AEP ELMWOOD, LLC.v.TESORO MARINE SERVICES, LLC.

United States District Court, E.D. LouisianaJul 13, 2004
Civil Action No. 02-3570, Section: E/3 (E.D. La. Jul. 13, 2004)

Civil Action No. 02-3570, Section: E/3.

July 13, 2004


FINDINGS OF FACTS AND CONCLUSIONS OF LAW


MARCEL LIVAUDAIS, Senior District Judge

Plaintiff, AEP Elmwood L.L.C. ("Elmwood"), owns, operates and manages a marine terminal and barge fleeting facility located at approximately mile 158 on the lower Mississippi River in St. James Parish, Louisiana. The facility is commonly referred to as the "Convent Fleet" and consists of three fleeting locations, the Upper, Middle and Lower Convent Fleet. The Upper Convent Fleet includes six mooring dolphins configured in pairs, with two dolphins at each of the three tiers (upper, middle and lower tiers) of the Upper Fleet. Defendant Tesoro Marine Services, L.L.C. ("Tesoro") is the owner and operator of the M/V TESORO COMMODORE ("COMMODORE").

On the afternoon of December 5, 2001, the COMMODORE was navigating southbound on the river approaching the Upper Convent Fleet with three loaded barges in tow. The barges were strung out in a "single file" three barge-long configuration. Barge MG-676 was at the head of the tow. Elmwood alleges that during a "top-around" maneuver, that is, negotiating a 180° turn in the river in order to drop MG-676 into the upper tier of the Upper Convent Fleet, the headlog of MG-676 made contact with and damaged the upper dolphin of the middle tier in the Upper Fleet. Tesoro denies responsibility claiming that the mooring dolphin had been damaged by another vessel before the COMMODORE entered the Upper Convent Fleet.

The matter was tried to the Court on February 17, 18 and 19, 2004. The Court, having carefully considered the pleadings, depositions, the testimony and evidence presented at trial, and the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact constitute a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusions of law constitute a finding of fact, the Court hereby adopts it as such.

Findings of Fact

The parties vigorously dispute liability. The credibility of the only witness is at issue, as are the inferences to be drawn from the physical findings and circumstantial evidence. Tesoro argues that the circumstantial evidence produced by Elmwood is insufficient to prove that Tesoro is liable for the damage. The following narrative relates the undisputed facts gleaned from the trial testimony and the evidence in the record.

A mooring dolphin is a large three legged structure used to temporarily secure barges in the fleet. See Plaintiff's ("P") Ex. 1(a) (h); Defendant's ("D") Exs. 3, 23. Each dolphin is configured somewhat like a tripod with all three legs coming together at the top. The two front legs are upright, perpendicular to the water although they lean into one another, and the third leg, closest to the river bank, braces the two front legs facing the river. Each of the three legs is approximately two feet in diameter and consists of steel pile casings driven into the river bed a short distance from the bank. In this case, the distance from the top cap of the dolphins to the water line was approximately 17.6'. Each pile is "driven to resistance" then filled with cement, and further secured with stone rip rap piled around its base. Each pair of dolphins is spaced to accommodate one barge length so a barge can be tied off with its side flat against both dolphins. Thick rubber bumpers are secured around the two front legs to cushion the barges' contact with the legs while the barge is secured flat against the dolphin.

Early on the morning of December 5, 2001, the COMMODORE began its journey downstream in the Mississippi River from Baton Rouge with a tow of nine barges. It arrived at Darrow at 9:00 a.m. where it dropped six barges. At noon Pilot John Dyson ("Dyson") relieved Larry Garrett ("Garrett"), captain of the COMMODORE, and the three barge tow left Darrow to continue its downstream journey. Garrett retired to his bunk to take a nap, as was his usual practice. The two deck hands on board the COMMODORE were Bradley Landry ("Landry") and Ben Havard.

Bradley Landry, a deckhand at the time of the incident, and Larry Garrett, captain of the COMMODORE and aboard the vessel at the time of the incident, testified by deposition.

In the early afternoon of December 5, 2001, Dyson was in the wheel house of the COMMODORE navigating the tow. The flotilla was 678 feet in length from the headlog of the lead barge, MG-676, to the stern of the COMMODORE. The wheel house of the COMMODORE was approximately 600 feet, or the length of two football fields, from the MG-676's headlog. All of the barges were open hopper barges with raked bows, and were loaded with petroleum coke. The MG-676 was about 35 years old and was known as a slow leaker with a thinning steel hull.

The Convent Fleet maintains an assist boat to assist tows as needed when entering and leaving the Fleet. Dyson contacted the Convent Fleet dispatcher that he was approaching the Fleet to drop the MG-676 into the upper tier of the Upper Fleet and that he was preparing to top-around. He declined the offer of an assist boat to help control the head of the tow during the top-around because he did not want to wait for the assist boat. Dyson proceeded with the top-around unassisted.

In order to execute the top-around maneuver, Dyson reversed the engines of the COMMODORE to slow or stop the tow and allow the downstream current to swing the tug (and the tow) in an arc around the lead barge. The stern of the flotilla pivots or "slides" around the head of the tow to a position that is perpendicular to the river bank, then continues the drift downstream until it completes a 180° arc and "flattens out", at which point the flotilla is headed back upstream. Dyson contacted the Fleet dispatcher a second time for clearance to fleet the barge without tug assistance. He then called Landry, who was in the galley, by radio to go out onto the tow to assist in landing the barge.

With Landry at the head of the tow calling the distance to the MEM barge to Dyson by radio, the flotilla began to move back upstream and approached MEM barge already tied up to the upper tier. As Dyson landed the MG-676 he failed to properly compensate for the current, the slack water near the dolphins and the speed of his tow. Garrett deposition ("dep.") p. 83, ln. 10 — p. 84, ln. 9. He overshot the MEM barge by about 20 feet, and had to drag the MG-676 back down, scraping the sides of both barges. Once the MG-676 was tied off Landry opened the manhole cover and saw water coming in a 6" crack in the port raked bow, and about a foot and a half or two feet of water in the bow rake compartment. He and Dyson went below and reshingled the crack with roofing shingles they found floating in the water in the void.

Roofing shingles are commonly used to patch leaks in the steel plates of older barges until more effective repairs can be made.

After Dyson and Landry repaired the leak, at about 2:00 p.m., Dyson radioed the Elmwood dispatcher to report for the first time that the dolphin was leaning but that he had not hit it, and that the MG-676's was leaking. According to its logs, the COMMODORE dropped the MG-676 off at the upper tier of the Upper Convent Fleet at 1:30 p.m., and an hour later departed south bound with the two remaining barges in tow. P. Ex. 12; D. Ex. 10.

Charlie Bivona ("Bivona"), employed by Elmwood as a fleet mate at the Convent Fleet for 17 years, testified that his job is to assist flotillas entering or leaving the Fleet as necessary, and to check the barges and dolphins in the Fleet twice daily, typically at about 10:00 a.m. and 3:00 p.m. He operates a crewboat, the M/V MISS ANNIE. He did not check the Fleet on December 4 because there were no barges fleeted. Bivona testified that as he was heading northbound between 3:00 and 4:00 p.m. on December 5th to check the reported leaky barge in the upper tier, he first noticed that the upper dolphin in the middle tier was leaning downstream and toward the east bank of the river at about a 45° angle. He saw that the upriver leg of the dolphin appeared to be fractured and observed fresh, shiny scrape marks and exposed concrete on the leg. Bivona called the Convent Fleet dispatcher to notify Gina Wilson ("Wilson") of the damaged dolphin, and that he would return to the dock to pick her up so she could take photographs of the damage to the dolphin.

There is some dispute as to whether the Fleet dispatcher called Bivona and told him to check the dolphin because it had been reported damaged. Resolution of the dispute is irrelevant to the issue of liability.

Gina Wilson is Operations Manager of the Convent Fleet, a position she has held for 18 years.

It took Bivona about 10 to 15 minutes to travel downstream to the dock to pick Wilson up, and another 20 minutes to return the damaged dolphin. By the time they reached the middle tier the dolphin had fallen over and sunk so that it was almost completely submerged, and the damaged leg was no longer visible. Wilson photographed the sunken dolphin, see Plaintiff ("P.") Ex. 1(a)-(h), then the MISS ANNIE proceeded upriver to inspect the MG-676. Wilson and Bivona found a gouge and scrapes on the port side of the headlog, along with what appeared to be imbedded bits of rubber and concrete. Wilson photographed the damage. The photographs are in the record at P. Ex. 2(a)-(j).

At Elmwood's request Merrill Marine Services, Inc., ("Merrill") sent Jim Johnson ("Johnson"), a marine surveyor, to inspect the damaged dolphin and barge. He inspected the sunken dolphin and the MG-676 on December 6, 7, and 9, 2001. P. Ex. 3. On December 6, accompanied by Kenny Jones of MG Transportation, owner of the MG-676, and Clay McGlasson ("McGlasson"), a marine surveyor for MG Transportation, Johnson observed abrasions and scrapes on the MG-676's port side headlog but saw no oxidation or rusting on the scrapes. By that time, only about 18" of the top cap of the dolphin was visible above the water line. During a visual inspection of the barge on December 7, 2001, from an Elmwood fleet boat captained by Fleet Mate Bivona, this time accompanied by Kyle Smith ("Smith"), a marine surveyor representing Tesoro, Johnson collected samples of bits of black rubber-like matter and white particles that were embedded in the headlog of the MG-676 in the vicinity of the abrasions and scrapes, and flakes of rust that were forming on metal exposed by the scrapes. On December 9, Johnson and Smith were able to board the now empty barge where it was moored at the ICR dock. They went below and observed a recent fracture of about 5" to 6" on the interior of the port raked bow which had been shingled. During that inspection Johnson took photographs of the headlog of the barge as well as the interior of the raked bow with the crack. P. Ex. 18(a)-(o). The photographs show orange rust on the scrapes.

After soliciting repair bids from four companies in January, 2002, Elmwood hired Durwood Dunn, Inc., ("Dunn") to remove and replace the damaged dolphin. In late summer or early fall of 2002, Dunn removed the sunken dolphin to its salvage yard in Slidell and installed a new dolphin in the Upper Fleet, at a cost to Elmwood of $85,000.00.

Conclusions of Law

Plaintiffs in admiralty actions must prove their claims by a preponderance of either direct or circumstantial evidence.Skidmore v. Grueninger, 506 F.2d 716, (5th Cir. 1975). InMovible Offshore Company v. Ousley, 346 F.2d 870, 874 (5th Cir. 1965), the Fifth Circuit observed as follows:

As the Supreme Court has repeatedly stated: `Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive that direct evidence.' Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 11, 5 L.Ed.2d 20 (1960).

Thus, as a general rule the law makes no distinction between direct and circumstantial evidence, but simply requires that the plaintiff prove his case by a preponderance of all of the evidence in the case, both direct and circumstantial. Id. at 874-75. However, "[w]henever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and cannot be presumed." Mongomery-Ward Co. V. Sewell, 205 F.2d 463, 467 (5th Cir. 1953).

When a plaintiff relies solely on circumstantial evidence to show negligence and recover damages against the defendant, the plaintiff must produce such evidence which must exclude every other reasonable hypothesis that the accident happened and damages resulted as plaintiff contends. McClendon v. T.L. James Co., 231 F.2d 802, 806 n. 4 (5th Cir. 1956), citingMarcel v. De Paula Truck Lines, 70 So.2d 772, 781 (La.App.). "Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes." Houston-New Orleans, Inc. v. Page Engineering Company, et al, 353 F. Supp. 890 (E.D.La. 1972), (A. Rubin, J.) quotingNaquin v. Marquette Casualty Company, 153 So.2d 395, 397 (La. 1963). "Other possible causes of an accident which are `remote, conjectural and speculative . . . as a possible cause in fact' may be disregarded." Houston-New Orleans, Inc., 353 F. Supp. at 896, quoting Metrailer v. F G Merchandising, Inc., 230 So.2d 395, 400 (La.App. 1969).

The Physical Evidence

1. Damage to the MG-676 headlog

Elmwood suggests that the pattern of the scrapes and existence imbedded bits of concrete and shredded rubber is consistent with the supposition that the MG-676's headlog was pushed against the upriver leg of the dolphin, then slid across the leg when Dyson attempted to use the dolphin as a pivot to begin the top-around.

Courtney Busch ("Busch"), a mechanical engineer with a specialty in materials science, was offered by Elmwood as an expert in mechanical and metallurgical engineering. Tesoro's objection to Busch's testimony on the grounds of reliability and relevancy was overruled at trial, but at the close of the trial Tesoro maintained its objection to the admissibility of his testimony.

Busch testified that Johnson contacted him on December 10, 2001, and asked him to analyze samples of concrete and rubber taken from the headlog of MG-676, and to compare those samples with samples of rubber and concrete taken from the damaged dolphin. On December 11, 2001, Johnson gave Busch three envelopes, each containing particles of matter: the first contained rust colored magnetic flakes and white non-magnetic particles which appeared to be chips of concrete; the second contained a number of pieces of a "rubber-like" material; the third contained a piece of rubber that Busch understood had been taken from the damaged dolphin. His first comparative analysis on February 1, 2002 was done on these three samples of material.

Busch looked for the major chemical elements by viewing cross sections of the rubber sample through a Scanning Electron Microscope (SEM) and using an energy dispersive X-ray system (SEM-EDS). He described his analysis as semi-quantitative rather than quantitative because the samples of material were so small. He testified on cross examination that his analysis was comparative, not analytical, because the samples were too small and too contaminated for more refined analytical methods. His analysis determined that the first envelope contained flakes of rust contaminated with trace elements found commonly in seawater, and particles of concrete. The second envelope contained particles of rubber also contaminated with trace elements found in seawater. Busch concluded that the chemical content of the rubber particles in the second envelope was "very similar" to the chemical content of the rubber particles in the third envelope.

At some point after the first analysis was done it was discovered that the rubber sample in the third envelope had actually been taken from a sister dolphin, not the damaged dolphin that had sunk. On October 1, 2002, Busch traveled to the Durwood Dunn, Inc., salvage yard in Slidell with Johnson, who along with Mr. Durwood Dunn, III, pointed out the remains of the damaged dolphin that had been removed from the river. Johnson testified that it was the only dolphin in the Dunn salvage yard. Busch personally took samples of rubber from the bumpers remaining on the legs of the dolphin, and of the concrete inside the dolphin's fractured legs. Additionally, after his first analysis of the samples, Busch discovered that the SEM was malfunctioning and had it recalibrated. As a result, the second scan on October 29, 2002, on the newly collected samples produced different percentages and precise measurements of the chemical elements from those produced during the initial scan. Busch ran another scan on the samples that he had tested in February to confirm the findings of the scan done in October.

Based on his analyses, Busch testified that the concrete samples Johnson collected from the headlog of the MG-676 were similar to the concrete Busch had collected from the damaged dolphin's leg, and that the rubber particles Johnson collected from the headlog and those he collected from the damaged dolphin's leg were similar in color, consistency and chemical content.

Tesoro challenges the chain of custody of the physical evidence provided to and tested by Busch, and points out that the samples from a dolphin originally provided to Busch for the comparison turned out not to be from the dolphin that was damaged. On cross examination, Busch admitted that he could not rule out that the samples taken from the headlog had come from somewhere else, and that the use of rubber bumpers was common in the maritime industry. Moreover, Busch did not and could not testify that the material collected from the headlog of MG-676 on December 7, 2001, actually came from the damaged dolphin, or was 100% identical to that collected from the damaged dolphin.

Notwithstanding Tesoro's objections, the Court is satisfied with Busch's explanation of the chain of custody of the material samples and of his testing procedures, and understands the limits of his expert opinion. He opinied simply that the material Johnson collected from the MG-676's headlog contained the same chemical elements as and was similar to the material collected from the damaged dolphin.

2. Crack in the port raked bow of MG-676

Elmwood posits that the 6" crack in the MG-676's port raked bow opened at almost precisely the time it claims the MG-676 made contact with the dolphin, and is circumstantial evidence of the alleged impact. Tesoro argues that the crack was 12' aft of the headlog and there was no visible damage to the raked bow between the headlog and the crack, which could be expected had the barge actually struck and run over the dolphin. Moreover, Johnson and Smith both examined the crack from inside the tank and both testified that the crack could have been as much as two weeks old. Tesoro also suggests that the crack could have been opened by the current when the bow turned into the downstream current for its short trip upstream to the upper tier. However, Johnson, Bivona and Wilson all testified that it was unlikely that the current could have caused the crack.

There is credible testimony that the crack could have been as much as two weeks old. As for the absence of damage between the headlog and the crack, the dolphin was not "run over" by the barge, so one would not expect to see damage along the length of the raked bow. However, the barge was 35 years old, the hull was thinning with age, and the crack appeared to actually be an old crack that was re-opened. The Court finds that it is possible that a sudden rush of downstream current could have re-opened the crack. Because the circumstance causing the reopening of the crack has not been sufficiently proven the Court does not find that the opening of the crack in the port raked bow of the MG-676 is credible evidence that the barge struck the dolphin.

The Marine Surveyors

Smith testified on behalf of Tesoro that although he did observe the superficial damaged to the headlog of MG-676, he did not see any damage on the barge push knees or the lower radius of the headlog. He testified that had the MG-676 struck the dolphin with enough force to lay it over, the barge would have sustained significant damage to its headlog and raked bow requiring cropping and repairs, and he would have expected scrapes on the bottom plate. In his opinion, the MG-676 did not strike the dolphin. However, Smith admitted that he was not aware until informed on cross examination that the dolphin was only leaning when it was first reported damaged at 2:00 p.m., and that it did not fall over and sink until at over two hours later.

McGlasson, also a marine surveyor, was hired by MG Transport Services, Inc., to survey the damage, if any, to its barge as a result of the reported incident. McGlasson testified as an expert witness for Tesoro. He testified that he observed the scrapes and shredded rubber particles imbedded in the headlog, but did not believe these findings were serious enough to be characterized as "damage". It was his opinion the MG-676 did not strike the dolphin because it had not sustained enough damage to have "run over" the dolphin and sunk it. On cross examination, he attributed the scrapes to the incident, and admitted that he made no findings that the barge did not come into contact with the dolphin. On redirect, he admitted that he had been told prior to his inspection and survey report that the barge had hit the dolphin, and like Smith, he assumed that the impact immediately laid the dolphin over into the position in which he saw it on December 6, and that the barge would have had to run over it.

The court finds that the opinions of Smith and McGlasson that the MG-676 did not strike the dolphin were based in significant part on the mistaken assumption that the initial impact actually drove the dolphin over into the sunken position in which they first saw it, and that any barge or vessel that ran up and over the dolphin would have sustained significant damage to its raked bow and bottom plate. There is, however, no dispute that the allision that damaged the dolphin only pushed the dolphin over to approximately a 45° angle, and that after several hours the river's current caused the damaged dolphin the fall over and sink. The court concludes that Smith's and McGlasson's expert opinions are unreliable in this instance.

Johnson, Elmwood's expert marine surveyor, testified that in his opinion the MG-676 struck the upstream leg of the dolphin not with a slam, but with but a hard push, and that the slow, hard shove broke the leg of the dolphin and laid the dolphin over. All of the marine surveyors observed and acknowledged the superficial damage to the MG-676's headlog and all agreed that the damage was recent. The court agrees with Johnson's opinion that the headlog of MG-676 could have made a low speed strike at an awkward angle on the upriver leg of the dolphin, and the forward velocity and weight of the fully loaded flotilla fractured the leg. The opinion is consistent with the damage found on the headlog and the damage to the dolphin's leg that Bivona observed before it fell over and sank.

Pilot John Dyson

In 1995, John Dyson was employed as a deck hand by Artco Marine ("Artco"). He got his OUTV (Operator for Uninspected Touring Vessels) license from the Coast Guard while he worked for Artco. Dyson worked at Artco through 2000. He was employed as a pilot by Tesoro Marine for about one year, and was so employed at the time of the incident at issue. After that, he worked a short time for Pelican Marine, and has worked for McKinney Towing for two years. At the time of the trial he was working for McKinney as a fleet mate in the Convent Fleet.

Dyson has steadfastly denied that the MG-676 ever made contact with the damaged dolphin during his top-around on December 5, 2001. Although at trial he testified that he noticed that the dolphin was damaged as he entered the Convent Fleet area, he did not mention seeing the damage at that time to anyone on the vessel, nor indicate in his written statement that he noticed the dolphin at that time. It is uncontested that when the top-around was nearing completion, Landry radioed Dyson from the head of the tow to report the damaged dolphin. Landry testified that when he told Dyson that it looked like someone had hit the dolphin pretty hard, and needed to go back and learn how to drive, Dyson simply "chuckled". Landry Deposition ("Dep.") p. 67, lns. 1-12. Dyson did not mention that he had already seen it at that time, and he did not report it to the Fleet dispatcher until 2:00 p.m., after he had fleeted the MG-676 and reshingled the crack in the raked bow. Dyson admitted at trial that it looked like someone had tried to top around on the dolphin.

Dyson testified on direct examination that the closest point the front of his tow ever got to the dolphin was 50 feet. Dyson and Landry testified that there was a blind spot that extended from 50' to 80' in front of MG-676's headlog, and agreed that the pilot in the wheel house would not be able to see the dolphin when it was in front of the tow within that range, and he could not tell how fast he was coming up on the dolphin unless someone was out on the tow to call out the distances to him. Id. at p. 64, ln. 24-p. 65, ln. 10; p. 108, ln. 7 — p. 109, ln. 10.

Dyson admitted on cross examination that while employed by Tesoro he grounded his tow in an eddy while trying to do "tripping work", and that he was suspended because he couldn't do the tripping work. While working for McKinney towing (his present employer), he "unfaced" a barge from the tow and when the wind picked up, the barge hit a crew boat. He testified that during that his employment at Artco Marine he had no accidents or incidents and caused no property damage, and that he left that job voluntarily because there was too much red tape and he was waiting for a better position. He admitted that he did not report the damage, albeit minor damage, to either barge when he overshot the MEM barge while attempting to fleet the MG-676 until Tesoro called Garrett on the COMMODORE the next day to ask if the barge had been damaged. He further admitted that his written statement, as well as the statements by Landry and Havard, were prepared on December 6, 2001, although they were dated December 5, 2001. The incident reports are in the record at D. Exs. 5, 6 and 7.

Elmwood then confronted Dyson with impeachment evidence consisting of five reports, all signed by Dyson, of incidents in which his tow or tug caused property damage in 1999 and 2000, while he was employed by ARTCO. P. Exs. 31, 32, 33, 34 and 35. He admitted that on two of those occasions, in late September and early October of 2000, he had not reported the incidents until his employer called to ask about the incident. Elmwood also produced a copy of a "pink slip" dated October 12, 2000, that ARTCO mailed to Dyson stating that he was "discharged" for "insubordination". P. Ex. 36.

Tesoro argues that all of the incidents were relatively minor "in house" matters, none serious enough to merit a report to the Coast Guard, that there was no action on his Coast Guard license, and all but one occurred during his training period. On redirect, Dyson testified that he had forgotten some of the reported incidents but remembered and acknowledged them when shown the reports. Tesoro also argues that the testimony of both Landry and Garrett support Dyson's assertion that he did not strike the dolphin while topping around, and that Elmwood's submission of the impeachment evidence is an attempt at "vicious" character assassination.

The Court agrees that all of these incidents were relatively minor in nature. Nevertheless, the evidence suggests that Dyson has a history of misjudging the power of the current and its eddies, distances and the speed of his tow, and of failing to accurately account for the weather conditions and the other marine traffic in the vicinity of his tow. It also suggests that, for whatever reason, he has in the past on occasion been remiss in promptly reporting these incidents to his employer. Moreover, the Court finds that Landry's and Garrett's testimony does not support Dyson's denial that he struck the dolphin.

Landry was in the galley eating lunch when Dyson called by radio to tell Landry that he was topping around. Landry Dep. p. 54, ln. 20 — p. 55, ln. 1. Landry asked if Dyson needed him out on the tow to assist in the topping around. Dyson said "no", that "he had it", and that Landry was only needed on the tow after they finished topping around. Id., p. 59, ln. 15 — p. 60 ln. 2. Garrett was napping in his bunk below deck when Dyson began the top-around. Garrett Dep. p. 27, ln. 23 — p. 28, ln. 10. Garrett testified that he was awaken from his nap by the rumbling and shaking of the tug when Dyson reversed the engines to begin his top-around. Id., p. 29, lns. 19-23. He then went to the starboard side of the second deck to do his usual weight-lifting routine. Id., p. 44, ln. 3 — p. 45, ln. 8. From that location he could not have observed the dolphin off of the flotilla's port side until the top-around was nearly complete. All three barges were fully loaded with petroleum coke which obscured the view across the bow of all of the barges.

Landry testified that by the time he left the galley and made it out onto the tow, Dyson had almost completed topping around and the flotilla was "falling on back" with its stern approximately off of the ICR dock and the head of the tow off of the middle tier and headed upstream. Landry Dep. p. 55, lns. 19-20. Garrett was not in a position to observe the dolphins until the flotilla was at least perpendicular to the river bank and continued to "flatten out". Neither Garrett nor Landry was out on the tow in a position to observe whether or not the MG-676 came into contact with the dolphin when Dyson began to top-around. Nevertheless, both insisted that they would have felt a strike hard enough to knock the dolphin over. Both also admitted that reversing the engines to begin a top-around causes a tremendous increase in noise, rumbling, vibration and shaking of the tug. The Court finds it more probable than not that the increased rumbling and shaking of the tug would have obscured any jolt from the barge's contact with the dolphin.

Navigating a tow on the lower Mississippi River is undoubtedly a dangerous and difficult endeavor. Garrett and Dyson testified to the power of the river's current, and that eddies in the current in the vicinity of the dolphins can suck a tow in. Dyson experienced this particular effect when he grounded his tow while working for Tesoro. He testified at trial that a top around is a difficult maneuver in which everything has to work together. Landry testified, and Dyson admitted at trial, that on occasion, a pilot or captain will position the headlog of the lead barge in a tow against a mooring dolphin, or sometimes the river bank, to assist in starting the pivot to top-around. Landry Dep. p. 106, lns. 16-25. The Court concludes that Dyson either intentionally put the head of his tow against the dolphin to assist in beginning the top-around pivot, or he did not see the dolphin and negligently struck it when the began to top-around. In either case he misjudged the distance, the speed and weight of his tow, and failed to account for the eddies in the vicinity of the dolphin. As a result of the allision, the headlog of the MG-676 pushed too hard against the dolphin's upriver leg breaking it, then continued to shove the dolphin to a downstream leaning position as it slid off of the damaged leg.

Alternative Hypotheses of Causation

1. Damage to the MG-676's headlog

According to Tesoro, rubber and concrete structures are common in the maritime industry along the river, and the damage to the MG-676's headlog and the material embedded in the headlog could have been the result of an earlier "touch up" against any number of objects. However, Tesoro pointed to no incidents within the 24 hours prior to noon on December 5 that could have resulted in the fresh damage photographed on that afternoon. Both Landry and Garrett testified that they knew of no incidents on December 4, 2001 or the morning of December 5 that might have caused any damage to the MG-676. Landry Dep. pp. 46-47; Garrett Dep. pp. 106, ln. 17-107, ln. 16 and p. 142, lns. 5-22. Landry testified that he believed that the scrapes an debris on the headlog came from the rubber tires and bumpers affixed to the push boats that made up the tow in Baton Rouge because those bumpers bump up against the barges and leave marks all the time. Landry Dep. p. 19, 1. 17 — p. 20 1. 22. While such contact may very well leave black marks on a barge's headlog, that is a far cry from an impact hard enough to leave bits of rubber, not to mention concrete, embedded in the steel headlog.

Dyson suggested at trial that the MG-676 might have been damaged when it rubbed up against the MEM barge when he overshot it when landing the MG-676 on December 5, 2001. That incident might account for scrapes on the sides of the barge, but not for the damage and imbedded debris on the headlog. Moreover, the scrapes on the headlog were fresh, with the metal exposed and free of any oxidation on December 5th when photographed by Wilson. When Johnson first observed the headlog on December 6th no evidence of oxidation was visible, but by December 7th rust was beginning to form on the metal exposed by the scrapes. By the time Johnson photographed the headlog again on December 9th, orange rust covered the scraped metal.

Next, Tesoro argues that had the barge struck the dolphin, which was relatively new, strong, and designed to withstand the knocking and banging from up to nine barges, there would have been significant damage rather than the cosmetic damage actually seen on the headlog. They point to the absence of damage on the knuckle between the headlog and the raked bow as evidence that the barge did not strike the dolphin's leg. On cross examination Smith acknowledged that recent marks that were beginning to rust are visible on the knuckle just below the damaged area of the headlog on Johnson's photograph of the headlog at P. Ex. 18(h). However, there is no dispute that the damage to the headlog was minor even to the point of being merely cosmetic, and did not require any repairs to the barge.

The dolphins are designed to withstand the broadside impact of a barge or barges landing flat up against the face of a pair of dolphins. The force of any impact is distributed, albeit not necessarily evenly, among the four legs that are positioned facing the river in an upright position and braced against the impact by the third leg of each of the pair of dolphins. The upstream leg of the dolphin at issue appeared to have been initially struck on an angle rather than flat on its front face by a vessel headed downstream.

Tesoro also suggested that the "high-low" or "piggyback" coupling of the barges would have been broken by such an impact, but offered no evidence to support that argument.

2. Another vessel could have struck the dolphin before the COMMODORE entered the Fleet

Tesoro also argues that another vessel could have struck the dolphin prior to the COMMODORE's arrival in the Fleet. Fleet pictures of the Upper Convent Fleet for December 4 through December 6, 2001, are in the record at P. Ex. 11 and D. Ex. 12. The fleet pictures are diagrams of the mooring positions for barges fleeted in the Fleet, showing the identity and location of each fleeted barge on any given day. On December 4, 2001, no barges were moored in the Upper Fleet. On December 5, 2001, barge CTC-9929 was fleeted in the first upriver position on the river side of the ICR dock (just downstream from the three mooring tiers in the Upper Convent Fleet), barge MEM-7952 (the MEM barge previously mentioned) was in the first upriver position of the upper tier secured to the mooring dolphins, and barge MG-676 was in the second position of the upper tier, secured to MEM-7952. On December 6, 2001, MG-676 had been moved to the first position in the second row of the ICR dock, behind CTC-9929.

The M/V DIANA T dropped barges CTC-9929 and MEM-7952 into the Upper Fleet around noon on December 5th. The log of the M/V DIANA T for December 5, 2001, is in the record at P. Ex. 13 and D. Ex. 18. The log shows that the DIANA T arrived at the ICR dock at 11:20 (a.m.) to drop the CTC-9929 at the ICR dock, and departed northbound with MEM-7952 in tow at 12:00 noon. At 12:10 p.m. it arrived at the upper tier and completed fleeting the MEM-7952 at 12:25 p.m. There is no reference in the log to a damaged or leaning dolphin in the middle tier, although the DIANA T passed right by the middle tier between 12:00 p.m. and 12:10 p.m. Wilson admitted on cross examination that she did not check the DIANA T for damage, but testified that the Elmwood fleet boats are expected to report damage, and none had reported a damaged dolphin that day.

The parties agreed that Mr. Ernest Untereiner was at the helm of the M/V DIANA T during the relevant period of time on December 5, 2001. They submitted a joint Stipulation that if Mr. Untereiner were to testify at trial he would testify that he is familiar with the three tiers of mooring dolphins in the Upper Fleet, but he has no independent recollection of his shifting barges in the Fleet on that date, nor does he have any recollection of seeing any damage to any of the mooring dolphins on that date. Defendant objects to the admissibility of Mr. Untereiner's testimony for reasons not relevant here. Because Mr. Untereiner's testimony would not be helpful to the Court, defendant's objection is MAINTAINED.

3. Lack of a dive survey and of proper notice to Tesoro of the progress of Elmwood's investigation

Finally, Tesoro complains that Johnson or Elmwood should have had a diver inspect the sunken dolphin before it was removed from the river, and that Elmwood failed to keep either Tesoro or its expert surveyor informed of the progress of Elmwood's investigation. The Court concludes that although a dive survey of the dolphin before it was removed from the river might have been helpful in determining the precise damage to the dolphin's leg, enough evidence is available to the court to support a decision as to liability for that damage without one. Moreover, Elmwood submitted evidence that it did keep, or at least attempted to keep Tesoro informed of the progress of its investigation. See P. Ex. 3 — Johnson's Preliminary Damage Survey indicating that he met with surveyor McGlasson on December 6, and that surveyor Smith accompanied him on follow up inspections on December 7 and 9; P. Exs. 8, 9 and 10, copies of correspondence to Tesoro from MEMCO dated January 8, January 23 and August 28, 2002, relative to the ongoing investigation; and P. Ex. 30, copy of fax from Earl Hatfield Marine Surveyors on behalf of Tesoro to Merrill Marine Services, Inc., acknowledging a letter dated January 8, 2002, to Diann Ruiz of Tesoro from Douglas Fischer on behalf of Elmwood. Moreover, on cross examination Smith stated that he was not interested in receiving any samples of material collected from the dolphin.

Conclusion

The Court finds, based on a preponderance of all of the evidence, that on December 5, 2001, as Pilot Dyson began to top-around in the Convent Fleet, the MG-676, in tow by the M/V TESORO COMMODORE, struck upriver leg of the upper dolphin in the middle tier of the Fleet. The Court concludes that as the flotilla continued to pivot and push the dolphin to a leaning position, the fractured leg flattened against the MG-676's headlog as the flotilla slid across and off of it, causing the damage to its headlog. Tesoro is liable to Elmwood for the damages it sustained as a result of the allision.

Damages

Tesoro stipulated that the cost to Elmwood was $85,000.00 to remove and replace the damaged dolphin. Tesoro further stipulated that Elmwood incurred and paid $5,854.47 for various services related to the damage to the dolphin, but argues that the only costs that would be recoverable as damages, if liability is found, would be the charges for services of Merrill Marine Services ("Merrill") for 8 hours at $85.00 @ hour, or $680.00. The invoice from Merrill at P. Ex. 17 is for a total of $1,450.50 for Johnson's services on December 6, 7, 9 and 11, 2001.

The Court finds that Elmwood is entitled to its costs for survey work done by Jim Johnson on December 6, 7 and 9, 2001. On each of those days Johnson inspected the MG-676 (and viewed the sunken dolphin) in the company of either McGlasson or Smith. The interior of the barge was not accessible for inspection until December 9th. On December 11th Johnson delivered the samples of material he had collected from the headlog to Busch in Slidell. Because that trip was made in anticipation of litigation, Elmwood is not entitled to reimbursement for those charges. The invoice does not itemize the hours or mileage charges associated with each day. The Court therefore determines that the December 11 round trip to Slidell took two hours and covered 50 miles. Deducting a total of $175.50 (two hours @ $85.00 and 50 miles @ .65 per mile) from the total of $1,450.00, Elmwood is entitled to reimbursement of $1,195.50.

Accordingly, for the foregoing reasons, judgment will be entered in favor of plaintiff AEP-Elmwood and against defendant Tesoro Marine Services, LLC, in the amount of $86,195.50, with interest from the date of judgment, and with costs.