United States District Court, E.D. Louisiana
IN THE MATTER OF MARQUETTE TRANSPORTATION COMPANY THIS DOCUMENT RELATES TO ALLS
ORDER & REASONS
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 &
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.
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.
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.
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.
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.
Defendant Marquette's Motion for Partial Summary Judgment
(R. Doc. 196)
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.
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.
Plaintiff Interested Builders Risk Underwriters' Response
(R. Doc. 202)
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