BusinessTN

The aerial photos of a red barge resting atop houses in the Lower Ninth Ward began to surface two days after flooding from Hurricane Katrina engulfed New Orleans. It wasn't long before Nashville-based Ingram Barge realized that the massive vessel was one of theirs. "We suspected it was one of ours because of the colorations," says Dan Mecklenborg, chief legal officer of Ingram. "We paint the decks a certain way."

Once company officials knew the barge number, they determined that Zito Fleeting had delivered the barge to construction materials company Lafarge North America, which unloaded the barge's cargo and moored it against a dock in the company's barge terminal. But in early September, The Wall Street Journal reported that an Army Corps of Engineers' spokesperson said that the 200-foot long, 705-ton barge may have smashed into a levee on the east side of the Industrial Canal, causing one of about 60 breaches in the New Orleans area that ultimately resulted in lost lives and property destruction. Ingram filed a Ship Owner's Limitation of Liability Act, a designation of maritime law that allows a ship owner to limit liability to the value of a ship after an accident. The legislative intent of the Act, says Don Haycraft, a New Orleans attorney who represents Ingram and specializes in maritime law, is to "promote shipping by not exposing the ship owner to unlimited liability."

Nonetheless, a series of lawsuits followed, and nearly three years later, Ingram and other parties are still dealing with the repercussions of the runaway barge that became a tourist attraction and symbol of Katrina's destruction.

"Our argument is that the barge was in the care, custody and control of Lafarge," Haycraft says. "They made all the decisions about the mooring of the barge. They supplied and selected the ropes and figured out how to tie the barge to the terminal. We hope to show the court that the legal duties toward safe keeping were in the hands of the party that had control of it."

Ingram submitted a brief regarding this argument to presiding U.S. District Judge Helen G. Berrigan in late November, and at press time, Berrigan had not ruled. Brian Gilbert, one of the lawyers representing the estimated 90,000 residents of the Ninth Ward in the lawsuit, believes Ingram should be held responsible, and he says his brief, also submitted to the judge, "concerns the maritime standards of care and regulations pertinent to hurricane preparation that were not met."

If the judge finds Ingram responsible for the barge and for allowing it to break from its moorings, Ingram will be subject to another phase of the lawsuit in which the judge will determine whether the barge caused the levee breach or went through a gap that resulted from the storm surge.

And though Mecklenborg and Haycraft do not anticipate being held responsible for the barge, they cite four scientific studies (conducted by independent sources) that found the barge had nothing to do with the floodwall failure. Regardless, though, perhaps the biggest question is whether the barge breaking free could have been prevented or was an "act of God." That's something the judge will have to decide—based on the acts of lawyers.