In Re: The Matter of Specialty Marine Services, Inc. and Creole Chief, Inc.

Filing 47

ORDER & REASONS granting in part and denying in part 33 Motion for Summary Judgment, as stated herein. Signed by Judge Martin L.C. Feldman on 12/8/2014. (Reference: 13-6469)(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: THE MATTER OF SPECIALTY

CIVIL ACTION

MARINE SERVICES, INC., AND

NO. 13-6379

CREOLE CHIEF, INC.

SECTION "F"
ORDER AND REASONS

Before the Court is a motion for summary judgment by the
petitioners-in-limitation, REC Marine Logistics, LLC, and REC
Boats, LLC, to dismiss all of the allegations of the claimant-inlimitation, Gerald Prejeant, against them.

For the reasons that

follow, the motion for summary judgment is GRANTED IN PART and
DENIED IN PART.
Background
This is a maritime tort case.

In May 2013, Mr. Prejeant was

working as a deckhand onboard M/V RAZORBACK, a push boat.

Another

vessel, M/V DARI LYNN, had six barges in its tow in the Mississippi
River awaiting its turn to enter the Harvey Locks to access the
Harvey Canal.

Due to the size restraints of the Harvey Locks, the

six-barge tow needed to be broken down into two smaller tows
composed of three barges each. The owner of the barges engaged the
RAZORBACK to break down the six-barge tow into two three packs and
then

take

one

of

the

three

packs

through

the

Harvey

Locks.

Prejeant was assigned to help with the transfer of those three
barges from the DARI LYNN.

In the process of transferring the

1

barges to the RAZORBACK, the barges came loose and were taken by
the current towards the bank of the Mississippi River bordering New
Orleans.

The details surrounding the breakaway are disputed.

The

captain of the RAZORBACK attempted to get control over the barges
and ended up ramming them.
As the result of the collision and a later sudden rush of
water, Prejeant fell twice, injuring himself.

With respect to his

first fall, Prejeant testified that he was working on the forward
upper deck of the RAZORBACK when, pursuant to instructions from the
RAZORBACK captain or a more senior deckhand, he went down the
exterior stairs to retrieve a bigger rope.

While going down the

stairs, Prejeant testified that the RAZORBACK unexpectedly rammed
one of the barges and that this caused him to fall, striking his
head and neck on the stairs.

About twenty or twenty-five minutes

later, Prejeant fell a second time. He testified that he was alone
on the lower deck of the RAZORBACK when water came over the bow of
the vessel, hit his shins, and caused him to fall back and hurt his
head.
Prejeant brought claims against REC Marine Logistics and REC
Boats, the operator and owner of the DARI LYNN, and against Creole
Chief and Specialty Marine Services, the operator and owner of the
RAZORBACK.
judgment,

REC Marine Logistics and REC Boats move for summary
contending

that

the

claims

against

them

should

be

dismissed because DARI LYNN did not cause Prejeant's injuries and

2

because DARI LYNN did not owe a duty of seaworthiness to Prejean
who did not work on the DARI LYNN.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

3

competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
To establish a cause of action based on negligence, the
plaintiff must establish the existence of four elements: (1) the
defendant was under a duty to the plaintiff to use due care; (2)
the defendant was guilty of a breach of that duty; (3) the
plaintiff has suffered damages; and (4) the breach of the duty
proximately caused those 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 F.2d 287, 289 (5th Cir. 1978).

"[L]egal 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

4

216, 223 (5th Cir. 1975); see also Chisholm v. Sabine Towing &
Transp. Co., 679 F.2d 60, 63 (5th Cir. 1982).

Even where a party's

negligence is a legal cause of the injury, a "superseding cause"–a
later cause of independent origin for which the original wrongdoer
is not responsible–can absolve him of liability.
The petitioners essentially dispute the causation element of
the negligence claim.

The petitioners contend that: (1) there is

no evidence to support Prejeant's claim against them; (2) any
alleged negligence on the part of the DARI LYNN was not the legal
cause

of

Prejeant's

alleged

injuries;

and

(3)

even

if

the

petitioners' alleged negligence with respect to the breakaway
caused or contributed to Prejeant's injuries, the RAZORBACK's
superseding and intervening negligence relieves the petitioners
from any liability.

They also contend that they did not owe

Prejeant a duty of seaworthiness.

This Court finds merit in the

last argument only.
The

petitioners

rely

heavily

on

Prejean's

deposition

testimony, which they carefully construe in their favor. Regarding
his first fall, Prejeant testified that it was caused by "the bump"
when the RAZORBACK rammed a barge.

He then agreed with the

statement that "the DARI LYNN had nothing to do with [his] first
fall on the stairs." But the petitioners omit the next exchange in
the deposition.

The passage in its entirety reads as follows:

Q. So the record is abundantly clear, the DARI LYNN had
nothing to do with your first fall on the stairs,
5

correct?
A. I would have to say yes, correct.
Q. Thank you.
A. It's possible.
Q. Wait a minute. I know you understand this question,
because you're a smart guy and this is a very simple
question. Hold on. I'm asking you, the DARI LYNN, which
you said was up against the west bank of the river or not
in your immediate area, did it have anything to do with
your fall on the steps? You said "no" and then you say
"possibly."
A. This is the reason why I'm saying yeah and no. The
reason why, I don't know if the DARI LYNN was on the
other side of these barges bumping them that way while
this one was bumping it that way. I have no idea where
the DARI LYNN was.
Prejeant's attributing his first fall to the "bump" that he
felt when the RAZORBACK rammed into a barge cannot on this record
be interpreted on its face to mean that his fall is attributable to
nothing more. The "bump" was the direct and immediate cause of his
fall, but this Court cannot find that there is no material dispute
as to whether the actions of the DARI LYNN were not also a legal
cause.
Regarding his second fall, Prejeant testified as follows:
Q. What caused you to fall, according to your testimony,
is water striking your shins?
A. A devastating amount of water striking my shins. The
river, keep in mind, was flowing very, very rapidly,
fast, forceful. Then it come over that bow and took my
feet from under me.
Q. Anything else, besides the water, as you say?
. . .
A. That's the only thing it could have been.
Q. When you fell the second time, there was no barge
ramming or anything of that nature?
A. No. . . .
Q. When you fell this second time on the lower deck of
the RAZORBACK, the DARI LYNN had no involvement in
causing you to fall that second time, did it?
6

A.

No.

It was the water.

Again, the petitioners contend that this means that only the
water was responsible for the second fall, and that the DARI LYNN
played no role in causing the injury.

Prejeant's straightforward

explanation and his natural tendency to attribute the fall to the
force directly causing him to fall to the ground–the rushing
water–does not mean that negligence on the part of the crew of the
DARI LYNN was not a substantial cause of his injuries.
The petitioners also ignore the deposition testimony of the
captain of the RAZORBACK, Captain Kraly. Kraly testified as to the
role that the captain of the DARI LYNN played in the botched barge
transfer and the subsequent allision.

Although the petitioners

contend that any actions by Captain Kraly are a superseding cause
absolving them of liability, this Court cannot find as a matter of
law that Kraly's negligence was unforeseeable or extraordinary. He
may have acted foreseeably in response to the other captain's
negligent acts.

Thus, summary judgment as to the negligence claim

is inappropriate.

There are material facts in dispute.
III.

The petitioners also move for summary judgment as to the
unseaworthiness claim against them, and the respondents do not
oppose.

To the extent that Prejeant brings a separate claim

against the petitioners for the unseaworthiness of either the DARI

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LYNN

or

the

RAZORBACK,

this

claim

is

without

merit.1

The

petitioners did not employ Prejeant and owed him no duty of
seaworthiness.
Accordingly, the motion for summary judgment is DENIED as to
the negligence claim and GRANTED as to the unseaworthiness claim.

New Orleans, Louisiana, December 8, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

1

Prejeant repeatedly generally references "negligence and/or
unseaworthiness" in his answer, defenses, and claim.
8