Clean-Up Responder Defendants Dismissed from Deepwater Horizon Multi-District Litigation

On April 22, 2010, the Deepwater Horizon rig sank following numerous fires and explosions resulting from a loss of well control.  Oil subsequently discharged into the Gulf of Mexico, and flow continued for three months until the well was capped on July 15, 2010 and subsequently sealed with completion of a relief well on September 19, 2010.  Clean-up activities and efforts to minimize the spill’s impact continued for months.  Response activities included skimming oil from the surface, conducting in situ burning of oil, placing containment and sorbent boom, and on-shore and beach clean-up.  Clean-up responders dispersed chemical agents designed to emulsify, disperse, or solubilize the oil in the water.


Of the numerous parties named as defendants in the master complaint were several companies contracted as clean-up responders.  Plaintiffs alleged that the clean-up responders “failed to use reasonably safe dispersant chemicals or other chemicals in their attempts to respond to the Oil Spill, and thereby exacerbated the pollution of the Gulf of Mexico and injury to Plaintiffs,” “ignored worker safety concerns,” and failed to supply workers with appropriate equipment such as respirators.”  The clean-up responders moved to dismiss arguing that they were entitled to derivative immunity under the Clean Water Act (“CWA”), were entitled to discretionary immunity under the Federal Tort Claims Act (“FTCA”), and that the plaintiffs’ claims were preempted as a matter of law.  The Eastern District of Louisiana initially denied these motions to dismiss and issued a Lone Pine order to conduct discovery on these claims.  The clean-up responders subsequently filed a motion for summary judgment at the conclusion of discovery on the issues raised in their initial motion to dismiss.


The court held that the clean-up responders were entitled to derivative immunity under the CWA and to discretionary immunity under the FTCA because the clean-up responders had adhered to and acted within the scope of the federal government’s directives in their clean-up efforts.  Further, the court held that it was not possible for the clean-up responders to simultaneously comply with both the federal directives of CWA and FTCA and with state or maritime law; the clean-up responders had therefore demonstrated a prima facie basis for dismissal of their claims based on conflict pre-emption.  Thus, claims against the clean-up responder defendants were dismissed.

High Water and Duties of Barge Owners and Fleeters

High water is here, and it’s going to get higher before it starts dropping.  In response the U.S. Coast Guard has issued a number of river closures, restrictions and advisories.  With the Carrollton Gauge showing a stage of close to 16 feet and rising, the Captain of the Port has ordered that vessel-to-vessel transfers are prohibited unless specifically approved in advance by his office.  Further, unless moored to a shoreside facility or mooring buoys all deep draft vessels must have three means to hold position.  An example would be two fully functional operational anchors and the propulsion system in standby.  Also, vessels are prohibited from entering South Pass from the Gulf of Mexico if it has a speed of less than 10 miles per hour.  Safety zones and traffic control measures and high water safety advisories are in place.  Concurrently, high water regulations found at 33 CFR 165.803(m), which apply to fleet operations, are in effect once the Carrollton Gauge stands at 12 feet or more.  Depending on its size the fleet may be required to deploy additional standby boats in the fleet, additional surveillance, and doubling up on rigging.


Given these circumstances it’s a good time to review of the duties of barge owners and fleeters.


A barge owner has a duty to deliver a sound and seaworthy barge to its fleeter.  A fleeter is entitled to assume that a fixture on a barge delivered into its custody can withstand reasonable stresses.


These principles were discussed in Conagra, Inc. v. Weber Marine, 2000 WL 943198.  In that case, Conagra’s PV 5989 barge was delivered to Weber Marine, a fleet operator, during high water.  Weber inserted the barge into a group of barges and moored the group to the Mississippi River bank with a wire rope, or “shorewire”, attached to a deck fitting on the PV 5989 barge.  Subsequently, a Weber fleet boat repositioned the shorewire on the center bow kevel of the PV 5989.  Approximately 45 minutes later, the kevel failed.  The issue at trial was whether the resulting breakaway and damages were caused by the negligence of the fleeter, by a defect in the barge, or a combination of both.


In analyzing the liability of the respective parties, the Court noted the duty of a barge owner to supply a seaworthy barge.  The Court found that the PV 5989 had a latent defect in the kevel in that it was improperly and weakly welded at one point, which eventually caused it to fail.  The Court found that Conagra had breached its duty to provide a seaworthy barge.  At the same time, the Court found Weber Marine partially to blame due to its failure to comply with a Coast Guard regulation which requires a harbor tug to always remain within 500 yards of the barges in fleets.  In the end, the Court held Conagra to be 70% at fault and Weber to be 30% at fault.


On the other hand, the towing company’s responsibility for its tow ceases upon the proper mooring of the tow at the final destination of the tow pursuant to the towage agreement.  A fleeter is thereafter responsible for the care of barges in its custody, and that includes a duty to ensure that the barges are adequately moored.  Owners and operators of barges who leave their vessels with a fleeter can reasonably rely on the fleeter’s expertise.


Fleeters have a continuing obligation to exercise reasonable care in conducting their operations.  The fleet operator is legally responsible for ensuring proper mooring.  A fleeter who fails to take adequate precautions and to implement policies designed to prevent barges from breaking out of fleets, or from sinking within fleets, faces liability for such failures.


Courts have held that the law presumes a fleet breakaway results from the negligence of the fleeter.  Thus, the fleeter must be ready to prove that it at all times exercised reasonable care, acted in accord with the regulations and exercised due diligence.  This can often be a heavy burden.


The fleet owner or owner of mid-stream mooring systems utilizing multiple buoys has a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel.  This includes the duty to ascertain the condition of the berth, to make it safe or warn the ship of any hidden hazard or deficiency known to him or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the shipowner.  No such warning is required where the alleged condition is open and obvious to those in charge of the vessel’s management or where those in charge of the vessel’s management have actual knowledge.


In the M/V BELO HORIZONTE case, 2010 WL 936292, in which I represented the owner of a mid-stream ship mooring system, the ship arrived at the system at a time of high water.  It entered the berth with the assistance of three helper tugs.  Several hours after it was secure a severe weather front bringing high winds arrived.  The ship began to swing on its anchors and mooring lines.  Lines started to part.  The Master of the ship called for helper tugs to return to stabilize the ship.  The tugs arrived and began to assist.  Lines continued to part.  Tragically, one of those lines recoiled and struck the wheelhouse of one of the tugs.  A crew member stationed in the wheelhouse was killed.  His family filed suit claiming that the owner of the mooring system directed and/or allowed the ship to berth during dangerous flood stage river conditions, failed to provide assist tugs to hold her in place, and failed to properly advise the ship’s Master and its owners of the dangers presented by mooring the ship in the buoy system at such high river stage.


I moved to dismiss the owner of the mooring system.  The Court granted the motion and found that although the owner operated the system and provided the helper tugs, there was no evidence that it was responsible for the navigation and mooring of the ship.  The Court found that there was no evidence that the ship’s Master was not competent, incapable of obtaining and understanding weather forecasts, not aware of the river’s high water conditions and strong currents and would not realize that mooring a ship at a mid-stream buoy facility would bear some differences from docking at a stationary dock on the river’s bank.  The Court found that there was simply no evidence that the owner should have intervened or was legally obligated as a matter of law to call on behalf of the ship for a river pilot be summoned on an expedited basis or that additional helper tugs be called earlier.


In sum, even in less stressful conditions, barge fleeters and owners and operators of mooring facilities bear significant responsibilities and corresponding liabilities.  In severe high water conditions such as we are now experiencing, these burdens indeed weigh heavily on those who attend to the vessels that frequent our ports.

Sloppy Pleading of Injured Worker Leads to Dismissal of Lawsuit

Plaintiff was working in the hold of a refrigerated cargo vessel that was berthed at the Port of Gloucester, NJ.  He injured his leg when it was crushed under machinery.  He filed suit in U.S. District Court in New Jersey and named eight companies as defendants.  The Complaint did not allege the specific roles of each defendant and instead generally plead that each company “owned, leased, operated, managed, possessed and/or controlled” the vessel.  Plaintiff lodged similar allegations regarding the defendants’ ownership and operation of the port.  Plaintiff cited three causes of action including negligence for violation of twenty-four duties, Section 905(b) of the LHWCA, and loss of consortium on behalf of Plaintiff’s spouse.


One Defendant filed a 12(b)(6) Motion to Dismiss, arguing the Complaint failed to provide notice of which particular claims were being lodged against it.  The Complaint merely lumped all defendants together and accused them of the same general negligent conduct.  The Defendant also argued the Complaint failed to include any factual basis that it owned the vessel, as required for a Section 905(b) claim.


After thoroughly reviewing the Complaint, the Court found that it failed to separate out the liability of each defendant.  The Court noted that if the Complaint had merely described the nature of each defendant company and what they were responsible for, it might have been possible to at least infer a theory of liability.  Instead,  Plaintiff had merely lumped all defendants together and asserted general allegations against broadly against the group.  The Court granted Defendant’s motion and dismissed the Complaint without prejudice.


Sheeran v. Blyth Shipholding

11th Circuit Excludes Plaintiff’s Expert on Human Walking Behavior

In Torres v. Carnival Corp., the Court was asked to determine whether Carnival Cruise lines created an unreasonably dangerous condition on the cruise ship, Carnival Splendor.  The case involved a plaintiff who was wearing platform shoes when she stumbled and fell, breaking her shoulder, as she was disembarking the cruise ship.  Plaintiff claimed her fall was caused by a raised threshold that had been partially hidden by a mat or similar material that disguised the raised surface.


Plaintiff hired a “human-factors engineer” to opine on the cause of the fall.  The expert testified that the height of the carpet affixed to the ramp where the accident occurred interrupted the “swing phase of Claimant’s foot” and caused her to fall.   Carnival moved to exclude the expert, and also moved for summary judgment as to the merits of the claim.  The motion to exclude was granted, as the judge stated that the expert testimony would unnecessarily complicate the case.  The judge explained, among other things, that the testimony would not be helpful, as jurors could readily comprehend the normal mechanics of walking and the various reasons that one might fall, including tripping on a rug or floor mat.  In addition, the district court determined that summary judgment was appropriate as the plaintiff could not prove that the cruise ship had breached its duty by creating a dangerous condition of which it was actually or constructively aware.


Plaintiff appealed to the U.S. Court of Appeals for the 11th Circuit.  The appellate court agreed that the human-factors expert was properly excluded, and upheld prior 11th Circuit precedent that exclusion of expert testimony regarding the causes of a fall is reasonable, as causes of a fall are “within the common knowledge of the jurors, and thus the probative value of such testimony is  outweighed by the danger of prejudice.”  The 11th Circuit further determined that plaintiff had failed to present any evidence that Carnival Cruise Lines had breached its duty to provide “ordinary and reasonable care under the circumstances.” Plaintiff was the sole passenger to experience trouble when crossing the disembarkation threshold, and admittedly was not paying attention as she walked over the threshold. The 11th Circuit held, without any showing that Carnival Cruise Lines’ negligence caused Plaintiff to stumble, the district court’s granting of summary judgment was appropriate.


Torres v. Carnival Corp.