Slatten, LLC et al v. Royal Caribbean Cruises, Ltd et al

Filing 98

ORDER AND REASONS denying 66 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 8/22/14. (Reference: ALL CASES)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SLATTEN, LLC, et al.

CIVIL ACTION

VERSUS

NO: 13-673

ROYAL CARIBBEAN CRUISES LTD.,
et al.

SECTION: R(5)

ORDER AND REASONS
Third-party defendants Beverley Navigation, Inc. and
Pleiades Shipping Agents, S.A. (collectively, "Beverley") move
for summary judgment on all claims against them.1 Defendant Royal
Caribbean Cruises Ltd. ("Royal Caribbean") and third-party
defendants United Bulk Terminals Davant, LLC ("UBT") and
Marquette Transportation Company Gulf-Inland, LLC ("Marquette")
oppose the motion.2 For the following reasons, the Court DENIES
Beverley's motion.

I.

Background
This consolidated maritime action arises out of a breakaway

incident on the lower Mississippi River in the early morning
hours of January 26, 2013. Before the breakaway, the tugboat
ALLISON S was moored to a number of Marquette's barges at UBT's
fleeting facility in Davant, Louisiana. Sometime after 3:00 A.M.,
the barges and the ALLISON S broke loose from their mooring and
1

R. Doc. 66.

2

R. Docs. 72, 74, 75.

drifted downstream. The ALLISON S allided with the anchored
vessel HIGH STRENGTH. It sustained damage and its crew allegedly
suffered personal injuries. In addition, several of the breakaway
barges struck and damaged an anchored barge belonging to Bouchard
Transportation Co., Inc. ("Bouchard").
The parties dispute the cause of the breakaway. Slatten,
LLC, the owner of the ALLISON S, and Bisso Towboat Company, Inc.,
the owner pro hac vice of the ALLISON S (collectively,
"Slatten"), commenced this action against defendant Royal
Caribbean.3 Slatten alleges that Royal Caribbean's cruise ship,
the NAVIGATOR OF THE SEAS ("NAVIGATOR"), was operating in the
Mississippi River; that it overtook the NESTOS, an oil tanker
owned and/or operated by Beverley, in the area of UBT's fleeting
facility; that the NAVIGATOR traveled at a speed greater than 14
knots as it overtook the NESTOS; and that the wake and suction
that the NAVIGATOR generated as it passed the fleeting facility
caused the breakaway.4
Royal Caribbean made UBT, Marquette and Beverley third-party
defendants to Slatten's claims, under Federal Rule of Civil
Procedure 14(c).5 Royal Caribbean alleges that the breakaway was
caused by the negligence of UBT and/or Marquette in failing to

3

R. Doc. 1.

4

Id. at 3.

5

R. Docs. 10, 15.
2

provide adequate moorings to secure the fleet.6 It further argues
that, to the extent that wake and suction generated by the
NAVIGATOR contributed to the breakaway, Beverley, too, is liable,
because wake and suction from the NESTOS, as well as "the actions
of the NESTOS," were contributing causes.7
Bouchard filed a separate suit against Royal Caribbean and
UBT, alleging liability for damage to its barge.8 The Court
consolidated Bouchard's suit with Slatten's suit.9 Royal
Caribbean then made Marquette, Slatten and Beverley third-party
defendants to Bouchard's claims, under Rule 14(c).10
Approximately three months later, three crew members of the
ALLISON S intervened in the suit.11 They allege that Royal
Caribbean is liable for injuries they suffered when the ALLISON S
allided with the HIGH STRENGTH.12 Royal Caribbean made Slatten,
UBT, Marquette and Beverley third-party defendants to the crew
members' claims, under Rule 14(c).13

6

R. Doc. 10 at 5-6.

7

Id. at 6-7.

8

Bouchard Transportation Co., Inc. v. Royal Caribbean
Cruises Ltd., No. 13-4975, R. Doc. 1.
9

R. Doc. 21.

10

R. Doc. 32 at 8-9.

11

R. Doc. 61.

12

Id.

13

R. Doc. 62 at 7-8.
3

Beverley moves for summary judgment on all claims against
it. It argues that "[t]he evidence fully supports that the
actions of the navigators aboard the NESTOS at the time of the
incident were neither negligent, nor did they contribute to the
barge breakaway which is the subject of this suit."14 Only Royal
Caribbean, UBT and Marquette oppose the motion.

II.

Summary Judgment Standard
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but
refrains from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398-399 (5th Cir. 2008). The Court must draw
reasonable inferences in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)

14

R. Doc. 66 at 1.
4

(quoting 10B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil § 2738 (2d ed. 1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party "must
come forward with evidence that would entitle it to a directed
verdict if the evidence went uncontroverted at trial." Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th
Cir. 1991) (quotation marks removed). The nonmoving party can
then defeat the motion by either countering with sufficient
evidence of its own, or "showing that the moving party's evidence
is so sheer that it may not persuade the reasonable fact-finder
to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings but must
identify specific facts that establish a genuine issue for trial.
Id.; see also Little, 37 F.3d at 1075 ("Rule 56 'mandates the
entry of summary judgment, after adequate time for discovery and

5

upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial.'") (quoting Celotex, 477 U.S. at 322).

III. Discussion
A.

The Court Considers the Oppositions to Summary Judgment
Filed by Third-Party Co-Defendants UBT and Marquette.
As an initial matter, Beverley argues that the Court should

decline to consider UBT's and Marquette's oppositions to
Beverley's summary judgment motion, "as these two parties have
simply failed to assert any claims against [Beverley]."15 "While
some courts have precluded co-defendants without crossclaims from
filing oppositions to a co-defendant's motion for summary
judgment, others have considered a co-defendant's opposition."
Edwards v. Permobil, Inc., No. 11-1900, 2013 WL 4094393, at *1
n.2 (E.D. La. Aug. 13, 2013) (citations removed). "[T]he Fifth
Circuit has implicitly recognized that parties between whom no
formal claims have been filed are considered adverse in the
context of a motion for summary judgment." Helen of Troy, L.P. v.
Zotos Corp., 235 F.R.D. 634, 640 (W.D. Tex. 2006) (citing John
Hancock Mut. Life Ins. Co. v. Johnson, 736 F.2d 315, 316 (5th
Cir. 1984)). This Court recently elected to consider an

15

R. Doc. 82 at 4-5.
6

opposition to summary judgment filed by the movant's codefendant, even though the co-defendant had filed no claim
against the movant. Edwards, 2013 WL 4094393, at *1 n.2. In light
of this precedent, the Court here considers the oppositions filed
by UBT and Marquette.16

B.

Beverley Might Be Contributorily Liable for Injury Resulting
From the Breakaway.
Beverley argues that it is entitled to summary judgment,

because the NESTOS could not have generated the wake and suction
that allegedly caused the breakaway and because the crew of the
NESTOS was not negligent in navigating the vessel.17 The parties
opposing summary judgment submit evidence disputing these claims.
The Court finds that this evidence is sufficient to establish a
genuine issue for trial as to whether Beverley was contributorily
negligent, on at least two theories.

16

Beverley also argues that, because Slatten, Bouchard and
the intervening crew members have not filed oppositions to its
motion for summary judgment, "the motion should be granted at
least in part with respect to [Beverley's] potential liability as
a direct defendant under Rule 14(c)." R. Doc. 82 at 4. For the
reasons detailed in this order, the Court finds that the
oppositions filed by Royal Caribbean, UBT and Marquette establish
genuine questions for trial as to all claims against Beverley.
Thus, the Court concludes that Beverley is not entitled to
summary judgment whether as a direct defendant or a third-party
defendant.
17

R. Doc. 66-1 at 4-8, 11-16.
7

First, Beverley may be liable if the NESTOS generated an
excessive swell that caused the breakaway, and this swell
resulted from negligent operation of the vessel. Gregg v. Weeks
Marine, Inc., No. 99-1586, 2000 WL 798493, at *4 (E.D. La. June
21, 2000). Beverley argues that it cannot be liable on this
ground, because the NESTOS was traveling along the side of the
river opposite the fleeting facility, the NAVIGATOR passed closer
to the fleeting facility as it overtook the NESTOS, and the
NAVIGATOR was traveling at a faster speed than the NESTOS.18
Thus, Beverley argues, any wake or suction causing the breakaway
must have come from the NAVIGATOR and not the NESTOS.
Royal Caribbean offers expert opinion evidence countering
this argument. It offers a declaration from Christopher Karentz,
a maritime consultant with approximately thirty years' experience
in marine operations,19 who suggests that wake and suction from
the NESTOS was a more likely cause of the breakaway than wake and
suction from the NAVIGATOR. Karentz states that, based on his
review of Coast Guard Automatic Identification System data,
"[t]he first definitive signs of movement by the ALLISON S occur
during the passage of the NESTOS."20 Further, he states that
"[t]he hydrodynamic behavior of the NAVIGATOR OF THE SEAS and the

18

Id. at 12.

19

R. Doc. 72-1; see R. Doc. 79-3.

20

Id. at 2.
8

NESTOS are drastically different. . . . The NAVIGATOR offers
little resistance to the water while traveling at any speed, as
opposed to the NESTOS which travels through the water analogous
to a brick due to the significant suction, surge and wake
resulting from its deep draft and hull design."21 These
observations are consistent with the deposition testimony of
Robert Johnson, the captain of the NESTOS at the time of the
breakaway. Johnson states that the NAVIGATOR, which he has
piloted in the past, "has a slight, slight wake" and doesn't
generate "much of a surge."22 Karentz concludes that if "suction,
surge, or wake caused the subject breakaway, such would more
probably than not be attributable to the NESTOS regardless of its
distance from the ALLISON S and subject UBT barges."23
Further, Johnson's deposition indicates that the area where
the UBT facility is located, known as the "coal hole,"24 is a
sensitive pass at which vessels typically slow down, but that the
NESTOS did not slow down when it reached the coal hole.25 The
Court finds that Karentz's declaration, together with Johnson's

21

Id. at 6.

22

R. Doc. 72-2 at 9; see also id. at 10 ("[T]he way [the
NAVIGATOR] is built, you know, it is not deep in the water, it
just kind of glides on the top.").
23

R. Doc. 72-1 at 7.

24

R. Doc. 74-4 at 4.

25

Id. at 2, 5-6, 7, 15-16.
9

deposition testimony, creates a genuine issue of fact as to
whether swells from the NESTOS caused the breakaway and whether
the NESTOS was traveling at an excessive speed through the coal
hole. See id. ("It is well established that a presumption of
fault arises when . . . [a vessel's] wake causes damage to a
moored or anchored vessel.").
Second, Beverley may be liable if the NESTOS acted
unreasonably, or violated a safety statute, in making and/or
executing passing arrangements with the NAVIGATOR. See 2 Thomas
J. Schoenbaum, Admiralty and Maritime Law § 14-2 (5th ed. 2013).
"The test and standard for a finding of negligence is reasonable
care under the circumstances, or whether judged against the
standard of good and prudent seamanship, the collision could have
been prevented by the exercise of due care." Id. Further, Rule 2
of the Inland Navigation Rules requires vessels to give "due
regard . . . to all dangers of navigation and collision and to
any special circumstances" and to take action "necessary to avoid
immediate danger." 33 C.F.R. § 83.02; see also 33 C.F.R. § 83.05
(Rule 5) ("Every vessel shall at all times maintain a proper
look-out . . . so as to make a full appraisal of the situation
and of the risk of collision.").
Royal Caribbean, UBT and Marquette point to testimony
suggesting that the NESTOS was negligent, or in violation of
safety statutes, and that its conduct contributed to the

10

breakaway at UBT's facility. First, Johnson, the NESTOS's pilot,
testified that he and other pilots "always cut back" (i.e., slow
down) when they pass through the coal hole, and that if he had
been piloting the NAVIGATOR through that area, he would have
slowed down, so as not "to blow out the fleet."26 Second, Kevin
McNeely, the captain of the NAVIGATOR, testified that before the
vessels reached the coal hole he radioed Johnson and told him the
NAVIGATOR was catching up to the NESTOS and would be overtaking
it eventually.27 Johnson replied, "Let me know when you start
coming up on me, and I will start cutting it back."28 Third,
McNeely testified that he was concerned about passing the NESTOS
within the coal hole,29 so he asked Johnson, "Do you want me to
stay behind you until we get through Davant [i.e., beyond the
coal hole]?"30 Johnson replied, "No, come on."31 Fourth, although
the NESTOS moved over to one side of the river to allow the
NAVIGATOR to overtake it in the coal hole, it did not slow
down.32

26

Id. at 5-6, 15-16.

27

R. Doc. 72-3 at 2.

28

Id. at 5.

29

Id. at 7.

30

R. Doc. 72-2 at 5; R. Doc. 72-3 at 7.

31

R. Doc. 72-2 at 5; R. Doc. 72-3 at 2-3, 7.

32

R. Doc. 72-2 at 3-4; R. Doc. 74-4 at 7.
11

The Court finds that this evidence suggests that, even if
the NAVIGATOR generated the wake and suction allegedly causing
the breakaway, the NESTOS could still have been negligent or in
violation of statutory safety rules. Specifically, it might have
been at fault for encouraging the NAVIGATOR to overtake it in the
coal hole and for failing to slow down as it had indicated it
would, thus requiring the NAVIGATOR to maintain a greater speed
in order to overtake it.33 Cf. Union Oil Co. of Ca. v. M/V
Issaquena, 470 F.2d 875, 876-77 (5th Cir. 1973) (captain of
vessel being overtaken was negligent for failing to dissent from
passing, since he conceded it was unsafe for overtaking vessel to
attempt to pass him); Frank E. Bassett & Richard A. Smith,
Farwell's Rules of the Nautical Road 253-54 (6th ed. 1982) ("[I]n
the face of apparent danger, it is [the overtaken vessel's] duty
to prohibit the passage by sounding the prescribed danger signal,
and if she assents instead, she will also be held at fault.").
Beverley argues that the NESTSOS was not at fault for
failing to slow down, because the Inland Navigation Rules mandate
that a vessel being overtaken "keep her course and speed."34 33
C.F.R. § 83.17. It further argues that it cannot be liable for

33

See R.
Karentz) ("At
'cut back' as
know that the
34

Doc. 72-1 at 4 (declaration of Christopher
this point, Captain Johnson should have began to
originally planned as Captain McNeely had let him
NAVIGATOR would begin its overtaking.").

R. Doc. 82 at 10.
12

Johnson's conduct encouraging the NAVIGATOR to overtake the
NESTOS in the coal hole, because Rule 13 of the Inland Navigation
Rules obliges the overtaking vessel, not the vessel being
overtaken, "to select a safe place to overtake another vessel in
the first instance."35 Otal Investments Ltd. v. M.V. Clary, 494
F.3d 40, 54 (2d Cir. 2007); but see 33 C.F.R. § 83.13 (Rule 13)
(not explicitly putting the burden to select a safe place for
passage on the overtaking vessel exclusively).
These arguments are unavailing. Inland Navigation Rule 2
states that "[n]othing in these Rules shall exonerate any vessel,
or the owner, master, or crew thereof, from the consequences
. . . of the neglect of any precaution which may be required by
the ordinary practice of seamen, or by the practical
circumstances of the case." 33 C.F.R. § 83.02(a); see Bassett &
Smith, supra, at 305 ("[Rule 2] warns against too rigid an
interpretation of the rules."). The record raises a genuine
question whether the NESTOS was negligent, or in violation of the
statutory requirement to pay due regard to all dangers of
navigation, in affirmatively encouraging the NAVIGATOR to
overtake it in the coal hole and in failing to slow down when the
NAVIGATOR began to overtake it. Although the Inland Navigation
Rules generally put the responsibility for safe passage on the
overtaking vessel, the Court finds that there is a genuine

35

Id. at 9.
13

triable issue whether the NESTOS assumed partial responsibility
for the passage by selecting the location for it and by offering
to slow down. Cf. Canal Barge Co., Inc. v. China Ocean Shipping
Co., 770 F.2d 1357, 1361 (5th Cir. 1985) ("Even when the custom
prevails, pilots of approaching vessels may agree to pass in some
fashion other than the manner provided by habitual practice.").
Since the Court finds that there are genuine questions of
fact whether swells from the NESTOS contributed to the breakaway
and whether the NESTOS was at fault in reaching and/or executing
passing arrangements with the NAVIGATOR, summary judgment is not
warranted at this time.

IV. Conclusion
For the foregoing reasons, the Court DENIES Beverley's
motion for summary judgment.

New Orleans, Louisiana, this _____ day of August, 2014.

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14