Feds Sue Towboat Operator Over McAlpine Strike

Federal prosecutors are suing Florida Marine Transporters (FMT) over damage to the McAlpine Locks and Dam that occurred during a barge breakaway on January 23, 2023. TV station WAVE in Louisville, Ky., broke the news of the lawsuit. The McAlpine Locks and Dam are located at Mile 606.8 of the Ohio River on the Kentucky side. The lawsuit was filed in the Western District of Kentucky/Louisville Division on January 22, the last day before the maritime statute of limitations for civil recovery expired.

The case has a number of unusual features compared to other barge allisions with lock and dam infrastructure, including other strikes at McAlpine. The government is suing under provisions of the 1899 River and Harbors Appropriations Act that allow it to recover damages to its infrastructure in civil court. Courts have interpreted the Rivers and Harbors Act of 1899 (specifically Section 408) as applying a three-year statute of limitations for civil recovery actions, triggered from the time of the incident.

The complaint says, “The mv. Louis Develle and its tow of barges, as moving vessels that allided with various stationary objects, are presumptively at fault under the Oregon Rule.” The Oregon Rule, established in maritime law by the 1895 Supreme Court case The Oregon, presumes that in any allision between a fixed object and a moving object, the burden of proof rests with the moving object.

The damage totaled more than $33 million, the complaint alleges, with the replacement of one tainter gate alone costing $29 million. A damaged mooring cell also needs to be replaced, according to the lawsuit. Freeing the barges required joint efforts by the Corps of Engineers, FMT, the Coast Guard and LG&E (Louisville Gas & Electric). The final barge didn’t pass through the dam gate until April 4. Tainter Gate No. 1 was made inoperable and removed from service, and Tainter Gate No. 3 will require extensive repairs.

The Corps of Engineers investigated the damage. No investigation was conducted either by the National Transportation Safety Board or the U.S. Coast Guard. Prosecutors allege that the towboat and its operators failed to navigate, to operate the vessel safely and to properly hire, train and supervise the crew.

The damage continues to affect the operation of the dam, the complaint alleges, and the Corps of Engineers does not have the money for repairs, although design work has begun on a replacement tainter gate.

The mv. Louis Develle was a 120-foot-long, 35-foot-wide towboat built in 2019 by FMT Shipyard & Repair LLC of Harvey, La., and powered by Caterpillar 3512C diesel engines that produce 4,022 hp. The vessel was later renamed R Stewart and is currently operated by Kirby Inland Marine LP of Houston, according to the Inland River Record.

According to the federal complaint, at 4:30 a.m. on January 29, 2023, a 15-barge tow of coal pushed by the mv. Louis Develle struck a vane dike mooring cell, damaging the cell and causing the tow to break apart. Ten of the barges floated downriver to the LG&E hydroelectric plant and McAlpine lower dam, according to the lawsuit. Seven of the barges got caught on the power plant intakes, the allegation stated, with three pinned against the lower dam’s piers. One barge became submerged against Tainter Gate No. 1.

The McAlpine Dam controls a 72.9-mile-long navigation pool with two separate dams regulating water levels within the pool. McAlpine’s two dams, which are known as the “upper” and “lower” dams, are separated by a concrete fixed weir that is approximately 1.25 miles long. The lower dam is located at the downstream end of Shippingport Island, next to the LG&E Hydropower Plant, and consists of four radial tainter gates supported by concrete piers. The lower dam tainter gates are each 100 feet wide and 22 feet tall.

Florida Marine Transporters is one of the largest inland barge operators, with more than 1,000 barges and a fleet of more than 100 towboats.

No trial date has been set at this writing. Florida Marine Transporters declined to comment when contacted by The Waterways Journal.