In the Matter of: Antill Pipeline Construction Company, Inc.
Filing
921
ORDER AND REASONS denying 548 Motion for Summary Judgment; denying 637 Motion to Strike. Signed by Judge Helen G. Berrigan on 12/6/2012. (Reference: 10-2633)(kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF THE COMPLAINT
OF ANTILL PIPELINE CONSTRUCTION CO.,
INC.
CIVIL ACTION
NO. 09‐3646 & consol. cases
Pertains to: 10‐2633
SECTION ʺCʺ (3)
ORDER AND REASONS
This matter comes before the Court on motion for summary judgment filed by
Martin Marietta Materials, Inc. (“Martin Marietta”). The motion is opposed by Antill
Pipeline Construction Company, Inc. (“Antill”), claimants representing the interests of
the survivors and estates of Cary Meche (“Meche”), Rene Joseph Gauthier (“Gauthier”),
Lawrence Henry Flak (“Flak”), William Norris Voss (“Voss”), and James Carrere, Jr.
(“Carrere”). Having considered the record, the memoranda of counsel and the law, and
considering the question is quite close, the Court nonetheless denies summary
judgment for the following reasons.
On August 10, 2010, Martin Marietta filed a complaint for exoneration from and
limitation of liability in this matter as “the bareboat charterer/ owner pro hac vice of the
barge GC 897,” a barge bareboat chartered by Martin Marietta and involved in the
accident underlying this litigation. Civ. Act. No. 10‐2633 at Rec. Doc. 1; Rec. Doc. 104.
It has also filed a complaint for intervention in the lead case and an answer and claim to
its own petition.1 Rec. Docs. 98, 129.
In this motion, Martin Marietta seeks summary judgment in its favor against
claims made against it based on the argument that Antill was the bareboat
charterer/owner pro hac vice of the barge GD 897 at the time of the accident and
“Martin’s sole obligation was to arrange for the delivery of the barge with the materials
specified.” Rec. Doc. 548‐1 at 2. It is undisputed that the barge GD 897 did not have
direct contact with the vessel in the allision, but is sued for its positioning in the canal,
which allegedly caused an obstruction, along with the adequacy of its lighting,
allegations that it claims are controlled by the general maritime law. Rec. Doc. 548‐1 at
8. Martin Marietta bases its argument in the original motion on undisputed facts that
indicate that it arranged for the towage of the barge by non‐party M/V MISS KIM to the
Antill destination, that another vessel directed the mooring of the barge GD 897, and
that the decision where to moor the barge GD 897 and how to light it was made by
Antill employees. Id. The oppositions include arguments concerning Antill’s bareboat
charter status and breaches of Martin Marietta’s duties attendant to negligent
entrustment and supervision. Rec. Docs. 626, 655, 656, 658.
In its reply memorandum, Martin Marietta argues that the oppositions’
1
The Court recognizes that the latter pleading may contain the wrong case
reference in its caption. As the trial approaches in this matter, however, such
procedural errors will take on greater significance.
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contention that it “had an obligation to vet and oversee Antill’s operations to ensure
that Antill used the GD 897 in a safe manner” places too expansive a duty on Martin
Marietta “to supervise, manage, audit and oversee Antill’s operations.” Rec. Doc. 681‐3
at 8, 10. It provides additional arguments that it is not liable for “negligent
entrustment” because of a lack of evidence that it knew or should have known Antill
would use the barge GD 897 in an unsafe manner and because it had a bareboat charter
with Antill. Id. at 12‐21. Martin Marietta also argues that on the exact date of the
accident, the barge GD 897 had not yet left the care, custody and control of Antill and
that there is no evidence that Martin Marietta participated in the decision regarding
mooring. Id. at 22‐26. Finally, it argues that summary judgment is appropriate because
the accident was not foreseeable and Antill’s negligence was the superseding cause of
the accident. Id. at 26‐28.
14 14, that it
The Court finds that summary judgment is inappropriate for a number of
reasons. Although Martin Marietta argues in its reply memorandum that it had a
bareboat charter with Antill, the evidence on that issue is equivocal. Assuming that the
email from Martin Marietta is admissible, it does not contain the words “bareboat
charter” or even “care, custody and control.” Rec. Doc. 548‐2 at Exh. A. It contains no
provision for responsibility for safe operation, lighting or mooring. Rather, the email
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indicates a more hybrid and less structured agreement between Martin Marietta and
Antill. Here, the evidence reveals that Martin Marietta arranged for towage by the
M/V MISS KIM, a non‐party interest. Martin Marietta acknowledges testimony that the
captain of the M/V MISS KIM verified that the barge was properly moored upon
delivery to Antill, along with conflicting testimony that the captain of the M/V MISS
KIM had no “real choice about where to moor the GD 897.” Rec. Doc. 548‐1 at 5. As a
result, the issue whether Martin Marietta had or should have had notice of the dangers
inherent in the positioning of the barge GD 897 remains for trial.
With regard to the adequacy of the lighting, the Court recognizes that Martin
Marietta produces testimonial proof that Antill alone was responsible for the lighting of
the barge GD 897 and that the navigation lights used were owned, maintained and
stored by Antill. Id. at 6. However, that proof may raise subsidiary issues concerning
Martin Marietta’s own failure to equip the barge GD 897 with adequate lighting under
circumstances that take into account its own recognition that it surrendered its on‐site
presence.
The Court disagrees with its final argument that it is entitled to summary
judgment because the accident was not foreseeable and because Antill’s negligence was
a superseding cause of the accident. Maritime accidents occur on a regular basis. Here,
Martin Marietta chose to omit any clause regarding the safe operation of the barge GD
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897 in its agreement with Antill. In addition, it chose not to include a indemnity clause
regarding injury to third parties caused by Antill’s negligence. At the same time, it
appears that Martin Marietta was required to furnish the owner with certificates of
insurance, including P&I, naming the owner “an additional assured with hold harmless
agreement” in its own charter agreement with the owner. Rec. Doc. 548‐4 at Exh. C.
Nonetheless, this motion reflects the strength of the case that Martin Marietta
will be able to present against Antill at trial based on the record evidence. The parties
are encouraged to undertake meaningful settlement discussions.
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by Martin Marietta
Materials, Inc. is DENIED. Rec. Doc. 548.
IT IS FURTHER ORDERED that the motion to strike filed by Antill Pipeline
Construction Company, Inc. is DENIED. Rec. Doc. 637.
New Orleans, Louisiana, this 6th day of December, 2012.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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