Kirby Inland Marine, L.P. v. LBC Houston, L.P.
| Decision Date | 31 March 2014 |
| Docket Number | C/W NO.: 11-00737-BAJ-RLB,CIVIL ACTION NO.: 11-00264-BAJ-RLB |
| Parties | KIRBY INLAND MARINE, L.P. v. LBC HOUSTON, L.P., ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
Before the Court is Third Party Defendant Intertek, USA Inc.'s ("Intertek") Motion for Summary Judgment (Doc. 72), seeking an order from this Court dismissing the Third Party Plaintiffs LBC Houston, L.P., LBC Baton Rouge, L.L.C., and LBC Operations (U.S.), L.L.C.'s (collectively "LBC Entities") claims, pursuant to Federal Rule of Civil Procedure ("Rule") 56. LBC Entities oppose the motion. (Doc. 75.) Intertek filed a reply memorandum. (Doc. 83.) The Court has jurisdiction pursuant to 28 U.S.C. § 1333.
This case involves the various claims related to an explosion on the barge KIRBY 11323, owned by Plaintiff Kirby Inland Marine, L.P. ("Kirby Inland") at LBC Baton Rouge's dock on April 24, 2010 near Geismar, Louisiana. (Docs. 1, 15.) LBC Entities filed a Third Party Complaint against Intertek pursuant to Rule 14(c) on July 25, 2012. (Doc. 51.) LBC Entities allege that Intertek is liable for damages to theBarge KIRBY 11323, due to the fault, negligence, and lack of due care on the part of both Intertek and its inspector, Michael Hoover ("Hoover"). (Doc. 51, ¶ 16.) LBC Entities seek full indemnity from Intertek for the claims made against them by Plaintiff Kirby Inland, Third Party Plaintiff John Robert Williams, III ("Williams"), Third Party Plaintiff Lucien Templet, Intervenor American Interstate Insurance Company, Third Party Plaintiff Signal Mutual Indemnity Association, and Third Party Defendant Team Services, LLC ("Team Services"). (Doc. 51, ¶¶ 4-9, 16.) LBC Entities further seek costs, expenses, and attorney's fees. (Doc. 51, ¶¶ 16-17.)
According to the relevant undisputed facts1:
1. As a tankerman, John Robert Williams, III was the vessel person-in-charge for the KIRBY 11323. 46 C.F.R. § 15.860.
2. On April 24, 2010, the dock person-in-charge was Morris Wright, Jr., a LBC employee.
3. Wright was the only dock person-in-charge on that date, and was supervising two transfers at the time of the explosion.
4. In its business of performing cargo inspections, Intertek's role is to "observe, record, and report" on the quantity and quality of the cargo being loaded for its customers.
5. For the cargo inspection of the KIRBY 11323, Intertek was notified by its customer, Kolmar, that 10,000 barrels of benzene were to be loaded into the barge.
6. Kolmar instructed Intertek to inspect the barge to determine the suitability of the tanks for the loading of the benzene cargo, measure the amount of cargo loaded, and take samples of the benzene during the course of loading for testing.
7. In inspecting the cargo tanks of the KIRBY 11323, Intertek was instructed only to determine whether the tanks were suitably clean to load the liquid cargo.
8. When examining the barge's cargo tanks, an inspector can see only the areas of the tank visible from the sight glass for each tank and verify that the tank is suitably dry and clean.
9. A line displacement was to be performed at the beginning of the loading of the KIRBY 11323.
10. A line displacement is performed at the beginning of a load of cargo to determine the condition of the cargo line from the shore to the vessel, i.e., whether it is completely full of product, partially full, or slack.
11. Prior to examining the barge and preparing it for loading, Williams met with Hoover and they discussed Intertek's customer's request to perform a line displacement for the benzene load.
12. Williams testified that he would have the line displacement performed into a single tank.
13. The decision as to the number of tanks into which a line displacement is performed is ultimately made by the vessel person-in-charge.
14. The inspector does not have a role in determining the number of tanks into which the line displacement is performed.
15. When Hoover inspected the barge, he looked through the sight glasses into each of the cargo tanks to determine whether the tanks were dry and compatible with the cargo to be loaded, benzene.
16. Looking into the sight glass is standard accepted procedure to determine whether a barge is clean enough to receive the cargo to be loaded.
17. Team Services, the party that Kirby Inland arranged to provide the tankerman services for the KIRBY 11323, does not allow any person to enter a confined space, including a barge cargo tank, to check cleanliness on a barge, when its tankermen are the vessel persons-in-charge.
18. Hoover saw that the cargo tanks of the KIRBY 11323 were dry, and told Williams accordingly.
19. Williams checked to make sure that the sight glasses into the tanks were clean and confirmed that the tanks were "powerhouse dry."
20. Hoover's inspection took approximately ten minutes and, once it was completed, Hoover left the Kirby 11323 and waiting [sic] in the dock shack for loading to begin.
21. After Williams completed his inspection and preparation of the barge for loading, he and Wright met for the Pre-Transfer Conference.
22. Williams is "sure" that he discussed with Wright the tank into which the line displacement was to be performed.
23. The number one center tank of the KIRBY 11323 exploded approximately two minutes after loading began.
24. Approximately 43 barrels of benzene flowed into the KIRBY 11323 before the explosion occurred and the product valves were closed.
Pursuant to the Federal Rules of Civil Procedure, "[t]he 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). In determining whether the movant is entitled to summary judgment, the court views facts in the light most favorable to the non-movant and draws all reasonable inferences in the non-movant's favor. Coleman v. Houston Independent School District, 113 F.3d 528, 533 (5th Cir. 1997).
After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the moving party carries its burden of proof under Rule 56, the opposing party must direct the court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor. Id. The court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502U.S. 1059 (1992). However, if the evidence in the record is such that a reasonable jury, drawing all inferences in favor of the non-moving party, could arrive at a verdict in that party's favor, the court must deny the motion for summary judgment. International Shortstop, Inc., 939 F.2d at 1263.
On the other hand, the non-movant's burden is not satisfied by some metaphysical doubt as to the material facts, or by conclusory allegations, unsubstantiated assertions, or a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In other words, summary judgment will lie only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits if any, 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." Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
As the basis for their Third-Party Complaint, LBC Entities allege that Intertek is responsible for the explosion of the KIRBY 11323 and resulting damages due to the negligence and lack of due care exercised by Intertek and its inspector, Hoover. "[N]egligence is an actionable wrong under general maritime law," and the elements of that tort are "essentially the same as land-based negligence under the common law." Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 211 (5th Cir. 2010)(quoting Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005)). To state a claim for relief under maritime law, the "plaintiff must 'demonstrate that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between the defendant's conduct and the plaintiff's injury.'" Id. (internal citations omitted). Absent a legal duty, a cause of action for negligence must fail. In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991).
In support of the motion, Intertek argues that LBC Entities' claim against Intertek fails on the first element, the requirement of a duty. Intertek contends that there is no genuine issue of material fact that it did not owe a duty to LBC Entities, as it did not play a role in the loading process. Intertek also argues that it did not have a contractual, statutory, or customary duty to LBC Entities. Rather, Intertek contends that its only duty was to "observe, record, and report" on the quality and quantity of the petroleum cargo loaded into the KIRBY 11323, as required by its contract with its customers.2
In opposition, LBC Entities argue that there are genuine issues of material fact as to whether Intertek had a duty to LBC Entities. LBC Entities contends that the duty of care may be derived from three basic sources: (1) duly enacted laws, regulations, and rules; (2) customs; and (3) the dictates of reasonableness and prudence. LBC Entities argue that a duty of care exists when the potential for injuryis foreseeable. LBC Entities also contend that the loading of a barge with benzene involves three parties: the inspector, the vessel...
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