On February 22, 2020 barges broke away from Turn Services, LLC’s Mississippi River Dockside Fleet and struck and damaged vessels/structures down river from the fleet. The Mississippi River was high (15 feet) so the applicable high water policies and regulations were in effect.
Because of the high water conditions, a Marine Safety Bulletin issued by the United States Coast Guard, “Carrolton Gauge at 15 Feet and Rising,” was in effect. The Marine Safety Bulletin imposed additional high water requirements found in 33 C.F.R. § 165.803(m) for the Lower Mississippi River. These statutory provisions required Turn Services to have a certain number of towboats in the fleet to prevent breakaways.
During the breakaway, Turn Services had several towboats in its fleet that were either owned or chartered by Turn to move or fleet barges at the fleet. Two of the tugs, M/V CAPT. ZIGGY and M/V CORKY (both owned by Gulf South) were chartered by Turn to move barges. When the breakaway occurred, the M/V CAPT. ZIGGY had a three barge tow and was waiting to get clearance to travel through the Industrial Canal Locks. The M/V CORKY was likewise waiting to get clearance to move barges through the locks.
The breakaway started when spar wires in Turn Service’s West Bank Fleet parted. All sixteen barges at the fleet broke free.
Turn Services dispatcher called the M/V CAPT. ZIGGY and M/V CORKY to go and help with the breakaway. Both vessels went to assist. While the tugs were eventually able to help corral the barges, they were unable to catch them in time to prevent damage.
Turn Services sued the M/V CAPT. ZIGGY and M/V CORKY's owner (Gulf South) under two separate theories:
Gulf South was contractually responsible under the applicable time charter agreement to defend and indemnity Turn Services for all damages; and/or
Gulf South’s M/V CAPT. ZIGGY was contributorily negligent for failing to act quicker and avert barge breakaway damage because CAPT. ZIGGY improperly had its engines shutdown before the breakaway.
The court rejected both arguments.
With respect to argument one, the pertinent language of the time charter agreement stated the Owner, Gulf South, shall protect, defend, indemnify, and hold harmless and release the Charterer, Turn Services:
FROM AND AGAINST ALL CLAIMS, DEMANDS AND CAUSES OF
ACTION OF EVERY KIND AND CHARACTER ARISING OUT OF OR
RESULTING FROM WORK THAT IS THE SUBJECT MATTER OF
THIS CHARTER ON ACCOUNT OF: 1) PERSONAL OR BODILY
INJURY, ILLNESS OR DEATH TO EMPLOYEES OF THE OWNER
AND OWNER’S CONTRACTORS AND SUBCONTRACTORS
(OWNER’S GROUP), 2) PROPERTY INJURY OR DAMAGE TO OR
LOSS OF PROPERTY OWNED, OPERATED, LEASED,
CONTROLLED OR PROVIDED BY THE OWNER’S GROUP, AND 3)
POLLUTION, REGARDLESS IF THE CLAIM, DEMAND OR CAUSE
OF ACTION HAS BEEN CAUSED BY THE SOLE, JOINT AND/OR
COMPARATIVE NEGLIGENCE, STRICT LIABILITY, PRODUCTS
LIABILITY, BREACHES OF EXPRESS OR IMPLIED WARRANTIES,
THE UNSEAWORTHINESS OF ANY VESSEL, OR ANY MEMBER OF THE CHARTERER’S GROUP.
The court found this provision did not apply in Turn Services’ favor because Turn Services failed to prove that Gulf South owned, operated, leased, controlled or provided any of the barges in the Dockside Fleet. The court also determined that Gulf South did not have control over the fleet when the barges broke away because the M/V CAPT. ZIGGY and M/V CORKY were not working as fleet boats during the breakaway. As such, Gulf South did not owe Turn Services defense and indemnity under the time charter agreement.
With respect to argument two, the court first found Turn Services failed to:
assign a person in charge of monitoring the fleet;
have at least two towboats within 500 yards of the barges in the fleet; and
ensure that all mooring devices, wires, chains, lines, and connecting gear were of sufficient strength and in sufficient number to withstand forces that may be exerted on them by moored barges.
These failures violated federal law (namely 33 C.F.R. § 165.803) and resulted in the court applying the Pennsylvania Rule against Turn Services. Under the Pennsylvania Rule, the burden was on Turn Services to prove that its violations did not contribute to the accident. Turn Services was unable to carry this burden.
Additionally, the court found that the two Gulf South tugs did nothing wrong because they became immediately operational and took efforts to prevent the downstream movement of the breakaway. Consequently, the court found that Turn Services should bear sole fault for the breakaway and resulting damage.
There was also an issue in the case as to whether Turn Services secured a full release from two third party damage claimants such that it could then seek contribution from Gulf South in the lawsuit. The court found that Turn Services could not do so because it failed to enter into a “full release” with the third parties. Turn Services only obtained a release for claims against Turn Services. Consequently, the Court also found that Turn Services could not seek contribution against Gulf South even if it was able to prove that Gulf South was responsible for the resulting damages.
The case citation for this case is Turn Services, LLC v. Gulf South Marine Transportation, Inc., Civil Action No. 20-cv-03012 (January 13, 2023). Here is a link to a publicly available copy:
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