Turner v. Coastal Marine Contractors LLC et al

Filing 148

ORDER AND REASONS: IT IS ORDERED that Defendants' 141 motion is GRANTED IN PART. Defendants Conequipos and LR Maritime are entitled to summary judgment dismissing Plaintiff's maintenance and cure and negligence claims under the Jones Act. Accordingly, those claims against these Defendants are DISMISSED WITH PREJUDICE. However, Defendants are not entitled to summary judgment on either Plaintiff's unseaworthiness claim against LR Maritime or his negligence claim against Conequipos. Signed by Judge Ivan L.R. Lemelle on 3/13/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES TURNER

CIVIL ACTION

VERSUS

NO. 12-834

COASTAL MARINE CONTRACTORS
LLC, ET AL.

SECTION "B"(4)

ORDER AND REASONS
Before the Court is “Conequipos Ing. Ltda. and L.R. Maritime,
LLC’s Motion for Summary Judgment.” Rec. Doc. 141. Pursuant to
this Court’s Scheduling Order, case-dispositive motions had to be
filed in sufficient time to permit hearing thereon no later than
February 17, 2017. Rec. Doc. 137. Defendants’ motion was filed on
February

17,

2017

and

therefore

is

untimely.

Nonetheless,

Plaintiff filed a memorandum in opposition (Rec. Doc. 145) and, in
the interests of justice, the Court will consider the motion as
though it were timely filed. For the reasons discussed below,
IT IS ORDERED that Defendants’ motion (Rec. Doc. 141) is
GRANTED IN PART.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of injuries suffered by James Turner

(“Plaintiff”) on January 3, 2012. Rec. Doc. 1 at ¶ 7. At the time,
he was employed by Frederick Brugge (also known as Fritz Brugge,
but hereinafter referred to as “Brugge”) and assigned to the vessel
M/V JEFFERSON, a towing barge heading toward South America on

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December 25, 2011. Id.; see also Rec. Doc. 145 at 5. During the
voyage, Plaintiff claims that the vessel experienced “numerous
mechanical and operational issues, including: (i) a leaking mainengine pipe that put the vessel at risk of sinking . . . ; (ii)
the barge taking on substantial amounts of water . . . ; and (iii)
the vessel itself slowing and taking on water.” Rec. Doc. 145 at
5-6. At one point, the crew was forced to make an unplanned stop
because there was insufficient fuel. Id. at 6. To bring the vessel
into port, the crew had to manually pull the barge closer. Id.
Apparently, the outer layers on the towing line that they used to
pull the barge had “peeled all the way back,” so when it was
entangled in the tug’s prop after the captain put the tug in
reverse, it severed. Id. To secure an emergency line, Plaintiff
was ordered to jump onto the barge from the tug boat. Id.; see
also Rec. Doc. 1 at ¶ 7. As he attempted to return to the tug boat,
the boat crashed into the barge, causing Plaintiff to fall. Id. He
allegedly suffered injuries to his abdomen, back, and neck. Id.
Consequently, on March 29, 2012, Plaintiff filed suit against
Coastal Marine Contractors, LLC (the company tasked with making
repairs to the vessel before its voyage, hereinafter referred to
as “Coastal Marine”) and Brugge, requesting actual and punitive
damages, maintenance and cure benefits, costs, and attorneys’
fees. Id. at ¶ V.

2

A preliminary default was entered against Brugge on December
6, 2012. Rec. Doc. 29. On January 28, 2013, Plaintiff dismissed
Coastal Marine. Rec. Doc. 31. Plaintiff’s second amended complaint
brought claims against LR Maritime, LLC (“LR Maritime”), Tesza
Marine, Inc. (“Tesza”), Conequipos Ing. Ltda. (“Conequipos”), and
Brugge. Rec. Doc. 35 at ¶¶ 5-8. Apparently, the M/V JEFFERSON was
owned by LR Maritime, chartered by Tesza and Conequipos, and
operated by those parties jointly. Id. at ¶ 9.
Over the next two and a half years, Plaintiff attempted to
serve Conequipos, a Colombian entity. Rec. Docs. 48-49, 51-52, 5455, 57-58, 64-67, 69, 71-72, 86-87, 90-91. Accordingly, on March
2, 2015, the case was administratively closed. Rec. Doc. 88. On
August 19, 2015, after Conequipos was eventually served, the case
was re-opened. Rec. Doc. 97.
On July 14, 2016, Plaintiff filed a fourth amended complaint,
adding Global Mariner S.A.S. (“Global Mariner”), another Colombian
entity, as a defendant, “because it is [a] signatory to a contract
relating to the provision of a crew for the vessel on which
Plaintiff was injured.” Rec. Docs. 116; 119 at ¶ 8. On September
16, 2016, Plaintiff informed the Court that it had not yet been
able to serve Global Mariner and specifically requested that trial
be rescheduled for March 24, 2017. Rec. Doc. 136. We granted the
motion in part, setting new deadlines and scheduling trial for

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March 27, 2017. Rec. Doc. 137. However, Global Mariner was never
served.
II.

THE PARTIES’ CONTENTIONS
According to Defendants Conequipos and LR Maritime, they

“relinquished operational control of the vessel pursuant to a Sea
Staff

Supplying

Agreement

between

[the

charterer,]

Global

Mariner[,] and the contractor, Fritz Brugge.” Rec. Doc. 141-1 at
1. Because neither Defendant employed Plaintiff or operated the
vessel at the time of Plaintiff’s injury, Defendants argue that
Plaintiff cannot prove that they breached any duty to him. Id. at
2. Defendants maintain that the Sea Staff Supplying Agreement (the
“Agreement”) demonstrates that operational control was given to
Brugge, who provided the crew and issued all directions as the
employer. Rec. Doc. 141-1 at 3 (citing Rec. Doc. 141-3, providing
that

the

contractor,

Brugge,

would

provide

a

captain,

chief

engineer, and three sailors, and that “[u]nder his command, the
staff

will

responsible

operate
for

its

the

tugboat

maneuver,

to

tow

the

handling,

barge

thus

readiness,

being

[etc.]”).

Defendants also argue, based on Plaintiff’s deposition testimony,
that Plaintiff’s injuries were the result of “operational factors
related to recovering the barge,” including “the combination of
the grounding, the barge, and the tug’s counter-movements to keep
them

off

the

shore

.

.

.

.”

Rec.

Doc.

141-1

at

7.

These

“navigational decisions and actions” were made by the captain and
4

crew

and,

according

to

Defendants,

cannot

be

attributed

to

Defendants. Id. at 4. To summarize, Defendants maintain that
Brugge, as Plaintiff’s employer and the only party with operational
control of the vessel at the time of Plaintiff’s injuries, is the
only party that could be held liable under the Jones Act, for
maintenance and cure, or under general maritime law for negligence.
Id. at 14.
Plaintiff does not dispute that Defendants Conequipos and LR
Maritime are not his employers and therefore agrees that they are
entitled

to

summary

judgment

as

to

Plaintiff’s

claims

for

maintenance and cure and negligence under the Jones Act. Rec. Doc.
145 at 1, n.1. Accordingly, these claims will not be discussed
below. Nonetheless, Plaintiff further responds that Defendants are
liable

under

general

maritime

law

because

(1)

Defendants

Conequipos and LR Maritime did not relinquish operational control;
and (2) even if they did relinquish such control, Defendant LR
Maritime breached its nondelegable duty to provide a seaworthy
vessel

and

Conequipos

breached

its

general

duty

to

exercise

reasonable care. Id. at 1-2.1 Specifically, Plaintiff argues that
his injuries were the result of “LR Maritime’s and Conequipos’s
decision to use an inland tugboat crewed by a captain without

Notably, “Jones Act negligence and unseaworthiness under general maritime law
are two distinct causes of action, each involving separate standards of proof,
causation, and review.” Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1354
(5th Cir. 1988) (citation omitted).
1

5

tugging experience and two ‘green’ hands for an off-shore tow of
a sinking barge.” Rec. Doc. 145 at 2 (emphasis in original).
Plaintiff notes that the JEFFERSON is an inland tank barge that
was not designed for offshore towing. Id. (citing Rec. Doc. 145-2
at 4). Before the voyage to Colombia, Conequipos hired Coastal
Marine to perform any necessary repairs to the vessel and otherwise
prepare it for the voyage. Id. (citing Rec. Doc. 145-6 at 5).2
However, Plaintiff maintains that Coastal Marine was told to make
only minimal repairs. Id. (citing Rec. Doc. 145-7 at 1, an email
in

which

a

Conequipos

representative

told

a

Coastal

Marine

representative “Anything we can do to reduce the cost (you know
our tale on this one) without compromising security would help.”).
Further, the vessel purportedly “left port with insufficient power
to complete its voyage, ‘towing gear of minimal size,’” without
required

international

safety

certificates,

without

first

conducting safety reviews, and without procedures to ensure that
the vessel was properly maintained. Id. at 4 (citing Rec. Doc.
145-2 at 5-8).3 These failures led Plaintiff’s expert to conclude
that “the vessel and barge were unseaworthy for an international
and

trans

ocean

transit.”

Rec.

Doc.

145-2

at

8.

Similarly,

Rec. Doc. 145-6 contains the deposition testimony of Coastal Marine’s
representative, Gary LeBlanc; it will be cited according to the record document
page number, rather than the deposition transcript page.
3 Rec. Doc. 145-2 contains an investigative report from Plaintiff’s expert,
Steven E. Caskey of Nautilus Global, LLC; it will be cited according to the
record document page number, rather than the internal pagination.
2

6

Plaintiff maintains that the vessel’s five-man crew, who had no
offshore towing experience and two of whom were unlicensed, were
also “unseaworthy.” Rec. Doc. 145 at 5.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
A genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must
point to “portions of ‘the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).

7

However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
While Defendants maintain that the Agreement between Global
Mariner and Brugge delegated all responsibility for the crew to
Brugge (Rec. Doc. 141-3), Plaintiff argues that (1) the Agreement
does not explain the relationship between Global Mariner and LR
Maritime (the owner of the vessel) and (2) a Coastal Marine
employee testified that it was Conequipos that directed the predeparture maintenance and repair work, hired the crew, and asked
that advance payments be made to the crew (Rec. Doc. 145 at 5, 89 (citing Rec. Doc. 145-6 at 6, 9, 10, 11).
The Court agrees with Plaintiff that there is no evidence
that Defendant Global Mariner, which has not been served, had any
authority to relinquish control of the vessel to Brugge on behalf
of either LR Maritime or Conequipos. The relationship between these
parties is unclear. LR Maritime purportedly owned the vessel, while

8

Conequipos chartered it and directed Coastal Marine to repair it.4
The only evidence related to Global Mariner is the Agreement and
Defendants’
however,

statement

the

that

Agreement

Global

fails

Mariner

to

was

charterer;

Global

detail

the

Mariner’s

relationship to the vessel and the Court is not prepared to rely
on

Defendants’

uncorroborated

statements.

With

the

evidence

presently before the Court, it cannot be determined on summary
judgment who had operational control of the vessel.
Nonetheless,

Plaintiff

further

argues

that,

even

if

operational control was given to Brugge,5 “LR Maritime had a nondelegable duty to provide a seaworthy vessel to those working
aboard it” (Rec. Doc. 145 at 9) and Conequipos breached its duty
of reasonable care to Plaintiff (id. at 11).
“To be seaworthy, a vessel and its appurtenances must be
reasonably suited for the purpose or use for which they were
intended.” Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1354
(5th Cir. 1988) (citation omitted). “[T]he owner’s duty to furnish
a seaworthy ship is absolute and completely independent of his
duty under the Jones Act to exercise reasonable care.” Mitchell v.
Trawler Racer, Inc., 362 U.S. 539, 549 (1960). Accordingly, the
plaintiff does not have to show that the owner was negligent.

The relationship of Defendant Tesza Marine, Inc. to the parties is also
unclear, but it is not the subject of the instant motion for summary judgment.
5 Though, Plaintiff continues to contest this point, noting that Brugge “did
not command the vessel, . . . did not obtain insurance coverage, and . . . did
little to prepare the tug . . . .” Rec. Doc. 145 at 9.
4

9

Johnson,

845

F.2d

at

1354

(citation

omitted).

Rather,

“[t]o

establish the requisite proximate cause in an unseaworthiness
claim, a plaintiff must prove that the unseaworthy condition played
a substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably
probable

consequence

of

the

unseaworthiness.”

Id.

(citations

omitted). Significantly, “[t]he warranty of seaworthiness includes
a seaworthy crew and the ship owner’s duty is breached by providing
a ‘defective’ or inadequate crew.” Comeaux v. T.L. James & Co.,
666 F.2d 294, 299 (5th Cir. 1982), supplemented, 702 F.2d 1023
(5th Cir. 1983). Further, “a seaman may have recourse in personam
against the owner of an unseaworthy vessel, without regard to
whether owner or bareboat charterer is responsible for the vessel’s
condition.” Baker v. Raymond Int’l, Inc., 656 F.2d 173, 184 (5th
Cir. 1981); see also Torch, Inc. v. Alesich, 148 F.3d 424, 427
(5th Cir. 1998) (“Despite the existence of a bareboat charter, the
owner of the vessel can be liable to third persons if the vessel
was not seaworthy at the inception of the charter”).6
Here,

Plaintiff

claims

that

LR

Maritime

presented

an

unseaworthy vessel “by providing an inland tow boat not fit for
international travel, an inexperienced crew, and a vessel with
insufficient towing equipment for the work required.” Rec. Doc.

Notably, the parties do not conclusively indicate the type of charter at issue
in this case. See, e.g. Rec. Doc. 141-2 at ¶ 29.
6

10

145 at 10 (citing Rec. Doc. 145-2 at 5-8). The Court notes that
Plaintiff specifically stated that the tow line was frayed and
that the vessel was not equipped with a winch. Rec. Doc. 145 at 6.
This seems to contradict Defendants’ statement that “no equipment
failures caused the fall.” Rec. Doc. 141-1 at 6. Further, Plaintiff
suggests that they were only attempting to go into port because
the vessel was not supplied with sufficient fuel to make the
voyage. Rec. Doc. 145 at 11, 13. On this evidence, it is impossible
for the Court to determine the proximate cause of Plaintiff’s
injuries. A reasonable jury could return a verdict for Plaintiff
(Anderson, 477 U.S. at 248), so Defendants are not entitled to
summary judgment on this issue.7
“To

establish

maritime

negligence,

a

plaintiff

must

‘demonstrate that there was a duty owed by the defendant to the
plaintiff,

breach

of

that

duty,

injury

sustained

by

[the]

plaintiff, and a causal connection between the defendant’s conduct
and the plaintiff’s injury.’” Canal Barge Co. v. Torco Oil Co.,
220 F.3d 370, 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith,
929 F.2d 1073, 1077 (5th Cir. 1991)).

Defendants also argue that Brugge’s operational control of the vessel was an
intervening cause of Plaintiff’s injuries and thereby relieved Defendants of
any liability. Rec. Doc. 141-1 at 12 (citations omitted). However, the Court
agrees with Plaintiff that “the last clear chance doctrine is obsolete in light
of admiralty’s comparative fault regime . . . .” In re Mid-S. Towing Co., 418
F.3d 526, 532 (5th Cir. 2005). Plus, causation issues, in light of the limited
evidence presented to the Court, do not appear appropriate for summary judgment
at this time.
7

11

Here, Plaintiff claims that Conequipos breached its duty to
him by allowing the vessel to leave port with insufficient power
to complete its voyage, without required international safety
certificates,
reviews,

without

without

having

supplying

conducted
maintenance

regulatory

or

procedures,

safety
and

by

providing “towing gear of minimal size.” Rec. Doc. 145 at 12.
Defendants argue that they did not employ the crew, did not have
any personnel on board during the voyage, and “never asserted any
operational control of the vessels when the injury occurred.” Rec.
Doc. 141-1 at 14. Plaintiff’s witnesses suggest that Conequipos
directed operations and repairs prior to the voyage. Despite the
Agreement, this conflicting evidence could lead a reasonable jury
to find that Conequipos owed a duty to Plaintiff, breached that
duty, and thereby caused Plaintiff’s injuries. Again, summary
judgment would be inappropriate.
IV.

CONCLUSION

Accordingly,
IT IS ORDERED that Defendants’ motion (Rec. Doc. 141) is
GRANTED IN PART. Defendants Conequipos and LR Maritime are entitled
to summary judgment dismissing Plaintiff’s maintenance and cure
and negligence claims under the Jones Act. Accordingly, those
claims against these Defendants are DISMISSED WITH PREJUDICE.
However, Defendants are not entitled to summary judgment on either

12

Plaintiff’s

unseaworthiness

claim

against

LR

Maritime

or

his

negligence claim against Conequipos.
New Orleans, Louisiana, this 13th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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