In re Complaint of Ensco Offshore Co.
| Decision Date | 26 March 2014 |
| Docket Number | Civ. A. No. H–09–2838. |
| Citation | 9 F.Supp.3d 713 |
| Parties | In the Matter of the COMPLAINT OF ENSCO OFFSHORE COMPANY, as Owner of the Modu ENSCO 74 for Exoneration from or Limitation of Liability. |
| Court | U.S. District Court — Southern District of Texas |
In the Matter of the COMPLAINT OF ENSCO OFFSHORE COMPANY, as Owner of the Modu ENSCO 74 for Exoneration from or Limitation of Liability.
Civ. A. No. H–09–2838.
United States District Court,
S.D. Texas,
Houston Division.
Signed March 26, 2014.
[9 F.Supp.3d 717]
Delos E. Flint, Jr., Jon Wesley Wise, Edward F. Lebreton, III, Lawrence Raymond Demarcay, III, Fowler Rodriguez et al., New Orleans, LA, Kim E. Conkey, League City, TX, for Ensco Offshore Company as Owner of the Modu Ensco 74 for Exoneration from or Limitation of Liability.
MELINDA HARMON, District Judge.
Pending before the Court in the above referenced cause of exoneration from or limitation of liability pursuant to 46 U.S.C. § 30501 et seq.,1 civil and maritime, is Plaintiff ENSCO Offshore Company's (“ENSCO's”) motion for summary judgment against Sea Robin Pipeline Company, LLC (“Sea Robin”) (# 98) on the grounds that Sea Robin cannot prove the ENSCO 74 allided with Sea Robin's pipeline.
ENSCO was the sole owner of the ENSCO 74, a self-elevating drilling unit and a registered vessel of Panama, Official No. 8764420, approximately 74.0918 meters long and 62.788 meters wide, and a depth of 7.924 meters. It weighed approximately 16.1 million pounds. On September 8, 2008 the ENSCO 74 was located off the Coast of Louisiana in South Marsh 149 when Hurricane Ike approached. ENSCO claims that it followed its hurricane procedures,
[9 F.Supp.3d 718]
made fast the rig, and evacuated all personnel. On September 12, 2009, at approximately 9:00 a.m. according to experts, the ENSCO 74 was swept off its location, with the barge ending up floating upright in the Gulf of Mexico, while the rig broke free of its legs just below the barge, leaving only parts of two of its three legs on the drill site, and was destroyed by Hurricane Ike. The rig was moved approximately 100 miles northwesterly by the storm and finally sank sixty-five miles south of Galveston, Texas in High Island 241A.
According to ENSCO, on March 6, 2009 2 the M/V SATILLA allided with and was damaged by the remains of the ENSCO 74. At that time the ENSCO 74 had been missing and considered lost for six months, despite efforts of ENSCO, C & C Technologies, the National Oceanic and Atmospheric Administration (“NOAA”), the U.S. Coast Guard, and third parties to locate it. ENSCO filed this limitation of liability action, and among the claimants who appeared and filed claims is Sea Robin (# 10, 11, and 39–3).
Sea Robin asserts that when the ENSCO 74 broke away from the sea floor, it drifted west, crossing and damaging Sea Robin's pipeline at East Cameron Blocks 300, 315, 317, and 334. ENSCO 74's location was revealed when the M/V Satilla allided with its submerged remains. Sea Robin claims that ENSCO was negligent in failing to secure the ENSCO 74, in failing to follow recommended procedures of the Mineral Management Service in advance of approaching storms, in failing to perform an appropriate search for the ENSCO 74, in putting a damaged drilling rig weakened by previous hurricanes or otherwise unseaworthy back out to sea, and in failing to implement safeguards to prevent such damage if the ENSCO 74 broke loose of its moorings. Sea Robin states that under general maritime law, the negligence of a defendant is presumed when a drifting vessel strikes a fixed object, based on the logical deduction that a drifting vessel was mishandled or improperly moored.3 Moreover Sea Robin explains
[9 F.Supp.3d 719]
that it had entered into agreements with oil and gas producers in the Gulf of Mexico to transport their product through its pipeline, but because of the damage the pipeline was shut in and could no longer transport production. One of these companies, Energy Resource Technology GOM, Inc. (“ERT”), filed suit against Sea Robin seeking damages for lost revenues and escalating shipping costs that ERT has sustained because it is unable to transport production through Sea Robin's pipeline. Medco Energi U.S. LLC (“Medco”), which owns and operates platforms located in Blocks 317 and 318B of the East Cameron area of the Gulf and whose production from these platforms was transported to market through Sea Robin's pipeline pursuant to a contract between Medco and Sea Robin, has also filed suit against Sea Robin. Sea Robin seeks to recover specifically for damage to its pipeline, lost revenue due to interruption in service of the pipeline, and costs of surveying the damage to the pipeline, as well as reimbursement, indemnification or contribution resulting from any liability it is found to have to ERT or Medco, whether through tort, contract or otherwise. Sea Robin further claims that ENSCO is not entitled to limitation or exoneration because all of its negligent actions were within its privity and knowledge.
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show 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.” Fed. R, Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Id. The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712–13.
[9 F.Supp.3d 720]
The application of the rule depends upon which party bears the burden of proof at trial. If the movant bears the ultimate burden at trial, the movant must provide evidence to support each element of its claim and demonstrate the lack of a genuine issue of material fact regarding that claim. Malacara v. Garber, 353 F.3d 393, 403 (5th Cir.2003); Rushing v. Kansas City S. Ry., 185 F.3d 496, 505 (5th Cir.1999), cert. denied,528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000). The nonmovant must then respond with evidence that raises a genuine issue of material fact to avoid summary judgment against it; a “complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
If the nonmovant bears the burden of proof at trial on an issue, the movant may either offer evidence that undermines one or more of the essential elements of the nonmovant's claim or point out the absence of evidence supporting essential elements of the nonmovant's claim; the movant may, but is not required to, negate elements of the nonmovant's case to prevail on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998); International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264 (5th Cir.1991); Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.1991). “[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmovant cannot rely on unsubstantiated allegations, but must set forth specific facts showing the existence of a genuine issue of material fact on every element of its cause of action. Nat'l Ass'n of Government Employees v. City Public Service Bd. of San Antonio, 40 F.3d 698, 712 (5th Cir.1994). If a rational trier of fact could not find for the nonmoving party based on the evidence it presents, there is no genuine issue of material fact for trial. Id. at 712–13, citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
“ ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....’ ” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Nor is the ‘mere scintilla of evidence’ sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Id., quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit “ ‘significant probative evidence.’ ” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co–Op., 799 F.2d 194, 197 (5th Cir.1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713. Conclusory statements are not competent evidence to defeat summary judgment. Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 346–47 (5th Cir.2007) (plaintiff “must offer specific evidence refuting the factual allegations underlying [defendant's] reasons for her termination”), citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”
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Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir.1999), citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505.
The elements of an action for negligence under general maritime law are “essentially the same as land-based negligence under the common law”: “a duty owed by the defendant to the plaintiff,...
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