Cooper/T. Smith, In re, GNOTS-RESERV
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Citation | 929 F.2d 1073 |
| Docket Number | GNOTS-RESERV,No. 90-3619,INC,90-3619 |
| Parties | In re COOPER/T. SMITH, et al. Elizabeth Ross ABSHIRE, etc., Plaintiff-Appellant, v., et al., Defendants-Appellees. Sandra Marie CORMIER, etc., Plaintiff, v. AMERICAN COMMERCIAL LINES, et al., Defendants. |
| Decision Date | 30 April 1991 |
Page 1073
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.
United States Court of Appeals,
Fifth Circuit.
Page 1074
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.
PER CURIAM:
Page 1075
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.
I.
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.
II.
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 other sounds. Another co-worker, Robert Smith, stated he last saw Abshire walking across the head of Barge ACBL-2892. No one saw or spoke to Abshire after that time.
At approximately the same time, the GNOTS I brought the barge ACBL-1323 alongside to be spotted in the third-off position next to the ACBL-1403. Once the ACBL-1323 was spotted, Captain Sherman moved the bow of the GNOTS I near the stern of the ACBL-2892 in preparation for removing the barge from its first-off position. Captain Sherman stated that as the GNOTS I moved into position, it neither bumped, hit nor jarred the ACBL-2892 while the barge was moored in the first-off position to the D/B KEVIN. In fact, the push knees of the GNOTS I never came in contact with the ACBL-2892 because of
Page 1076
accumulated driftwood around the stern of the barge. Captain Sherman stated that no problems were created by facing up the GNOTS I to the barge with the debris between its nose and the stern of the barge. Once the pushboat was faced up to the barge and all Cooper personnel had disembarked, Captain Sherman began to back the barge out of position. At all times pertinent, Captain Sherman had full view of the deck of the ACBL-2892 and never saw anyone slip and fall, including Abshire, whom he stated he knew on sight.According to the Cooper workers who last saw Abshire, he was last seen walking across the ACBL-2892 prior to the time that the GNOTS I began to move the barge out of position. It was not until that barge began to move that Gonsoulin and Smith realized that Abshire was missing. Gonsoulin jumped aboard the ACBL-2892 to search for Abshire. He also searched barges ACBL-1403 and 1323. Gonsoulin then walked back across ACBL-2892, which had stopped moving once Captain Sherman realized men were aboard the barge. Once Gonsoulin had disembarked the ACBL-2892, Captain Sherman resumed backing the vessel out of position, apparently unaware that Abshire was missing.
After Abshire's absence was noticed, an immediate search of the area was undertaken by Cooper personnel and others, including the United...
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