United States District Court, E.D. Louisiana
ORDER AND REASONS
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
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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
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.
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
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).
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
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 . . .
.”Id. at 3.
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 ...