Bartoe v. Missouri Barge Line Co. Inc.
| Decision Date | 07 July 2009 |
| Docket Number | No. 1:07CV165RWS.,1:07CV165RWS. |
| Citation | 635 F.Supp.2d 1020 |
| Parties | Raymond BARTOE, Plaintiff, v. MISSOURI BARGE LINE COMPANY INC., d/b/a Northern American Barge Line Inc., and Cape Girardeau Fleeting, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
John J. Page, Zane T. Cagle, Page and Cagle, St. Louis, MO, for Plaintiff.
Douglas E. Gossow, Stacey D. Kurich, Goldstein and Price, L.C., St. Louis, MO, for Defendants.
Plaintiff Raymond Bartoe, a former deckhand who slipped on ice and fell while working on the harbor tug M/V Coal Express, filed this lawsuit asserting claims for the usual admiralty trinity: the Jones Act for negligence, general maritime law for unseaworthiness, and maintenance and cure, all for the injuries he claims to have sustained while employed by Defendant Missouri Barge Line Inc. d/b/a North American Barge Line, Inc. and Defendant Cape Girardeau Fleeting, Inc. Bartoe claims Defendants were negligent and/or the Coal Express was unseaworthy for several reasons, including Defendants' failure to provide a safe place to work, proper equipment, adequate deicing chemicals, sufficient personnel to prevent water from collecting and freezing on the deck, and for permitting its pilot to travel at a speed that facilitated the formation of ice on the deck.
Bartoe and Defendants have each moved for partial summary judgment. Bartoe argues he is entitled to partial summary judgment as a matter of law on two of Defendants' affirmative defenses. Specifically, Bartoe argues that Defendants cannot assert the "primary duty" doctrine as a defense and that Defendants are barred from claiming limitation of liability because they failed to post the required bond. Defendants argue that they are entitled to partial judgment as a matter of law because the mere presence of ice on a vessel does not render it unseaworthy or create a condition requiring the owner to take corrective measures, and Bartoe cannot establish that the lack of additional deck crew caused his injuries.
For the reasons stated below, I will grant in part and deny in part both Bartoe's and Defendants' motions for partial summary judgment.
Raymond Bartoe worked as a deckhand aboard the harbor tug M/V Coal Express in January 2007. Bartoe claims he injured his back when he slipped on ice on the tug's deck, fell from the tug and onto a barge in tow, and landed on a stationary tool. Bartoe has sued Defendants for negligence under the Jones Act, 46 U.S.C. § 30104, for unseaworthiness under general maritime law, and for maintenance and cure. In Bartoe's Complaint, he asserts numerous theories of liability. The theories that concern Defendants' motion are that ice on the deck and a lack of adequate personnel rendered the vessel unseaworthy and that Defendants were negligent by permitting or facilitating ice to accumulate on the deck through a variety of acts or omissions, including operating the vessel too quickly and providing insufficient personnel to clear the deck of ice.
January 16, 2007, was a cold day. The temperature hovered around 20 degrees Fahrenheit and there was a light breeze. Bartoe worked aboard the Coal Express as a deckhand. Although it was not raining, snowing or sleeting, when Bartoe boarded the Coal Express to begin his shift, ice had already formed on the deck. That evening, the entire crew aboard the Coal Express consisted only of Bartoe and its pilot, Dave Gerardi. It was not uncommon to operate the tug with only one deckhand and one pilot, however. Bartoe testified that there had been an additional crew member only about half of the roughly twelve occasions he had worked aboard the Coal Express.
When Bartoe arrived to begin his shift, the deckhand working the shift before him was salting the deck as part of his job duties. One of a deckhand's many duties aboard a tow is to remove ice. Ice can form on the deck for various reasons. Defendants' corporate designee, Mike Griffith, testified that ice can accumulate on the deck of a vessel if precipitation falls on the deck and freezes or waves or the wake1 of another vessel sprays water onto the deck and then freezes. Gerardi, testified that the amount of ice that accumulates on the deck is directly related to the speed the vessel travels. David Carroll, a deckhand who was not aboard the Coal Express that night, testified that the faster a vessel travels, the more water collects on the deck. Bartoe testified that, as the night wore on, spray from the Mississippi river caused by the boat's movements, rather than by precipitation, caused ice to accumulate on its deck. Bartoe testified that mist would accumulate on the deck regardless of the vessel's speed, but if the pilot had run the boat at a slower rate, less ice would have accumulated. He explained that every time the pilot moved the boat, it was necessary to salt the deck because the water coming up onto the deck would wash off. Griffith stated that if the pilot believes that water is coming up over the deck and freezing, he should slow down.
Throughout the evening, Bartoe continued to apply "ice melt" to the deck of the Coal Express. Bartoe had seen "frost and ice, real light ice" on a vessel's deck before, but not the amount he saw on the Coal Express that night. Bartoe claims that when the ice was approximately ½ inch thick on the deck, he warned Gerardi about ice accumulation and told him they "had to slow up." Gerardi denies this and says that Bartoe never informed him that excessive water was splashing up on the deck and freezing or discussed with him the need to slow down.
Later that night or in the early morning hours of January 17, Bartoe and the pilot of the Coal Express were attempting to turn a barge loose from a fleet of barges operated by Cape Fleeting. In order to accomplish this task, it was necessary to "face up" the Coal Express to the barge (attach with wires from winches to deck fittings). While facing up, Bartoe used ice melt to improve his footing. Bartoe explained that salting the deck was necessary because otherwise, facing up would be impossible: "You had to get something under your feet or you would go in the river." Bartoe also testified that the product only melted ice, but did not assist in helping him to get his footing. Additionally, he testified, he used a sledge hammer to remove as much ice as he could. After Bartoe reapplied ice melt, the Coal Express remained stationary until after Bartoe's fall and the tug was moored. Bartoe testified that when he slipped, the ice was between 1/8 to 1/4 inch thick in the area where he lost his footing.
Bartoe and others testified about the hazards of ice on the deck and the steps Defendants could have or should have taken. Defendants have taken precautionary steps in the past to avoid slip-and-fall accidents. For example, according to Kevin Hendershott, a Coal Express pilot who was not operating the vessel when Bartoe slipped, the deck of the Coal Express is painted each year with a "non-skid sand paint." But, according to Bartoe's expert, David Cole, once ice blankets the deck to the point where the deckhand's shoes do not contact skid resistant material on the deck, the nonskid coatings are ineffective. Griffith acknowledged that ice on the deck could be a safety hazard if the deckhand did not remove it.
Bartoe suggested that less ice would have accumulated if the pilot had run the boat at a slower rate. Carroll testified that during cold weather, the pilot usually operates the boat at a slower speed and does what he can to prevent water from splashing onto the deck. Hendershott testified that he operates the Coal Express at a slower speed than normal during cold weather to prevent ice from building up.
There is a factual dispute concerning whether Defendants should have provided an additional deckhand the night Bartoe fell. Bartoe suggested that Defendants could have provided additional help that night to salt the deck and remove ice as it accumulated and additional help would also mean the pilot would be in less of a hurry. Cole agreed and testified that he believed two deck hands were necessary as a general matter of safety, and that a second deck hand was necessary to provide continual removal of ice. But Griffith testified that the weather conditions would not make it desirable or better to have an additional deckhand. Griffith did testify, however, that Defendants had an additional person aboard the Coal Express on 17 out of the 31 days in January. Carroll testified that he preferred to work alone and would rather not have an additional deckhand aboard. But moments later, Carroll testified that he would rather have a second deckhand aboard during bad weather.
In considering whether to grant summary judgment, a district court examines the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Fed. R.Civ.P. 56(c). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates 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. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998). When a genuine issue of material fact exists, summary judgment should not be granted.
The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When such a motion is made and supported by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient evidence to...
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