IN THE UNITED STATES DISTRICT COURTJ uly 08, 2021 Nathan Ochsner, Clerk FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION
══════════ No. 3:19-cv-207 ══════════
Kirby Inland Marine, Plaintiff,
v.
FPG Shipholding Company, et al., Defendants.
══════════════════════════════════════════ MEMORANDUM OPINION AND ORDER ENTERING FINDINGS OF FACT AND CONCLUSIONS OF LAW ══════════════════════════════════════════ Jeffrey Vincent Brown, United States District Judge. This maritime action arises from a collision in the Houston Ship Channel between a large liquified-gas carrier and a tug pushing two tank barges. The collision caused one barge to capsize and the other to hemorrhage a great deal of reformate into Galveston Bay. The reformate spill, in turn, caused environmental damage which led to an abundance of third-party claims. Following the collision, the owner of the tug and barges filed a complaint and petition for exoneration under the Oil Pollution Act and general maritime law. The court convened a bench trial to allocate fault among the vessels involved. Based on the pleadings, the evidence adduced at trial, the parties’ arguments and briefing, and the applicable law, the court submits these findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure.’ FINDINGS OF FACT A. The Parties The plaintiff is Kirby Inland Marine, LP, a limited partnership incorporated in Delaware and headquartered in Houston. Kirby owns and operates the Voyager, a towing vessel, as well as the two tank barges the Voyager was pushing on the day of the collision, the MMI/ 3041 and the Kirby 30015T.
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Figure 1. The Voyager The defendants are FPG Shipholding Panama 47 S.A., K Line Energy Ship Management, Genesis River Shipping, S.A., FPG, Ship No. 138 Co. Ltd., and Ship No. 139 Co. Ltd. (collectively, the “Genesis River Interests”). They are all foreign
' Any findings of fact that are also, or only, conclusions of law are so deemed, and any conclusions of law that are also, or only, findings of fact are likewise so deemed.
corporations that either own, manage, or operate the Genesis River, a very large gas- carrying vessel.
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Figure 2. The Genesis River The third-party defendants are BW VLGC Ltd., BW Gas AS, and BW Fleet Management AS. They are foreign corporations that all either own or manage the BW Oak, also a very large gas-carrying vessel.
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Figure 3. The BW Oak In the parties’ pleadings and at trial, the Voyager blamed the Genesis River for the collision. For its part, the Genesis River charged the Voyager with failing to take
effective evasive action. The Genesis River also accused the BW Oak of embarrassing the Genesis River’s navigation, thus causing the collision.’ B. The Houston Ship Channel and Bayport Flare The Houston Ship Channel is the busiest waterway in the United States. Its main channel is about 530 feet wide and 45 feet deep. On each side of the main channel are 235-foot barge lanes that are 12 feet deep. As the channel traverses Galveston Bay, outbound vessels, said to be on the “green side,” are west of the channel’s centerline. Inbound vessels, on the “red side,” are east of the centerline.
Project Dimensions of the Deeper & Wickes aan Houston Ship Channel Beacon
af Se nave ile Sput serait a Tha sab oes ipAGCE
Figure 4. Houston Ship Channel Dimensions The Bayport Flare is a highly trafficked area near the intersection of the Houston Ship Channel and the Bayport Channel. To accommodate the high traffic and promote safer meetings between ships in the area, a “widener” has been
In admiralty, when a vessel takes some action which in turn causes a second vessel to collide with a third, the first vessel is said to have “embarrassed the navigation” of the second.
dredged at the elbow of the channel, which provides an additional width of suitable
water depth for inbound vessels.
Figure 5. Widener at the Bayport Flare C. The Meeting Between the Genesis Riverand the BW Oak On May 10, 2019, the Genesis Rever and the BW Oak passed each other near the elbow of the Bayport Flare. The BW Oak was in ballast (z.e., carrying no cargo) and heading inbound on the red side of the channel. The Genesis River, in contrast,
was outbound on the green side carrying a full load of liquid petroleum gas. Because of her loaded condition, the Genesis River had an even-keel trim (4.e., sitting evenly on the water) and was navigating “down by the bow,” rendering her sluggish and difficult to handle. Both vessels had Port of Houston pilots on board—Captain Kent Barton on the BW Oak and Captains Barry Holland and Jason Charpentier on the Genesis River. When Captains Holland and Charpentier boarded the Genesis River at the Targa
Terminal earlier that day, there was a customary master–pilot exchange. During these exchanges, the master conveys certain information about the vessel to the pilot
and gives him a “pilot card,” which contains information about the vessel’s maneuvering equipment, load, and overall condition.
During the Genesis River’s master–pilot exchange, her master failed to disclose two important facts to Captains Holland and Charpentier: that the Genesis River was a poor-handling vessel and that her voyage plan called for a maximum safe speed of
6–8 knots in the Houston Ship Channel. On top of these communication failures, when the pilots requested that the audible alarms on the vessel’s Electronic Chart Display and Information System (or “ECDIS”) be silenced, the crew instead placed
it on standby mode—basically shutting it down. So even though each pilot carried and used his own navigation device (a “Portable Pilot Unit” or “PPU”), placing the ECDIS on standby effectively meant the Genesis River was sailing without a chart.
It was under these conditions that the Genesis River departed and began traveling outbound down the Houston Ship Channel. Captain Holland, the pilot navigating the first leg of the transit, quickly noticed how poorly the vessel handled.
About halfway through the outbound transit, Captain Holland handed the conn over to Captain Charpentier. When he did, he informed his colleague that the Genesis River was “all over the place,” difficult to handle, and required “lots of rudder” to break “sheers” (losses of directional control). Yet not long after taking the conn, Captain Charpentier ordered the engines to “Full Sea Speed,” taking the vessel up
to 12 knots—4 knots above the maximum safe speed noted in her voyage plan for this part of the trip. The Genesis River’s crew complied and expressed no concern.
Soon, the swiftly cruising, fully loaded vessel was approaching the BW Oak near the Bayport Flare. When the vessels were about a mile apart, they agreed to a port-to-port, one-whistle passing (i.e., a passing in which the vessels stay in their
respective right-lane positions). To execute this passing arrangement, they used the “centerline approach,” or “Texas chicken,” which begins with each vessel navigating along the channel’s centerline.3 Then, once they are within about a half
mile, each turns to the starboard side to prepare to pass the other. This maneuver facilitates a safe passing because the hydrodynamic forces acting on the vessels as they pass stern to stern help them re-align in the center once the passing is complete.
Around the time the two vessels agreed to this passing, the BW Oak was preparing to make a starboard turn at the flare. As she did, her stern swung out slightly to the port side, crossing the centerline by 49 feet.
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aaa Vy » Ce fa) waas □□□□ : AY □□□ ves: 340.7 yi con: 346.5" | je \ 7 □ 12.8. aot a Lod MEAT: Upper i ey tae Ss anc. 341.4" ; XY ra: 00:21 □ 7 \ eens an \ eva 15:34. a DIST: _ a 4 4, Ne 4S:12200 □ □□□□ wr > ‘, % os a i hy oh a 17.2 □□ (R162 ft a Naan Figure 12. In making the turn at the flare, Captain Barton opted against steering the BW Oak through the widener on the red side. If he had, Captain Barton testified, the two vessels would have been temporarily pointing directly at each other, an “uncomfortable” heading for them both. By the time the Genesis River and the BW Oak closed to within a half mile, the BW Oak had completed her turn at the flare. She had then moved 134 feet to the right of the centerline, comfortably on the red side. As the vessels passed each other, Captain Charpentier expressed no concern that the BW Oak was squeezing the Genesis River against the channel bank on her starboard side, did not ask the BW Oak for more room, nor ever suggested that the BW Oak’s position in the channel otherwise impeded the Genesis River’s navigation. In fact, Captain Charpentier has never criticized the BW Oak’s handling of the 11
vessels’ meeting. Captain Charpentier, the Houston Pilots, and both vessels’ bridge teams all agree: there was nothing unusual about the passing.
D. The Collision After passing the BW Oak, the Genesis River continued on the green side of
the channel, still making 12 knots. She soon prepared for another passing, this time with a tug in the barge lane on the red side, the Voyager. The Voyager, captained by Tony Marie, was pushing two barges, both of which were fully loaded with reformate
(a gasoline-blending stock), and was making about 5 knots. Like her meeting with the BW Oak, the Genesis River was on course for a customary port-to-port, one-whistle passing of the Voyager—that is, the Genesis River would stay on the green side and
the Voyager would stay on the red side. But this course soon changed. Just before the projected meeting, the Genesis River “took a sheer,” sending her toward the red side of the channel.4 Concerned
about his direction and the impending meeting with the Voyager, Captain
4 This sheer was caused by “bank effect,” which is the hydrodynamic tendency of a ship’s stern to swing toward the near bank and the bow to swing toward the center of the channel, causing the vessel to sheer away from the bank. Bank effect is exacerbated by excessive speed. The Genesis River was paralleling the green-side bank of the channel when the sheer occurred. Charpentier radioed to Captain Marie5 to remain alert as he was trying to get the Genesis River under control:
Charpentier: Come in there, Voyager. Marie: [Responds] Charpentier: It’s that ship looking at ya’ . . . trying to check this thing . . . just keep an eye on me. Marie: Roger, roger. Shortly after this exchange, Captain Charpentier realized he was losing control of the Genesis River. To try to break the sheer and regain control, Captain Charpentier asked the Genesis River’s crew for “more RPMs . . . give me everything you got.” But his request went unheeded. He radioed Captain Marie again, warning
that his vessel was not responding and directing him to head to the green side of the channel: Charpentier: She’s not checking up, Voyager. Marie: What do you need me to do? Charpentier: Go to the greens. Marie: Go to the greens.
This second exchange established a new passing agreement—a starboard-to- starboard, two-whistle passing. Complying, Captain Marie immediately steered hard
5 The evidence shows that when Captain Charpentier radioed the Voyager, Captain Marie, who was at the helm, had his cell phone in his lap in violation of Kirby company policy. The evidence also shows that Captain Marie quickly tossed the phone aside as soon as he heard from the Genesis River. to port. Captain Charpentier radioed again to Captain Marie, this time with heightened urgency:
Charpentier: You need to go straight to the greens . . . take a ninety to the greens [because] I’m going to go your way again, probably. Marie: Roger roger, straight over.
While Captain Marie tried to move the Voyager to the green side, the Genesis River crossed the channel’s centerline and entered the barge lane where the Voyager had been. Had the Genesis River maintained this new position on the red side of the channel, she would have complied with the new starboard-to-starboard agreement. But, as Captain Charpentier predicted, she did not. Shortly after she darted to the red side of the channel, the Genesis River took yet another sheer, which sent her back
toward the green side where the Voyager had fled. Both Captain Marie and Captain Charpentier now realized that a collision was certain. Seconds after the vessels’ crews braced for impact, the Genesis River’s bow
sliced into one of the barges (the Kirby 30015T), nearly cutting her in half, and reformate gushed into the channel. The force of the impact also caused the other
barge (the MMI 3041) to capsize. Fortunately, though the damage to the vessels was great and the spill catastrophic, there was no loss of life. 15 10-2 O19 Fi “5109761 CS if i i i pects | if i eee ge eet —, EGET Saco a an 3 i ee \= a = = □□ “ i Kil i fi boa 7 ee a a —— a So a J Ai a cera otrt CHI | a Sag: at | ae rf i) , rt. ai : ns i Mi Ps —— | i as aac a lee □ Fy ja! a = a aa a a atoau * a we ee ! el NN es a 1 a = aw fe eee Lae ee & | 4a 9) a es = - Figure 13.
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CONCLUSIONS OF LAW A. Jurisdiction and Venue
This court has jurisdiction over this dispute under 28 U.S.C. § 1333, Rule 9(h), of the Federal Rules of Civil Procedure, and Supplemental Admiralty Rules C
and F. Venue is proper in the Southern District of Texas under Supplemental Admiralty Rule F(9). B. The Oil Pollution Act
Because the collision caused the discharge of a large amount of reformate into Galveston Bay, the Oil Pollution Act applies. Among other things, the Oil Pollution Act, 33 U.S.C. § 2701, et seq., addresses the liability arising from oil pollution in the
navigable waters of the United States. The act specifically subjects each “responsible party” to liability for the cost of removing the oil and the damages caused by the spill. 33 U.S.C. § 2702(a). At first,
the “responsible party” is the owner of the vessel from which the pollutants have escaped. Id. The owner, however, can offload that liability by establishing that “the discharge and the resulting removal costs and damages were caused solely by an act
or omission of one or more third parties . . . .” Id. § 2702(d)(1)(A). Proving that a third party was the sole cause of the discharge is a complete defense to liability. Id. § 2703(a). Once established, the initially designated responsible party has a right to recover its removal costs and damages from the third party. Id. § 2708(a)(1).
The act limits the liability of responsible parties based on the size and tonnage of each offending vessel. See id. § 2704(a). There are, however, exceptions to the
liability limits. Relevant here, the limits do not apply “if the incident was proximately caused by . . . the violation of an applicable Federal safety, construction, or operating regulation[.]” Id. § 2704(c)(1)(B). For example, if a responsible party violates the
Inland Navigation Rules, the liability limits do not apply. See, e.g., In re Settoon Towing, LLC, No. CV 14-499, 2016 WL 9447753, at *7 (D. La. Mar. 21, 2016) (holding that a violation of one of the Inland Navigation Rules precluded limiting
liability under the act); see also United States v. Am. Comm. Lines, 875 F.3d 170, 178 (5th Cir. 2017) (holding that violations of rules intended to prevent oil spills precludes limiting liability under the act).
C. Negligence and Inland Navigation Rules The elements of negligence in an admiralty case are the same as at common law: the plaintiff must prove by a preponderance of the evidence that (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, and (3) the breach caused the plaintiff’s injuries. See Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000). “The applicable standard of care in a collision case stems from the traditional concepts of prudent seamanship and reasonable care, statutory and regulatory rules, and recognized customs and uses.” Stolt Achievement,
Ltd. v. Dredge B.E. Lindholm, 447 F.3d 360, 364 (5th Cir. 2006). The Inland Navigation Rules, codified in the Code of Federal Regulations, 33
C.F.R. § 83.01, et seq., provide the “rules of the road” for vessels navigating on the inland waters of the United States, including the Houston Ship Channel. The broad purpose of these rules is to prevent collisions. To that end, the rules require vessels
to travel at safe speeds, use available equipment to determine and avoid risks of collision, and proceed along the outer limits of narrow channels. D. The ’s Negligence and Violations of the Rules
Based on the arguments and evidence submitted at trial, the court concludes that the Genesis River’s negligence and violation of Rules 6, 7, and 9 of the Inland Navigation Rules caused the collision with the Voyager and her two barges.
Rule 6—Safe Speed, 33 C.F.R. § 83.06—requires vessels to “proceed at a safe speed so that [they] can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and
conditions.” The Genesis River violated this rule by making 12 knots (“Full Sea Speed”) as she navigated through the channel—4 knots over the voyage plan’s maximum proposed safe travel speed. The Genesis River’s excessive speed, which likely caused or at least exacerbated the various sheers she took, led her to lose control and collide with the Voyager and her barges. Had the Genesis River traveled
at a safe speed, she could have at least partially abated the hydrodynamic forces she encountered, widened her margin for error, and gained more time to take evasive
action. Rule 7—Risk of Collision, 33 C.F.R. § 83.07(a)—requires vessels to “use all available means appropriate to the prevailing circumstances and conditions to
determine if risk of collision exists.” The Genesis River violated this rule by failing to make use of her radar and ECDIS. Had the Genesis River done so, her bridge team would have been more situationally aware and cognizant of the risks of collision
attending her excessive speed. Rule 9—Narrow Channels, 33 C.F.R. § 83.09(a)(i)—requires vessels to proceed “along the course of a narrow channel” and “keep as near to the outer limit
of the channel . . . as is safe and practicable.” The Genesis River violated this “rigidly enforced” and “important safety regulation,” The Standella, 108 F.2d 619, 620 (5th Cir. 1939), at least twice: once when she crossed over to the red side of the channel,
prompting the urgent two-whistle agreement, and once when she sheered back to the green side, ultimately colliding with the Voyager as she tried to escape. Had the Genesis River maintained a position, in either instance, “as near to the outer edge of the channel . . . as is safe and practicable,” she could have avoided the collision.
The Genesis River’s negligence was the sole cause of the collision. She breached her duty to the Voyager as a passing vessel by speeding, operating without
her radar equipment, and failing to maintain a safe position in the channel. And because this negligence manifested as violations of the Inland Navigation Rules, the Oil Pollution Act’s liability limits do not apply. 33 U.S.C. § 2704(c)(1)(B).
Moreover, the Genesis River has failed to show that any responsibility for the collision ought to be apportioned to either the BW Oak or the Voyager. Based on the evidence adduced at trial, nothing about the Genesis River’s meeting with the BW
Oak appears unusual. It was, by all accounts, an uneventful passing that contributed nothing to the Genesis River’s subsequent loss of control.6 Nor, by the same token, does the Voyager bear any of the blame. Although it is true Captain Marie was looking
at his phone before the Genesis River radioed to him, there was no evidence this impaired his response. Ultimately, the Genesis River’s speed and directional instability simply gave the Voyager insufficient time or space to avoid the collision.
Cf. Afran Transp. Co. v. S/S Transcolorado, 458 F.2d 164, 166 (5th Cir. 1972) (“[T]he
6 At trial, the defendants accused the BW Oak of not giving the Genesis River enough room when they passed, thus forcing the Genesis River too near the bank and causing the sheer. But not even Captain Charpentier believed that to be true. one who is put to a sudden choice of action to avoid hazard created by the patent fault of the other has considerable latitude.”). The court apportions no negligence
to either the Voyager or the BW Oak and concludes that neither violated any of the Inland Navigation Rules. E. Kirby’s Damages
Maritime law permits parties to recover money damages resulting from a collision caused by the negligence of another party. Damages include the cost of
vessel repair, loss of use, out-of-pocket costs of wreckage and cargo removal, salvage, drydocking, and caring for the damaged vessel. Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985); Todd Shipyards Corp. v. Auto
Transp., S.A., 763 F.2d 745, 754 (5th Cir. 1985). Kirby and the Genesis River Interests have stipulated to the damages they incurred because of the collision. See generally Dkt. 580. According to Kirby, it
suffered $7,936,897 in collision damages and $9,461,591 in spill-response damages. As the party solely at fault for the collision, the Genesis River Interests are liable to Kirby for $17,398,488. In making this determination, the court knows that the third-
party claimants’ damages remain pending. Those damages will be determined separately. * * * In sum, the court finds that the Genesis River is 100% at fault for the collision
with the Voyager on May 10. 2019. And because the cause of the collision was the Genesis River’s violation of certain Inland Navigation Rules, the liability limits in the
Oil Pollution Act do not apply. Signed on Galveston Island on the 8th day of July, 2021.
________________________ Jeffrey Vincent Brown United States District Judge