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Hathorn v. Marquette Transportation Co. Gulf-Inland, LLC

United States District Court, E.D. Louisiana

March 8, 2018

THOMAS JERMAINE HATHORN
v.
MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC, ET AL.

         SECTION "B"(5)

          ORDER AND REASONS

         Defendant EMR, Inc., d/b/a Southern Recycling, LLC and/or Southern Scrap Recycling's (SOREC) motion for summary judgment is before the Court. Rec. Doc. 35. Plaintiff timely filed an opposition. Rec. Doc. 56. Defendant then sought, and was granted leave, to file a reply. Rec. Doc. 61. For the reasons discussed below, IT IS ORDERED that the motion (Rec. Doc. 35) is GRANTED and Plaintiff's claim against Defendant SOREC is DISMISSED.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff Thomas Hathorn worked for Defendant Marquette Transportation Company Gulf-Inland, LLC on the M/V Good Shepard, a tug boat. See Rec. Doc. 23 at ¶¶ 5, 7. On May 28, 2015, the Good Shepard arrived at Defendant SOREC's facility in Gulfport, Mississippi, to pick up a barge. See Rec. Doc. 56-1 ¶ 16. The barge had been at SOREC's facility since May 21, 2018 and was loaded with just over 1, 000 metric tons of scrap metal. See Rec. Doc. 56-1 ¶¶ 4, 5. The barge had the capacity to hold 1, 400 metric tons of material. See Id. ¶ 5. Scrap material is loaded into the center of the barge; the area containing the scrap material is surrounded by a wall called a coaming barrier. See Rec. Docs. 35-4 at 11-40; 56-3 at 17. A walkway wraps all around the barge on the outside of the coaming barrier. See id.

         Before loading the barge, SOREC baled the scrap metal, which involves compressing loose scrap metal into cubes. See Rec. Doc. 56-3 at 10-13. The cargo on the barge also included cars that had themselves been compressed in the baler. See Id. at 14. Each bale weighs approximately 2, 000 pounds and is “compact and dense, ” making it difficult to break a piece out of the bale. See Id. at 12. The material on the barge was “domed, ” which means that the higher layers of scrap metal were set back from the edge of the barge more than the lower levels were. See Id. at 8. The material was six to eight feet high at the center of the barge and “slightly lower” at the edges. See Id. at 17. There was no loose material on top of the barge; all of the material stacked above deck had been compacted into bales. See Id. at 6. The captain of the Good Shepard testified that the barge was loaded to the maximum height for this type of cargo. See Rec. Doc. 56-5 at 5.

         After loading the barge, SOREC employees checked the barge for hazards, including materials on the walkway around the edge of the barge. See Rec. Doc. 56-1 ¶¶ 6, 8, 9. Chris Covington, the deputy manager of the SOREC facility in Gulfport, also photographed the barge after loading was complete. See Rec. Doc. 35-4 at 34-40. No. tailpipe is visible on the walkway in the photos. See Id. Covington's affidavit states that, in his opinion, the barge “was loaded properly” and that the “load was typical and customary . . . .” Id. at 3. Marquette also has a policy of performing safety inspections when accepting new barges. See Rec. Doc. 56-1 ¶ 11. Two Marquette employees performed a visual inspection of the barge before setting sail; the inspection included checking the walkways for hazards. See Rec. Doc. 61-2 at 8.

         After picking up the barge on May 28, 2015, the Good Shepard traveled to the Biloxi channel and picked up three other barges. See Rec. Doc. 56-1 ¶¶ 17, 18. This involved disconnecting, moving, and reconnecting the barge at issue in this case. See Id. ¶¶ 18, 24, 25. Between nine and twenty hours later, at between 3:40 a.m. and 5:30 a.m. on the morning of May 29, 2015, the Good Shepard arrived at its destination, a SOREC facility in New Orleans. See Id. ¶¶ 21-22. The barge, including its walkway, was inspected two more times during the voyage. Rec. Doc. 61-2 at 11, 20, 22-23, 27. The last inspection prior to the accident was conducted by Plaintiff. See Id. at 22.

         When the Good Shepard arrived, the crew then separated the barge at issue in this case from the others and began to secure it to the dock. See Rec. Doc. 56-1 ¶ 24. While the Good Shepard docked, Plaintiff was walking on the right side of the barge to help secure the barge to the dock. See Id. ¶¶ 25-27. Plaintiff stepped on a tailpipe and fell backwards, suffering injuries. See Id. ¶¶ 23, 25-29. Under general maritime law, Plaintiff brought a negligence claim against Marquette and SOREC. See Id. ¶ 17. Plaintiff argues that SOREC was negligent in loading the barge. See Id. ¶ 17. SOREC then filed the instant motion for summary judgment, arguing that it did not breach its duty of care to plaintiff. See Rec. Doc. 35.

         LAW AND ANALYSIS

         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When the movant bears the burden of proof, it must “demonstrate the absence of a genuine issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323. But “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the movant meets its burden, the burden shifts to the non-movant, who must show by “competent summary judgment evidence” that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618. “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

         “Negligence is an actionable wrong under general maritime law.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010). To succeed on a negligence claim, a “plaintiff must demonstrate that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant's conduct and the plaintiff's injury.” Id. The instant motion turns on the question of whether Defendant SOREC breached its duty to Plaintiff. See Rec. Doc. 35 at 1.

         A stevedore, one who loads a boat, owes a duty of “workmanlike performance, ” Southern Stevedoring & Contracting Co. v. Hellenic Lines, Ltd., 388 F.2d 267, 270 (5th Cir. 1968), which requires it “to perform its [contractual] duties with reasonable safety, ” Johnson v. Warrior & Gulf Navigation Co., 516 F.2d 73, 76 (5th Cir. 1973). Defendant SOREC offers substantial evidence that it took various steps to ensure the barge was safely loaded before SOREC handed the barge over to Marquette. SOREC baled material into cubes to make it less likely that material would move around or come loose during transport. See Rec. Doc. 56-3 at 10-14. SOREC arranged the bales in a “dome” to further mitigate the risk of material falling out of the barge or onto the walkway around the barge. See Id. at 7-8. After loading was complete, SOREC employees inspected the barge and did not observe any safety hazards. See Id. at 24-25. Photographs confirm Defendant's testimony that the barge was clean after loading. See Rec. Doc. 35-4 at 34-40. The manager of the SOREC facility in Gulfport states in his affidavit that the material on the barge was “typical and customary . . . .”[1]Id. at 3.

         Because Defendant's evidence consistently demonstrates that Defendant did not breach its duty to load the barge with reasonable care, Plaintiff has the burden of demonstrating that a genuine issue of material fact exists. See Matsushita, 475 U.S. at 586; Lindsey, 16 F.3d at 618. Plaintiff fails to meet his burden because he only musters speculation that SOREC breached its duty. See McCarty, 864 F.3d at 357 (“This burden will not be satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”). Plaintiff claims that he has presented “facts showing that [SOREC] had knowledge that loads can shift, only baled material should be above the coaming, it is not possible ...


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