GloucesterTimes.com, Gloucester, MA

April 16, 2009

Tug owner seeks legal protection

Company targeted in Patriot case focuses on limited liability

By Richard Gaines

A Louisiana company has asked a federal judge in New Orleans to exonerate it from any liability in January's sinking of the Gloucester fishing vessel Patriot, which was lost along with its family crew of two under mysterious circumstances.

Notified by the attorney for the co-owner of the Patriot, Josie Russo, that a suit was pending, Hornbeck Offshore Transportation LLC and a related operating company filed a "complaint for exoneration from and/or limitation of liability."

Hornbeck invoked the U.S. Limitation of Liability Act, which allows the court to limit liability to the actual value of the vessel responsible for the loss, bars any liability pending the results of a trial, and blocks any additional legal action litigants from enjoining the case until the trial is finished.

The publicly traded company, which is based in Covington, La., and operates a fleet of ocean-going tugs, filed its motion in U.S. District Court last month. In its filing, Hornbeck said the "estimated fair market value" of its tug and barge was $3.9 million.

The company's action said Josie Russo "claims to have sustained damage which could be in excess of the value" of the tug.

But Russo's lawyer, Joseph Abromovitz, said "we'll stipulate" that the losses were not greater than the value of the Gulf Service. He also said he would move to have the legal battle take place in a Boston courtroom.

One of Hornbeck's tugs, the Gulf Service, was passing through Massachusetts Bay on the night the Patriot went down. Through public comments at news conferences on consecutive days within a week of the tragedy, Coast Guard Capt. and Sector Boston commander Gail Kulisch described a tug and barge as potentially responsible for hitting with Patriot and causing the steel-hulled boat to sink.

Subsequent surveys revealed that only Hornbeck's Gulf Service, a 129-foot tug connected to a barge by a near 2,000-foot cable, fit the Coast Guard description.

Soon after Kulisch's comments, Hornbeck chief counsel Sam Giberga confirmed to the Times that the Coast Guard had announced its intention to take possession of the cable for forensic examination. After traveling to Baltimore, about 400 sea miles from Massachusetts Bay, the cable showed no signs of a collision with the Patriot.

The filing by Hornbeck begins the legal maneuvering in a continuing fog of uncertainty about what brought down the Patriot shortly after midnight on Jan. 3 during what seemed a routine fishing trip on Middle Bank, some 15 miles out of the harbor.

The Patriot went to the sandy bottom in about 100 feet of water. The bodies of the crew of two, Capt. Matteo Russo, 36, and his father-in-law, John Orlando, 59, were found before dawn.

Giberga declined to discuss the legal strategy, but did say that "we have never been made a party of interest by the Coast Guard."

"Notwithstanding the investigation by the Coast Guard, nothing was found to implicate us," he said. "The important thing here is that Hornbeck has been forced to make these filings. We've been drawn into this thing in which (the company) has had nothing to do."

He said Hornbeck has not been contacted by the Coast Guard for "many weeks," if not longer, and said, "If the Coast Guard believed us responsible, we'd have heard from them."

The Coast Guard has given no sign when it would close its investigation into the sinking, but its findings are not admissible in civil litigation, Abromovitz said.

He said he would be make a "circumstantial" case that the tug-cable-barge train collided with the Patriot and sent it down. He said the AIS or automated identification system carried by the tug allowed the Coast Guard to plot the precise location of the train as it moved through Massachusetts Bay.

He said there were no other boats around or near the Patriot during its final hours "unless someone shut off" their AIS or VMS or vessel monitoring system.

The Patriot's VMS system, which is required on all groundfishing boats by the National Marine Fisheries Service to allow monitoring fishing activities and location, was programmed to "ping" every hour and last was active at 12:30 a.m., but whether that transmission into the NMFS computer system occurred before or after any collision with another vessel has not been established.

The vessel sank a distance to the southeast of the last ping, and the Gulf Service with its barge in tow, would have passed within a mile of the point of the Patriot's last ping.

In its filing, Hornbeck asked the court to exonerate it completely but alternatively if the court finds the tug involved in the accident, the company said it sought to be found "without privity or knowledge" of the incident, a finding that would allow the company's liability to be held to the value of the vessel.

According to its filing, the Gulf Service was towing the barge Energy from Searsport, Maine, to Brooklyn, N.Y. Abromovitz said the barge was empty and riding high in the water.

He also said he had asked the Coast Guard to extend past yesterday the protection zone around the location of the Patriot to allow Russo more time to decide whether to raise the boat for full examination.

"We don't need to do it to establish the case," he said.

Richard Gaines can be reached at rgaines@gloucestertimes.com