*1 This matter came before this Court for trial without a jury on January 28, 2019 through January 30, 2019. The Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1333, which confers on the federal district courts original jurisdiction over admiralty and maritime claims. Venue is proper in this Court under 28 U.S.C. § 1391(b), as the allision at issue in this action occurred in this district. The substantive law applicable to this case is the general maritime law of the United States.

The Court has carefully considered the testimony of all of the witnesses and the exhibits entered into evidence during the trial, as well as the record. After reviewing all of the evidence and pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts it as such and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts it as such.

This case involves an allision that occurred between a barge and barge fleet on February 9, 2016 and a subsequent breakaway of additional barges that occurred on February 10, 2016.[1] Plaintiffs Cooper/T. Smith Stevedoring Company, Inc. and Cooper Consolidated, LLC (collectively, “Cooper”) own and operate a barge fleeting facility located near Mississippi River mile 180 in Darrow, Louisiana.[2] Defendant Empire King Navigation, Inc. (“Empire”), owns the vessel M/V AGAPI S, which was operated by Bright Navigation, Inc. (“Bright”).[3] Cooper alleges that on February 9, 2016, the master and crew of the AGAPI S lost control of the vessel, which caused an allision and grounding in the Cooper Darrow Fleet.[4] Further, Cooper alleges that subsequent to the allision and grounding, and during efforts to refloat the AGAPI S, multiple barges broke away from barge block four of Cooper's fleet.[5] Cooper claims that as a result of the incident, Cooper suffered significant physical and economic damages directly and proximately caused by the negligent navigation of the AGAPI S.[6] Empire does not dispute that the AGAPI S made contact with Cooper's fleet, but argues that the breakaway was unrelated to the allision.[7]

Plaintiffs ms “Provence” Schiffahrtsgesellschaft mbH & Co. KG and FH Bertling Reederei GmbH (collectively, “Provence”) own and manage another vessel, the M/V SOLENT.[8] Provence alleges that the breakaway from Cooper's fleet caused one or more of the barges from block four to strike the SOLENT, which was moored near the fleet.[9] Provence adopts the allegations of fault made by the other parties and requests damages from whichever party is ultimately held liable.[10]

*2 On February 10, 2017, Cooper filed a complaint in this Court against Bright Navigation, Inc., in personam, and the AGAPI S, in rem.[11] On July 21, 2017, Empire King Navigation, Inc. filed an answer to the complaint as the owner of the AGAPI S.[12]

On February 10, 2017, Provence filed a complaint in the Middle District of Louisiana against Cooper Consolidated, LLC, Bright Navigation, Inc., Empire King Navigation, Inc., RTI Barge Management, Inc., Cargill, Incorporated (incorrectly identified as Cargo Carriers), and SCF Marine, Inc.[13] On May 30, 2017, the case filed by Provence was transferred to this Court,[14] and on June 22, 2017, it was consolidated with the original case filed by Cooper.[15]

On December 5, 2017, Cooper Consolidated, LLC, Cargill, Incorporated, RTI Barge Management, Inc., and SCF Marine, Inc. answered the complaint of Provence, and filed a cross-claim against Bright, Empire, and the AGAPI S.[16] On December 11, 2017, Empire answered the complaint of Provence and the cross-claim.[17] On March 13, 2018, all claims against Bright were dismissed without prejudice for failure to prosecute.[18]

A trial without a jury was held from January 28, 2019 through January 30, 2016.[19] On February 11, 2019, the parties filed post-trial briefing.[20]

The parties agreed to many of the facts relevant to the Court's judgment in this trial when the parties submitted their uncontested facts in the joint pre-trial order submitted into the record.[21] The Court will note which facts the parties agreed to in the Court's citations herein.

Cooper/T. Smith Stevedoring Company, Inc. is a corporation with its principal place of business in Louisiana.[22] Cooper Consolidated, LLC is a limited liability company with its principal place of business in Louisiana.[23] Ms. “Provence” Schiffahrtsgesellschaft mbH & Co. KG and FH Bertling Reederei GmbH are non-US corporations.[24] Empire King Navigation, Inc. is a corporation with its principal place of business in Liberia.[25]

RTI Barge Management, Inc., Cargill, Inc., and SCF Marine, Inc. (collectively, “Barge Owners”) are the owners of the barges RTI 430, CC 95538B, CC 95152, CC 1501, AGS 194, PML 910, PML 930, SCF 26151B, SCF 14143B, SCF 24162B, SCF 24028, BUNGE 14003, and JIMBO 327B, which broke away from the Cooper Darrow Fleet during the February 9–10, 2016 incident.[26]

Cooper owns and operates a barge fleeting facility, the Cooper Darrow Fleet, located near Mississippi River mile 180 in Darrow, Louisiana.[27] The Cooper Darrow Fleet is composed of six barge blocks moored mid-stream along the left descending bank of the Mississippi River, with “block one” being the furthest upriver.[28] The barge blocks are secured to a single anchor point, which is connected to a permanently moored barge called the “block barge.”[29] Fleeted barges are connected to the port, starboard, and aft side of the block barge.[30]

*3 Empire owns the AGAPI S, an ocean-going bulk carrier of 37,215 gross tons, 680.77 feet in length.[31] At all pertinent times, the AGAPI S was seaworthy and no evidence exists to suggest there were any mechanical issues with the vessel.[32]

Prior to the allision, approximately 54 ocean-going vessels and barge tows transited the area of the Mississippi River near mile 175 between February 9, 2016 and February 10, 2016.[33] On February 9, 2016 and February 10, 2016, the Mississippi River was at 11.2 feet on the Carrollton gage, near flood level.[34]

On the evening of February 9, 2016, at approximately 22:15-22:20 local time (“LT”), the AGAPI S was navigating down bound on the Mississippi River in the area of 81-mile point with a licensed New Orleans Baton Rouge Steamship Association (NOBRA) pilot, Capt. Aubrey Spreen (“Capt. Spreen”), on her bridge and one assist tug, the M/V MISSISSIPPI, alongside.[35]

At approximately 22:00 LT, the master and pilot of the AGAPI S lost control of the ship due to a strong current.[36] In an attempt to control the AGAPI S, the pilot attempted a “top-around” maneuver so that the bow of the Vessel faced upriver and dropped anchor.[37] At approximately 22:45 LT, the AGAPI S drifted downriver and struck the barge CHB 9952B on the outermost side of block one of the Cooper Darrow Fleet.[38] The barge CHB 9952B sustained damage as a result of the impact by the AGAPI S.[39] At this time, the AGAPI S became grounded on the bank of the Mississippi River.[40]

Harbor tugs M/V VERA BISSO and M/V BEVERLY, M/V MISSISSIPPI arrived to assist in refloating the AGAPI S.[41] Harbor tugs M/V BARBARA, M/V CLAUDE R, M/V NATURES WAY COMMANDER, M/V VINCENT J. EYMARD, M/V MISS KIM and M/V JOANNE C responded to the allision by holding block one together and ensuring no additional allision with the AGAPI S occurred during the refloating operations.[42] The AGAPI S was refloated at approximately 04:02 LT on February 10, 2019.[43]

During the refloating efforts, prior to the breakaway at block four, the Master of the AGAPI S did not see or receive any reports of wheel or propeller wash from the vessel of the assisting harbor tugs, nor any information suggesting that alleged wheel wash was affecting any other barge blocks.[44] No physical evidence exists to suggest wheel or propeller wash from the AGAPI S or any assisting tugs affected the other barge blocks.[45] No witness at the scene reported observing wheel or propeller wash from the AGAPI S or any assisting tugs affecting the other barge blocks.[46] No witness at the scene received reports of wheel or propeller wash from the AGAPI S or any assisting tugs affecting the other barge blocks.[47]

*4 Between 00:30 and 01:00 LT, twelve barges, the RTI 430, CC 95538B, CC 95152, CC 1501, AGS 194, PML 910, PML 930, SCF 26151B, SCF 14143B, SCF 24162B, SCF 24028, and BUNGE 14003, broke away from block four of the Cooper Darrow Fleet, and drifted downriver.[48] At approximately 01:15 LT, the M/V SOLENT, which was moored in a ship berth in the Cooper Darrow Fleet downriver of barge blocks one through five, reported multiple barges from the breakaway impacting the ship.[49] The barges RTI 430, CC 95538B, CC 95152, CC 1501, AGS 194, PML 910, PML 930, SCF 26151B, SCF 14143B, SCF 24162B, SCF 24028, and BUNGE 14003 sustained damage as a result of the breakaway.[50] No other barge blocks suffered a breakaway.[51]

On February 10, 2016, Cooper appointed Kyle Smith (“Smith”), of Kyle Smith Marine Surveying, Inc., to survey the barges involved in the breakaway.[52] During his February 10, 2016 survey, Smith identified damage to twelve barges associated with the allision and breakaway and estimated the total cost of repairs to be $48,252.00.[53] On February 12, 2016, Smith performed a cargo contamination survey on the PML 930.[54] On February 15, 2016, Smith performed an additional survey on the barge PML 930, noting additional damage and making recommendations for repair.[55]

Empire King and/or Bright Navigation dispatched Bobby Surendra (“Surendra”) to survey the scene following the incident on February 15, 2016.[56]

Cooper engaged C & M Marine Ventures, LLC (“C & M”) to repair the barges damaged during the incident.[57] Cooper paid $7,320.00 to repair CHB 9952, the only barge the AGAPI S allided with at barge block one.[58] Cooper had an assignment agreement with Heartland Barge Management that caps the value of Cooper's claim based on damage to CHB 9952 at $7,000.00.[59] Cooper also paid $255.00 for repairs to the buoy at barge block one.[60]

Provence suffered a total of $66,949.77 in damages because of the barges from barge block four's allision with the SOLENT.[61]

The parties agree on the following facts. The AGAPI S was traveling down bound on the Mississippi River on the evening of February 9, 2016 when it lost control while navigating through 81-mile point.[62] At approximately 22:45 LT, the AGAPI S allided with block one of Cooper's barge fleet below 81-mile point and became grounded in Cooper's fleet.[63] With the assistance of multiple harbor tugs, the AGAPI S was refloated at approximately 04:00 LT on February 10, 2016.[64] At some point between 00:30 LT and 01:00 LT on February 10, 2016, twelve barges in block 4 of Cooper's fleet broke away and drifted downriver.[65] One or more of the breakaway barges struck the SOLENT, a vessel berthed in the downriver end of Cooper's fleet.[66] The primary question at issue in this case is which party is responsible for the breakaway.

*5 Cooper contends that the AGAPI S's grounding and subsequent refloating in its fleet caused the barge breakaway at block four.[67] Empire, accepts responsibility for the allision with block one, but contends that the breakaway at block four was not caused by the grounding and refloating efforts.[68] Instead, Empire asserts that the breakaway at block four may have been caused by high river conditions, faulty mooring wires or techniques, or turbulence caused by other passing vessels.[69]

Before proceeding with an analysis of the applicable law, the Court evaluates two evidentiary issues raised at trial. First, Cooper objected to the testimony of Empire's marine surveyor, Bobby Surendra, because he was not listed as a witness before trial and a report he prepared was not disclosed to Cooper beforehand.[70] Second, Empire claims that Cooper is guilty of spoliation of evidence for not retaining all of the mooring wires that parted during the breakaway, and that this alleged spoliation should give rise to an adverse inference against Cooper.[71]

1. Testimony of Bobby Surendra

Bobby Surendra is a marine surveyor hired by Empire to investigate damages arising from the February 9–10, 2016 allision and breakaway at issue in this case.[72] Surendra conducted a joint inspection of the barges that were damaged in the incident alongside Cooper's surveyor, Kyle Smith, on February 15, 2016.[73]

At trial, Smith testified that Surendra had an opportunity to inspect the mooring wires when Surendra surveyed the barges on February 15, 2016.[74] Empire called Surendra to rebut Smith's testimony.[75] Specifically, Surendra testified that he had not had an opportunity to inspect the mooring lines that parted during the breakaway at block four when he surveyed the barges on February 15, 2016.[76] Cooper and Provence objected to Surendra's testimony on the grounds that Empire had not listed Surendra as a witness and had not previously disclosed the report Surendra prepared during his survey, despite being aware that inspection of the mooring equipment would be a contested issue at trial.[77] The Court allowed Surendra to testify, but permitted the parties to submit written briefs following trial on whether the testimony should be stricken from the record.[78]

In post-trial briefing, Cooper argues that Surendra was not listed as a witness, even though Empire knew that his inspection of the mooring equipment was a contested issue of fact.[79] Further, Cooper argues that Empire did not respond to requests for production of Surendra's survey report before trial.[80] In response, Empire argues that it did not need to list Surendra as a witness or provide his report beforehand because he was not called as an expert witness, but was only called to impeach the testimony of Plaintiff's witness, Kyle Smith.[81]

*6 The Fifth Circuit has repeatedly recognized that a district court has broad discretion to permit rebuttal and impeachment testimony at trial and to determine the scope of that testimony.[82] “Witnesses that are used solely for impeachment do not have to be disclosed to the opposing party prior to trial.”[83] The Court's Pre-Trial Notice states that no witnesses, other than those designated in the Pre-Trial Order, will “be allowed to testify unless agreeable to all parties and their addition does not affect the trial date.”[84] But, the Pre-Trial Notice also notes that the above restriction “will not apply to rebuttal witnesses or documents whose necessity cannot be reasonably anticipated.”[85]

In the instant case, Surendra was not called to testify to the findings of his report, but rather, Surendra was called to rebut Smith's testimony. Smith testified that Empire had the opportunity to inspect the mooring wires at issue in this case.[86] Surendra testified that he did not have the opportunity to inspect the mooring wires.[87] This is proper impeachment testimony. Therefore, as Surendra was called to offer impeachment testimony, Empire had no obligation to designate Surendra as a witness in the Pre-Trial Order.[88]

The Court also finds that Empire had no obligation to disclose Surendra's report before he was called to testify at trial. Rule 26(b)(4)(D) states that a party “may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”[89] Here, Surendra was not expected to be called as a witness to testify to the contents of his report, instead he was called to impeach Kyle Smith's testimony based on his personal observations.

Further, if Cooper believed a discovery violation occurred, it should have resolved the discovery dispute according the Federal Rules of Civil Procedure before trial. Federal Rule of Civil Procedure 37 requires that where a discovery dispute exists, the attorneys must first conduct a conference to attempt to resolve the dispute without court involvement. Then, if the dispute is still not resolved, the party seeking discovery must file a motion to compel.[90] There is no evidence that Cooper requested a Rule 37 conference or filed a motion to compel the disclosure of Surendra's report. Rule 37 only provides for sanctions barring a witness' testimony where a party disobeys a discovery order issued by the Court. No discovery order was sought, issued, or disobeyed in this case. Therefore, Cooper's request to strike Surendra's testimony, offered solely for the purpose of impeachment, is denied.

*7 However, the Court notes that Surendra's testimony should properly be limited to impeachment purposes. Therefore, the Court strikes any of Surendra's testimony that goes beyond the scope of his impeachment of Smith's testimony. Specifically, the Court strikes any testimony beyond Surendra's statements that he did not have an opportunity to inspect the mooring wires when he surveyed Cooper Darrow Fleet on February 15, 2016, in contrast to Smith's testimony that Surendra was given an opportunity to inspect the mooring wires.[91]

2. Spoliation of evidence

Empire claims that Cooper is guilty of spoliation of evidence because Cooper did not retain all of the mooring wires from the barges that broke away from block four.[92] Empire claims that the alleged spoliation should give rise to an adverse inference against Cooper.[93] Cooper argues that Empire had a surveyor, Surendra, onsite shortly after the breakaway, but that Surendra failed to inspect the mooring wires or request that any of the mooring wires be preserved.[94] Further, Cooper argues that even if the wires were disposed of before Empire had an opportunity to inspect them, there is no evidence to suggest that Cooper possessed the intent required for a finding of spoliation and imposition of a sanction.[95]

At trial, Cooper's surveyor, Kyle Smith, testified that he gave Surendra the opportunity to inspect the mooring wires on February 15, 2016.[96] In response, Surendra testified that he did not have the opportunity to inspect the mooring wires.[97] While Cooper objected to the testimony of Surendra,[98] the Court already found that Surendra's testimony should be sustained for the reasons set forth herein.

A party asserting a spoliation claim must “first show that the party having control over the evidence ... had an obligation to preserve it at the time it was destroyed. This obligation usually arises when a party has notice that the evidence is relevant to litigation—most commonly when suit has already been filed ... but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.”[99] In addition, the Fifth Circuit has recognized that “[d]estruction or deletion of information subject to a preservation obligation is not sufficient for sanctions. Bad faith is required. A severe sanction such as a default judgment or an adverse inference instruction requires bad faith and prejudice.”[100]

Cooper's internal emails show that as early as 02:52 LT on February 10, 2016, Cooper blamed the AGAPI S for the barge breakaway from block four.[101] At this time, Cooper “should have known” that the mooring wires would be relevant to future litigation.[102] There was conflicting evidence at trial regarding whether Empire had the opportunity to inspect these mooring wires before their disposal.[103] However, there is no evidence that Cooper acted in bad faith. Therefore, the Court will not impose an adverse inference. The absence of the mooring wires does not create the inference that the wires were defective.

1. Maritime Torts Generally

*8 As a starting point, “[t]he analysis of a maritime tort is guided by general principles of negligence law.”[104] A plaintiff “must demonstrate that there was a duty owed by the defendant to the plaintiff, a breach of that duty, injury sustained by plaintiff, and a causal connection between defendant's conduct and the plaintiff's injury.”[105] “[A]s part of its negligence claim, a plaintiff must prove that a defendant's alleged negligence caused its damages.”[106] This causation element has “the ‘sub-elements of: (a) cause in fact and (b) proximate or legal cause.”[107]

“To establish cause in fact–‘but for’ causation–the plaintiff must show by a preponderance of the evidence that a particular event would not have occurred but for the defendant's negligent acts.”[108] “Proximate cause involves a policy determination as to whether the plaintiff's injuries were a reasonably foreseeable result of the defendant's alleged negligent conduct.”[109] Even where an act is found to be negligence (i.e., to breach a duty of care), if it is not the proximate cause of the plaintiff's injury it is “merely a condition” and “[a]s such it is not a basis of liability.”[110] “[F]ault which produces liability must be a contributory and proximate cause of the collision, and not merely fault in the abstract.”[111]

2. Presumptions

As stated supra, the burden normally lies with the plaintiff to prove causation.[112] However, maritime law recognizes numerous presumptions which aid in the resolution of negligence suits.[113] These presumptions can shift the burden of persuasion from one party to another.[114] Cooper asserts that the Oregon Rule and the “passing vessel presumption” weigh in its favor.[115] Empire asserts that the Oregon Rule, Louisiana Rule, and Pennsylvania Rule weigh in its favor.[116] Before proceeding, the Court evaluates the application of each presumption and how it impacts the parties' burdens.

The Oregon Rule creates a rebuttable presumption of fault against a moving vessel that allides with a stationary object when the vessel is operating under its own power.[117] The presumption created by the Oregon Rule “suffices to make a prima facie case of negligence against the moving vessel.”[118] In order to rebut the presumption of the Oregon Rule, the moving vessel must establish: “(1) that the allision was the fault of the stationary object; (2) that the moving vessel acted with reasonable care; or (3) that the allision was an unavoidable accident.”[119]

*9 However, the Oregon Rule does not “supplant the general negligence determination which requires a plaintiff to prove the elements of duty, breach, causation and injury by a preponderance of the evidence.”[120] Properly described, “[t]he rule of THE OREGON creates a presumption of fault that shifts the burden of production and persuasion to a moving vessel who, under her own power, allides with a stationary object.”[121] The Fifth Circuit has repeatedly recognized that this presumption “must be properly confined to the issue of breach only – not ‘causation (either cause in fact or legal cause) or the percentages of fault assigned to the parties adjudged negligent.’ ”[122] The Fifth Circuit has further held that the Oregon Rule “speaks explicitly only to a presumed breach on the part of the alluding vessels, and is not a presumption regarding either the question of causation (either cause in fact or legal cause) or the percentages of fault assigned parties adjudged negligent.”[123]

The Oregon Rule provides a “presumption of fault against a moving vessel that strikes a stationary object.”[124] In this case, the AGAPI S was a moving vessel that struck the stationary barge block one in the Cooper Darrow Fleet.[125] Under the Oregon Rule there is a presumption that Empire was at fault for the allision at barge block one, which Empire does not contest.[126] However, the Oregon Rule presumption “must be properly confined to the issue of breach only”[127] and “does not supplant the general negligence determination.”[128] Therefore, Cooper, as the plaintiff, still bears the burden of proof in establishing the elements of negligence, including causation. Accordingly, to be successful on its claim for damages related to the breakaway from block four, Cooper must prove that the AGAPI S's initial allision was both the actual and proximate cause of the breakaway of block four, without the aid of any presumption provided by the Oregon Rule.

Empire conversely argues that the Oregon Rule creates a presumption that Cooper was responsible for the allision of the barges that broke away from barge block four with the SOLENT.[129] However, the Oregon Rule only applies to a vessel that is operating “under [its] own power.”[130] The barges that broke away from block four and allided with the SOLENT were not operating under their own power, they were drifting in the water.[131] Therefore, the Oregon Rule does not apply in Empire's favor either.

Similar to the Oregon Rule, the Louisiana Rule also creates a rebuttable presumption of fault against a moving vessel that allides with a stationary object, but applies in situations where a stationary object is struck by a drifting vessel.[132] Empire claims that the Louisiana Rule weighs in favor of finding Cooper liable for the damages caused when the barges broke away from block four and crashed into the SOLENT.[133]

This inference or presumption of negligence is a rule of law based on the logical deduction that a vessel found floating loose was improperly moored.[134] A party can only rebut the Louisiana Rule's presumption of fault in three ways, by showing: (1) that the allision was the fault of the stationary object; (2) that the moving vessel acted with reasonable care; or (3) that the allision was the result of an inevitable accident.[135] Courts have repeatedly emphasized that the Louisiana Rule's “strong presumption” places a “heavy burden” on an adrift vessel's custodian, who “must exhaust every reasonable possibility which circumstances admit and show that in each it did all that reasonable care required.”[136]

*10 However, the Fifth Circuit has recognized that the Louisiana Rule, may only be used by the victim in an allision against the injuring party.[137] The Louisiana Rule is not intended to be used between two alleged defendants to allocate liability as to a third-party.[138] Empire claims that the Louisiana Rule weighs against Cooper in this case.[139] But Cooper and Empire act as co-defendants in this case, defending claims brought by Provence, the owner of the SOLENT.[140] As Provence brings a claim against either party, the co-defendants cannot use the Louisiana Rule to allocate liability and it is inapplicable to the instant dispute between Cooper and Empire. However, Provence may benefit from the Louisiana Rule's presumption once the Court has allocated liability amongst Cooper and Empire as co-defendants.

Empire also claims that a presumption of fault arises against Cooper based on the Supreme Court's decision in The Pennsylvania.[141] The Pennsylvania Rule holds that a defendant that violates a mandatory safety statute designed to prevent allisions is liable for a resulting allision, unless the defendant can prove that the violation could not have contributed to the allision.[142] Where it applies, “[t]he Pennsylvania doctrine shifts the burden of proof as to causation to the statutory offender, but it does not by itself impose liability.”[143] “The statutory violator then may rebut this presumption of liability with evidence showing that the violation could not have been a contributing cause of the [allision].”[144] The Pennsylvania Rule “applies only to violations of statutes that delineate a clear legal duty, not regulations that require judgment and assessment of a particular circumstance.”[145] Settled law dictates that “C.F.R. regulations are treated as statutory violations for purposes of the Pennsylvania Rule where those regulations apply.”[146]

Empire claims that Cooper violated 33 C.F.R. § 165.803(j) and (m) by failing to assign a person to be in continuous surveillance of the barges in the fleet, and that Cooper failed to have two of its fleet boats within 500 yards of the barges in block four.[147] However, Cooper claims that there is no regulatory violation that could give rise to a presumption under the Rule because Cooper misreads 33 C.F.R. § 165.803.[148]

33 C.F.R. § 165.803(j)(1) states a barge fleeting facility “shall assign a person to be in continuous surveillance and to observe the barges in the fleeting facility.” 33 C.F.R. § 165.803(m)(2)(i) states that during high water, “each fleet must have two or more towboats in attendance.”

However, 33 C.F.R. § 165.803(c) states that “[i]n an emergency, a person may depart from any regulation in this section to the extent necessary to avoid immediate danger to persons, property or the environment.” There was evidence presented at trial that the allision of the AGAPI S with block one and grounding in the fleet created an emergency with risk of danger to persons, property, and the environment.[149] Further, Empire's argument that Cooper violated 33 C.F.R. § 165.803(m) is also based on a misreading of the regulation. 33 C.F.R. § 165.803(m) applies during periods of high water and requires that a fleeting facility maintain one towboat for every 100 barges in the fleet and two towboats when barges are withdrawn or added to the fleet. 33 C.F.R. § 165.803(m)(2)(iii) states that “[e]ach towboat required [under subpart (m) during periods of high water] must be:

Section 165.803(m) does not divide responsibilities between multiple barge blocks or delineate responsibilities for specific sets of barges to specific fleet boats. Therefore, the towboats were permitted to move freely between the barge blocks to assist as necessary and were not required to attend to barge block four at all times. The Pennsylvania Rule does not weigh against Cooper, because Empire has not shown that Cooper violated any regulations.

Cooper also argues that the “passing vessel presumption” weighs in its favor.[150] Maritime law imposes a duty on passing ships that “[a] ship passing piers or docks where other vessels are tied up is obligated to proceed carefully and prudently so as to avoid creating unusual swells or suction which would damage craft properly moored or installations along the shoreline. The moving vessel must take into consideration the reasonable effects to be anticipated from its speed and motion through the water and must take such precautions by way of reduction of speed or alteration of course as may be reasonably necessary to prevent such damage.”[151] Conversely, maritime law imposes a duty upon moored vessels to be “moored so as to resist ordinary and normal swells in narrow waters where heavy traffic may be anticipated.”[152] Maritime law recognizes “a presumption of fault on a passing vessel when its wake causes damage to a properly moored vessel.”[153]

Cooper argues the “passing vessel presumption” supports its claim because its ships were properly moored at block four and the AGAPI S caused “unusual swells or suction.”[154] First, Cooper has not proven that its ships were properly moored. At trial, Cooper presented evidence showing that approximately 54 tugs and ocean-going vessels passed the fleet on February 9, 2016 and February 10, 2016.[155] Further, Cooper's personnel testified regarding its general mooring procedures,[156] and Cooper presented vessel logs verifying that the barge moorings were checked a couple hours prior to the incident.[157] However, Cooper did not present testimony of any witness that checked the moorings at issue in this case. Further, Cooper's logs did not detail the specific actions of employees who may have checked the moorings. Therefore, the Court finds that Cooper has not presented sufficient evidence that the barges were properly moored.

*12 Second, even if Cooper's ships were properly moored, the AGAPI S did not pass block four of the Cooper Darrow Fleet. The AGAPI S allided with a ship attached to block one and was grounded on the banks of the Mississippi River when the breakaway from block four occurred.[158] Therefore, the AGAPI S was not a passing vessel and the “passing vessel presumption” does not apply to this case.

Because no presumption applies to the causation analysis at issue, the Court proceeds to analyze causation under general maritime law.[159] To succeed under general maritime law, a plaintiff “must demonstrate that there was a duty owed by the defendant to the plaintiff, a breach of that duty, injury sustained by plaintiff, and a causal connection between defendant's conduct and the plaintiff's injury.”[160] The parties did not contest that the AGAPI S had a duty not to allide with Cooper's fleet and cause a breakaway.[161] The parties also did not contest that the AGAPI S allided with the Cooper fleet at block one.[162] Further, the parties did not contest that Cooper sustained damages as a result of this allision.[163] However, Empire contests that the allision at block one caused the breakaway from block four.[164]

“Under the general maritime law, a party's negligence is actionable only if it is the ‘legal cause’ of the plaintiff's injuries, which is something more than ‘but for’ causation[—]the negligence must be a substantial factor in causing the injuries.”[165] In cases involving one or more “concurrent causes of any accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident.”[166] Additionally, “[t]here can be more than one substantial factor; that is, the conduct of multiple parties can be substantial factors in causing an accident.”[167]

Cooper argues that the breakaway from block four was caused by water turbulence attributable to wheel wash from the AGAPI S and the other tugs assisting the AGAPI S,[168] or that the breakaway was caused by an “artificial eddy” that was created when the AGAPI S rerouted the flow of the Mississippi River.[169] The Court now looks at the evidence presented by Cooper to prove causation.

1. Direct evidence

Cooper did not present any convincing direct evidence that the breakaway at block four was caused by the AGAPI S. Cooper did not present any witnesses, employees or otherwise, that observed conditions of the moorings or the river on the date of the accident. Cooper's corporate witnesses, who were not present on the night of the allision, testified that they “believed” the AGAPI S caused turbulence that lead to the breakaway.[170] However, this testimony was not based on their personal observations and these witnesses were not designated as experts. Witnesses present at the time of the breakaway at block four testified that they did not observe or receive reports of wheel wash or turbulence that could have caused a breakaway.[171] Capt. Dustin Jeansonne (“Capt. Jeansonne”), captain of a nearby vessel, testified that he did not observe wheel wash, “artificial eddies,” or turbulence from the AGAPI S or harbor tugs that could have caused the breakaway.[172] Capt. J.T. Doyle (“Capt. Doyle”), the pilot who was responsible for refloating the AGAPI S, testified that he was not contacted about any turbulence issues related to his vessels movements during the refloating efforts.[173] The only direct, eye-witness testimony presented in this case comes from these individuals and refutes Cooper's theory that the AGAPI S caused turbulence that could have led to the breakaway at block four.

*13 In Coyle Lines, Inc. v. United States, another suit arising from an allision between vessels, the Fifth Circuit pointed out that one litigant failed to produce any of the crew who might have actually observed the circumstances leading up to the incident, or to account for their absence from trial, and instead relied on secondary evidence to support its position on liability.[174] In Coyle, the Fifth Circuit stated that:

In this case, Cooper failed to produce witnesses that actually observed the river on the night of the allision. There is no indication that Cooper was unable to call its employees who witnessed the allision to testify to the conditions of the river at that time. In contrast, Empire presented two eyewitnesses who testified that they did not observe or receive reports of any conditions caused by the AGAPI S that might have led to the breakaway at block four. The Court finds Cooper's evidence presented by witnesses who were not present at the scene “weaker and less satisfactory” than the testimony of eyewitnesses who stated they did not observe or receive reports of wheel wash or turbulence at the time of the incident.[176] Next, the Court turns to the indirect evidence Cooper used to support its case.

2. Indirect Evidence

In the absence of direct evidence, Cooper must prove causation by indirect or circumstantial evidence. “Causation is generally a question of fact,”[177] and the Fifth Circuit has held that “[w]henever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and cannot be presumed.”[178] “A presumption must rest upon proven facts and cannot be inferred from another presumption.”[179]

Cooper must first prove the circumstances underlying their theory of liability: (1) that the AGAPI S and harbor tugs created sufficient turbulence to break apart a properly secured barge fleet in the first place; (2) that any such turbulence traveled in the direction of block four of the Cooper Darrow Fleet; and (3) that any such turbulence did not dissipate in the half-mile between AGAPI S and block four. However, Cooper fell short of proving any of these facts at trial.

*14 Cooper did not prove that the AGAPI S grounding or refloating created enough turbulence to break apart the barges at block four if they were properly secured. Cooper did not produce any documentary evidence in the form of photographs or video footage showing that the grounding and refloating caused wheel wash, turbulence, or eddies that might impact barge block four.[180] Almost all of Cooper's witnesses testified that they were not on the river at the time of the allision or breakaway and thus did not personally perceive any alleged turbulence caused by the AGAPI S.[181] The only witness Cooper called that was present during the allision was Capt. Spreen, the pilot of the AGAPI S, who was relieved of duty and left the AGAPI S before the breakaway at block four occurred.[182] Capt. Spreen did not report any personal observations of wheel wash and testified that no one reported any problems to him regarding wheel wash while he was piloting the AGAPI S.[183] Other witnesses confirmed that there were no reports of turbulence from fleet boat captains and crews on the scene.[184] Further, there is no indication turbulence was discussed in the VDR transcript, which recorded contemporaneous discussions among the AGAPI S, its pilot, and the nearby fleet boats.[185] Capt. Jeansonne and Capt. Doyle, respectively onboard the VERA BISSO and AGAPI S at vantage points to observe the activity on the river surrounding the AGAPI S, both testified that there was no turbulence created by the AGAPI S grounding and refloating efforts.[186] Capt. Doyle also testified that wheel wash would not generally occur with the short, astern, mostly slow engine orders reflected in the AGAPI S's Bell Book.[187] Further, while Cooper claims that an “artificial eddy” was created by the AGAPI S, several witnesses testified that they had never heard of the term “artificial eddy,” including Capt. Spreen, Byron Borne (“Borne”), Cooper's Regional Loss Control Director, and Capt. Maurice Ryan (“Capt. Ryan”), Empire's expert in navigation, barge fleeting, and marine accident investigation.[188]

The evidence Cooper presented to support its theory that wheel wash caused the breakaway was an email from Cooper's Managing Director, Wendell Landry (“Landry”).[189] While Landry was not present at the scene, he sent the email within roughly 90 minutes of Cooper's first report of a breakaway, advising that it was “evident” that wheel wash from the AGAPI S refloating operation had caused the breakaway.[190] The only witness who attempted to support Cooper's turbulence theory was neither a fact witness present during the incident nor an expert in water movement, but instead a marine damage surveyor, Kyle Smith.[191] Smith testified that he believed he was able to observe wheel wash in the AGAPI S's radar recording.[192]

However, Smith's testimony regarding radar interpretation is problematic. First, Smith admitted that he has no training, education, work experience, or expertise in radar interpretation; has never used a radar system onboard an ocean-going vessel; and knows nothing about the brand, model, or settings of the AGAPI S radar.[193] Thus, at trial, the Court recognized that Smith was an expert in surveying damages related to the allision, but did not recognize Smith as an expert in radar usage.[194]

*15 Second, Smith's opinion regarding wheel wash was unreliable. While under direct examination, Smith misidentified barge block three as barge block four and admitted that an object he had previously identified as a drifting barge, was actually a tug boat.[195] Further, Capt. Ryan testified that the movement of the radar pictures, which Smith testified was movement of the barges displayed in the pictures, was actually the radar itself changing position due to the vessel's radar antenna moving along with the vessel in the river.[196]

Third, Smith's opinion that wheel wash is visible in the AGAPI S's radar was directly refuted by at least two witnesses, Capt. Spreen and Capt. Ryan. These witnesses hold U.S. Coast Guard Master Mariner credentials with Radar Observer endorsements, and these witnesses testified that wheel wash is not visible on a ship's radar generally or on the radar images from the AGAPI S specifically.[197] Instead, Capt. Ryan asserted that what Smith identified was most likely “interference, scatter, [or] false echo ... produced by an untuned radar.”[198]

Even if Cooper proved that the grounding and refloating of the AGAPI S created turbulence, Cooper offered no evidence to suggest that this turbulence would have been directed towards barge block four or had the force necessary to create a breakaway at block four. Capt. Ryan testified that any wheel wash would have been directed upriver and absorbed by the current, and that water that met the port side of the AGAPI S while the ship was aground would deflect back into the channel, where the current is strongest, and where it would be absorbed and dissipated.[199] Capt. Spreen even stated that the grounded AGAPI S would have protected the Cooper Darrow fleet from the current as it was grounded ahead of the fleet.[200]

Additionally, the evidence shows that the wheel wash would have dissipated before reaching block four. Capt. Ryan established that the AGAPI S and the harbor tugs were at all times well over 1,000 yards from Block 4.[201] Capt. Ryan testified that even with ahead engine orders, wheel wash from the AGAPI S would dissipate in a maximum of 300 yards.[202] Capt. Jeansonne, the captain of the VERA BISSO, testified that he is familiar with that vessel, the MISSISSIPPI, and the BEVERLY, and that none of those vessels are capable of generating wheel wash that could persist in the Mississippi River beyond 200 yards.[203] Further, Capt. Jeansonne testified that it is impossible for wheel wash or turbulence created in the position of the AGAPI S to travel downriver over one-half mile and reach block four without dissipating in the Mississippi River's current.[204] The evidence shows that based on the distance and the power of the vessels, any wheel wash created would have dissipated before it reached block four.

*16 The only individual who testified that the wheel wash would have been directed towards block four or could travel the half mile downriver without dissipating was Smith.[205] However, as noted at trial, Smith is not an expert in hydrodynamics and did not personally observe the incident at issue.[206] Accordingly, the Court gives his testimony on these issues minimal weight.

Based on the evidence presented at trial, the Court finds that Cooper failed to prove by a preponderance of the evidence: (1) that the AGAPI S and harbor tugs created sufficient turbulence to break apart a properly secured barge fleet in the first place; (2) that any such turbulence traveled in the direction of block four; and (3) that any such turbulence did not dissipate in the half-mile between AGAPI S and block four. Cooper holds the burden of proof on causation and failed to prove its theory of the case.

3. Failure to Disprove Alternate Theories

Cooper's failure to prove causation by a preponderance of the evidence is fatal to its claim against Empire. However, even if Cooper met its burden of proof, Cooper still did not disprove alternate reasonable theories of causation. When a plaintiff relies solely on circumstantial evidence to show negligence, as was the case here, the plaintiff must produce evidence that would exclude every other reasonable hypothesis explaining how the accident occurred.[207] Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty.[208]

At trial, Empire presented two alternate hypotheses for the cause of the breakaway and presented evidence and testimony to support these hypotheses: (1) that improper mooring or faulty wires caused the breakaway from block four or (2) that another passing vessel caused the breakaway from block four.

Cooper has failed to disprove the theory that its own faulty wires and mooring caused the breakaway at block four. As a fleet operator, Cooper is responsible for barges in its custody and is “required to exercise due care by adequately mooring vessels in a fleet.”[209] To fulfill its duty to adequately moor vessels, a fleet operator must take into account prevailing conditions, such as river current and stage, and must moor vessels such that they will “resist the ordinary and normal swells in narrow waters where vessel traffic may be anticipated.”[210] “Some wheelwash from passing vessels is bound to occur, but it must be anticipated and guarded against by the fleet operator.”[211]

*17 First, Cooper's own witnesses, specifically Borne and Cooper's dispatcher Roy Duncan (“Duncan”), admitted that Cooper has experienced breakaways from the Darrow Fleet in the past, and that those breakaways usually occur at high river.[212] Likewise, Capt. Doyle testified that he experienced many breakaways during high river while working at Cooper Darrow Fleet, and that the most common cause of barge breakaways from the fleet is “human error,” specifically laziness and failure to properly tie up or check wires.[213]

Second, the evidence presented at trial raises questions regarding the adequacy of Cooper's mooring procedures. Cooper elicited testimony from its witnesses that it follows general mooring procedures that are compliant with Coast Guard regulations.[214] However, Cooper did not present evidence showing these procedures were followed in this case. Specifically, Cooper did not present testimony from any employees who checked the mooring wires at issue. Borne was the last witness presented at trial that walked the fleet, and testified that it had likely been several weeks since he had done so when the breakaway from block four occurred.[215] Instead, Cooper relied on “boat logs” from various vessels showing that various forms of fleet checks were performed preceding the allision and breakaway on February 9–10, 2016.[216] But these logs are problematic because they do not describe what was checked during each “fleet check.”[217]

More generally, Cooper does not keep records of when mooring wires are placed into service or replaced.[218] Further, Cooper witnesses testified that there is no record of whether high river mooring procedures are actually instituted on specific occasions as per policy.[219] In this instance, Landry testified that he had no knowledge of whether the Cooper Darrow Fleet was moored “hard down” on this occasion.[220] Similarly, Duncan testified that Cooper had no record of whether block four was checked after the allision with block one but prior to the breakaway.[221]

Third, Empire raised the question that the breakaway at block four may have occurred due to Cooper's use of faulty or worn mooring wires. Conflicting evidence exists in the record regarding whether Empire's surveyor had the opportunity to inspect the wires. Cooper's surveyor, Smith testified that Empire's surveyor, Surendra, had the opportunity to inspect the wires on February 15, 2016.[222] Whereas Surendra testified that he did not have an opportunity to inspect the wires.[223] Smith's report make no mention of the condition of the wires, and Smith admitted that he did not take any photographs of them or perform any tests on them after the breakaway.[224] Considered together, the testimony of all witnesses at trial establishes that worn wires, ignored policies, and human error are reasonable hypotheses of causation.

*18 Cooper presented evidence showing that it institutes general mooring practices, but did not show that the vessels were properly moored in this instance and did not sufficiently prove that its wires were not faulty or worn in this instance. Therefore, Cooper has failed to present evidence that would exclude a reasonable finding that the vessels were improperly moored or the wires were impermissibly worn.

Empire has argued that the breakaway of the barges could have been caused by the cumulative effect of several vessels passing block four and loosening or weakening the attached wires.[225] Witnesses testified that barge breakaways have occurred in the past at the Cooper Darrow Fleet during high river and can sometimes be traced to other vessels passing too close to the fleet.[226] Cooper's own witness offered evidence that 54 other vessels passed block four before the breakaway on February 9, 2016.[227] Capt. Ryan testified that he used mathematical calculations based on river current, drifting vessel speed, an allowance for “evolution” of the breakaway, and the distance between block four and the SOLENT to determine that the breakaway actually began between 00:30 LT and 00:40 LT.[228] From that conclusion, Capt. Ryan discovered on MRTIS that two minutes earlier, at 00:28 LT, the harbor tug BEVERLY passed within 280 feet of block four, turned sharply to port, and pointed her stern and wheel wash directly at the block from a distance within which wheel wash could realistically pose a danger.[229] Capt. Ryan testified as an expert that the passing of the BEVERLY was the most likely cause of the breakaway.[230]

Cooper has responded by attempting to impute the BEVERLY's actions to the AGAPI S by pointing to Cenac Towing Co. v. Keystone Shipping Co. In that case, a tanker observed a tug with barges in tow crossing the channel in violation of Coast Guard regulations.[231] At first, the tanker took “no precautionary measures,” and instead “continued on its course without slowing down, without ascertaining or attempting to confirm the position of the [ ] tow by radar, and without later checking on the flotilla's position.”[232] Finally, when a collision was imminent, the tanker took emergency evasive maneuvers, which resulted in her grounding.[233] Applying the in extremis doctrine,[234] the court found that the tanker was not entitled to exoneration because it created the emergency situation by failing to slow down.[235]

*19 Here, the BEVERLY responded to a call for assistance nearly two hours after a grounding occurred and proceeded upriver towards the AGAPI S under full control, without any sudden threat to the vessel's navigation.[236] Cenac is distinguishable from the instant case because the BEVERLY was not at any time “a vessel placed in a position of sudden danger,” nor did the BEVERLY maneuver “in the stress of the moment” as application of in extremis requires.[237] While the BEVERLY was called to assist the AGAPI S, a vessel that was grounded, the emergency caused by the initial allision had passed. Further, the AGAPI S had no control over the route that the BEVERLY took to assist the vessel and the BEVERLY itself was never in danger. No evidence in the record supports the conclusion that the vessel made a course correction under “stress of the moment” or that her captain believed the situation to be an “emergency” akin to the imminent threat of an allision at issue in Cenac.

There exists evidence that other vessels passed by barge block four, in particular the BEVERLY, immediately preceding the breakaway. Empire is not responsible for the actions of the BEVERLY or any other vessel, as these vessels were not operating in an emergency under the control of the AGAPI S. While the vessels were attempting to assist the AGAPI S, they were still travelling under their own control. Cooper has failed to prove another vessel could not have caused the accident and Cooper has failed to prove that Empire was responsible for the movement of these vessels.

Several hours after the AGAPI S allided with block one, twelve barges broke away from block four and drifted down river.[238] Several of these barges impacted the SOLENT, and as a result the SOLENT sustained damage.[239] Provence, owners and managers of the SOLENT, contend that they are entitled to recover full damages from whichever party is found liable for the breakaway of block four.[240]

Cooper has failed to meet its burden to prove that the AGAPI S's allision with barge block one caused the breakaway from barge block four. Therefore, while Empire is liable for the allision with barge block one, Cooper is liable for the breakaway, if Provence can show duty, breach, causation, and damages.

The Fifth Circuit has recognized a nearly absolute duty placed upon the operator of a fleet to prevent breakaways and to prevent adrift barges from causing damage to other vessels or equipment.[241] The Court found that it is “well-established” that a drifting vessel involved in a collision is presumed to be at fault.[242] Moreover, the burden of persuasion is also on the party whose vessel is adrift.[243] The drifting or moving vessel must show that the allision was an unavoidable accident or an Act of God, which could not have been prevented by human skill or precaution.[244] This case aligns with the Louisiana Rule, finding that the element of breach is met where a drifting vessel subsequently allides with a stationary vessel or object in the water.[245] Here, it is undisputed that the barges broke away from block four of the Cooper Darrow Fleet and allided with the SOLENT.[246] Moreover, Cooper has not rebutted the presumption of fault under the Louisiana Rule. Further, it is undisputed that the allision caused damages to the SOLENT. Correspondingly, Provence is entitled to damages against Cooper, if proven.

For the reasons discussed above, Cooper is entitled to damages from Empire and the AGAPI S resulting from the allision of the AGAPI S with barge block one of the Cooper Darrow Fleet and subsequent refloating efforts. Provence is entitled to damages from Cooper and the Barge Owners resulting from the allision of the barges that broke away from block four with the SOLENT.

1. Cooper's Damages

*20 Cooper claims it is entitled to damages in the amount of $90,153.80 in expenses related to repairs made to the barges damaged after the allision of the AGAPI S and surveys conducted by Kyle Smith.[247] Included in these damages are repairs made to and surveys conducted of barges that broke away from block four and were damaged after making contact with the SOLENT.[248] However, because the Court has determined that Cooper is liable for the breakaway from block four and all resulting damages, Empire is liable only for damages arising from the AGAPI S's initial allision with block one.

The AGAPI S's initial allision at barge block one caused damage to CHB 9952, the barge with which it made contact.[249] The cost of repairs to barge CHB 9952 was $7,320.00.[250] However, Empire argues that Cooper's entitlement to recovery for damage to CHB 9952 is capped by an assignment agreement which explicitly caps the value of the claim assigned to Cooper.[251] The assignment agreement between Cooper and Heartland Barge Management caps the value of Cooper's claim based on damage to CHB 9952 at $7,000.00.[252] Therefore, the Court will cap Cooper's recovery based on damage to the CHB at $7,000.00.

Cooper claims that it incurred costs of $255.00 for repairs made to the buoy of barge block one as a result of the AGAPI S alluding with a barge at the block.[253] The Court finds that this claim is supported by invoices as evidence in the record and will award Cooper damages in this amount.[254]

Additionally, Cooper claims to have incurred an aggregate cost of $3,580.00 for paying Kyle Smith to conduct three surveys to assess damages done to barges arising from the AGAPI S's allision with the barge at block one.[255] Two of these surveys were conducted on the PML 930, a barge which was damaged due to the breakaway from block four, and thus Empire is not liable for those surveys.[256] The third survey assessed preliminary damage done to thirteen barges, including the CHB 9952.[257] Empire is liable for any costs Cooper incurred to survey the CHB 9952 and any other vessel damaged by the allision with block one, but Empire is not liable for costs incurred on behalf of any of the other twelve barges which Smith surveyed, as all were damaged due to the breakaway of block four.[258] Cooper incurred a cost in the amount of $1,660 for Smith's survey and related travel expenses.[259] However, Cooper has provided the Court with no way of calculating the cost of Smith's services performed with regard to any individual barge, including the CHB 9952. Because the Court is unable to determine the cost of Smith's survey of the CHB 9952, the Court denies Cooper's claim for damages relating to the survey.

Lastly, Cooper appears to claim an additional $33,615.00 in damages incurred in work and time by vessels that attended to block one after the AGAPI S's allision with block one and then to assist in recapturing barges after the breakaway of block four.[260] Because Cooper is liable for any damages arising from the breakaway of block four, Empire is liable only for the costs Cooper incurred due to the AGAPI S's allision with block one. Through this same document, Cooper attempts to present evidence showing that it incurred an aggregate cost of $4,660.00 in paying the fleet boats BARBARA, CLAUDE R, NATURES WAY COMMANDER, VINCENT J. EYMARD, MISS KIM and JOANNE C, all of which assisted on block one after the AGAPI S's allision.[261] This figure reflects the sum of each of the vessel's hourly rates multiplied by the time they attended to block one after the allision.[262]

*21 However, to support their claim for damages, Cooper provides only a chart created by the assistant vice president of fleet operation which reflects the name of each vessel, its hourly rate, the time it spent working, and the total charge.[263] This chart appears to be an internal Cooper log and the information it contains is not substantiated by other credible evidence in the record.[264] At trial, Cooper did not present the individual who prepared this chart or the agreements upon which the hourly rate for each vessel is based.[265] Therefore, the Court disregards Cooper's claim for damages relating to payment to the fleet boats which attended to block one, because Cooper has not presented sufficient evidence to support this claim.

In the United States, it is generally accepted that “under the maritime law, the award of pre-judgment interest is ‘well-nigh automatic.’ ”[266] Furthermore, admiralty courts have discretion in setting the rate of pre-judgment interest.[267] In certain peculiar circumstances, however, the Court may deny pre-judgment interest altogether, such as in cases “where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff.”[268] Cooper did not explicitly request pre-judgment interest, but no parties oppose an award of pre-judgment interest. Further, the Court finds that Cooper did not improperly delay resolution of this action and there is no other reason for denying this award. Therefore, the Court awards Cooper pre-judgment interest. Cooper does not request a specific rate for pre-judgment interest. The Court has discretion in setting the rate of pre-judgment interest.[269] Therefore, the Court will set the rate of prejudgment interest in accordance with 28 U.S.C. § 1961. While 28 U.S.C. § 1961 deals explicitly with post-judgment interest, it is within the district court's discretion to use it as a basis for the rate of pre-judgment interest as well.[270] Additionally, pursuant to 28 U.S.C. § 1961, all federal judgments entitle judgment creditors to post-judgment interest.

In conclusion, Empire is liable to Cooper only for damage to CHB 9952 and the barge block buoy as a result of the allision with the AGAPI S in the amount of $7,255.00 plus pre-judgment interest and post-judgment interest pursuant to the rate set by 28 U.S.C. § 1961. The Court notes that Cooper also brings a claim against the AGAPI S, in rem,[271] and finds this judgment applies against the vessel as well.

2. Provence's Damages

*22 Provence claims a total of $67,449.77 in damages as a result of Cooper's allision with the SOLENT.[272] Provence presents a claim statement and supporting documents listing several types of damages amounting to $62,332.37.[273] Provence presents various invoices reflecting the amounts listed on the claim statement, amounting to 40,115.59 Euros[274] and $16,129.90 incurred as a result of repairing the barge.[275] The Court finds these values to be generally supported by the evidence. However, on the claim statement, Provence claims that it incurred an additional cost of $500.00 for “Crew work,” but presents no evidence to support this cost.[276] Therefore, the Court will deduct the $500.00 cost from the total they are due in damages. Provence also presents a second survey invoice, which includes survey and repair expenses for 4,488.95 Euros,[277] an amount which Provence asserts is approximately $5,117.40.[278] Taken as a whole, given the deduction of damages for crew work, the evidence shows that Provence is due $66,949.77 in damages.

Additionally, Provence requests pre-judgement interest from the date of the accident on February 10, 2016.[279] Provence argues that a reasonable pre-judgment interest rate would be approximately 5% per annum.[280] In the United States, it is generally accepted that “under the maritime law, the award of pre-judgment interest is ‘well-nigh automatic.’ ”[281] Furthermore, admiralty courts have discretion in setting the rate of pre-judgment interest.[282] In certain peculiar circumstances, however, the Court may deny pre-judgment interest altogether, such as in cases “where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff.”[283] The parties did not oppose Provence's request for pre-judgment interest. Further, the Court finds that Provence did not improperly delay resolution of this action and there is no other reason for denying this award. Therefore, the Court awards Provence pre-judgment interest at a rate of 5% per annum from the date of the accident, February 10, 2016. Additionally, pursuant to 28 U.S.C. § 1961, all federal judgments entitle judgment creditors to post-judgment interest.

Neither Cooper nor Empire contests that whichever party is found responsible for the breakaway of block four is liable to Provence for damages. Further, neither party contests the amount of damages or asserted dollar amounts presented by Provence.[284] Because the Court finds Cooper liable for the breakaway of block four, and thus for the damage to the SOLENT, Cooper is liable to Provence for $66,949.77 plus pre-judgment interest at a rate of 5% per annum and post-judgment interest pursuant to 28 U.S.C. § 1961.

*23 The Court notes that for the purposes of this case, Provence only brought claims against one of the individual Cooper Defendants: Cooper Consolidated, LLC.[285] Therefore, the Court awards Provence damages against Cooper Consolidated, LLC specifically, but not Cooper/T. Smith Stevedoring Company, Inc.

The Court also notes that Provence brings claims against the following Barge Owners, in personam, RTI Barge Management, Inc., Cargill, Incorporated (incorrectly identified as Cargo Carriers), and SCF Marine, Inc. along with the following vessels in rem: Barge RTI 430, Barges CC 95538B, CC 95152, CC 1501, MTC 1576, AGS 194, PML 910, PML 930, Barges SCF 26151B, SCF 14143B, SCF 24162B, SCF 24028, Bunge 14003, JIMBO 327B, Barge CHB 9952.[286] However, Provence failed to present evidence at trial demonstrating which barges allided with the SOLENT specifically. Therefore, the Court denies Provence's claim for damages against the Barge Owners, in personam, or the vessels, in rem.

3. Attorney's Fees

Finally, Cooper and Empire both request attorney's fees in this case.[287] As Cooper is the losing party, the Court will evaluate whether Empire may collect attorney's fees from Cooper. Federal courts retain an “inherent power” to order fees as sanctions where a “losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ”[288] The Fifth Circuit has held that a defendant who attempts to litigate a faultless plaintiff into submission when the defendant clearly knows of its own liability may be liable for the faultless party's costs and attorney's fees.[289]

Courts rarely award a party attorney's fees without applicable statutory provisions allowing a party to recover them.[290] Federal courts have an “inherent power to award attorney's fees,” but courts primarily limit its exercise to matters where a party has acted in bad faith.[291] For a court to find a party's conduct was in bad faith, the conduct must meet a high bar of misbehavior.[292] Even when statutory provisions provide parties opportunities to collect attorney's fees, such awards are typically limited to demonstrations of bad faith or egregious misbehavior.[293]

*24 There is no statute that allows recovery in this case, so the Court looks to evidence of bad faith behavior.[294] Empire argues that an award of attorney's fees is appropriate because Cooper did not present direct evidence, did not present a competent witness to testify to causation, and based its case on the testimony of corporate witnesses and an unqualified surveyor.[295]

Cooper brought a claim for damages resulting from the allision of the AGAPI S with barge block one of its fleet and subsequent breakaway from barge block four.[296] Cooper based its case on burden-shifting presumptions under the Oregon Rule and passing vessel presumption.[297] Cooper did not present direct evidence to support its theory that the AGAPI S caused the breakaway at block four, but introduced several pieces of indirect evidence in an attempt to prove its case. Ultimately, the Court found that the AGAPI S caused damage to Cooper's Fleet due to its allision with block one, but the Court also found that Cooper did not meet its burden to prove causation tied to the breakaway at block four. While the Court rejected some of Cooper's arguments and did not find all the evidence Cooper presented persuasive, the Court finds no indication that Cooper's actions met the high standard of bad faith in pursuit of its claims.[298] Therefore, the Court finds that neither party is entitled to the recovery of attorney's fees.

For the reasons stated above, this Court finds that Plaintiff Cooper has failed to carry its burden of proving that Empire is liable for the breakaway at block four of the Cooper Darrow Fleet. Instead, Cooper Consolidated, LLC is liable to Provence in the amount of $66,949.77 plus pre-judgment and post-judgment interest for damages incurred to the SOLVENT following the breakaway of the barges at block four.

However, Empire and the AGAPI S, in rem, remain liable to Cooper for proven damages related to the allision at block one of the Cooper Darrow Fleet. The Court finds that these parties are liable to Cooper for $7,255.00 plus pre-judgment and post-judgment interest based on damage to the CHB 9952, the assignment agreement between the parties, and damage to the buoy of barge block one.

Accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Plaintiff Provence for damages related to the breakaway at block four amounting to $66,949.77 plus pre-judgment interest at a rate of 5% per annum and post-judgment interest pursuant to 28 U.S.C. § 1961. This judgment shall be against Defendant Cooper Consolidated, LLC.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment in favor of Plaintiff Cooper for damages related to the allision at block one amounting to $7,255.00 plus pre-judgment interest and post-judgment interest pursuant to the rate set by 28 U.S.C. § 1961. This judgment shall be against Defendant Empire, in personam, and the AGAPI S, in rem