IN RE: BOPCO, L.P.
CIVIL ACTION NO: 11-3137
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
September 10, 2013
SECTION “C”(5)
Document 131
A trial was held in the above captioned matter on July 22, 2013 through July 24, 2013. Negligence was tried to the jury and the issue of limitation of liability was tried to the Court without a jury. Rec. Doc. 108. The parties previously moved to try issues of negligence and damages to the jury, with the Court to determine whether the defendant/petitioner (“defendant“) was entitled to limit its liability, and the Court granted that motion. Rec. Doc. 35. The jury found in favor of the plaintiff/claimant (“plaintiff“), and found that the plaintiff was contributorily negligent. Rec. Doc. 108-1. Having considered the testimony, the evidence adduced at trial, the record, and the law, the Court now finds in favor of the plaintiff and against the defendant on the issue of limitation of liability.
I. BACKGROUND
The following facts are undisputed. On April 13, 2011, an accident occurred at the intersection of the Back Levee Canal and the Main Canal at Point à La Hache, Louisiana. Rec. Doc. 92 at 5. Defendant BOPCO, L.P.‘s vessel, the M/V MR. JOE (“MR. JOE“), driven by Tyrell DuPont, collided with plaintiff Ryk Frickey‘s vessel as Frickey was returning from checking his crab traps. Rec. Doc. 92 at 3. The day that the accident occurred was a clear day.
II. LIMITATION OF LIABILITY
The Court must determine only whether BOPCO is entitled to limitation of its liability. The Limitation of Liability Act provides that a vessel owner may limit its liability after an accident to the value of the vessel and pending freight.
A. Pilot Error
BOPCO argues that it is entitled to limit its liability because this is “a classic case of pilot error.” Rec. Doc. 116 at 5.2 Despite a finding of negligence, a shipowner may limit his liability
BOPCO also pointed out to the Court that the Fifth Circuit, in Omega Protein, “observed that the district court did not find that defects in the radar or other navigational aids caused the allision. . . .” Rec. Doc. 116 at 8. Rather, BOPCO explains, the Fifth Circuit found that a “mirror effect” from the wheelhouse lights prevented Stewart from either seeing out of the windows or viewing the radar. Id. While BOPCO does not make an explicit argument to the Court based on this case, it seemingly implies that the Court should find the same way as the Court did in Omega Protein. BOPCO wishes the Court to find that the accident at issue here is a case of pilot error because the radar or other navigational aids did not cause the collision. The Omega Protein case, while applying the standard for limitation of liability, is factually distinct from the present case. In this case, there was no “mirror effect” that prevented DuPont from seeing Frickey. This case is more similar to Trico Marine Assets, 332 F.3d at 790, where the Court found that the defendant
BOPCO also cites to Matheny v. Tennessee Valley Authority, 557 F.3d 311 (6th Cir. 2009), as an instance where a court reversed the district court‘s decision denying limitation of liability based on “mistakes of navigation.” Once again, BOPCO did not make a specific argument based on this case but appears to argue that the Court should not deny limitation of liability in this case because it is about “mistakes of navigation” just as the Matheny case was. Rec. Doc. 116 at 9. BOPCO uses Matheny as an example for where a Circuit Court “noted that the captain‘s errors were mistakes of navigation and that he had proven himself up to the time of the accident to be competent.” Id. at 9. BOPCO also states that in Matheny the Sixth Circuit held that the tug owner did not negligently supervise the ship‘s captain, and that therefore the tug owner was not barred from limitation of liability when the tug owner relied on “the navigational expertise of an experienced competent operator with knowledge of Inland Navigation Rules.” Id. In Matheny, the Sixth Circuit found that the district court had misread the Limitation of Liability Act by finding it to be about risks rather than acts. Matheny, 557 F.3d at 316. The Circuit Court explained that limitation of liability is based on privity or knowledge of the specific negligent act or unseaworthy condition, and that the district court‘s finding that the Tennessee Valley Authority “was aware of the fact that if a tugboat operates at an excessive speed it may create a dangerous wake for nearby recreational boats” was the wrong analysis. Id.. The Circuit Court specifically explained that: “The district court also found Captain Ralls had been tested on the ‘Rules of the Road’ aspect of the Inland Rules of Navigation by the Coast Guard, had been trained in collision
BOPCO also cited an Eighth Circuit case on pilot error, In Re MO Barge Lines, Inc., 360 F.3d 885, 891 (8th Cir. 2004). In that case, the Eighth Circuit affirmed the district court‘s finding that Missouri Barge hired “a licensed, competent operator to navigate its vessel.” Id. at 891. The Court found pilot error was the fault of the collision. The Court specifically explained that the pilot had made a decision that “he thought it useless to increase the radar‘s range to identify the approaching ‘mass of lights.‘” Id.. The Court found that the pilot had mistakenly relied on binoculars, rather than that the captain was unable to operate the radar. Id.. The MO Barge Lines case is different from this case where DuPont did not make a decision not to operate the radar because he thought it would be a better idea to use binoculars. Rather, DuPont followed BOPCO‘s policy not to operate the radar system on a clear day in the channel. Tr. July 24, 2013 at 41. BOPCO argues that Frickey submitted no evidence that failure to use the radar in this particular situation was improper. Rec. Doc. 116 at 12. To the contrary, failure to use the radar in this situation violated the Rules of Inland Navigation (“Rules of the Road“), Rule 7(b).3 The Court does not believe that the negligence at issue here occurred merely as a result of pilot error.
B. Privity or Knowledge
1. Failure to Train
BOPCO clearly failed to train DuPont on the Coast Guard‘s Rules of the Road. BOPCO argues that it did not need to train DuPont on the Rules of the Road because he already knew them. Rec. Doc. 116 at 12. To the contrary, DuPont admitted at trial that neither BOPCO nor any other employer had trained him on the Rules of the Road. Tr. July 22, 2013 at 38. He testified that if he had been trained on the Rules of the Road, he would have followed them. Id. at 39. While DuPont knew that he was required to follow the Rules of the Road, and had a general knowledge of what he thought the rules were, his idea of the Rules of the Road was clearly hazy, and this led him not to follow the Rules, which led to the collision. As DuPont explained, he was obeying the Rules of the Road “to the best of [his] knowledge.” Tr. July 24, 2013 at 62. The problem is, BOPCO had not made sure that he had knowledge of the rules. Without this knowledge, DuPont did not understand that he did not have the right of way when he went into the intersection.
DuPont also lacked training in the form of prior experience or a boating license. DuPont testified that he does not have a boating license. Tr. July 24, 2013 at 71. While a license may not be legally required, qualifying for it would have been a way that DuPont would have been trained and would have been a qualification that BOPCO could have relied on to demonstrate its
Frickey argues that BOPCO had privity or knowledge because DuPont violated the Rules of the Road. Specifically, Frickey argues that DuPont violated Rule 7(b), Rule 9(f), Rule 16, Rule 15, and Rule 6. Rec. Doc. 117 at 4-11. As detailed above, Rule 7(b) requires that proper use shall be made of radar equipment if fitted and operational. It is undisputed that the radar was operational on the MR. JOE and that DuPont was not using it at the time of the accident. Tr. July 24, 2013 at 66. The Court does not agree with BOPCO that the definition of the word “proper,” in the context of the rule, means discretionary use. Rec. Doc. 116 at 2. BOPCO attempts to argue that it was “proper” not to use radar on the day of the collision because it was a clear and sunny day and radar is used in fog and in open waters. Id. Rule 4 clearly states that the rules discussed in this Order and Reasons apply in any condition of visibility. There is no caveat in Rule 7(b) that radar should only be used “if warranted under the prevailing conditions” as there is in Rule
If DuPont had known that he was required to use the radar, and therefore had been using it, the collision would have been prevented because DuPont would have been forewarned that he was approaching Frickey‘s boat. Additionally, if DuPont had been trained on the Rules of the Road, he would have known that under Rule 9(f), he was required to sound an appropriate signal when he was nearing a bend or an area of a narrow channel such as the MR. JOE was in at the time of the accident. If DuPont had known to sound a signal, that would have prevented the accident. DuPont also displayed a lack of understanding of Rule 15 and Rule 16 which together deal with which vessel should give way in a crossing situation. Rule 15 requires that when two power-driven vessels such as the ones at issue here are in a crossing situation, the vessel which has the other on her starboard side shall keep out of the way and shall avoid crossing ahead of the other vessel. Rule 16 requires that the vessel required to keep out of the way take early and substantial action to keep well clear. At trial, DuPont demonstrated that he did not have a clear understanding of these rules. He stated that he was supposed to yield in the situation at issue here “[i]f I see him as far as crossing ahead.” Tr. July 24, 2013 at 70. DuPont repeated that he was supposed to yield if he saw Frickey. To the contrary, Rule 15 does not state that the vessel operator is only required to yield if he sees the other boat. DuPont conceded that if he had seen Frickey he could have avoided the accident. Id. If DuPont had been yielding, as the rule required him to do, as he went into the intersection, he would have avoided the accident even without seeing Frickey from a distance. The Court finds that DuPont did not yield because he had not been properly trained on the Rules of the Road, and therefore, did not understand that he needed to yield to Frickey, the boat on his starboard side. Although DuPont put his engine in neutral and
2. Radar Policy
In addition to failing to train DuPont, BOPCO put a policy in place that led to the accident. The policy was that vessel operators should not use radar during the day. BOPCO had privity or knowledge of the negligent acts that led to the accident because it specifically instructed its captains to do something negligent, and that ultimately led to this collision.
Kenneth Fernandez, BOPCO‘s area production supervisor who has worked for BOPCO for twenty-two years, explained to the Court that BOPCO does not run radar during the day.5 Tr. July 24, 2013 at 41. As the Court has already explained, BOPCO was required to use its radar. Fernandez explained that the reason he tells his men not to turn the radar on during the day is that it is “almost looking like at a video game while you‘re driving.” Id. Fernandez said that he would prefer for his captains to have their eyes on the waterways. Id. BOPCO made its decision to tell its captains not to use radar during the day in contravention of the Rules of the Road.6 The Court does not understand how radar could be distracting during the day, but not during the night.
BOPCO argues that it was acceptable for it not to use radar on its vessel because the Coast Guard had ridden aboard the MR. JOE on bright and sunny days and “approved [Fernandez] not using the radar on clear and sunny days onboard the MR. JOE in these waters.” Rec. Doc. 116 at 10. While the Court finds that it is likely that the Coast Guard rode with Mr. Fernandez aboard the MR. JOE, just by riding aboard the vessel without radar, the Coast Guard did not approve non-use of the operational radar system. No representative of the Coast Guard testified at trial. The Court has no way of knowing if the Coast Guard even knew Fernandez was not operating the radar when they rode on the MR. JOE. Just because the Coast Guard had not said anything to Fernandez while it was riding on Fernandez’ boat and he was not using radar, does not mean that the Coast Guard approves BOPCO not using its radar system, or that not using radar does not violate the Rules of the Road. Tr. July 24, 2013 at 41.
BOPCO puts forth the theory that even if DuPont had been operating the radar system on the MR. JOE at the time of the accident, the radar would not have worked in the location of the
BOPCO‘s argument that the marsh grass would have blocked the radar and that radar does not pick up small boats is unfounded. Tr. July 24, 2013 at 65 (DuPont‘s testimony). Fernandez testified that radar will not pick up a vessel in the back levee if the point of sight for the radar is located below the marsh grass or canes. Tr. July 24, 2013 at 36. Yet, BOPCO has not demonstrated that the MR. JOE‘S point of site was below the marsh grass. In fact, a photo of the vessel, which was admitted into evidence, demonstrates that the radar was located on top of the MR. JOE. See Trial Exh. 1; see also Tr. July 24, 2013 at 32 (where Fernandez identifies the radar on top of the vessel). The location of the radar would have had added height to detect Frickey‘s vessel over the marsh grass.
At his deposition, DuPont testified that he would have seen Frickey if he had been using radar. Tr. July 22, 2013 at 56. He specifically testified that Frickey‘s boat is the kind of thing that would have been picked up by radar. Tr. July 24, 2013 at 86-87.8 At trial, DuPont changed his story and stated that since the time of the accident, he had tried to use radar in the same area, and it did not work. Tr. July 22, 2013 at 56. The Court does not find DuPont‘s trial testimony on this
BOPCO argues that Frickey did not present evidence that the radar would have worked in
The Court finds that BOPCO is not entitled to limit its liability because it had privity or knowledge of the negligent act at issue here through its failure to train DuPont on the Rules of the Road, failure to diligently investigate whether he had previously been trained on the Rules of the Road), and institution of a policy that required DuPont not to use radar on the day of the collision. In re Omega Protein, Inc., 548 F.3d at 371 (citing Trico Marine Assets, Inc. v. Diamond B Marine Services, Inc., 332 F.3d 779, 789 (5th Cir. 2003)). BOPCO did not show that it lacked privity or knowledge of the negligent condition that the jury found in this case. In re Kristie Leigh Enterprises, Inc., 72 F.3d 479, 481 (5th Cir. 1996). The Court finds that BOPCO‘s failure to train its captain was similar to the petitioner‘s failure to train the captain in Trico Marine. 332 F.3d at 790 (denying limitation of liability where the corporation, among other failures, failed to train the captain to use radar); see also Gatreaux v. Scurlock Marine, Inc., 84 F.3d 776, 783-84 (5th Cir. 1996), vacated in part on other grounds, 107 F.3d 331 (5th Cir. 1997)
III. DAMAGES
The jury found by a preponderance of the evidence that defendant BOPCO was negligent and that such negligence was a proximate cause of damage to plaintiff Frickey. Rec. Doc. 108-1 at 1. The jury also found by a preponderance of the evidence that plaintiff Frickey himself was negligent and that Frickey‘s negligence was a proximate cause of his own damage. Id. It apportioned damages between the parties to be 75% proximately caused by BOPCO‘s negligence and 25% proximately caused by Frickey‘s negligence. Id. at 1-2. The jury than awarded damages in the amount of (A) $344,762.37 for medical expenses, past and future; (B) $67,000.00 for loss of earning capacity, past and future; (C) $205,000.00 for physical pain and suffering, past and future; and (D) $490,000.00 for mental anguish and emotional distress, past and future. Id. at 2. After fault is apportioned according to the jury‘s finding of negligence, the damages to be awarded to Frickey equal (A) $258,571.78 for medical expenses, past and future; (B) $50,250.00 for loss of earning capacity, past and future; (C) $153,750.00 for physical pain and suffering, past and future; and (D) $367,500.00 for mental anguish and emotional distress, past and future.
Frickey asked the Court to grant him prejudgment interest at the rate of 5.5 percent. Rec. Doc. 123 at 6-7. A seaman may receive prejudgment interest for past but not future damages. Brister, 946 F.2d at 362. The Court did not differentiate between past and future damages on its jury form, and Frickey did not object to the verdict form. Rec. Doc. 108-1; Rec. Doc. 110.
IV. CONCLUSION
The Court finds that BOPCO is not entitled to limit its liability. The Court adopts the jury‘s opinion as its own. Rec. Doc. 108-1. Frickey is entitled to post-judgment interest at the judicial rate from the date of judgment until paid on all elements of recovery. Frickey is entitled to his costs.
Accordingly,
IT IS ORDERED that judgment be entered in favor of the plaintiff and against the defendant.
IT IS FURTHER ORDERED that Frickey is awarded damages of $830,071.78 consisting of damages for:
- $258,571.78 for past and future medical expenses;
- $50,250.00 for past and future loss of earning capacity;
- $153,750.00 for past and future physical pain and suffering; and
- $367,500.00 for past and future mental anguish and emotional distress.
New Orleans, Louisiana, this 9th day of September, 2013.
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE