This case is one of the many lawsuits filed against barge fleeters after Hurricane Ida. In an effort to avoid having to pay for the damages, the barge fleeters generally argued they were not responsible under the Act of God defense. Most of these claims settled before making it to trial. This is the first decision that specifically addresses the Act of God defense in the context of a Hurricane Ida Mississippi River barge breakaway.
The Case
Entergy owns the Waterford power plant located on the west bank of the Mississippi River. The plant has protective dolphins (piling structures driven into the river bottom) surrounding it. Vopak owns a nearby facility and used the KIRBY 17225 barge as a deflector barge at its facility.
Several barges broke away from various facilities during Hurricane Ida in the surrounding area. One of those breakaway barges was Vopak’s KIRBY 17225 barge.
Entergy sued Vopak for damages its protective dolphins sustained during Hurricane Ida. Entergy alleged that the KIRBY 17225 was the offending breakaway barge that struck and damaged its facility. To support this allegation, Entergy pointed to the fact the KIRBY 17225 barge found damaged and aground near the Entergy facility after the hurricane.
The dispute proceeded to a bench trial in New Orleans federal court.
Vopak denied responsibility. Vopak’s primary defenses were: (1) Entergy’s damages could have been caused by other breakaway barges such that Entergy could not prove the KIRBY 17225 was the offending barge; and/or (2) the weather conditions of Hurricane Ida were so significant that Vopak could not be responsible under the “Act of God” defense.
The Court rejected both of Vopak’s defenses. It determined that Vopak failed to properly inspect or maintain the KIRBY 17725 barge’s mooring before Hurricane Ida in violation of applicable federal barge fleeting regulations. While Vopak introduced evidence that mooring inspections were made, the Court determined that the inspections were insufficient to satisfy Vopak’s regulatory obligations.
The Court determined that Vopak's violation of federal law triggered the Pennsylvania Rule's presumption of causation. This presumption shifted the burden to Vopak to disprove causation, which the Court found Vopak failed to do at trial. Thus, the Court found Vopak was responsible and has to pay Entergy $1.5 million for the damages at issue.
Here is a copy of the decision:
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Adam Davis Law Firm