United States District Court, E.D. Louisiana
ERGON - ST. JAMES, INC.
PRIVOCEAN M/V, ET AL.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
following motion is before the Court: Motion for
Summary Judgment (Rec. Doc. 345) filed by Raven
Energy, LLC. Privocean and Cargill International SA oppose
the motion. The motion, scheduled for submission on
March 7, 2018, is before the Court on the briefs without oral
case arises out of a breakaway incident in which the M/V
PRIVOCEAN broke away from its moorings at the Convent Marine
Terminal on the east bank of the Mississippi River. The
PRIVOCEAN drifted across the river and allided with the M/T
BRAVO, which was moored at the Ergon - St. James terminal and
dock on the west bank of the river. As a result, Ergon and
the M/T BRAVO suffered extensive damages.
was the owner and operator of the Convent Marine Terminal
facility (“CMT”) where the PRIVOCEAN was berthed
prior to the breakaway.
time of the incident, the PRIVOCEAN was operating under a
head time charter between Bunge, S.A. and Privocean; under a
sub-time charter from Bunge to Cargill International SA;
under a voyage charter from Cargill to Foresight Coal Sales,
LLC, for loading of coal at CMT.
has been tendered by Privocean as a direct defendant in the
limitation proceedings. In turn, Raven filed various
defense/indemnity claims, including claims against Privocean
trial is scheduled for April 23, 2018.
motion for summary judgment (345), Raven seeks judgment as a
matter of law on all claims that have been asserted against
it as to its liability for the PRIVOCEAN's breakaway and
the resulting damages. Raven also seeks judgment as a matter
of law as to the indemnity (and other) claims that it has
asserted against Privocean and Cargill.
outset, the Court denies the motion insofar as Raven seeks
judgment as a matter of law as to its fault for the
PRIVOCEAN's breakaway. The Court agrees that Raven's
allocation of fault, if any, likely would be minimal but the
Court is persuaded that the other claimants have sufficiently
created an issue of fact as to whether Raven is chargeable
with some degree of fault, even if one percent. If Raven is
to be absolved of all liability for the breakaway then that
must occur following the trial on the merits.
argues that the question of its fault for the breakaway is
nonetheless irrelevant because Privocean is bound by
CMT's Terminal Rules and Regulations (“ the
R&R”) (Rec. Doc. 345-2, Exhibit A), which contain
indemnity obligations that attach even when Raven is at
fault. Raven argues that Cargill is likewise bound by the
R&R and its indemnity provisions because the R&R was
incorporated into the voyage charter between Cargill and
does not concede that it is bound by the R&R, and Cargill
vehemently disputes that it is bound. But even if Privocean
and Cargill were bound by the R&R, Privocean and Cargill
argue that the the R&R does not call for them to
indemnify Raven for its own fault.
contract of indemnity should be construed to cover all
losses, damages, or liabilities which reasonably appear to
have been within the contemplation of the parties.
Corbitt v. Diamond M. Drilling Co., 654 F.2d 329,
333 (5th Cir. 1981). It should not be read to
impose liability for those losses or liabilities which are
neither expressly within its terms nor of such a character
that it can be reasonably inferred that the parties intended
to include them within the indemnity coverage. Id.
contract to indemnify another for his own negligence imposes
an extraordinary obligation. Id. Therefore, a
contract of indemnity will not afford protection to an
indemnitee against the consequences of his own negligent act
unless the contract clearly expresses such an obligation in
unequivocal terms. Id. (citing United States v.
Seckinger, 397 U.S. 203, 211-13 (1970); Transcon.
Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684,
691-92 (5th Cir. 1970)). An indemnitor is entitled
to express notice that under his agreement, and through no
fault of his own, he may be called upon to pay damages solely
caused by the negligence of his indemnitee. Id.
General maritime law has not adopted the “express
negligence test, which requires an indemnity provision to