Have You Left Anything Behind?

By Marilyn Raia

It is not unusual for a moving vessel to create a wake, swell, or suction effect that causes damage to moored vessels it passes. And it is commonly thought a vessel is always liable for the effects of its wake. In fact, that is not true. This article addresses the presumptions and liabilities, if any, when a moored vessel suffers wake, swell, or suction damage.

The Duties of the Moored Vessel
Maritime law generally recognizes a rebuttable presumption of fault when a vessel’s wake, swell, or surge causes damage to a moored vessel. To raise the presumption of the passing vessel’s fault, the damaged vessel must first prove it was properly moored. That means the moored vessel’s mooring lines must have been sufficient in number, strength, and placement to minimize the effect of the passing vessel operating under expected speed and conditions. They must also have been appropriately tended.

Martin Marine Transp. Co. v United States, 66 F.Supp. 673 (E.D. Penn. 1946) illustrates the point. In that case, two tugs were towing a barge and found it necessary to tie up at mooring dolphins in a canal because of fog. The mooring dolphins were not the most convenient place to tie up but less risky than proceeding in the fog. No effort was made by the tug crews to slacken the mooring lines as the tide fell and the barge slid down the side shelf of the canal. A Coast Guard picket boat passed the tugs and barge within 100 feet and its bow wave caused the barge to move, and the barge’s stern lines to part. One of the tugs suffered damage when the barge’s lines parted. The tug owner sued the United States to recover for that damage alleging the picket boat’s speed and swells were excessive. Judgment was entered in favor of the United States. The judge held the picket boat was not negligently operated but the barge was moored in an unseaworthy manner, reasoning the lines would not have parted if they had been appropriately monitored by the tug crews and slackened as the tide fell.

On the other hand, the court in Shell Pipeline Corporation v. M/T CYS Alliance, 1982 AMC 389 (E.D. La 1981), found the damaged moored vessel’s mooring lines to have been too slack, and denied a recovery for damage caused by the wake of a passing vessel. In that case, a moored crude oil tanker surged when another tanker passed at a distance closer than normal because of a third vessel in the vicinity. The surging caused damage to the moored vessel’s unloading arm and manifold, which led to spillage of crude oil into the waterway. Because the mooring lines did not break, the court concluded they were too slack. Because they were too slack and not properly adjusted, they could not compensate for the effects of normal vessel traffic, precluding a recovery for the vessel damage because proper mooring could not be shown in the first instance.

The Duties of the Passing Vessel
Once proper mooring is established, a rebuttable presumption of fault by the passing vessel arises when wake damage occurs to a moored vessel. The moving vessel has a duty to consider the anticipated effects of its speed and motion through the water on vessels moored nearby. It must proceed carefully to avoid creating swells or suction that might cause damage. It must also take reasonable precautions to minimize the effects of its wake, including perhaps a reduction in speed and/or a course change. A vessel may even be required to proceed at a speed below steerageway, using tugs for steering.

In Gaines Towing and Transportation Incorporated v. Atlantia Tanker Corporation, 191 F.3d 633 (5th Cir. 1999) the court held the defendant solely at fault for damage suffered by a tug that was moored at a dock for unloading. Upon the request of the tug’s captain, the Coast Guard issued a slow bell broadcast to passing vessels. The defendant’s tanker slowed in response to the slow bell. However, when passing the moored tug, it still created a wall of water that caused the moored tug to surge and strike a portion of its berth. The district court held the tanker solely liable concluding it should have taken additional precautions given it was forewarned of the situation and chose to proceed under its own power, without tug assistance.

If the damaged vessel is properly moored, the passing vessel usually has a difficult time avoiding liability for wake damage if thePennsylvania rule is triggered. Readers may recall the Pennsylvania rule from a prior article. It is derived from an 1873 U.S. Supreme court case, The Steamship Pennsylvania, 86 U.S. (Wall) 125 (1873). Under the Pennsylvania rule, if a vessel in a collision is found to have violated a statute intended to prevent collisions, the violator must then prove the violation was not and could not have been the cause of the collision. It is a very difficult burden to sustain. The courts consider contact between a vessel’s wake and another vessel to be a collision to which the Pennsylvania rule may apply.

A violation of the safe speed rule, International- Inland rule 6, is commonly alleged in a wake damage case. That rule requires every vessel to proceed “at a safe speed so she can take proper and effective action to avoid collision….” In determining the safe speed, the vessel must consider various factors including visibility, traffic density, maneuverability, weather and sea conditions, and the vessel’s draft in relation to the depth of the available water. In the absence of any facts demonstrating an emergency situation requiring the vessel to travel at what might be deemed an excessive speed, it will be nearly impossible to show a violation of the safe speed rule did not contribute to the wake damage.

The presumption of fault by a passing vessel whose wake affects a moored vessel does not necessarily apply to a personal injury suffered by someone on the moored vessel. In Maxwell v. Hapag-Lloyd Aktiengesellschaft, Hamburg, 862 F.2d 767 (9th Cir. 1988), Maxwell was unloading fish from a fishing boat at a private dock when the wake of the defendant’s ship caused him to fall and break his leg. He alleged the ship was travelling at an excessive speed, failed to maintain proper control, and failed to give a warning. The Ninth Circuit held the presumption of fault does not extend to personal injuries resulting from an accidental fall on a properly moored vessel when the moored vessel itself does not suffer damage.

Comparative Fault
The principles of comparative fault apply in wake damage cases. The passing vessel and the damaged moored vessel can both be at fault, resulting in a reduction of the recoverable damages. In Creole Shipping Ltd. v. Diamandis Pateras, Ltd., 410 F.Supp. 313 (S.D. Ala 1976), the freighter Pyramid Veteran was moored at a pier waiting for an unloading berth. The freighter Pateras passed the Pyramid Veteran and when doing so, created a suction effect that caused the Pyramid Veteran to surge fore and aft and away from the dock. As a result, some of the Pyramid Veteran’s mooring lines parted and the port gangway was damaged. When passing the Pyramid Veteran, the Pateras was being operated at slow and dead slow speeds, but from time to time the engines had to be “kicked ahead” to maintain steerageway. The court held the Pateras was not being operated at an excessive speed but was otherwise negligently operated because the vessel owner did not show “it was not in her power to prevent the injury by any practical precautions she could have adopted” under the circumstances. The court also held the Pyramid Veteran was not properly moored due to slackness in the mooring lines, which allowed the vessel to surge when the Pateras passed by. The court ultimately held both parties at fault, apportioning two-thirds of the fault to the Pateras and one-third of the fault to the Pyramid Veteran.

Wakes, swells and surges occur in the ordinary course of vessel operation. A moored vessel’s crew must take steps to properly moor the vessel to avoid damage resulting from the ordinary wakes, swells, and surges from passing vessels. A moving vessel has an obligation to pass a moored vessel carefully and avoid producing unusual wakes, swells and surges, taking into consideration many factors. If a properly moored vessel is damaged by the wake from a passing vessel, a presumption of fault by the passing vessel is raised. If the damaged vessel was not properly moored, no presumption is raised and the moored vessel may be held partially or totally at fault for the damage it suffered.

Marilyn Raia is of counsel in the San Francisco office of Bullivant Houser Bailey. She specializes in maritime and transportation matters and can be reached at marilyn.raia@bullivant.com.

Grand Alliance Shift Paying Off for Port of Tacoma

The Port of Tacoma handled 156,804 TEUs in August, nearly 30 percent more than the 120,848 TEUs moved during same month last year, according to newly-released data.

The leap is being attributed to various factors, primarily the beginning of the peak shipping season and the start of two new services associated with the Grand Alliance beginning to call at Washington United Terminals last month.

Uncertainty surrounding labor negotiations on the East and Gulf coasts also appears to be diverting cargo to the West Coast, according to the port.

As the peak shipping season began ramping up in Asia at the end of August for the holiday shopping season, the Port of Tacoma saw international container volumes post a 14.5 percent gain year to date.

So far during the calendar year, 1,024,896 TEUs have crossed port docks, accounting for a 7.5 percent increase compared to the about 953,000 that were moved during the same period last year. Import container volumes have improved nearly 18 percent year-to-date, while export container volumes jumped almost 11 percent, according to port data.

The strength in container volumes helped fuel a 25 percent year-to-date increase in intermodal lifts. Meanwhile, breakbulk volumes remain up about 85 percent, reflecting the continued high demand for agricultural and construction equipment.

The Grand Alliance is a consortium of three of the world’s largest shipping lines, Germany-based Hapag-Lloyd, Orient Overseas Container Line of Hong Kong and Japanese company NYK Line, along with associated carrier ZIM Integrated Shipping of Israel.

In July, the Alliance began three new calls each week at Washington United Terminals, having moved their business from the Port of Seattle.

Port of Metro Vancouver Monthly Container Volumes Rise

Canadian Port of Metro Vancouver’s monthly container volumes were strong in August 2012, with the facility’s terminals moving a total of 242,821 20-foot equivalent units last month, up from 215,765 TEUs in August 2011.

The port has had a good year so far when it comes to both full and empty container movement and that streak continued last month, as Canada’s largest port saw more than 208,200 full TEUs in August, about 123,000 of which were inbound and almost 85,000 outbound. By comparison, about 188,820 full TEUs traveled through the port during the same month last year, including 116,700 inbound containers and 72,120 outbound.

Regarding empty TEUs, Metro Vancouver saw 34,600 last month, more than 26,400 of which were outbound and 8,100 inbound. Last August, the port saw just more than 26,940 empty containers, 22,000 of which were exports and almost 4,900 of which were imported.

Additionally, container volumes through the first eight months of the year were more than eight percent higher than the same time period last year at Metro Vancouver. Port terminals moved 1.78 million TEUs from January through August 2012, a jump of 135,573 TEUs, or 8.2 percent, from the same time period in 2011. The number of imports and exports both rose by healthy amounts during the stretch.

Just more than 976,250 TEUs were imported through the port last month, a jump of about 104,570 containers, or 12 percent, from the 871,680 that were brought in during August 2011.

Also, port terminals exported about 813,430 TEUs in August 2012, an increase of about 31,000, or 4.0 percent, from the 782,430 that were shipped out during the same month last year.

According to American Association of Port Authorities rankings, Port Metro Vancouver is the largest port by container traffic in Canada and fourth largest in North America, after the ports of Los Angeles, Long Beach and New York/New Jersey.

Port of Anchorage Expansion Assessment Due Soon

A US Army Corps of Engineers assessment of the Port of Anchorage expansion project is due in late October, just days before voters will decide whether to approve a $453 million bond proposition that includes $50 million for the port.

In an interview with the Alaska Journal of Commerce published Sept. 21, new port general manager Rich Wilson said that in addition to the Army Corps assessment, a revamped version of the port’s expansion plan would be coming in the spring of 2013.

“Our overall goals are to hold the line on rates for service, offsetting our cost increases; to sustain reliability of service,” he said, “and to take advantage of new technologies as they develop.”

Part of the agenda, he said, is to develop a long-range business plan on which to base the expansion. Wilson, who assumed his post four months ago, told the AJC that he hopes to have a contractor on board by October to develop the business plan, the first part of a port master plan.

The expansion, which has been in the works for more than a decade, was originally estimated to cost $360 million, and was supposed to be complete by 2011. Instead, cost estimates have jumped to more than $1 billion and continue to climb. A completion date is at least a decade away, according to previous port estimates.

Until earlier this year, the project had been overseen by the US Maritime Administration, but the city of Anchorage assumed responsibility on May 31, just two weeks after Wilson became the port’s executive director.

Currently, the Port of Anchorage handles about four million tons of freight annually, including about 80 percent of the food and other supplies for South-Central and Interior Alaska.

LA Harbor Board Approves Dredging Funding

The Los Angeles Harbor Commission has approved $7.5 million for the final phase of a project to deepen the port’s main channel. Under the project, the port’s main navigational channels and basins are being extended to a 53-foot depth.

The project’s final phase, for which the board approved funding Sept. 20, involves removal of dredge surcharge material and completion of a shallow water habitat in the outer harbor. Dredging and basin turning has already been completed.

“Channel deepening has been our single-most important infrastructure priority,” Port of Los Angeles Executive Director Geraldine Knatz said. “The completion of this project is critical to meeting the needs of the shipping lines that call at our port and growing our cargo business.”

The port’s nine container terminal tenants rely on the deep channels at the port to move cargo. According to the port, container terminals generate about 74 percent of port revenues. The port says the 15-year, $370 million project is expected to be completed in early 2013.

Gulf Coast Ports Focus South

By Jim Shaw 
Pacific Maritime Magazine September 2012

Ports along the Gulf of Mexico are continuing to focus on developments to the south, in particular the new locks at the Panama Canal, due to be completed in early 2015, and the expanding economies of Latin America. While the enlarged locks at Panama will route larger container ships through the Caribbean they will also allow bigger bulk carriers to load at Gulf ports for Asia. This is expected to lure some Asia-bound bulk commodities currently moving to West Coast ports by rail south to Gulf gateways for export. In anticipation of this shift several new high-capacity floating cranes are being acquired by Mississippi river-based midstream operators while new bulk terminal developments are underway in Louisiana, Texas, Mississippi and Florida. Expanded container traffic is also being eyed, particularly by the ports of Tampa, Mobile, New Orleans and Houston, while cruise ships have not been forgotten. The latter vessels, in fact, are finding a growing customer base in the Gulf area as new facilities are developed and the destruction wrought by hurricane Katrina of 2005 is largely repaired. This will mean addition business for such ports as Tampa, New Orleans and Galveston as cruise ship operators reposition larger vessels to take advantage of expanding demand.

Tampa Bay
On the eastern fringe of the Gulf, in Tampa Bay, Florida’s Port Manatee has inaugurated cargo operations at its new Berth 12. Port Manatee Executive Director David L. McDonald said the 1,600-foot-long berth can accommodate Panamax-sized vessels and will eventually be joined by an adjacent 52-acre container terminal. The latter will be developed to attract new cargoes expected after completion of expansion work at Panama. Berth 12 has a 41-foot depth of water alongside and is served by two mobile harbor cranes. The berth and planned box terminal are considered the final pieces of Port Manatee’s 11-year, $200 million port modernization and expansion program. However, while Berth 12 has been completed on time and on budget a second project at the port, covering the development of a new LNG terminal, has fallen well behind schedule. The $850 million Port Dolphin Energy project envisioned the laying of a 36-inch diameter offshore natural gas pipeline in a water depth of 100 feet some 28 miles southwest of Tampa Bay. LNG tankers would connect to the pipeline and send gas into Port Manatee where it would be routed though existing lines for distribution but the sudden wealth in domestic natural gas has dampened demand for the facility. Nevertheless, developers, including Norway’s Höegh group, say the facility may still be completed by late 2016 or early 2017 to bring domestic LNG into Florida from Louisiana and Texas.

Alabama
Next door in Alabama the Alabama State Port Authority (ASPA) is moving forward with a number of modernization and expansion projects at the Port of Mobile. One of the most important is construction of the Garrows Bend Intermodal Container Transfer Facility (ICTF), a project that, when finished, will directly connect containerized imports and exports from Mobile’s docks to major railroad lines across the country. Earlier this year the US Department of Transportation approved a $12 million TIGER grant for Phase 1 of the project, which is expected to cost over $30 million to fully complete, including site stabilization, a rail bridge, rail tracks and paving.

To be constructed adjacent to APM Terminal Mobile, formerly known as the Mobile Container Terminal, the ICTF will cover 62 acres and have three working tracks, three support tracks and a run-around track, with the total complex capable of handling three unit trains per day.

Another port project, expected to be completed later this month, is the construction of an additional cargo storage area at Pier C North where an existing rail car conveyor pit, transit shed foundation and several unused rail lines have been removed and the site paved over. This is giving the port an additional 244,840 square feet of laydown area for such cargoes as steel beams, hot rolled coils and steel plates. The additional area is needed to support nearby steel mills operated by Germany’s ThyssenKrupp that are beginning to move more cargo through the port, with steel volume more than tripling to 3.6 million tons over the last two fiscal years.

St. Bernard
Looking at expanding dry bulk commodity shipments off the Gulf, Associated Terminals LLC at St. Bernard, Louisiana has taken delivery of its seventh barge-mounted Gottwald crane for river stevedoring work after having the 8400B model unit installed on a barge fabricated by Conrad Industries. Associated has been using its fleet of floating cranes, including six 6400B models, for midstream cargo handing operations between mile markers MM 56,8 and MM 141 on the lower Mississippi. The 8400B model 8, which is of higher capacity than the earlier 6400Bs, will be used to transship dry bulks such as ores, coal, grain and fertilizers between seagoing vessels of up to 1,150 feet in length and inland waterway barges.

According to supplier Demag Cranes the 8400B can cope with loads of up to 100 tons while having an 63-ton grab curve. Depending on operating conditions the barge-mounted unit can handle up to 1,850 tons of dry bulk materials per hour.

The crane brings to 15 the number of Gottwald cargo handling cranes working on the lower Mississippi, with another 8400B model to follow shortly. This unit, to be delivered by Demag to Impala Warehouses LLC, will be used at the Burnside Terminal operated by Impala in Ascension Parish, Louisiana where it will predominantly handle bauxite and coal.

South Louisiana
In Louisiana’s St. James Parish the Port of South Louisiana is moving ahead with plans to build a new container facility on the Mississippi at the Bonnet Carre Spillway between New Orleans and Baton Rouge. The port’s engineering consultants, URS, have been studying a site near the Spillway where a 2,000-foot long dock and adjacent container yard and intermodal rail facility could be constructed for approximately $760 million. Additional construction phases would bring the total project cost to about $1.3 billion. The port is seeking $16.8 million in startup costs from the state, but port officials say most of the project would be financed through private investors. Joel T. Chaisson, the port’s executive director, said URS picked the Spillway site because of its proximity to the Kansas City Southern and Canadian National railroads as well as to Interstate route 55.

The port had earlier been in discussions with the US Army Corps of Engineers about building a dock across the front of the spillway but the current proposal places the dock in an area known as the Forebay where it wouldn’t impede water flow through the spill structure. Another advantage of the latest site is that it is adjacent to an existing anchorage on the Mississippi, although there is some local concern about the impact the terminal would have on the nearby Montz Park, which lies within St. Charles Parish.

New Orleans
The Port of New Orleans has completed a major expansion of its Napoleon Avenue container terminal while also consolidating two small cruise terminals to form the new $20 million Julia Street Cruise Terminal. Improvements at Napoleon Avenue, now the port’s premier container operation, include the addition of two new gantry cranes capable of a 19-row-across reach and an additional 4.5 acres of marshaling area. This gives the facility a capacity to handle about 640,000 TEUs per year and represents a $36.4 million investment. The box terminal is operated by Ports America and New Orleans Terminal, a joint venture established between the Mediterranean Shipping Company (MSC) and local terminal operator Ceres Gulf Inc. Besides MSC, a number of major ocean carriers, including Hapag-Lloyd, CMA-CGM, Seaboard Marine, Maersk, CSAV and Zim, will be making use of the terminal on a regular basis.

Down river from Napoleon Avenue the newly consolidated Julia Street Cruise Terminal is expected to host nearly 1 million cruise passenger embarkations and disembarkations annually while serving as a seasonal homeport for Royal Caribbean International and Norwegian Cruise Line. At the same time, the port’s nearby Erato Street Cruise Terminal, which opened in 2006, is continuing to serve as a year-around base for Carnival Cruise Lines.

Galveston
Another port looking at the expansion of cruise facilities is the Port of Galveston, Texas, which operates cruise berths at Pier 25 and Pier 27 but needs additional capacity to support five ships that will be sailing from the port by the end of the year. Two of these, Carnival Cruise Lines’ Carnival Magic and Carnival Triumph, will be sailing year-round while Royal Caribbean International’s Mariner of the Seas will operate out of Galveston only during the winter months. However, next month Disney Cruise Line will position its Disney Magic to the port while Princess Cruises will launch winter sailings with its 113,000-gt Crown Princess starting in December. Finding space for all these ships is becoming a problem and some lines have already had to modify their schedules to avoid having three ships in port on the same day. In June, Galveston’s Board of Trustees approved an agreement between Galveston Port Facilities Corporation and the design and consulting firm of CH2M Hill covering a conceptual study of how to host additional ships on the same day.

Last year, Galveston spent about $12 million on improvements to its facilities used by Carnival so that it could handle the line’s larger and longer vessels. Since then, TMP-PRISMA Marina Management LLP, which is affiliated with the Texas, Mexico & Pacific Railroad, has indicated it would like to form a public/private partnership with the port to develop about 96 acres of port-owned land on Pelican Island for the development of a new combination cruise and cargo terminal. Land on the island has also been earmarked for the potential development of a container terminal by the port as well as a large dry bulk handling facility by private investors.

Freeport
Another Texas port looking at new terminal development is the Port of Freeport, which enjoyed its best fiscal year ever in 2011 when total cargo volume rose to a record 2,102,431 tons, up a remarkable 16.3 percent from the port’s previous high posted in fiscal 2010. At the same time, Freeport’s total operating revenue rose 10.9 percent to a new record of $15.6 million. This has been during a period when many ports in the US and abroad have been witnessing declining volumes and revenues. Among significant contributors to Freeport’s banner year was drilling company Transocean Ltd, which used the port as a base for shuttling materials and personnel to and from its operations in the Gulf of Mexico.

Freeport has also continued to maintain its position among the top three US gateways for banana imports while moving steadily into the handling and storage of wind energy components. The port is currently moving forward with its Berth 7 construction project, considered a key element in the development of the new Velasco Terminal, which at full build-out will feature three deepwater berths and 90 acres of backlands.

The terminal is to benefit from a channel widening and deepening program expected to get underway next year. In April, Phyllis Saathoff, the port’s managing director since 1994, was named interim executive director and CEO following the retirement of A.J. “Pete” Reixach Jr. after 20 years of service. Pete has since been elected chairman of the American Association of Port Authorities (AAPA) board.

Corpus Christi 
In western Texas, the Port of Corpus Christi has entered into a sales agreement with Oxy Ingleside Property Holdings, LLC, a wholly owned subsidiary of Occidental Petroleum Corporation (Oxy), for the purchase of approximately 816 acres of the former US Naval Station Ingleside and more than 460 acres of adjacent port-owned property for $82.1 million. Closing on the sales agreement, which includes a separate $7 million bid for the Naval Base’s 100-acre “Campus” section, is expected to take place shortly.

The pier at the naval base site was earlier sold to Flint Hills Resources for $8.5 million. Oxy is the third-largest US oil and gas company by market capitalization and its wholly-owned subsidiary, Occidental Chemical Corporation, has operated a chemical plant at Ingleside since 1987.

The new Ingleside acquisition will allow an expansion of the company’s current operations in the area and may include the construction of infrastructure that would allow liquefied petroleum gas (LPG) to be loaded onto barges at the site. In addition to the Oxy agreement the port is continuing its negotiations with Ambre Energy and Cline Mining Corporation concerning the possible construction of a new coal export terminal within the port’s 1,100-acre La Quinta Trade Gateway complex. If built, this facility would have a capacity to move more than 20 million tons of coal annually. La Quinta is also being marketed by the port as a future container terminal and industrial park site. To streamline rail operations at the site the port will use a $10 million federal grant to partially fund an $18 million modernization and expansion of the Nueces River Rail Yard. Last year Corpus Christi handled over 80 million tons of cargo, the bulk of it petroleum products.