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Dakota, Minnesota & Eastern Railroad Corporation v. Ingram Barge Co.

United States Court of Appeals, Eighth Circuit

March 21, 2019

Dakota, Minnesota & Eastern Railroad Corporation and Soo Line Railroad Company d/b/a Canadian Pacific Railway Plaintiffs - Appellees
Ingram Barge Company Defendant-Appellant

          Submitted: January 17, 2019

          Appeal from United States District Court for the Northern District of Iowa - Dubuque

          Before BENTON, MELLOY, and KELLY, Circuit Judges.


         The M/V Aubrey B. Harwell Jr. (the Harwell), a towboat operated by Ingram Barge Company, was pushing empty barges up the Mississippi River when the barges struck the Sabula Railroad Bridge, owned by Dakota, Minnesota & Eastern Railroad Corporation (DM&E). DM&E sued Ingram for damages. Following a bench trial, the district court entered judgment in favor of DM&E for the full amount sought.[1]Ingram appeals. Because we conclude that the district court committed an error of law, we vacate the judgment and remand for further proceedings.


         The Secretary of War authorized the construction of the Sabula Railroad Bridge in 1880. To allow river traffic to pass, a portion of the Bridge rotates 90 degrees on a central pivot, producing two 154-foot-wide channels on either side. Protection piers extend north and south from the center of the Bridge; when the Bridge is in its open position, the Bridge's tracks rest above the piers separating the two channels. Northbound traffic ordinarily uses the east channel, and southbound traffic ordinarily uses the west channel. The typical barge arrangement on this portion of the river is approximately 105 feet wide, leaving under 25 feet of clearance on either side. Unsurprisingly, barge operators are sometimes unsuccessful at avoiding contact between their modern-sized tows and the centenarian Bridge. See generally I&M Rail Link, LLC v. Northstar Nav., Inc., 198 F.3d 1012 (7th Cir. 2000) (discussing a May 5, 1997, allision with the Bridge).

         On June 17, 1996, the United States Coast Guard issued an Order to Alter pursuant to the Truman-Hobbs Act, 33 U.S.C. §§ 511 et seq. The Order to Alter declared the Bridge to be an "unreasonable obstruction to the free navigation of the Upper Mississippi River" and directed the then-owner to reconstruct the Bridge to expand the horizontal clearance to at least 300 feet, approximately double its current width. Neither DM&E nor any prior owner of the Bridge took any action to complete such reconstruction.

         On April 24, 2015, the Harwell was traveling north on the Mississippi River. Hershey Dampier was steering under the supervision of pilot Tommy Hinton. Dampier was on his first trip as a licensed steersman but had traveled under the Bridge many times during his twelve years as a deckhand. He discussed the procedure for passing through the Bridge with Hinton prior to their approach. Because the wind was blowing from east to west, Hinton advised Dampier to keep the barges pointed to the right side of the eastern channel. About 300 or 400 feet from the Bridge, Dampier realized that the barges were too close to the protection pier on the left side. Dampier attempted to correct by steering further to the east but the barges allided with the protection pier, causing damage to the wooden structure and a maintenance platform. Dampier was not disciplined for the incident, and he has since piloted through the Bridge more than a dozen times without incident. DM&E's staff concluded that the damage to the protection pier required immediate repair to prevent the risk that another allision would damage the tracks and render the Bridge inoperable. Contractors completed the repairs at a cost of $276, 860.85. DM&E brought suit against Ingram to recover these repair costs.

         Following a bench trial, the district court concluded that no comparative fault could attach to DM&E absent evidence of a breach of a legal duty to expand the Bridge's horizontal clearance, and that the Order to Alter imposed no such duty. It apportioned all of the fault to Ingram and awarded DM&E the full amount of the repair costs plus prejudgment interest.


         We review findings of a district court's bench trial in admiralty cases, including negligence determinations, under a clearly erroneous standard. In re MO Barge Lines, Inc., 360 F.3d 885, 889 (8th Cir. 2004). We will overturn a factual finding as clearly erroneous "only if it is not supported by substantial evidence in the record, if it is based on an erroneous view of the law, or if we are left with the definite and firm conviction that an error was made." Urban Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008) (quoting Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 353 (8th Cir. 2008)). "In admiralty as in other contexts, however, we review purely legal determinations de novo." In re Am. Milling Co., 409 F.3d 1005, 1013 (8th Cir. 2005).

         As in any negligence case, the plaintiff in a maritime allision suit bears the burden of proof by a preponderance of the evidence. Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 212 (2d Cir. 2009). The plaintiff must prove essentially the same elements as a land-based negligence claim at common law: that the defendant breached a legal duty, causing the injury sustained by the plaintiff. See In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991) (per curiam); see also Evergreen Int'l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008). The duty of care owed by a moving vessel to a stationary object such as a bridge is reasonable care under the circumstances. Fischer v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007). Experience and common sense counsel that a moving vessel does not ordinarily strike a stationary object unless the vessel is mishandled in some way. Am. Milling, 409 F.3d at 1018. As such, the plaintiff in an allision case may invoke the Oregon rule, which creates a rebuttable presumption that a moving vessel breached its duty of care when it allides with a stationary object. Id. at 1012; Union Pac. R.R. Co. v. Kirby Inland Marine, Inc. of Miss., 296 F.3d 671, 673 (8th Cir. 2002); see The Oregon, 158 U.S. 186, 197 (1895). The Oregon presumption satisfies the plaintiff's prima facie case, shifting the burden of proof on issues of duty and breach to the defendant. City of Chicago v. M/V Morgan, 375 F.3d 563, 572-73 (7th Cir. 2004).

         To rebut the Oregon presumption, the moving vessel may prove one of three things: that "(1) the moving vessel used all reasonable care to avoid the [allision] and was therefore without fault, (2) the stationary object was at fault, or (3) the allision occurred because of an 'inevitable accident.'" Am. Milling, 409 F.3d at 1018 (quoting Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 (5th Cir. 1977)). One method of proving that the stationary object was at fault is through the Pennsylvania rule. See The Pennsylvania, 86 U.S. 125, 136 (1873). Under the Pennsylvania rule, "if there is a violation of a statute or regulation designed to prevent collisions, the burden shifts to the violator to prove that the violation was not a contributing cause of the accident." Am. Milling, 409 F.3d at 1012. "For the Pennsylvania rule to apply, three elements must exist: (1) proof by a preponderance of the evidence of violation of a statute or regulation that imposes a ...

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