United States District Court, N.D. Iowa, Eastern Division
MEMORANDUM OPINION AND ORDER ON REMAND
Leonard T. Strand, Chief Judge
case is before me on remand (Doc. No. 83) from the Eighth
Circuit Court of Appeals. See Dakota, Minnesota & E.
R.R. Corp. v. Ingram Barge Co., 918 F.3d 967, 973 (8th
Cir.), cert. denied, 140 S.Ct. 233 (2019) (Doc. No.
83). In its opinion, the Eighth Circuit held the failure by
Ingram Barge Company (Ingram) to rebut the Oregon
presumption did not, as a matter of law, preclude a finding
that Dakota, Minnesota & Eastern Railroad Corporation
(DME) was comparatively negligent in causing the harm to its
bridge. Id. at 7-8. The court determined that my
post-trial ruling (Doc. No. 59) did not sufficiently reveal
whether my finding that Ingram's negligence was the sole
cause of the allision was independent of my finding that
Ingram failed to rebut the Oregon presumption.
Id. at 8-9. Therefore, without expressing an opinion
on whether DME was comparatively negligent, the court
remanded the case for me to address the issue.
conducted a post-remand status conference with counsel,
during which the parties agreed that a new trial is not
necessary. See Doc. No. 89. Instead, the parties
agreed “that new briefing, based on the existing
evidentiary record and the guidance provided by the Court of
Appeals, is appropriate.” Id. at 1. The briefs
have been filed and this case is now ready for decision.
DME commenced this action by
filing a complaint (Doc. No. 2) in admiralty in this court on
December 10, 2015, alleging damages from Ingram's
barge's allision with its bridge near Sabula, Iowa
(Sabula bridge), on April 24, 2015. After a three-day bench
trial, I issued a ruling on April 24, 2018, finding that
Ingram was negligent in causing the damage to DME's
Sabula bridge and awarding DME $276, 860.85 in damages.
See Doc. No. 59. I later amended the judgment to
include prejudgment interest in the amount of $26, 868.50.
Doc. No. 73.
filed a notice of appeal (Doc. No. 69) on May 25, 2018. As
noted above, after the court of appeals issued its opinion
remanding this case, the parties agreed to submit new
briefing “based on the existing evidentiary record and
the guidance provided by the Court of Appeals.” Doc.
No. 89 at 1. They further agreed that because the issue on
remand involves an affirmative defense, the defendant should
file the opening brief. Id. Ingram filed its opening
brief (Doc. No. 91) on August 15, 2019. DME filed its opening
brief (Doc. No. 92) on September 16, 2019. Ingram filed a
reply (Doc. No. 93) on October 4, 2019, and DME filed a
sur-reply (Doc. No. 96) on October 7, 2019.
FINDINGS OF FACT
the parties have agreed that I should rule based on the
existing evidentiary record, I find it helpful to restate my
prior findings of fact. Except for some changes to footnote
numbers, these are repeated verbatim from my initial ruling
(Doc. No. 59).
April 24, 2015, DME owned the Sabula Bridge (the Bridge) and
its related structures. The Bridge is a railroad bridge that
crosses the Upper Mississippi River near Sabula, Iowa, and
Savanna, Illinois. Ingram is in the business of transporting
barges on the Upper Mississippi River and elsewhere.
Bridge dates back to 1880, when its construction was
authorized by the Secretary of War. To allow river traffic to
pass through the Bridge, a pin-connected swing span rotates
90 degrees. An overhead photograph of the bridge in its
closed position is reproduced below: (Image Omitted)
See Ex. 52. This photograph is oriented with north at
the top. The railroad tracks thus cross over the Bridge in an
east-west direction. The piers that extend north and south of
the bridge are protection piers that protect the swing span
from being impacted by river traffic while the span is in the
open position. When the span is open for river traffic, it
rests directly above the protection piers.
the swing span is open, it creates two channels for river
traffic. Typically, northbound river traffic uses the east
(Illinois-side) channel, while southbound river traffic uses
the west (Iowa-side) channel. The east channel is
approximately 154 feet wide, while the Mississippi
River's shipping channel is 300 feet wide.
average tow using the Upper Mississippi River consists of 15
barges, powered by a 3200 to 4800 horsepower towboat. Barges
in tows are typically arranged five long and three wide, with
each barge being approximately 195 feet long by 35 feet wide.
Thus, the width of three barges, when arranged side-by-side,
is approximately 105 feet. With the Bridge's east channel
being 154 feet wide, this leaves under 25 feet of clearance
on each side.
17, 1996, the United States Coast Guard issued an Order to
Alter the Bridge pursuant to the Truman-Hobbs Act, 33 U.S.C.
§§ 511 et seq. Ex. EE at 2. The Order to
Alter declared the Bridge to be an “unreasonable
obstruction to the free navigation of the Upper Mississippi
River” and directed the then-owner to reconstruct the
Bridge to meet various requirements. Id. Among other
things, the Order to Alter directed that the Bridge provide a
horizontal clearance of at least 300 feet. Id. The
legal effect and relevance of the Order to Alter will be
addressed later in this ruling. It is undisputed that neither
DME nor any prior owner of the Bridge took any action to
reconstruct the Bridge after the Order to Alter was issued.
early morning hours of April 24, 2015, Ingram was operating
the M/V Aubrey B Harwell Jr (the Harwell) while pushing nine
empty barges upstream, approaching the Bridge from the south.
The barges were configured three barges long and three barges
wide. Thus, the length of the tow without regard to the
Harwell was approximately 585 feet and the width was
approximately 105 feet. The Harwell was centered aft of the
barges as it pushed them upstream. The barges were secured to
each other and to the Harwell with standard cabling, which
did not fail.
Harwell began pushing its tow through the east channel, one
or more of the barges struck the Bridge's south
protection pier, causing damage to that structure. In
addition, a metal grease platform that hung below the south
tip of the swing span (as the span was oriented in the open
position) also incurred damage. The Harwell then completed
its passage through the Bridge channel and continued its
witnesses testified (either live or via deposition) about the
manner in which this incident occurred. The material details
are largely undisputed. I find the testimony of Hershey
Dampier, who was steering the Harwell at the time of the
allision, to be particularly instructive about the incident.
Dampier explained that he began working for Ingram in 1999,
as a green deckhand. Over the next 12 years, he progressed
through various positions including experienced deckhand,
senior deckhand, leadman, second mate, first mate and senior
mate, which he described as being the highest rank on deck.
April 2015, Dampier obtained a steersman's license from
the United States Coast Guard. The application process for
obtaining this license involved training at river school and
a test, which Dampier passed. He explained that a steersman
is an apprentice position in which he could steer a vessel
while under the pilot's supervision.
April 24, 2015, Dampier was on his first trip as a licensed
steersman and was steering the Harwell under the direction of
Tommy Hinton, the Harwell's pilot. The trip had been in
progress for somewhere between 10 and 14 days by that time,
with Dampier steering at all times while he was on duty.
Dampier was familiar with the Bridge, as he had passed
through it many times as a deckhand for Ingram. Among other
roles, he had sometimes served as a lookout deckhand, posted
at the front of the tow and radioing information to the pilot
about distance, width, etc. Dampier testified that lookouts
are always posted when passing through a bridge.
testified that Hinton was in the wheelhouse with him during
the relevant events and that the two of them discussed the
procedures for passing through the Bridge while the Harwell
was still about a mile south of the Bridge. Hinton told him
that because of the wind, and the small size of the tow (9
barges instead of 15), he should keep the barges pointed to
the shore pier on the right, or Illinois, side of the
northbound channel. Hinton asked Dampier if he was
comfortable steering through the bridge and Dampier said that
testified that the wind gauge on the Harwell reflected 10 to
15 miles per hour winds at the time of the accident and that
the wind was blowing from the east, or starboard side,
pushing the tow to the west. The Harwell was moving at 4.5 to
5 miles per hour. When the tow was 300 or 400 feet from the
Bridge, Dampier realized that it was lined up incorrectly.
The lookout on the port, or west, side advised him that they
were “headed to the bad.” Dampier testified that
he tried to adjust the tow's position to the starboard
side as they proceeded north but that the wind made this
difficult. He noted that empty barges are more susceptible to
being affected by wind and that they also create a visibility
problem for the pilot, as they sit higher on the water.
did not reduce speed as he attempted to maneuver through the
Bridge. He stated that reducing speed would have made things
worse, as the wind's effect on the tow's course would
have increased. Instead, he continued to steer toward the
starboard side in an unsuccessful effort to avoid making
contact with the protection pier on his port side. Dampier
testified that after making contact with the pier, he was
able to bring the tow around to the correct direction and
complete the Harwell's passage through the Bridge. When
asked why, despite his best efforts, he was unable to avoid
hitting the pier, he answered:
I was off to the bad more than he [the lookout] indicated so
it didn't give me enough room or enough time to clear the
lower end of the bridge or the turntable to avoid an allision
with it, to proceed through.
Realtime Transcript, Day 2, p. 138.
testified that he was not disciplined due to this allision.
He ultimately received his pilot's license in April 2017.
He acknowledged that the purpose of serving as a steersman
was to learn how to be a pilot and that the allision on April
24, 2015, was a learning experience. Among other things, the
incident taught him to plan ahead more and to adjust to the
wind and the current. Dampier further testified that he has
steered as many as 15 barges at a time through the Bridge
since April 24, 2015, and has had no problem getting through
without making contact. He stated that he feels safe passing
through the Bridge now because he knows how to do it.
Gelwicks, a DME employee who works as the operator (or
tender) of the Bridge, was on duty on the morning of April
24, 2015, and witnessed the allision. From his work station
in the bridge tender house, located on the swing span, he
felt the Bridge lurch from the impact. Gelwicks then radioed
the Harwell to advise the pilot that the vessel had caused
damage to the Bridge. After making that contact, Gelwicks
went to the area of impact with a flashlight to inspect the
damage. He noted broken timbers on the south protection pier
and also observed damage to the swing span's grease
platform. Because it did not appear that the damage to the
grease platform would impede the operation of the Bridge, he
went back to the bridge tender house and returned the swing
span to the closed position. However, under DME's
operating procedures, rail traffic was not allowed on the
bridge until it could be fully inspected.
then called the Coast Guard to report the incident. He also
notified his immediate supervisor, Bruce Wold, and completed
a written incident report (Ex. 44). In his report, Gelwicks
stated that at the time of the allision the winds were calm,
the temperature was 30 degrees Fahrenheit and the river stage
was 11.75. Gelwicks testified that this river stage was not
particularly high. The report further noted that the Bridge
was opened at 4:50 a.m. and that impact occurred at 4:59 a.m.
testified that he was a Manager of Bridge Maintenance for DME
on April 24, 2015, and that he received Gelwicks' call at
around 5:00 a.m. on that date. Wold confirmed Gelwicks'
testimony that because of the allision, no traffic was
permitted to cross the Bridge until an inspection could
occur. Wold traveled to the Bridge and arrived by 6:30 a.m.,
as the sun was rising. He recalled that the winds were calm
at that time. He inspected the damage and took various
photographs, including Exhibits 128 through 131.
on the damage to the grease platform under the swing span,
Wold believes the barge that struck the protection pier must
have risen up on impact, reaching a high enough level to
impact the platform. Also, due to the amount of damage to the
protection pier, Wold was concerned that the Bridge was
vulnerable to further damage while in the open position.
Specifically, he believed that if another vessel made contact
with the damaged protection pier, it could breach that pier
and make direct contact with the span itself.
shared his findings and concerns with his supervisor, Daniel
Sabatka. Sabatka directed him to make arrangements with two
contractors to begin prompt repairs on a time-and-materials
basis: JF Brennan (Brennan) for the protection pier and E80
Plus (E80) for the grease platform. Wold made these
arrangements, as directed. He testified that Brennan
completed its repairs to the protection pier on May 1, 2015,
while E80's repairs to the grease platform were completed
soon after. DME claims total damages of $276, 860.85 as a
result of this allision. Nearly all of this total arises from
the invoices issued by Brennan and E80, with small,
additional amounts consisting of labor and materials provided
by DME's parent company, Canadian Pacific Railway (CP).
facts concerning damages and other relevant issues will be
addressed in the analysis ...