M/V Marge McFarlin during lockage - Photo by Ingram Barge Company

In the early morning hours of January 19, 2012, the motor vessel Marge McFarlin and her 12-barge tow struck or “allided” with the Liberty Bridge located at mile 1.1 on the Monongahela River, Pittsburgh, Pennsylvania.  As a result, two barges from the tow broke free and were swept downriver.  One barge sank near the Fort Pitt Bridge while the other struck Consolidation Coal’s barge mooring facility at mile 0.1 on the Ohio River causing a Consol barge to break away as well.  The U.S. Coast Guard closed the Monongahela River from mile 0.0 to 1.2, and the Ohio River from mile 0.0 to 0.2 until salvage operations could be completed.

The 4300-horse power M/V Marge McFarlin is owned and operated by Ingram Barge Company of Nashville, Tennessee.  According to the U.S. Coast Guard, the cause of the incident is under investigation.

When a barge breaks away from a towboat that is “underway”, it is usually because the tow hits some drift (floating debris) or other obstruction, such as a bridge pier (this would be an “allision”).  An allision occurs when a moving object strikes a stationary object.  Depending on the force/severity of the allision, the wires holding the barges together as a unit can break and allow some or all of the barges to break away and be swept downriver.  If the barges are not corralled by a motor vessel, they will careen downriver striking bridges, pleasure boat, boat docks, dams, landings and possibly cause a chain reaction as the break-away barges hit other barges further down river.

Although there was one chain-reaction where the Consolidation Coal barge did break away, but fortunately, no one was injured.  However, several bridges in the city of Pittsburgh were closed to assure the structural integrity was not compromised.  The cause of the incident is under review by a maritime accident investigation by the U.S. Coast Guard.

Today, our inland rivers carry goods and commodities such as oil/fuel, coal, fly-ash, grain, sand, etc., which are all vital to our nation’s economic well-being.  The Monongahela, Allegheny and Ohio Rivers are part of that “water highway.”  As long as towboats are pushing barges on the rivers, there will be mishaps and barges will, from time to time, break away during tug boat accidents.

However, most, if not all, barge breakaways are preventable.  Unfortunately, safety standards and regulations and navigation rules are not always adhered to, which makes the risk of allision and barge break away much greater.

If you have been injured or your pleasure craft or dock damaged in a barge accident or towboat accident, contact our experienced barge and towboat injury lawyers at The Moschetta Law Firm, P.C. to learn your rights.

The inland rivers of America have been used for centuries as part of a transportation network.  Lewis & Clark used these “water highways” during their famous expedition in 1803, when they “put in” on the Ohio River in Pittsburgh, Pennsylvania.  They navigated the Mississippi and Wood Rivers before exploring the longest river in the U.S, the Missouri River.  Today, our inland rivers carry goods and commodities such as oil/fuel, coal, grain, sand, etc., which are all vital to our nation’s economic well-being.

However, the recent drought in the Midwest and resulting low levels in the Mississippi River has created cause for concern in the towing industry.  On July 26, 2012, the president of Pennsylvania-based Campbell Transportation Company / C&C Marine Maintenance Company was quoted in a story in the Observer-Reporter saying that the situation on the lower Mississippi River is dire.  He confirmed that towboat companies are reducing the amount of cargo in river barges for fear that they will run aground and break apart.  Barges that run aground can break free from their towing arrangements and be swept downriver potentially wreaking havoc to the river system until they are either corralled by towboats or salvaged if sunk.

Some break-away barges have damaged other commercial vessels, pleasure boats, dock facilities, bridges and dams, not to mention loss of life.  If run-away barges are carrying highly flammable liquids and carcinogens such as benzene (found in coal-tar light oil), home evacuations may be necessary due to the risk of explosion and exposure to toxic levels of cancer-causing chemicals.

Barge Accident

Barge damaged in breakaway in 2005 - Photo by U.S. Coast Guard

If you are a pleasure boater, know that the risk of barges breaking away not only exists in high water, but low water as well.  Barge accidents can happen at any time. Contact our experienced injury lawyers at The Moschetta Law Firm, P.C. to learn your rights if you have been injured or your pleasure boat or dock damaged by a barge accident or runaway towboat.

 

 

Deckhand/Seaman suffers Maritime Injury at Lock and Dam 13, Mississippi River, Underscores Dangers of Transiting Locks, Too Much Strain on Barge Lines and Ropes

Transiting a Lock and Dam with tows of barges can be very dangerous. There must be coordinated action and good communication between the captain of the towboat, his deckhands and the lockmaster, in order to transit the lock and dam safely. However, in some instances, a barge line or rope is placed under too much strain because the captain fails to keep the tow under control and at a proper speed when entering the lock chamber. The captain or another superior may give the deckhand or seaman improper and dangerous instructions. Other times, lock personnel may operate equipment used to pull the barges out of the lock (known as a “rabbit”) and propels the barges too fast so that the deckhand has great difficulty stopping the barges on the lock or land wall without breaking the line. This can result in a maritime injury due to a barge accident.

A recent article in the Clinton Herald newspaper (Clinton, Iowa)  underscores the dangers posed to deckhands when a towboat is attempting to transit a lock and dam. The newspaper reported that a deckhand was injured on June 4, 2012, while transiting Lock and Dam 13 on the Mississippi River near Fulton, Illinois. The Lockmaster at Lock and Dam 13 confirmed that a 1½ inch barge line (rope) broke striking a deckhand in the head causing severe injuries, the article said. The deckhand was apparently evacuated for medical treatment.

Lock and Dam 13 was first opened in 1939 and is operated by the U.S. Army Corps of Engineers. Lock and Dam 13 is 522.5 miles above the confluence of the Mississippi and Ohio rivers with dimensions of 110 by 600 feet with additional provisions for an auxiliary lock. It takes approximately 10 minutes to fill or empty the lock chamber, according to the U.S. Army Corps of Engineers. Before the lock chamber can be filled or emptied, the towboat and barges must enter the lock, the captain must slow the tow down in order for the deckhand to stop the barges and secure them to the lock wall with lines or ropes.

The line that failed at Lock and Dam 13 was likely either a hemp line or a synthetic rope called a “poly” line. Synthetic ropes are generally lighter than traditional hemp mooring lines. No matter the composition, when barge ropes or mooring lines are placed under too much strain, they can fail or “snap”. In short, lines and ropes all have a breaking point. The key is to stay clear of any line that is at or near its breaking point during a barge accident.

According to several of my clients who have been injured by a snapping barge line or rope, it sounds like a gun being discharged when the line actually breaks; and given the speed and force at which the line or rope is moving, anyone struck by it will feel like he was shot by a gun too.

Snapping barge lines have killed many deckhands and maimed countless others by amputating legs and arms. In other cases, a deckhand may be struck in the midsection and suffer internal injuries. For example, one of my clients was a newly hired deckhand – also known as a “greenhorn” or “green” deckhand – and had been incorrectly instructed to approach a timberhead to which a line was attached, but turned out was under strain. When the deckhand realized the line was about to break, he turned to run but the line snapped grazing his abdomen. The force of the impact opened a hole in his side as if cut by a surgeon’s scalpel. Fortunately, a fellow crewmember was able to push the deckhand’s innards back into his abdominal cavity and applied pressure to the wound until EMS personnel arrived. That crewmember probably saved my client’s life.

In all of these cases, the injuries to the deckhands were preventable had: (1) the towboat company instituted a thorough, rigorous training program for new deckhands; (2) required weekly safety meetings aboard the towboats; (3) the captain had maintained situational awareness (ie. knew the exact location of the deckhands/barges, during all stages of the lockage; or (4) the captain had not been in a hurry and properly navigated the tow of barges into the lock chamber, under control and at a proper speed.

In each case where we represented a deckhand injured by a snapping or breaking line, we filed lawsuits and were successful in recovering medical and hospital expenses and money for lost income, pain and suffering and disfigurement, because the towboat company and its officers failed to provide adequate training, a seaworthy vessel, competent and adequate crew and equipment (otherwise known as Jones Act negligence).

The unfortunate incident at Lock and Dam 13 on the Mississippi River on June 4th reminds of the importance of crewmember training, clear communication, and situation and navigation awareness by the captain of the towboat when entering or exiting a lock chamber. It also demonstrates that a failure on any of these levels can have serious and potentially life-threatening consequences. If you’ve experienced a similar incident, contact us about maritime injury.

Photo: Wikipedia

Stephen P. Moschetta was recently featured on the John Williams Talk Radio Show airing on WCCO, a CBS affiliate in Minneapolis, Minnesota, to discuss the Costa Concordia cruise ship disaster.

On January 13, 2012, the Costa Concordia, carrying over 4,000 passengers and crew, deviated from safe travel lanes and sank on a reef off the island of Giglios, Italy, after striking an underwater rock formation.

The Italian-flag cruise ship left the Civitavecchia port of Rome with 600 new passengers and had only been at sea for a few hours when it ran aground.  According to reports, the crew had not conducted the so-called “muster drill” for the passengers who just boarded.  Unfortunately, the safety drill was not scheduled until the following day.

The ship approached the island of Gilgio from the south but sailed too close to the coastline and struck a rocky reef a few hundred yards out.  Passengers report that the ship violently listed (tilted) and eventually capsized.

The master of the ship, Captain Francesco Schettino, is under house arrest and is under investigation for crimes including manslaughter.  The owner of the Concordia, Costa Cruises, a Carnival Cruise Lines company, has placed all blame on the captain claiming “human error” was the cause of the disaster.  However, it is difficult to imagine that Costa Cruises was unaware that the Concordia was so close to land given today’s technology.  Also, this disaster demonstrates the importance of crew training and safety policies.  For cruise ships sailing from ports in the United States, “muster drills” are the first order of business once all passengers are on board.  Cruise ship operators must promulgate policies and procedures to ensure the safety of all passengers while on the ship, and particularly during evacuations to life boats.

Photograph by WTAE, Pittsburgh

In the early morning hours of April 27, 2011, four (4) barges broke free from the Carl L. Johnson, which is operated by Consol Energy.  U.S. Coast Guard officials said the barges broke loose when a wire snapped as crewmembers were trying to face up (connect) to a barge.  While it has not been reported, in my opinion, the high water conditions likely played a role in the barge breakaway.

One barge owned by Marathon Ashland was carrying coal tar light oil which contains benzene, a hazardous and highly flammable substance, while the other three barges were jumbo open-hopper barges carrying non-flammable loads.  The chemical barge struck a railroad bridge near Neville  Island and became lodged there along with another barge.  A third barge carrying steel coils sank.  The fourth barge carrying coal slag continued down the Ohio  River until it struck the Emsworth Lock and Dam.
Fortunately, the U.S. Army Corps of Engineers in Pittsburgh was able to safely retrieve the chemical barge, with the help of several towing companies and their deckhands.  Given the highly flammable and toxic elements in the chemical barge, the Fleming Park Bridge that connects Neville Island to Stowe  Township was closed.  Nearby elementary and middle school students were dismissed early as a precaution in case of an explosion during the barge removal.  Specifically, officials were concerned that if the benzene ignited during the removal, the fumes –which contain carcinogens known to cause cancer and other respiratory problems – could affect the school populations.
During the retrieval of the chemical barge, crews of several towboats were clearly concerned about a potential explosion since they tied four other barges together end-on-end so they could reach the benzene barge and keep the motor vessels (known as towboats), which contain diesel fuel, as far as possible from the chemical barge.  Then, with a tow boat stationed at the other end of the barges, the vessel and her crew guided the benzene barge to safety.  The other two barges were rescued as well.  However, before the Coast Guard can arrange for a salvage company to safely lift the sunken barge from the river bottom, the stage of the river must drop considerably from flood stage.
Those of us who are involved in maritime litigation on the inland waters of the United States know that high water or “flood” conditions often produce barge break-away situations that can sometime result in damage to property along the rivers aside from the damage to the runaway barge.  Other times, deckhands or pleasure boaters are injured or killed.
The crewmembers aboard the Carl L. Johnson and other towboats involved in the rescue effort are called “deckhands.”  A deckhand is an ordinary seaman who assists in transiting barges or other vessels along the navigable waters of the United States.  The City of Pittsburgh and surrounding communities have considerable commercial maritime traffic aside from recreational boats (pleasure craft, jet-skis) given the Monongahela and Allegheny Rivers converge at the “the point” to create the Ohio River. The Port of Pittsburgh was recently ranked the fifth busiest inland port in the U.S. based on tonnage that moves through our area.  Products such as coal, fuel, sand, gravel and steel, are moved in and out of southwestern Pennsylvania by towboats crewed by deckhands.  The rivers provide a relatively inexpensively mode of transportation for these cargos.

In the early morning hours of April 27, 2011, four (4) barges broke free from the Carl L. Johnson, which is operated by Consol Energy.  U.S. Coast Guard officials said the barges broke loose when a wire snapped as crewmembers were trying to face up (connect) to a barge.  While it has not been reported, in my opinion, the high water conditions likely played a role in the barge breakaway.
One barge owned by Marathon Ashland was carrying coal tar light oil which contains benzene, a hazardous and highly flammable substance, while the other three barges were jumbo open-hopper barges carrying non-flammable loads.  The chemical barge struck a railroad bridge near Neville  Island and became lodged there along with another barge.  A third barge carrying steel coils sank.  The fourth barge carrying coal slag continued down the Ohio  River until it struck the Emsworth Lock and Dam.
Fortunately, the U.S. Army Corps of Engineers in Pittsburgh was able to safely retrieve the chemical barge, with the help of several towing companies and their deckhands.  Given the highly flammable and toxic elements in the chemical barge, the Fleming Park Bridge that connects Neville Island to Stowe  Township was closed.  Nearby elementary and middle school students were dismissed early as a precaution in case of an explosion during the barge removal.  Specifically, officials were concerned that if the benzene ignited during the removal, the fumes –which contain carcinogens known to cause cancer and other respiratory problems – could affect the school populations.
During the retrieval of the chemical barge, crews of several towboats were clearly concerned about a potential explosion since they tied four other barges together end-on-end so they could reach the benzene barge and keep the motor vessels (known as towboats), which contain diesel fuel, as far as possible from the chemical barge.  Then, with a tow boat stationed at the other end of the barges, the vessel and her crew guided the benzene barge to safety.  The other two barges were rescued as well.  However, before the Coast Guard can arrange for a salvage company to safely lift the sunken barge from the river bottom, the stage of the river must drop considerably from flood stage.
Those of us who are involved in maritime litigation on the inland waters of the United States know that high water or “flood” conditions often produce barge break-away situations that can sometime result in damage to property along the rivers aside from the damage to the runaway barge.  Other times, deckhands or pleasure boaters are injured or killed.
The crewmembers aboard the Carl L. Johnson and other towboats involved in the rescue effort are called “deckhands.”  A deckhand is an ordinary seaman who assists in transiting barges or other vessels along the navigable waters of the United States.  The City of Pittsburgh and surrounding communities have considerable commercial maritime traffic aside from recreational boats (pleasure craft, jet-skis) given the Monongahela and Allegheny Rivers converge at the “the point” to create the Ohio River. The Port of Pittsburgh was recently ranked the fifth busiest inland port in the U.S. based on tonnage that moves through our area.  Products such as coal, fuel, sand, gravel and steel, are moved in and out of southwestern Pennsylvania by towboats crewed by deckhands.  The rivers provide a relatively inexpensively mode of transportation for these cargos.

My wife and I vacationed in Cape Canaveral in November 2010, staying in a large condominium on the ocean front.  As part of my daily routine – trying to unwind from a year’s worth of stress – I would walk on the beach early each morning.

When I went to the beach on the morning of November 29th, I was shocked to see a massive cargo barge aground on the beach directly in front of our condominium. On further inspection, it was the Mobro 1210, a 144-foot uninspected cargo barge owned and operated Beyel Brothers Crane & Rigging Services of Cocoa Beach, Florida.

I later read in the Professional Mariner magazine (March 2011 Edition) that the Mobro 1210 was carrying spent shell casings from torpedo munitions and other U.S. Navy cargo when she separated from the tug boat Megan Beyel at 1:40 am on November 29, 2010, near the entrance to Port Canaveral. Apparently, the Mobro 1210 broke free roughly a quarter mile from the jetties marking the entrance to Port Canaveral.  According to a spokesman for the U.S. Coast Guard, winds were gusting as high as 25 mph, and a weather buoy reported 4-foot seas shortly before the incident.  The Megan Beyel and the Mobro 1210 were chartered through the U.S. Navy’s Military Sealift Command.  MSC operates noncombatant, civilian-crewed ships that, among others, support U.S. Navy ships and move military cargo and supplies used by deployed U.S. forces.

In any event, I finished my walk after I and other spectators gathered on the beach to witness the surreal site.  When I returned to the beach after lunch that day (around 2:00 pm), the barge was gone, having been refloated.

As a maritime lawyer on vacation, I was surprised to witness a maritime casualty which thankfully caused no damage to person, property or the environment.

- Joseph P. Moschetta

News: Two Missing After Boat-Barge Collide (NECN)

The National Transportation Safety Board is investigating the collision of a Ride the Ducks tour boat and a city-owned barge that injured eight people and killed two.  The incident occurred on the Delaware River near Philadelphia, Pennsylvania, on July 8, 2010.

According to the Associated Press, The Caribbean Sea, a tugboat owned by K-Sea Transportation Partners of East Brunswick, New Jersey, was directing the barge downriver on Wednesday afternoon.  At the same time, the Duck boat, carrying thirty-five passengers and two crew members, sat idly in the water, due to an engine fire, for about ten minutes before the collision.  All but two passengers survived.  The Coast Guard and NTSB are investigating the crews’ conduct before and after the collision, particularly, the Duck boat’s inspection history and the apparent mechanical problems.

CNN News Wire reported that searchers located the sunken boat about fifty feet below the river’s surface.  The investigation will continue in order to discover the reason for this incident; various causes should be explored including the failure of Ride the Ducks tours to provide a seaworthy vessel and the negligence of the K-Sea tugboat/barge operators.

. . . Various Navigational “Rules of the Road” Implicated.

Although the NTSB and media sources have focused primarily on the seaworthiness of the Duck boat (citing possible lack of maintenance, etc.), rare is the case that two vessels collide and there is not a reasonable argument that both vessels were at fault.

Assuming the Duck boat was disabled and adrift for about ten minutes prior to the collision (as reported), it seems likely that the barge/tugboat, operated by K-Sea Transportation Partners, violated several Inland Rules of Navigation intended to prevent collisions, including, among others:

The U.S. Coast Guard will be conducting an extensive investigation, which I assume will include a visibility analysis, to determine how the pilot/operator of the K-Sea Towing tugboat and barge (“The Resource”), failed to avoid colliding with the disabled Duck boat.

In Delaware River & Bay Authority v. Kopacz, ___ F.3d. ____ (3d Cir. Sept. 25, 2009), the U.S. Court of Appeals for the Third Circuit made clear that commuter seaman – those who eat and sleep on land each night – are entitled to “maintenance”. Kopacz was a seaman who commuted to work each day. In 2004, he suffered a back injury and was later deemed “unfit” for duty. Thus, he qualified for and received Sick and Accident benefits and thereafter, Long Term Disability benefits. He also applied for and was awarded Social Security Disability benefits.

Meanwhile, Employer did not make separate maintenance payments to Kopacz contending that he would receive a “double recovery” . Employer argued that Kopacz’s wages already enabled him to procure food and housing on land and that Social Security Disability and long-term disability payments adequately covered Kopacz’s living expenses.

The Third Circuit rejected this argument relying, in part, on its holding in Barnes v. Andover Company, L.P., 900 F.2d 630 (3d Cir. 1999), and the U.S. Supreme Court’s holding in Vaughan v. Atkinson, 369 U.S. 527, 532 (1962), in which it affirmed that seamen are “wards” of admiralty. In so holding, the Court declined to make exceptions to the shipowner’s duty to provide maintenance and cure.

The Third Circuit also determined that Employer could not offset the amount of maintenance based on the seaman’s receipt of long-term or Social Security Disability. See, Shaw v. Ohio River Company, 526 F.2d 193 (3d Cir. 1975). In sum, the Third Circuit in Kopacz made “explicit what was implicit in Barnes: commuter seamen enjoy the same right to maintenance as their blue water counterparts.”

According to a recent decision from the Benefits Review Board in R.C. v. Caleb Brett., L.L.C, BRBS No. 08-0741 (April 16, 2009), massage therapy was deemed compensable under Section 7 of the Longshore & Harbor Workers’ Compensation Act. Section 7(a) of the Act provides that an employer is liable for medical care and treatment related to the work injury. 33 U.S.C. §907(a). Meanwhile, 20 C.F.R. §702.404 states “The term physician includes . . . chiropractors. . . .. The term includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation shown by X-ray or clinical findings.”

In Caleb Brett, a chiropractor was the “treating doctor” under Section 702.404 who treated the claimant for subluxation of the spine. As the treating doctor, employer was liable to pay for the treatment provided or prescribed by the chiropractor. The chiropractor prescribed massage therapy and referred claimant to a massage therapist for that treatment. At trial, the chiropractor testified that massage therapy was vital to the recovery of the claimant’s subluxation. The Benefits Review Board reversed the trial judge and ruled that the applicable regulations dictated that the massage therapy was compensable treatment under Section 7, as well as reasonable and necessary for the treatment of a subluxation of claimant’s spine.

On June 25, 2009, in the case of Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009), the U.S. Supreme Court said “Yes”. In so holding, the Court resolved a conflict between the Eleventh Circuit Court of Appeals (which held punitive damages were available) and the Second, Third, Fifth and Ninth Circuits which found that they were not.

In Atlantic Sounding, Edgar Townsend was employed as a seaman aboard Atlantic Sounding’s Motor Tug Thomas when he injured his arm after falling on the deck. Atlantic Sounding refused to provide maintenance and cure even though Townsend was injured while in the service of a vessel. Townsend filed suit under the Jones Act and general maritime law alleging negligence, unseaworthiness and arbitrary and willful failure to pay maintenance, among others.

In its reasoning, the Court first acknowledged that punitive damages have long been available at common law for willful, wanton or outrageous conduct, and were first extended to claims under federal maritime law in 1893). See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 108, 13 S.Ct. 261, 37 L.Ed. 97 (1893). The Court observed that the maintenance and cure obligation dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employer to provide adequate medical care was the basis for awarding punitive damages in cases decided in the 1800’s. In fact, the Court registered its agreement with such decisions and has found that in addition to wages, “maintenance” includes food and lodging at the ship’s expense, and “cure” refers to medical treatment. Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). The Court noted that an owner’s failure to provide proper medical care for seamen has provided lower courts the impetus to award damages that appear to contain at least some punitive element.

The Court then turned its attention to and rejected arguments by Atlantic Soundings that the decision in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), which stated that damages for loss of society may not be recovered on a general maritime law wrongful death claim, was controlling. The Court distinguished Miles since that case did not address maintenance and cure actions in general, or the availability of punitive damages in such actions. Instead, the Court in Miles only considered whether the general maritime law should provide a cause of action for wrongful death based on unseaworthiness.

The Court also acknowledged that Congress has enacted no legislation precluding an award of punitive damages to a seaman whose employer willfully fails to pay maintenance and cure. What’s more, the Court has consistently found that the Jones Act preserves common-law causes of action such as maintenance and cure (The Arizona v. Anelich, 298 U. S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936)) and case law from the Supreme Court supports the view that punitive damages awards continue to remain available in maintenance and cure actions. See, Vaughan v. Atkinson, 369 U. S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)

The Court concluded that because punitive damages have long been an accepted remedy under general maritime law, and because neither the holding in Miles, nor the Jones Act altered this understanding, punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.

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