In Re: The Matter of Marquette Transportation Company Gulf-Inland, LLC

Filing 98

ORDER AND REASONS granting 58 Motion by Marquette for Judgment on the Pleadings. The Tran claimants shall have five (5) days from the entry of this order to amend their claim that Marquette was negligent in hiring and retaining Kass as captain of the FATHER SEELOS. All other claims addressed in Marquette's motion are DISMISSED WITH PREJUDICE.. Signed by Judge Sarah S. Vance on 4/20/16. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
IN THE MATTER OF
MARQUETTE TRANSPORTATION
COMPANY GULF-INLAND, LLC,
AS OWNER AND OPERATOR OF
THE TOWING VESSEL FATHER
SEELOS, ETC.

NO: 13-5114

SECTION: R

ORDER AND REASONS
Limitation plaintiff Marquette Transportation Company Gulf-Inland,
LLC moves the Court for judgment on the pleadings with respect to the
Tran claimants’ claims for unseaworthiness, negligent hiring and negligent
retention, gross negligence, and punitive damages.1

For the following

reasons, the Court grants the motion.
I.

BACKGROUND
This case arises out of a July 7, 2013 collision between the FATHER

SEELOS, a towing vessel owned and operated by Marquette Transportation
Company Gulf-Inland, LLC (“Marquette”), and a fishing vessel owned by

1

R. Doc. 58.

John Tran.2

The collision occurred while the FATHER SEELOS was

pushing barges in the territorial waters of the State of Texas. 3 As a result of
the collision, the fishing vessel was destroyed and John Tran was killed. 4
On July 18, 2013, Marquette filed a complaint seeking exoneration
from or limitation of liability under 46 U.S.C. § 30501, et seq. 5 Marquette
also posted a bond for the limitation fund in the amount of $3,300,000
(the alleged value of the FATHER SEELOS and her pending freight). The
Court then stayed all actions arising out of the collision and ordered that
any claimant seeking recovery for any loss, damage, or injury caused by the
collision must file his or her claim with this Court by October 25, 2013. 6
On October 23, 2013, claimants Susan Tran (individually and as a
personal representative of the decedent, John Tran, on behalf of herself and
her minor child, Marsha Tran), Quoc Tran, Jeanie Tran, and Nancy Pham
filed a claim against Marquette under general maritime law and the

2
3

Id.

4

Id. at 3.

5

R. Doc. 1.

6

2

R. Doc. 1 at 2.

R. Doc. 5.

survival and wrongful death laws of Texas and/or Louisiana.7 In their
Amended Claim, the Tran claimants allege that the negligence and/or gross
negligence of Marquette and the unseaworthiness of the FATHER SEELOS
caused John Tran’s death.8 Specifically, the Tran claimants allege that
Marquette drove the FATHER SEELOS on the wrong side of the navigable
channel and failed to, among other things, keep a proper lookout and
maintain a safe distance between the FATHER SEELOS and John Tran’s
fishing vessel.9

The Tran claimants further allege that Marquette was

negligent in hiring and retaining Timothy David Kass, the captain of the
FATHER SEELOS at the time of the collision. 10 The Tran claimants seek
compensatory damages, as well as punitive damages under general
maritime law.11
Marquette now moves for judgment on the pleadings concerning the
Tran claimants’ unseaworthiness, negligent hiring and negligent retention,

7

R. Doc. 7.

8

R. Doc. 54 at 2-3.

9

Id.

10
11

3

Id. at 3.
Id. at 3-4.

gross negligence, and punitive damages claims.12 Marquette argues that the
Tran claimants cannot maintain an unseaworthiness claim against
Marquette as the owner of the FATHER SEELOS because John Tran was
not a crew member of that vessel. As to the remaining claims, Marquette
argues that the Tran claimants’ allegations are conclusory and insufficient
to satisfy the pleading standards of Rule 8(a) of the Federal Rules of Civil
Procedure.

II.

LEGAL STANDARD
A motion for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c) is appropriate if the matter can be adjudicated by deciding
questions of law rather than factual disputes. Brittan Commc’ns Int’l Corp.
v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002). It is subject to the
same standard as a motion to dismiss under Rule 12(b)(6).
MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

Doe v.

To survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads

12

4

R. Doc.

facts that allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A court must accept all well-pleaded facts as true and
must draw all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But the Court is not
bound to accept as true legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Id. In other
words, the face of the complaint must contain enough factual matter to
raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above the speculative
level, or if it is apparent from the face of the complaint that there is an
insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S.
at 555.

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III. DISCUSSION
Marquette moves for judgment on the pleadings on the Tran
claimants’ claims for unseaworthiness, negligent hiring and negligent
retention, gross negligence, and punitive damages. The Court addresses
each claim in turn.
A.

Unseaworthiness

Marquette argues that the Tran claimants cannot maintain an
unseaworthiness claim against Marquette as the owner of the FATHER
SEELOS because John Tran was not a crew member of that vessel.13 The
Tran claimants do not argue against this conclusion.
A shipowner’s duty to provide a seaworthy vessel is an absolute and
nondelegable duty which “the owner of a vessel owes to the members of the
crew who man her.” United New York & New Jersey Sandy Hook Pilots
Ass’n v. Halecki, 358 U.S. 613, 616 (1959) (emphasis added). The duty of
seaworthiness requires the shipowner to furnish the crew with a vessel, and
its appurtenances, that are reasonably fit for their intended uses. Mitchell
v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). With a narrow exception,

13

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R. Doc. 58-1 at 3.

not applicable here, 14 a plaintiff cannot assert an unseaworthiness cause of
action against a vessel on which he is not a crew member.

See, e.g.,

Coakley v. SeaRiver Mar., Inc., 319 F. Supp. 2d 712, 714 (E.D. La. 2004),
aff’d, 143 F. App’x 565 (5th Cir. 2005) (holding that seaman working on a
barge while employed as a crewman of a tow vessel could not maintain an
unseaworthiness action against the barge owner); Speer v. Taira Lynn
Marine, Ltd., Inc., 116 F. Supp. 2d 826, 829 (S.D. Tex. 2000) (“In order to
bring an unseaworthiness cause of action, plaintiff must be a member of the
crew of the vessel on which he suffered his injury.”).
Here, the Tran claimants do not allege that John Tran was a crew
member aboard the FATHER SEELOS. Their claim is that John Tran was
In Sea Shipping Co. v. Sieracki, the United States Supreme Court
extended the unseaworthiness cause of action to longshoremen employed
by an independent contractor but doing the work of a seaman aboard ship.
328 U.S. 85, 99 (1946). But in 1972, Congress amended the
Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA) to add
33 U.S.C. § 905(b), which effectively abolished the Sieracki
unseaworthiness cause of action. Edmonds v. Compagnie Generale
Transatlantique, 443, U.S. 256, 262 (1979). The Sieracki cause of action is
still available to certain workers who are not subject to the LHWCA. See
Aparicio v. Swan Lake, 643 F.2d 1109, 114 (5th Cir. Unit At 1981) (holding
that federally-employed worker not covered by the LHWCA had a Sieracki
claim). But the Tran claimants do not claim that John Tran was a Sieracki
seaman, and such an claim would be meritless under Fifth Circuit law. See
Smith v. Harbor Towing & Fleeting, Inc., 910 F.2d 312, 314 (5th Cir. 1990)
(declining to extend Sieracki seaman status to seaman injured on vessels
on which they are not crew members).
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operating a different vessel when it was struck by the FATHER SEELOS.
Thus, the Tran claimants fail to state an unseaworthiness claim against
Marquette as a matter of law, and the Court grants Marquette’s motion to
judgment on the pleadings with respect to this claim.
B.

Negligent Hiring/Retention

Marquette argues that the Tran claimants fail to allege facts to
support claims of negligent hiring and negligent retention of Kass, the
captain of the FATHER SEELOS. Specifically, Marquette contends that the
Tran claimants’ claim offers labels and conclusions, and does not allege
facts suggesting that Marquette failed to inquire into Kass’s qualifications
or that a lack of inquiry was a legal cause of the collision. 15
To state a claim for negligence under general maritime law, a plaintiff
must allege “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.” In
re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010)
(quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.
2000)). As to causation a party’s negligence is actionable only if it is the

15

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R. Doc. 58-1 at 5.

“legal cause” of the plaintiff’s injuries. Id. The Fifth Circuit defines legal
cause as “something more than but for causation,” meaning that “the
negligence must be a substantial factor” in causing the injuries. Id.
Here, the Tran claimants fail to plausible allege that Marquette was
negligent in hiring and retaining Kass as a captain. While a shipowner
owes a duty to exercise reasonable care in selecting a master and crew, see
Kersey v. Am. River Transp. Co., 353 F. Supp. 2d 683, 696 (E.D. La. 2004)
(quoting Thomas J. Schoenbaum, Admiralty and Maritime Law § 6–22, at
348 (4th ed. 2004)), a claim that a shipowner breached that duty requires
more than a formulaic recitation of the elements of the cause of action.
Twombly, 550 U.S. at 555. The relevant portions of the Amended Claim
merely allege, without factual support, that Marquette is liable to claimants
for “negligent hiring of” and “negligent entrustment to a reckless,
incompetent and/or unsafe captain.”16 The Tran claimants provide no facts
demonstrating how Marquette’s hiring process failed to conform to the
applicable standard of care.

Nor do they plead facts to support the

conclusion that Kass was “reckless” and “incompetent” at the time

16

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R. Doc. 54 at 3.

Marquette hired him. Cf. Patterson v. Omega Protein, Inc., No. CIV.A. 136293, 2014 WL 4354461, at *7 (E.D. La. Sept. 2, 2014) (finding that plaintiff
could not recover for against vessel owner for negligent hiring when there
was no indication that the negligence of a crew member who harmed
plaintiff was reasonably foreseeable when the crew member was hired).
Finally, as to the claim of negligent retention, the Amended Claim is devoi
of facts tending to show that a reasonable employer would have terminated
Kass prior to the collision that killed John Tran. Thus, the Tran claimants
fail to state a plausible negligence claim against Marquette based on its
hiring and retention of Kass.
To resist this conclusion, the Tran claimants ask the Court to consider
public records demonstrating that Kass has multiple felony convictions.
While it is true that district courts may consider matters of public record
without converting a motion for judgment on the pleadings into a motion
for summary judgment, Stringer v. Davis Mountain Prop. Owners Ass’n,
Inc., 81 F. App’x 502 (5th Cir. 2003), the Tran claimants give no argument
explaining why Kass’s criminal history rendered him unfit to operate the
FATHER SEELOS. 17 Because the Tran claimants fail to explain how Kass’s
While the Tran claimants do argue that the felony convictions
suggest that Marquette should have conducted a background check on
17

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convictions cure the deficiencies in their Amended Claim, the Court will not
consider them in ruling on Marquette’s motion for judgment on the
pleadings. Accordingly, Marquette is entitled to judgment on the pleadings
on the Tran claimants’ negligent hiring and negligent retention claims.
C.

Gross Negligence

Marquette also challenges the sufficiency of the Tran claimants’
allegations of gross negligence. As with the negligent hiring and negligent
retention claims, Marquette contends that the Tran claimants’ pleadings
are conclusory and devoid of supporting factual material. 18
Gross negligence is defined as reckless and wanton misconduct. See
Miles v. Melrose, 882 F.2d 976, 989 (5th Cir. 1989). Gross negligence is
distinguished from ordinary negligence in that it “encompasses harm that
is willfully inflicted or is caused by the wanton and reckless disregard for
the safety of others.” See Computalog U.S.A., Inc. v. Blake Drilling &
Workover Co., Inc., No. 95–3009, 1996 WL 720761, at *2 (E.D. La. Dec. 9,
1996) (citing Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401,

Kass, R. Doc. 60 at 3-4, the Amended Claim does not allege that Marquette
perform or background check; nor does it allege any other deficiencies in
Marquette’s pre-hire investigation of Kass’s personal history.
18

11

R. Doc. 58-1 at 4.

411 (5th Cir. 1982)).
Here, the Tran claimants have not alleged facts demonstrating that
Marquette acted willfully or with wanton and reckless disregard for safety.
Although the Amended Claim alleges that the collision was “the result of
the negligence and gross negligence of [Marquette],”19 and that
“Marquette’s actions were willful and wanton,” 20 it provides no factual
allegations to support these conclusions.

Moreover, the facts that the

Amended Claim does allege—that the FATHER SEELOS “failed to keep a
proper lookout,” 21 “failed to properly and safely navigate the vessel,” 22 and
“negligently r[ode] on the wrong side of the channel”23—suggest ordinary
negligence, not willful and wanton misconduct.

The Amended Claims

therefore fails to allege enough facts to move the Tran claimants’ gross
negligence claim “across the line from the conceivable to the plausible.”
Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Twombly,

19

R. Doc. 54 at 2.

20

Id. at 4.

21

Id. at 2.

22

Id.

23

12

Id. at 3 (emphasis added).

550 U.S. at 570). The Court grants Marquette’s motion for judgment on the
pleadings on the gross negligence claim.
D.

Punitive Damages

Finally, Marquette challenges the Tran claimants’ claim for punitive
damages.

Marquette does not contend that punitive damages are

unavailable as a matter of law. Rather, it argues that to the extent punitive
damages are available, a punitive damages claim requires proof of reckless,
willful, and wanton conduct, which the Tran claimants fail to allege. 24
The general maritime law provides for a remedy of punitive damages
in certain, limited situations. In re Oil Spill by Oil Rig Deepwater Horizon
in Gulf of Mexico, on Apr. 20, 2010, 21 F.Supp.3d 657, 749 (E.D. La. 2014).
Importantly, “punitive damages recovery always requires a finding of
willful and wanton conduct” on the part of the alleged wrongdoer. Stowe v.
Moran Towing Corp., 995 F. Supp. 2d 570, 579 (E.D. La. 2014) (quoting
McBride v. Estis Well Service, LLC, 731 F.3d 505, 517–18 (5th Cir. 2013)).
In addition, Fifth Circuit precedent precludes a finding of punitive damages
against an employer unless the plaintiff pleads and proves either: (1)
“wanton misconduct derived from a corporate policy,” or (2) that “a

24

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R. Doc. 58-1 at 4.

corporate official with policy-making authority participated in, approved of,
or subsequently ratified the egregious conduct.” Collins v. A.B.C. Marine
Towing, L.L.C., No. CIV.A. 14-1900, 2015 WL 5970392, at *4 (E.D. La. Oct.
14, 2015) (citing In re Oil Spill, 21 F.Supp.3d at 749).
As noted, the Tran claimants fail to allege facts demonstrating willful
or wanton misconduct by Marquette or any of its employees. Nor is there
any allegation concerning policy-makers or corporate policies that would
warrant imposing punitive damages on Marquette for the acts of its
employees. Cf. In re Oil Spill by Oil Rig Deepwater Horizon, 21 F. Supp.
3d at 749-50 (finding that employer was not liable for punitive damages
under general maritime law when engineers whose recklessness caused well
blowout were not policy-making officials and their conduct did not emanate
from any corporate policy). The Court therefore grants Marquette’s motion
for judgment on the pleadings on the claim for punitive damages.
E.

Leave to Amend

The Tran claimants request leave to amend their claim to better allege
their causes of action. Ordinarily, courts grant such requests unless it
appears that amendment would be futile. See Stripling v. Jordan Prod.
Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000) (noting that leave to amend
should be freely given when the complaint is subject to dismissal for failure
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to state a claim unless such leave would be futile); Davis v. Teva Pharm.
USA, Inc., No. CIV.A. 13-6365, 2014 WL 4450423, at *4 (E.D. La. Sept. 10,
2014) (noting that courts generally grant leave to amend in the context of
judgment on the pleadings for failure to state claim); Sekil v. ADT Sec.
Servs. Inc., No. H–08–0510, 2008 WL 4844209, at *3 (S.D. Tex. Nov. 3,
2008) (stating that requests to amend pleadings are routinely granted
when made in response to a motion for judgment on the pleadings).
Here, it appears that it would not be futile to grant the Tran claimants
leave to amend their negligent hiring and negligent retention claims. In
their opposition to Marquette’s motion for judgment on the pleadings, the
Tran claimants suggest that, despite Kass’s criminal record and alleged
inexperience, Marquette hired him as a captain without conducting any
inquiry into his personal history and qualifications.

Because these

allegations, if true, could plausibly give rise to a claim that Marquette
breached its duty “to select a competent master and crew,” Kersey, 353 F.
Supp. 2d at 696, the Court grants the Tran claimants five (5) days to amend
its claim that Marquette was negligent in the hiring and retention of Kass as
the captain of the FATHER SEELOS.
The Court will not allow the Tran claimants to amend their gross
negligence or punitive damages claims, as amendment would be futile. To
15

support an earlier motion for leave to amend, the Tran claimants submitted
a “Proposed Second Amended Claim.” 25 That document, which the Tran
claimants filed after Marquette moved for judgment on the pleadings and
with the benefit of Marquette’s briefing on the issue, purports to correct
pleading defects in the Amended Claim. In fact, it merely repeats the Tran
claimants’ failure to allege facts tending to show either gross negligence or
willful or wanton misconduct.

The Proposed Second Amended Claim

alleges, for instance, that Marquette was grossly negligent in hiring Kass
without conducting a pre-hire background check.26

It also repeats the

Amended Claim’s allegation that Kass drove the FATHER SEELOS on the
wrong side of the channel—adding only the conclusory assertion that this
conduct was not merely negligent but grossly negligent. 27 Based on these
allegations, the Proposed Second Amended Claim contends that Marquette
is liable for punitive damages.

25

R. Doc. 69-3.

26

Id. at 5.

Compare R. Doc. 54 at 3 (alleging that the FATHER SEELOS’s
captain was “negligently riding on the wrong side of the channel”); with R.
Doc. 69-3 at 5 (alleging that “Kass was grossly negligent in riding on the
wrong side of the channel”).
27

16

Like the Tran claimants’ current claims, the proposed allegations
sound in ordinary negligence. The Tran claimants do not contend that
Marquette knew that Kass was unfit to operate the FATHER SEELOS at the
time they hired him; nor is there any allegation that Marquette was aware
of facts indicating an unacceptably high degree of risk that Kass was
unqualified for the position. While Marquette’s alleged failure to inquire
into Kass’s criminal history may suggest a lack of due care, it does not rise
to the level of gross negligence. See Maritrans Operating Partners v.
Diana T, No. CIV. A. 97-1916, 1999 WL 144458, at *8 (E.D. La. Mar. 15,
1999) (finding that although a company’s failure to drug-test its employees
was negligent, it did not rise to the level of gross negligently conduct).
Because the Tran claimants’ proposed amendment would be futile, the
Court denies the Tran claimants leave to amend their gross negligence and
punitive damages claims.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Marquette’s motion for

judgment on the pleadings. The Tran claimants shall have five (5) days
from the entry of this order to amend their claim that Marquette was
negligent in hiring and retaining Kass as captain of the FATHER SEELOS.
17

All other claims addressed in Marquette’s motion are DISMISSED WITH
PREJUDICE.

20th
New Orleans, Louisiana, this ___ day of April, 2016.

_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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