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In re Complain of J.A.R.

February 28, 2007

IN THE MATTER OF THE COMPLAINT OF J.A.R. BARGE LINES, L.P., AS OWNER, AND MON RIVER TOWING, INC., AS OWNER PRO HAC VICE, OF THE M/V ROSE G., FOR EXONERATION FROM AND/OR LIMITATION OF LIABILITY COMPLAINT OF INGRAM BARGE COMPANY (AS TRANSFEREE) FROM MIDLAND ENTERPRISES LLC, AS OWNER OF BARGE OR FOR EXONERATION FROM AND/OR LIMITATION OF LIABILITY MARK ALLEN SMITH, PLAINTIFF,
v.
M/VBILL DYER, TRI-RIVER FLEETING & HARBOR SERVICE, AND TRI-RIVER MARINE, INC. DEFENDANTS
AND COMPLAINT OF TRI-RIVER MARINE, INC., AND TRI-RIVER FLEETING & HARBOR SERVICE FOR EXONERATION FROM AND/OR LIMITATION OF LIABILITY



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

MEMORANDUM OPINION

As ordered by the Court, Special Master Mark D. Shepard, Esq., filed a Report and Recommended Findings of Fact and Conclusions of Law Regarding Liability, Causation and Exoneration/Limitation of Liability (CA No. 03-163, Doc. No. 202,*fn1 "R&R") in the four cases captioned above. Subsequently, Mark Allen Smith and Mon River Towing, Inc.*fn2 ("Smith" and "Mon River," respectively), and Ingram Barge Company ("Ingram") filed objections to those recommendations. The remaining parties involved in these actions, Tri-River Marine, Inc., Tri-River Fleeting & Harbor Service, Inc., and the M/V Bill Dyer (collectively, "Tri-River") did not file objections. For the reasons discussed below, the objections by Smith and Mon River are overruled and the objections by Ingram are sustained.

I. BACKGROUND

A. Factual History*fn3

On January 21, 2003, Mark Allen Smith was employed as a lead deckhand for Mon

River, assigned to its harbor boat, the M/V Rose G. The captain of the Rose G. at that time was Leonard Kurowsky ("Kurowsky") and other deckhands included Shawn Becker ("Becker") and Michael Petrola ("Petrola"), all of whom were Mon River employees. Smith was an experienced deckhand who had worked intermittently for Mon River since 1997. He and the other crew members had been trained by their employer in performing their duties and in safety procedures according to the company's manuals and rules.

That evening, the Rose G. and its crew were performing fleeting and harbor duties for Ingram at its Dravosburg, Pennsylvania, facility at approximately Milepost 17 of the Monongahela River ("Dravosburg Landing"), where Ingram barges were cleaned and repaired. One of the Rose G.'s duties was to move empty coal barges from one part of the facility to another. Pursuant to a letter agreement between Mon River and Ingram dated January 16, 2003, as well as the customary practice of the parties, Ingram provided Kurowsky with a daily list of barges to move into certain positions in the fleet while Kurowsky and his crew were entirely in control of the operations involved in transferring the barges, e.g., how to position the Rose G., move the individual barges, and move fleets of barges. One of the procedures involved a maneuver referred to as "rounding-to," in which a barge is disconnected from the fleet, moved into the open part of the river, turned 180 degrees so that the end formerly pointing downriver faces upriver, and re-connected to the rest of the fleet. Smith, Kurowsky, and the other members of the Rose G. crew were all familiar with this procedure.

At about 9:30 p.m., Smith and Becker were working on a string of four barges, getting ready to move Ingram's Barge OR 4833 from the upriver end of a barge fleet moored at the Dravosburg Landing into position under (i.e., below) Barge T-13613 at the downriver end of the fleet. The areas on the barges where they were working were illuminated by spotlights and worklights on the Rose G. and each of the men had a flashlight. As the Rose G. began to move Barge 4833 downriver so it could begin the rounding-to procedure, Smith, who was standing with Becker at the front of the barge, noticed a towboat headed upriver, subsequently identified as the M/V Bill Dyer and owned by Tri-River Marine, Inc. Smith radioed Kurowsky about the Bill Dyer; Kurowsky in turn radioed that vessel advising it to pass at its discretion. Kurowsky then radioed Smith and instructed him to "catch a line" from Barge 4833 to Barge 13613 which was already in the moored fleet. Smith crossed the deck of Barge 4833 to the forward starboard corner to retrieve a line he had left there earlier. Meanwhile, Kurowsky moved Barge 4833 close enough for Becker to cross over to Barge 13613 and then to Barge 1416 so he could remove a line which would interfere with placing Barge 4833 into position. Smith put the eye of the line around a timberhead on the forward port corner of Barge 4833, then tossed a loop of line around a timberhead on Barge 13613, and radioed Kurowsky that he had "caught a line."

As the Rose G. began to swing Barge 4833 into position under Barge 13613, Smith realized his right foot was inside the coil of line still lying on the deck of Barge 4833. Before he could remove his foot from the coil or the eye of the line from around the timberhead, the line tightened around his leg. As the Rose G. moved backward some 10 to 15 feet, Smith was pulled into the river and up onto the freezing deck of Barge 13613. Becker saw what was happening and ran across the decks to Barge 13613 where he began to administer first aid to Smith's severely broken lower right leg. Becker also radioed Kurowsky that there was a man overboard; Kurowsky immediately took steps to stop any movement of the Rose G. and sounded the general alarm.

While waiting for emergency paramedics, Smith told Becker there were empty beer cans in his bunkroom on the Rose G., a violation of Mon River's zero-tolerance policy regarding drug and alcohol use on-board. Smith asked Becker to get rid of the cans and Becker passed the request along to Petrola who threw two empty cans into the river. Smith was taken by helicopter to Presbyterian Hospital in Pittsburgh, Pennsylvania, where his right leg was later amputated just below the knee. While in the hospital, Smith told Pamela and Eugene Miklaucic, drug and alcohol testing program administrators hired by Mon River, that he "should not have done what [he] did," that he "stepped on the wrong spot on the barge," and that the accident was his fault. Two days later, he told Mon River's Port Captain, Tim Watts ("Watts"), essentially the same thing.

B. Procedural History

Shortly after the accident, Smith filed a claim against Mon River for maintenance and cure. Both Mon River and Ingram soon filed actions for limitation of liability and/or exoneration, pursuant to 46 U.S.C. § 185. (See, respectively, In re J.A.R. Barge Lines, CA No. 03-163, and Complaint of Ingram Barge Co. et al., CA No. 03-180.) Smith filed as a claimant in those cases, asserting that he was a "Jones Act seaman" with regard to both the Rose G. and Barge 4833. Ingram filed as a claimant in Mon River's limitation action, contending that it was entitled to indemnification for any liability to Smith because Mon River had breached an implied duty of workmanlike performance. (Doc. No. 11.) Mon River in turn filed as a claimant in the Ingram case, demanding indemnification and reimbursement for maintenance and cure paid to Smith. (CA No. 03-180, Doc. No. 14, ¶ 6.)

Following a hearing on April 2, 2004, Smith and Mon River entered into a specific release and settlement agreement pursuant to Local Rule 17.2 in which Smith agreed to dismiss all claims against his employer in exchange for a cash settlement over and above his maintenance and cure. (Doc. No. 27.) The settlement agreement, however, also contained a clause which required Smith to defend and indemnify Mon River against the claims of Ingram and in any other litigation which might arise out of the accident.*fn4 Although Mon River attempted to be dismissed from the related cases, the Court declined to allow it to do so in light of Smith's pending claims against Ingram and Ingram's claim for indemnity against Mon River in the latter's suit for limitation of liability. (See hearing transcript, Doc. No. 32.)

Some sixteen months after the accident, on May 19, 2004, Smith filed suit against the Tri-River parties,*fn5 claiming that the Bill Dyer had been negligent and/or unseaworthy in that when the accident occurred, it was navigating without lights and had passed at an unsafe distance from the Rose G. without proper warning. The hydraulic displacement*fn6 caused by this unsafe passage pulled the Rose G. and the barge downriver, thereby contributing to his injury. Among other claims, Smith alleged that the Bill Dyer failed to send radio signals as required by the rules of inland navigation,*fn7 the crew was untrained, and the boat failed to keep a proper lookout. (See Smith v. M/V Bill Dyer et al., CA No. 04-753.) Tri-River consequently filed its own complaint for exoneration or limitation of liability on October 21, 2004.*fn8 (See Complaint of Tri-River Marine, Inc., et al., CA No. 04-1611.) Smith filed as a claimant in the Tri-River limitation action, setting out essentially the same allegations as in his suit against those parties. Ingram also filed as a claimant in the Tri-River action, asserting a claim for contribution and/or indemnity. (CA No. 04-1611, Doc. No. 7.) Tri-River responded by filing as a claimant in the Ingram action, asserting similar claims. (CA No. 03-180, Doc. No. 33.)

A case management order signed by Judge William L. Standish on November 18, 2004, consolidated the four cases for purposes of discovery. While discovery was proceeding, oversight of these cases (along with some 89 others) was temporarily assigned by Chief Judge Donetta W. Ambrose to the undersigned due to Judge Standish's ill health. A joint status conference was held on March 1, 2006, at which the parties were unable to arrive at settlement terms. They did agree, however, to proceed before a Special Master pursuant to Federal Rule of Civil Procedure 53(A) for the purpose of hearing arguments and evidence of the parties.*fn9 An Order of Court appointing Mark D. Shepard, Esq., as Special Master was entered on March 2, 2006 (Doc. No. 112), and the cases consolidated for all purposes on March 30, 2006 (Doc. No. 230.) The consolidated cases were permanently assigned to the undersigned by Order of Chief Judge Ambrose on February 28, 2007. (Doc. No. 253.)

From July 17 to July 21, 2006, Special Master Shepard conducted an evidentiary hearing on the questions of liability, causation, and exoneration. The parties also submitted pre- and post-hearing memoranda of law and proposed findings of fact. On September 20, 2006, the Special Master issued his Report and Recommended Findings of Fact and Conclusions of Law discussed in more detail below. Pursuant to an Order of Court, each party was directed to file its objections, if any, to the Special Master's R&R, and their responses, if any to those objections. (Doc. No. 203.) The parties having complied with those directives, the matter is now ripe for review by the Court.

C. Jurisdiction and Venue

Article III § 2 of the United States Constitution vests federal courts with jurisdiction over cases based in admiralty and maritime law. Lewis v. Lewis and Clark Marine, Inc., 531 U.S. 438, 443 (2001); see also 28 U.S.C. § 1333. This Court has jurisdiction over the three complaints for exoneration from and/or limitation of liability pursuant to its admiralty and maritime jurisdiction and Federal Rule of Civil Procedure 9(h) as well as the Vessel Owners Limitation of Liability Act, 46 U.S.C. § 30511 (formerly 46 U.S.C. § 185 ), and Rule F of the Federal Rules of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime Claims ("Admiralty Rules.")

Smith contends that the Court has jurisdiction over his suit against Tri-River pursuant to 46 U.S.C. § 688,*fn10 "the Jones Act," 28 U.S.C. § 1332, and/or 28 U.S.C. § 1333. (See CA No. 04-753, Complaint, ¶ 5.) The Court disagrees that jurisdiction is provided by 28 U.S.C. § 1332 inasmuch as there is no diversity between Smith and the Tri-River parties, all of which are citizens of Pennsylvania. 28 U.S.C. § 1332(a)(1) and (c)(1). Therefore, the Court concludes Smith's claims are cognizable only as admiralty or maritime claims. Fed. R. Civ. P. 9(h).

Venue is proper in this District pursuant to Admiralty Rule F(9) inasmuch as this is the district in which the parties seeking to limit liability chose to file their actions. Smith's suit against Tri-River is properly brought here inasmuch as the underlying events took place in the Western District of Pennsylvania.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 53 provides the standard for this Court to apply in its review of the Special Master's Report and Recommendations. Under that Rule, the Court reviews de novo the Special Master's findings of fact unless the parties have stipulated to another standard, an exception not applicable here. Fed.R.Civ.P. 53(g)(3). Conclusions of law recommended by the Master are also subject to de novo review. Id., Rule 53(g)(4). This Court must afford the parties an opportunity to be heard and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit the matter to the Special Master with instructions. Id., Rule 53(g)(1).

III. PRELIMINARY ISSUES

As a preliminary matter, the Court considers Smith's claims that (1) he is entitled to a jury trial on the matters addressed herein*fn11 and (2) he and Mon River did not agree to proceed before the Special Master for any purpose other than organizing matters prior to a jury trial. (See Doc. No. 134, Renewed Motion for a Jury Trial and Objection to the Use of a Special Master; Doc. No. 135, Memorandum in Support of Renewed Motion for a Jury Trial and Objection to the Use of a Special Master ("Renewed Mot. Memo"); and Doc. No. 207, Amendment to Smith and Mon River Towing's Memorandum in Support of Renewed Motion for a Jury Trial and Objection to the Use of a Special Master.)

A. Right to a Jury Trial

On January 22, 2004, upon motions by Ingram and Mon River, the Court concluded that Smith was not entitled to a jury trial on the claims he had raised in the suits brought by those entities for exoneration and/or limitation of liability.*fn12 In the Matter of the Complaint of J.A.R. Barge Lines, 307 F. Supp.2d 668 (W.D. Pa. 2004). The Court found it was universally agreed that a jury trial was not available as a rule for claimants in suits brought by vessel owners seeking exoneration or limitation of liability. Id. at 673-674; see also Pickle v. Char Lee Seafood, Inc., 174 F.3d 444, 450 (4th Cir. 1999) ("Insofar as claimants proceed in a limitation-of-liability action, they are not entitled to a trial by jury, even if the basis of their claim for fault is made under the Jones Act"), and Complaint of Consolidation Coal Co., 123 F.3d 126, 131-132 (3d Cir. 1997), discussing two exceptions to this rule which are not applicable here.

On April 5, 2006, more than a month after the Court entered its order pursuant to Fed.R.Civ. P. 53, Smith renewed his motion for a jury trial, arguing as he had earlier, that "when matters tried to a judge in common law and matters tried to a jury by modern Congressional statute meet in a single case, the court should order a trial by jury to resolve said conflict." (Renewed Mot. Memo at 2.) Smith argued that after the Court's previous decision, he filed a separate proceeding against Tri-River under the Jones Act. Citing Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963), and Romero v. Bethlehem Steel Corp., 515 F.2d 1249 (5th Cir. 1975), Smith argued that "[b]ecause this Court has seen fit to consolidate all matters into one proceeding, Plaintiff's jury trial is sandwiched between two cases that have been ordered triable by a judge and a fourth that has never been formally ordered one way or the other," referring apparently to the complaint for exoneration and/or limitation of liability by Tri-River. (Renewed Mot. Memo at 3.)

As noted above, after Smith filed suit against the Tri-River parties on May 19, 2004, Tri-River filed its own complaint for exoneration and/or limitation of liability. The Court finds no reason to revisit its conclusion that despite Smith's demand for a jury trial for the claims he filed in TriRiver's limitation of liability action, a jury trial is not available in such actions. However, the Court will discuss the jury demand made in Smith's own suit against Tri-River.

In his suit, Smith alleged that negligence and unseaworthiness on the part of the Bill Dyer caused or contributed to the severity of his accident. Smith's suit was brought under "general admiralty and maritime negligence," as well as under the Jones Act. The Jones Act provides that a seaman who sustains personal injury in the course of his employment may maintain an action against his employer for damages at law, with the right to trial by jury. See 46 U.S.C. § 30104. This right to a jury trial, created by the "saving to suitors" clause of 28 U.S.C. § 1333, creates a conflict with the general rule that a court sitting in admiralty will hear the proceedings without a jury. See Gorman v. Cerasia, 2 F.3d 519, 524 (3d Cir. 1993). However, the threshold question here is whether Smith can establish an employment relationship with the Bill Dyer or the Tri-River corporations. If Smith cannot establish such a relationship, his negligence and unseaworthiness claims against Tri-River may be brought only under general admiralty and maritime law, thereby excluding the right to a jury trial.

In his Report and Recommendations, the Special Master first summarized the factors which pertain to a claim that a vessel owner has breached the absolute and non-delegatable duty of providing a Jones Act seaman with a seaworthy vessel. (Conclusions of Law 2-3.) In Conclusion of Law 4, the Special Master found Smith's claim that he was a seaman with regard to the Bill Dyer necessarily failed as a matter of law.*fn13 (See also Finding of Fact 5, note 2, to which Smith does not object.)

The Jones Act requires a plaintiff seeking recovery for injuries caused in whole or in part by maritime negligence to establish his status as a seaman, that is, "an employment relationship, either with the owner of the vessel or with some other employer who assigned the employee to a task creating the proper connection with a vessel." Brogan v. United N.Y. Sandy Hook Pilots' Ass'n, Inc., et al., 213 F. Supp.2d 432, 435 (D. N.J. 2002). The Supreme Court has identified two "essential requirements" for seaman status: (1) the "employee's duties must contribute to the function of the vessel or to the accomplishment of its mission;" and (2) the employee must establish that he has a "connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (internal quotations and citations omitted). The question of whether an individual is a seaman with regard to a certain vessel "is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury." Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997). Even so, where there is no evidence from which reasonable persons might draw conflicting inferences on either of the elements of the seaman test, the court may decide the issue as a matter of law. Chandris, 515 U.S. at 369 ("On the other hand, if reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question [of fact]"); see also Bernard v. Binnings Constr. Co., 741 F.2d 824, 828 (5th Cir. 1984), and James v. Wards Cove Packing Co., No. 05-35337, 2006 U.S. App. LEXIS 29852, *3-*4 (9th Cir. 2006), in which courts determined seaman status under the Jones Act in deciding motions for summary judgment.

The first prong of the Chandris test focuses on the type of employment in which the plaintiff was engaged when he was injured. While the plaintiff does not need to be involved "in navigation or contribute to the transportation of the vessel," he "must be doing the ship's work." McDermott Int'l v. Wilander, 498 U.S. 337, 355 (1991). The second prong focuses on the employee's status vis-a-vis a particular vessel, most usually based on where the injury took place and why the employee was working at that location. The "total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the . . . vessels." Chandris, 515 U.S. at 370 (internal quotation omitted).

In his objections to the Special Master's Report and Recommendations,*fn14 Smith argues the Rose G. and the Bill Dyer were both were in the service of Ingram, performing commercial operations under contract for Ingram's profit. (Mark Allen Smith and Mon River Towing, Inc.'s Objections to Report and Recommendations, Doc. No. 212, at 11.) Therefore, Smith's undisputed status as a seaman with regard to the Rose G. caused him to be "connected to, and by proxy," in the service of the Bill Dyer. (Id.) No citation to law is offered to support this "proxy" argument and the Court's independent research has failed to discover such support.

Smith does not deny that throughout this litigation, he has consistently claimed his employer at the time of the accident was Mon River, nor has he denied that Mon River paid full maintenance and cure to him. That does not end the inquiry, however, because at least one Court of Appeals has recognized it is possible for a seaman to have more than one employer for purposes of the Jones Act. See Spinks v. Chevron Oil Co., 507 F.2d 216, 224-226 (5th Cir. 1975), overruled on other grounds by Gautreaux v. Scurlock Marine, 107 F.3d 331, 339 (5th Cir. 1997). For instance, a third party such as Tri-River or the Bill Dyer could have become Smith's employer by "borrowing" him and assuming control over his work. See Gaudet v. Exxon Corp., 562 F.2d 351, 355-356 (5th Cir. 1977), setting out a nine-factor test to determine the employer for purposes of the Jones Act.*fn15

Whether a person is a borrowed servant constitutes an issue of law for the district court to determine. Melancon v. Amoco Production Co., 834 F.2d 1238, 1244 (5th Cir. 1988). The Court need not consider the Gaudet factors in detail, however, because Smith has provided absolutely no evidence to support a finding that his work was controlled by Tri-River or the Bill Dyer.

In ascertaining whether a seaman has a substantial connection to a vessel in navigation -- the second prong of the Chandris test -- the Supreme Court has broadened the category from a relationship with just one vessel to include "an identifiable group of . . . vessels." Chandris, 515 U.S. at 368. There is no evidence of any connection between the Rose G. and the Bill Dyer which would put them into an identifiable group of vessels other than the fact that both Mon River and Tri-River had entered into contracts with Ingram. The two vessels were owned and operated by separate companies and performed different functions for Ingram, i.e., the Rose G. was the harbor boat at the Dravosburg Landing, responsible for servicing Ingram customers in the area, building tows for line boats using the Landing, and moving barges, while the contract between Ingram and Tri-River provided that the Bill Dyer would be engaged in towing barges only. (Transcript of Hearing, Doc. No. 252, "Tr.," at 63, 1311-1312, and Tri-River Exhibit N.) Both Kurowsky and Charles Fey ("Fey"), the captain of the Bill Dyer, testified at the hearing that they did not know each other prior to this litigation other than by radio communication. (Tr. 385, 456.) There is no evidence which would establish a relationship between Smith and the Bill Dyer except that Smith recognized the vessel because it worked in the area of the Dravosburg Landing; Fey testified that he had never met Smith prior to this litigation. (Tr. 358.) Nor does Smith explain how his work aboard the Rose G. contributed to the function or completion of the mission of the Bill Dyer or how Tri-River controlled the work he performed. Finally, this Court has been unable to identify any reported opinion in which an employee of one shipowner has been deemed to be a seaman affiliated with another shipowner simply because both shipowners have been engaged by a third entity to perform similar tasks.

Based on Smith's failure to come forward with any evidence to support a Jones Act relationship between the Bill Dyer and himself, the Court therefore affirms the Special Master's conclusion of law that Smith was not a Jones Act seaman vis-a-vis the Tri-River parties. Consequently, he has no right to a jury trial on the matters raised in his suit against them.

B. Objection to the Scope of the Proceedings before the Special Master

Smith and Mon River claim that at the March 1, 2006, settlement conference, "It was not made clear . . . that the Special Master appointed in this case was to hear evidence and oversee witness testimony, functions which Smith's counsel asserts - and always has asserted -- is the province of the jury in this matter." (Renewed Mot. Memo at 3.) In an amendment to this motion (Doc. No. 207), filed on September 29, 2006, they again argue that they did not consent to an evidentiary hearing or a trial before the Special Master and that appointment of the Special Master for an evidentiary hearing is void under Federal Rule of Civil Procedure 53 without such consent. (Id. at 2.)

According to Smith and Mon River, the federal rules provide that a special master may be appointed to hold trial proceedings only when (1) counsel consent to such proceedings or (2) there is some exceptional condition or need to perform difficult damage computation. They argue that these cases could only be referred to a Special Master for trial proceedings with their consent, which has not been given. They contend that during the March 1, 2006, settlement conference, the Court led them to believe the Special Master would not conduct trial proceedings, contrary to the pre-trial order entered by the Court on March 2, 2006. Smith and Mon River assert that they believed the role of the Special Master would be limited to seeing that pre-trial matters were timely organized for presentation to Court at the scheduled trial date.*fn16

The Court Order of March 2, 2006 clearly stated that it was appointing with the consent of the parties, Mark Shepard to serve as Special Master, pursuant to Federal Rule of Civil Procedure 53, for the purpose of hearing arguments and evidence of the parties and preparing a Report and Recommendations for submission to the Court. (Pre-Trial Order (Non-Jury Trial), Doc. No. 112.)

Smith and Mon River's argument that they did not understand the extent of the Special Master's authority is undercut by several actions they took (or failed to take) in the period between March 2 and September 20, 2006, when the Special Master issued his report. On March 7, 2006, they filed a motion for clarification of the Pre-Trial Order concerning expert witness reports, but did not request clarification of the purpose of the hearings before the Special Master. The scope of the Special Master's responsibilities was further reinforced when Smith and Mon River submitted motions for summary judgment to the Court on March 13, 2006, only to withdraw them when they realized they had "misinterpreted" the Court's Pre-Trial Order and should have submitted them to the Master. The same order established dates by which the parties were to provide witness lists, file motions in limine, etc. At least two of those actions by Smith and Mon River, namely, providing their list of trial witnesses and their proposed findings of fact and conclusions of law to the Special Master and opposing counsel, were to have been completed by March 24, 2006. There is nothing from which to conclude that they did not meet those assigned deadlines. If then, it was true that Smith and Mon River did not understand at the settlement conference that the Special Master was to "hear evidence and oversee witness testimony," the scope of his responsibilities should have been abundantly clear before they filed their demand for a jury trial and objection to proceeding before the Special Master on April 5, 2006.*fn17

In its response, Tri-River points out that whether or not Smith and Mon River understood the scope of the Special Master's duties in March 2006, they waived any objections to such proceedings by their full participation and failure to renew their objection in a timely manner. For example, Tri-River asserts (without refutation) that Smith and Mon River participated in at least two pre-hearing conferences on May 11 and June 29, 2006. In particular, when asked at the second conference if there were any other unresolved matters to be addressed before the hearing, Smith and Mon River did not mention their outstanding demand for a jury trial and objections to proceeding before the Special Master. (Response of Tri-River . . . to Amendment of Smith and Mon River Towing's Memorandum in Support of Renewed Motion for a Jury Trial and Objection to Use of a Special Master, Doc. No. 209, at 3.) Despite Smith's arguments that he and Mon River had no choice but to attend the hearing and faithfully try their case or risk contempt of Court, the Court agrees with Tri-River that by continued participation in the proceedings before the Special Master, Smith and Mon River waived any objections thereto.

IV. SUMMARY OF THE SPECIAL MASTER'S RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Findings of Fact

Most of the relevant facts have been summarized above in the history of the accident. Briefly stated, the Special Master made the following additional findings of fact concerning the events of January 21, 2003.

1. Conditions at Ingram's Dravosburg Landing and on Barge 4833: Contrary to arguments raised by Smith and Mon River, Ingram was not subject to lighting standards established by the Occupational Safety & Health Administration ("OSHA") because "cargo handling operations" at the facility, i.e., removal of coal residue from barges as they came into the Landing to be cleaned (see Tr. 28, 60), did not take place at night. Consequently, Ingram had no legal or statutory duty to provide lighting in addition to that provided by towboats whose crews performed night-time fleeting operations. Moreover, Smith and Mon River failed to offer sufficient credible evidence to establish that the allegedly inadequate lighting at the Dravosburg Landing was a substantial contributing cause of Smith's accident and injuries. Nor was there sufficient evidence to support a finding that "junk lines"*fn18 on the deck of Barge 4833 contributed to the accident as alleged. (Findings of Fact 38-49.)

2. Mon River's Rehiring of Smith: Smith was originally hired as a deckhand in 1997, but fired after he failed a random drug test in May 1999. In October 2001, Watts interviewed Smith again and decided to rehire him. Despite a criminal background check performed prior to rehiring Smith which revealed a conviction for driving under the influence in February 2001, given his previous satisfactory performance for the company in 1997-1999 and the fact that he had successfully undergone drug screening as part of the rehiring process, Mon River was not negligent in rehiring Smith as a lead deckhand. (Findings of Fact 50-54.)

3. Actions of the Bill Dyer: Although there was disputed and conflicting testimony about whether the Bill Dyer's running lights and/or radio were operational at the time it passed the Rose G. and the barges, there is no dispute that (1) Smith was aware of the passing towboat, (2) Kurowsky was aware of the Bill Dyer and radioed that it could proceed at its discretion, and (3) Fey spoke by radio with Kurowsky about the accident later that night. More importantly, although the passing of the Bill Dyer could have contributed to the downriver movement of the Rose G., both Kurowsky and Smith, based on their past experience, were familiar with the hydraulic effect of passing vessels on the movement of a towboat or barge. Finally, there was no evidence to support a finding that the Bill Dyer proceeded at an excessive speed or otherwise created an abnormal wake or hydraulic displacement as it passed the Rose G. (Findings of Fact 21, 22, 27, 28.)

B. Conclusions of Law

The Special Master also recommended the following conclusions of law:*fn19

1. Smith's Jones Act Claims against the Bill Dyer and Tri-River: In order to assert a claim that the owner of a vessel violated its absolute duty to provide a seaworthy vessel for its crew, the claimant must quality as a seaman with respect to the allegedly unseaworthy vessel. Smith, as a matter of law, cannot assert an unseaworthiness claim against Tri-River Marine as the owner, nor against Tri-River Fleeting & Harbor Service as the owner pro hac vice, of the Bill Dyer because he failed to satisfy the two-prong Chandris test for qualifying as a seaman with respect to that vessel. (Conclusions of Law 1-4.)

2. Smith's Jones Act Claims against Ingram: Although Smith's possible status as a seaman with regard to the Ingram barges which were regularly moved by the Rose G. is a closer question, it is not necessary to address this issue because there was insufficient evidence to show that Barge 4833 was unseaworthy at the time of his accident, i.e., that it and its ...


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