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

Filing 154

ORDER AND REASONS denying 149 Motion for Partial Summary Judgment. Signed by Judge Martin L.C. Feldman on 10/26/2017. (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"

ORDER AND REASONS
Before the Court is Joshua Deranger’s motion for partial
summary judgment. For the following reasons, the motion is DENIED.
Background
Three vessels were tasked to transport one barge on the
Mississippi River. Unfortunately, one of those vessels allided
with a bridge and sunk, rendering it a total loss. Now, the
vessels’ owners, insurers, and those personally injured during the
allision are seeking to determine whether the other two vessels
were negligent and unseaworthy, and thus liable for the resulting
losses and injuries.
On December 29, 2013, three vessels, M/V MISS DOROTHY, M/V
ANGELA RAE, and M/V FREEDOM were transporting a barge, FSP 101,
southbound

on

the

Mississippi

River.

FSB

101

is

owned

by

Consolidated Grain & Barge, Inc. CGB hired the vessels to transport
the barge and its cargo from Reserve, LA to Convent, LA. The
vessels

successfully

navigated

the

barge

to

Convent

and

had

offloaded the cargo. They were to return FSP 101, without cargo,

1

to LaPlace. M/V ANGELA RAE was positioned at the stern, M/V FREEDOM
on the port bow, attached by line, and M/V MISS DOROTHY on the
starboard bow, also attached by line. Whether ANGELA RAE’s position
at the stern of the barge, pushing the barge forward, makes it the
lead vessel is contested by the parties. The lead vessel has
specific

responsibilities

to

communicate

with

and

direct

the

assist vessels.
While heading southbound to LaPlace, the master of MISS
DOROTHY, Captain Joseph Colomb, advised ANGELA RAE that he would
need to change MISS DOROTHY’S fuel filters at some point. Colomb
allegedly directed a deckhand to change the fuel engines two days
before, but he failed to do so. MISS DOROTHY’s wheelhouse engine
information gauges were allegedly broken, as was its general alarm,
which allows the captain to alert anyone in the engine room of
danger. After the tow proceeded downriver several miles, MISS
DOROTHY reported to the master of Angela, Captain Kenneth Ayers,
that MISS DOROTHY was experiencing engine troubles. Ayers also
overheard Captain Colomb instructing his deckhand, Joshua Deranger
and Matt Lynch, to change the fuel filters of the starboard and
port engines. Deranger and Lynch were not experienced at changing
fuel filters on this vessel. At this point, the flotilla was about
one mile from the Sunshine Bridge, and moving about ten miles an
hour. When Deranger and Lynch changed the filters of the starboard
engine, they shut it down. This caused a drag on the flotilla. The
2

master of Angela, Captain Ayers, attempted to inform MISS DOROTHY
of the drag it was causing, in which MISS DOROTHY responded that
it would give a “more straight rudder.” Allegedly ANGELA RAE and
FREEDOM did not otherwise adjust their speed. It is disputed how
much the vessels communicated here, although FREEDOM’S master,
Captain Bergeron, was silent after MISS DOROTHY attempted to change
its engine filters.
When the flotilla attempted to pass under the Sunshine Bride,
MISS DOROTHY allided with the bridge. The vessel sustained a
puncture in the hull, which caused water to rapidly enter the
engine

room,

ceasing

operation

of

the

port

engine

and

the

generator, eventually resulting in a total loss for the vessel.
The bridge was also damaged. Joshua Deranger, the deckhand on the
MISS DOROTHY, was still in the engine room during the allision.
When the water flooded the room, it moved a storage box, trapping
Deranger’s leg between the box and the starboard engine. Matt Lynch
helped to free him, but Deranger was seriously injured. Captain
Colomb also alleges personal injuries. 1 Following the allision,
the vessel owners and insurers, as well as those injured, filed a
number of claims against each other in five separate actions (14-

1

This Background section is not to be interpreted as findings of
contested allegations and contentions. The Court is simply
attempting to provide a broad factual background of the December
29, 2013 voyage.
3

2967,

15-1473,

15-1870,

15-1942,

15-4423),

which

have

been

consolidated into one lead case, 14-2967.
The insurers of the owner (Western Rivers Boat Management,
Inc.) of the sunken MISS DOROTHY initiated the present case on
December 29, 2014. The insurers—Continental Insurance Company,
National Union Fire Insurance Company, and Starr Liability and
Indemnity—filed a complaint in this Court against L&L Marine
Transportation, Inc. (operator of Angela), C.J.L., Inc. (owner of
Angela), River Ventures, LLC (owner and operator FREEDOM), M/V
ANGELA RAE in rem, M/V FREEDOM in rem, and FSB 101 in rem. They
alleged that the defendants caused the allision, were unseaworthy,
and were negligent in their training of the master and crew, in
their failure to equip the vessels with proper navigational tools,
and in their navigation. In a separate action, C.J.L. and L&L filed
a complaint for exoneration from, or in the alternative limitation
of liability, of M/V ANGELA RAE. Five days later, River Ventures
did the same for M/V FREEDOM. Immediately, the Court issued an
injunction restraining the prosecution of any claims involving
ANGELA RAE or FREEDOM, or their insurers and underwriters, until
the Court determines whether the vessels’ liability should be
limited or exonerated. Shortly thereafter, the Court consolidated
these claims into the master case (14-2967).
In

response

to

C.J.L.

and

L&L’s

complaint

to

limit

or

exonerate liability, the owner of FREEDOM, the owner, operator,
4

and insurers of MISS DOROTHY, and Captain Colomb of MISS DOROTHY 2
all filed answers and complaints. Likewise, in response to River
Ventures complaint to limit or exonerate liability, the owner and
operator of ANGELA RAE, the owner, operator, and insurers of MISS
DOROTHY, and Captain Colomb of MISS DOROTHY all filed answers and
complaints. Joshua Deranger, the MISS DOROTHY deckhand injured
during the collision, answered the C.J.L. and River Ventures
complaints,

filed

counterclaims

against

them,

and

third-party

complaints against Western Rivers Boat Management, Quality Marine
Services,

Continental

Insurance,

National

Union

Fire,

Starr

Liabilities, Atlantic Specialty Insurance (insurer of C.J.L. and
L&L), and Underwriters at Lloyds (insurer of C.J.L. and L&L).
Deranger alleged that all parties were liable for his injuries,
which was the result of all three vessels’ negligence in either
causing, or failing to prevent, the allision.
On July 6, 2017, River Ventures filed a motion for summary
judgment moving the Court to dismiss all claims against it. In its
August 9, 2017 Order and Reasons, the Court denied the motion,
holding that there was a genuine issue of material fact as to
whether FREEDOM was negligent in its conduct immediately preceding
the allision. Joshua Deranger now moves the Court to grant partial

2

Captain Colomb had also filed a separate complaint against
Western Rivers, River Ventures, and C.J.L. for negligence and
unseaworthiness in its operations during the voyage, causing
severe physical injuries.
5

summary judgment in its favor and to determine that, as a matter
of law, C.J.L. & L.L is not entitled to exoneration or limitation
of liability.

I.

Legal Standard: Motion of Summary Judgment

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 Corp., 475 U.S. 574, 587 (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 mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

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 claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

at

trial
6

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).
"[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence."

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.

Id. at

249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
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 deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts."

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).

7

II.

Legal Standard: Limitation of Liability Act

The Limitation of Liability Act permits a vessel owner to
limit

its

liability

with

respect

to

claims

arising

from

the

vessel’s operation. See 46 U.S.C. § 30501, et seq. But the owner
is only entitled to limit its liability if it lacks “privity or
knowledge” of the cause of the loss or injury. Brunet v. United
Gas Pipeline Co., 15 F.3d 500, 504 (5th Cir. 1994). When a court
determines whether a shipowner is entitled to exoneration or
limitation of liability, it employs a two-step process. Farrell
Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). First, the
party seeking to dissolve limitation must establish that the vessel
was negligent or unseaworthy, and those acts caused the accident.
Petition of Kristie Leigh Enterprises, Inc., 72 F.3d 479, 481 (5th
Cir. 1996). Then, “the burden shifts to the owner of the vessel to
prove

that

negligence

was

not

within

the

owner's privity or knowledge.” In re Hellenic, 252 F.3d 391, 395
(5th Cir. 2001).
To establish unseaworthiness, the claimant must establish
that the vessel was not “reasonabl[y] fi[t] to perform or do the
work at hand.” Farrel Lines, 530 F.2d at 10, n.2. Further, a vessel
is unseaworthy if it is not adequately prepared to successfully
navigate foreseeable hazards or challenges it may face. Walker v.
Harris, 335 F.2d 185, 191 (5th Cir. 1964). An incompetent or
inexperienced

crew

can,

but

does
8

not

necessarily,

create

an

unseaworthy condition. Orient Mid-East Lines, Inc. v. Shipment of
rive on Board S.S. Orient Transporter, 496 F.2d 1032, 1040 (5th
Cir. 1974). However, the party cannot just prove that the vessel
was unseaworthy; it must also establish that the unseaworthy
condition was the proximate cause of the injury or damages. Smith
v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir. 1985).
Specifically, the party moving to dissolve limitation must show
“that (1) the unseaworthiness played a substantial part in bringing
about or actually causing the injury and that (2) the injury was
either a direct result or a reasonably probable consequence of the
unseaworthiness.” Id.
A court will deny limitation of liability if the shipowner
had knowledge or privity of the negligent acts or unseaworthy
conditions that caused the damage or injury. Farrell Lines, 530
F.2d at 10. The owner has privity “if he personally participated
in

the

negligent

conduct

or

brought

about

the

unseaworthy

condition.” In re Omega Protein, Inc., 548 F.3d 361, 371 (5th Cir.
2008) (quoting Trico Marine Assets, Inc. v. Diamond B Marine
Services, Inc., 332 F.3d 779, 789 (5th Cir. 2003)). “When the
shipowner

is

a

corporation,

knowledge

is

judged

by

what

the

corporation's managing agents knew or should have known with
respect to conditions or actions likely to cause the loss.” Brunet,
15 F.3d at 504. Accordingly, “knowledge of an unseaworthy or
negligent condition is normally imputed to a corporate owner if
9

the ‘condition could have been discovered through the exercise of
reasonable diligence.’” Omega Protein, 548 F.3d at 371 (quoting
Brister v. A.W.I., Inc., 946 F.2d 350, 356 (5th Cir. 1991).
However, a master’s mistake of navigation, when he is otherwise
competent and the owner exercised reasonable care in selecting
him, does not bar limitation of liability. Id.; Kristie Leigh
Enterprises, 72 F.3d at 481.

III. Discussion
Joshua Deranger moves the Court for partial summary judgment
on the basis that M/V ANGELA RAE was unseaworthy at the inception
of the December 29, 2013 voyage, and the unseaworthy conditions
were the proximate cause of his injuries. Deranger also contends
that C.J.L. and L&L had knowledge and privity of the unseaworthy
conditions.

Because

Deranger’s

second

contention

relies

on

a

finding of his first, the Court will begin with considering whether
ANGELA RAE was unseaworthy and the proximate cause of Deranger’s
injuries.
Deranger provides five reasons why ANGELA RAE was unseaworthy
at the inception of the voyage: (1) It did not have a policy in
place outlining the responsibilities of being the lead tug. (2)
The crew was not trained of the responsibilities of lead tug. (3)
There was no meeting with all three vessel captains to discuss and
assign their responsibilities. (4) The vessel did not adequately
10

communicate with the assist vessels (FREEDOM and MISS DOROTHY)
after MISS DOROTHY began experiencing engine problems. (5) The
vessel

employed

an

incompetent

crew.

A

critical

premise

to

Deranger’s argument is that ANGELA RAE was the lead tug because it
was the face-up vessel situated at the stern, and as lead tug, had
specific responsibilities to communicate with and direct the other
vessels. Deranger cites to the deposition of L&L’s owner, Lee
LeBoeuf, which reveals that LeBoeuf was not aware that ANGELA RAE
was the lead vessel, and believed that all the vessels shared
communication responsibilities. Deranger contends that had L&L
maintained a lead vessel policy and provided training, than the
captains of M/V ANGELA RAE would have known to take control,
properly

communicated

with

assist

vessels,

instruct

M/V

MISS

DOROTHY on when and where to accomplish the fuel filter change,
and would have ordered a unified effort to steer the flotilla back
on its proper sail line, thus avoiding the allision.
In support of its contentions, Deranger submits an expert
report authored by Captain James Jamison. Jamison opines that
Captain Ayers failure to communicate to MISS DOROTHY and FREEDOM,
correct the sail line, or otherwise direct MISS DOROTHY and FREEDOM
prior to the allision rendered him incompetent; his errors were
not just navigational in nature. Jamison states that C.J.L. and
L&L’s failure to have a policy addressing the responsibilities as
lead tug was highly unusual and contrary to industry custom.
11

According to Jamison, had C.J.L. and L&L had a multi-tug policy,
trained their crew and captains in the responsibilities of lead
vessel, and conducted a pre-voyage meeting, the allision probably
would not have occurred.
C.J.L. and L&L submit expert evidence to rebut Deranger’s
claims. Captain David Scruton states in a sworn declaration that
ANGELA RAE’s Captain Ayers was competent. He points to Ayer’s
credentials for support; Ayer’s served as Designated Examiner for
the U.S. Coast Guard since 2008, where he was tasked with assessing
candidates for towing vessel licenses. He was also employed by L&L
for four years at the time of the incident, and had never been
involved in a prior casualty. Accordingly, the competency of
Captain Ayers is a genuine dispute of fact that is not appropriate
for summary judgment decision.
Moreover, in his expert report, Captain Scruton attacks the
notion that conduct on the ANGELA RAE were the proximate cause of
Deranger’s injuries. First, he states that vessels secured at the
stern of the barge, pushing it forward, are often, but not always,
the lead vessel. Regardless of whether ANGELA RAE was the lead
tug, MISS DOROTHY and FREEDOM still had the obligation to maneuver
the tow and to keep the other vessels apprised of developments,
like if there were any structures ahead or they were experiencing
technical difficulties on board. Scruton states that although it
would have been “desirable” for FREEDOM and ANGELA RAE to have
12

communicated better once they were aware that MISS DOROTHY created
a drag, Colomb should have instigated communications with ANGELA
RAE because he was in the best position to assess what problems
MISS DOROTHY was facing. It is Scruton’s opinion that Colomb’s
lack of communication was the “primary causal factor that led to
the incident.”
Scruton also faults Colomb for his decision to send Deranger
into

the

engine

room

at

that

time,

calling

Colomb’s

actions

unprofessional and unsafe. He points to the fact that Colomb knew
that both engines were not functioning properly, Deranger was not
familiar

with

changing

MISS

DOROTHY’s

fuel

filters,

and

the

flotilla was quickly approaching the Sunshine Bridge in a quick
current.

Further,

the

general

alarm

was

allegedly

broken,

preventing Colomb from notifying Mr. Deranger of any pending danger
while he was in the engine room.
The parties’ submitted evidence demonstrates that there are
genuine disputes of material fact as to what was the proximate
cause of Deranger’s injuries. No one contests Deranger’s claims
that C.J.L. and L&L failed to provide a lead vessel policy, host
a

meeting

to

determine

each

vessels

responsibilities,

or

specifically train the crew in its responsibilities as a lead
vessel. But Deranger fails to show that those shortcomings were a
substantial part in bringing about the injury and that the injury
was the reasonable probable consequence of their conduct. It is
13

not clear that had there been a policy in place and had the parties
agreed on their roles ahead of time, either MISS DOROTHY would
have

not

shut

down

its

starboard

engine

while

approaching

a

structure, or that the other vessels would have acted differently
and would have been able to successfully correct the drag and avoid
allision. Further, C.J.L. and L&L submit evidence implicating
Colomb’s actions as the proximate cause of Deranger’s injuries.
Because the parties have submitted evidence displaying a genuine
dispute of fact as to which party proximately caused Deranger’s
injury, summary judgment is not proper.
Accordingly, IT IS ORDERED: Joshua Deranger’s motion for
partial summary judgment is DENIED.

New Orleans, Louisiana, October 26, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14