929 F.2d 1073 (5th Cir. 1991), 90-3619, In re Cooper/T. Smith
|Citation:||929 F.2d 1073|
|Party Name:||In re COOPER/T. SMITH, et al. Elizabeth Ross ABSHIRE, etc., Plaintiff-Appellant, v. GNOTS-RESERVE, INC., et al., Defendants-Appellees. Sandra Marie CORMIER, etc., Plaintiff, v. AMERICAN COMMERCIAL LINES, et al., Defendants.|
|Case Date:||April 30, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Lawrence D. Wiedemann, John H. Denenea, Jr., Wiedemann & Wiedemann, New Orleans, La., for Abshire.
Glenn Gill Goodier, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for American Commercial Lines.
George M. Legrand, David M. Flotte, Hebert, Mouledoux & Bland, New Orleans, La., for Cooper/T. Smith Stevedoring Co., Inc.
Henry S. Provosty, New Orleans, La., for Gnots-Reserve Inc.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before JOHNSON, SMITH, and WIENER, Circuit Judges.
Plaintiff, Elizabeth Abshire, 1 the widow of Donald Abshire, seeks review of the district court's grant of summary judgment in favor of defendants, Cooper/T. Smith and Gnots-Reserve claiming that a genuine issue of fact remains as to the cause of her husband's disappearance and subsequent drowning death. Having viewed the summary judgment evidence in the light most favorable to Mrs. Abshire, we agree with the district court that there is a complete absence of proof to establish unseaworthiness, causation or negligence on the part of any of the defendants. Therefore, we affirm the district court's grant of summary judgment to the defendants.
In September 1988, Cooper/T. Smith Stevedoring Company (Cooper), d/b/a Terrence Derrick & Lighterage Co., filed a complaint pursuant to the Limitation of Liability Act, 46 U.S.C.App. Sec. 183, et seq., seeking exoneration from or limitation of liability for possible claims arising out of the disappearance and drowning death of Donald Abshire, a crane operator who was working aboard its vessel, the D/B KEVIN on the day he disappeared. Elizabeth Abshire filed a claim in the limitation action against Cooper claiming that Cooper was either negligent under the Jones Act or that the D/B KEVIN was unseaworthy. Mrs. Abshire also filed third party claims against American Commercial Barge Line (ACBL) and Gnots-Reserve Towing, Inc. (Gnots) claiming that both parties were negligent under general maritime law.
Cooper, Gnots and ACBL all filed motions for summary judgment, seeking dismissal of all claims asserted by Mrs. Abshire. Mrs. Abshire did not oppose the motion filed by ACBL and voluntarily dismissed that party from the suit.
The district court granted Cooper's and Gnots' motions for summary judgment and dismissed Mrs. Abshire's complaint with prejudice. Mrs. Abshire timely appeals.
Donald Abshire was employed by Cooper as a Jones Act seaman aboard the D/B KEVIN. Abshire's duties included operating an onboard crane, handling lines, securing barges, and assisting the movement of the barges in the flotilla. On February 19, 1988, the D/B KEVIN was discharging steel coils from the S/S PARASKEVI onto three river barges, the ACBL-2892, ACBL-1403 and ACBL-1323, which were moored to the port side of the D/B KEVIN in first-off, second-off and third-off positions respectively. As the barges were loaded, they were removed from the flotilla by the pushboat GNOTS I which was owned and operated by Gnots and piloted by Captain Andrew Sherman.
At about 4:00 p.m. on February 19, a co-worker, Darrel Gonsoulin, walked up to Abshire on the D/B KEVIN and talked to him for several minutes. Abshire told Gonsoulin that he was "going to catch a line" and proceeded to walk off the D/B KEVIN and across the head of the first-off barge, ACBL-2892. After having spoken with Abshire, Gonsoulin went to man the winch in preparation for movement of the first-off barge. The winch was motorized and the noise blocked out all...
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