Cabading v. Port of Portland
| Decision Date | 04 April 2022 |
| Docket Number | 3:20-cv-00312-HZ |
| Citation | 598 F.Supp.3d 1009 |
| Parties | Jonathan CABADING, an individual, Plaintiff, v. PORT OF PORTLAND, an Oregon municipal corporation and port district of the State of Oregon, in personam, Kinder Morgan Operating L.P. "C", a Texas limited partnership, in personam, and Kinder Morgan Bulk Terminals, LLC, a Texas limited liability company, in personam, Defendants. |
| Court | U.S. District Court — District of Oregon |
Gordon T. Carey, Jr., 6215 NE 31st Avenue, PO Box 11570, Portland, OR 97211, Nicholas J. Neidzwski, Anderson Carey Williams Neidzwski, 21 Bellwether Way, Suite 104, Bellingham, WA 98225, Attorneys for Plaintiff
Chris M. Reilly, W.L. Rivers Black, III, Nicoll Black & Feig, PLLC, 1325 4th Ave, Suite 1650, Seattle, WA 98101, Attorneys for Defendant Port of Portland
Paul A.C. Berg, Chester D. Hill, Cosgrave Vergeer Kester, LLP, 900 SW Fifth Avenue, 24th Floor, Portland, OR 97204, Attorneys for Defendant Kinder Morgan
Plaintiff Johnathan Cabading was severely injured when he was struck by a mooring line while onboard a vessel docked at Berth 410/411 at the Port of Portland's Terminal Four. Plaintiff brings negligence claims against Defendant Port of Portland and Defendants Kinder Morgan Operating L.P. "C" and Kinder Morgan Bulk Terminals, LLC (herein "Kinder Morgan"). Defendant Port of Portland brings crossclaims against Defendant Kinder Morgan for breach of contract. Defendant Port of Portland moves for summary judgment on Plaintiff's negligence claims and moves to exclude Plaintiff's liability experts. Defendant Kinder Morgan moves for summary judgment on Plaintiff's negligence claims and on Defendant Port of Portland's crossclaims. Finally, Defendant Kinder Morgan moves to strike Plaintiff's rebuttal report. For the reasons that follow, the Court grants in part and denies in part the parties’ motions.
This case concerns a catastrophic maritime accident. A mooring line became fouled during a linehauling operation, then snapped up and struck Plaintiff in the chest, face, and head. The accident occurred while Plaintiff was onboard a vessel docked at Berth 410/411 at the Port of Portland's Terminal Four.
Berth 410 is located at the Port of Portland's Terminal 4 along the Willamette River. Neidzwski Decl. Ex. 63 30:22-23, ECF 120-63. It is an extension of the Berth 411 structure. Id. 31:1-2. Berth 410/411 has a fender system that consists of timber and steel piles. Neidzwski Decl. Ex. 17 ("BergerABAM Assessment") at 8.1 The "[s]teel piles are covered with an HDPE pipe sleeve." Id.
Defendant Kinder Morgan leases the waterfront property of Terminal Four from Defendant Port of Portland to conduct its soda ash operations. Lidstone Decl. ¶ 3, ECF 87; Lidstone Decl. Ex. 1 ("Lease Agreement"), ECF 87-1. Soda ash is a substance used primarily in glass manufacturing. Lidstone Decl. ¶ 3. Defendant Kinder Morgan receives soda ash from rail cars, stores it on its premises, and then loads it onto vessels moored at Berth 410/411. Lidstone Decl. ¶ 3. Soda ash is the only material loaded at Berth 410/411. Neidzwski Decl. Ex. 50 4:19-24, ECF 120-50.
Defendant Kinder Morgan uses a stationary or fixed loader to load soda ash onto vessels moored at Berth 410/411. Neidzwski Decl. Ex. 57 243:3-5, ECF 120-57. Thus, to position a specific hull of the vessel under the fixed loader, the vessel must move along the face of the dock. Hill Decl. Ex. 8 168:2-11, ECF 86-8. Vessels use linehauling to make these movements. Linehauling moves a vessel laterally along the dock using the vessel's mooring lines without the use of engines. Reilly Decl. Ex. 78:5-7, ECF 89-1. At Berth 410/411, vessel mooring, unmooring, and linehauling is conducted by the vessel, or with the assistance of a crew of dock-side line handlers hired by the vessel. Lidstone Decl. ¶ 4; Hill Decl. Ex. 7 at 55:13-18.
On June 17, 2019, the M/V PUFFIN ARROW arrived at Berth 410/411 to load soda ash into eight cargo holds aboard the vessel. Ruben Decl. ¶ 7. Plaintiff was the chief mate on the M/V PUFFIN ARROW. McCurdy Aff. Ex. 1 at 4, ECF 89-3. On June 19, 2019, M/V PUFFIN ARROW was linehauling in order to shift the vessel. Reilly Decl. Ex. 1 58:2-8, 80:1-2. During the linehauling operation, the captain of the vessel told Plaintiff to "check the spring line that got stuck up at the fender." Id. at 84:4-7, 105:23-25. Plaintiff followed this instruction. Neidzwski Decl. Ex. 24. Plaintiff was then struck by a mooring line. Id. A video of the incident shows Plaintiff standing on the main deck of the vessel near the starboard rail when he is struck by the line. Id. Plaintiff remembers nothing after receiving the captain's instruction to check the mooring line. Reilly Decl. Ex. 11 05:5-6. He suffered several traumatic injuries from the accident. Cabading Decl. ¶ 7, ECF 114.
Defendant Kinder Morgan leases part of Terminal Four from Defendant Port of Portland and has a license to use another portion of the Terminal for its soda ash business. Lidstone Decl. ¶ 3. The Lease Agreement between the parties gives Defendant Kinder Morgan a "license for the preferential use of the wharves and aprons at Berths 410 and 411, Terminal 4." Section 2.3 Lease Agreement at 13. This is referred to as the "Preferential Use Area" in the agreement. Id. The " ‘berths’ are the spaces ... the vessel occupies when it is docked (or ‘berthed’)." Lidstone Decl. ¶ 7. "The wharf is the platform area adjacent to the berths." Id. In the "Preferential Use Area" "[t]here is only one ‘apron,’ which is the area adjacent to the wharf, which one passes over when coming onto the wharf." Id.
Section 6.5 of the Lease Agreement specifies the parties’ maintenance obligations. It states "[t]he Port shall maintain the following items in good operating condition and in good repair: (i) at Berths 410 and 411, the wharves and aprons, pilings, under dock walkways and lighting, and mooring systems including dolphins." Section 6.5 Lease Agreement at 26. It states further "[l]essee shall provide written notice to the Port of any required maintenance to be performed pursuant to this Section 6.5." Id.
The Lease Agreement also contains provisions related to indemnification and liability insurance between the Defendants. See Sections 9.1.1, 9.1.2, & 9.2.9.1 Lease Agreement at 36–38.
In 2018, Defendant Port of Portland commissioned a fender system condition assessment. Neidzwski Decl. Ex. 46 94:13-23, ECF 120-46; BergerABAM Assessment at 2. The assessment "consisted of a visual inspection of fender piles, rubber fenders, wales, chocks, and fender panels above the water level." BergerABAM Assessment at 7. It was a "routine inspection" meant to "assess the general condition of the fender systems and make recommendations for maintenance repairs." Id. The assessment included an inspection of the fender system at Berth 410/411. Id. at 8–9. It rated the fender system at Berth 410/411 as "serious to poor with approximately 55 percent of the timber piles rated with major to severe damage." Id. at 9. It noted that "[s]ome HDPE sleeves exhibit abrasion damage." Id. In its conclusions and recommendations about all the marine terminals, it stated "HDPE sleeves over the steel fender piles are split or torn in many locations." According to Defendant Port of Portland's engineering project manager that requested the assessment, a serious to poor condition rating is concerning at any berth. Neidzwski Decl. Ex. 46 33:25-34:5.
In March 2019, Defendant Port of Portland conducted its own fender pile inspection. Neidzwski Decl. Ex. 19, ECF 120-19 ("March 2019 Fender Pile Inspection Summary"). Eleven of the steel pilings received a condition rating of moderate damage. Id. at 2–7; Neidzwski Decl. Ex. 62 77:21-25. The remaining 32 steel pilings received a condition rating of minor damage. Id.
Plaintiff filed this action on February 25, 2020. Compl., ECF 1. In his Second Amended Complaint he brings claims for negligence and gross negligence against Defendant Port of Portland and Defendant Kinder Morgan. Second Am. Compl., ECF 60. In its Answer to Plaintiff's Second Amended Complaint, Defendant Port of Portland brought crossclaims against Defendant Kinder Morgan for breach of contract. Def. Port Answer, ECF 61.
Defendant Port of Portland moves for summary judgment on Plaintiff's negligence claims and moves to exclude Plaintiff's liability experts. Def. Port of Portland ("Port") Mot., ECF 89. Defendant Kinder Morgan moves for summary judgment on Plaintiff's negligence claims and in the alternative adopts sections of Defendant Port of Portland's Motion for Summary Judgment. Def. Kinder Morgan ("KM") Mot, ECF 84, Def. KM. Alt. Mot., ECF 90. Defendant Kinder Morgan also moved for summary judgment on Port of Portland's crossclaims. Def. KM Mot. Port Crossclaims, ECF 85. Finally, Defendant Kinder Morgan moves to strike one of Plaintiff's rebuttal reports. KM Mot. to Strike, ECF 82.
The parties make several evidentiary objections. The Court does not consider much of the evidence the parties object to in determining whether Plaintiff has raised a question of material fact about Defendants’ conduct. The Court thus declines to rule on whether this evidence is admissible for proving Plaintiff's claims or should be stricken as prejudicial and unhelpful at this stage in the litigation. The Court addresses the parties’ objections in the body of the Opinion and Order when necessary.
Defendant Kinder Morgan moves to strike Plaintiff's rebuttal report prepared by expert Captain Sean P. Tortora, MS, USMS ("Tortora Report"). Defendant Kinder Morgan argues the report lacks proper rebuttal opinion and therefore should have been produced by the initial expert disclosure deadline. Plaintiff contends that...
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