[B]Case Name: [/B]In re Complaint of Vulcan Materials Company
[B]Date Decided: [/B]December 17, 2009
[B]Court: [/B]U.S.D.C. Eastern District of Virginia
[B]Judge: [/B]Judge Morgan Jr.
[B]Citation: [/B]2009 WL 4884017 (E.D.Va.)[B]Background:
[/B]This action arose from a wrongful death claim against Vulcan Materials Company. Currently before this Court is Vulcan’s claim for contribution against the United States.
Freddie N. Porter Jr. and fellow Navy personnel departed from a US Naval base in five rigid-hull inflatable boats for a navigation training exercise.
The training was a part of a two-week coxswain course that Porter, a land-based supply clerk, had volunteered to attend. Prior to leaving the Naval Base each of the boat’s crew completed a preoperation inspection, verifying that the boats’ running lights properly functioned.
The crew conducted another pre-operation inspection when darkness fell and again, verified that all the lights on the boats-including an all-around white light mounted next to the radar dome on the mast, and a set of green running lights mounted forward in the boats functioned properly.
For their return the crews were instructed to stay inside the shipping channel to minimize their chances of running aground or hitting obstacles such as crab pots. Prior to the return trip, each crewmember verified that they were wearing a functioning chemlight which would help rescuers spot them in case of an emergency.
Prior to Porter’s departure to return, Captain Rodney Wooldridge began heading upriver pushing a six-barge flotilla that was three barges long and two barges wide. After getting underway and one hour before sunset, the tug flotilla’s captain instructed a deckhand to position and illuminate the flotilla’s running lights.
The empty barges created a blind spot that extended about 600 feet forward of the flotilla’s bow at water level. The captain and his deckhand could not see the river or an object on the river depending on its height for some distance in front of the flotilla.
The shipping channel of the river, at the spot of the collision, was only 300 feet wide. Eventually, the navy personnel and the flotilla met in the same spot, the narrow shipping channel. Porter’s boat was struck by the flotilla as each crewmember jumped out of the boat in an attempt to avoid serious injury or death. Two of the boat’s crewmembers survived but Porter did not and was found washed ashore with propeller inflicted injuries. A state medical examiner concluded that Porter had been conscious until he received a final fatal blow to the head.
The tug captain and deckhand did not observe the chaos in front of them due to the blindspot. Porter had no dependants at the time of his death. The parties stipulated that the fair market value of the Poole (tugboat) was 1.5 million. The US made a death gratuity payment of 100,000 and also reimbursed Porter’s funeral and burial expenses in the amount of $7,000.
Vulcan, the owner of the POOLE, sought exoneration from or limitation of liability arising out of the collision.
[B]Issue:
[/B]Did this Court allow Vulcan to limit their liability and/or require the US to contribute to the judgment amount?
[B]Held:
[/B]First, the Court examined whether the US and Vulcan were negligent.
This Court found that both US and Vulcan were negligent. First, the US was negligence by operating an unseaworthy vessel by manning the boat with an incompetent crew. None of the crewmembers were properly prepared to operate the small craft in a busy shipping channel at night and even the safety observer had little experience on the water. The vessel also kept to the port side of the channel in violation of a Navigation Rule that requires vessels to stay on the starboard side of a channel. Moreover, the safety observer instructed the boat to be stopped in the middle of the channel. Finally, the Court noted had the crew used the radar equipped on the boat properly, it could have been lifesaving.
This Court also found Vulcan negligent for failure to provide a lookout. The following factors prompted the court to find that a lookout was necessary : Dark night, bad weather, narrow channel, a blind spot, and presence of small boat traffic.
Ultimately, this Court found that the US was 80% at fault and Vulcan was 20% at fault for Porter’s death.
The Court then examined whether Vulcan was entitled to limitation of liability. The Court noted that if a negligent act or condition could have been discovered by the shipowner through reasonable diligence the shipowner will be charged with knowledge. A vessel may not limit their liability if the shipowner had knowledge of the negligent acts or condition.
This Court found that Vulcan had knowledge and is not entitled to limit its liability. Vulcan should have known that a flotilla traveling through a narrow channel warranted a lookout.
The Court then examined whether Vulcan was entitled to contribution. First however, the Court had to determine whether the US had effectively waived their sovereign immunity. However, this Court found thet US has not waived its sovereign immunity to [I]Vulcan’s [/I]claim. Vulcan had no relationship with the government prior to the collision. Moreover, a trial in a case such as this would involve second guessing military orders and would require members of the Armed Services to testify in court to each other’s decisions and actions.
This Court found Vulcan Materialls to be jointly and severally liable for the wrongful death of Porter and granted judgment for the claimant in the amount of $1.2 million.
[B]Comment:
Third-party indemnity suits against the US is governed by the [I]Feres [/I]Doctrine. (Feres v. US 340 U.S. 135). Among the factors to be considered whether the indemnity suit may be brought against the US is the adverse effect on military discipline that would result if lawsuits challenging negligent orders or acts made or committed in the course of military duty were permitted. [/B]
[B]Here, the Court found that a trial would necessarily second guess the judgment of orders committed in the course of military and involve testimony for and against the orders. As such, this Court found that the indemnity claim could not be brought against the US. [/B]