Admiral Bulker M/V v. United Bulk Terminals Davant LLC et al

Filing 182

ORDER AND REASONS - IT IS ORDERED that Ingram's Motion for summary judgment (Rec. Doc. 147 ) is GRANTED, and all claims brought against Ingram by the Vessel and Cargo Interests (Rec. Doc. 1 - Case No. 16-17745; Rec. Doc. 57 - Case No. 16-16215; and Rec. Doc. 109 - Case No. 16-16215) are hereby DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Kokuka Glorious Interests' Motion for summary judgment (Rec. Doc. 148 ) is DENIED. IT IS FURTHER ORDERED that the Admiral Bulker Interests' Motion for summary judgment (Rec. Doc. 149 ) is DENIED. Signed by Judge Barry W Ashe on 6/19/2019. (Reference: All Cases)(sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

M/V ADMIRAL BULKER, in rem

CIVIL ACTION

VERSUS

NO. 16-16215 c/w 16-17745

UNITED BULK TERMINALS
DAVANT, et al.

SECTION: M (2)
Pertains to all cases

ORDER & REASONS
Before the Court is an unopposed motion for summary judgment filed on behalf of Ingram
Barge Company, LLC (“Ingram”).1 Also before the Court are two other motions for summary
judgment: (1) one filed on behalf of Camellia Maritime, S.A., in personam and as claimant of the
M/T Kokuka Glorious (“Kokuka Glorious”), in rem, Bernhard Schulte Singapore, Kokuka Sangyo
Co., Ltd., and the Japan Ship Owners Mutual Protection and Indemnity Association (collectively,
“Kokuka Glorious Interests”),2 to which United Bulk Terminals Davant, LLC (“UBT”),3 Lua
Line/Okino Kaiun, Q Jake Shipping Ltd., QBE Insurance Singapore PTE Ltd., Quanzhou Fortune
Sea Oils and Grain Industries, Co., Ltd., and the Serena P Stefan Patjens (collectively, “Vessel
and Cargo Interests”),4 Marquette Transportation Company Gulf-Inland, LLC (“Marquette”),5 and
Eurex Bulker, S.A. (“Eurex”), in personam,6 respond in opposition, and in further support of the

1

R. Doc. 147.
R. Doc. 148.
3
R. Doc. 156.
4
R. Doc. 158. The Vessel and Cargo Interests adopt in part UBT’s memorandum in opposition to the motion
for summary judgment filed by the Kokuka Glorious Interests together with UBT’s statement of contested material
facts (R. Doc. 156) to the extent UBT argues and shows facts that support a finding of liability on the part of the
Kokuka Glorious Interests, but do not incorporate or adopt and expressly deny argument and facts that support a
finding that UBT’s barge mooring components were in good condition at the time of the incident and that the
Plaquemines Port Tariff is preempted by U.S. Coast Guard regulations. R. Doc. 158 at 1-2. This Order & Reasons
discusses UBT’s position without further reference to the Vessel and Cargo Interests.
5
R. Doc. 159.
6
R. Doc. 162.
2

1

motion the Kokuka Glorious Interests reply,7 and in further opposition UBT files a surreply;8 and
(2) a motion for summary judgment filed on behalf of Eurex, as claimant of the M/V Admiral
Bulker (“Admiral Bulker”), in rem (collectively, “Admiral Bulker Interests”),9 to which UBT,10 the
Vessel and Cargo Interests,11 and Marquette12 respond in opposition, and in further support of
which the Admiral Bulker Interests reply.13 Having considered the parties’ memoranda and the
applicable law, the Court issues this Order & Reasons.
I.

BACKGROUND
This consolidated action arises out of a breakaway incident and an ensuing series of

collisions and allisions on the Mississippi River near Davant, Louisiana. On January 20, 2016,
the water level in an area of the Mississippi River near the barge fleet facility owned and operated
by UBT was unusually high.14 At approximately 12:30 p.m., fifteen barges owned by Ingram15
and Canal Barge Company, Inc. (“Canal Barge”) broke away from UBT’s barge fleet facility after
a mooring line connecting a tier of fifteen barges to UBT’s 1B Buoy parted.16 Twenty-two barges
in total then drifted into the navigation channel,17 collided with the southbound M/V Q Jake, owned
by Q Jake Shipping Ltd., and the M/V Serena P, owned by Serena P Stefan Patjens, and allided
with the anchored M/V Ocean Tomo, owned by Lua Line/Okino Kaiun, resulting in damage to the

7

R. Doc. 171.
R. Doc. 180.
9
R. Doc. 149.
10
R. Doc. 155.
11
R. Doc. 157. The Vessel and Cargo Interests adopt UBT’s memorandum in opposition to the motion for
summary judgment filed by the Admiral Bulker Interests together with UBT’s statement of contested material facts
(R. Doc. 155) and incorporate by reference UBT’s arguments that support a finding of liability on the part of the
Admiral Bulker Interests. R. Doc. 157 at 1.
12
R. Doc. 159.
13
R. Doc. 177.
14
R. Docs. 147-6 at 1.
15
Id.
16
Id. at 2; see R. Docs. 148-3 at 5; 149-2 at 2; 156-16 at 3
17
R. Docs. 61 at 2; 148-3 at 5; 146-16 at 3; 159; 162-12 at 4.
8

2

vessels and cargo.18 Fleet tugs owned by Marquette, operator of the fleet boats at the UBT facility,
responded to the breakaway.19
Two deep-draft vessels, the Admiral Bulker, a Marshall Islands flag bulk carrier owned by
Eurex, and the Kokuka Glorious, a foreign Panamanian flag bulk carrier owned by Camellia
Maritime, S.A., operated by Bernhard Schulte Singapore, and managed by Kokuka Sangyo Co.,
Ltd., had passed the barges prior to the breakaway. Mississippi River Traffic Information Service
(“MRTIS”) data shows the Admiral Bulker as having passed the 1B Buoy at 11:50 a.m. as the ship
proceeded upriver.20 At approximately 12:25 p.m., the Kokuka Glorious, proceeding downriver,
passed the 1B Buoy.21 The sole witness to the breakaway was Captain Billy Brooks, operator of
the crane barges at the UBT fleet facility, who was overlooking the fleet while manning a crane
on a crane barge.22 Brooks testified to having seen a “red and black ship” (the same colors as the
Admiral Bulker) proceeding upriver “around 12 o’clock” pass “pretty fast” at about 400 feet from
the barges: “I was watching because ships don’t normally pass that close.”23 Brooks estimated
that a five to six foot wave hit his barge, such that the wake “rocked my barge real, real hard” and
caused a welder aboard his barge “to stop welding because it near[l]y knocked him off of the
ladder.”24 After he observed the barges breaking loose, Brooks called the captain of the Marlene
Ellis, Marquette’s lead boat in UBT’s fleet, to report the incident, and the Marquette fleet
responded to the breakaway.25 Brooks maintains that it was a northbound vessel that caused the
wake rather than a southbound vessel.26

18

See R. Doc. 154 (joint stipulation by all parties regarding quantum of damages).
R. Doc. 147-6 at 1.
20
R. Doc. 149-5.
21
See R. Docs. 148-3 at 5 & 156-16 at 3.
22
See R. Doc. 155-8 at 5-8.
23
Id. at 7-9, 14-15, 24.
24
Id. at 15, 18-19.
25
See id. at 14; R. Docs. 149-5 at 18 & 149-5 at 40.
26
R. Doc. 155-8 at 29.
19

3

What caused the 1B Buoy’s mooring line to part is disputed, with the parties variously
pointing to faults with the mooring system or to excessive wakes caused by the Admiral Bulker
and Kokuka Glorious as they passed the fleet, or to both.27 It is undisputed that no party has shown
any fault or unseaworthy condition of any Ingram barge as causing or contributing to the
breakaway, and that the Ingram barges were under the care, custody, and control of UBT as a
fleeter when the barges were delivered to the UBT fleet on January 17, 2016, three days prior to
the breakaway.28
Prior to the institution of this action, the Admiral Bulker posted nearly $4 million of
security in the form of five letters of undertaking to avoid arrest.29 On November 9, 2016, Eurex,
as an in rem claimant of the Admiral Bulker, filed an action against UBT and the Kokuka Glorious
Interests.30 Thereafter, on December 22, 2016, the M/V Q Jake, the M/V Serena P, and their
owners filed an action against UBT, Marquette, Canal Barge, Ingram, the Admiral Bulker Interests,
and the Kokuka Glorious Interests (“the Q Jake and Serena P Action”).31 The actions were
consolidated.32
The Vessel and Cargo Interests allege that the Admiral Bulker and the Kokuka Glorious
passed the UBT facility at excessive speeds and caused or contributed to the breakaway. They
also allege that the breakaway was caused by the fault of Ingram, UBT, Marquette, and Canal
Barge, or that their fault contributed to the breakaway. In addition, the Vessel and Cargo Interests
allege that Ingram delivered unseaworthy barges to the custody and care of UBT and Marquette,

27

R. Doc. 147-6 at 2.
R. Doc. 147-6 at 2-3. A fleeter is in the business of fleeting and mooring barges for hire.
29
R. Doc. 61 at 2.
30
R. Doc. 1 (Case No. 16-16215).
31
R. Doc. 1 (Case No. 16-17745).
32
R. Doc. 18.
28

4

and that Ingram failed to warn UBT and Marquette that the barges had latent and non-apparent
defects.33
In the Q Jake and Serena P Action, the parties asserted several cross-claims. UBT,34
Marquette,35 and Canal Barge36 brought cross-claims against the Admiral Bulker Interests and the
Kokuka Glorious Interests. Ingram brought a cross-claim against UBT, the Admiral Bulker
Interests, and the Kokuka Glorious Interests.37 Camellia Maritime, S.A. brought a cross-claim
against UBT, Marquette, and the Admiral Bulker Interests.38 Eurex, as claimant of the Admiral
Bulker, in rem, brought a cross-claim against UBT and the Kokuka Glorious Interests.39 Generally,
the claims against the Admiral Bulker Interests and the Kokuka Glorious Interests state that
negligence in the navigation of the vessels caused and/or contributed to the breakaway. The claims
against the barge interests state that UBT and/or Marquette negligently maintained the moorings,
creating an unseaworthy condition that also caused and/or contributed to the breakaway, and that
Marquette was negligent in responding to the breakaway.40
II.

PENDING MOTIONS
First, Ingram seeks summary judgment to dismiss the claims against it brought by the

Vessel and Cargo Interests.41 Ingram argues that, at all pertinent times, the Ingram barges were
under the care, custody, and control of UBT as a bailee, and that discovery has shown that no fault
or unseaworthy condition of any Ingram barge caused or contributed to the breakaway. Therefore,

33

R. Docs. 57 at 5-10 & 109 at 5-10 (Case No. 16-16215); 1 at 5-9, 11-14 (Case No. 16-17745).
R. Doc. 89.
35
R. Docs. 41, 60, 85.
36
R. Doc. 49, 126.
37
R. Doc. 5 (Case No. 16-17745).
38
R. Doc. 6 (Case No. 16-17745).
39
R. Doc. 64.
40
See, e.g., R. Docs. 1, 41, 42, 49, 55, 57, 58, 60, 63, 64, 65, 76, 85, 88, 89, 90, 92, 93, 109, 110, 125, 126
(Case No. 16-16215); R. Docs. 1, 4, 5, 6 (Case No. 16-17745).
41
R. Doc. 147.
34

5

Ingram asserts that it cannot be found liable for the damages sustained.42 Ingram’s motion for
summary judgment is unopposed.
Second, the Kokuka Glorious Interests seek summary judgment to dismiss all claims
against them on the grounds that no claimant can show that the ship’s wake was unusual or
excessive.43 The Kokuka Glorious Interests posit that the ship’s master and pilot testified that the
wake of the Kokuka Glorious was minimal,44 and that their expert demonstrated that the Kokuka
Glorious’ “median speed” was less than 62% of the 572 vessels that passed the UBT facility during
high water conditions from January 1-20, 2016, and its “separation distance of more than 1300
feet from UBT’s 1B buoy was more than 90% of the 572 vessels.”45 Therefore, the Kokuka
Glorious Interests submit that no claimant can prove that the wake was unusual or excessive.46
The Kokuka Glorious Interests further argue that insufficient evidence exists to prove that its wake
caused the breakaway and that claimants cannot show that the barges were properly moored to
withstand normal and expected wakes, swells, and waves. Finally, the Kokuka Glorious Interests
maintain that a presumption of fault exists against UBT and Marquette as the custodians of moored
vessels that broke away.47
Third, the Admiral Bulker Interests move for summary judgment in their favor on all claims
asserted against them in the Serena P and Q Jake Action.48 The Admiral Bulker Interests contend
that three undisputed facts absolve them from liability: (1) that the Admiral Bulker passed abeam
the subject barge tier 1B at 11:50 a.m.; (2) that the Kokuka Glorious passed abeam the subject

42

R. Doc. 147-1.
R. Doc. 148-1 at 14-15.
44
Id. at 7.
45
Id. at 9, 16.
46
Id. at 16.
47
Id. at 16-21.
48
R. Doc. 149 at 1.
43

6

barge tier 1B at 12:25 p.m.; and (3) that the 1B barge tier breakaway occurred at 12:30 p.m.49 The
Admiral Bulker Interests essentially argue that the timing of the vessels’ passage, where the
Admiral Bulker passed the barges forty minutes before the breakaway occurred, negates the
possibility that the Admiral Bulker could have caused or contributed to the breakaway.50 The
Admiral Bulker Interests further contend that the Court should discount the August 14, 2018
deposition testimony of Billy Brooks, the sole witness to the incident, wherein he estimated that
the breakaway occurred at approximately 12:00-12:05 p.m. The Admiral Bulker Interests point to
the U.S. Coast Guard Traffic Control’s AIS ECDIS recordings, the MRTIS recordings, the radar
feed from the Q Jake’s VDR, and Brooks’ cell phone records, which reflect that the incident
occurred at 12:30 p.m.; and further argue that Brooks’ earlier 2016-2017 declarations, wherein he
acknowledged or stated that the incident happened around 12:30 p.m., are more persuasive as being
closer in time to the incident.51
In opposing the Kokuka Glorious Interests’ motion for summary judgment, the Admiral
Bulker Interests essentially re-urge the reasons supporting their own motion for summary
judgment. The Admiral Bulker Interests contend that their experts’ studies of passing ships, along
with the MRTIS recordings, confirm that both vessels were traveling at safe speeds and distances
from the barges, creating wakes of two feet at most, in contradiction to Brooks’ estimation of
distance and a five-foot wave.52

Thus, the Admiral Bulker Interests maintain that UBT’s

negligence in properly maintaining its fleet was the sole cause of the breakaway.53 But if fault is
ascribed to a vessel, the Admiral Bulker Interests contend it must be laid to the Kokuka Glorious.

49

R. Doc. 149-3 at 2-9.
Id. at 13-16.
51
Id. at 8-12, 15-16.
52
R. Doc. 162 at 3-9 (citing R. Docs. 162-4, 162-8, 162-9, 162-10).
53
Id. at 2-3, 12.
50

7

The Admiral Bulker Interests maintain that, given the timing of the breakaway, Brooks must be
mistaken about the direction of travel of the vessel he says caused the wake he observed, and thus
they insist that it must have been the downbound Kokuka Glorious, and not the upbound Admiral
Bulker, that created the wake.54
In opposing both motions, UBT asserts that summary judgment is inappropriate because
significant evidence exists to trigger the burden-shifting Pennsylvania Rule as to both vessels, and
that disputes of material fact otherwise preclude summary judgment. UBT contends that the
Kokuka Glorious and the Admiral Bulker failed to abide by U.S. Coast Guard regulations and a
U.S. Army Corps of Engineers directive requiring a vessel to proceed slowly and exercise extreme
caution in high-water conditions when passing structures subject to damage from wave action or
wave wash.55 Additionally, UBT notes authorities imposing upon the ship’s master a duty to
monitor the actions of a compulsory pilot and to intervene, when necessary, to prevent the ship
from straying into danger.56 UBT points to evidence of what it says shows each vessel’s violation
of applicable regulations and duties. For example, UBT emphasizes that the Kokuka Glorious
accelerated through the channel,57 traveling at “sea speed” as the ship was passing the UBT barge
facility,58 a speed faster than what its pilot testified to be customary near UBT’s facility due in part
to the congestion of barges there59 and faster than that prescribed by the voyage passage plan for
the Kokuka Glorious,60 and that its captain admitted he was not aware of any reason he should
have decreased the vessel’s speed as the Kokuka Glorious passed the UBT facility.61 UBT also

54

Id. at 8-11.
R. Docs. 155 at 2-7 & 156 at 2-6.
56
R. Docs. 155 at 7-9 & 156 at 7-9.
57
R. Doc. 156 at 9 (citing R. Doc. 148-2 at 76).
58
Id. at 10 (citing R. Doc. 156-4 at 4-5, 7).
59
Id. (citing R. Doc. 156-3 at 3-4).
60
Id. at 10-11 (citing R. Doc. 156-5).
61
Id. at 11 (citing R. Doc. 156-4 at 2-3, 8).
55

8

argues that the barges were properly moored.62 As to the Admiral Bulker, UBT notes that its
master, Captain Artemio Calaranan, and compulsory river port pilot, Captain Brian Bagley, did
not recall discussing a plan to take into account the conditions of the river on the day of the
incident;63 that Captain Calaranan could not recall any structures or facilities in or near the UBT
facility or the location of the barges;64 and that the Admiral Bulker operated at full speed but that
Captain Calaranan never demanded the pilot to slow and admitted to being unaware as to the effect
the high current had on the barges that were fleeted on the river as the ship passed.65 Moreover,
UBT argues that Brooks’ deposition testimony actually identified the Admiral Bulker as the upriver
ship at fault, having passed near the barges “around 12 o’clock.”66 UBT says that the Admiral
Bulker Interests critically omit Brooks’ deposition testimony that recalls an upbound vessel
causing the breakaway because it is undisputed that the Admiral Bulker, not the Kokukas Glorious,
traveled upbound on that day.67 UBT further contends that the out-of-court statements relied upon
by the Admiral Bulker Interests to discredit Brooks’ 2018 deposition testimony should be rejected
as inadmissible hearsay.68 As a consequence of these disputed material facts, UBT urges the Court
to deny summary judgment.69
Like UBT, Marquette opposes the motions for summary judgment on the grounds that
disputes of material fact preclude the Admiral Bulker Interests and the Kokuka Glorious Interests
from overcoming the Pennsylvania Rule.70 Marquette also points to testimony of Captains
Calaranan, Bagley, and Williams, and Darwin Enraca, the Kokuka Glorious’ master, that suggest

62

Id. at 12-21.
R. Doc. 155 at 9-10 (citing R. Docs. 155-4 at 4, 6, 24 & 155-5 at 4-6).
64
Id. at 10 (citing R. Doc. 155-4 at 14-18).
65
Id. at 10-13 (citing R. Doc. 155-4 at 17, 19, 21, 23).
66
Id. at 155 at 13-18 (citing R. Doc. 155-8 at 6).
67
Id. at 15-17.
68
Id. at 18-22.
69
Id. at 23.
70
R. Doc. 159 at 10-15.
63

9

their ignorance of the need to proceed with caution in the circumstances, as well as MRTIS
screenshots indicating that the ships did not slow as they passed the facility.71 Marquette further
argues that Brooks’ testimony, while seemingly internally inconsistent, reveals that “Brooks was
certain the offending vessel was an upbound vessel; he was less certain regarding the timing of the
breakaway.”72
Replying in support of their motion for summary judgment, the Kokuka Glorious Interests
essentially argue that the Pennsylvania Rule is inapplicable for two reasons: first, because the
undisputed evidence as to the Kokuka Glorious’ speed, distance, and negligible wake dispenses
with the need for a presumption of fault; and second, because the Pennsylvania Rule “applies only
to violations of statutes that delineate a clear legal duty, not regulations that require judgment and
assessment of a particular circumstance,” and thus not here, where the regulations cited by UBT
and Marquette require the exercise of judgment and assessment of particular circumstances.73 The
Kokuka Glorious Interests insist that summary judgment on their behalf is warranted because
claimants cannot carry their burden of proving that the Kokuka Glorious produced an unusual or
excessive wake or that negligence in operating the vessel caused or contributed to the accident,
again emphasizing Brooks’ testimony that the Kokuka Glorious Interests claim unequivocally
identified a vessel traveling upriver (and thus, necessarily, the Admiral Bulker) as the sole cause
of the breakaway.74
In its surreply in opposition to the Kokuka Glorious Interests’ motion for summary
judgment, UBT argues that the Pennsylvania Rule applies because the Kokuka Glorious Interests

71

Id. at 6-10 (citing R. Docs. 159-23 at 5-15; 159-24 at 3-5; 159-25; 159-26; 159-28 at 5-14).
Id. at 11.
73
R. Doc. 171 at 4-5 (citing Slatten v. Royal Caribbean Cruises Ltd., 2014 WL 5500701, at *11-12 (E.D. La.
Oct. 30, 2014)).
74
Id. at 2-6.
72

10

violated regulations that imposed a clear legal duty to operate at a low speed to prevent
breakaways.75 As a result, UBT contends the Pennsylvania Rule places the heavy burden of
proving causation on the Kokuka Glorious Interests, requiring them to show that their negligence
could not have contributed to the breakaway – a burden UBT contends is not met by the Kokuka
Glorious Interests in their motion for summary judgment.76 Finally, UBT submits again that the
Plaquemines Port mooring regulations are preempted by the U.S. Coast Guard regulations.77
The Admiral Bulker Interests reply in support of their motion for summary judgment,
arguing that neither UBT nor Marquette genuinely disputes the objective data that shows the
Admiral Bulker passed the UBT facility forty minutes prior to the breakaway, thus absolving the
Admiral Bulker Interests from liability.78 The Admiral Bulker Interests urge the Court to consider
Brooks’ prior declarations as admissible under Rule 807 of the Federal Rules of Evidence, the
residual exception to the hearsay rule, or, if inadmissible, as a form of evidence that Brooks may
adopt at trial as a former statement.79
III.

LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party

75

R. Doc. 180 at 2-3.
Id. at 3-5.
77
Id. at 5-7.
78
R. Doc. 177 at 14-20.
79
Id. at 4-13.
76

11

who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving
for summary judgment bears the initial burden of demonstrating the basis for summary judgment
and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the
evidence, review the facts, and draw any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656
(2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws
reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d

12

1069, 1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th
Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
B. Ingram’s Motion for Summary Judgment
“A barge owner has a ‘continuing and nondelegable duty’ to deliver a seaworthy barge to
a fleeter.” Conagra, Inc. v. Weber Marine, Inc., 2000 WL 943198, at *4 (E.D. La. July 7, 2000)
(citation omitted). An unseaworthy vessel is one that is not “reasonably fit and safe for the
purposes for which it is to be used.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002)
(quoting Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001)). “A vessel’s condition of
unseaworthiness might arise from any number of circumstances,” such as a “condition of the ship,
her appurtenances, her cargo, or her crew.” Usner v. Luckenbach Overseas Corp., 400 U.S. 494,
499-500 (1971); see, e.g., Conagra, 2000 WL 943198, at *4 (“A barge is unseaworthy if a lineattaching fixture on it has a latent and non-apparent defect which renders the fixture incapable of
bearing reasonably anticipated stresses.”).

13

When a barge is delivered to the fleeter, a bailment relationship is established, and the
fleeter as bailee has a duty to exercise reasonable care of the barge. See Dow Chem. Co. v. The
Barge UM-23B, 424 F.2d 307, 311 (5th Cir. 1970) (wharfinger was “a bailee for hire”). “A fleeter
is responsible for the care of barges in its custody, and that includes a duty to ensure that the barges
are adequately moored.” Conagra, 2000 WL 943198, at *5 (citing John I. Hay Co. v. The Allen B.
Wood, 121 F. Supp. 704, 708 (E.D. La. 1954)); see also Am. River Transp. Co. v. Paragon Marine
Serv., Inc., 213 F. Supp. 2d 1035, 1059 (E.D. Mo. 2002) (“The operator of a fleeting facility as
bailee has the responsibility of caring for the barge after it is committed to its custody.”).
Accordingly, “[t]he custodian of a vessel that goes adrift and causes damage is faced with a legal
presumption that the vessel was adrift through the custodian’s negligence, and the custodian ‘bears
the burden of disproving fault by a preponderance of the evidence.’” Conagra, 2000 WL 943198,
at *5 (quoting James v. River Pars. Co., 686 F.2d 1129, 1132 (5th Cir. 1982)). The owner of a
barge involved in a breakaway from a fleet can thus only be held liable if a fault or unseaworthy
condition of the barge or other independent negligence of the owner caused or contributed to
causing the breakaway. See id. at *4-5.
Here, it is undisputed that Ingram delivered the barges to the barge fleet facility owner and
operator, UBT, on January 17, 2016, in seaworthy condition: no problems with Ingram barges
were noted in any vessel logs upon delivery; Captain Glen Alexie, who conducted the initial
inspection of the barges upon delivery, and Ricky Rosser, operations manager of Marquette,
testified that if there was a problem with any barge, it would have been noted in the vessel log;
and no issues were noted in the vessel logs from the time the barges were delivered on January 17
until the time of the breakaway on January 20.80 Further, none of the liability expert reports in this

80

R. Doc. 147-1 at 3 (citing R. Docs. 147-2; 147-4; 147-5).

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case identifies a fault or unseaworthy condition on any barge or places fault on Ingram; and no
witness has testified that Ingram’s barges caused or contributed to the breakaway.81 No party has
challenged this evidence. Therefore, Ingram, as owner of the barges delivered to fleeter UBT,
cannot be held liable for causing or contributing to the breakaway. Ingram’s motion for summary
judgment is granted.
C. Evidentiary Presumptions Addressed in the Summary Judgment Motions
As a preliminary matter, the Court delineates the conflicting presumptions invoked by the
parties to delimit their burdens of proof. The Kokuka Glorious and Admiral Bulker Interests argue
that UBT and Marquette, as custodians of the barges, bear the burden of disproving their fault
under the James test – where “[t]he custodian of a vessel that goes adrift and causes damage is
faced with a legal presumption that the vessel was adrift through the custodian’s negligence, and
the custodian ‘bears the burden of disproving fault by a preponderance of the evidence.’”
Conagra, 2000 WL 943198, at *5 (quoting James, 686 F.2d at 1132).
UBT and Marquette argue that under the Pennsylvania Rule the Kokuka Glorious and
Admiral Bulker Interests bear the burden of disproving that their negligence caused or contributed
to the breakaway and ensuing damages. The Pennsylvania Rule instructs that a party who violates
a statutory rule intended to prevent the maritime accident is presumed to have caused the accident.
See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991); see
also Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91, 93 (5th Cir. 1982) (the Pennsylvania
Rule “constitutes an evidentiary rule reversing the burden of proof”). “In such a case, the burden
rests upon the ship of showing not merely that her fault might not have been one of the causes, or
that it probably was not, but that it could not have been.” The Pennsylvania, 86 U.S. 125, 136

81

Id. at 3-4, 6.

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(1874). As an evidentiary presumption “designed to fill a vacuum,” the Pennsylvania Rule, as
other presumptions of fault in general maritime law, are inapplicable where “the parties have
introduced evidence to dispel the mysteries that gave rise to the presumptio[n].” In re Mid-S.
Towing Co., 418 F.3d 526, 531 (5th Cir. 2005) (quoting Rodi Yachts, Inc. v. Nat’l Marine, Inc.,
984 F.2d 880, 887 (7th Cir. 1993)).
An additional presumption may favor the interests of UBT and Marquette. “It is well
established that a presumption of fault arises when a [vessel’s] wake causes damage to a moored
or anchored vessel ….” Gregg v. Weeks Marine, Inc., 2000 WL 798493, at *4 (E.D. La. June 21,
2000) (citing W. India Fruit & S.S. Co. v. Raymond, 190 F.2d 673, 674 (5th Cir. 1951)).82
In briefing the motions for summary judgment, all parties have presented evidence
regarding fault and causation, while invoking one or more of the foregoing presumptions to urge
that their burden of proof be eased or that their opponents’ be increased.

Given these

circumstances, it may be argued that the presumptions under the Pennsylvania Rule and under
West India, as against the Kokuka Glorious and Admiral Bulker Interests, and under James, as
against UBT and Marquette, do not apply. See, e.g., In re Int’l Marine, L.L.C., 2013 WL 3293677,
at *7-8 (E.D. La. June 28, 2013) (where evidence presented regarding fault and causation, general
maritime law presumptions did not apply). And any application of these conflicting presumptions
may well be said to “merely cancel each other out.” Combo Mar., Inc. v. U.S. United Bulk
Terminal, LLC, 615 F.3d 599, 606 (5th Cir. 2010) (citing Rodi Yachts, 984 F.2d at 887). However,
before arriving at any such conclusion, the Court would need the benefit of briefing by the parties
directed to the issue. Accordingly, at this time, the Court declines to apply the proposed
presumptions in resolving the motions for summary judgment.

82

This may be less a presumption than the first step of the legal standard applied in wave wash cases.

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D. The Kokuka Glorious Interests’ Motion for Summary Judgment
Under general maritime law, a plaintiff must prove that (1) the defendant owed a duty to
the plaintiff, (2) the defendant breached that duty, (3) the breach actually and proximately caused
the plaintiff’s injury, and (4) the plaintiff sustained an injury. Franza v. Royal Caribbean Cruises,
Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014); In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d
201, 211 (5th Cir. 2010). To succeed on a maritime negligence claim for damage caused by wave
wash, a plaintiff must establish that the defendant operated the vessel negligently and that this
negligence created an excessive wake or swell that caused damage. Gregg, 2000 WL 798493, at
*4. “The facts and circumstances of each particular case determine whether a vessel is responsible
for damages created by her swells.” Id. (citing Moran v. The M/V Georgie May, 164 F. Supp. 881,
885 (S.D. Fla. 1958)). “A moving vessel owes a duty of reasonable care to appreciate the
reasonable effect of its wake and to take reasonable precautions to avoid creating unusual swells
that may injure others.” Id. (citations omitted). In the context of property damage:
A ship passing piers or docks where other vessels are tied up is obligated to proceed
carefully and prudently so as to avoid creating unusual swells or suction which
would damage craft properly moored or installations along the shoreline. The
moving vessel must take into consideration the reasonable effects to be anticipated
from its speed and motion through the water and must take such precautions by way
of reduction of speed or alteration of course as may be reasonably necessary to
prevent such damage.
New Orleans Steamboat Co. v. M/T Hellespont Glory, 562 F. Supp. 391, 392 (E.D. La. 1983)
(quoting Shell Pipe Line Corp. v. M/V CYS Alliance, 1982 AMC 389, 395 (E.D. La. 1981)).
Nevertheless, “[m]oored vessels are also under some duty to protect themselves,” being required
to be “seaworthy and properly moored so as to resist ordinary and normal swells in narrow waters
where heavy traffic may be anticipated. Some wash from passing vessels is bound to occur and
must be anticipated and guarded against. Only unusual swells or suction which cannot be

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reasonably anticipated furnish the basis for a claim.” Id. at 393 (quoting Shell Pipe Line, 1982
AMC at 395-96). In the event that the damage is caused by a passing vessel’s negligent wake and
an improperly moored vessel, liability is determined by comparative fault. See, e.g., Creole
Shipping, Ltd. v. Diamandis Pateras, Ltd., 554 F.2d 1348, 1349 (5th Cir. 1977) (affirming
apportionment of fault to vessel traveling at excessive rate of speed and vessel moored with slack
lines).
The Kokuka Glorious Interests argue that no genuine issue of fact exists as to whether the
wake created by the Kokuka Glorious was reasonable or as to whether the barges were improperly
moored to withstand reasonable wakes. UBT and Marquette contend that the evidence shows that
the Kokuka Glorious proceeded at excessive speeds for the high-water conditions, thereby creating
an unreasonable wake that caused or contributed to the breakaway, and also that the Kokuka
Glorious violated several regulations aimed at preventing damage to moored ships in high-water
conditions. UBT also points to evidence showing that its barges were properly moored to
withstand a reasonable wake. While the Admiral Bulker Interests argue that UBT is solely at fault,
they also aver that Brooks identified the Kokuka Glorious as the offending vessel rather than the
Admiral Bulker.
The Court agrees with UBT and Marquette that genuine disputes of fact exist, on the one
hand, as to whether the speed and location of the Kokuka Glorious in passing the barges were
reasonable in the particular circumstances, and on the other hand, as to whether the barges were
properly moored. UBT and Marquette point to abundant testimony and records showing that the
Kokuka Glorious passed the barges at a high rate of speed, which could have been excessive in the
high-water conditions present on the date of the incident given regulations directing vessels to
“proceed at slowest safe speed.” Moreover, data generated by the experts tends both to corroborate

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and undermine Brooks’ testimony as the only eyewitness to the breakaway. Furthermore, the
Kokuka Glorious Interests rely upon Brooks’ testimony to exonerate it from liability by arguing
that Brooks unquestionably identified an upriver vessel as the source of the damaging wave. But
the Admiral Bulker Interests dispute that Brooks actually saw the Admiral Bulker, and other
evidence indicates that the dispute is genuine. Credibility determinations are properly reserved for
resolution at trial, where the Court can properly weigh Brooks’ testimony for any inconsistencies
and evaluate it against other evidence including objective data and the testimony of expert
witnesses. See Manson Gulf, L.L.C. v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 136 (5th
Cir. 2017) (grant of summary judgment improper where sole eyewitness presented “divergent
testimony” on “key issues”); Delta & Pine Land Co., 530 F.3d at 398-99. Thus, there exist genuine
issues of fact as to the operation of the vessels, their responsibility for creating any wave wash,
and the effect of any such wave wash.
Additionally, UBT and Marquette present evidence to dispute the contention that the fleet
was improperly moored. UBT admits that it did not have a downstream buoy for its 1B tier of
barges in violation of the Plaquemines Parish Tariff, which required fleeters to use a second
mooring buoy to secure the downstream end of moored barge tiers when (as in this case) the
Carrollton gauge exceeded twelve feet.83 For its part, UBT argues that the Plaquemines Parish
Tariff was preempted by U.S. Coast Guard regulations.84 The Court need not decide whether the
Plaquemines Parish Tariff is inapplicable as preempted at this juncture, however, because the issue
“has not been adequately briefed on this motion.” Slatten, LLC, 2014 WL 5500701, at *5
(concluding likewise as to the same parish regulation in the face of argument by the same parties,
UBT and Marquette). UBT provides testimony that the 1B Buoy moorings were regularly

83
84

R. Docs. 148-2 at 49-50; 148-3 at 4; 156-16 at 3.
R. Doc. 156-15 at 15-20.

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checked; that the 1B Buoy’s plasma lines were replaced in mid-December 2015, approximately
one month before the breakaway; that Tommy Rester, captain of one of Marquette’s fleet boats at
the UBT facility, inspected the 1B Buoy the morning of the incident and saw no problems; that
Tim Aucoin, captain of another Marquette fleet boat, performed a fleet check of the entire UBT
barge fleet the morning of the incident and observed no problems; and that no major problems
were reported throughout the month leading up to the incident.85 This evidence establishes genuine
issues of material fact as to the mooring of the barge fleet.
Further, in the event that the breakaway was caused by both negligence of the passing
vessels and negligence in the mooring of the fleet, liability shall be apportioned according to
principles of comparative fault – an exercise that necessarily requires sorting through disputed
issues of fact. See Hebert v. Specialized Envtl. Res. LLC, 2013 WL 1215443, at *5 (E.D. La. Mar.
25, 2013) (denying summary judgment where disputes of fact existed on question of comparative
fault); see also New Orleans Steamboat Co., 562 F. Supp. 391 (allocating fault between moored
and passing vessels after bench trial). Thus, summary judgment at this stage is inappropriate.
E. The Admiral Bulker Interests’ Motion for Summary Judgment
The Admiral Bulker Interests argue that it is impossible for claimants to prove that its wake
caused or contributed to the breakaway because certain data places the Admiral Bulker as having
passed the UBT facility at 11:50 a.m., forty minutes before the breakaway. Marquette and UBT
urge the Court to deny summary judgment because the Admiral Bulker Interests cannot prove the
vessel’s operation was not a contributing cause of the accident under the Pennsylvania Rule due
to the Admiral Bulker’s excessive speed, Brooks’ having testified that an upbound vessel caused
the breakaway, and the possibility that the 1B Buoy’s moorings were parted by the Admiral

85

R. Doc. 156 at 12-15 (citing R. Docs. 156-8 at 2-6; 156-10; 156-11; 156-12; 156-13).

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Bulker’s actions, even if the barges did not drift into the river until after the Kokuka Glorious
passed. Marquette and UBT also argue that summary judgment is inappropriate because the Court
cannot weigh the evidence or make credibility determinations on a motion for summary judgment.
As with the Kokuka Glorious Interests’ motion for summary judgment, the Court concludes
that genuine disputes of material fact exist concerning whether the Admiral Bulker’s negligence
caused or contributed to the breakaway, and whether the barges were properly moored. To grant
summary judgment would require the Court to weigh the evidence and make credibility
determinations about Brooks and the expert witnesses – an inappropriate course of action on this
motion. See Manson Gulf, L.L.C., 878 F.3d at 136.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Ingram’s motion for summary judgment (R. Doc. 147) is

GRANTED, and all claims brought against Ingram by the Vessel and Cargo Interests (R. Docs. 1
[Case No. 16-17745], 57 [Case No. 16-16215], and 109 [Case No. 16-16215]) are hereby
DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that the Kokuka Glorious Interests’ motion for summary
judgment (R. Doc. 148) is DENIED; and
IT IS FURTHER ORDERED that the Admiral Bulker Interests’ motion for summary
judgment (R. Doc. 149) is DENIED.
New Orleans, Louisiana, this 19th day of June, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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