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Dakota, Minnesota & Eastern Railroad Corp. v. Ingram Barge Co.

United States District Court, N.D. Iowa, Eastern Division

December 19, 2019

DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Plaintiff,
v.
INGRAM BARGE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER ON REMAND

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This 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.

         I 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.

         II. PROCEDURAL HISTORY

         DME[1] 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.

         Ingram 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.

         III. FINDINGS OF FACT

         While 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).

         A. The Bridge

         As of 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.

         The 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.[2] 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.

         When 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.

         The 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.

         On June 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.

         B. The Allision

         In the 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.

         As the 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 upstream course.

         Many 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.

         In 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.

         On 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.

         Dampier 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 he was.

         Dampier 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.

         Dampier 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.

         Unofficial Realtime Transcript, Day 2, p. 138.

         Dampier 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.

         C. Damages

         Jerry 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.

         Gelwicks 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.

         Wold 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.

         Based 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.[3]

         Wold 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).

         Additional facts concerning damages and other relevant issues will be addressed in the analysis ...


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