In re Crosby Marine Transp., L.L.C.
| Decision Date | 06 May 2021 |
| Docket Number | c/w 18-4136,CIVIL ACTION NO. 17-14023 |
| Citation | 537 F.Supp.3d 886 |
| 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, New Orleans, LA, for Crosby Marine Transportation, LLC, Crosby Tugs, LLC.
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.
Before the Court is a motion by claimants Angela Huggins, Kathy Randle, and Anna Clark (collectively, "Claimants") for partial summary judgment seeking dismissal of defendants’ government contractor immunity defense.1 Defendants 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"), jointly with Crosby Marine Transportation, LLC, Crosby Tugs, LLC, Bertucci Contracting Company, LLC, Crosby Dredging, LLC, Chris Carter, and Derek Hebert (collectively, "Crosby," and together with Underwriters, the "Crosby interests") respond in opposition.2 Claimants reply in further support of their motion.3 Also before the Court is the Crosby interests’ cross-motion for summary judgment seeking a dismissal of all claims against them as barred by the government contractor immunity defense.4 Claimants oppose the cross-motion,5 as do third-party defendants Tracker Marine, LLC, Tracker Marine Group, White River Marine Group, Tracker Marine Retail, LLC, and Kenner Manufacturing Co., Inc. (collectively, "Tracker").6 The Crosby interests reply in further support of their cross-motion.7 Having considered the parties’ memoranda, the record, and the applicable law, the Court issues this Order & Reasons holding that the Crosby interests have not identified reasonably precise specifications approved by the government as would support a government contractor immunity defense.
This matter concerns a maritime collision. The accident occurred on November 19, 2017, when a recreational boat hit Crosby's vessel and tow,8 which was pushed up against the bank and blocking a portion of Bayou Segnette.9 At the time of the accident, Crosby's vessel was working on a United States Army Corps of Engineers ("USACE") project.10
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.11 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.12 Crosby Dredging employed two of its own dredges – Dredge 7, located in Yankee Pond, and Dredge 8, in Lake Cataouatche.13 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 8.14
On the evening of November 18, 2017, Carter received clearance to push Bertucci Barge 708 from Dredge 7 to Dredge 8.15 Earlier that evening, Carter learned of an approaching cold front that would change the winds from a southerly direction to a strong northerly direction.16 Despite advance warning of the imminent front, he decided to proceed toward Lake Cataouatche through Bayou Segnette.17 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.18 At midnight, the Delta Duck ’s watch changed, and mate Derek Hebert assumed the helm of the tug.19 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.20 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.21 However, the Delta Duck used its work lights to light up the tug and the deck barge.22
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.23 Angela Huggins, Anna Clark, and Samantha Randle were passengers in the boat.24 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.25 Huggins and Clark suffered severe injuries, and Randle was killed.26
Crosby Tugs and Bertucci Contracting filed this limitation-of-liability proceeding in December 2017.27 Huggins answered and filed claims against both limitation petitioners and against Crosby Dredging and Underwriters.28 In April 2019, the Court issued a scheduling order establishing June 2, 2019, as the deadline for amending pleadings.29
Well after this deadline, in July 2020, the Crosby interests sought leave to amend their answers to add the government contractor immunity ("GCI") defense, claiming they first realized the potential for this affirmative defense on September 5, 2019, after the corporate deposition of Crosby Tugs, whereupon they immediately began the process of adding the defense.30 The magistrate judge denied the motion for leave, finding that the Crosby interests failed to demonstrate good cause to warrant the tardy amendment of their answers.31 Additionally, the magistrate judge deemed the proposed amendment to be futile.32 However, this Court sustained the Crosby interests’ objection to the magistrate judge's order, concluding that they had demonstrated (1) good cause to amend their answers to add the defense despite expiration of the scheduling order's deadline and (2) that the amendment would not be considered futile at the amendment stage of the litigation.33 In doing so, the Court observed: "Claimants may still seek dismissal of the affirmative defense, whether by way of a motion for summary judgment or other motion, as they deem appropriate at a later time."34 That time has now come.
In their motion for partial summary judgment seeking dismissal of the Crosby interests’ GCI defense, Claimants first argue that a collision between two vessels on navigable waters is not the kind of action that gives rise to such a defense because the government would not be immune from liability for damages arising out of maritime collisions.35 Claimants then urge that the Crosby interests cannot establish the GCI defense under the framework set out in Boyle v. United Technologies Corp. , 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), because (1) Crosby did not conform to the government's "reasonably precise specifications" in that it failed to implement provisions of the BIS Accident Prevention Plan and provisions of USACE Safety Manual 385-1-1, and in that Crosby Tugs violated provisions of the Inland Navigation Rules, and (2) the Crosby entities failed to warn the government of dangers associated with their violation of navigation rules and nonconformance with reasonably precise specifications.36
In opposition to Claimants’ motion and in support of their cross-motion for summary judgment, the Crosby interests argue that the Boyle factors are satisfied to warrant their GCI defense.37 First, they argue that the USACE approved reasonably precise specifications, having actually created the project's plans rather than just "rubber stamping them."38 Second, they argue that Crosby Tugs’ work at all times conformed to the USACE's plans and specifications, as governed by the USACE's safety manual, because Crosby Tugs complied with the applicable navigation rules and because the USACE did not issue a notice of non-compliance when provided with a detailed explanation of the events surrounding the incident.39 Third, the Crosby interests argue that the USACE was aware of the dangers associated with the Yankee Pond Project because the USACE itself warned Crosby numerous times about the potential hazards posed by recreational boat traffic on Bayou Segnette.40
In opposing the Crosby interests’ motion for summary judgment and in further support of their own motion, Claimants clarify that they intended to argue only that a government contractor can enjoy no greater immunity than does the government itself.41 Next, Claimants contend that the Crosby interests do not adequately refute the Claimants’ evidence showing that Crosby violated federal regulations and failed to implement reasonably precise specifications.42 Claimants point to expert testimony reviewing multiple navigation rules said to have been violated by Crosby and its failure to adhere to the accident prevention plan and safety manual.43 In addition to these arguments, Tracker urges that "the government did not provide reasonably precise specifications pertaining to the negligent acts of Crosby."44 In particular, Tracker asserts that "[t]he USACE project plans do not provide any specific instruction with respect to operation of Crosby vessels, much less specific instruction to perform the acts claimants allege were negligent."45
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