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In re Marquette Transportation Co.

United States District Court, E.D. Louisiana

March 29, 2017


         SECTION "L" (1)

          ORDER & REASONS

         Before the Court is a motion filed by Defendant Marquette Transportation Company (“Marquette”). R. 117. The motion addresses the seaman status of Joseph Solomon, a personal injury Plaintiff who filed a cross-claim in In re Marquette, No. 15-2316. Marquette argues that Solomon is a seaman, such that Kostmayer Construction, LLC (“Kostmayer”) is liable for his injuries as Solomon's employer. Solomon's employers[1], Ameri-Force Craft Services, Inc. and Signal Mutual Indemnity Association (“Ameri-Force”) oppose the Motion. R. 137. Kostmayer also opposes the Motion, and adopts Ameri-Force's response. R. 151. Finally, Plaintiff Solomon responds. R. 157.

         I. BACKGROUND

         These consolidated cases involve two accidents that occurred on two separate dates on the Mississippi River. First, on September 22, 2014, the M/V Blake Denton, operated by Defendant Marquette Transportation Company, struck the Barge CP-12, chartered to Plaintiff Kostmayer, and pushed the CP-12 into Barge OU-701, also owned by Kostmayer. R. 1-1 at 1. Both of Plaintiff's barges were tied to a dock in the Mississippi River in East Baton Rouge Parish when Barge CP-12 was struck by the M/V Blake Denton, which was traveling southbound with approximately thirty-five barges in tow. R. 1-1 at 1-2. Barge CP-12 was pushed into Barge OU-701, and both barges detached from the dock and floated freely downriver until a tow boat pushed them to the east bank. R. 1-1 at 2. Kostmayer alleged that the barges sustained substantial damage as a result of the impact and required extensive repairs. R. 1-1 at 2.

         Plaintiff Kostmayer invoked the Court's jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1333, and asserted multiple negligence theories based on the actions of the captain and crew manning Defendant's vessel: (1) inattentiveness to their duties, (2) failing to see what they should have seen, (3) failing to maintain control of the towed barges, and (4) any other acts of negligence. R. 1-1 at 2. Kostmayer sought property damages, including the cost of repairs, loss of use, and lost profits. R. 1-1 at 2.

         Marquette denied all allegations of negligence and asserted a number of affirmative defenses. R. 5 at 3. First, Marquette avers that Plaintiff's barges and the dock were obstructions to navigation. R. 5 at 3. Marquette also alleges that the damages sustained by Plaintiff's barges resulted from unrelated incidents or from normal wear and tear. R. 5 at 3. Marquette alleges that Kostmayer's damages were caused solely or in part by its own fault or negligence, including failure to maintain a proper lookout, violations of the U.S. Inland Navigation Rules and other regulations, and failure to properly moor the barges without obstructing the channel. R. 5 at 4.

         A second and unrelated accident between Kostmayer and Marquette occurred on December 29, 2014. In this accident, Marquette was operating the M/V Myra Eckstein near the Terminal 234 Dock Facility on the Mississippi River in Baton Rouge, LA. According to Kostmayer's Petition in state court, the M/V Myra Eckstein “contacted” two other crane barges operated by Kostmayer. At the time of the accident, the cranes were spudded down, or anchored, in the Mississippi River, in relation to work Kostmayer was completing on a mooring dolphin attached to the CEMUS dock near the 190 bridge in Baton Rouge. Plaintiffs James Ainsworth (“Ainsworth”) and Michael Bankston (“Bankston”) were employed by Kostmayer as welders, while Joseph Solomon (“Solomon”) was employed by Ameri-Force and assigned to work for Kostmayer. At the time of the accident, Ainsworth and Bankston were eating lunch on the MS Darlene, while Solomon was working on the MS Ashley, the two crane barges involved in the accident. Solomon avers that when the M/V Myra Eckstein allided with the barge where he was working, he sustained personal injuries. Solomon seeks various damages, including loss of earnings and earning capacity, pain and suffering, and mental anguish.

         Plaintiff Kostmayer has resolved its claims against Marquette. Similarly, Plaintiffs Ainsworth and Bankston have resolved their personal injury claims. Thus, the Court need only address the seaman's status of Plaintiff Solomon.


         a. Defendant's Motion for Partial Summary Judgment as to Seaman Status of Joseph Solomon (R. 117)

         Marquette seeks partial summary judgment that Plaintiff Joseph Solomon is a Jones Act seaman such that Kostmayer, as his employer, is liable for any injuries he may have sustained. R. 116-1 at 1. Further, Marquette contends that if Solomon is a seaman, he may be partially at fault for failing to maintain a lookout on the day of the accident. R. 116-1 at 1. Marquette argues that Solomon meets the two-part test for seaman, as his duties contributed to the function of the vessel or accomplishment of its mission, and he had a substantial connection to the vessel both in terms of duration and nature. R. 116-1 at 4 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)). First, Marquette explains that this particular fleet of vessels included two crane barges, a material barge, a tug boat, and a flat boat, which moved as a unit to the construction site. R. 116-1 at 2-3. According to Marquette, Solomon directly contributed to the mission of the fleet, as his installation work was necessary to build the mooring dolphin. R. 116-1 at 2. Further, Marquette argues that Solomon had a substantial connection to this fleet of vessels, such that he qualifies for seaman's status.

         Marquette explains that Solomon was not employed directly by Kostmayer, but instead by Ameri-Force, and was assigned to work for Kostmayer as the operator of a crane known as a cherry picker. R. 117-1 at 1-2. Solomon worked ten hours a day, six days a week, and was assigned to the MS Ashley, one of the barges involved in the accident, the entire time he worked for Kostmayer. R. 117-1 at 2. Marquette argues that the MS Ashley was one of the crane barges in the same fleet of vessels that Ainsworth and Bankston were assigned. Like the other personal injury plaintiffs, Solomon did not walk onto the barge each day for work, but either took a boat or a man-lift. R. 117-3.

         Marquette argues that like the Plaintiff in Navarre v. Kostmayer Constr. Co., these facts demonstrate Solomon had substantial contacts with the fleet of vessels to satisfy the two-prong test for seaman status. 52 So.3d 921, 925 (La.App. 4th Cir. 2010).[2] R. 116-1 at 4. Further, Marquette contends that Solomon was assigned to the barge a majority of the time, and the fact that he could have been assigned to another vessel does not change his status as seaman. R. 116-1 at 6-7 (citing Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344, 352 (5th Cir. 1998) (holding Plaintiff who had been assigned to a rig for the entire two months leading up to the accident was a seaman, even though he could have been reassigned to another vessel)). Finally, Marquette argues Solomon was injured while working over water, which demonstrates he was exposed to the “perils of the sea.” R. 116-1 at 8-9.

         a. Ameri-Force Craft Services, Inc. and Signal Mutual Indemnity ...

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