Bass v. M/V Star Isfjord
| Docket Number | CIV. ACT. 1:20-cv-7-TFM-M |
| Decision Date | 28 September 2022 |
| Parties | PATRICK BASS and JOCELYN BASS, Plaintiffs, v. M/V STAR ISFJORD, GRIEG STAR SHIPPING II AS and G2 OCEAN AS, Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Now pending before the Court is the Motion for Summary Judgment or, in the alternative, for Partial Summary Judgment (with Incorporated Brief) (Doc. 61, filed 10/05/21) filed by Defendants Grieg Star Shipping and G2 Ocean. Having considered the motion, response, reply, the evidentiary submissions in support of the motions, and the relevant law the Court finds Defendants' motion for summary judgment (Doc. 61) is GRANTED in part and DENIED in part as discussed below.
Plaintiffs Patrick Bass (“Mr. Bass”) and Jocelyn Bass (“Mrs. Bass”) (collectively “Plaintiffs”), assert claims of negligence, gross negligence, wanton conduct, punitive damages, and damages for loss of consortium against Defendants M/V STAR ISFJORD, Grieg Star Shipping II AS, and G2 Ocean AS. M/V STAR ISFJORD is a Norwegian Flagged cargo vessel owned and/or operated by Defendant Grieg Shipping II, AS (a Norwegian company). G2 Ocean AS is a company based in Norway that is a joint venture between Defendant Grieg Shipping II AS and Gearbulk (another open hatch ship owning company). The instant motion for summary judgment is brought by Defendant Grieg Shipping II, AS and G2 Ocean AS (collectively referred to as “Defendants” in this opinion).
This Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1333 (). The parties do not contest personal jurisdiction or venue, and the Court finds that sufficient support exists for both.
On December 14, 2018, the M/V STAR ISFJORD, an ocean-going cargo vessel designed with numerous cargo holds, arrived in Houston, Texas from Germany. See Doc. 69-1, Emergency Action Notification from the U.S. Department of Agriculture (“USDA”); Doc. 69-10, M/V STAR ISFJORD diagram. On December 17, 2018, the USDA issued an Emergency Action Notification to the vessel, notifying it that the wood packaging material with the shipment was noncompliant because, “[l]ive insects of the family Cerambycidae were extracted from the wood packaging material in this entry.” Doc. 69-1. The USDA ordered, “[t]he shipment must be loaded in a sealed hold and cannot be opened while in U.S. waters/ports.” Id.
On December 19, 2018, Don Walden, an Operator with Defendant G2 Ocean AS, sent an email, to Captain Jose Montalban, the Captain of the M/V STAR ISFJORD, to comply with the Emergency Action Notification. Id. The email requested that the crew of the vessel tape and seal the tween deck covering the contaminated cargo stowed on the tank top of Hold No. 4 and to send him pictures upon completion. Doc. 69-2. Accordingly, on December 20, 2018, Captain Montalban and Chief Mate Joel Abrantes sent a photograph to Mr. Walden that shows the stairwell to the tank top of Hold No. 4 was covered with cardboard and taped. Doc. 69-3. In response, Mr. Walden expressed gratitude to the men and crew for doing a job well done. Id.
The M/V STAR ISFJORD left Houston, Texas, traveled to Mexico, and returned to Mobile, Alabama on January 7, 2019. When the vessel arrived in Mobile, there was a pre-work (“turnover”) meeting between the crewmembers of the M/V STAR ISFJORD. Specifically, this meeting included Chief Mate Abrantes -- the individual who placed the cardboard over the open manhole in the stairwell landing -- and Malachi Ojeda -- the head superintendent of CSA Equipment Company, LLC (“CSA”). Doc. 61 at 2, Doc. 69 at 4-5. It is undisputed that Defendants failed to inform and warn anyone at CSA or any of the longshoreman of the “infested” dunnage or use of cardboard to seal the bottom of Hold No. 4. Docs. 61 at 3; 69 at 5.
Mr. Bass was a contract employee of CSA and worked as a stevedore. On January 7, 2019, Mr. Bass reported to the Metro Cruise Terminal in Mobile, Alabama to begin stevedoring operations on the M/V STAR ISFJORD. Mr. Bass was working in a different cargo hold when he was instructed to move to the tween deck of cargo Hold No. 4 to assist three other longshoremen. in laying paper or cardboard on the tween deck, which is customary to protect a stow of white fluff against dirt and damage. Doc. 69 at 5 (citing Plaintiff's deposition, Doc. 69-9). The CSA foreman notified the four longshoremen in Hold No. 4 to “take cover” for incoming cargo. Accordingly, Mr. Bass sought shelter in the access ways to get out from under the suspended loads of cargo. Doc. 62-4 at 3. The parties have different accounts of what happened next and, as is required, the Court views the facts in the light most favorable to the Plaintiffs.
According to Plaintiffs, around 11:00 p.m., Mr. Bass walked from the tween deck into the stairwell landing adjacent to the tween deck of cargo Hold No. 4. Mr. Bass states being aware of “horror stories” involving suspended cargo falling and made sure to comply with the “take cover” command. Doc. 62-4 at 3. Mr. Bass entered the archway for safety. Id. He expected there to be a solid landing floor as he stepped down from the raised tween deck. Instead of a solid landing floor, he stepped on the cardboard covering the manhole and fell 12-15 feet. According to Defendants, it is unclear whether Mr. Bass lost footing and slipped or whether he stepped onto the cardboard covering the opening for the access ladder. Doc. 61 at 4. After the accident, Mobile Fire Rescue arrived.[1] Plaintiff's response notes that immediately after Mr. Bass' accident, the crew of the STAR ISJFORD replaced the cardboard covering the access ladder with plywood, and eventually replaced the plywood with a yellow and black metal cover that reads, “Do Not Step On.” Doc. 69 at 7.
Following the accident, Mr. Bass has suffered a loss of feeling in his extremities. On January 9, 2019, Mr. Bass underwent a seven (7) level cervical fusion and a four (4) level cervical laminectomy by Dr. Ninh Doan at University of South Alabama Hospital. Doc. 69-14, Dr. Doan Operative - Omni Report. On October 10, 2019, Dr. Alexis Waguespack removed problematic hardware from Mr. Bass' cervical spine. Doc. 69-15 at 1-2. On March 10, 2020, Dr. Waguespack performed a four (4) level anterior cervical fusion with instrumentation from C4-T1. Id. at 3-4. Mr. Bass sustained a traumatic brain injury and diffuse axonal injury, with spinal fluid that continues to drain from his nostrils. Doc. 69-16, Dr. Koga's Report. Since the accident, Mr. Bass remains under the care of psychologists, psychiatrist, neurosurgeons, orthopedic surgeons, and brain injury specialists. Doc. 69 at 8. According to Plaintiffs, Mr. Bass is permanently disabled, will incur significant future life care expenses, and has suffered a substantial wage loss and diminished earning capacity.
Plaintiffs filed their original complaint on January 6, 2020, pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act (“LHWCA”). Doc. 1. On July 14, 2020, Plaintiffs filed an unopposed amended complaint wherein they correctly identify the Defendants by their proper names but maintained the same claims. Doc. 29. Mr. Bass asserts claims of negligence, gross negligence, and wanton conduct by asserting Defendants failed to provide Mr. Bass with a safe place in which to work, failure to warn, failure to warn Mr. Bass of the dangerous and unsafe conditions of the vessel, breaching the turnover duty, breaching the active control duty, failure to intervene, failure to rope off or barricade an open hole, and other acts of negligence generally. Mr. Bass seeks past, present, and future: medical expenses, pain and suffering and loss of function, emotional and mental pain and suffering, lost wages and diminished earning capacity, loss of enjoyment of life, permanent injury and disfigurement, special care and services, and punitive damages. Mrs. Bass asserts a claim and damages for a loss of consortium. Finally, in the amended complaint, Plaintiffs seek a jury trial, compensatory and punitive damages, and attorney's fees, costs, and interest. Id.
On July 17, 2020, Defendants filed a motion to strike Plaintiffs' jury demand because Plaintiffs' claims are admiralty claims that are not entitled to the right to a trial by jury. Doc. 30. On July 30, 2020, Plaintiffs filed a consent motion expressing no opposition to Defendants' motion to strike. Doc. 32. Accordingly, the Court granted Defendants' motion on July 31, 2020. Doc. 31. Accordingly, this case is a non-jury action under admiralty, maritime, and prize cases. On August 5, 2020, Defendants filed an answer to the amended complaint. Doc. 34.
On October 5, 2021, Defendants filed a motion for summary judgment and alternative motion for partial summary judgment. Doc. 61. On October 26, 2021, Defendants filed a supplemental brief on the standard of liability for punitive damages. Doc. 66. Plaintiffs filed a response in opposition on November 12, 2021, and Defendants filed a reply on November 19, 2021. Docs. 69, 72. On January 4, 2022, Defendants filed two motions to exclude Plaintiffs' expert testimony and opinions. Docs. 83, 84. On January 28, 2022, Plaintiffs filed responses to each motion. Docs. 90, 91. On February 7, 2022, Defendants filed a reply to each response. Docs. 94, 95. The Court previously issued a separate memorandum opinion and order for the motions to exclude. Doc. 99. The motion for summary judgment is ripe for adjudication and the Court finds that no oral argument is needed.
To continue reading
Request your trial