Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW SHAW, District Judge. This matter came before the Court for trial on July 24, 2001. This maritime case involves a barge breakaway which occurred on the Mississippi River near St. Louis, Missouri. Plaintiff American River Transportation Company, Inc. (“ARTCO”) brings the present action against defendants Paragon Marine Services, Inc. (“Paragon”) and consolidated Grain and Barge Co. (“CGB”), seeking $1,544,713.00 for barge repairs, cargo loss, salvage costs, shifting and surveying costs and related expenses; and pre-judgement interest, compounded annually, at 8.52 percent per annum on $1,544,713.00, from April 24, 1998 to the date of judgment. The Court having heard the evidence and statements of counsel, and having carefully reviewed the parties’ post-trial briefs and proposed findings of fact and conclusions of law, now finds and concludes as follows: FINDINGS OF FACT 1.ARTCO operates barge fleets along the upper Mississippi River in the St. Louis Harbor, where the river barges are moored (Vol. II — p. 3, 1. 15-19). These fleets include fleets at the foot of Lesper-anee Street and Barton Street, as well as two fleets at Plaintiffs Reidy Terminal, which are referred to as Upper and Lower Reidy fleets. (Vol. II — p. 3,1. 24 to p. 4,1. 1). 2. ARTCO’s Lesperance Street fleet is located at Mile Marker 177.9 on the Missouri bank (Vol. II — p. 10, 1. 21-25). This fleet is used to moor loaded barges (Vol. II — p. 11,1. 1-4). On the evening of April 24, 1998, the Lesperance Street fleet consisted of two strings of fleet barges, as well as forty-four additional barges, tied off in nine strings of various lengths (Plaintiffs Exhibit 108). One barge, the ART 381, was located at the head of the Lesperance Street fleet, four barge widths to the outside of the main tie off (Id.). 3. ARTCO’s Barton Street fleet is located at Mile Marker 177.6 on the Missouri bank (Vol. II — p. 11,1. 5-9). Prior to the breakaway, the Barton Street fleet consisted of two fleet barges, as well as twenty-four additional barges, with nine barges across the head of that fleet (Plaintiffs Exhibit 109). 4. ARTCO’s Upper Reidy fleet is located at Mile Marker 175.1 on the Missouri bank (Vol. II — p. 11, 1. 12-16). This fleet is approximately two and a half miles down river from the Barton Street fleet (Vol. II — p. 11, 1. 21-24). Prior to the breakaway, the Upper Reidy fleet consisted of five fleet barges, as well as thirty-six additional barges, tied off in eight strings of various lengths (Plaintiffs Exhibit 110). 5. ARTCO’s Lower Reidy fleet is located at 174.9 on the Missouri bank, immediately below ARTCO’s Upper Reidy fleet (Vol. II — p.12,1.3-4). Prior to the breakaway, the Lower Reidy fleet consisted of one string of four fleet barges, as well as forty-six additional barges, tied off in ten strings of various lengths (Plaintiffs Exhibit 108). 6. In April of 1998, Defendants Paragon and CGB operated a total of nine barge fleeting areas along the upper Mississippi River near St. Louis (Vol. II — p. 3, 1. 20-23), including the Valley Main fleet (Vol. II — p. 3, 1. 21). At these fleets Defendants moored customer barges for a fee (Vol. IV — p. 7, 1. 2-19). Defendants’ Valley Main fleet is located on the Missouri bank of the Mississippi River, approximately 1,500 feet upriver from ARTCO’s Lesperance Street fleet (Plaintiffs Exhibit 104A, 105). The current flows “south from the Paragon fleet directly into the head of the Lesperance [sic] fleet ... (Vol. VB — p. 13, 1. 8-10).” Between the Valley Main and Lesperance Street fleets, the current flows straight down river, with a slight set towards the Missouri bank (Vol. IIIA — p. 77.1. 2-14). 7. CGB and Paragon are interconnected companies. In April of 1998, CGB owned twenty-five percent of Paragon stock (Vol. VIB — p. 9, 1. 20-23; Plaintiffs Exhibit 114, p. 38, 1. 16-20). Mr. DeVan Janssen, Vice-President of CGB, served simultaneously as a member of the board of directors of Paragon (Vol. VIB — p. 9, 1. 24 to p. 10, 1. 6; Plaintiffs Exhibit 114, p. 39.1. 2-13). 8. In addition, Paragon and CGB had a written fleeting agreement which governed the operation of Defendants’ fleets in the St. Louis Harbor, including the Valley Main fleet (Plaintiffs Exhibit 114, p. 33, 1. 13-23). According to the terms of the agreement, Paragon agreed to consult with CGB concerning the number, identity and qualifications of persons Paragon assigned to the fleets (Plaintiffs Exhibit 114, p. 37, 1. 22 to p. 38, 1. 6). CGB had the right, under the terms of the agreement, to approve or deny any addition or improvement to equipment which cost more than $5,000 (Plaintiffs Exhibit 114, p. 50,1. 7 to p. 51, 1. 2). CGB bore sole financial responsibility for the operation of the Paragon fleets, and reimbursed Paragon for all maintenance and expenses incurred (Plaintiffs Exhibit 114, p. 42,1. 22 to p. 43,1. 13). 9. Prior to the breakaway, barge ING 5565 was moored upstream of every other barge involved in the breakaway (Vol. IVB — p. 31,1. 6-9). 10. The ING 5565 is a steel barge with dimensions of 195 feet long by 35 feet wide by 12 feet deep and was loaded with fertilizer (Vol. II — p. 4, 1. 22-24). The loaded barge weighed 1,700, tons or 3,400,000 pounds (Vol. V-A, p. 30). The ING 5565 has one rake (or sloped) end and one box (or square) end. The box end corners of the barge have a smaller radius than the rake end corners, and the box end sits lower in the water than the rake end (Vol. VI-B, p. 42,1. 21 to p. 43,1.1). 11. On April 23,1998, the Motor Vessel R. CLAYTON McWHORTER delivered barge ING 5565 to Defendants at approximately 10:15 a.m. (Vol. II, p. 4, 1. 20-22; Vol. IV-A, p. 15, 1. 10-15; Plaintiffs Exhibit 6). 12. Defendants’ tug, the M/V FRANCIS, took control of the ING 5565 (along with several other barges) and placed that barge into the Valley Main fleet (Vol. II, p. 4,1. 25 to p. 5,1. 2). 13. The crew of the FRANCIS tied off the barge at the head of the fleet on the “outside” string, which is the string closest to the middle of the channel and furthest from the river bank (Vol. II, p. 5, 1. 2-4; Vol. IV-A, p. 15,1. 18-21). The ING 5565 was moored with the rake (bow) end upstream and the box (stern) end downstream (Vol. VI-B, p. 42,1.15-20). 14. The ING 5565 remained in Defendant’s Valley Main fleet through April 23, 1998 and into April 24,1998. 15. James Patterson, the President of Paragon, testified that Paragon charged a fee to Ingram Barge Line, the owner of the ING 5565, for fleeting that barge in the Valley Main fleet in April of 1998 (Vol. VI-B, p. 23,1. 3-6). 16. Mr. Patterson stated barge ING 5565 was in the exclusive custody and control of Paragon at the time of the breakaway (Vol. VI-B, p. 23, 1. 7-9). He admitted that Paragon bore full responsibility for the ING 5565 while the barge was in its custody. (Vol. VI-B, p. 23, 1. 7-12). 17. The operations manager for Paragon, Mr. Karl Berthelot, testified that when a barge such as the ING 5565 is delivered to Paragon, it is the responsibility of Paragon to fleet the barge safely (Vol. IV-A, p. 7,1.12-19). 18. The river stage in the St. Louis harbor on the morning of April 24,1998, at 7 a.m. was 28.4 feet (Vol. II, p. 5, 1. 5-8; Plaintiffs Exhibit 82); the next morning, the river stage was 27.6 feet (Id.). Flood stage on the St. Louis gauge is 30 feet (Vol. II, p. 5, 1. 8-10; Plaintiffs Exhibit 104A). 19. Numerous witnesses testified that the current was swift on the night of the breakaway, including: Paragon deckhand Robert Floyd (Vol. IV-A, p. 55, 1. 19-22); ARTCO mates Tony Impennachio (Vol. II, p. 31,1. 25 to p. 32,1. 2) and Jason Powers (Vol. II, p. 79,1. 5-7); Dwayne Vandygriff, the pilot of a harbor tug operated by Lewis & Clark Marine (“Lewis & Clark”) known as the MTV MISS JULES (Vol. II, p. 92, 1. 10-11); and, a mate aboard the MISS JULES, William Housley (Vol. IVA, p. 55,1.19-22). 20. Jeff Terrell, the pilot of the MW JOHN H. MACMILLAN estimated the current speed was 7 to 8 miles per hour (Vol. III-A, p. 17, 1. 20). Engineer Paul Weiss estimated the current speed in the stretch of river involved at 5 — 10 miles per hour (Vol. V-A, p. 27, 1. 16 — p. 28, 1. 9). 21. At 6 p.m. on April 24, 1998, five barges were tied off in the Valley Main fleet, with two strings consisting of two barges each, with the ING 5565 moored on the outside of the two strings at the upstream end (Vol. IV-A, p. 43,1.12-24; Vol. II, p. 4,1. 15-19). Plaintiffs Exhibit 106 is a diagram that depicts the configuration of the barges in the Valley Main fleet at this time. 22. The M/V FRANCIS and the M/V JOHN WALKER, Paragon tugs, shifted the inside string of two barges out of the Valley Main fleet at approximately 6:45 p.m.(Vol. IV-A, p. 47, 1. 20-23; Plaintiffs Exhibit 14 and 15). To perform this maneuver, the FRANCIS faced up to the downstream end of barge ING 442 (Vol. IV-A, p. 44,1. 16-22). The JOHN WALKER faced up to barge DPT 101 and shifted the outside three barges, including the ING 5565, out into the river, to allow the FRANCIS to remove the inside string (Vol. IV-A, p. 45, 1. 6-24). Plaintiffs Exhibit 106 shows the position of the two tugs and the barges in the Valley Main fleet when the barge shifting began. The JOHN WALKER pulled the three outside barges approximately seventy feet out into the channel (Vol. IV-A, p. 46, 1. 10-16). After the FRANCIS removed the inside string, the JOHN WALKER maneuvered the three barges it was holding back into the Valley Main fleet, landing them against the fleet barges (Vol. IV-A, p. 47, 1. 6-12). 23. When the shifting procedure had been completed, the barges were configured in the following manner, which is depicted in a diagram that is Plaintiffs Exhibit 107. The ING 5565 was at the upstream end of the Valley Main fleet and was the outside barge in that fleet (Vol. IV-A, p. 12, 1. 9-22; Plaintiffs Exhibit 107). The ING 5565 was five barge-widths, or about 140 feet, from the river bank and was tied off on its port side to the starboard side of another Ingram barge, the ING 5561. The ING 5565 was moored with its rake end upstream and bow end downstream. The ING 5565 was moored only to the ING 5561, as there were no barges on its bow end, stern end, or starboard side. 24. Paragon crewmembers never inspected the tie-offs between the ING 5565 and the ING 5561, after those barges were shifted out into the river and back into the fleet, to determine if the tie-offs were secure (Vol. VI-A, p. 38, 1. 16-25). Crew-members of the Paragon crew testified they checked the tie-offs between those two barges before the shift, but not after the shift (Vol. VI-A, p. 38, 1. 16 — p. 39, 1. 2). 25. At about 7:30 p.m. on the evening of the breakaway, the crew of an ARTCO tug, the M/V BILL PEHLER, went to Plaintiffs Lesperance Street fleet to inspect the tie offs in that fleet and to place lights on the outside corners of the fleet (Vol. II, p. 81,1.12-13). 26. Mate Jason Powers and deckhand Maury Gardner walked across the head of the Lesperance Street fleet and inspected the wires to insure that each wire was tight and properly secured (Vol. II, p. 81,1. 14-16). Mr. Powers testified that the barges at the head of that fleet were properly tied off with 1" diameter steel wires, that were tightened by winches (Vol. II, p. 81,1. 1-11). Plaintiffs Exhibit 87F depicts the manner in which the barges in the Lesperance Street fleet were secured that evening (Vol. II, p. 81,1. 5-11). 27. Prior to the breakaway, the Les-perance Street fleet held forty-two loaded barges and three empty barges. The barges were secured in a manner that complied with all applicable governmental regulations (Vol. IV-B, p. 11,1. 22 to p. 12, 1. 8; Plaintiffs Exhibit # 108). The ART-CO fleets were their usual width on the night of the breakaway (Vol. IV-B, p. 11,1. 6-10). 28. Barge ART 381 was located at the head of the Lesperance Street fleet, five barges in from the riverward side of the fleet. Plaintiffs Exhibit # 108 is a diagram of barges in the Lesperance street fleet, including the ART 381. The ART 381 was loaded and moored with its rake end facing upstream, toward the Valley Main fleet where the ING 5565 was moored (Vol. IV-B, p. 3,1.18-22). 29. At approximately 9:30 p.m., about three hours after the Paragon tugs shifted the ING 5565 and other barges in the Valley Main fleet, the ING 5565 barge came free from its moorings and drifted down river, unattended, in a swift current (Vol. IV-A, p. 16,1. 3-7). 30. As discussed more fully below, the runaway ING 5565 barge struck ARTCO’s Lesperance Street fleet, causing the steel wires seeming barges in that fleet to break. The ING 5565 impacted the ART 381 at approximately the center of the headlog at its bow end (Vol. V-A, p. 40, 1. 12-18). The damage sustained by the ART 381 is depicted in photographs that are Plaintiffs Exhibits 87A, 87B, 95B4 and 95C3. 31. The rigging between the ART 381 and the PCBL 176, an adjacent barge in the Lesperance Street fleet, broke (Vol. VA, p. 40, 1. 12-20), as did other wires between the fourth and fifth strings of barges at Lesperance Street fleet (Vol. VA, p. 41,1. 1-8). Numerous photos, including Plaintiffs Exhibits 95G3, 95E4, 9503, 95E3, 95D3, 95J3, 97C, 97E, 97F, 97G, 97H, 971, 97J, 97K, 97L, 97M, 102E, 102F and 102G, depict the broken wires from the Lesperance Street fleet as they existed after the breakaway. 32. The five outside strings of barges broke free and came out of the Lesperance Street fleet (Vol. IV-B, p. 3, 1. 18-22). These 25 barges are depicted in light green on Plaintiffs Exhibit 108. The barges, all of which were loaded with cargo, drifted downriver and struck the Barton Street fleet, knocking additional barges out of that fleet, as depicted in Plaintiffs Exhibit 109 (Vol. II, p. 5, 1. 18-20). The loose barges then drifted down to ARTCO’s Upper Reidy and Lower Reidy fleets and knocked barges loose from those fleets (Vol. III-A, p. 48, 1. 12-25). A total of 102 barges that had been moored in ARTCO’s fleets were knocked loose. Plaintiffs Exhibits 110 and 111 depict the barges knocked loose from the Upper Reidy and Lower Reidy fleets. In exhibits 108, 109, 110 and 111, barges knocked out a fleet, are shaded green, moored barges that stayed in the fleet are white, and the fleet barges are shaded brown. 33. Post-breakaway inspections of the Lesperance Street fleet, as well as barges that came out of that fleet, confirm that fleet was struck by a runaway barge. Many freshly broken wires were present in each of the ARTCO fleets involved— including the Lesperance Street fleet (Vol. III-A, p. 50,1. 18 to p. 51,1. 18; Vol. IV-B, p. 22, 1. 13-17). Numerous broken wires, including three wires used to tie off the ART 381 to the PCBL 176, were saved and several were introduced into evidence as Plaintiffs Exhibits 41, 42, 43, 44, 47 and 48. (Other broken wires saved were displayed at trial, but not entered in evidence due to their bulk.) 34. Capt. Jeff Terrell, the pilot of the M/V JOHN H. MACMILLAN, observed broken wires on many of the barges he gathered during the breakaway aftermath (Vol. III-A, p. 78, 1. 22-24). Another ARTCO employee, Mark Hatcher inspected the Upper and Lower Reidy fleets, the Barton Street fleet and the Lesperance Street fleet immediately after the breakaway and also observed numerous broken wires (Vol. III-A, p. 50,1.18 to p. 51,1.18). 35. Inspection of the broken wires revealed the breaks were fresh and consistent with overstressing from the impact of a runaway barge (Vol. IV-B, p. 45,1. 23 to p. 46,1. 1). The broken wires were frayed and had shiny steel ends (Vol. IV-B, p. 45, 1. 23 to p. 46,1.1; Plaintiffs Exhibits 95G3, 95E4, 9503, 95E3, 95D3, 95J3, 97C, 97E, 97F, 97G, 97H, 971, 97J, 97K, 97L, 97M, 102E, 102F and 102G). Mate Tony Im-pennachio explained, “[a] wire that has been cut will have a straight usually un-frayed edge. A wire that’s been popped or broken, the end of the wire frays out” (Vol. II, p. 46,1. 13-15). Shiny ends of a broken wire indicate the break is recent, as the ends have not begun to rust or oxidize. 36. A marine surveyor hired by Defendants, James Pritchard, inspected the barges that broke free from Lesperance Street fleet. Mr. Pritchard also found freshly broken wires which he explained were consistent with the Lesperance Street fleet experiencing an upstream end blow from a runaway barge (Vol. VI-B, p. 41, 1. 11-21). Marine surveyor James Manley testified, “[w]e were certain then, and I’m certain now, that the cause of the Lesperance Street breaking away was that the fleet was struck by the ING barge.” (Vol. IV-B, p. 85,1. 10-17). 37. Defendants argue that the Lesperance Street fleet should have been tied off in a manner so as to withstand the impact of the ING 5565. Engineers Paul Weis and William Manley testified barge fleet moorings are intended to withstand natural forces such as wind, waves and current, but not the impact of runaway barges; and that the ARTCO fleets were properly secured (Vol. V-A, pp. 34 — 36; Vol. IV-B, p. 50, 1. 14 — p. 51, 1. 4). The Lesperance Street fleet tie-offs were checked shortly before the breakaway and found to be secure (Vol. II, p. 81). 38. The only evidence presented at trial regarding the impact forces involved and the holding strength of wires used to tie off barges was the testimony of Mr. Paul Weis. Mr. Weis has been a civil engineer for over forty years (Vol. V-A, p. 23, 1. 22-25), with extensive experience in designing structures on the Mississippi River (Vol. V-A, p. 24, 1. 24 to p. 25, 1. 9). 39. Mr. Weis explained that the loaded barge ING 5565 weighed approximately 1,700 tons (or 3,400,000 pounds), which is the equivalent weight of 2,000 automobiles (Vol. V-A, p. 30,1. 4-14). 40. The steel cables securing the ART 381 to the PCBL 176 at the head of the Lesperance Street fleet were one-inch steel wire with a fiber core — the type of wire generally used to tie off fleets in the St. Louis harbor — and each wire was wrapped around deck fittings so there were three strands or “parts.” There were two cables secured in this manner between the ART 381 and the PCBL 176 at the upstream end of the barges, resulting in 6 strands of wire, and each wire was tightened by a winch. The holding capacity or tensil strength of the wires between those two barges was 41.8 tons of force (Vol. V-A, p. 34,1. 11-18; Vol. V-A, p. 35, 1. 23-25). 41. The force of impact when the ING 5565 hit barge ART 381 was more' than 40 times the holding strength of the wires securing the Lesperance Street fleet, according to Mr. Weis’ calculations (Vol. VA, p. 34, 1. 19-25). Thus, when the ART 381 was struck by the ING 5565, it was inevitable that rigging securing barges at the Lesperance Street fleet would break and barges moored in that fleet would come loose. As additional barges came loose and struck other fleets, the magnitude of the forces increased, making the breakaway of barges in fleets struck further downstream inevitable (Vol. V-A, p. 39,1. 15 — p. 40,1. 20). 42. At least fifteen tugboats from various harbor companies, including ARTCO, Paragon, Riverway Harbor Service (“Riv-erway”) and Lewis & Clark, responded to the breakaway (Vol. IV-A, p. 58, 1. 4-10). 43. When the breakaway began, eight or ten ARTCO boats were tied off near the ARTCO North dock, approximately three or four miles below the area where the breakaway began (Vol. II, p. 32, 1. 13-16). These boats had crewmembers aboard and were in danger of being struck by runaway barges and possibly sinking (Vol. II, p. 34, 1. 6-9). 44. ARTCO’s MV ANDREA LEIGH and MV BILL PEHLER, along with a tugboat owned by Lewis & Clark (which is not a party to this action), the MV MISS JULES, intercepted the runaway barges approaching the boats tied-off and guided those barges toward the middle of the river (Vol. II, p. 34,1.10-24; Vol. III-A, p. 93.1. 8-13; Vol. II, p. 91,1. 19-25; Vol. II, p. 92,1. 5-9). 45. After protecting the moored boats near ARTCO North, the various harbor tugs began gathering loose barges. After assisting ARTCO tugs in protecting the lineboats at the ARTCO North dock, the MV MISS JULES traveled downriver to attempt to corral loose barges (Vol. II, p. 93,1.10-16; Plaintiffs Exhibit 117). 46. The MISS JULES came across a barge adrift in the river in the general vicinity of ARTCO’s Reidy fleets (Vol. II, p. 94, 1. 8-10). This barge was a loaded barge and was not attached to any other barges (Vol. II, p. 95, 1. 16-17). Once the MISS JULES gained control over the barge, she brought that barge to the Arsenal Island fleet, on the Illinois side of the river (Vol. II, p. 96, 1. 21-25; Vol. II, p. 126.1. 22 to p. 127,1. 3). 47. The single loaded barge captured by the MISS JULES was the ING 5565, previously moored in Defendant’s Valley Main fleet. The mate of the MISS JULES, William Housley, identified the barge by number and testified that the MISS JULES faced up to the bow end of the ING 5565. (Vol. II, p. 124, 1. 18-25). 48. The deckhand aboard the MISS JULES, Davy Dippold, testified that the barge was an Ingram barge (Vol. III-A, p. 24, 1. 18-23)., The pilot of the MISS JULES, Capt. Dwayne Vandygriff, recalled that the barge captured by his crew was an Ingram barge, with the number six in its call number (Vol. II, p. 93, 1. 17-24). Mr. Vandygriff observed only one Ingram barge loose in the river on the evening of the breakaway (Vol. II, p. 97,1. 24 to p. 98, 1. 1). Of the 137 barges involved in the breakaway, the lone Ingram barge was the ING 5565. Exhibits 107, 108, 109, 110 and 111 are diagrams that depict the identifying letters and numbers of each barge involved in the breakaway, as well as the position of each barge in a fleet prior to the breakaway. As depicted in Plaintiffs Exhibit 94Q and 95A4, photos the ING 5565 taken shortly after the breakaway, “ING 5565” was clearly marked on the barge in large, white block letters. 49. Mr. Dippold testified that he grabbed a face wire of the MISS JULES and stepped onto the port bow corner of the Ingram barge (Vol. III-A, p. 26,1. 19). As he prepared to wrap the face wire around the port bow corner kevel of the Ingram barge, he noticed that a broken wire was wrapped around the kevel (Vol. III-A, p. 28, 1. 1-6). The kevel was a deck fittings that would have been used to tie off the ING 5565 to the ING 5561 in the Valley Main fleet prior to the breakaway (Plaintiffs Exhibit 108). The ends of the broken wire were frayed and the center core of the wire was hanging out (Vol. Ill— A, p. 28, 1. 7-15). The break in the wire appeared fresh, as the frayed ends were shiny at their tips (Vol. III-A, p. 28,1. 16-17). The wires did not appear to have been cut (Id.). In order to enable him to use the kevel, Mr. Dippold removed the broken wire from the deck fitting and threw it into the river (Vol. III-A, p. 28,1. 4-6). 50. Mr. Housley also observed freshly broken wires on the port side of the ING 5565, at the stern end, when the barge was retrieved by the M/V MISS JULES (Vol. II, p. 127, 1. 21 to p. 128, 1. 2-9). This corner of the barge would have been the downriver end of the ING 5565, where that barge would have been tied to the ING 5561 when the two barges were in the Valley Main fleet prior to the breakaway (Plaintiffs Exhibit 108). The broken wires at this end of the barge were frayed, as opposed to cut (Vol. II, p. 127, 1. 21 to p. 128, 1. 2-9). Mr. Housley saw two broken ends to those wires (Vol. II, p. 128,1. 8-9). He cleared the deck of these broken wires, so he and other crewmembers securing the barge would not trip over them, and the broken wires ended up in the river (Vol. II, p. 128,1.10-14). 51. After retrieving the ING 5565, the MISS JULES pushed it to the Arsenal Island fleet on the Illinois bank of the river. Mr. Housley and Mr. Dippold testified that they secured the barge in that fleet and left it there (Vol. II — p. 126,1. 22 to p. 127, 1. 3; Vol. III-A, p. 29, 1. 18-23). 52. The ANDREA LEIGH headed southbound and tried to protect ARTCO’s Upper Reidy and Lower Reidy fleets from runaway barges (Vol. III-A, p. 93, 1. 14-22). The ANDREA LEIGH caught two strings of six loaded barges each near Reidy Terminal and tied off these barges in the Arsenal Island fleet (Vol. III-A, p. 94, 1. 24 to p. 95, 1. 17; Vol. II, p. 34, 1. 25 to p. 35,1. 5). 53. The Arsenal Island fleet is located on the left descending bank (the Illinois side) at approximately Mile Marker 174 on the Upper Mississippi River (Vol. Ill p. 41, 1. 11-13). After tying off the two strings of barges, the mate of the ANDREA LEIGH then relayed the identifying numbers of each of the barges placed in the Arsenal Island fleet to the captain, Donald Teague, who recorded them in the vessel’s logs (Vol. II, p. 40, 1. 14-22; Plaintiffs Exhibit 33). The ANDREA LEIGH and its crew then headed southbound towards the Jefferson Barracks bridge to assist in gathering additional barges (Vol. II,p. 34, 1. 25 to p. 35, 1. 5; Vol. II, p. 41, 1. 20-23). 54. The morning after the breakaway, marine surveyors found the ING 5565 in the Arsenal Island fleet where the crew of the M/V MISS JULES said it had been tied-off by them (Vol. VI-B, p. 44,1.15-22; Vol. IV-B, p. 48, 1. 7-18). The ING 5565 was tied-off next to two strings of ARTCO barges, including the ART 381 (Vol. IV-B, p. 48,1.19-24). 55. Inspection of the ING 5565 revealed that barge had sustained recent damage on its starboard side (Vol. IV-B, p. 34, 1. 17-22; Vol. V-A, p. 20, 1. 20-24). Plaintiffs Exhibits 94T, 94U and 95W2 depict this damage. Surveyors also found fresh rub marks, scrapes and abrasions on both stern corners of the ING 5565 (Vol. IV-B, p. 34, 1. 22-24; Plaintiffs Exhibit 95B4; Plaintiffs Exhibit 95W2). 56. The ART 381 had significant fresh damage to its bow headlog and the bow rake end of the barge was twisted (Vol. IV-B, p. 33, 1. 7-10; Plaintiffs Exhibit 95B4). A large dent in the headlog was the shape of the stern corner of the ING 5565. Marine surveyor James Manley testified that “the shape of the damage to the ART 381, the head long plate was kind of concave, it was set in more above the bottom of it than it was above that, which indicated something pushed into it and let the areas above and below it stick out farther, which conformed roughly in shape to the corner on the ING barge (Vol. IVB, p. 41, 1. 7-12).” William Manley, a civil engineer who inspected the damages, explained that “the distortions on the ART 381 indicated to me that it had been hit with a square corner of a loaded barge (Vol. V-A, p. 9, 1. 23-25).” Engineer Paul Weis testified that the damage to the headlog of the ART 381 matched the stern corner of the ING 5565 (Vol. V-A, p. 36,1. 16-18). James Pritchard, a surveyor retained by the Defendants, testified that the damage to the bow of the ART 381 appeared to match the square end corner of the ING 5565 (Vol. VI-B, p. 43, 1. 8-12). 57. Engineer Paul Weis explained why the headlog of the ART 381 incurred more damage than the corner of the ING 5565: Question: Would you have expected more damage to the corner of the 5565? Answer: No, I wouldn’t. There’s a couple reasons for that. Even though the material is basically the same on the headlog as it is on the stern corner, the relative stiffness of the corner is substantially higher than what you would have on the headlog, particularly from the standpoint that the headlog itself on ■this particular barge was about 18 inches or so higher than the actual deck, which would make it even more susceptible on the 381, which would make it more susceptible to bending. So the damage that I saw is really pretty consistent with what I would expect. You know, possibly I could give a little bit of an example to make everyone understand a little bit better of the relative stiffness that I’m talking about. If you would take — I just happen to think about this on the way down here this morning. If you take a cardboard box and you set it with no top on it and you set it on the floor, and if you would push on the side of the box at the top, it would bend relatively easily. Now, take that — and that would be kind of synonymous with the headlog of the 381. Now, if you take that same box, cardboard box, it’s still the same material, same thickness material, and you turn it over upside down and now you push on the corner of the box, You can see you would have a hard time pushing the corner of that box in as opposed to pushing in the top of the box on the side. And that’s exactly the kind of situation we have in that impact forces are transmitted in compression down both sides, the transom and the side of the 5565 as well as the top deck, all receiving these forces in a compression situation, which is much more rigid. Conversely,. the 381 is receiving these forces in a bending situation. And you would expect that there would be quite a bit of damage to the 381, relatively little damage to the 5565. (Vol. V-A, p. 34,1.16 — p. 38 1. 4) 58. Further, the height above water level of the large dent in the headlong of the ART 381 matched the height of the stern corner of the ING 5565. As marine surveyor James Manley explained, the level of freeboard at the stern of the ING 5565 matched up with the freeboard level of the dent found on the ART 381. “[T]he elevation, the height of the ING barge above the water was roughly the same elevation as the ARTCO barge (Vol. IV-B, p. 41, 1. 13-15).” Since the ING 5565 had a lighter load than most river barges, it likely rode higher in the water than most other loaded barges involved in the breakaway (Vol. V-A, p. 10 and 11, 1. 6-8). 59. The total number of barges loose in the St. Louis Harbor on the night of the breakaway was 137 (Vol. II, p. 4,1. 10-12). 102 of the 137 barges had been moored in Plaintiffs fleets (Vol. II, p. 4, 1. 15-19). The remaining barges came from other fleeting companies whose fleets were also struck during the breakaway (Vol. IV-B, p. 31, 1. 10-20). Barges involved in the breakaway collided with one another, struck fixed objects and ran aground, causing substantial damage. One ARTCO barge sank below the Jefferson Barracks Bridge (Vol. IV-B, p. 29,1.15-16). 60. Many of the ARTCO barges sustained damage and required repairs (Vol. II, p. 5, 1. 20-21). Plaintiff incurred damages for these repairs, as well as for cargo loss, broken rigging, surveying, shifting, salvage and related expenses (Vol. II, p. 5, I. 21-23). Plaintiffs stipulated damages as a result of the incident are $1,544,713.00 (Joint Stipulation of Facts, paragraph 15; Vol. II, p. 5,1. 24-25). 61. The only evidence submitted by either party regarding prevailing interest rates was from the Plaintiff. This evidence consisted of the certified records of the St. Louis Federal Reserve Bank (Plaintiffs E). According to these records, the average prime lending rates from April 24, 1998 to the date of the trial was 8.52 percent per year. Measures taken to secure barges. 62. Once ARTCO demonstrates that a barge in the care of Defendants left its moorings and struck other moored barges, the burden shifts to the Defendants to demonstrate that they undertook all measures available that could have prevented the ING 5565 from coming loose from its moorings. 63. Carl Berthelot, manager of Paragon, testified Paragon had no written policies on how Paragon crew members were to tie-off barges in Paragon fleets (Vol. IV-A, p. 18,1. 7-14). 64. Paragon had no written policies as to how or when the barges were to be inspected (Vol. IV-A, p. 18,1.15-21). 65. Mr. Berthelot admitted that Paragon had no written policies on fleeting measures to be taken during adverse conditions (Vol. 18,1. 22-25). 66. Paragon did not have a specially designated safety officer (Vol. IV-A, p. 19, 1. 1-3). This is true despite the fact that the agreement between CGB and Paragon required a safety officer (Plaintiffs Exhibit 114, p. 36,1. 20-25). 67. The disregard for fleet safety on the part of Defendants contrasts with the procedures of Plaintiff, who maintained written fleeting procedures and enforced those requirements (Vol. IV-B, p. 6, 1. 21-25; Vol. II, p. 13, 1. 13-18). The written procedures were used to train new employees and standardize ARTCO’s fleeting practices (Vol. II, p. 14, 1. 7-10; Vol. III-A, p. 85, 1. 8-13). The written procedures also addressed the tying off and monitoring of barge fleets (Vol. II, p. 14,1. 14-16). Each employee received a copy of the fleet tie-off requirements and the requirements were posted aboard Plaintiffs tugs in the St. Louis Harbor (Vol. II, p. 14, 1. 23 to p. 15, 1. 2). The procedures were discussed at ARTCO safety meetings (Vol. II, p. 72, 1. 12-17; Vol. III-A, p. 85, 1. 20-22). Plaintiffs written inspection policy requires members of the deckcrew to check the tie offs at the head of each fleet at the beginning of every watch (Vol. II, p. 20, 1. 25 to p. 21, 1. 4). The tie offs are to be inspected whenever a harbor tug placed barges into a fleet or removed them from the fleet (Vol. II, p. 21, 1. 7-11). Further, it was the practice of ARTCO employees to check the tie-offs of remaining barges after shifting barges within a fleet (Vol. II, p. 21,1. 12-13). 68.ARTCO maintained a formal safety program at the time of the breakaway (Vol. IV-B, p. 8, 1. 2-4). ARTCO had an on-staff, full-time safety coordinator, responsible for overseeing the safety program (Vol. IV-B, p. 8, 1. 5-17). ARTCO conducted safety meetings twice a month, which all crewmembers attended (Vol. IVB, p. 8,1. 18-24). At ARTCO, newly hired employees underwent a day-and-a-half to two-day safety and training orientation before beginning to work out on the river (Vol. IV-B, p. 9, 1. 8-16). New deckhands were also shown numerous safety videos (Vol. II, p. 22,1. 17 to p. 23,1. 2; Vol. I-B, p. 9, 1. 17-25). ARTCO provided them with a list of forty-six safety rules and gave them a tour of the facility (Vol. IV-B, p. 10, 1. 1-6). Inexperienced deckhands were paired with a training mate for their first two weeks of work on the river, during which they worked the day shift only (Vol. IV-B, p. 10,1. 7-13). 69. Defendants’ management did not take most of the above measures, which promoted safe, consistent and appropriate barge fleeting practices and prevented barge breakaways. Retired Coast Guard officer and marine and safety expert Douglas Halsey explained that such procedures by fleet management are essential for safe barge fleeting and that lax management, such as existed at Paragon, results in breakaways (Vol. V-B, p. 15-16, 1. 3-22). 70. Moreover, when Paragon tugs shifted the ING 5565 and other barges in the Valley Main Fleet few hours before the breakaway, the wires mooring the ING 5565 to the ING 5561 were not adequately checked after the shifting occurred, as they should have been. These were the very wires that failed, causing the ING 5565 to break loose. The tie-offs between those two barges were checked before the barges were shifted, but they were not checked after the barges were shifted out into the river and back into the Valley Main Fleet (Vol. VI-A, p. 37,1. 22 — p. 39,1. 2). Mr. Halsey stated, and admiralty law requires, that when barges are moved in the manner that the ING 5565 and ING 5561 were, prior to the breakaway, the wires between the barges must be inspected after the shifting occurs (Vol. V-B, p. 10,1.16 — p. 11,1. 6). Failure to make such inspections and any adjustments that may be required can readily result in loose wires breaking or coming undone (Vol. VB, p. 19,1. 2 — p. 18,1. 8). 71. Two of the four assigned crewmem-bers of the M/V JOHN WALKER (the Paragon tug that resecured the shifted barges) were absent when the barges were shifted at the Valley Main fleet prior to the breakaway. One of the assigned deckhands came to work late and another left work (Vol. VI-A, p. 36,1.17-25). 72. Paragon failed to prove it took all measures available to prevent barge ING 5565, which was in Paragon’s care and custody, from breaking loose from its moorings and causing a larger breakaway. Paragon crewmembers were not properly instructed and directed in proper mooring and inspection practices by Paragon management. Shortly before the breakaway, Paragon crew failed to check and properly secure the mooring wires between the ING 5565 and the ING 5561, after those barges were shifted by Paragon tugs in the Valley Main fleet. Evidence of Vis Major. 73. Defendants submitted no evidence regarding prevailing weather conditions and made no claim that an extraordinary meteorological event, such as a tornado, hurricane, flood or snowstorm caused the ING 5565 to break free. Evidence Of Inevitable Accident. 74. Similarly, Defendants provided no evidence of inevitable accident. This affirmative defense also places the obligation on the party invoking it of showing how the incident and occurred and, further, that the incident could not have been avoided. Defendants submitted no evidence suggesting an inevitable accident caused the ING 5565 to come loose, or that such an accident could not have been avoided. The evidence presented established that the breakaway could have been prevented had wires securing barge ING 5565 been properly inspected after the barge was shifted shortly before the breakaway and had the Paragon fleet been properly managed. For these reasons, the defense of inevitable accident is also unavailable. Evidence of Sabotage. 75. The defense presented at trial by Paragon and CGB was that the ING 5565 was deliberately set free by a criminal act of sabotage. 76. Defendants aver that an unknown criminal climbed aboard the Valley Main fleet on the evening of April 24, 1998, walked four barge widths across the head of the fleet and deliberately loosened the wires connecting barge ING 5565 to the adjacent barge ING 5561, thereby setting the ING 5565 free in the river. Not one witness who testified at trial claimed he saw anyone deliberately set free the ING 5565 or any unauthorized person on barges in the Valley Main fleet or in the area of the fleet. 77. Although various river companies posted a $25,000 reward for information leading to the arrest of a saboteur, if one existed, the reward was never claimed in the three years since the breakaway and resulted in no information supporting the sabotage theory (Vol. IVA — p. 28, 1. 13-17). No one has ever been charged, arrested, or convicted of the supposed sabotage (Vol. IVA — p. 28, 1. 18-21). In short, Defendants provided no credible evidence that the barge was deliberately set free. 78. While it is true that the initial speculation as to how the ING 5565 broke free included the possibility of sabotage, this theory was premised almost entirely upon the fact that when the ING 5565 was inspected by marine surveyors on the morning after the breakaway, no broken wires were found on the ING 5565. 79. Surveyor James Manley explained the significance of the absence of broken wires at the time of this initial inspection, in response to questioning by the Court: Question (by the Court): Mr. Manley, you testified that you indicated — that you told Mr. Patterson that you believed that this incident was a result of sabotage, but yet today you testified that it was a result of this Ingram 5565 barge. Why have you changed your opinion and what happened there? Answer: No. Early on the assumption was that — because we didn’t find any broken rigging on the ING 5565 or the barge next to it, the ING 5561, immediately everybody assumed with no broken rigging this thing had to be turned loose. If your barge breaks loose, you’re going to have broken rigging hung on one barge or another. Part of it is going to be laying or hung up on the deck fitting on one side or the other. It doesn’t just evaporate. When we didn’t find any broken rigging, the assumption immediately was, because we’ve got a labor dispute in progress, somebody must have turned this barge loose because we didn’t have any other explanation. And then I was subsequently told that deckhands did say, We kicked broken rigging off of this barge, the ING 5565, when we caught it floating down the river to clear up those deck fittings so we could tie it off on the Riverway fleet. (Vol. IV-B, p. 84, 1. 1-24). Mr. Patterson also testified that the absence of broken wires on the ING 5565 deck fittings was one of the “main reasons” that people thought sabotage may have occurred (Vol. VI-B, p. 19,1. 17-22). 80.None of the proponents of the sabotage theory obtained any information from the crew members of the M/V MISS JULES, the vessel that caught the ING 5565 during the breakaway and then secured it in the Arsenal Island Fleet. Mr. Patterson testified: Question: [T]he day after the breakaway, the week after the breakaway, several months after the breakaway, did you ever talk to crew members of the M/V MISS JULES which recovered [the ING 5565]? Answer: Not to my knowledge, no. Question: So you never found out from the people who actually recovered it on the evening of the breakaway whether or not they found broken wires on the ING 5565, did you? Answer: No, I did not. (Vol. VI-B, p. 19, 1. 23 to p. 20, 1. 20). A marine surveyor hired by Defendants, Mr. James Pritchard, also had not spoken with the crew of the M/V MISS JULES at the time that he theorized that sabotage may have occurred (Vol. VI-B, p. 44, 1. 23-25). 81. The freshly broken wires found by the crew of the M/V MISS JULES lead this Court to find that the ING 5565 broke free from its moorings in the Valley Main fleet and was not set free by an unseen saboteur who deliberately released the wires. The sabotage theory was premised on the absence of broken wires on the ING 5565 after the breakaway. The evidence shows there were broken wire when the barge was recovered during the breakaway, which were discarded in the course of efforts to capture and resecure the barge. Further, there is not direct evidence that sabotage occurred. 82. The Court also notes that the crew-members of the M/V MISS JULES who testified there were broken wires on the port side of the ING 5565 when they recovered it during the breakaway provided statements to federal investigators shortly after the breakaway, which were consistent with their recollections at trial concerning the location of the freshly broken wires, the identity of the barge at issue, and the placement of the barge in the Arsenal Island fleet after it was secured during the breakaway (Vol. III-A, pp. 28-29; Vol. II, pp. 130-131). The fact that freshly broken wires were found at the two tie-off points between the ING 5565 and the ING 5561 indicates that the barge broke free from the Valley Main fleet, as opposed to being set free deliberately. Available Measures to Prevent Unauthorized Access to its Fleet. 83. Moreover, even assuming for the sake of argument that a criminal act did occur, Defendants failed to demonstrate that alternative methods of securing their fleets could not have prevented the purported criminal saboteur from accessing the Valley Main fleet as alleged. 84. The security in place at Paragon’s offices and Valley Main fleet in the early spring of 1998 was inadequate. Mr. Ber-thelot admitted that Paragon had no fences, no alarm systems, and no surveillance cameras at its facilities, including the Valley Main fleet, in April of 1998 (Vol. IV-A, p. 22, 1. 13-16). Paragon did not have a security guard at its facility at the time of the breakaway, and only hired a security guard after the breakaway (Vol. IV-A, p. 21, 1. 20-23, p. 22, 1. 13-20; Vol. VI-B, p. 25, 1. 16-18). Paragon had no “Keep Out” or “No Trespassing” signs at its facility (Vol. IV-A, p. 21,1. 24 to p. 22,1. 2). 85. The upstream-most fleet barge closest to the Missouri bank of the Mississippi River at the Valley Main fleet was hard aground on the night of the breakaway, with a fixed ladder on the barge providing access to the fleet (Vol. IV-A, p. 24.1. 11-16; Vol. IV-B, p. 54,1. 12-15). It had been hard aground for at least several days prior to the breakaway (Vol. IV-B, p. 64.1. 25 to p. 65, 1. 1). Plaintiffs Exhibits 92A and 97N demonstrate the position of the fleet barge on the evening of the breakaway. The barges should have been pulled off the ground and out into the river, which would make access to the fleet by unauthorized persons far more difficult. 86. As one marine surveyor explained, “[i]f the fleet barge had been pulled out into the river and was afloat, someone would have had to wade out in the river, and not knowing how deep it was, they’d have had a lot harder time getting up on that barge (Vol. IV-B, p. 55, 1. 19-25).” The Valley Main fleet is presently configured in such a manner that no ladder exists and the fleet is at least thirty feet out into the Mississippi River, as demonstrated by Plaintiff’s Exhibits 99, 99A, 99B and 99C, which are photographs taken of that fleet shortly before trial. 87. Thus, the combination of the barge being hard aground, in tandem with the ladder attached to that barge, furnished ready access to any unauthorized individual desiring to board the fleet. 88. In addition, the Court finds that, with regards to security, the Defendants should have been on “heightened alert” due to the fact that a labor dispute was ongoing at the time the breakaway occurred. In April of 1998, labor unrest resulted in a walkout by Paragon phots working in the St. Louis harbor. Any labor stoppage or strike, including the Pilots Agree work stoppage, involves confrontation (Vol. V-A, p. 73,1. 21 to p. 74,1. 10). When the strike began, approximately ten Paragon pilots and two Paragon deckhands went out on strike and refused to work (Vol. IV-A, p. 62,1. 5-11). 89. Many of the striking pilots at Paragon joined the strike because they were concerned about the safety record of Paragon (Vol. IV-A, p. 63,1. 1-6; Vol. IV-A, p. 69, 1. 1-3). Ten days after the strike began, and approximately ten days before the breakaway, Paragon fired its striking pilots (Vol. IV-A, p. 68,1. 8-10; Vol. IV-A, p. 21,1. 5-10; Vol. IV-A, p. 67,1. 25). The striking pilots had no strike fund, and by the time of the breakaway the strikers had been out for three weeks and had missed two paychecks (Vol. IV-A, p. 63, 1. 1-6, Vol. IV-A, p. 68,1. 8-10, Vol. IV-A, p. 69,1. 1-3). Yet, Defendants took no measures to secure their facilities and property in their custody (Vol. IV-A, p. 22, 1. 10-12; Vol. V-A, p. 74,1. 18-19; Vol. V-A, p. 76,1. 5-10). Such measures would surely have greatly reduced the likelihood of unauthorized access to Paragon fleets (Vol. V-A, p. 76,1. 21 to p. 77,1. 4). 90. The contention of the Defendants that these modest methods of providing additional security at their fleets were unnecessary is belied by the fact that Defendants did in fact take such precautions after the breakaway had occurred. Immediately after the breakaway, Paragon hired a security guard in order to prevent any additional problems (Vol. IV-A, p. 22,1. 17 to p. 23,1. 6; Vol. VI-B, p. 20,1. 19-24). A few days later, a Paragon harbor tug pulled the Valley Main fleet barge off the Missouri bank (Vol. VI-B, p. 21, 1. 2-5). Still later, Paragon completely reconfigured the Valley Main fleet to prevent that fleet barge from ever resting hard aground on the Missouri bank of the River (Vol. IV-A, p. 26, 1. 10-14). Paragon also removed the ladder which had been affixed to the fleet barge (Vol. IV-A, p. 26, 1. 10-14). 91. Even if sabotage had been proved to be the cause of the breakaway, Defendants did not satisfy their burden of proving they adopted reasonable security measures to prevent such an act. Defendants’ Burden of Proving that Negligence on the Part of ARTCO Contributed to the Breakaway. 92. ARTCO was not contributorily negligent in any respect. The ARTCO fleets were properly moored at the time of the breakaway (Vol. IV-B, p. 51,1. 15-21). No ARTCO fleets were unusually wide that evening (Vol. IV-B, p. 11, 1. 6-10). The number of barges contained in ARTCO fleets and the width of those fleets at the time of the breakaway complied with all applicable governmental regulations and constituted the proper width for conditions then-existing (Vol. V-B, p. 14, 1. 12-22; Vol. IV-B, p. 11, 1. 22 to p. 12, 1. 8). 93. Witnesses testified that ARTCO barges were securely moored and would not have come free from their moorings had runaway barge ING 5565 not struck the Lesperance Street fleet and started the breakaway. Jason Powers, the mate who inspected ARTCO’s Lesperance Street fleet several hours prior to that fleet being struck by the ING 5565, testified that barges would not have come out of that fleet if it had not been hit by the runaway barge (Vol. II — p. 83, 1. 5-7). Marine safety expert Douglas Halsey stated: Question: What’s your opinion as to whether those fleets would have broken loose absent the ING barge coming down and hitting them? Answer: They would have remained as moored. They were more than adequately moored. (Vol. V-B, p. 14,1. 7-10). 94. Defendants stipulated during trial that ARTCO tugs acted prudently in the aftermath of the breakaway (Vol. II, p. 93, 1. 1-6). 95. Moreover, ARTCO’s facilities and fleets were properly secured at all times. The ARTCO office complex and nearby ARTCO fleets were fenced off long before the strike, with a guard at the entry gate (Vol. III-B, p. 83, 1. 14-24). There was also a surveillance camera that permitted remote observation of the road approaching the ARTCO premises. Once the strike began, extensive additional security measures were taken to protect persons and property. ARTCO implemented a twenty-four hour a day roving patrol at their fleets, which involved two security officers in an automobile (Vol. III-B, p. 84, 1. 11-25). The roving patrol inspected the riverbank adjacent to each fleet to check for and deter intruders (Vol. III-B, p. 84, 1. II-25). Although these guards were unarmed and trained to be nonconfrontational with strikers, their presence, along with the video cameras at their side, served as a significant deterrent to those who might wish to engage in unlawful conduct (Vol. III-B, p. 89,1.11-20). 96. Defendants failed to demonstrate that any negligence on the part of Plaintiff caused or contributed to the breakaway of April 24,1998. CONCLUSIONS OF LAW I. The ING 5565 Came Loose From Its Moorings, Traveled Downstream Unattended, and Struck ARTCO’S LesPerance Street Fleet, Resulting in the Barge Breakaway of April 24. A. Admiralty Cases are Decided by the Court and Findings of An Advisory Jury are Non-Binding. a. The Court has jurisdiction over this case pursuant to its admiralty jurisdiction, 28 U.S.C. § 1333 and Rule 9(h) of the Federal Rules of Civil Procedure. 28 U.S.C. § 1333(1) provides in part that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” Venue is proper as the incident at issue occurred within this judicial district. b. Plaintiff brought the present claim pursuant to Rule 9(h) and expressly invoked the admiralty jurisdiction of this Court. Suits in admiralty are not jury cases. Fed. R. Civ. P. 38(e). Suits brought pursuant to Rule 9(h) are to be tried by judge and not by a jury. Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d 1038, 1041 (8th Cir.1983). This case was tried to the Court in the presence of an advisory jury. Although neither party sought the advisory jury, the Court empaneled the advisory jury pursuant to Fed. R. Civ. P. 39(c), which provides, in pertinent part, that “[i]n all actions not triable of right by a jury the court upon ... its own initiative may try any issue with an advisory jury ...” c. In the Eighth Circuit, “[t]he responsibility for the decision making process remains with the judge even though an advisory jury is used.” Indiana Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber, Co., Inc., 195 F.3d 368, 376 (8th Cir.1999). As the Court explained in that case, the trial court “must prepare the findings of fact and conclusions of law, and it is in its discretion wholly whether to accept or reject, in whole or in part, the verdict of the jury.” Id. Importantly, the Court rejected the argument advanced in that case that the trial court should adopt the findings of fact reached by the advisory jury unless such findings are “clearly erroneous.” Id. The Eighth Circuit explained that these arguments “misconceive the function of an advisory jury and the complete freedom the judge has in using or disregarding its findings.” Id. “Review on appeal is of the findings of the [district] court as if there had been no verdict from an advisory jury ...” Id. Accordingly, this Court retains complete freedom to adopt or disregard the findings of the advisory jury in this case. The findings of fact and conclusions of law announced in this opinion are those of this Court alone. d. The present case involves complicated, mixed questions of law and fact. There are three legal theories of liability that apply, as explained below, each of which involves presumptions and shifting burdens of proof. Extensive caselaw governs the responsibilities of fleeters in particular circumstances, the elements of defenses such as vis major and inevitable accident, duties regarding security of vessels held in bailment, 'and other pertinent issues. Since such matters are best understood and decided by a judge, it is not surprising that admiralty law requires trial by judge. In the present case, the advisory jury was instructed on some, but not all, applicable legal theories; it addressed some, but not all, pertinent factual issues; and it seemed to understand some of the issues addressed, but not others. It is the Court’s duty to make findings it believes are supported by the evidence presented and applicable law. B. The Louisiana Rule Creates a Presumption of Fault on the Part of the Defendants and the Defendants Have Failed to Overcome the Presumption. e. “A fleet operator has the responsibility for insuring proper resecuring of barges after other barges have been removed from the fleet.” Martin Oil Service v. John I. Hay Co., 219 F.2d 237 (5th Cir.1955); Lower River Ship Services, Inc. v. Casteel, Inc., 1991 WL 13867 (E.D.La. Jan.30, 1991). “A tug that removes a barge from a fleeting area, moving other barges in the process, is bound to ensure that remaining barges are properly secured and that all mooring lines affected by the movement are proper and fast.” Dow Chem. Co. v. Barge UM-23B, 287 F.Supp. 661 (E.D.La.1968); Federal Barge Lines, Inc. v. Star Towing Co., 263 F.Supp. 981 (E.D.La.1967); Lower River Ship Services, 1991 WL 13867 at *4. f. When a collision is caused by a vessel drifting from her moorings, the moving vessel is presumed to be at fault until the presumption is offset by affirmative proof that absolves her. The Louisiana, 70 U.S. (3 Wah.) 164, 173, 18 L.Ed. 85 (1865); Pasco Marketing, Inc. v. Taylor Towing Service, Inc., 554 F.2d 808, 810 (8th Cir.1977); Ohio River Co. v. Great Lakes Carbon Corp., 562 F.Supp. 61, 64 (E.D.Mo.1982); Monsanto Co. v. Port of St. Louis Investments, 350 F.Supp. 502, 516 (E.D.Mo.1972). g. In The Louisiana, the Supreme Court sets forth the presumption of fault which arises when a barge is allowed to come free from its moorings and strikes various objects: The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution and a proper display of nautical skill could not have prevented ... [a]nd the fact that under these circumstances she did drift, is conclusive evidence that she was not sufficiently and properly secured. 70 U.S. (3 Wall.) at 174. h. “The Louisiana and its progeny create a presumption of fault at the time of the accident.” Hood v. Knappton Corp. Inc., 986 F.2d 329, 332 (9th Cir.1993). In light of this approach, the Eighth Circuit held in Pasco Marketing that when “this presumption operates!],] the duty of producing evidence shifts to the mooring vessel ... ” 554 F.2d at 810. In another case, the Eastern District of Missouri held that “[a] breakaway establishes a prima facie case of negligence against the moving vessel.” Monsanto Co. v. Edwards Towing Corp., 318 F.Supp. 13, 15 (E.D.Mo.1969). i. Judge Learned Hand explained the rationale for this presumption of fault in Cranberry Creek Coal Co. v. Red Star Towing & Trans. Co., 33 F.2d 272, 274 (2d Cir.1929): [Tjhere are situations in which the law does not put the duty upon 'the sufferer to make proof at the outset; either because the facts are especially within the [fleeter’s] knowledge, or ... because usually there must be some fault, it is thought just to require the owner to explain, and if he does not, to charge him ... [T]he [fleeter’s] duty is often spoken of as the defense of “inevitable accident.” Strictly, it is no defense at all, but a true presumption; that is to say, a duty laid upon him to supply proof which costs him if he fails. This duty extends not only to disclosing what happened, but ... what would have been necessary to prevent it. j. The presumption of negligence has been applied in numerous cases involving vessels which are allowed to break free from their moorings and strike other vessels or structures. These cases illustrate the heavy burden placed on the party having custody of the drifting barge. In Pas-co Marketing, the Eighth Circuit upheld the district court’s determination that the charged party, who had moored barges which subsequently broke free, had offered no evidence save its self-serving, concluso-ry statements that it had done everything possible to avoid the breakaway, and as a result concluded the presumption had not been overcome. 554 F.2d at 812. k.In Lower River Ship Services, 1991 WL 13867 at *1, the Eastern District of Louisiana applied the presumption to a situation remarkably similar to the case at bar. In that case, Casteel operated a barge fleeting facility on the Mississippi River. On the evening of February 15, 1989, the Casteel fleet contained 13 barges. Id. Inland Push Boat Service operated the MTV STACEY GRACE, which pulled four barges from the inside of the Casteel fleet. Id. at *2. It also shifted other barges in that fleet. Id. The barges which had been shifted and remoored by the MTV STACEY GRACE, came loose and drifted downriver. Id. These drifting barges struck and sunk a crewboat, the M/V DAN B. Id. at *3. 1. When the owner of the DAN B filed suit against Casteel, the fleet operator named Inland as a third-party defendant. Id. at *4. The district court began its analysis by noting the presumption of fault which arises when a fleeted vessel is allowed to leave its moorings, citing the Eighth Circuit’s opinion in Pasco Marketing. Id. The court found the presumption applicable because the barges had broken free shortly after the shifting occurred and invoked the presumption against both Inland, the party who shifted the barges in the fleet, and against Casteel, the operator of the fleet. Id. With regards to Inland, the Court held that “[b]ecause the crew of the M/V STACEY GRACE had the last contact with the barges, this Court finds as a matter of law that Inland has failed to overcome the presumption that it negligently and improperly moored the barges, proximately causing the breakaway.” Id. at *5. As to Casteel, the court found that the fleet should have been checked after the shifting of barges in its fleet. Id. at *6. “Casteel admittedly failed to have anyone inspect the mooring connections of the four barges shifted within the barge fleet by the M/V STACEY GRACE.” Id. As neither defendant in that case overcame the presumption of negligence, the district court apportioned liability as sixty percent upon Inland and forty percent upon Cas-