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Continental Insurance Co. v. L&L Marine Transportation, Inc.

United States District Court, E.D. Louisiana

October 26, 2017

CONTINENTAL INSURANCE COMPANY, ET AL.
v.
L&L MARINE TRANSPORTATION INC., ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is Joshua Deranger's motion for partial summary judgment. For the following reasons, the motion is DENIED.

         Background

         Three vessels were tasked to transport one barge on the Mississippi River. Unfortunately, one of those vessels allided with a bridge and sunk, rendering it a total loss. Now, the vessels' owners, insurers, and those personally injured during the allision are seeking to determine whether the other two vessels were negligent and unseaworthy, and thus liable for the resulting losses and injuries.

         On December 29, 2013, three vessels, M/V MISS DOROTHY, M/V ANGELA RAE, and M/V FREEDOM were transporting a barge, FSP 101, southbound on the Mississippi River. FSB 101 is owned by Consolidated Grain & Barge, Inc. CGB hired the vessels to transport the barge and its cargo from Reserve, LA to Convent, LA. The vessels successfully navigated the barge to Convent and had offloaded the cargo. They were to return FSP 101, without cargo, to LaPlace. M/V ANGELA RAE was positioned at the stern, M/V FREEDOM on the port bow, attached by line, and M/V MISS DOROTHY on the starboard bow, also attached by line. Whether ANGELA RAE's position at the stern of the barge, pushing the barge forward, makes it the lead vessel is contested by the parties. The lead vessel has specific responsibilities to communicate with and direct the assist vessels.

         While heading southbound to LaPlace, the master of MISS DOROTHY, Captain Joseph Colomb, advised ANGELA RAE that he would need to change MISS DOROTHY'S fuel filters at some point. Colomb allegedly directed a deckhand to change the fuel engines two days before, but he failed to do so. MISS DOROTHY's wheelhouse engine information gauges were allegedly broken, as was its general alarm, which allows the captain to alert anyone in the engine room of danger. After the tow proceeded downriver several miles, MISS DOROTHY reported to the master of Angela, Captain Kenneth Ayers, that MISS DOROTHY was experiencing engine troubles. Ayers also overheard Captain Colomb instructing his deckhand, Joshua Deranger and Matt Lynch, to change the fuel filters of the starboard and port engines. Deranger and Lynch were not experienced at changing fuel filters on this vessel. At this point, the flotilla was about one mile from the Sunshine Bridge, and moving about ten miles an hour. When Deranger and Lynch changed the filters of the starboard engine, they shut it down. This caused a drag on the flotilla. The master of Angela, Captain Ayers, attempted to inform MISS DOROTHY of the drag it was causing, in which MISS DOROTHY responded that it would give a “more straight rudder.” Allegedly ANGELA RAE and FREEDOM did not otherwise adjust their speed. It is disputed how much the vessels communicated here, although FREEDOM'S master, Captain Bergeron, was silent after MISS DOROTHY attempted to change its engine filters.

         When the flotilla attempted to pass under the Sunshine Bride, MISS DOROTHY allided with the bridge. The vessel sustained a puncture in the hull, which caused water to rapidly enter the engine room, ceasing operation of the port engine and the generator, eventually resulting in a total loss for the vessel. The bridge was also damaged. Joshua Deranger, the deckhand on the MISS DOROTHY, was still in the engine room during the allision. When the water flooded the room, it moved a storage box, trapping Deranger's leg between the box and the starboard engine. Matt Lynch helped to free him, but Deranger was seriously injured. Captain Colomb also alleges personal injuries.[1] Following the allision, the vessel owners and insurers, as well as those injured, filed a number of claims against each other in five separate actions (14- 2967, 15-1473, 15-1870, 15-1942, 15-4423), which have been consolidated into one lead case, 14-2967.

         The insurers of the owner (Western Rivers Boat Management, Inc.) of the sunken MISS DOROTHY initiated the present case on December 29, 2014. The insurers-Continental Insurance Company, National Union Fire Insurance Company, and Starr Liability and Indemnity-filed a complaint in this Court against L&L Marine Transportation, Inc. (operator of Angela), C.J.L., Inc. (owner of Angela), River Ventures, LLC (owner and operator FREEDOM), M/V ANGELA RAE in rem, M/V FREEDOM in rem, and FSB 101 in rem. They alleged that the defendants caused the allision, were unseaworthy, and were negligent in their training of the master and crew, in their failure to equip the vessels with proper navigational tools, and in their navigation. In a separate action, C.J.L. and L&L filed a complaint for exoneration from, or in the alternative limitation of liability, of M/V ANGELA RAE. Five days later, River Ventures did the same for M/V FREEDOM. Immediately, the Court issued an injunction restraining the prosecution of any claims involving ANGELA RAE or FREEDOM, or their insurers and underwriters, until the Court determines whether the vessels' liability should be limited or exonerated. Shortly thereafter, the Court consolidated these claims into the master case (14-2967).

         In response to C.J.L. and L&L's complaint to limit or exonerate liability, the owner of FREEDOM, the owner, operator, and insurers of MISS DOROTHY, and Captain Colomb of MISS DOROTHY[2]all filed answers and complaints. Likewise, in response to River Ventures complaint to limit or exonerate liability, the owner and operator of ANGELA RAE, the owner, operator, and insurers of MISS DOROTHY, and Captain Colomb of MISS DOROTHY all filed answers and complaints. Joshua Deranger, the MISS DOROTHY deckhand injured during the collision, answered the C.J.L. and River Ventures complaints, filed counterclaims against them, and third-party complaints against Western Rivers Boat Management, Quality Marine Services, Continental Insurance, National Union Fire, Starr Liabilities, Atlantic Specialty Insurance (insurer of C.J.L. and L&L), and Underwriters at Lloyds (insurer of C.J.L. and L&L). Deranger alleged that all parties were liable for his injuries, which was the result of all three vessels' negligence in either causing, or failing to prevent, the allision.

         On July 6, 2017, River Ventures filed a motion for summary judgment moving the Court to dismiss all claims against it. In its August 9, 2017 Order and Reasons, the Court denied the motion, holding that there was a genuine issue of material fact as to whether FREEDOM was negligent in its conduct immediately preceding the allision. Joshua Deranger now moves the Court to grant partial summary judgment in its favor and to determine that, as a matter of law, C.J.L. & L.L is not entitled to exoneration or limitation of liability.

         I. Legal Standard:

         Motion of Summary Judgment Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . ...


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