United States District Court, E.D. Louisiana
IN THE MATTER OF MARQUETTE TRANSPORTATION COMPANY THIS DOCUMENT RELATES TO: ALL CASES
ORDER & REASONS
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, 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.
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
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.
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.
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
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.
Defendant's Motion for Partial Summary Judgment as to
Seaman Status of Joseph Solomon (R. 117)
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.
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.
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). 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.
Ameri-Force Craft Services, Inc. and Signal Mutual Indemnity