IN RE: Marquette Transportation Company Offshore, LLC.

Filing 114

MEMORANDUM OPINION AND ORDER Signed by Senior Judge Thomas B. Russell on 3/22/2019: Petitioner Marquette's motion forsummary judgment 84 is GRANTED. Marquette is exonerated from liability to Abel Cisneros for the claims discussed herein. The claim of Abel Cisneros as amended against Marquette Transportation Company Offshore, LLC is hereby summarily dismissed as a matter of law. Telephonic Final Pretrial Conference reset for 3/26/2019 at 11:00 AM in Teleconference before Senior Judge Thomas B. Russell. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-CV-106-TBR
IN RE THE MATTER OF THE COMPLAINT OF
MARQUETTE TRANSPORTATION COMPANY
OFFSHORE, LLC, AS OWNER AND OPERATOR
OF THE M/V MISS BECKY, FOR EXONERATION
FROM OR LIMITATION OF LIABILITY
MARQUETTE TRANSPORTATION
COMPANY OFFSHORE, LLC

PETITIONER

v.
ABEL CISNEROS

CLAIMANTS

AND
GREAT LAKES DREDGE &
DOCK COMPANY, LLC
MEMORANDUM OPINION AN ORDER
This matter is before the Court upon a motion by Petitioner Marquette Transportation
Company Offshore, LLC (“Marquette”) against Claimant Abel Cisneros (“Cisneros”). [DN 84].
Claimant Cisneros has responded, [DN 87], and Marquette has filed its reply [DN 91]. Fully
briefed, Marquette’s motion is ripe for review, and for the following reasons, it is GRANTED.
Background
Abel Cisneros was employed by Marquette at all times relevant to this case. [DN 84-1 at 4]. In
November 2015, Cisneros was set to begin work on the tug boat M/V MISS KATIE. 1 Id. During
his hitch on the MISS KATIE, Cisneros would be working on a Great Lakes dredging project near
Sandy Hook, New Jersey. [DN 87 at 1]. The MISS KATIE’s role on the dredging project was to

1

The M/V MISS KATIE has since been re-named the M/V MISS BECKY. [DN 84-1 at 2].

1

assist by moving scows2 after the Great Lakes’ dredges had filled them with dredge materials. [DN
84-1 at 5]. The dredges and scows used in the project were owned and operated by Great Lakes.
Id.
On November 3, 2015, Cisneros arrived at a dock in Atlantic Highland, New Jersey, where he
boarded a crewboat named the M/V NS-IV. [DN 84-1 at 4]. Great Lakes supplied the NS-IV to
transport employees out to the dredging project. [DN 84-2 at 2]. The NS-IV was scheduled to
transport Cisneros to the MISS KATIE. [DN 84-1 at 4]. The NS-IV was operated by Great Lakes
employees. Id. Cisneros claims that he injured his back while boarding the NS-IV (“The First
Incident”). [DN 87 at 3]. More specifically, Cisneros claims that he felt a “pop” in his back while
handing his bag to the captain of the NS-IV. Id. The captain of the NS-IV, a great lakes employee,
had instructed Cisneros to hand his bag over. [DN 87 at 1]. Although it is disputed, it appears that
Cisneros’s bag—which Cisneros packed—weighed between forty and sixty pounds. [DN 84-1 at
4; DN 87-1 at 6]. No other Marquette employees were present when Cisneros boarded the NS-IV.
[DN 84-1 at 4]. Cisneros did not report his alleged injury until the next day. Id. at 4-5.
Cisneros testified that after handing his bag to the captain of the NS-IV, he boarded the
crewboat using a ladder. [DN 87-2 at 47-48]. The captain of the MISS KATIE, Charles Cannon,
boarded the NS-IV earlier that day from the same dock.3 [DN 87 at 2]. Captain Cannon testified
that he boarded the NS-IV using stairs that Great Lakes provided for him. [DN 91 at 9].
The next day, after boarding the MISS KATIE, Cisneros boarded a Great Lakes scow to untie
it from the dredge. [DN 84-1 at 5]. Cisneros was the only Marquette employee on the scow. Id.

2

The parties use the terms “scow” and “barge” interchangeably.
It is not entirely clear whether Captain Cannon boarded the NS-IV earlier the same day or on the prior day. But it
is immaterial whether Cannon boarded the NS-IV on the same day, or the day before. The Court will assume
without deciding that Captain Cannon boarded the NS-IV on the same day as Cisneros.

3

2

Cisneros claims that he felt a bump or jerk while working on the scow that caused him to injure
his back (“The Second Incident”). [DN 84-1 at 5]. More specifically, Cisneros claims that either
the MISS KATIE or the Great Lakes dredge struck the scow thereby causing the bump or jerk. Id.
The only evidence of the bump on the record is Cisneros’s testimony. Id. Cisneros testified that he
does not know which vessel struck the scow. Id.
After he finished untying the scow from the dredge, Cisneros returned to the MISS KATIE
and—for the first time—reported to Captain Cannon that he had felt a pop in his back the day
before when handing his bag to the captain of the NS-IV. [DN 84-4 at 34-37]. Cisneros told
Captain Cannon that he had woken up on the day of the Second Incident with significant back pain
but decided to try to work through it. Id. Cisneros reported to Captain Cannon that as the day went
on his pack pain continued and therefore he decided to stop working. Id. Cisneros did not report a
bump to Captain Cannon. Id. Cisneros was then transferred off the MISS KATIE. Id.
Cisneros filed suit in March 2017 against Marquette and Great Lakes in Harris County, Texas.
[DN 84-1 at 6]. Marquette then filed a complaint for Exoneration from or Limitation of Liability
on March 30, 2017 in the United States District Court for the Eastern District of Louisiana, and
the litigation in Harris County, Texas was stayed. Id. Cisneros filed an Answer and Claim in the
limitation action [DN 27, as amended by DN 62-2], alleging both that Marquette was negligent
and that it failed to provide a seaworthy vessel. On consent motion, the limitation action was
transferred to the United States District Court for the Southern District of Texas by Order dated
April 17, 2017. [DN 12]. Finally, the matter was transferred to the Western District of Kentucky
by Order dated July 17, 2017. [DN 34]. Cisneros claims that it was the unseaworthiness of the
MISS KATIE and/or the negligence of Marquette that caused him—at least in part—to injure his
back.
3

Legal Standard
Summary judgment is appropriate when the record, viewed in the light most favorable to the
nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant
is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material
fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986). The Court “may not make credibility determinations nor weigh the evidence
when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746
F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 556 (6th Cir. 2001);
Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.’” Back v. Nestle USA, Inc., 694 F. 3d 571, 575
(6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).
As the party moving for summary judgment, Marquette must shoulder the burden of showing
the absence of a genuine dispute of material fact, as to at least one essential element of each of
Cisneros’s claims. Fed. R. Civ. P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If Marquette satisfies its
burden of production, Cisneros “must—by deposition, answers to interrogatories, affidavits, and
admissions on file—show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at
726 (citing Celotex Corp., 477 U.S. at 324).

4

Discussion
I.

Unseaworthiness.
Often compared to strict liability or no-fault claims, seaworthiness stems from a

shipowner’s “absolute duty to maintain a seaworthy ship, the breach of which imposes liability
without fault.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir. 2001)
(citing Brown v. Dravo Corp., 258 F. 2d 704, 706 (3d Cir. 1958)). To prevail, a plaintiff must show
that the vessel upon which he was injured was unseaworthy, and that the vessel’s unseaworthy
condition was the proximate cause of his injuries. Churchwell v. Bluegrass Marine, Inc., 444 F.3d
898, 904 (6th Cir. 2006). “A vessel is unseaworthy if the vessel and its appurtenances are not
‘reasonably fit for their intended use.’” Id. (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539,
550, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960)). An unseaworthy condition “proximately causes an
injury if it played a substantial part in bringing about or actually causing the injury and the injury
was either a direct result of a reasonably probable consequence of unseaworthiness.” Id. (internal
quotation marks and citations omitted). However, a vessel is not required to be “free from all
possibility of mishap, for the seaworthiness of a ship is a relative concept, dependent in each
instance upon circumstances.” Perkins, 246 F.3d at 602. “Generally, unseaworthiness is a question
of fact for the jury and should not be resolved by the district court as a matter of law.” Churchwell,
444 F.3d at 904.
a. First Incident.
Ordinarily, a defendant is only liable under a theory of unseaworthiness if they are the
owner, operator, or owner pro hac vice of the vessel upon which the plaintiff’s injury occurred.
Guidry v. Continental Oil Co., 640 F.2d 523, 530 (5th Cir. 1981) (citing Stokes v. B.T. Oilfield
Services, Inc., 617 F.2d 1205, 1207 (5th Cir. 1980)); Householder v. American Commercial Barge

5

Lines, 1999 A.M.C. 982, 985 (W.D. Ky 1998) (“Therefore, it is clear that an unseaworthiness
claim can only be brought against an owner of a vessel.”).
Marquette has informed the Court that there is no genuine dispute of material fact regarding
whether it owned or operated the NS-IV. In fact, Marquette informed the Court that no Marquette
employees other than Cisneros were present when the first incident allegedly occurred. [DN 842]. Marquette identifies Cisneros’s Amended Claim [DN 62-2 at 5] as evidence of the absence of
genuine dispute. In his Amended Complaint, Cisneros alleges that “Mr. Cisneros was taken to his
vessel by a Great Lakes vessel. As part of this process, the captain of the Great Lakes vessel
ordered that Mr. Cisneros lift his luggage onto the Great Lakes vessel. This lift injured Plaintiff’s
back. . . .” Id.
Because Marquette has cited to specific evidence on the record indicating that there is an
absence of dispute of material fact regarding Cisneros’s unseaworthiness claim, Cisneros “may
not ‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’
but must make an affirmative showing with proper evidence in order to defeat the motion.”
Alexander v. Caresource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Cisneros has not offered evidence—such as affidavits,
depositions, or answers to interrogatories—to counter Marquette’s well supported motion for
summary judgment on this issue. Therefore, Marquette is entitled to summary judgment on this
issue, and is exonerated from liability to Cisneros for the First Incident under a theory of
unseaworthiness.
Cisneros argues that the unseaworthiness of the Miss Katie was the proximate cause of his
injuries because “Mr. Cisneros was instructed to board a vessel that did not have a gangway, and
therefore required Mr. Cisneros to violate Marquette’s manual lifting policy and the gangway
6

policy.” [DN 87 at 11]. Furthermore, Cisneros argues that Miss Katie’s captain (Captain Cannon)
was aware that there was no gangway to board the NS-IV and “[h]ad Mr. Cannon been properly
trained, he would have easily noted the safety violation and reported or fixed it.” Id. In other words,
Cisneros alleges that Miss Katie’s crew—specifically Captain Cannon—was not reasonably fit for
its intended purpose because Captain Cannon did not ensure that a gangway was available for
Cisneros to board the NS-IV.
Captain Cannon did have personal knowledge of the workplace conditions at the dock
because he had boarded the NS-IV earlier that day and admits in his deposition that a gangway
was not provided.4 [DN 87 at 2]. However, Cisneros has failed to identify a genuine dispute of
fact for two reasons. First, it is undisputed from the record that it was the captain of the NS-IV
who instructed Cisneros on how to board the vessel and that no other Marquette employees were
present when Cisneros boarded the NS-IV. [DN 84-2].
Second, although it is true that Captain Cannon was aware of the conditions of the dock,
Cannon explains in his deposition that stairs were available as a safe alternative for boarding the
vessel. [DN 91-1 at 9-10]. Instead of offering evidence to dispute Captain Cannon’s explanation
that a safe means of boarding the NS-IV was available, Cisneros completely ignores the existence
of the stairs in his response. Cisneros does not mention the stairs in his response, much less offer
an explanation supported by evidence why they are not a safe alternative to a gangway. Rather,
Cisneros relies on Marquette’s policy requiring a gangway as evidence that the condition of
boarding the NS-IV was unsafe. The relevant policy states:

4

Although Cannon testified that there was no “gangway per se” on the dock, he also testified that he considered the
stairs that were available to be a gangway. [DN 87-3 at 7].

7

4.1
Access to vessels afloat. The company shall not permit employees
to board or leave any vessel, except a barge or river towboat, until the following
requirements have been met:
4.1.1 Whenever practicable, a gangway of not less than 20 inches walking
surface of adequate strength, maintained in safe repair and safely secured shall be
used. If a gangway is not practicable, a substantial straight ladder, extending at least
36 inches above the upper landing surface and adequately secured against shifting
or slipping shall be provided. When conditions are such that neither a gangway or
a straight ladder can be used, a Jacob’s ladder meeting the requirement of
paragraphs (d)(1) and (2) of this section may be used.
[DN 91 at 8].

Cisneros’s reliance on the text of this policy is insufficient to survive summary judgment.
In his deposition, Captain Cannon explained that the stairs provided for boarding the NS-IV were
a safe and practical alternative to a gangway due to the dimensions of the dock. [DN 87-3 at 13].
Cisneros does not offer evidence to counter Cannon’s characterization of the stairs. The fact of the
stairs’ existence is absent from Cisneros’s response.5 Cisneros’s unseaworthiness theory of
liability requires Marquette to be on notice of the alleged unsafe conditions of the dock used to
board the NS-IV. But Cisneros does not argue in his response that Cannon was incorrect when he
explained that the available stairs were a safe alternative for boarding the NS-IV.
Cisneros attached his own Declaration [DN 87-6] to his response. In this Declaration,
Cisneros says that “When I was on the dock on November 3, 2015, there was no set up steps
present used to board the vessel.”6 Id. It is immaterial, however, to Cisneros’s claim whether the
stairs were present during his boarding for two reasons. First, because Marquette does not own or

5

In an exhibit attached to his response, Cisneros declares that there were not stairs available to him when he boarded
the NS-IV. However, as the Court explains below, this does not create a genuine dispute of fact. Furthermore,
Cisneros does not reference this part of the exhibit in his response.
6
Cisneros does not cite to this portion of the record in his response to argue that the stairs were unavailable when he
boarded the NS-IV. Cisneros does not mention the stairs in his response. “The nonmoving party has the burden of
directing the Court’s attention to specific portions of the record upon which it seeks to rely to create a genuine issue
of material fact.” Rutherford v. Lake Michigan Contractors, Inc., 28 Fed.Appx. 395, 399-400 (6th Cir. 2002).

8

operate the NS-IV or the dock where Cisneros boarded the crew boat, Marquette may only be
liable if the crew of the MISS KATIE had actual or constructive notice of the alleged unsafe
boarding conditions. Second, it is undisputed from the record that Marquette had no such notice
because Captain Cannon testified that a set of stairs was provided to him, that—although there was
not a “gangway per se”—he considered the stairs to be a gangway, that the stairs were a safe
alternative to a gangway, and because Cisneros does not refute any of Cannon’s testimony about
the steps in his response. Further, Cisneros explained in his deposition that the captain of the NSIV provided him with a ladder to board the vessel. [DN 87-2 at 47-48]. Marquette’s boarding
policy permits the use of ladders. Therefore, it appears from the record that Cisneros’s method of
boarding the NS-IV was compliant with Marquette’s safety policy.
Cisneros’s Declaration [DN 87-6]—filed after Marquette’s motion for summary
judgment—directly contradicts his deposition testimony and therefore cannot create a genuine
dispute of material fact. A “party may not create a factual issue by filing an affidavit, after a motion
for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid
v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). “A directly contradictory affidavit
should be stricken unless the party opposing the summary judgment provides a persuasive
justification for the contradiction.” Id. And “[a]lthough the nonmoving party is entitled to all
reasonable inferences when evaluating a summary judgment motion, when a plaintiff’s claims are
only supported by his ‘own contradictory and incomplete testimony . . . no reasonable person
would undertake the suspension of disbelief necessary to credit the allegations made in his
complaint.” Bush c. Compass Group USA, Inc., 683 Fed.Appx. 440, 448-449 (6th Cir. 2017)
(quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005)). During the deposition of
Cisneros, the following exchange took place:
9

Q:

All right. And how did you get into the crew boat
--

A:

The ladder.

Q:

-- with that gap?

A:

The ladder.

Q:

Okay. Where was the ladder? Describe it for me.

A:

On the side of the – of the stern.

Q:

Is it –

A:

On the corner.

Q:

Is it a fixed ladder on the crew boat that you climb up?

A:

He – he put it there. The captain of the crew boat put it there.

Q:

Right.

A:

It just hooks on, has two hooks on it, and he just drops it down and hooks it there.

Q:

All right. And then you climb up the boat?

A:

Yes, Ma’am.

[DN 87-2 at 47-48]. In his Declaration, however, Cisneros says “When I was asked to board the
NS4 on November 3, 2015, there was no gangway, straight ladder, or other devise present to assist
me in boarding the vessel.” The Declaration is directly contradictory to Cisneros’s earlier sworn
testimony. Therefore, this Court can “properly decline to consider the contradictory statements in
the [Declaration].” Bush, 683 Fed.Appx. at 448.
Cisneros’s claim is that the Miss Katie was unseaworthy because her crew was not
sufficiently trained to report or correct a boarding procedure that was not compliant with
Marquette’s safety policy. Marquette’s safety policy permits the use of a ladder to board vessels.
Cisneros’s sworn testimony is that he boarded the NS-IV using a ladder provided by the crew
boat’s captain. Cisneros does not argue that Marquette’s safety policy is insufficient, and in fact
his argument is predicated on his belief that the policy was not adhered to. More importantly, there

10

is no genuine dispute of fact regarding whether Captain Cannon—or any other member of MISS
KATIE’s crew—had notice of any unsafe conditions because it is undisputed that the stairs were
available when Cannon boarded the NS-IV.
Marquette did not own the NS-IV or the dock where Cisneros’s injury allegedly occurred.
Furthermore, Marquette did not have actual or constructive notice of an unsafe boarding procedure
for two reasons. First, Captain Cannon, who boarded the NS-IV earlier that day, found the
conditions to be safe and in compliance with Marquette safety policies. Second, Cisneros’s
testimony is that he boarded the NS-IV using a ladder, a boarding method permitted by Marquette’s
safety policy. And Cisneros does not dispute whether Marquette’s boarding policy, if followed, is
a safe boarding policy. There is no reason for this Court to believe that any inspection by an agent
of Marquette would result in an evaluation of the boarding conditions that is different from that of
Captain Cannon. Although unseaworthiness generally is a question of fact for the jury and should
not be resolved by the district court as a matter of law, in this case no reasonable jury could find
Marquette liable under a theory of unseaworthiness for the injuries that Cisneros allegedly suffered
while boarding the NS-IV. See Churchwell, 444 F.3d at 904. Therefore, Marquette is entitled to
summary judgment on this issue, and is exonerated from liability to Cisneros for the First Incident
under a theory of unseaworthiness.
b. Second Incident.
Cisneros argues that the MISS KATIE was unseaworthy because her crew failed to warn
him of the bump or jerk that allegedly occurred during the Second Incident. “Unseaworthiness
extends not only to the vessel but to the crew.” Waldron v. Moore—McCormack Lines, Inc., 386
U.S. 724, 727, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967). In other words, Cisneros claims that the
MISS KATIE was not reasonably fit for her intended use due to defects in her crew and that her
11

unseaworthiness was the proximate cause of Cisneros’s alleged injuries. See Churchwell, 444 F.3d
at 904.
A party moving for summary judgment may satisfy its initial burden either by presenting
affirmative evidence that negates an element of the non-moving party’s claim or by identifying
“an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. With
respect to Cisneros’s claim arising out of the Second Incident, Marquette identifies that there is an
absence of evidence regarding whether the MISS KATIE was responsible for causing the alleged
bump or jerk and whether the bump or jerk occurred in a manner which would allow the crew of
the MISS KATIE time to give a “watch the bump” warning. Because Cisneros has failed to come
forward with specific facts demonstrating that there is a genuine dispute for trial on this issue,
Marquette is entitled to summary judgment and is exonerated from liability.
In response to Marquette’s assertion that he has failed to demonstrate that it was the MISS
KATIE who caused the bump, Cisneros advances several arguments. First, Cisneros argues—
without citing to specific facts on the record—that the dredge was “spudded down” when the bump
occurred.7 [DN 87 at 9]. Cisneros claims that if the dredge was “spudded down” and was probably
tied to the scow, then it is unlikely that the dredge caused the bump or jerk. Therefore, Cisneros
argues, it is more likely that the MISS KATIE cause the bump. And Cisneros claims that if it was
the MISS KATIE that struck the barge, then “whomever was captaining the Miss Katie would
have knowledge of and an opportunity to warn Mr. Cisneros of the ‘bump’ before it occurred
pursuant to Marquette’s safety policy.” Id.

7

This means that a dredge is secured or tied-down to the river-bed or ocean floor.

12

The argument that the dredge was “spudded down” requires the Court to speculate which
vessel made contact with the scow and whether the contact was made in a manner that allowed the
crew of the MISS KATIE an opportunity to warn Cisneros. Cisneros has not cited evidence from
which the Court can draw the inference that the MISS KATIE is responsible for the bump or that
her crew had time to warn Cisneros. Without this evidence, the Court may only speculate on the
circumstances of the Second Incident. While it is true that the Court must draw all reasonable
inferences from the facts in favor of Cisneros, it would be unreasonable to infer from the evidence
on record that the MISS KATIE caused the bump or that the bump occurred in a manner allowing
time for a warning. The evidence cited by Cisneros is not probative enough to justify such
inferences.8
Cisneros fails to cite specific evidence on the record to support his claim that the dredge
was spudded down. [See DN 87 at 9]. “The nonmoving party has the burden of directing the
Court’s attention to specific portions of the record upon which it seeks to rely to create a genuine
issue of material fact.” Rutherford v. Lake Michigan Contractors, Inc., 28 Fed.Appx. 395, 399400 (6th Cir. 2002) (citing In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)). Cisneros has not
satisfied his burden of directing the Court to evidence on the record that the dredge was spudded
down when the bump occurred and therefore his argument does not create a genuine dispute of
fact.
Cisneros’s reliance on the opinion of Bob Borison’s expert report also fails to establish a
genuine dispute of fact. Cisneros cites Borison’s expert report for the proposition that the MISS

8

It is also noteworthy that Cisneros does not mention a bump or jerk in the injury/illness report he filed with
Marquette following the Second Incident. [DN 87-5].

13

KATIE’s crew had a duty to warn Cisneros of the bump but failed to do so. [DN 87 at 9]. Borison’s
opinion regarding the bump is as follows:
In my opinion, based on my education, training, and experience that either, the
captain of the M/V MISS KATIE, or one of the dredge operators, should have
warned Mr. Abel Cisneros of the impeding bump between the two vessels: the scow
and the M/V MISS KATIE or scow and the dredge. The unexpected bump that Mr.
Abel Cisneros experienced while working, stooped down, further exacerbated his
MSD.
[DN 87-7 at 6 (emphasis in original)]. Assuming without deciding that Borison’s expert report is
admissible,9 it does not create a genuine dispute of material fact for two reasons. First, Borison’s
opinion is that either the captain of the MISS KATIE or one of the dredge operators should have
warned Cisneros. Borison’s opinion is only evidence that Cisneros should have been warned of
the bump; It does not serve as evidence that the responsibility for failing to warn Cisneros
ultimately fell on the crew of the MISS KATIE. Second, Borison formulated his opinion without
knowledge of which vessel made contact with the scow, where the point of contact was, or how
the contact occurred. In fact, Borison testified that he does not know where any point of contact
occurred or whether the dredge or MISS KATIE hit the scow. [DN84-8]. Borison’s opinion is
based on the deposition testimony of Cisneros, Wendell Neal, and Captain Cannon. Cisneros
testified that the scow moved, but that “I don’t know if Miss Katie moved a little bit from the scow,
and when it tried to position back into place, it hit it, or the barge – I mean, the dredge moved it,
hit it, because they’re a little – they’re probably a couple – about four or five feet separate from
the dredge.” [DN 87-7 at 15]. Cisneros, therefore, testified that either vessel could have caused the
bump. Captain Cannon testified that “To have a bump occur that would cause somebody to lose
their footing. I would have to run into that scow at a pretty good click.” [DN 87-7 at 16]. Cannon’s

9

Marquette has filed a motion in limine challenging the admissibility of Borison’s opinion on this issue.

14

testimony—viewed in light of the evidence that the MISS KATIE was moored to the scow—
suggests that it is unlikely the MISS KATIE could have generated enough force to cause the bump.
Neal testified that, although he did not feel the bump, “everyone that’s involved in an operation
that bumps are a potential, you know, you supposed to – you know, try to look out for a – if you
see – everybody that sees a bump should try to notify – holler and look for the – watch for the
bump.” [DN 87-7 at 17]. While Neal’s testimony supports Cisneros’s claim that Marquette has a
policy that encourages—or arguably requires—employees to warn others of bumps, it does not
provide any clarity to the issue of whether the bump in this case was caused by the MISS KATIE
or occurred in a manner that her crew could have warned Cisneros.
Without further evidence regarding how the alleged bump occurred, Borison’s opinion on
who should have warned Cisneros does not create a genuine dispute of material fact. Even if
Borison’s expert evidence is admissible—and the Court is assuming without deciding that it is—
the Court may still grant summary judgment where that evidence amounts to no more than a
scintilla. See Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011) (citing In re Paoli
R.R. Yard PCB Litigation, 35 F.3d 717, 750 n. 21 (3d Cir. 1994)). “Although juries are generally
free to believe expert witnesses, a plaintiff cannot survive summary judgment with an expert’s
bare opinion on the ultimate issue.” Id. at 363. “[A]n expert opinion must ‘set forth facts’ and, in
doing so, outline a line of reasoning arising from a logical foundation.” Brainard v. American
Skandia Life Assur. Corp., 432 F.3d 655, 663-664 (6th Cir. 2005) (quoting Am. Key Corp. v. Cole
Nat’l Corp., 762 F.2d 1569, 1579-80 (11th Cir. 1985)). “An expert who supplies nothing but a
bottom line supplies nothing of value to the judicial process.” Mid-State Fertilizer Co. v. Exch.
Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989) (citing Richardson v. Richardson-Merrell, Inc.,
857 F.2d 823, 829-32 (D.C. Cir. 1988)). Borison’s opinion does not outline a line of reasoning
15

arising from a logical foundation regarding who had a duty to warn Cisneros of the bump. Instead,
Borison relies on speculation and inconclusive testimony. For these reasons, Borison’s expert
report does not create a genuine dispute of fact.
Not only has Cisneros failed to cite to evidence on the record to support his theory that the
MISS KATIE was responsible for the bump, but the following facts weigh against drawing an
inference that the MISS KATIE was responsible for, or could have warned of, the bump that
allegedly injured Cisneros’s back. First, Cisneros testified during his deposition that the MISS
KATIE was moored to the barge and stayed in that position while he was working to untie the line
on the scow. [DN 87-2 at 33]. This evidence undermines Cisneros’s theory that, because the dredge
was tied to the scow, it is more likely that the MISS KATIE is responsible for the bump. Second,
Wendell Neal10 testified that he has never—in his nearly twenty-year career working offshore—
felt a bump while he was on a scow. In his deposition, Neal explains that he has never felt a bump
on a scow because the scows are so big and heavy and “when it’s loaded or partially loaded, you’re
looking at anywhere from 5- to 7,000 cubic yards of sand. That’s a lot of weight to shake.” [DN
87-1 at 14]. On the other hand, Neal testified that he has experienced bumps that caused him to be
thrown across the room while on tug boats, which are significantly smaller and lighter than scows.
Id. Neal also testified that he was sleeping on the MISS KATIE when the bump allegedly occurred
but did not feel a bump. Id. at 13-14. Neal’s testimony is important because the fact that Neal has
never experienced a bump on a scow and that he did not feel the bump Cisneros is complaining of
even though Neal was sleeping on the tug boat when it allegedly occurred casts doubt on Cisneros’s
theory that the MISS KATIE is most likely responsible for the bump.

10

Neal was a deckhand on the Miss Katie during the time of Cisneros’s alleged injury.

16

For Cisneros’s claim to survive summary judgment, there must be a genuine dispute of fact
regarding whether the MISS KATIE caused the bump or that the bump occurred in a manner
allowing her crew to warn Cisneros. Marquette identified an absence of evidence as to each of
these facts. Cisneros fails to cite to evidence on the record sufficient to create a genuine dispute of
fact, but instead asks the Court to speculate as to which vessel likely caused the bump.
Furthermore, there is evidence on the record that weighs against drawing the inference that the
MISS KATIE caused the bump. For the foregoing reasons, Marquette is entitled to summary
judgment and is exonerated from liability arising out of the Second Incident.
II. Jones Act Negligence.
The Jones Act embodies a “policy of providing an expansive remedy for seamen who are
injured while acting in the course of their employment.” Taylor v. TECO Barge Line, Inc., 517
F.3d 372, 382-83 (6th Cir. 2008) (quoting Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th
Cir. 2001)) (internal quotation marks omitted). In pertinent part, it provides a cause of action in
negligence for any seaman injured in the course of his employment. See 46 U.S.C. § 30104; see
also Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S. Ct. 2172, 132 L. Ed. 2d 314 (1995). “Proof
of negligence (duty and breach) is essential to recovery under the Jones Act, and an employer’s
conduct in a Jones Act case is reviewed under the ordinary prudence standard normally applicable
in negligence cases.” Rannals, 265 F.3d at 447 (quoting Perkins v. Am. Elec. Power Fuel Supply,
Inc., 246 F.3d 593, 598 (6th Cir. 2001)) (internal quotation marks omitted). If the seaman is able
to establish that the employer acted negligently, then he need only show that the “employer’s
negligence ‘played any part, even the slightest, in producing the injury or death for which damages
are sought.’” Id. at 447-48 (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S. Ct. 443,
1 L. Ed. 2d 493 (1957)). “In order to establish negligence, ‘a plaintiff must show that her employer

17

failed to provide a safe workplace by neglecting to cure or eliminate obvious dangers of which the
employer or its agents knew or should have known and that such failure caused the plaintiff’s
injuries and damages.” Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 383 (6th Cir. 2008)
(quoting Rannals v. Diamond Jo Casino, 265 F.3d 442, 449 (6th Cir. 2001)). It is a fundamental
principle that a Jones Act employer “must have notice and the opportunity to correct an unsafe
condition before liability will attach.” Perkins, 246 F.3d 593, 599 (citing Havens v. F/T Polar Mist,
996 F.2d 215, 218 (9th Cir. 2001)).
a. First Incident.
The analysis under this section is similar to the analysis of Cisneros’s unseaworthiness
claim discussed above because the following facts remain true: (1) Cisneros’s sworn testimony is
that he boarded the NS-IV using a ladder; (2) Marquette safety policy permits the use of a ladder
to board vessels; and (3) Captain Cannon testified that a set of stairs—which he determined to be
a safe boarding method—was available to him when he boarded.
The dispositive issue in Cisneros’s Jones Act claim arising out of the First Incident is
whether there were “obvious dangers” surrounding Cisneros’s boarding of the NS-IV of which
Marquette had “notice and the opportunity to correct.” Taylor, 517 F.3d at 383; Perkins, 246 F.3d
at 599. Marquette has informed the Court that there is no genuine dispute of material fact regarding
whether Marquette had notice of any alleged unsafe condition on the dock or NS-IV or the
opportunity to correct any such condition. Marquette cites to the record that (1) no Marquette
employees were present at the time of the First Incident [DN 84-2]; and (2) Captain Cannon, who
boarded the NS-IV earlier that day, believed sufficient means were provided at the dock to board
the NS-IV. [Cannon Deposition; DN 84-4 at 3-4].

18

Because Marquette has satisfied its burden of production, Cisneros “must—by deposition,
answers to interrogatories, affidavits, and admissions on file—show specific facts that reveal a
genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324). Cisneros
cites to several sources of evidence, none of which create a genuine dispute of material fact.
First, Cisneros cites to an expert opinion of Robert Borison. [DN 87-7]. Borison opines
that “[Great Lakes] should have provided a gangway, or use of the available stairway, to provide
Mr. Abel Cisneros a safe method to carry his heavy offshore bag onto their vessel.” Id. at 6. This
opinion does not create a dispute of fact. First, Borison does not say that an “obvious danger” was
present. His opinion is that Cisneros should have been provided a “gangway or use of the available
stairway” to board the NS-IV. Borison agrees that a stairway was available and that the use of the
stairway would have been an acceptable means of boarding the NS-IV. Therefore, Captain
Cannon’s testimony that he boarded the NS-IV using the stairs and found the conditions to be safe
is actually bolstered—not undermined—by Borison’s opinion. Far from evidence of an “obvious
danger,” Borison’s opinion serves as evidence that any inspection conducted by Marquette—
including Captain Cannon’s observations—would find that safe boarding conditions were present
because any inspector would find the “available stairway” which Borison recommends as a safe
means of boarding the NS-IV. Id.
In formulating his opinion, Borison relied on several regulations and industry standards.
“Compliance with industry standard. . . is relevant, if not conclusive, evidence” that a defendant
has not acted negligently. Rutherford v. Lake Michigan Contractors, Inc., 28 Fed.Appx. 395 (6th
Cir. 2002) (citing Cherokee Ins. Co. ex rel Weed v. E.W. Blanch Co., 66 F.3d 117, 123 (6th Cir.
1995)). The language of Marquette’s Safety Plan (“Section 4.1.1”) is nearly identical to Part 1918,
Subpart C of the Occupational Safety and Health Administration’s (“OSHA”) Safety and Health
19

Regulations for Longshoring. [DN 87-7 at 11]. In its regulation, OSHA defines “Gangway” as
“any ramp-like or stair-like means of access provided to enable personnel to board or leave a
vessel, including accommodation ladders, gangplanks and brows.” Id. (emphasis added). Under
this definition, the mobile stairs that Captain Cannon used to board the NS-IV and the ladder that
Cisneros testified he used would be compliant with Marquette’s safety plan. Furthermore, the U.S.
Army Corps of Engineers industry standard provides that “[a] stairway, ladder, gangway,
personnel hoist or other safe means of access shall be provided at personnel points of access with
breaks of 19 in (48.2 cm) or more in elevation.” Id. at 9 (emphasis added). Therefore, the U.S.
Army Corps of Engineers industry standards specifically allows for the means that were used both
by Captain Cannon and by Cisneros to board the NS-IV. These regulations and industry standards
are evidence that the ladder Cisneros testified he used to board the NS-IV and the stairs that
Cannon used were reasonably safe means of boarding the NS-IV. Because Cisneros has not cited
evidence on the record that he did not use a ladder or that Cannon did not use steps to board the
NS-IV, and because Cisneros does not argue that these industry standards are incorrect, Marquette
is entitled to summary judgment.
Second, Cisneros cites to Marquette’s Health and Safety Plan’s section on “Access to
Vessels” (“Section 4.1.1”). [DN 87-4]. Cisneros argues that the Safety Plan was not complied with
because he argues that there was no gangway to board the NS-IV, and that Marquette knew or
should have known that there was no gangway. In relevant part, the Safety Plan says: “Marquette
does not permit employees to board any vessel until the following requirements are met . . .
Whenever practicable, a gangway . . . shall be used. . . . If a gangway is not practicable, a substantial
straight ladder” or a “Jacob’s ladder . . . may be used.” [DN 91 at 8]. Cisneros testified that he
boarded the NS-IV using a ladder. Marquette cites to Captain Cannon’s testimony where he says
20

“[s]o a gangway being 10-foot long would have extended out, blocked the passageway of other
people going down the dock. It would have been impractical because it would probably hung over
the dock or had to extend way up on the boat.” [DN 91 at 9]. Marquette has identified evidence on
the record, therefore, that it may have been impractical to use a gangway to board the NS-IV.
Cisneros does not argue in his response that Captain Cannon’s characterization of the dock is
incorrect or that the available stairs were not a safe alternative. In fact, Cisneros fails to mention
the stairs in his response. Furthermore, Cisneros does not address his own testimony that he
boarded the dock using a ladder.
It also appears possible that the mobile stairs may qualify as a “gangway” under
Marquette’s Safety Plan. As discussed above, the OSHA regulation governing the boarding of
vessels is nearly identical to Marquette’s Safety Plan Section 4.1.1 and OSHA defines “gangway”
to include “stair-like means of access” and “accommodation ladders.” [DN 87-7 at 11]. Under this
definition, the stairs that Captain Cannon used to board the NS-IV and the ladder that Cisneros
testified he used would be in direct compliance with Marquette’s safety plan. Furthermore, Cannon
testified that although the steps were not “a gangway per say,” he “would consider the steps a
gangway.” [DN 87-3 at 7]. In any event, the Safety Plan is not evidence of an “obvious danger”
because Captain Cannon boarded the crew boat using the available stairs and because Cisneros has
failed to cite evidence on the record that the stairs are an unsafe method of boarding the NS-IV.
“The nonmoving party has the burden of directing the Court’s attention to specific portions of the
record upon which it seeks to rely to create a genuine issue of material fact.” Rutherford, at 399400 (citing In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)). In fact, Cisneros’s expert witness
opines that the available stairs would have been an acceptable means of boarding the NS-IV.

21

[Borison Report, 87-7 at 6]. Therefore, there is no genuine dispute of fact regarding whether
Marquette had notice of any unsafe boarding condition.
Third, Cisneros cites to evidence on the record that Marquette’s Safety Director is
ultimately responsible for ensuring a safe workplace. Marquette’s Health and Safety Plan provides
that “The Safety Director is responsible for ensuring these procedures are implemented on the
vessels.” [DN 87-4 at 1]. Cisneros also cites to the following exchange during Captain Cannon’s
deposition:
Q:
And so my question to you is on that work site, who for Marquette was making
sure that the safety policy was being followed, and that a gangway was available for the
Marquette employees to get from the dock on to the crewboat?
A:

I don’t really know. I mean, because I would consider the steps a gangway.

Q:
We can both agree that it was no secret to Marquette that Marquette employees
were going to be using the crewboat, right?
A:

Oh, absolutely.

Q:

And its certainly no secret that safety policy requires the gangway, right?

A:

Yes.

Q:
And so would you agree with me that if Marquette is going to be following safety
policy, that there should be someone from Marquette that kind of traces how the employees get
from shoreside to the tug in a safe manner?
MR. CRANE:

Objection to form.

THE WITNESS:

Yes.

By MR. LEAVITT:
Q:

And so my question to you is whose responsibility was that? Who did that?

A:

I’m not sure. I’m not sure.

Q:

You’re with me that it should have been done; you just can’t tell me if anybody

did it?
A:
I would, I would, well, I being a captain, had I seen something that – I mean, I
assume that it was being done already because I had been out on that job site on the crewboat a
couple of times already, and I had no problems. So if there would have been something out of
place, or that I felt was dangerous, I would have pointed it out.
22

Q:

Understood.

A:

But I can’t answer you as to whose responsibility it was. I just don’t know.

Q:

But you agree with me it should have been somebody’s responsibility, right?

A:

Yes.

Q:

And the Captain is responsible for what’s going on on his boat, right?

A:

Right.

Q:

And some of this is logistical stuff that’s occurring off the boat?

A:

Right.

Q:

So that would fall more on shoreside management?

A:

Exactly.

Q:
And so your expectation would be, you know, for a logistical item like this, how
people are actually getting to your boat, you would expect someone from Marquette shoreside
management to do the logistics of that, and make sure these men had a safe manner of ingress
and egress to actually get to your vessel, right?
A:

Uh-uh.

Q:

Right?

A:

Yes. Yes.

Q:
And certainly, you would want somebody from Marquette to make sure that there
was not –it was not going to necessarily involve Marquette employees making what was, what
would be a necessarily necessary unsafe lift, right?
MR. CRANE:

Objection to form.

THE WITNESS:

Yes.

By MR. LEAVITT:
Q:

That question makes sense to you?

A:
Usually with Great Lakes, we have a pre-job meeting orientation, and all of these
things are discussed though.
[DN 87-3 at 7-8]. Cisneros cites the testimony as evidence that Cannon “agreed that someone from
Marquette should have made sure the gangway policy was being implemented for Marquette
employees, such as Mr. Cisneros, to board the Great Lakes vessel in question.” [DN 87 at 7]. This
deposition testimony does not create a genuine dispute of fact for two reasons. First, Cannon
testifies that he believed the gangway policy had been properly implemented because he
23

considered the steps to be a gangway. Second, even if the Safety Director had visited the dock on
the day Cisneros allegedly was injured, there is no evidence on the record that she would have
found unsafe conditions or an “obvious danger” to be present. Instead, the Safety Director would
have found the steps—which Captain Cannon considered to be a gangway and which Cisneros’s
expert opined would have been an acceptable means of entry to the NS-IV—and the ladder—
which is permitted by Marquette’s Health and Safety Plan and various industry standards and
regulations—that Cisneros testified he used to board the NS-IV. Based on the evidence before the
Court, Marquette’s Safety Director would not have discovered an “obvious danger” if she has
inspected the dock on November 3, 2015.
Finally, Cisneros cites to deposition testimony of Captain Cannon and Wendell Neal to
argue that Cisneros was forced to violate Marquette’s lifting policy because Marquette’s boarding
policy allegedly was not followed. [DN 87 at 7]. To create a genuine dispute of fact, this deposition
testimony must demonstrate that an “obvious danger” was present on the dock or NS-IV that
Marquette had notice—actual or constructive—of and an opportunity to correct. Taylor, 517 F.3d
at 383; Perkins, 246 F.3d at 599. Neal and Cannon testified that it is proper to lift with the legs and
to not twist, bend, or reach once an object is lifted. [DN 87 at 2]. Neal also testified that he typically
uses a “handover” to place his bag into crew boats before he boards them. [DN 87-1 at 8]. Neal
testified that there may be possible circumstances where a bag handover may be an improper lifting
technique, although he does not have personal knowledge of the conditions of Cisneros’s
handover. Id. at 9.
Cisneros argues that, “had [Marquette’s boarding] policy been implemented, Mr. Cisneros
would not have had to perform the lift in question. Mr. Cisneros would have either handed his bag
across the gangway or walked across the gangway with his bag.” [DN 87 at 6]. Cisneros argues
24

that (1) a gangway would have allowed him to carry his bag across without completing a handover,
and (2) that the purpose of the boarding policy is to create “a situation in which Marquette
employees can simply walk on or off vessels, and do so without doing unsafe manual lifts, such as
the one ordered of Mr. Cisneros.” Id. But these arguments ignore the fact that Marquette’s policy
permit seamen to board vessels using a ladder and that Cisneros would be unable to “simply walk
on” the NS-IV while carrying his bag when using a ladder. In fact, Cisneros testified that he used
a ladder to board the NS-IV. Cisneros’s argument that the conditions of the dock forced him to use
an unsafe lifting technique is unpersuasive because Marquette’s boarding policy—which Cisneros
relies on as his primary evidence of negligence and unseaworthiness—provides that ladders may
be used to board vessels and because it was impossible for Cisneros to carry his bag onto the NSIV while using a ladder. Furthermore, Cisneros fails to address whether the available stairs would
allow him to carry his bag onto the NS-IV without completing a handover or to utilize a safer
lifting technique while handing his bag to someone on the NS-IV. Captain Cannon testified that
the stairs allowed him to safely board the NS-IV without performing an unsafe lift. For the
foregoing reasons, the testimony of Cannon and Neal cited by Cisneros does not create a genuine
dispute of fact because nothing they said demonstrates an “obvious danger” present in the
workplace on November 3, 2015. Cisneros’s argument that the conditions of the dock on
November 3, 2015 forced him to complete an unsafe lift is unpersuasive and insufficient to create
a genuine dispute of fact because (1) Cisneros does not address the available stairs in his response
and (2) Cisneros does not dispute that Marquette’s boarding policy—which permits the use of
ladders to board vessels—provides a reasonably safe workplace when properly implemented.
Marquette identified evidence that the available stairs were a safe means of boarding the
NS-IV. Cisneros fails to identify evidence that the stairs were unsafe. In fact, Cisneros did not
25

address the existence of the stairs in his response. Cisneros testified that he boarded the NS-IV
using a ladder, a method which is permitted by OSHA, the Army Corps of Engineers’ regulations
and industry standards, and Marquette’s boarding policy. For the foregoing reasons, there is
nothing about the condition of the dock or the NS-IV that would put Marquette on notice that
Cisneros would be unable to safely board the crew boat. No reasonable jury could find that
Marquette failed to exercise ordinary care, and therefore Marquette is entitled to judgment as a
matter of law.
b. Second Incident.
Cisneros’s Jones Act claim arising out of the Second Incident fails for the same reasons as his
unseaworthiness claim. Cisneros has failed to identify evidence that the MISS KATIE was
responsible for causing the alleged bump or jerk or whether the bump occurred in a manner which
would allow the crew of the MISS KATIE time to give a “watch the bump” warning. Because
Cisneros has not presented any evidence that the bump was foreseeable, there is no genuine dispute
of fact regarding whether Marquette had a duty to warn Cisneros. Like his unseaworthiness claim
regarding the Second Incident, Cisneros asks the Court to speculate as to which vessel caused the
bump and whether the manner in which the bump occurred allowed time for the MISS KATIE’s
crew to warn him. For this reason, and the reasons discussed in section (I)(b) of this opinion,
Marquette is entitled to summary judgment and is exonerated from liability.
III. Conclusion.
For the foregoing reasons, IT IS HEREBY ORDERED, Petitioner Marquette’s motion for
summary judgment [DN 84] is GRANTED. Marquette is exonerated from liability to Abel
Cisneros for the claims discussed herein. The claim of Abel Cisneros as amended [DN 27 and 62-

26

2] against Marquette Transportation Company Offshore, LLC is hereby summarily dismissed as a
matter of law.
IT IS SO ORDERED.

March 22, 2019
March 22, 2019

March 22, 2019

cc: Counsel of Record.

27