Stephen Gabarick v. Laurin Maritime (America), Inc, et al

Filing 920101230

Opinion

Case: 10-30148 Document: 00511336824 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 30, 2010 N o . 10-30148 Lyle W. Cayce Clerk

S T E P H E N MARSHALL GABARICK, on Behalf of Himself and All Others S im ila r ly Situated; ET AL P la in t if f s v. L A U R I N MARITIME (AMERICA), INC.; ET AL, D e fe n d a n t s ------------------------------------------------------------------------------------------------A U S T I N SICARD; ET AL P la in t if f s v. L A U R I N MARITIME (AMERICA) INC; WHITEFIN SHIPPING CO. L IM IT E D D e fe n d a n t s ­ Appellees v. A M E R I C A N COMMERCIAL LINES, L.L.C. A p p e lla n t ------------------------------------------------------------------------------------------------W H I T E F I N SHIPPING CO. LIMITED, As Owner and Managing Owner of t h e M/V Tintomara, Petitioning for Exoneration from or Limitation of L ia b ilit y ; LAURIN MARITIME (AMERICA) INC, As Owner and Managing O w n e r of the M/V Tintomara, Petitioning for Exoneration from or Limitation o f Liability; LAURIN MARITIME AB; ANGLO-ATLANTIC STEAMSHIP L IM IT E D P e t it io n e r s ­ Appellees

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No. 10-30148 v. A M E R I C A N COMMERCIAL LINES, L.L.C. A p p e lla n t ------------------------------------------------------------------------------------------------G E O R G E C. MCGEE; ET AL, P la in t if f s v. L A U R I N MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO. L IM IT E D , D e fe n d a n t s ­ Appellees v. A M E R I C A N COMMERCIAL LINES, L.L.C., Defendant ­ Appellant ------------------------------------------------------------------------------------------------B E R N A D E T T E GLOVER, on Behalf of Herself and all Others Similarly S itu a te d , P la in t if f v. L A U R I N MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO. L IM IT E D , D e fe n d a n t s ­ Appellees v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t ------------------------------------------------------------------------------------------------A M E R I C A N COMMERCIAL LINES, L.L.C., As Owner of Barge DM-932, P r a y in g for Exoneration from or Limitation of Liability P e t it io n e r ­ Appellant

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No. 10-30148 v. C S I L L A FEKETE; ET AL, D e fe n d a n t s v. L A U R I N MARITIME AB; WHITEFIN SHIPPING CO. LIMITED; ANGLOA T L A N T I C STEAMSHIP LIMITED, LAURIN MARITIME (AMERICA) INC. M o v a n t s ­ Appellees ------------------------------------------------------------------------------------------------J E F F E R S O N MAGEE, Individually and on Behalf of All Others Similarly S it u a te d ; ET AL, P la in t if f s v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t v. W H I T E F I N SHIPPING CO. LIMITED; LAURIN MARITIME AB, D e fe n d a n t s ­ Appellees ------------------------------------------------------------------------------------------------J A M E S ROUSSELL; ET AL, P la in t if f s v. L A U R I N MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO. L IM IT E D , D e fe n d a n t s ­ Appellees v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t

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Case: 10-30148 Document: 00511336824 Page: 4 Date Filed: 12/30/2010

No. 10-30148 ------------------------------------------------------------------------------------------------J A M E S JOSEPH, on Behalf of Himself and All Others Similarly Situated, P la in t if f v. L A U R I N MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO. L IM IT E D , D e fe n d a n t s ­ Appellees v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t ------------------------------------------------------------------------------------------------V I N C E N T GRILLO, Individually and on Behalf of All Others Similarly S it u a te d ; ET AL, P la in t if f s v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t v. W H I T E F I N SHIPPING CO. LIMITED; LAURIN MARTIME AB, D e fe n d a n t s ­ Appellees ------------------------------------------------------------------------------------------------I N D E M N IT Y INSURANCE COMPANY OF NORTH AMERICA, P la in t if f v. A M E R I C A N COMMERCIAL LINES, L.L.C. D e fe n d a n t ­ Appellant v.

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No. 10-30148 A N G L O -A T L A N T I C STEAMSHIP LIMITED; LAURIN MARITIME AB; L A U R I N MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO. L IM IT E D , D e fe n d a n t s ­ Appellees ------------------------------------------------------------------------------------------------D R D TOWING COMPANY, INC., as Owner Pro Hac Vice or Alleged Owner P r o Hac Vice of the M/V Mel Oliver, P e titio n e r v. M U R A C I N VILCEUS; ET AL, D e fe n d a n t s v. A M E R I C A N COMMERCIAL LINES, L.L.C., C la im a n t ­ Appellant v. L A U R I N MARITIME AB; WHITEFIN SHIPPING CO. LIMITED; ANGLOA T L A N T I C STEAMSHIP LIMITED; LAURIN MARITIME (AMERICA), I N C ., M o v a n t s ­ Appellees ------------------------------------------------------------------------------------------------D O N N E T T A CHERAMIE, Individually and on Behalf of All Others Similarly S itu a te d , P la in t if f v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t v. W H I T E F I N SHIPPING CO. LIMITED; LAURIN MARITIME AB,

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No. 10-30148 D e fe n d a n t s ­ Appellees ------------------------------------------------------------------------------------------------T R I NATIVE CONTRACTORS, INC.; ET AL, P la in t if f s v. A M E R I C A N COMMERCIAL LINES, L.L.C., A p p e lla n t v. W H I T E F I N SHIPPING CO. LIMITED; LAURIN MARITIME AB, D e fe n d a n t s ­ Appellees ------------------------------------------------------------------------------------------------A M E R I C A N COMMERCIAL LINES, L.L.C., as Owner of the M/V Mel Oliver P r a y in g for Exoneration from or Limitation of Liability, P e t it io n e r ­ Appellant v. J A H D A MUHAMMAD, D e fe n d a n t v. L A U R I N MARITIME (AMERICA), INC.; LAURIN MARITIME AB; W H I T E F I N SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP L IM IT E D , M o v a n t s ­ Appellees ------------------------------------------------------------------------------------------------K E V I N A. PETTIGREW, P la in t if f v. A M E R I C A N COMMERCIAL LINES, L.L.C., D e fe n d a n t ­ Appellant

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Case: 10-30148 Document: 00511336824 Page: 7 Date Filed: 12/30/2010

No. 10-30148 v. L A U R I N MARITIME (AMERICA), INC.; LAURIN MARITIME AB; W H I T E F I N SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP L IM IT E D , M o v a n t s ­ Appellees

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:08-cv-4007

B e fo r e KING, STEWART, and OWEN, Circuit Judges. P E R CURIAM:* A m e r ic a n Commercial Lines, LLC appeals the district court's grant of p a r tia l summary judgment dismissing its claims against the Tintomara I n t e r e s t s under the Oil Pollution Act of 1990. Because we believe that summary ju d g m e n t is premature, we reverse the district court's judgment and remand for fu r t h e r proceedings. I . FACTUAL AND PROCEDURAL BACKGROUND T h is case involves an oil spill in the Mississippi River near New Orleans, L o u is ia n a . At approximately 1:30 a.m. on July 23, 2008, the M/V TINTOMARA, a n ocean-going tanker, collided with the DM 932, an unmanned non-selfp r o p e lle d barge laden with fuel oil, which was being towed by the tug M/V MEL O L I V E R . At the time of the collision, the TINTOMARA was traveling down r iv e r near the west bank, and the MEL OLIVER, pushing the DM 932, was

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30148 Document: 00511336824 Page: 8 Date Filed: 12/30/2010

No. 10-30148 t r a v e lin g up river. The collision caused substantial damage to the barge, and a la r g e quantity of oil spilled into the river. T h e TINTOMARA was owned and operated by Laurin Maritime (America), I n c ., Laurin Maritime AB, Whitefin Shipping Co. Limited, and Anglo-Atlantic S t e a m s h ip Limited (collectively, the "Tintomara Interests"). The tug, barge, and fu e l oil cargo were owned by American Commercial Lines, LLC ("ACL"). The c r e w for the tug had been provided by D.R.D. Towing, LLC ("DRD") pursuant to a bareboat charter between ACL and DRD. No ACL personnel were aboard e it h e r the tug or the barge at the time of the collision. I m m e d ia t e ly following the spill, the United States Coast Guard began in v e s t ig a t in g the circumstances surrounding the collision and sent ACL a letter s t a t in g that, as owner of the DM 932, ACL "may be liable as a responsible party" u n d e r the Oil Pollution Act of 1990 ("OPA"). ACL responded that it denied l i a b i l it y as the responsible party and reserved all defenses, but that, as owner o f the discharging vessel, it would move forward to coordinate the removal and c le a n u p efforts. Within days of the spill, several suits were filed in the United States D is t r ic t Court for the Eastern District of Louisiana. Among them were several c la s s actions against ACL, DRD, and the Tintomara Interests filed by parties w h o had been injured by the spill. In addition, ACL, DRD, and the Tintomara I n t e r e s t s each filed a petition seeking exoneration from or limitation of liability fo r all claims arising out of the spill. The district court later consolidated all of t h e pending actions into the first-filed action. A C L filed a claim in the Tintomara Interests' limitation proceeding a lle g in g that the Tintomara Interests were liable to ACL for all losses ACL in c u r r e d as a responsible party under the OPA. ACL also demanded

c o n t r ib u t io n from the Tintomara Interests under the "OPA and/or the General M a r it im e Law of the United States." 8 The Tintomara Interests moved for

Case: 10-30148 Document: 00511336824 Page: 9 Date Filed: 12/30/2010

No. 10-30148 s u m m a r y judgment with respect to ACL's OPA claims because, under the OPA, A C L , as owner of the discharging vessel, is strictly liable for all removal costs a n d damages arising from the spill unless it can shift liability to a third party u n d e r one of several narrow available defenses. The Tintomara Interests argued t h a t ACL's pleadings demonstrated that no material factual issues remained r e g a r d in g ACL's liability and that, as a result, ACL could not shift OPA liability t o the Tintomara Interests. ACL responded that its pleadings in the various p e n d in g actions were inconsistent and therefore could not constitute admissions o n which the court could base factual findings. ACL further argued that

s u m m a r y judgment was premature because it had not had the opportunity to c o n d u c t discovery.1 T h e district court granted the Tintomara Interests' motion. The court held t h a t "Tintomara--a non-discharging party--would be liable as a responsible p a r ty only if there was no fault on the part of ACL and no fault on the part of D R D ," ACL's alleged contractual partner. The district court found that "at least s o m e fault is attributable to the actions of DRD and/or ACL," and therefore the T in t o m a r a Interests could not be held liable under the OPA as a matter of law. A C L then moved the district court to enter the partial summary judgment as a final order under Federal Rule of Civil Procedure 54(b) to permit it to appeal t h e decision. The district court denied the motion, stating that "as discovery p r o g r e s s e s on the remaining maritime claims, the dismissal of claims for OPA c o n t r ib u t io n and subrogation could, arguably, be revisited." ACL nevertheless a p p e a ls the district court's grant of partial summary judgment as an in t e r lo c u t o r y order. I I . DISCUSSION

According to all parties, discovery in the various cases pending in the Eastern District of Louisiana had been delayed while a marine casualty investigation was being conducted by the Coast Guard.

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Case: 10-30148 Document: 00511336824 Page: 10 Date Filed: 12/30/2010

No. 10-30148 A. J u r is d ic tio n W e have jurisdiction over appeals from interlocutory orders that " d e t e r m in [e ] the rights and liabilities of the parties to admiralty cases." 28 U .S .C . § 1292(a)(3). "As a general rule, whenever an order in an admiralty case d is m is s e s a claim for relief on the merits it is appealable under Section 1 2 9 2 (a )(3 )." Francis ex rel. Frances v. Forest Oil Corp., 798 F.2d 147, 149 (5th C ir . 1986). We have jurisdiction to hear this appeal. The OPA provides a distinct c a u s e of action to all claimants injured by the oil spill. See 33 U.S.C. §§ 2702(b), 2 7 1 3 . ACL, who has already paid many of the claims submitted by injured c la im a n t s , is subrogated to the rights of the claimants if it can demonstrate that a third party is liable under the OPA. § 2702(d)(1)(B). The district court's order d i s m is s e d ACL's OPA claims against the Tintomara Interests on the merits; t h e r e fo r e , the order is appealable under § 1292(a)(3). B. S ta n d a r d of Review " W e review a grant of summary judgment de novo, applying the same s t a n d a r d as the district court." Addicks Servs. v. GGP­Bridgeland, LP, 596 F.3d 2 8 6 , 293 (5th Cir. 2010). Summary judgment is proper only if there are no g e n u in e issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). C. S u m m a r y Judgment is Premature T it le I of the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701­2720, assigns s t r ic t liability to the owners and operators of vessels that discharge oil into the n a v ig a b l e waters of the United States. Section 2702(a) provides that "each r e s p o n s ib le party for a vessel or facility from which oil is discharged . . . is liable fo r the removal costs and damages . . . that result from such incident." The " r e s p o n s ib le party" for a vessel is "any person owning, operating, or demise c h a r te r in g the vessel." § 2701(32)(A). 10

Case: 10-30148 Document: 00511336824 Page: 11 Date Filed: 12/30/2010

No. 10-30148 T h e OPA provides a responsible party with a complete defense to liability in certain very narrow circumstances. At issue in this case is the defense in § 2703(a)(3), which provides: A responsible party is not liable for removal costs of damages under S e c t io n 2702 of this title if the responsible party establishes, by a p r e p o n d e r a n c e of the evidence, that the discharge or substantial t h r e a t of a discharge of oil and the resulting damages or removal c o s t s were caused solely by an act or omission of a third party, other th a n . . . a third party whose act or omission occurs in connection w it h any contractual relationship with the responsible party. (e m p h a s is added). T o shift OPA liability to a third party under this section, the responsible party m u s t prove it had no fault in the spill and that it was not in a contractual r e la t io n s h ip with any party that had any fault in the spill.2 If the responsible p a r ty establishes this defense, liability under the OPA shifts to the third party a t fault for the spill, and the third party becomes the responsible party and is lia b le to all claimants under the OPA. § 2702(d)(1)(A). A C L has alleged that the Tintomara Interests are liable third parties u n d e r the OPA. The Tintomara Interests do not argue that ACL had any fault in the spill. Therefore, the Tintomara Interests are entitled to summary

ju d g m e n t only if they can demonstrate that ACL was in a contractual r e la t io n s h ip with a party that had some fault in the spill. A lt h o u g h very little discovery has taken place, the Tintomara Interests a r g u e that ACL has pled itself out of court by admitting that it was in a c o n t r a c tu a l relationship with DRD and that DRD had some fault in causing the c o llis io n and resulting oil spill. Allegations in party's pleadings may constitute
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The responsible party must also satisfy certain other requirements, including demonstrating that it "exercised due care with respect to the oil concerned, taking into consideration the characteristics of the oil and in light of all relevant facts and circumstances," and that it "took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions." § 2703(a)(3)(A)­(B). These other requirements are not implicated in this appeal.

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Case: 10-30148 Document: 00511336824 Page: 12 Date Filed: 12/30/2010

No. 10-30148 a d m is s io n s in some situations; however, "one of two inconsistent pleas cannot b e used as evidence in the trial of the other." Continental Ins. Co. of New York v . Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971). Indeed, Federal Rule of Civil P r o c e d u r e 8(d)(3) allows a party to "state as many separate claims or defenses a s it has, regardless of consistency." Here, ACL took inconsistent positions in t h e various actions in the district court. Accordingly, under the circumstances p r e s e n t e d here, the district court erred in treating the allegations in any one of A C L 's many pleadings as an admission sufficient to settle an issue of fact. Material issues of fact therefore remain regarding fault for the collision a n d the existence of a contractual relationship between ACL and DRD. The T in tom a ra Interests argue, however, that no factual issues exist regarding ACL's c o n t r a c t u a l relationship with DRD because ACL has admitted in all of its p le a d in g s that it was in a contractual relationship with DRD. In its claim a g a in s t the Tintomara Interests, ACL alleged, as part of the factual basis for its c la im , that it bareboat charted the MEL OLIVER to DRD "[p]ursuant to a M a s t e r Bareboat Charter Agreement." ACL made the same allegation in the c la im it filed against DRD. Although ACL does not dispute that signed contracts w it h DRD exist, ACL has filed a declaratory judgment action to have its c o n t r a c ts with DRD declared void ab initio.3 According to ACL, if the contracts a r e declared void, then ACL and DRD will not have been in a "contractual r e la t io n s h ip " for purposes of OPA liability. We express no opinion regarding the m e r i t s of ACL's position, but summary judgment is premature until the cases p e n d in g in the district court are further developed.

It is undisputed that John Bavaret, a DRD employee, was alone in the wheelhouse of the MEL OLIVER at the time of the collision. Bavaret held only an apprentice mate/steersman Coast Guard license, and, under the applicable Coast Guard regulations, was not permitted to operate the tug without a licensed captain present. ACL has alleged that DRD made a regular practice of allowing unlicensed crew members, like Bavaret, to man ACL's tugs, and that ACL would not have entered into the contracts with DRD had it known of this practice.

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Case: 10-30148 Document: 00511336824 Page: 13 Date Filed: 12/30/2010

No. 10-30148 F u r t h e r m o r e , neither ACL nor DRD has had the opportunity to litigate the v a r io u s disputed allegations regarding fault for the collision and resulting spill. A C L has at various times alleged that the Tintomara Interests were solely at f a u lt for the collision and that DRD was solely at fault for the collision. In its o r d e r , however, the district court assigned "at least some fault" to "DRD and/or A C L ."4 ACL agreed in its briefing to this court that it believes the actions of J o h n Bavaret, the DRD employee at the helm of the MEL OLIVER, contributed t o the collision, but it appears that in the district court DRD has disclaimed r e s p o n s ib ilit y for Bavaret's actions. Because of the complex nature of this case a n d the unresolved relationships between the parties, we think it is premature t o treat any party's mere allegations as sufficient evidence to conclude that a c o n t r a c tu a l partner of ACL had some fault in the collision such that summary ju d g m e n t in favor of the Tintomara Interests is warranted. There has not been e n o u g h factual development to conclusively assign fault to any of the parties, a n d with further factual development, the pleadings themselves may change. In short, the many and varied and contradictory pleadings in the district c o u r t are in their infancy and the facts are too undeveloped to make the n e c e s s a r y factual findings with any certainty. The district court erred in

fo c u s in g on one pleading to the exclusion of all other conflicting pleadings at this e a r ly juncture. Even the district court indicated (wisely, we think) that further d e v e lo p m e n t might change the result of the partial summary judgment. I I I . CONCLUSION
The district court arrived at this conclusion based on the Tintomara Interests' reference in their reply brief to the testimony of John Bavaret at the hearings held by the Coast Guard while it was investigating the collision. However, the testimony was not before the district court because the Tintomara Interests failed to submit the transcript of the testimony until after the court rendered its decision. Further, it is unclear whether the testimony is even admissible in a civil case. See 46 U.S.C. § 6308 ("[N]o part of a report of a marine casualty investigation . . . shall be admissible as evidence or subject to discovery in any civil or administrative proceeding."). Therefore, it was error to treat this evidence as sufficient to permit the assignment of any portion of fault to any of the parties.
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No. 10-30148 F o r the foregoing reasons, we REVERSE the district court's grant of p a r tia l summary judgment in favor of the Tintomara Interests and REMAND fo r further proceedings. The Tintomara Interests shall bear the costs of this a p p e a l.

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