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In re Marquette Transportation Co.

United States District Court, E.D. Louisiana

September 12, 2017

IN THE MATTER OF MARQUETTE TRANSPORTATION COMPANY THIS DOCUMENT RELATES TO ALLS

         SECTION "L" (3)

          ORDER & REASONS

         Before the Court is Defendant's Motion for Partial Summary Judgment. R. Doc. 196. Plaintiff responds in opposition. R. Doc. 202. Having reviewed the parties' briefs and the applicable law, the Court now issues this Order & Reasons.

         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. Doc. 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. Doc. 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. Doc. 1-1 at 2. Plaintiff alleges that the barges sustained substantial damages as a result of the impact and required extensive repairs. R. Doc. 1-1 at 2.

         Plaintiff Kostmayer invokes the Court's jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1333, and asserts multiple negligence theories based on the actions of the captain and crew manning the 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. Rec. Doc. 1-1 at 2. Plaintiff seeks to recover property damages, including the cost of repairs, loss of use, and loss of profits. R. Doc. 1-1 at 2.

         Defendant denies all allegations of negligence and asserts a number of affirmative defenses. R. Doc. 5 at 3. First, Defendant avers that the Plaintiff's barges and the dock were obstructions to navigation. R. Doc. 5 at 3. Defendant also alleges that the damages sustained by Plaintiff's barges resulted from unrelated incidents or from normal wear and tear. R. Doc. 5 at 3. Defendant 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. Doc. 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 Complaint 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 and emotional trauma. Similarly, Bankston and Ainsworth allege they were working on the MS DARLENE crane barge and the time of the accident, and sustained personal injuries as a result of the allision.

         The present motion deals with Interested Builders Risk Underwriter's remaining claim against Marquette. This claim seeks to recover insurance payments made to rebuild the mooring dolphin structure that was damaged.

         II. PRESENT MOTIONS

         a. Defendant Marquette's Motion for Partial Summary Judgment (R. Doc. 196)

         Defendant Marquette requests that the Court grant partial summary judgment on the claims of Plaintiff Interested Builders Risk Underwriters (“IBRU”). R. Doc. 196-1 at 1. Defendant argues that IBRU does not have the right to recover insurance payments made to rebuild Plaintiff Kostmayer's dolphin structure because at the time of the damage to the dolphin it was not a permitted structure. R. Doc. 196-1 at 1.

         Defendant alleges that in March 2013, the COE authorized Plaintiff Kostmayer to repair a dock and construct a dolphin “roughly 200 feet upriver from the main dock structure.” R. Doc. 196-1 at 7. However, Defendant argues, when Kostmayer constructed the dolphin it used plans that had not been submitted to the COE and placed the dolphin 285 feet upriver. R. Doc. 196-1 at 7. Defendant argues that this deviation from the permitted plan requires a request to amend the permit and that Plaintiff's permit was not amended. R. Doc. 196-1 at 8-9. Defendant cites Yaist v. United States, 17 Cl. Ct. 246 (1989), for the proposition that a party claiming a loss for an unpermitted structure does not have a compensable interest in that structure. R. Doc. 196-1 at 4. Therefore, Defendant argues, Plaintiffs Kostmayer and IBRU have no compensable interest in the dolphin. R. Doc. 196-1 at 9.

         b. Plaintiff Interested Builders Risk Underwriters' Response (R. Doc. 202)

         Plaintiff Interested Builders Risk Underwriters responds arguing that Defendant's motion should be denied because the Army Corps has not determined that the dolphin was in an unpermitted location or that it was a navigation hazard. R. Doc. 202 at 2. Plaintiff IBRU states that an investigation remains ongoing at Army Corps of Engineers and no determination has been made at this time. R. Doc. 202 at 2. Plaintiff also argues that even if the dolphin was ...


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