both testified that if they had seen the tire in that condition, they would say it needed to be changed. (Doc. 100 at 14). With respect to the wire; the parties agree that it broke at the end that was under water, in the center of an eye attached to a shackle. (Doc. 104 at 8). It is believed that the shackle wore through the eye due to a strong current and oscillation of the fleet caused by rising water during a prolonged flood. (Doc. 104 at 8).

Attempts to Remove Barge

As soon as Matteson, Jr., learned of the breakaway in the early morning hours of May 1, he engaged Bill Carrier, a marine surveyor, to assist in determining how to remove the AGS-431B, which had become lodged on the Bridge. (Doc. 100 at 15). Furthermore, Matteson, Jr. asked Turner to assist and also contacted Alter to see if they had a line boat available to help. (Doc. 100 at 15). Bill Carrier and John Stockman, another Marine Surveyor engaged by Matteson Marine, arrived in the morning on May 1 and took charge of the operation to remove the barge. (Doc. 100 at 15). At some point, personnel from BNSF arrived on the scene and complained that Matteson Marine needed to get the barge off the Bridge quickly. (Doc. 100 at 15). The plan as to how the barge removal would be attempted was developed by mutual agreement between Carrier, Stockman, and Randy Kirschbaum, captain of the Alter line boat, the Bernard G. (Doc. 100 at 15). The plan was they would run a line from the Bernard G. to the barge, and have Matteson Marine tugs on either side to assist. (Doc. 100 at 15). There was a coil of brand new two-inch lock line available, and Carrier, Stockman and Kirschbaum agreed they would four-part it and use that line to attempt to remove the barge from the Bridge. (Doc. 100 at 15).

The reason why they parted it was because using more than one line would cost significant time to get the additional lines the exact length of the first line, and it can make the vessel harder to control. (Doc. 100 at 16). The crew of the Bernard G. wove farmer's eyes into each end of the lock line. (Doc. 100 at 15). Carrier gave them permission to try and pull it off the Bridge. (Doc. 100 at 16). During the pull, the line broke, causing the barge to once again hit the Bridge. (Doc. 100 at 16).

Following this failed attempt, Matteson Marine and BNSF hired contractors to vacuum the grain off of the AGS-431B to lighten its load. (Doc. 100 at 18). Additionally, Carrier and Stockman enlisted the assistance of an additional line boat, owned by ARTCO, located below the Bridge, which was willing and able to assist. (Doc. 100 at 16). ARTCO assisted in the second removal attempt and, on May 3, the barge was successfully removed from the bridge using two line boats, six lock lines, and having reduced the weight of the barge. (Doc. 100 at 18).

On May 5, 2008, Matteson Marine filed a Complaint for Exoneration from, or Limitation of, Liability, for the damage caused by the runaway barges, which includes damage to the Bridge. (Doc. 1). On May 19, BNSF filed a Claim against Matteson Marine for the damage caused to the Bridge by both the first and second allision,*fn4 asserting counts of negligence and res ipsa loquiter. (Doc. 10). On February 20, 2009, BNSF filed a Claim against Alter Barge Line for the damage caused to the Bridge by the second allision, asserting counts of negligence and res ipsa loquiter. (Doc. 47). BNSF now moves for partial summary judgment against Matteson Marine with respect to liability for the first allision, and against Matteson Marine and Alter Barge with respect to liability for the second allision. (Doc. 100). In addition, BNSF asks the Court to rule as a matter of law that Matteson Marine is not entitled to the benefit of the Limitation of Liability Act of 1851. (Doc. 100).

LEGAL STANDARD

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). If the moving party meets this burden, the nonmoving party cannot rest on conclusory pleadings but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585--86 (1986)). A mere scintilla of evidence is not sufficient to oppose a motion for summary judgment; nor is a metaphysical doubt as to the material facts. Robin v. Espo Eng. Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (citations omitted). Rather, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson, 477 U.S. at 255). The court does not make credibility determinations or weigh conflicting evidence. Id.

ANALYSIS

Liability in collision and allision cases has always been apportioned based on fault. Fischer v. S/Y Neraida, 508 F.3d 586, 593 (11th Cir. 2007).In practice, however, evidence of fault is often in the exclusive control of the defendant in an allision case. Id. Consequently, several judicial presumptions similar to the doctrine of res ipsa loquitur have evolved to shift the burden of production and persuasion to the defendant. Id. Of present concern are two related doctrines most commonly associated with The Louisiana, 70 U.S. 164 (1865), and The Oregon, 158 U.S. 186 (1895). The Oregon Rule states that when a vessel moving under its own power allides with a stationary object, the moving vessel is presumptively at fault. See The Oregon, 158 U.S. at 197. The Louisiana Rule is the same except that it applies to vessels moving or drifting due to an external force, such as the current or the wind. See The Louisiana, 70 U.S. at 173; see also, City of Chicago v. M/V Morgan, 375 F.3d 563, 573 FN11 (7th Cir. 2004) ("We agree . . . that whether the [boat] is deemed 'drifting' and therefore subject to the Louisiana presumption of fault . . . or 'under power' and subject to the Oregon rule, the analysis remains unchanged.")

Applying either of these rules creates a presumption that the moving vessel was negligent, but the presumption is rebuttable through any of three ways. The defendant can demonstrate: (1) that the allision was the fault of the stationary object; (2) that the moving vessel acted with reasonable care; or (3) that the allision was the result of an inevitable accident. See City of Chicago v. M/V Morgan, 375 F.3d 563, 573 (7th Cir. 2004); S/Y Neraida, 508 F.3d at 593; Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 605 (5th Cir. 2010); Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 211 (2d. Cir. 2009).

The first route is essentially the contributory negligence route. S/Y Neraida, 508 F.3d at 593; Combo Maritime, 615 F.3d at 605. For example, a vessel which allides with a bridge may argue that the bridge constitutes an unreasonable obstruction to navigation. I&M Rail Link, LLC v. Northstar Navigation, Inc., 198 F.3d 1012, 1014-1016 (7th Cir. 2000). Or, a vessel may argue that the allision was caused by the improper placement of a navigational buoy. Inter-Cities Navigation Corp. v. United States, 608 F.2d 1079 (5th Cir. 1979).

The second route requires the defendant to negate negligence. S/Y Neraida, 508 F.3d at 593; Combo Maritime, 615 F.3d at 605. Here, the moving vessel bears the burdens of production and persuasion, and the risk of non-persuasion. The Louisiana, 70 U.S. at 173; Combo Maritime, 615 F.3d at 605. The appropriate standard of care in this regime is based upon (1) general concepts of prudent seamanship and reasonable care; (2) statutory and ...


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