United States v. Tug Sundial

• Decision Date: 15 March 2012
• Docket Number: No. 3:11–cv–00227–HU.,3:11–cv–00227–HU.
• Citation: 861 F.Supp.2d 1208
• Parties: UNITED STATES of America, Plaintiff, v. The TUG SUNDIAL (VESSEL ID NO. 652357), in rem, Barge 166, in rem, Barge 71, in rem, The Pioneer, in rem, their apparel, tackle and appurtenances; Bank of America NA, in personam; and Tidewater Barge Lines, Inc., in personam, Defendants.
• Court: U.S. District Court — District of Oregon

861 F.Supp.2d 1208

UNITED STATES of America, Plaintiff,

v.The TUG SUNDIAL (VESSEL ID NO. 652357), in rem, Barge 166, in rem, Barge 71, in rem, The Pioneer, in rem, their apparel, tackle and appurtenances; Bank of America NA, in personam; and Tidewater Barge Lines, Inc., in personam, Defendants.

No. 3:11–cv–00227–HU.

United States District Court, D. Oregon.

March 15, 2012.

Ron Silver, United States Attorneys Office, Portland, OR, R. Michael Underhill, Eric Kaufman–Cohen, U.S. Department of Justice, San Francisco, CA, for Plaintiff.

Daniel F. Knox, Noah Jarrett, William J. Ohle, Schwabe, Williamson & Wyatt, P.C., Portland, OR, for Defendants.

ORDER

HERNANDEZ, District Judge:

Magistrate Judge Dennis J. Hubel issued a Findings and Recommendation (doc. # 36) on January 9, 2012, recommending that (1) the motion for partial summary judgment (doc. # 13) filed by Bank of America NA (the “Bank”) and Tidewater Barge Lines, Inc. (“Tidewater”) be GRANTED in part and DENIED in part; and (2) the second motion for partial summary judgment (doc. # 21) filed by the Tug Sundial (“Sundial”), Barge 166, Barge 71, the Pioneer, and their respective apparel, tackle and appurtenances, the Bank, and Tidewater (collectively, “Defendants”) be GRANTED in part and DENIED in part.

The United States of America (“Plaintiff”) and Defendants timely filed objections to the Magistrate Judge's Findings and Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.2009); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc). I have carefully considered the parties' objections and conclude that the objections do not provide a basis to modify the Findings and Recommendation. I have also reviewed the pertinent portions of the record de novo and find no error in the Magistrate Judge's Findings and Recommendation.

CONCLUSION

The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation (doc. # 36). The motion for partial summary judgment (doc. # 13) filed by the Bank and Tidewater is therefore GRANTED in part and DENIED in part, and the second motion for partial summary judgment (doc. # 21) filed by Defendants is GRANTED in part and DENIED in part. Oral argument is unnecessary.

IT IS SO ORDERED.

HUBEL, United States Magistrate Judge:

Findings and Recommendation

This is a case in admiralty against defendants the Tug Sundial (“Sundial”), in rem, Barge 166, in rem, Barge 71, in rem, The Pioneer, in rem, and their respective apparel, tackle and appurtenances, Bank of America NA (“the Bank”), in personam, and Tidewater Barge Lines, Inc. (“Tidewater”), in personam (collectively “Defendants”). Currently before the court is the Bank and Tidewater's motion (# 13) for partial summary judgment dismissing plaintiff the United States of America's (“Plaintiff”) claims against the Bank, striking Plaintiff's demand for civil penalties of $25,000 per day against Defendants, and striking Plaintiff's first claim for relief for strict liability under 33 U.S.C. § 408 (“§ 408”) against Tidewater and the Bank in personam. Defendants have also moved (# 21) for partial summary judgment (1) dismissing Plaintiff's claim for negligence against them, and (2) dismissing all claims under the Rivers and Harbors Act (“the Act”), 33 U.S.C. §§ 401 et seq., against Barge 166, Barge 71, and The Pioneer (collectively, “the Barges”), leaving only Plaintiff's claim against Sundial for trial. Based on the reasons set forth below, the Bank and Tidewater's motion (# 13) for partial summary judgment should be GRANTED in part and DENIED in part. Defendants' second motion (# 21) for partial summary judgment should be GRANTED in part and DENIED in part.

Background

On February 28, 2008, Sundial, the fuel barge The Pioneer, and the Tidewater grain Barges 166 and 71 were transiting up bound through the John Day Dam Navigation Lock on the Columbia River (Comp. ¶ 35.) At all material times, Sundial and the Barges were a flotilla and/or fleet under the control of Sundial and her owners, operators, managers, officers and crews.¹ (Compl. ¶ 36.) During the Vessels rise in the locks, the Sundial and the Barges moved forward, causing the push knees of the Barges to allide with the upstream lock wall causing extensive damage to the gate and ancillary equipment. (Compl. ¶ 37.) The cost to Plaintiff to repair the damage to the navigation lock caused by Defendants totaled in excess of $4,943,090. (Compl. ¶ 38.) The allision between the Barges and the lock wall was caused, inter alia, by the failure of Sundial's crew to maintain a proper lookout so that action could have been taken to avoid the allision once the mooring lines parted. (Opp'n Mot. Partial Summ. J. (“Opp'n Mot.”) at 8.)

On February 23, 2011, Plaintiff filed this action against Defendants seeking to recover for the damages to the upstream lock gate pursuant to the provisions of §§ 408 and 412. (Compl. ¶¶ 39–48.) Plaintiff contends that under § 411, Defendants are strictly liable to them for the damages to the upstream lock gate, which was caused by Defendants' negligence.² (Compl. ¶¶ 43–44, 48–49.) Specifically, Plaintiff claims that Defendants are liable to pay the damages they incurred in repairing the navigation lock, plus interest, as well as a penalty, pursuant to § 411, of not more than $25,000 per day. (Compl. ¶¶ 43–44, 48.) The Bank and Tidewater filed their motion for partial summary judgment on June 17, 2011, while Defendants filed the second motion for partial summary judgment on August 5, 2011.

Legal Standard

Summary judgment is appropriate “if pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is not proper if factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir.2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981).

However, deference to the nonmoving party has limits. The nonmoving party must set forth “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e). The “mere existence of a scintilla of evidence in support of plaintiff's positions [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted).

Discussion

I. The Bank and Tidewater's Motion for Partial Summary Judgment

A. The Bank's Liability

The Bank argues that all claims against them should be dismissed because, as Plaintiff alleges, Tidewater was the bareboat charterer and owner pro hac vice of Sundial. (Defs.' Mem. Supp. (“Defs.' Mem.”) at 5.) In support of its position, the Bank has submitted the declaration of John Pigott (“Pigott”), who is currently Tidewater's Assistant to the President. (Decl. John Pigott ¶ 2.) According to Pigott, the arrangement between Tidewater and the Bank, in regard to Sundial, was strictly a financial one. (Decl. John Pigott ¶ 5.) That is, it was a pure sale and lease back arrangement that had no provisions for the Bank to participate in the operational control of the vessel. (Decl. John Pigott ¶ 5.) Pigott has attached to his declaration a 2006 Bareboat Charter between Tidewater and the Bank, which covers several vessels, including Sundial. (Decl. John Pigott Ex. A.) In keeping with the rights and obligations of the Bareboat Charter, the Bank had no involvement in directing the operations or otherwise controlling the activities of Sundial; rather, Tidewater retained all right to control and exercised actual control over Sundial. (Decl. John Pigott ¶ 7.)

It is well settled “in the law of admiralty that for many, if not most, purposes the bareboat charterer is to be treated as the owner, generally called owner pro hac vice.” Reed v. S.S. Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), reh'g denied,375 U.S. 872, 84 S.Ct. 27, 11 L.Ed.2d 101 (1963), superseded by statute on other grounds, Kelly v. Pittsburgh & Conneaut Dock. Co., 900 F.2d 89, 93 (6th Cir.1990). In a bareboat...