In re Dredge Big Bear

• Decision Date: 15 March 2021
• Docket Number: C.A. NO.: 18-CV-457-JWD-SDJ
• Citation: 525 F.Supp.3d 731
• Parties: In the MATTER OF the Complaint of the DREDGE BIG BEAR, its engines Tackle, appurtenances, etc., and its owner(s ) and operator(s), in a Cause for Limitation or Exoneration from Liability
• Court: U.S. District Court — Middle District of Louisiana

525 F.Supp.3d 731

In the MATTER OF the Complaint of the DREDGE BIG BEAR, its engines Tackle, appurtenances, etc., and its owner(s ) and operator(s), in a Cause for Limitation or Exoneration from Liability

C.A. NO.: 18-CV-457-JWD-SDJ

United States District Court, M.D. Louisiana.

Signed March 15, 2021

Joseph Alfred Devall, Jr., Michael T. Amy, Paul Durand Hale, Audrey Ellen Gitz, Jefferson R. Tillery, Deutsch, Kerrigan & Stiles, LLP, Sara Barry Kuebel, Jones Walker LLP, New Orleans, LA, Henri Michel Saunders, Saunders & Chabert, Baton Rouge, LA, for Dredge Big Bear.

RULING ON LA CARRIERS, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIMITATION OF LIABILITY

JOHN W. deGRAVELLES, JUDGE

This matter comes before the Court on a Motion for Partial Summary Judgment on Limitation of Liability ("Motion") filed by defendant LA Carriers, LLC ("Defendant" or "LAC"). (Doc. 36.) It is opposed by claimant Eugene Jackson ("Claimant" or "Jackson"). (Doc. 41.) LAC filed a reply memorandum. (Doc. 44.) The Court has carefully considered the law, facts in the record, and arguments and submissions of the parties and is prepared to rule. For the following reason, the Motion is denied.

I. Factual and Procedural Background

At all times pertinent hereto, the M/V TREY PAUL ("Trey Paul"), a 65 foot, 150 gross ton push boat,¹ was owned and operated by LAC.² LAC was also the employer of Kevin McCreary ("McCreary"), a boat captain since 1983 with 15 years of experience with LAC.³ On the date of the accident, January 22, 2017, McCreary was at the helm of the Trey Paul traveling southbound on the Mississippi River north of Baton Rouge.⁴ It was pushing a tow of six loaded barges.⁵ The Trey Paul rounded the bend at Wilkerson Point approaching the US 190 Bridge.⁶ As it did so, it "made a passing arrangement with a northbound vessel in which the vessels would pass port to port and the M/V TREY PAUL would pass [under] the US 190 Bridge through the center span."⁷

As he approached the center span of the bridge, McCreary "felt the head of the tow being sucked toward the bank and a dredging vessel,"⁸ the dredge BIG BEAR ("Big Bear"). He then tried to counter steer, using all three of the vessel's propellers,⁹ but "the strength of the eddy became too much for the [Trey Paul] to overcome, and none of the evasive maneuvers he attempted succeeded."¹⁰ In order to avoid impact with the Big Bear, McCreary attempted to "twin screw" and "top around"¹¹ but he was unsuccessful and the Trey Paul allided with Big Bear.

Plaintiff claims that "[w]hen the lead tow ... struck the [Big Bear], Eugene Jackson was in the pilot's chair of the dredge, facing the opposite direction of the approaching hazard, performing his duties as the captain of the dredging vessel.¹² *** The force of the impact of the collision caused Eugene Jackson to fall to the cockpit floor ... thereby sustaining the injuries claimed in the litigation."¹³

The parties disagree about the force of the allision. LAC claims that "[h]aving greatly reduced his speed, ... the M/V TREY PAUL made a minimal impact with the dredge BIG BEAR."¹⁴ Jackson denies the impact was minimal, responding that the Trey Paul weighed "approximately 150 gross tons and its tow was estimated to be anywhere between 4,600 and 9,000 gross tons."¹⁵

The present Limitation of Liability action was brought on April 18, 2018 by the owners, operators and owners pro hac vice of the Dredge Big Bear, Moore House Investments, LLC, Wyandotte Dredging, Inc., and Bear Industries, Inc. ("Petitioners").¹⁶ Jackson and LAC filed Answers and Claims in the Limitation proceeding.¹⁷ Jackson filed a third party complaint against LAC.¹⁸ LAC also filed a counterclaim against Petitioners.¹⁹ In its Answer to Jackson's third party demand against it, LAC asserted limitation of liability as a defense.²⁰

II. Arguments of the Parties

LAC argues, in short, that any negligence on its part arose from "an isolated navigational error"²¹ of its captain and "not any managerial decision or other act within the privity or knowledge of [LAC]."²² In support of its contention, LAC argues that McCreary was a skilled and experienced mariner who had been a captain since 1983 and employed by LAC for 15 years.²³ He had not been "involved in any prior incidents, had no actions taken against his license, and had proven his proficiency on this vessel and on the Mississippi River."²⁴

The Trey Paul was "fit for duty in all respects,"²⁵ was not underpowered and all of its engines, generators and navigational equipment were working properly.²⁶ "Pushing six barges was well within the [Trey Paul's] capabilities."²⁷ According to LAC, the experts for both parties "discuss only a navigational decision by Capt. McCreary as a potential cause of the accident."²⁸ LAC cites to several cases which purportedly support its position that mere navigational errors or other negligence of the master or crew do not fall within the privity or knowledge of the vessel owner.²⁹ In sum, "[t]here is no evidence supporting any managerial or equipment failure. Instead, any fault on the part of Capt. McCreary can be defined as navigational error outside the privity or knowledge of [LAC]."³⁰

Jackson responds that LAC failed to timely request limitation.³¹ Further, he asserts that LAC's Rule 30(b)(6) representative, safety compliance and security officer Nessie Pierce, as well as McCreary himself, were aware that eddy currents were present "on most every point downriver" on the Mississippi River,³² and there had been a previous mishap involving a LAC vessel which had lost control in an eddy.³³

Jackson argues that LAC had "privity or knowledge" so as to defeat its entitlement to limitation because, despite Pierce's admitted knowledge of river eddies and their propensity to "suck vessels in,"³⁴ it never provided training to McCreary on "how to successfully navigate an eddy or maneuver a boat caught in an eddy"³⁵ nor did its safety manual address this issue.³⁶

It failed to implement a policy or procedure to address this known hazard³⁷ and did not send a notice of the safety hazard at Wilkerson Point to McCreary although it regularly sends out such notices to its captains.³⁸

According to Jackson, McCreary admitted that the Trey Paul "was underpowered at the time it tried to navigate Wilkerson Point on the day of the accident."³⁹ Jackson points the Court to LAC's safety manual which states that the proper horsepower-to-tow ratio is a decision reserved for "LA Carriers, LLC Management/Port Captain."⁴⁰ He argues that given the weight of the tow, LAC or, alternatively, McCreary, to whom LAC had vested managerial authority to make the decision regarding the safe horsepower-to-tow ratio, knew or should have known the vessel was underpowered for the foreseeable eddy which the Trey Paul encountered.⁴¹

Jackson maintains that McCreary's knowledge at or prior to the commencement of the voyage is "deemed conclusively [to be] the privity or knowledge of the owner of [the] vessel."⁴² Finally, Jackson urges that the cases relied upon by LAC are distinguishable and therefore do not support LAC's position.⁴³

In its reply memorandum, LAC maintains its defense of limitation was asserted timely.⁴⁴ It argues that Jackson's invocation of the Limitation Act's imputation clause is legally incorrect since that clause is limited to seagoing vessels (which the Trey Paul is not) and excepts "tugs, towboats, [and] towing vessels" (which the Trey Paul is).⁴⁵

LAC insists that Jackson is wrong as a factual matter when he alleges that LAC did not implement policies, procedures or guidance regarding how a captain should deal with eddies and quotes provisions of its Safety Manual which it claims address this issue.⁴⁶ It disputes the relevance of the other incident involving loss of control in an eddy since this incident came after the event sued on and was factually different.⁴⁷

Jackson's allegation that the Trey Paul was underpowered, argues LAC, is conclusory and not supported by fact or law.⁴⁸ Finally, LAC returns to its main argument, that mere navigational error, which this was, supports LAC's entitlement to limitation of liability.⁴⁹

III. Standard – Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ "⁵⁰ The non-mover's burden is not satisfied by "conclusory allegations, by unsubstantiated assertions, or by only a ‘scintilla’ of evidence."⁵¹ "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ "⁵² Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.⁵³

Because this case will be tried to the bench, the usual summary judgment standard is altered somewhat.

Further, the Court notes that this case will be tried to the bench. The Fifth Circuit "has determined that a district court has somewhat greater discretion to consider what weight it will accord the evidence in a bench trial than in a jury trial."⁵⁴ "[W]here ‘the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions.’ "⁵⁵ To that end, the Fifth Circuit has upheld "the grant of a summary judgment motion requiring the district court

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