In re Crosby Marine Transp., L.L.C.
| Decision Date | 19 May 2021 |
| Docket Number | CIVIL ACTION NO. 17-14023,c/w 18-4136 |
| Citation | 540 F.Supp.3d 588 |
| Parties | In the MATTER OF CROSBY MARINE TRANSPORTATION, L.L.C., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Kevin J. Christensen, Kevin Christensen & Associates, LLC, New Orleans, LA, for Claude Toups.
Miles Paul Clements, Joseph E. Lee, III, Phelps Dunbar, LLP, Brandon Kyle Thibodeaux, Frilot L.L.C., New Orleans, LA, for Crosby Marine Transportation, LLC.
Miles Paul Clements, Joseph E. Lee, III, Phelps Dunbar, LLP, New Orleans, LA, for Crosby Tugs, LLC, Crosby Tugs, L.L.C., Crosby Dredging, LLC, Chris Carter.
Miles Paul Clements, Thomas Kent Ledyard Morrison, Colin B. Cambre, Joseph E. Lee, III, Phelps Dunbar, LLP, Brandon Kyle Thibodeaux, Frilot L.L.C., New Orleans, LA, Rachael Ferrante Gaudet, Jefferson Parish Attorney's Office, Jefferson, LA, for Bertucci Contracting Co., L.L.C.
Jedd Spencer Malish, William Spencer King, King, Krebs & Jurgens, PLLC, New Orleans, LA, for GEICO Marine Insurance Company, Chad Williams.
Miles Paul Clements, Joseph E. Lee, III, Phelps Dunbar, LLP, New Orleans, LA, James A. Crouch, Jr., Staines & Eppling, Metairie, LA, for Derek Hebert.
Miles Paul Clements, Joseph E. Lee, III, Phelps Dunbar, LLP, New Orleans, LA, for Crosby Marine Transportation, LLC, Crosby Tugs, L.L.C., Chris Carter, Derek Hebert.
Miles Paul Clements, Thomas Kent Ledyard Morrison, Colin B. Cambre, Joseph E. Lee, III, Phelps Dunbar, LLP, Brandon Kyle Thibodeaux, Frilot L.L.C., New Orleans, LA, Rachael Ferrante Gaudet, Jefferson Parish Attorney's Office, Jefferson, LA, for Bertucci Contracting Co., L.L.C.
Jedd Spencer Malish, King, Krebs & Jurgens, PLLC, New Orleans, LA, for Chad Williams, GEICO Marine Insurance Company.
Before the Court is a motion for summary judgment filed by third-party defendants Tracker Marine, LLC, Tracker Marine Group, White River Marine Group, Tracker Marine Retail, LLC, and Kenner Manufacturing Co., Inc. (collectively, "Tracker Marine").1 Third-party plaintiffs Crosby Marine Transportation, LLC, Crosby Tugs, LLC, the M/V Delta Duck , Bertucci Contracting Company, LLC, the Barge BBL 708, Crosby Dredging, LLC, the Dredge 7 and Dredge 8, Chris Carter, and Derek Hebert (collectively, "Crosby"), jointly with Atlantic Specialty Insurance Company, Markel American Insurance Company, State National Insurance Company, Navigators Insurance Company, United States Fire Insurance Company, Mitsui Sumitomo Insurance Company of America, Swiss Re International SE, and the following Certain Underwriters at Lloyds Syndicates: 1206 ATL, 1897 SKD, 1183 TAL, 2007 NVA, 0382 HDU, 1274 AUL, 0510 KLN, 1861 ATL, 1967 WRB, 0780 ADV, 1225 AES, 0033 HIS (collectively, "Underwriters," and together with Crosby, the "Crosby interests") respond in opposition,2 and Tracker Marine replies in further support of its motion.3 Having considered the parties’ memoranda, the record, and the applicable law, the Court issues this Order & Reasons granting Tracker Marine's motion.4
This matter concerns a maritime collision. The accident occurred on November 19, 2017, when a recreational boat hit Crosby's vessel and tow,5 which was pushed up against the bank and blocking a portion of Bayou Segnette.6 At the time of the accident, Crosby's vessel was working on a United States Army Corps of Engineers ("USACE") project.7
In March 2017, the USACE awarded a contract to BIS Services, LLC, for a hurricane restoration project in Jefferson Parish known as the Yankee Pond Project, which involved moving sediment and other materials from Lake Cataouatche through the Bayou Segnette waterway and depositing the materials in Yankee Pond to build up the marsh.8 BIS Services subcontracted with Crosby Dredging for dredging services on the project, and Crosby Dredging, in turn, subcontracted with Crosby Tugs for tug operations on the project.9 Crosby Dredging employed two of its own dredges – Dredge 7, located in Yankee Pond, and Dredge 8, in Lake Cataouatche.10 In September 2017, Crosby captain Chris Carter began working on the Yankee Pond Project and was assigned to the Delta Duck , an inland pushboat used to push barges through Bayou Segnette between Dredge 7 and Dredge 8.11
On the evening of November 18, 2017, Carter received clearance to push Bertucci Barge 708 from Dredge 7 to Dredge 8.12 Earlier that evening, Carter learned of an approaching cold front that would change the winds from a southerly direction to a strong northerly direction.13 Despite advance warning of the imminent front, he decided to proceed toward Lake Cataouatche through Bayou Segnette.14 While en route, Carter decided to push the tow against the west bank of Bayou Segnette due to increased wind speeds and changing weather conditions.15 At midnight, the Delta Duck ’s watch changed, and mate Derek Hebert assumed the helm of the tug.16 When Hebert came on watch, the head of Barge 708 was nosed up against the bank and the stern of the tug was 90 feet from the bank, thereby blocking about 35% of Bayou Segnette.17 For the entire time Barge 708 was thus situated, neither the Delta Duck nor the barge displayed red and green navigational lights, and the barge displayed no white all-around light.18 However, the Delta Duck used its work lights to light up the tug and the deck barge.19
On the morning of November 19, 2017, at approximately 4:00 a.m., a 22-foot Fishmaster recreational vessel, piloted by Chad Williams, headed south along Bayou Segnette.20 The Crosby interests maintain that Williams, who had spent the night and early morning hours drinking alcohol, was impaired at the time of the accident.21 Angela Huggins, Anna Clark, and Samantha Randle were passengers in the boat.22 As the boat approached the intersection of Bayou Segnette and Tar Paper Canal, it struck Bertucci Barge 708, which was still pushed up against the west bank of Bayou Segnette.23 Huggins and Clark suffered severe injuries, and Randle was killed.24
The Crosby interests maintain that the placement of the Fishmaster's all-around navigation light contributed to the accident.25 The vessel was manufactured and sold by Tracker Marine in 2004.26 When the Fishmaster left Tracker Marine's factory, it had an all-around navigation light on a 54-inch light pole affixed to the center console, which configuration complied with applicable standards promulgated by the National Marine Manufacturer's Association, the American Boat & Yacht Council, and the United States Coast Guard.27 In 2015, Claude Toups purchased the Fishmaster from a friend and allowed his son-in-law, Williams, unfettered access to the boat.28 At some point, Williams replaced the original all-around navigation light assembly with a light pole measuring 44½ inches.29 On the night of the accident, Williams noticed that the replacement all-around navigation light was flickering, so he zip-tied an Attwood clamp-on portable LED light kit to the 44½-inch light pole.30 Williams testified at his deposition that neither the fixed replacement all-around navigation light nor the temporary zip-tied light was shining in his eyes or impairing his vision at the time of the accident.31
Crosby Tugs and Bertucci Contracting filed this limitation-of-liability proceeding in December 2017.32 Eventually, the Crosby interests filed a third-party complaint and Rule 14(c) tender against Tracker Marine asserting claims under the Louisiana Products Liability Act ("LPLA"), La. R.S. 9:2800.51, et seq. , and for redhibition.33 With respect to the LPLA claim, the Crosby interests allege that the Fishmaster was unreasonably dangerous in design due to the placement of the all-around navigation light on the center console instead of the stern, and that Tracker Marine failed to provide an adequate warning that the all-around navigation light should not be replaced with a shorter pole or a non-anti-glare bulb.34 With respect to the redhibition claim, the Crosby interests allege that the placement of the all-around navigation light pole made the boat so inconvenient that a reasonable person would not have bought it and, thus, Toups is entitled to recover for damage to the vessel or other economic losses he has sustained.35
Tracker Marine argues that it is entitled to summary judgment dismissing the Crosby interests’ LPLA claim because there is no evidence that the accident occurred as a result of the reasonably anticipated use of the 54-inch all-around navigation light pole.36 Indeed, that light pole was no longer on the vessel at the time of the accident because Williams had replaced it with a 44½-inch pole.37 Moreover, when the accident occurred, Williams was relying on a portable light zip-tied to the replacement pole.38 Tracker Marine argues that the dangers posed by using a shorter replacement pole and a zip-tied temporary light were open and obvious to Williams, an experienced boater.39 As to the redhibition claim, Tracker Marine argues that there is no evidence that the 54-inch light pole in place when the Fishmaster left its custody rendered the boat unusable or inconvenient.40
In opposition, the Crosby interests argue that Tracker Marine knew that the Fishmaster's component parts, including the all-around navigation light pole, would need to be replaced at some point during the vessel's useful life and it should have anticipated that a boat owner might not fully understand or appreciate the potential danger of replacing the original pole with a shorter one that did not have an anti-glare light.41 The Crosby interests maintain that the placement of the all-around navigation light rendered the Fishmaster unreasonably dangerous in design, and that Tracker Marine failed to provide an adequate warning regarding replacement of the all-around navigation light pole.42
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,...
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