Continental Insurance Company et al v. L&L Marine Transportation, Inc. et al

Filing 147

ORDER AND REASONS denying 132 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 8/9/2017. (Reference: 15-1870, 15-1942)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CONTINENTAL INSURANCE
COMPANY, ET AL.

CIVIL ACTION

V.

NO. 14-2967*

L&L MARINE TRANSPORTATION,
INC., ET AL

SECTION "F"
*Applies to: 15-1870, 15-1942

ORDER AND REASONS
Before

the

Court

is

River

Ventures’

motion

for

summary

judgment. For the following reasons, the motion is DENIED.
Background
The incident giving rise to this pending lawsuit began on
December 29, 2013 on the Mississippi River. On that evening, the
M/V ANGELA RAE, owned by C.J.L., Inc. and operated by L&L Marine
Transportation, Inc., was traveling southbound with the FSP 101
barge. The M/V FREEDOM (owned and operated by River Ventures) and
the M/V MISS DOROTHY were traveling in the same direction; both
vessels attached a line to the FSP 101 barge. The FREEDOM was on
the port side of the barge and the MISS DOROTHY was on the starboard
side, with the ANGELA RAE face-up and in control, at least to some
extent, of the barge.
During

the

voyage,

Captain

Colomb,

captain

of

the

MISS

DOROTHY, informed the ANGELA RAE that the MISS DOROTHY needed to
change

fuel

filters.

However,

1

that

change

did

not

happen

immediately. Instead, approximately 30 minutes prior to reaching
the Sunshine Bridge, Captain Colomb ordered his deckhands, Joshua
Deranger and Matt Lynch, to change the fuel filters. In order to
complete the task, the deckhands shut down the MISS DOROTHY’s
starboard engine. This shutdown allegedly caused a drag on the
flotilla. The captain on the ANGELA RAE attempted to inform the
MISS DOROTHY of the drag it was causing, and he allegedly received
a response that the MISS DOROTHY would give “more straight rudder.”
When the flotilla attempted to pass under the Sunshine Bridge,
however, the MISS DOROTHY allided with bridge; the vessel was
deemed a total loss.
Following the incident, multiple lawsuits were filed and
consolidated into this civil proceeding pending before this Court.
One of the actions that resulted is River Ventures, L.L.C.’s
limitation of liability action. River Ventures was the owner and
operator of the FREEDOM; several parties have filed claims against
River Ventures as part of the limitation proceeding. River Ventures
now moves the Court to grant summary judgment in its favor,
dismissing all claims against it as it pertains to the limitation
proceeding.
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
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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. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). 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
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
3

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.
“When damages involve a tow or an entire flotilla, courts
employ the ‘dominant mind’ doctrine to ‘place liability on the tug
and absolve the tow from liability.’” N.M. Paterson & Sons, Ltd.
v. M/V Ethel E., No. 01-7325, 2004 WL 170326, at *3 (N.D. Ill.
Jan. 14, 2004) (quoting In re TT Boat Corp., No. 98-494, 1999 WL
123810, at *3 (E.D. La. Mar. 3, 1999)). “The ‘dominant mind’
doctrine provides that the vessel that is liable is the vessel
whose people are actually in control of the operation.” Id. (citing
Chevron U.S.A. Inc. v. Progress Marine Inc., No. 77-463, 1980
A.M.C. 1637 (E.D. La. Aug. 24, 1979), aff’d, 632 F.2d 893 (5th
Cir. 1980)). A tug is considered the “dominant mind” when it
provides the motive power. See id. “A tug that tows the tow into
collision is presumed to be at fault, especially if that collision
is with a stationary object.” N.M. Patterson, 2004 WL 170326, at
*3 (citing Ryan Walsh Stevedoring Co. v. James Marine Serv., Inc.,
557 F. Supp. 457, 461 (E.D. La. 1983)). “If the tug is the ‘dominant
mind,’

the

conditions,

tug

is

responsible

including

for

knowledge

of

knowledge
channels,

of

navigational

depth

of

water,

obstructions, pipelines and other dangers to her tow.” Id.
“When a helper tug merely furnishes power in obedience to
orders from the primary tug without any negligence on its part, it
4

should be exonerated from all liability for damages to the tow.”
Complaint of Patton-Tully Transp. Co., No. 79-2315, 1982 WL 195694,
1983 A.M.C. 1288, 1299 (E.D. La. Sept. 24, 1982) (emphasis added);
see also Moran Towing & Transp. Co. v. Empresa Hondurena De V.,
194 F.2d 629 (5th Cir. 1952). However, a tug is not always immune
from liability when it is not the “dominant mind.” Patton-Tully,
193 A.M.C. at 1299-1300. “A helper tug will be deemed at fault
when it fails to comply with the lead tug’s orders.” Id. at 1300
(citing Panama Canal Co. v. Sociedad de Transportes Maritimos, 272
F.2d 726 (5th Cir. 1959). Another court has expounded on PattonTully stating:
As Patton-Tully makes clear, however, as assist vessel
must be free of negligence to be absolved from liability.
If the non-dominant party ‘breached a duty or acted in
a negligent manner that contributed to the damages …
[it] may be held partially or solely liable.’
Matter of the Complaint of Ingram Barge Co., No 13-3453, 2016 WL
1450027, at * 9 (N.D. Ill. Apr. 13, 2016) (alterations in original)
(internal citations omitted).
The case history makes clear that an assist tug does not
escape liability under the “dominant mind” doctrine when the assist
tug is found negligent in some manner. Therefore, the question
before this Court is whether the FREEDOM was negligent in any
manner, such that she does not escape liability under the “dominant
mind” theory.
III.
5

A.
River Ventures contends that the ANGELA RAE was the lead tug,
or dominant mind of the flotilla, which means that the FREEDOM was
merely was an assist tug. Because the ANGELA RAE was allegedly the
lead tug, River Ventures submits that the ANGELA RAE is solely
liable for any damage to her tow. Specifically, River Ventures
submits that the ANGELA RAE and the MISS DOROTHY are liable for
the MISS DOROTHY’s allision and damages. It contends that the
ANGELA RAE never gave any order to the FREEDOM to change its
trajectory or otherwise alter its operations before the allision
with the Sunshine Bridge, submitting:
Q:
Were there any instructions from the ANGELA RAE to
you [captain of FREEDOM] above the bridge to either shut
down one of your engines or pull back on the RPMs?
A:

No, sir.

Q:
Was there any navigational instructions of any
nature to you from the ANGELA RAE before the impact?
A:

No, sir.

Q:
Same question with regard to the DOROTHY to you.
Navigational instructions of any nature from the DOROTHY
to you before impact?
A:

No, sir.

Deposition of Dickey Bergeron, captain of the FREEDOM. Because the
ANGELA RAE was the dominant mind, and the dominant should bear the
burden to keep the flotilla safe, River Ventures urges that the
FREEDOM is not at fault for the allision because it received no
6

orders, and thus did not fail to follow any orders, from the
dominant mind. Accordingly, River Ventures submits that summary
judgment is appropriate because there is no genuine issue of
material fact as to the FREEDOM not contributing to the cause of
the allision.
B.
In

response

to

River

Ventures’

motion,

Joshua

Deranger,

Joseph Colomb, Western Rivers Boat Management, Quality Marine
Services

C.J.L.

and

L&L

Marine

Transportation

oppose

River

Ventures’ contention that it could not have contributed to, and
cannot be liable for, the allision and resulting damages. The
opposition relies specifically on certain deposition testimony of
Dickey Bergeron, captain of the FREEDOM. Capt. Bergeron testified
that as the flotilla was approaching the Sunshine Bridge, he
noticed that the flotilla was not properly aligned to safely
navigate

under

the

bridge.

In

response,

Capt.

Bergeron

was

questioned about his communication with the other two vessels,
stating:
A:
Well, we were going down in the center span as
usual, and something happened. We just fell toward the
starboard, and as we were coming down, we just kept on
going to the starboard.
The ANGELA RAE said something about – told the
DOROTHY they were putting too much of a drag on them or
whatever, and he couldn’t get out of it before he hit
the fender works on the bridge.
Q:

Who is “he,” when you say “he”?

7

A:

The ANGELA RAE.

Q:
Do you remember any radio communication other than
the ANGELA RAE reporting that “you’re creating too much
drag on me,” from the point in time you first had the
recognition a quarter of a mile away until contact with
the bridge fender was made? Any other communication you
can recall from the vessels that were part of this
flotilla?
A:
I didn’t talk to the ANGELA RAE about it. I didn’t
want to clog up the radio because he was in control of
everything. I didn’t know if he wanted me to pull him
out of it or whatever. He never did tell me to back him
out or anything.
Q:
So there was no communication between you and the
ANGELA RAE, correct?
A:

No.

Q:
Was there any communication you heard between the
DOROTHY and the ANGELA RAE other than “you’re putting a
drag on me,” or whatever it was he said?
A:
I don’t know if the DOROTHY responded to him after
he said that on the radio.
Q:
Just to be sure we are clear, between the point in
time you first recognized your location, about a quarter
of a mile from the Sunshine Bridge, until contact was
made with the fender system, the only communication you
can recall is the ANGELA RAE, something to the effect of
you are putting a drag on me?
A:

Yes.

Q:
And you don’t remember
between those two boats?

any

other

communication

A:
I don’t remember any. There was probably some other
communication, but I don’t remember.
…
Q:
During that same point in time, did you have any
communication with the DOROTHY?
A:

No, sir.
8

…
Q:
Was there any action you took to avoid the DOROTHY
making contact with the Sunshine Bridge fender system?
A:

No.

Capt.

Bergeron

then

continued

to

testify

that,

despite

noticing that the flotilla was off of the proper sail line when
approaching the Sunshine Bridge, he did not notify the ANGELA RAE
or the MISS DOROTHY of his concerns. He even testified that when
he noticed the flotilla’s “off position,” there was still time for
the flotilla to correct its alignment and likely avoid the ultimate
contact

with

the

Sunshine

Bridge.

Instead,

Capt.

Bergeron

testified that he did nothing because he received no orders from
the ANGELA RAE, the vessel he perceived as the lead of the
flotilla. Contrary to Capt. Bergeron’s position that he did nothing
because he was not instructed to do anything, he also testified
that, “If the barge started drifting to one side or the other, I
would just back off of my engines, whether they told me to or not.”
Counsel responded with, “The barge did start drifting, didn’t it?”
To which Captain Bergeron responded, “Yes, sir.”
Additionally, the opponents submit two expert reports, both
of which conclude that the FREEDOM was negligent and contributed
to the allision. First, David H. Scruton concluded that:
whether lead tug or not[,] since FREEDOM and MISS DOROTHY
had lines secured to FSP 101 they were obliged to
maneuver the tow as necessary and keep the other vessels
apprised of developments. … We note comments that
9

FREEDOM and MISS DOROTHY were there for the ride;
however, once lines were secured to barge FSP 101 by
both FREEDOM and DOROTHY they were clearly involved in
the tow and maintained responsibilities for successful
operation. As such, both FREEDOM and MISS DOROTHY were
obliged to assist in the tow … .

Next, in Captain James Jamison’s expert report, he found that:
It cannot be disputed, all parties involved in this case
agree that lack of communication between all three
vessels was a large factor in the collision. The M/V
MISS DOROTHY and the M/V FREEDOM were not hitching a
ride, they were on the payroll and contributed to the
navigation of the tow. Captain Dickey Bergeron of the
M/V FREEDOM neglected his duties by continuing at the
same speed despite the M/V MISS DOROTHY being at half
power, contributing to pushing it into the bridge. He
knew or should have known that the M/V MISS DOROTHY was
under powered and the flotilla was getting dangerously
close to the bridge.
(emphasis

added).

The

parties

submit,

therefore,

that

the

admissions of Capt. Bergeron, in conjunction with expert reports,
create a genuine issue of material fact as to whether the FREEDOM
is free of negligence or contributed to the allision giving rise
to this storied lawsuit. The Court agrees.
B.
A genuine issue of material fact is in dispute as to whether
the FREEDOM was negligent as an assist tug.
River Ventures contends that because the FREEDOM was an
assist, or helper, tug, it is protected from liability under the
dominant mind doctrine. River Ventures relies on the position that
the FREEDOM apparently never received any order from the ANGELA

10

RAE, or the MISS DOROTHY, that it needed to change is power or
otherwise make any navigational changes as the tow approached the
Sunshine Bridge or while the MISS DOROTHY changed filters. These
arguments, River Ventures submits, necessarily means that it is
not liable to any party for allision with the bridge and resulting
damages. The Court disagrees. River Ventures patently disregards
a prerequisite for the “dominant mind” doctrine’s shield – that
the assist tug be free of negligence.
Other

parties

to

this

dispute,

and

claimants

in

this

limitation of liability action, have submitted compelling evidence
that

raises

negligently.

a

genuine

As

question

explained

in

of

whether

depth

the

above,

FREEDOM
any

acted

negligence

attributed to an assist tug absolves its shield from liability.
Specifically, the parties largely rely on deposition testimony of
the FREEDOM’s captain, Dickey Bergeron, where he testified that
not only did he notice the flotilla was off line for a safe approach
of the Sunshine Bridge, but he also testified that when he noticed
the issue there was sufficient time to correct that navigational
error. However, he did not communicate his concerns to the MISS
DOROTHY or to the ANGELA RAE; instead, he relied on the other
vessels’ lack of communication as justification for not vocalizing
his concerns and for not making any navigational changes. Further,
the expert reports submitted both conclude that even if the FREEDOM
was not the lead tug, it had a duty to act prudently. Specifically,
11

the experts conclude that the FREEDOM knew or should have known of
the navigational issue and should have communicated concerns to
the other vessels. Therefore, the Court finds that there is a
genuine issue of material fact – was the FREEDOM negligent in not
noticing or communicating the navigational issue that at least in
part led to the allision. This issue is undoubtedly in dispute
because lack of negligence is a prerequisite for the dominant mind
shield from liability to apply to an assist vessel. Because a
necessary element of this defense is in question, summary judgment
as to the FREEDOM’s liability is not appropriate on this record.
Accordingly,

IT

IS

ORDERED

that

limitation

in

liability

petitioner River Ventures’ motion for summary judgment is hereby
DENIED.

New Orleans, Louisiana, August 9, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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