In the Matter of Marquette Transportation Gulf-Inland, LLC

Filing 30

ORDER AND REASONS denying 12 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN RE: MARQUETTE TRANSPORATION
GULF-INLAND, LLC, AS OWNER PRO HAC
VICE OF THE M/V ST. THOMAS, OFICIAL
NO. 1050938, FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

CIVIL ACTION
NO. 14-1961
SECTION “B”(5)

ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before

the

Court

is

Limitation

Plaintiff’s,

Marquette

Transportation Gulf-Inland, LLC, “Motion for Summary Judgment”
(Rec. Doc. 12), which seeks dismissal of the claims asserted by
Claimant-in-Limitation,
doctrine of

Iberville

Robins Dry Dock

Parish

Council,

under

the

and related progeny. The Parish

opposes the motion (Rec. Doc. 14), Marquette has replied (Rec.
Doc. 18), and the Parish has filed a sur-reply (Rec. Doc. 27).
For the reasons that follow,

IT IS ORDERED THAT

Marquette’s

Motion is DENIED.
II. FACTS AND PROCEDURAL HISTORY
Marquette

brings

this

action

under

the

Limitation

of

Liability Act, 46 U.S.C. § 30501, et seq., as owner pro hac vice
of the M/V ST. THOMAS, arising out of an allision between that
vessel and the Gross Tete Bridge (the “Bridge”), which occurred
on February 28, 2014. (Rec. Doc. 12-1 at 1). The Bridge carries

1

traffic on Louisiana Highway 77 across the Intracoastal Waterway
in Iberville Parish, Louisiana, and was at all relevant times
owned

and

operated

solely

by

the

Louisiana

Department

of

Transportation and Development (“DOTD”), a political subdivision
of the State. (Rec. Doc. 12-1 at 2, Rec. Doc. 14 at 1). The
Bridge

sustained

damage

in

the

allision,

necessitating

its

closure for repairs for approximately 80 days. (Rec. Doc. 14 at
2). The closure imposed significant detours on Iberville Parish
residents
engaging

for
in

purposes
other

of

daily

commuting,
activities.

grocery

shopping,

Id.

an

In

effort

and
to

alleviate the inconvenience presented by the Bridge’s closure,
the

State,

through

endeavor/joint

DOTD,

venture”

entered

with

the

into

a

Parish

“cooperative

and

the

State’s

Department of Wildlife and Fisheries (“DWLF”) “to provide an
alternative

means

transportation
State

of

to

the

Louisiana,”

of

efficient,

residents
in

the

of
form

safe,
Iberville
of

a

and

adequate

Parish

ferry

and

the

across

the

Intracoastal Waterway. (Rec. Doc. 14 at 2)
Because DOTD did not have ferry boats readily available at
the

time,

nor

the

resources

to

immediately

acquire

land

necessary for ferry operations, the agreement called for the
State to furnish a state-owned and DWLF-operated passenger ferry
to the Parish as an alternative means of transportation. (Rec.
Doc. 14 at 2). The Parish, for its part, was to “construct,
2

maintain, staff, and obtain a site for temporary ferry landings
on both sides of the Intracoastal Waterway.” (Rec. Doc. 14 at
2). The Parish agreed and performed under the agreement. (Rec.
Doc.

27-1).

limitation

Thereafter,
proceedings,

when

Marquette

the

Parish

initiated

submitted

the

a

instant

claim

for

reimbursement of the expenses incurred in performing under its
agreement with the State.
III. CONTENTIONS OF MOVANT
Marquette
alleging

that

seeks
the

to

have

doctrine

the

Parish’s

established

in

claims
Robins

dismissed,
Dry

Dock

prohibits recovery in an action premised on maritime negligence
by a party who did not incur physical damage to an item in which
it held a proprietary interest.1 Because the Fifth Circuit has
squarely endorsed the Robins Dry Dock doctrine and because there
is no dispute that the Parish did not at any time have an
ownership interest in the Bridge, Marquette claims the Parish
may not seek to recover the expenses incurred in connection with
acquiring and maintaining the ferry landing properties. To the
extent the Parish’s claim is premised on the assertion of a
theory of equitable subrogation, Marquette argues the Parish has
not established the elements of equitable subrogation here.
IV. CONTENTIONS OF OPPONENTS

1

Robins Dry Dock v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927).
3

The Parish argues that while the Robins Dry Dock doctrine
is followed in the Fifth Circuit, an exception exists whereby
the

party

asserting

a

claim

for

liability

arising

out

of

physical damage to property may transfer some portion of that
claim

to

a

third

party

for

recovery.

The

Parish

argues

the

animating principle of Robins Dry Dock is a concern with the
possibility of unlimited and/or duplicative recovery stemming
from remote damages incurred in the wake of maritime torts.
These concerns, it argues, are not present here and the Parish
should

be

entitled

to

recover

its

expenses

incurred

in

connection with performance under its agreement with the State,
which operates in the manner of an equitable subrogation under
cases such as Amoco Transp. Co. v. S/S Mason Lykes, 768 F.2d 659
(5th Cir. 1985).
V. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,

answers,

show

that

and
there

admissions,
is

no

together

genuine

issue

with
as

to

any
any

material fact and that the moving party is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56; see also Celotex Corp.

v. Catrett, 477 U.S. 317, 327 (1986).

A genuine issue exists if

the evidence would allow a reasonable jury to return a verdict
for the nonmovant.
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

Although the Court must consider the evidence
4

with all reasonable inferences in the light most favorable to
the nonmoving party, the nonmovant must produce specific facts
to demonstrate that a genuine issue exists for trial.

Webb v.

Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536
(5th

Cir.

1998).

The

moving

party

bears

the

initial

responsibility of informing the district court of the basis for
its motion. Celotex, 477 U.S. at 323. The movant must point to
“portions

of

‘the

pleadings,

depositions,

and

admissions

on

interrogatories,
affidavits’

which

it

believes

file,

demonstrate

answers
together

the

absence

to
with
of

a

genuine issue of material fact.” Id. (citing Fed. R. Civ. P.
56). If and when the movant carries this burden, the nonmovant
must

then

go

depositions,

beyond

the

interrogatory

pleadings
responses,

evidence to establish a genuine issue.

and

use

admissions,

affidavits,
or

other

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[W]here
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
judgment

the
proof

burden
that

of

demonstrating

there

is

an

by

issue

competent
of

summary

material

fact

warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616 (5th Cir. 1994). Accordingly,
5

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).
VI. DISCUSSION
In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48
S.Ct. 134, 72 L.Ed. 290 (1927), the United States Supreme Court
denied the claims of time charterers seeking recovery of damages
in the form of lost expected profits incurred when the timechartered

vessel

was

delayed

due

to

damage

caused

by

the

negligence of the operator of a dry dock. That decision has been
interpreted by the Fifth Circuit to establish a strict rule that
“claims for economic loss unaccompanied by physical damage to a
proprietary interest [are] not recoverable in maritime tort.”
State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th
Cir. 1985)(en banc). In

TESTBANK, the en banc Fifth Circuit

emphatically re-affirmed the Robins Dry Dock doctrine, engaging
in a lengthy discussion of the policies and normative principles
animating

the

rule

and

rejecting

arguments

against

application to conclude:
[H]aving reexamined the history and central
purpose of the doctrine of Robins Dry Dock
as developed in this circuit, we remain
committed to its teaching. Denying recovery
for pure economic losses is a pragmatic
limitation
on
the
doctrine
of
foreseeability, a limitation we find to be
both workable and useful.

6

its

752

F.2d

at

1032.

The

Fifth

Circuit

later

re-affirmed

its

commitment to the Robins Dry Dock rule in In re Taira Lynn
Maritime Ltd. No. 5, LLC, stating: “It is unmistakable that the
law of this circuit does not allow recovery of purely economic
claims absent physical injury to a proprietary interest in a
maritime negligence suit.” 444 F.3d 371, 377 (5th Cir. 2006).
The Taira Lynn court proceeded to reject an argument advanced in
favor of recognizing a geographic exception to the Robins Dry
Dock/TESTBANK rule, and further gave a very narrow reading to
the

physical

damage

requirement

of

that

rule.

Id.

at

380

(spoiled seafood cargo and terminated manufacturing runs that
resulted when electricity was shut off for evacuation purposes
following allision did not satisfy the physical damage component
of the TESTBANK rule).
The foregoing makes it abundantly clear that the Parish has
no claim in its own right for costs and expenses associated with
the

acquisition

and

operation

of

the

ferry

landings

whose

development was precipitated by the closure of the Bridge. There
is no dispute that the Parish has no proprietary interest in the
Bridge and that the Parish suffered no physical damage to any
other property it owned. Accordingly, the only issues before the
Court

are:

(1)

whether

the

Robins

Dry

Dock/TESTBANK

rule

recognizes an exception, such as the one asserted here by the
Parish, with respect to a real party in interest’s ability to
7

shift some of its own injury by contract to a third party, and
(2)

if

so,

whether

the

Parish’s

claims

fit

within

that

exception.
In support of its argument here, the Parish relies on Amoco
Transp. Co. v. S/S Mason Lykes, 768 F.2d 659 (5th Cir. 1985).
That case involved a collision between two vessels, one carrying
a

partial

load

of

cargo,

which

resulted

in

damage

to

both

vessels. Id. at 661. Although the cargo was put in jeopardy by
the collision, it was not damaged. Id. at 661-62. Damage to the
carrying vessel and anticipated repair delays, however, prompted
the carrying vessel’s owner to discharge the cargo at port in
order for it to be loaded onto another vessel and transported to
its final destination. Id. Because of a “freight earned clause”
in the bills of lading, the cargo owners were charged the full
freight

for

the

original

aborted

voyage

and

a

second

full

freight charge to secure shipment of the cargo to its final
destination. Id. The cargo owners then filed suit against both
vessels/their owners seeking recovery of the additional freight
charge. Id. at 662. Relying on Robins Dry Dock, the district
court

denied

losses

to

be

the

cargo

purely

owners’

economic

claims,
losses

considering

without

any

freight
attendant

physical damage to a proprietary interest (because the cargo
owners had no ownership interest in the damaged vessel). Amoco
Transp.

Co.,

768

F.2d

at

666.
8

Finding

Robins

Dry

Dock

and

TESTBANK inapposite, the Fifth Circuit reversed, concluding that
the cargo owners could recover from the vessel on two bases. Id.
at 668. First, the Court found the owner of the damaged vessel
and the cargo owners were engaged in a common venture which
sustained physical injury as a result of the collision, and that
the

cargo

owners’

lost

freight

charges

constituted

damages

flowing directly from the collision for which the negligent noncarrying vessel would have been liable even in the absence of a
freight earned clause. 768 F.2d at 667-68. This reasoning relied
on traditional maritime principles recognizing the existence of
a common venture between cargo and vessel owners. Id. at 668.
Second, and alternatively, the Court noted that in the absence
of a freight earned clause in the bills of lading, the carrying
vessel

would

not

have

the

right

to

retain

the

explaining:
When a collision causes a vessel to lose
freight by preventing delivery of the cargo
to its final destination, the cargo-carrying
vessel can recover the lost freight from the
negligent non-carrying vessel. . . . Thus
the loss of the original freight for the
voyage would be an economic loss of the
owner of the damaged vessel. Robins Dry Dock
does not prevent recovery for such economic
losses by the owner of the physically
damaged vessel. See Vicksburg Towing Co. v.
Mississippi Marine Tranport Co., 609 F.2d
176 (5th Cir. 1980); State of Louisiana ex
rel
Guste
v.
M/V
TESTBANK;
Venore
Transportation Co. v. M/V STRUMA, 583 F.2d
708 (4th Cir. 1978). Nor does Robins Dry
Dock prevent recovery for such losses by a
9

freight,

person to whom they have been contractually
shifted.
Standard
Navigazione
v.
K.Z.
Michalos, 1981 A.M.S. 748 (S.D. Tex. 1981);
Venore Transportation Co. v. M/V STRUMA.
Nothing in the Robins Dry Dock or the
TESTBANK
holding or rationale prohibits
recovery in tort by the person to whom the
economic losses suffered by the owner of the
physically
damaged
property
have
been
shifted. The effect of a freight earned
clause is similar to the effect of a clause
providing that charter hire continues to run
while a vessel is disabled; it contractually
shifts the risk of economic loss, which
would normally fall upon the property owner,
to a third party. That third party is
entitled to recover those losses. The risk
of double recovery from the tortfeasor is
not extant. STRUMA.
Amoco Transp. Co., 768 F.2d at 668 (emphasis added).
In light of the above, it is settled that where the loss
sought to be recovered by a third party is actually an economic
loss otherwise recoverable by the real party in interest (i.e.,
the

party

that

sustained

physical

damage

to

a

proprietary

interest), which loss has been shifted by way of agreement to
the

third

party,

it

is

properly

recoverable

by

that

party

notwithstanding the Robins Dry Dock doctrine. Here, the Parish
argues (and Marquette fails to rebut) that the economic loss
incurred in connection with the ferry operations is a loss that
would

be

physical

properly
injury

to

recoverable

by

state-owned

the

State

property,

arising
viz.

the

out

the

Bridge.

Because the State entered into a cooperative agreement whereby
the Parish would incur expenses in connection with the ferry
10

operations, the Parish argues the State merely shifted that loss
to

it,

which

loss

remains

recoverable

in

line

with

Amoco’s

reasoning and in light of the fact that no risk of doublerecovery exists. Accordingly, unless there is some valid basis
for distinguishing

Amoco, Marquette’s summary judgment motion

must be denied. Toward that end, Marquette argues that the facts
of Amoco, which involved a collision between two vessels and
relied

on

“venerable”

and

“firmly

established”

maritime

principles that recognize that vessel and cargo owners are bound
together in a common venture arising out of the Jason Clause
contained in a bill of lading, render that case inapplicable
here. In this effort, Marquette completely ignores the second
rationale offered by the Fifth Circuit in Amoco; namely, that
nothing about the Robins Dry Dock/TESTBANK rule prevents the
real party in interest from shifting the right to recover some
of its properly recoverable economic loss to a third party.
Marquette seeks to rely on Norwegian Bulk Transport A/S v.
Int’l Marine Terminals P’ship., 520 F.3d 409 (5th Cir. 2008) as
a basis for limiting the reach of the so-called Amoco exception.
In that case, the Fifth Circuit adopted in extenso the Order and
Reasons issued by the district court in denying recovery to a
time charterer that filed a claim for damages arising out of the
delay of a vessel for repairs occasioned by damage caused by a
dry dock operator. 520 F.3d at 412-14. In the original opinion,
11

then-Judge

Vance

rejected

the

claimant’s

arguments

that

the

Amoco exception applied, noting that the Fifth Circuit had not
endorsed

its

application

beyond

the

context

of

a

collision

between two vessels not in privity of contract. Further, Judge
Vance noted that the facts of the case put it squarely within
the parameters of the Robins Dry Dock holding. These rationales
do not apply with equal force in the instant case.
As

a

preliminary

matter,

it

is

necessary

to

precisely

distinguish the contours of the argument advanced under Amoco
here. This requires consideration of a distinction between what
might most accurately be termed the “Amoco exception” and the
“Amoco exclusion.” Both of these find their footings in the two
rationales provided in that opinion for allowing recovery. Under
the

former,

the

Fifth

Circuit

effectively

recognized

an

exception to the Robins Dry Dock rule in the case of a collision
between two vessels not in privity of contract, allowing a cargo
owner

to

recover

damages

from

a

negligent

vessel

when

that

vessel causes damage to the carrying vessel, to which the cargo
owner is considered bound in a common venture. The court did so
in

reliance

on

traditional

maritime

principles

and

it

is

properly viewed as an exception because the Robins Dry Dock rule
would otherwise apply directly under those circumstances. Under
the latter rationale, however, the Court simply recognized the
inapplicability of Robins Dry Dock (or perhaps more accurately
12

the

lack

of

proscription

in

Robins

Dry

Dock

to

allowing

recovery) in situations where the loss sought to be recovered is
a loss properly recoverable by the real party in interest, the
right to recovery having merely been shifted to a third party.
Under such circumstances there is no risk of double recovery,
there is no risk of extending foreseeable damages ad infinitum,
put simply: such a case “is not within the parameters of the
evil to be remedied” by Robins Dry Dock. Amoco, 768 F.2d at 669.
Viewed in the light above, the holding of Norwegian Bulk
Transport is perfectly consistent with the position taken by the
Parish herein. It remains accurate that the Fifth Circuit has
not

endorsed

collision
Transport

application

context.
put

the

of

Further,
case

the

Amoco

the

squarely

facts
within

exception
of
the

beyond

Norwegian
contours

of

the
Bulk
the

Robins Dry Dock rule. In that case, a time charterer sought to
recover – in its own right – economic losses incurred as a
result of physical damage occasioned by a vessel belonging to a
third party. 520 F.3d at 410. There was no room for argument
pertaining

to

application

of

the

exclusion.

Thus,

without

application of the exception, the case remained governed by the
Robins Dry Dock/TESTBANK doctrine.
Under the present facts, however, absent any argument or
evidence that the damages presently sought to be recovered by
the Parish are not properly recoverable economic losses by the
13

State, or that there was some legal deficiency in the means
employed for shifting the right to recover those losses to the
Parish, Robins Dry Dock does not apply – this exclusion was
expressly recognized in Amoco, but it would remain no less the
correct legal result here had that case never been decided or
had it limited itself to discussion of the exception, supra.
Finally,

Marquette’s

reliance

on

Judge

Duval’s

opinion

denying recovery in In re Bertucci Contracting, LLC, No. 111328,

2013

WL

100645

(E.D.

La.

Jan.

7,

2013)

is

misplaced.

Although the facts of that case are facially similar to those
presently at issue, to the extent they involve an allision that
damaged a state-owned bridge, a closer look reveals the legal
conclusion
Bertucci

reached

argued

there

under

to

be

theories

inapposite.
of

The

parties

quasi-contract

and

in

unjust

enrichment that the cost of various emergency services and ferry
operations

ought

to

be

recoverable

in

limitation

proceedings

arising out of the subject allision. Unlike the present case,
there was no evidence that any of these entities had entered
into a contract with the real party in interest to provide the
services

at

issue.

Accordingly,

the

right

of

recovery

was

asserted by the claimants in their own capacities and the case
fell within the scope of Robins Dry Dock, while failing to meet
the

requirements

of

the

Amoco

exception.

distinguishable from those presently at bar.
14

Such

facts

are

VII. CONCLUSION
In light of the above, Marquette has failed to establish
its entitlement to judgment as a matter of law and its summary
judgment motion must be denied. It remains possible that the
facts

at

trial

will

reveal

that

the

losses

sought

to

be

recovered by the Parish would not have been properly recoverable
by the State or that the contract between the two parties did
not effectively shift the right to recover those losses to the
Parish. Such positions have not been argued or supported by the
evidence presently before the Court. Accordingly,
IT IS ORDERED THAT Marquette’s Motion for Summary Judgment
(Rec. Doc. 12) is DENIED.
New Orleans, Louisiana, this 14th day of May, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

15