Transatlantic Lines LLC v. Portus Stevedoring LLC
Filing
81
ORDER denying 63 Third-Party Defendant Mobro Marine Inc.'s Motion for Summary Judgment on Portus Stevedoring LLC's Third-Party Complaint; denying 67 Motion to Strike Defendant Portus Stevedoring LLC's Motion to Strike Statement o f Material Facts Pursuant Local Rule 56.1 by Mobro Marine, Inc. (Doc. 66) or in the Alternative Motion for Extension of Time; denying 75 Defendant Portus Stevedoring LLC's Unopposed Motion for Leave to File Sur-Reply to Mobro's Reply to Defendant's Response in Opposition to Mobro's Motion for Summary Judgment. Signed by Judge James I. Cohn on 7/28/2015. (ns)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN ADMIRALTY
CASE NO. 14-60528-CIV-COHN/SELTZER
TRANSATLANTIC LINES LLC,
Plaintiff,
v.
PORTUS STEVEDORING LLC,
Defendant,
v.
MOBRO MARINE INC. and MCALLISTER
TOWING AND TRANSPORTATION CO. INC.,
Third-Party Defendants.
/
ORDER DENYING MOBRO'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Third-Party Defendant Mobro Marine
Inc.'s Motion for Summary Judgment on Portus Stevedoring LLC's Third-Party
Complaint [DE 63] ("Motion"). The Court has reviewed the Motion and the record in this
case, and is otherwise advised in the premises. For the reasons discussed herein, the
Court will deny the Motion.
I.
BACKGROUND
Plaintiff Transatlantic Lines LLC ("Transatlantic") operates a cargo-transport
service between Jacksonville, Florida, and Guantanamo Bay, Cuba. DE 1 (Complaint)
¶ 3. In early 2013, Transatlantic chartered the barge "Atlantic Trader" from Third-Party
Defendant McAllister Towing and Transportation Co. Inc. ("McAllister") for use in its
business. Id. ¶ 8; DE 30 (Amended Third-Party Complaint) ¶ 5. On or about March 2,
2013, Transatlantic hired Defendant Portus Stevedoring LLC ("Portus") to load and
secure cargo on the barge for shipment to Cuba. Compl. ¶ 6. Third-Party Defendant
Mobro Marine Inc. ("Mobro") assisted in this effort by modifying and repairing the
Atlantic Trader, including parts of the barge's cargo-securing system. Am. 3d Pty.
Compl. ¶ 4.
Thereafter, the Atlantic Trader departed for Cuba. By March 4, 2013, the barge
had made its way from Jacksonville to waters off the coast of South Florida. Compl. ¶ 9.
At this point in the voyage, the Atlantic Trader's cargo-securing system failed, and over
30 cargo containers were damaged or lost overboard. Id. In its Complaint, Transatlantic
alleges that Portus's carelessness in loading and securing the cargo containers caused
the cargo-securing system to fail. On this basis, Transatlantic has asserted three claims
against Portus: (1) breach of contract; (2) breach of the implied warranty of workmanlike
performance; and (3) negligence. Id. ¶¶ 14–27.
Portus has answered Transatlantic's Complaint and has raised a number of
affirmative defenses. See DE 6. Portus also has filed third-party claims against Mobro
and McAllister for contribution under Rule 14(c) of the Federal Rules of Civil Procedure.
See generally Am. 3d Pty. Compl. As relevant to the motion before the Court, Portus
alleges that Mobro is liable for any harms Transatlantic may have suffered, because
Mobro did poor work in modifying and repairing the Atlantic Trader before the barge set
sail for Cuba. Id. ¶¶ 10–13. Mobro now seeks summary judgment in its favor on Portus's
contribution claim against it.
II.
LEGAL STANDARD
A district 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
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matter of law." Fed. R. Civ. P. 56(a). The moving party "always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this
burden, the movant must show the court that "there is an absence of evidence to
support the nonmoving party's case." Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts, and the non-moving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, "[i]f a party fails to properly
support an assertion of fact or fails to properly address another party's assertion of
fact . . . the court may . . . grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled
to it." Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party "may not rest upon the
mere allegations or denials in its pleadings" but instead must present "specific facts
showing that there is a genuine issue for trial." Walker v. Darby, 911 F.2d 1573, 1576–
77 (11th Cir. 1990). In deciding a summary-judgment motion, the Court must view the
facts in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
III. DISCUSSION
In the Motion, Mobro raises two principal challenges to Portus's contribution
claim. Mobro contends that Portus lacks support for its contention that Mobro's
personnel welded certain parts of the cargo-securing system on the Atlantic Trader, that
Mobro's welds failed, or that the failure of the welds caused the collapse of the cargo
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containers stacked on the barge. Mobro also suggests that Portus's failure to preserve
physical evidence relating to the incident requires summary judgment for Mobro. The
Court disagrees with Mobro on both points.
A. Portus Has Adduced Sufficient Evidence that Mobro's
Welds Caused the Cargo-Securing System to Fail
In its Amended Third-Party Complaint, Portus alleges that Mobro owed a duty to
perform work of adequate quality when modifying the Atlantic Trader, including when
welding D-rings to the barge's deck. Am. 3d Pty. Compl. ¶ 10. The D-rings anchored
cargo lashings on the barge. Portus contends that Mobro's subpar welding of the Drings caused them to fail, which in turn caused the Atlantic Trader's cargo-securing
system to fail. Id. ¶¶ 10–12. Portus thus seeks contribution from Mobro for any liability to
Transatlantic caused by the faulty welding.
Portus has couched the substance of its contribution claim in terms of a breach
of the implied warranty of workmanlike performance. Id.; see also DE 72 at 7. The
standard for liability under the warranty of workmanlike performance parallels a
negligence standard. Meridian Bulk Carriers, Ltd. v. Kinder Morgan Bulk Terminals, Inc.,
No. 07-1422, 2009 WL 2180582 at *8–9 (M.D. Fla. July 22, 2009). In the Motion, Mobro
argues that Portus cannot prove liability under this standard because of an absence of
evidence regarding which D-rings Mobro welded, that Mobro's welds were substandard,
or that the poor welds caused the cargo-securing system to fail. However, Portus has
responded to the Motion with sufficient evidence to create a triable question of fact on
each issue.
First, the evidence shows that Mobro's employees welded D-rings to the deck of
the Atlantic Trader. On or about August 2, 2013, the Atlantic Trader was moored near
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Jacksonville, being prepared for its voyage to Cuba. Personnel from Transatlantic and
Portus visited the barge during this time with a number of D-rings to be welded to the
deck. DE 50-5 at 30:7–31:11, 129:9–131:22. Mobro's corporate representative and one
of its superintendents confirmed that Mobro's employees welded the D-rings to the
deck. DE 63-4 at 23:7–14; DE 63-5 at 14:1–17:6.
Portus also has provided evidence that Mobro's welds were among those which
failed. After the collapse of the cargo containers on the Atlantic Trader, it was observed
that D-rings had separated from the barge's deck where they had been welded. Some
of these separated D-rings had been recently painted at the weld. Mobro's invoice to
Transatlantic for its work on the Atlantic Trader included charges for painting its welds.
See DE 73 at 12; DE 74 at 3. The paint visible on a number of the welds that failed in
the area of the cargo collapse appeared to be silver, grey, or white. See, e.g., DE 63-4
at 62:17–63:6; DE 63-5 at 29:8–12, 41:2–44:5. Mobro's corporate representative
testified at his deposition that Mobro uses grey paint in its operations. DE 63-4 at 42:4–
23; see also id. at 62:21–64:6. Further, Transatlantic's port coordinator testified that
Mobro was the only entity that Transatlantic hired to perform welds on the Atlantic
Trader in preparation for its fateful voyage. DE 50-5 at 41:9–13. This evidence is
sufficient to allow the factfinder to reasonably determine that Mobro painted its welds on
the Atlantic Trader grey, and that some of Mobro's painted welds were among the welds
that failed.
Portus likewise has adduced support for its contention that some of Mobro's
welds failed because of poor workmanship. One of Portus's expert witnesses, Frank
Grate, inspected the Atlantic Trader and some of its D-ring fasteners after the incident.
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His inspection revealed shoddy, substandard welding on painted fasteners that had
separated from the deck at their welds. DE 63-15 at 13:24–16:24. Grate testified that
the manner in which at least one such D-ring separated from the deck reflected that
poor welding caused the weld to fail as it should not have. Id. at 17:20–18:6. The Court
finds this testimony sufficient to create an issue for trial regarding whether the quality of
Mobro's welds led to their failure.
Mobro contends that Portus has not done enough to link the D-ring welds to the
failure of the broader cargo-securing system. DE 63 at 8. However, D-rings are an
integral part of the cargo-securing system, used to anchor cargo lashings to the deck.
See, e.g., DE 63-9 at 19:24–20:17. Transatlantic's expert witness, John Tirel, testified
that in the event of an overloaded cargo-securing system, the D-rings themselves
should break before their welds, and also before the lashings. DE 63-6 at 92:7–15. That
some of the welds on the Atlantic Trader instead failed before other components of the
cargo-securing system—that is, before the attached D-rings or lashings broke—would
allow a factfinder to reasonably infer that faulty welds led to the failure of the system,
and the collapse of the cargo containers.
In its Motion, Mobro further suggests that the Court should discount the
testimony of Portus's welding expert, Frank Grate, as unreliable. DE 63 at 13. However,
Mobro does not seek in its Motion to exclude Grate's testimony. Mobro does ask the
Court in its Reply to exclude Grate's opinions and testimony, however it is inappropriate
to seek affirmative relief in response to a motion, or in a reply to that response. See
Silver v. Karp, No. 14-80447, 2014 WL 4248227 at *5 n.3 (S.D. Fla. Aug. 27, 2014).
Moreover, Mobro's request in its July 16, 2015, Reply to exclude Grate's testimony
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comes well after the Court's June 13, 2015, deadline for motions to exclude or limit
expert testimony. See DE 45. Mobro offers no explanation for its procedurally improper
and untimely request to exclude the expert testimony, thus its request to exclude is
denied.
Moreover, Mobro does not appear to challenge Grate's expertise in relation to
welding, to which the core of his testimony pertains. Instead, it suggests—briefly and
without citation to legal or technical authority—that Grate could not have rendered a
reliable expert opinion regarding the Atlantic Trader's welds based upon the materials
he reviewed and the testing he performed. See DE 63 at 13–14. However, Grate
conducted an in-person and photographic review of the D-ring welds on the Atlantic
Trader in arriving at his opinions of the quality of the welds. It appears that a similar
visual review was enough to make immediately apparent to Mobro's welding department
supervisor that the quality of the welding of the painted D-rings was unacceptable. See
DE 63-10 at 27:5–29:19.
In any event, because Mobro did not squarely present a request for the exclusion
of Grate's testimony until its Reply, the record as developed by the parties' briefs does
not provide the Court with sufficient information to resolve the admissibility of his
testimony at this time. As Grate's testimony and opinions regarding the nature and
quality of the welds on the Atlantic Trader remain potentially admissible at trial, the
Court has considered this evidence in resolving Mobro's request for summary judgment.
Accord Rhodes v. E.I. du Pont de Nemours & Co., 657 F. Supp. 2d 751, 763 (S.D. W.
Va. 2009), aff'd, 636 F.3d 88 (4th Cir. 2011). Viewing all of the foregoing evidence in the
light most favorable to Portus, the Court determines that triable issues of fact remain as
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to whether Mobro performed faulty welds that caused the failure of the cargo-securing
system on the Atlantic Trader.
B. Alleged Spoliation Does Not Require
Summary Judgment in Mobro's Favor
Mobro also argues that Portus's failure to preserve the Atlantic Trader in the
condition it was in immediately after the failure of the cargo-securing system has made
it difficult for Mobro to marshal evidence in its defense, and suggests that this state of
affairs warrants summary judgment. DE 63 at 3–8. The Court's immediate reaction to
this argument is to question the extent of control Portus had over the Atlantic Trader—a
barge chartered by Transatlantic and owned by McAllister—in the aftermath of the
cargo collapse. Nevertheless, Mobro cites no legal authority for the proposition that its
difficulty in gathering evidence warrants summary judgment on Portus's claim for
contribution.
In its Reply, Mobro elaborates that it seeks not only summary judgment against
Portus for failing to preserve physical evidence, but also a variety of discovery
sanctions. However, as noted above with regard to Mobro's tardy request to exclude
Grate's testimony, a reply in support of a motion is an inappropriate place to first raise a
request for affirmative relief. Further, a failure to preserve evidence may lead to
sanctions within the Eleventh Circuit only upon a showing of bad faith. SEC v. Goble,
682 F.3d 934, 947 (11th Cir. 2012). Mobro, by its own admission, argues that Portus
acted negligently, and not in bad faith. DE 74 at 6–7. Mobro therefore has not
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established its entitlement to sanctions against Portus based upon a failure to preserve
evidence.1
IV. CONCLUSION
Issues of fact remain with regard to Mobro's responsibility for the failure of the
cargo-securing system aboard the Atlantic Trader, thus Mobro has not shown that
summary judgment is warranted on Portus's contribution claim. Mobro similarly has not
shown that Portus's failure to preserve evidence of the condition of the Atlantic Trader
after the collapse of the cargo containers provides a basis for relief. Accordingly, the
Court will deny the Motion. Because the Court resolves the Motion in Portus's favor,
Portus's Motion to Strike Statement of Material Facts Pursuant Local Rule 56.1 by
Mobro Marine, Inc. (Doc. 66) or in the Alternative Motion for Extension of Time [DE 67]
and Portus's Unopposed Motion for Leave to File Sur-Reply to Mobro's Reply to
Defendant's Response in Opposition to Mobro's Motion for Summary Judgment [DE 75]
will be denied as moot. It is accordingly
ORDERED AND ADJUDGED that Third-Party Defendant Mobro Marine Inc.'s
Motion for Summary Judgment on Portus Stevedoring LLC's Third-Party Complaint
[DE 63], Defendant Portus Stevedoring LLC's Motion to Strike Statement of Material
Facts Pursuant Local Rule 56.1 by Mobro Marine, Inc. (Doc. 66) or in the Alternative
Motion for Extension of Time [DE 67], and Portus Stevedoring LLC's Unopposed Motion
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The Court makes no determination at this time regarding the admissibility of testimony
at trial going to the circumstances of Portus's alleged failure to preserve physical
evidence. Accord Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.
Supp. 2d 1317, 1334 (S.D. Fla. 2010) (denying motion for spoliation sanctions but
reserving ruling on admissibility of evidence of circumstances surrounding failure to
preserve evidence).
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for Leave to File Sur-Reply to Mobro's Reply to Defendant's Response in Opposition to
Mobro's Motion for Summary Judgment [DE 75] are DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 28th day of July, 2015.
Copies provided to:
Counsel of record via CM/ECF
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