Lejeune v. Production Services Network U.S., Inc. et al

Filing 215

ORDER AND REASONS granting 139 Motion to Dismiss for Failure to State a Claim; dismissing as moot 156 Motion to Strike; granting 172 Motion for Summary Judgment; denying 168 Motion for Summary Judgment; denying 173 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY LEJEUNE

CIVIL ACTION

VERSUS

NO. 11-2482

PRODUCTION SERVICES NETWORK U.S.,
INC., ET AL.

SECTION "B"(5)

ORDER AND REASONS
I.

NATURE OF THE MOTIONS AND RELIEF SOUGHT
Before the Court are five (5) motions:
1. Motion

to

Dismiss

for

Failure

to

State

a

Claim

by

Defendant, Bales Environmental Consulting & Management,
LLC.1 Defendant, O’Brien’s Response Management LLC filed
an

opposition

in

response.2

Accordingly,

and

for

the

reasons enumerated below, IT IS ORDERED that the Motion
to Dismiss (Rec. Doc. No. 139) be GRANTED.
2. Motion

to

Strike

by

Bales

Environmental

Consulting

&

MeManagement, LLC.3 Defendant, Chill Boats, LLC, filed a
response in opposition.4

Bales has filed a supplemental

memorandum in reply.5 Accordingly, and for the reasons
enumerate below, IT IS ORDERED that the Motion to Strike
(Rec. Doc. No. 156) be hereby DISMISSED as MOOT without
prejudice to re-urge.
1

Rec. Doc. No. 139.
Rec. Doc. No. 148.
3
Rec. Doc. No. 156.
4
Rec. Doc. No. 159.
5
Rec. Doc. No. 184.
2

1

3. Motion for Summary Judgment by Florida Marine, LLC.6 The
motion is unopposed. Accordingly, and for the reasons
enumerated below, IT IS ORDERED that the Motion (Rec.
Doc. No. 172) be GRANTED.
4. Motion

for

Summary

Judgment

by

O’Brien’s

Response

Management, LLC.7 Chill Boats, LLC, filed a response in
opposition.8 Plaintiff filed an opposition adopting the
response.9 IT IS ORDERED that the Motion (Rec. Doc. No.
168) be DENIED.
5. Motion

for

Summary

Judgment

by

Bales

Environmental

Consulting & Management, LLC.10 Chill Boats, LLC filed a
response.11

Plaintiff

filed

an

opposition

adopting

the

response.12 IT IS ORDERED that the Motion (Rec. Doc. No.
173) be DENIED.
II.

FACTS OF THE CASE AND PROCEDURAL HISTORY
This case arises out of an accident that occurred during

the

2010

BP

oil

spill

cleanup.

Plaintiff,

Timothy

Lejeune

(“Lejeune” or “Plaintiff”), brings this suit under the Jones

6

Rec. Doc. No. 172.
Rec. Doc. No. 168.
8
Rec. Doc. No. 170.
9
Rec. Doc. No. 175.
10
Rec. Doc. No. 173.
11
Rec. Doc. No. 174.
12
Rec. Doc. No. 176.
7

2

Act,

46

U.S.C.

§

688,

et

seq.,

and

Admiralty

and

General

Maritime Law, 28 U.S.C. § 1333, et seq.13
On or about October 4, 2010, Lejeune was employed by a
subsidiary of Production Services Network U.S., Inc. (“PSN”) as
a paramedic, assigned to work aboard the DECON 1 barge.14 Lejeune
was injured aboard a Hydra-Sport 30 vessel while transporting
him from the

barge to shore.15 The vessel was chartered and

operated by Chill Boats, who employed Captain Brennon Sheldon
(“Sheldon”).16 Sheldon

purportedly

received an order from the

vessel’s Barge Engineer, Brandon Tune (“Tune”) to make the run,
bringing Lejeune back to dock.17 Tune was hired by Michael Bales
(“Mike Bales”) as supervisor aboard the vessel. Sheldon elected
to navigate without the use of lights and relied on radar and
other electronic equipment to guide him.18 The vessel hit a wake,
and the impact allegedly threw Lejeune from his seat, resulting
in injuries to his neck and shoulder.19
Lejeune

claims

he

was

injured

due

to

the

operational

negligence of the crew of said vessel and/or unseaworthiness of
said vessel and its equipment and appurtenances.20 Lejeune filed
13

Rec. Doc. No. 1, 103.
Rec. Doc. No. 103 at 2-3.
15
Rec. Doc. No. 103 at 4. The vessel was owned by Consulting & Trust, Inc.
16
Rec. Doc. No. 103 at 3.
17
Rec. Doc. No. 103 at 4.
18
Rec. Doc. No. 103 at 4.
19
Rec. Doc. No. 103 at 4.
20
Rec. Doc. No. 103 at 5.
14

3

suit, naming as Defendants: Production Services Network U.S.,
Inc. (“PSN”); BP America Inc. and BP Products North America,
Inc. (“BP”); Chill Boats, LLC (“Chill Boats”), Integrated Pro
Services,

LLC

(“IPS”);

Joe

Cataloni

(“Cataloni”);

Florida

Marine, LLC (“Florida Marine”)21; Bales Environmental Consulting
& Management, LLC (“Bales”); and, O’Brien’s Response Management,
LLC (“O’Brien’s”).22 Lejeune seeks recovery for past lost wages;
future earning capacity; past and future pain and suffering,
mental

and

emotional

distress,

loss

of

enjoyment

of

life;

maintenance and cure benefits and punitive damages for failure
to pay the same.23
In the Second Amended Complaint, Lejeune contends that the
vessel, owned by Cataloni, was contracted out to Chill Boats,
IPS, BP, Bales and/or Florida Marine and captained by Brennon
Sheldon.24
On Plaintiff’s motion, the Court dismissed Cataloni as a
party to this action.25 The Court granted PSN’s unopposed Motion
for Summary Judgment.26 The Court granted BP’s Motion for Summary
Judgment.27 Plaintiff and Chill Boats reached a settlement, and

21

Second Amended Complaint, Rec. Doc. No. 123.
Rec. Doc. No. 103 at 1-2.
23
Rec. Doc. No. 103 at 8-9.
24
Rec. Doc. No. 123 at 3.
25
Rec. Doc. No. 14, 16.
26
Rec. Doc. No. 32, 33.
27
Rec. Doc. No. 155.
22

4

the claims against Chill Boats were dismissed.28 There remain
various cross-claims in this case.
III.

LAW AND ANALYSIS
A. Fed. R. Civ. P. 12(b)(6) Motion to Dismiss by Bales
Defendant

claims

of

in

Cross-Claim,29

O’Brien’s

for

Bales,

indemnity

and

moves

to

attorney

dismiss
fees

on

the
the

grounds that O’Brien’s fails to state a claim as a matter of
law.30 O’Brien’s cross-claims against Bales to recover, in the
event O’Brien’s is held liable for the conduct of Tune, the
vessel’s Barge Engineer, and the individual who gave the order
that the trip be taken.31 Tune was employed by Bales, and was in
turn contracted to O’Brien’s.32
Under Federal Rule of Civil Procedure 12(b)(6) “a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of
facts

in

support

of

his

claim

which

would

entitle

him

to

relief.” Walker v. South Central Bell Telephone Co., 904 F.2d
275, 276 (5th Cir. 1990)(quoting Conley v. Gibson, 355 U.S. 41,
28

Rec. Doc. No. 192, 194.
Chill Boats filed a Third Party Complaint against O’Brien’s. (Rec. Doc. No. 47). O’Brien’s filed a cross-claim against
Chill Boats, Rec. Doc. No. 53, and cross-claims against Bales, Florida Marine, IPS and Cataloni. Rec. Doc. No. 129.
The Third Party Complaint by Chill Boats and O’Brien’s cross-claim against Chill Boats have since been dismissed.
(Rec. Doc. No. 195, 197). The Court addresses the instant Motion on the claims asserted by Plaintiff.
30
Rec. Doc. No. 139.
31
Rec. Doc. No. 129 at 7-8. Captain Brennan Sheldon and deckhand Eric Adams, the only other two persons other
than Plaintiff aboard the vessel were employed by Chill Boats, which has since reached a settlement with Plaintiff.
(Rec. Doc. No. 194).
32
Rec. Doc. No. 148.
29

5

45-46 (1957)). Threadbare recitals of the elements of a cause of
action,

supported

by

mere

conclusory

statements,

do

not

suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (citing Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)).
Bales argues the cross-claim states no claim for indemnity
and attorney fees because (1) the limited availability of common
law tort indemnity under maritime law does not apply here; and,
(2) absent a statute or enforceable contract, litigants must pay
their

own

responds

attorney

that

negligence

“if

was

the

fees

in

Brandon

maritime

Tune

proximate

was

cause

disputes.33

negligent,

of

Mr.

O’Brien’s

and

Lejeune’s

if

his

claimed

injury, O’Brien’s is entitled to recovery over or indemnity from
Bales Environmental because of a breach of the implied warranty
of

workmanlike

performance

by

Bales

Environmental

in

its

contractual relationship with O’Brien’s.”34
O’Brien’s fails to state a cognizable claim for indemnity
on

a

breach

of

contractual

warranty

theory

because

in

this

context, O’Brien’s is not a vessel owner and the doctrine upon
which

it

relies,

does

not

apply.

“Under

the

Ryan

doctrine

stevedores and other shore-based contractors who go aboard a
vessel by the owner’s arrangement or by his consent to perform
service for the ship’s benefit, impliedly warrant to the ship
33
34

Rec. Doc. No. 139-1 at 3-4, 5
Rec. Doc. No. 148 at 3.

6

owner that they will accomplish their task in a workmanlike
manner.” Parfait v. Jahncke Service, Inc., 484 F.2d 296, 301
(5th Cir. 1973)(citing Ryan Stevedoring Company v. Pan-Atlantic
Steamship Corporation, 350 U.S. 124 (1956)).35 The breach thereof
entitles the vessel to indemnity where the vessel is subjected
to absolute liability.... Ryan, 350 U.S. at 133.
Indemnity

was

felt

necessary

to

relieve

the

vessel

of

onerous liability for an unseaworthy condition that arose “when
the shipowner...relinquished control of his vessel...to another
party...who was better situated to prevent losses.” Hobart v.
Sohio Petroleum Co., 445 F.2d 435, 438 (5th Cir), cert. denied,
404 U.S. 942 (1971)(citing Ryan, 350 U.S. 124)). The admiralty
law recognizes that the “obligor in a service contract has a
duty to perform his or her task with reasonable care, skill, and
diligence.”

St.

James

Stevedoring

Partners,

LLC

v.

Motion

Navigation Ltd., Civil Action No. 13-541, 2014 WL3892178, at *16
(E.D. La. August 6, 2014)(citing T. Shoenbaum, 1 Admiralty and
General

Maritime

Law

§

5-8

at

190

(2d

ed.

1994));

B&B

Schiffahrts GmbH & Co. v. American Diesel & Ship Repairs, Inc.
136 F.Supp. 2d 590, 597 (E.D. La. 2001).

35

In Ryan, a longshoreman was injured by shifting cargo improperly stowed by a stevedore. The longshoreman
sued the vessel owner for breach of the vessel’s absolute and non-delegable duty to provide a seaworthy vessel.
The Supreme Court held that the vessel was entitled to indemnity from the stevedore because the stevedore
breached a warranty of workmanlike performance (“WWLP”) implicit in its contract with vessel which thereby
subjected the vessel to absolute liability under the seaworthiness doctrine. 350 U.S. at 133.

7

However, the Fifth Circuit has been reluctant to expand the
Ryan doctrine beyond its facts. Bass v. Phoenix Seadrill/78,
Ltd., 749 F.2d 1154, 1167 (5th Cir. 1985). The Fifth Circuit has
observed

that

a

shipowner/plaintiff

has

a

maritime

cause

of

action...on the theory that the defendant breached its warranty
of workmanlike service. Kevin Gros Offshore, LLC v. Max Welders,
Inc., Civil Action No. 07-7340, 2009 WL 152134, at *4 (E.D. La.
January 22, 2009)(emphasis added).
In Max Welders, this Court noted: “there is some support
for

the

notion

that

the

doctrine

of

implied

warranty

of

workmanlike performance is on the verge of judicial extinction.
Id.

Indeed

the

Fifth

Circuit

has

described

the

doctrine

as

‘withered’ and has refused to extend the doctrine beyond those
controversies

involving

the

special

rules

governing

the

obligation and liability of shipowners which necessitated its
formulation.

Id.

(internal

quotes

omitted)(citing

Nathaniel

Shipping, Inc. v. General Electric Co., 920 F.2d 1264 (5th Cir.
1991)); see also Lekelt v. Superior Oil Co., 608 F.2d 592, 593
(5th Cir. 1979);

Coffman v. Hawkins & Hawkins Drilling Co.,

Inc., 594 F.2d 152, 154 (5th Cir. 1979)(granting barge owner
indemnity for the amount paid in settlement of the claim of an
injured
warranty

employee
of

upon

finding

workmanlike

that

contractor

performance);

Parfait

breached
v.

its

Jahncke

8

Service, 347, F.Supp. 485 (E.D. La. 1972), aff’d in part, rev’d
in part, 484 F.2d 296 (5th Cir. 1973), cert. denied, 415 U.S.
957 (1974)(finding vessel owner was entitled to indemnity on a
theory that contractor’s employer breached its implied warranty
of

workmanlike

performance);

cf.

(M

&

O

Marine,

Inc.

v.

Marquette Co., 730 F.2d 133, 135 (3rd Cir. 1984).
The Court concludes that, because O’Brien’s is not a vessel
owner here, O’Brien’s fails to state a claim for indemnity for
breach

of

warranty

of

workmanlike

performance,

and

does

not

arrive at the issue of attorney fees. For these reasons, IT IS
ORDERED that the 12(b)(6) Motion to Dismiss for Failure to State
a

Claim

Bales

be

for

GRANTED,
indemnity

and

that

and

O’Brien’s

attorney

cross-claims

fees

be

against

DISMISSED

WITH

PREJUDICE.
B. Fed. R. Civ. P. 12(f) Motion to Strike by Bales
Defendant, Bales moves the Court to strike the depositions
of

Brennan

Sheldon,

Todd

Bethelot,

and

Timothy

LeJeune,

submitted as Exhibits A, C and G in support of Chill Boats’
Motion for Summary Judgment, on the ground that Bales was not
present and represented at those depositions, and did not have a
reasonable notice of the depositions.36 The Court has granted
Chill Boats’ Motion to Withdraw the Motion for Summary Judgment,

36

Rec. Doc. No. 156.

9

and the Motion for Summary Judgment has been dismissed without
prejudice.37 Therefore, IT IS ORDERED that the Motion to Strike
be hereby DISMISSED as MOOT without prejudice to re-urge.

C. Motions for Summary Judgment
Summary judgment is appropriate when the record discloses
that

no

genuine

issue

of

material

fact

exists

and

that

the

movant is entitled to judgment as a matter of law. Fed. R. Civ.
P.

56(c);

Fed.App’x

Holden
271,

272

v.

U.S.

(5th

United

Cir.

Ocean

Services,

2014)(quotations

LLC,

582

omitted).

Any

reasonable inferences are to be drawn in favor of the non-moving
party. First Am. Transp. Title Ins. Co., 585 F.3d 833, 837 (5th
Cir. 2009)(citing Robinson v. Orient Marine co., Ltd., 505 F.3d
364, 366 (5th Cir. 2007)).
1. Motion for Summary Judgment by Florida Marine
Florida Marine moves the Court for summary judgment, on the
grounds that there are no genuine issues of material fact at
issue in this case and that Florida Marine bears no liability to
Plaintiff or cross-claimant, O’Brien’s.38
In the Second Amended Complaint, Plaintiff contends that:
Upon information and belief, defendants, Florida
Marine, BP, Chill Boats, IPS, O’Brien and Bales and
37
38

Rec. Doc. No. 188, Rec. Doc. No. 153, Rec. Doc. No. 189.
Rec. Doc. No. 172.

10

their respective crews failed to insure that the
vessel,
work
area,
and/or
equipment
was
safe,
effective, seaworthy, and in proper working manner.39
Florida Marine’s details its involvement in this matter as
follows:
In late May or early June, BP requested that Florida
Marine locate response vessels measuring between 30’
and 45’ with a minimum speed of 20 knots to be used as
needed in response to the oil spill. In response to
this request, Florida Marine then contacted IPS, who
located the various vessels that would be used,
including...the Hydra-Sport. These response vessels,
including the Hydra-Sport were time-chartered to
Florida Marine from IPS on a fully found basis. The
Hydra-Sport was chartered by IPS from Chill Boats,
LLC.40
Further:
With respect to all vessels chartered by Florida
Marine to BP, Florida Marine did not take control or
possession of any vessels or crew. The owners of the
vessels always agreed to retain full possession and
control over the vessel and its crew and that they
would provide a seaworthy vessel for the intended
task.41
At all relevant times to this litigation, IPS
contractually agreed to supply the captain and crew
for the Hydra-Sport. At no time did Florida Marine,
LLC or any of its affiliated companies operate,
control or maintain the Hydro-Sport. The crew of the
Hydra-Sport was arranged for employment through IPS.
At no time did Florida Marine employ or otherwise
arrange for or hire the crewmembers which manned the
Hydro-Sport.42 Florida Marine did not employ any of the
individuals...did not train or supervise any of the

39

Rec. Doc. No. 123 at 5.
Rec. Doc. No. 172-1 at 2; 172-10 at 1-4, Vessel Charter Agreement between Integrated Pro Services, LLC and Chill
Boats, LLC.
41
Rec. Doc. No. 172-5 at 2, Blake A. Boyd Affidavit.
42
Rec. Doc. No. 172-5 at 3-4, Blake A. Boyd Affidavit.
40

11

employees...was
employees.43

not

responsible

for

payment

to

The instant motion was set for submission on September 17,
2014. Plaintiff has not filed an opposition.

On the summary

judgment record before it, the Court concludes that there are no
genuine issues of material fact and Florida Marine cannot be
liable

to

Lejeune

for

vessel

unseaworthiness,

or

vicariously

under either a theory of respondeat superior or the borrowed
servant doctrine.
Crewmember

Negligence:

Vicarious

Liability.

While

an

employer can be vicariously liable for its employee’s tortious
conduct through the doctrine of respondeat superior under the
Jones Act, Beech v. Hercules Drilling Co., LLC., 691 F.3d 566,
571

(5th

principal

Cir.
is

Cosmopolitan

2001),
an

it

must

employer

Shipping

Co.

first
of

v.

be

the

established
employee

McAllister,

337

that

the

tortfeasor.

U.S.

783,

790

(1940). The “right” to control is the essence of the employeremployee
employer’s

relationship,
right

to

the

primary

control

are:

factors
selection

that
and

define

an

engagement;

payment of wages; power of dismissal; and power of supervision
and control. Corsair v. Stapp Towing Co., Inc., 228 F. Supp. 2d
795, 798 (S.D. Tex. 2002). Control centers around the amount of

43

Rec. Doc. No. 172-5 at 3-4, Blake A. Boyd Affidavit.

12

control “exercised over the details of the work.” Id. at 798.
Once the relationship is established, vicarious liability may
apply to employees working for their employer in the scope of
their employment. See 46 U.S.C.A. § 30104.
Florida Marine did not have the right to control Michael
Bales, Tune, or Sheldon. Michael Bales was employed by Bales
Environmental;

he

was

contracted

to

and

paid

by

O’Brien’s.44

Bales Environmental paid Tune and was his employer; Bales then
subcontracted
terminated

Tune

by

to

either

O’Brien’s.45
Bales

or

Tune

stated

O’Brien’s.46

he

could

Sheldon

and

be
his

deckhand were Chill Boats employees and were subcontracted to
IPS.

Florida

Marine

did

not

directly

pay

any

of

the

aforementioned individuals. Florida Marine did not participate
in

their

Marine

hiring,

had

the

and
right

no
to

deposition
terminate

testimony
any

of

states

the

Florida

crewmembers.

Lastly, the MSA between Florida Marine and IPS support Florida
Marine’s contentions that Florida Marine did not hire, train,
supervise any of the employees aboard the vessel at all relevant
times.47

44

Rec. Doc. No. 172 at 5-6, Exhibit 4, Michael Bales deposition.
Rec. Doc. No. 172 at 7-8, Exhibit 4, Michael Bales deposition.
46
Rec. Doc. No. 155 at 5-6; Rec. Doc. No. 168-6, Exhibit 5, Brandon Tune deposition.
47
Rec. Doc. No. 172-7 at 6, Exhibit 1-B.
3.03
Subcharterer shall man the Vessel at all times with a full complement of officers….
3.05
Subcharterer shall supervise its personnel so as to ensure prompt and efficient completion of the
Work and strict discipline....
3.06
Subcharterer shall be responsible for the transportation of its personnel….
45

13

Crewmember

Negligence:

Borrowed

Servant

Doctrine.

An

employee of a general employer may become a borrowed servant of
another and “[r]espondeat superior liability is assigned to the
borrowing employer who had control over the act in question.”
Starnes v. United States, 139 F.3d 540, 542 (5th Cir. 1998).
Although the right to control is not dispositive, it is the
central issue to determining borrowed employee status. See Ruiz,
413 F.2d at 313 (citing Standard Oil Co. v. Anderson, 212 U.S.
215, 222 (1909)). If the control analysis is unhelpful, other
supporting factors may be considered. Id. at 313; Brown v. Union
Oil Co. of Ca., 984 F.2d 674, 676 (5th Cir. 1993).
Beginning

with

the

control

analysis,

the

deposition

testimony shows Florida Marine did not have the right to control
over Tune or Sheldon. The right to control over Tune belonged to
Bales or O’Brien’s. The right to control over Sheldon belonged
to

Chill

Boats

or

IPS.

No

Florida

Marine

employee

or

representative with supervisory authority is identified in the
record. When considering its role, the evidence does not show
Florida

Marine

controlled

Tune

and

Sheldon;

Florida

Marine

simply contracted the vessel on behalf of BP through IPS. In
sum,

the

evidence

regarding

the

important

borrowed

servant

questions (such as who had contractual and actual control over
the crew) point to an intermediary other than Florida Marine.
3.07

Subcharterer shall be solely responsible for the payment of labor employed….

14

Plaintiff has acknowledged that he lacks documentary or other
evidence in support of the allegations against Florida Marine,
and has not filed an opposition to the instant motion.48
Vessel Unseaworthiness. Lejeune claims Florida Marine, or
others,

failed

transport

him

to

provide

him

with

a

to

shore.

He

claims

seaworthy
the

vessel

Hydra-Sport

to
was

unseaworthy as its collapsible chair was not properly equipped
with a safety harness or

restraint. Seaworthiness is a non-

delegable duty that extends only to the owner of a vessel. 46
U.S.C.A. § 30505; see, e.g., In Re Signal Int'l, LLC, 579 F.3d
478, 498 (5th Cir. 2009) (holding a vessel owner has an absolute
non-delegable duty to provide a seaworthy vessel). Here, Florida
Marine did not own, charter, or lease the Hydra-Sport. It is
undisputed that the vessel was owned by Consulting & Trust, Inc.
It is undisputed that Chill Boats chartered the vessel under an
assumed agreement with Consulting & Trust. Florida Marine cannot
be held liable for the vessel’s alleged unseaworthiness.
The Court, having considered the complaint, the record, the
applicable law and the failure of any party to file a direct
opposition
Unopposed

to

the

Motion

instant
for

motion,

Summary

IT

IS

ORDERED

that

Judgment

be

GRANTED

and

the
that

48

Rec. Doc. No. 172-11 at 9-10, Plaintiff’s Answers to Florida Marine, LLC’s Interrogatories and Requests for
Production.

15

Plaintiff’s and Cross-Claimant O’Brien’s claims arising out of
the October 4, 2010 incident be DISMISSED WITH PREJUDICE.
2. Motions for Summary Judgment by O’Brien’s and Bales
O’Brien’s moves the Court for summary judgment on the basis
that it cannot be held liable for the alleged conduct of Tune
for

the

following

reasons:

(1)

Tune

did

not

order

Captain

Sheldon to take Lejeune back to shore; (2) if such an order was
given, the order itself is not the legal cause of Lejeune’s
injury;

(3)

Chill

Boats

owed

a

high

degree

of

care

to

its

passenger; and, (4) Chill Boats is liable under a respondeat
theory for the negligence of its employee Captain Sheldon.49
Bales moves the Court for summary judgment on substantially
the same basis: Plaintiff and/or Chill Boats cannot establish
that the disputed order by Tune to Captain Sheldon was a legal
cause of Plaintiff’s injury.50 Bales argues that the legal cause
of Lejeune’s injuries was the collapse of the seat.51 As the
allegations involving O’Brien’s and Bales are the same, and the
arguments in support of summary judgment run parallel, the Court
addresses the motions for summary judgment simultaneously.
Chill

Boats

and

Plaintiff

argue

there

exists

a

genuine

issue of material fact as to whether Brandon Tune ordered the
49

Rec. Doc. No. 168.
Rec. Doc. No. 173 at 2.
51
Rec. Doc. No. 173 at 2.
50

16

night run, as well as “why and how the accident occurred.”52 The
Court agrees.
Defendants construe the deposition testimony to support a
finding that Tune did not order the dispatch. According to Tune,
when

Lejeune

Lejeune

would

made

the

have

to

request,
ask

the

Tune
boat

informed
captain

Lejeune

that

(Sheldon).53

The

deposition testimony of the deckhand aboard the vessel, Eric
John Adams appears consistent:
And
I
don’t
want
to
say
that
Brandon,
our
supervisor...made us go, but I want to say he made it
to where it was a choice for us...I don’t specially
recall him really playing any part...I don’t think
Brandon really—Brandon Tune had too much say-so in it
but we went ahead and took Mr. Lejeune in...Mr.
Lejeune was the one that came and approached us.54
Plaintiff appears to lack knowledge as to whether an order was
given

by

Tune.55

The

deposition

testimony

of

Sheldon

is

as

follows: “I told him...go talk to Brandon. So [Lejeune} went to
go talk to Brandon. That’s when Brandon came upstairs, told us
we need to go now”.56 Therefore, whether Tune gave a dispatch
order is a disputed issue of fact. However, the materiality of
this

disputed

fact

turns

on

whether,

assuming

an

order

was

52

Rec. Doc. No. 170 at 2-3.
Rec. Doc. No. 168-7 at 38, Exhibit C-1, Tune Deposition.
54
Rec. Doc. No. 168-12 at 18-20, Exhibit E, Adams Deposition.
55
Rec. Doc. No. 168-3 at 15-17, Exhibit A; Exhibit B at 89 (“I can only assume. I mean, I wasn’t there when [Tune]
did anything”), Lejeune Deposition.
56
Rec. Doc. No. 168-12 at 54, 59 Exhibit F, Sheldon Deposition.
Q. All right. You indicated he told you not only no, but that you’ve got to bring him now?
A. Yea. He’s my boss. If I didn’t run, he could have got another captain out there to run it.
53

17

given,

the

order

itself

could

constitute

a

legal

cause

of

Lejeune’s injuries.
To establish a cause of action based on negligence, the
plaintiff must establish that the defendant breached a duty of
care,

proximately

causing

the

plaintiff’s

injuries.

Lloyd’s

Leasing Ltd. v. Conoco, 868 F.2d 1447, 1449 (5th Cir. 1989).
Under the general maritime law, a party’s negligence is
actionable only if it is a “legal cause” of the plaintiff’s
injuries. See Chavez v. Noble Drilling Corp., 567 Fm.2d 287, 289
(5th Cir. 1978). “Legal cause is something more than ‘but for’
causation, and the negligence must be a ‘substantial factor’ in
the injury.” Thomas v. Express Boat Co., 759 F.2d 444, 448 (5th
Cir. 1985)(citations omitted).

The term “substantial factor”

means more than “but for the negligence, the harm would not have
resulted.” Spinks v. Chevron Oil Co., 507 F.2d 216, 223 (5th
Cir. 1975); see also Chisolm v. Sabine Towing & Transp. Co., 679
F.2d 60, 63 (5th Cir. 1982).
The

legal

cause

of

Plaintiff’s

injuries

is

unclear.

Defendants argue Plaintiff suffered his injuries as a result of
the

vessel’s

“collapsed

seat.”

Defendants

point

to

the

deposition testimony of Sheldon. However, Sheldon’s deposition
testimony appears to clarify that the seat where Plaintiff sat

18

did not break, but rather, simply folded back.57 Defendants argue
Chill Boats is liable for Sheldon’s negligence; however, this is
a disputed issue of both fact and law. While Plaintiff claims
“we hit the wake. I went airborne,”58 according to Sheldon, the
boat did not hit a wake or wave; Sheldon properly maneuvered the
wave.59
Chill

Boats

and

Plaintiff

rely

on

Fifth

Circuit

case

authority to argue that, Tune had final authority aboard the
vessel to which Sheldon acquiesced, and in dispatching the night
run,

Tune

subjecting

failed
Bales

to

follow

and/or

strict

O’Brien’s

to

safety

protocol,

liability

for

thus
Tune’s

negligent dispatch.60
The Fifth Circuit has recognized that a master has a duty
to

make

an

independent

assessment

of

the

proper

course

of

action. Boudoin v. J. Ray McDermott & Co., 281 F.2d 81 (5th Cir.
1960). Normally the master of a ship has the final say so in
deciding what risks posed by the weather and the condition of
his ship will be assumed. Brown v. Link Belt Division of FMC
Corp. 666 F.2d 110, 113 (5th Cir. 1982).

57

Rec. Doc. No. 168-12 at 79-81, Exhibit F, F-1, Sheldon deposition.
Rec. Doc. No. 168-3 at 21, Exhibit A, Lejeune deposition.
59
Rec. Doc. No. 168-12 at 77-78, Exhibit F, Sheldon deposition.
60
Rec. Doc. No. 174 at 5.
58

19

However,

“when

an

owner

or

person

who

has

primary

responsibility for the task being done is in as good a position
as the master to assess the difficulty of the task, the reasons
for according power and responsibility to the master diminish.”
Id. (citing Spencer v. Kellogg & Sons, Inc. v. Hicks, 285 U.S.
502, 511-12 (1932)).
In

addition

to

contending

that

Tune

did

not

issue

a

dispatch order, O’Brien’s also argues that “making that trip was
Captain Sheldon’s decision,” and that “Tune did not participate
in any decision regarding MR. SCOTTY departing.”61 According to
Sheldon’s (the master) deposition testimony, he spoke with Tune
prior to departure, and informed Tune that he did not want to
make

the

run

because

of

the

weather

conditions

and

because

Sheldon had been making runs all day; however, “as the barge
supervisor,

[Tune}

told

me

I

had

to

go.”62

According

to

Plaintiff, Sheldon and the deckhand did complain about being
tired from making runs all day, as well as the darkness.63
In sum, on the summary judgment record, the Court cannot
conclude that Bales and/or O’Brien’s are entitled to summary
judgment. If a dispatch order was issued by Tune, and Tune had
supervisory authority, Tune cannot be absolved from liability.

61

Rec.. Doc. No. 168-1 at 4.
Rec. Doc. No. 168-12 at 60-61.
63
Rec. Doc. No. 168-3 at 17, Exhibit A, Lejeune deposition.
62

20

It is unclear whether Plaintiff’s accident and injuries resulted
from the vessel’s “collapsed seat,” Sheldon’s negligence, the
weather conditions, Plaintiff’s own negligence, or a combination
of

factors.

comparative
extent

that

Where

more

negligence
the

than

one

standard

disputed

order

party

applies.
by

Tune

is

at

fault,

Therefore,
overrode

to

the
the

Sheldon’s

weather condition concerns, and those weather conditions were at
least one substantial factor in causing the accident, Defendants
cannot be absolved entirely from liability.
Accordingly, and for the reasons enumerated above, IT IS
ORDERED that the Motions for Summary Judgment be DENIED.
IV.

CONCLUSION
Accordingly, and for the reasons enumerated above,
1. IT IS ORDERED that the Motion to Dismiss (Rec. Doc. No.
139) by Bales Environmental Consulting & Management, LLC
be GRANTED.
2. IT IS ORDERED that the Motion to Strike (Rec. Doc. No.
156) by Bales Environmental Consulting & Management, LLC
be hereby DISMISSED as MOOT without prejudice to re-urge.
3. IT IS ORDERED that the Motion for Summary Judgment by
Florida Marine, LLC (Rec. Doc. No. 172) be GRANTED.
4. IT IS ORDERED that the Motion for Summary Judgment by
O’Brien’s Response Management, LLC be DENIED.
21

5. IT IS ORDERED that the Motion for Summary Judgment by
Bales

Environmental

Consulting

&

Management,

LLC

be

DENIED.

New Orleans, Louisiana, this 25th day of February, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

22