IN THE MATTER OF Crosby Marine Transportation, LLC et al

Filing 389

ORDER & REASONS: ORDERED that Tracker Marine's 350 motion for summary judgment is GRANTED, and all claims against it are DISMISSED WITH PREJUDICE. FURTHER ORDERED that Tracker Marine's 343 motion to exclude third-party plaintiffs' ; liability expert Nicholas Engels is DISMISSED AS MOOT. IT IS FURTHER ORDERED that Tracker Marine's 344 motion to exclude third-party plaintiffs' expert Dr. Clifford A. Hendricks is DISMISSED AS MOOT. Signed by Judge Barry W Ashe on 5/19/2021. (Reference: All Cases)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF CROSBY
MARINE TRANSPORTATION, L.L.C.,
et al.

CIVIL ACTION
NO. 17-14023 c/w 18-4136
SECTION M (4)
Pertains to all cases

ORDER & REASONS
Before the Court is a motion for summary judgment filed by third-party defendants Tracker
Marine, LLC, Tracker Marine Group, White River Marine Group, Tracker Marine Retail, LLC,
and Kenner Manufacturing Co., Inc. (collectively, “Tracker Marine”).1 Third-party plaintiffs
Crosby Marine Transportation, LLC, Crosby Tugs, LLC, the M/V Delta Duck, Bertucci
Contracting Company, LLC, the Barge BBL 708, Crosby Dredging, LLC, the Dredge 7 and
Dredge 8, Chris Carter, and Derek Hebert (collectively, “Crosby”), jointly with Atlantic Specialty
Insurance Company, Markel American Insurance Company, State National Insurance Company,
Navigators Insurance Company, United States Fire Insurance Company, Mitsui Sumitomo
Insurance Company of America, Swiss Re International SE, and the following Certain
Underwriters at Lloyds Syndicates: 1206 ATL, 1897 SKD, 1183 TAL, 2007 NVA, 0382 HDU,
1274 AUL, 0510 KLN, 1861 ATL, 1967 WRB, 0780 ADV, 1225 AES, 0033 HIS (collectively,
“Underwriters,” and together with Crosby, the “Crosby interests”) respond in opposition,2 and
Tracker Marine replies in further support of its motion.3

1

R. Doc. 350.
R. Doc. 381.
3
R. Doc. 386.
2

Having considered the parties’

memoranda, the record, and the applicable law, the Court issues this Order & Reasons granting
Tracker Marine’s motion.4
I.

BACKGROUND
This matter concerns a maritime collision. The accident occurred on November 19, 2017,

when a recreational boat hit Crosby’s vessel and tow,5 which was pushed up against the bank and
blocking a portion of Bayou Segnette.6 At the time of the accident, Crosby’s vessel was working
on a United States Army Corps of Engineers (“USACE”) project.7
In March 2017, the USACE awarded a contract to BIS Services, LLC, for a hurricane
restoration project in Jefferson Parish known as the Yankee Pond Project, which involved moving
sediment and other materials from Lake Cataouatche through the Bayou Segnette waterway and
depositing the materials in Yankee Pond to build up the marsh.8 BIS Services subcontracted with
Crosby Dredging for dredging services on the project, and Crosby Dredging, in turn, subcontracted
with Crosby Tugs for tug operations on the project.9 Crosby Dredging employed two of its own
dredges – Dredge 7, located in Yankee Pond, and Dredge 8, in Lake Cataouatche.10 In September
2017, Crosby captain Chris Carter began working on the Yankee Pond Project and was assigned
to the Delta Duck, an inland pushboat used to push barges through Bayou Segnette between Dredge
7 and Dredge 8.11

4

Tracker Marine filed two separate Daubert motions seeking to exclude the Crosby interests’ liability expert,
Nicholas Engels, and their expert ophthalmologist, Dr. Clifford A. Hendricks. R. Docs. 343 & 344. Because this
Court grants Tracker Marine’s motion for summary judgment without having to consider the expert testimony, the
Daubert motions (R. Docs. 343 & 344) are dismissed as moot.
5
R. Doc. 315-1 at 5.
6
Id.
7
R. Doc. 309 at 2.
8
R. Doc. 315-1 at 2.
9
Id.
10
Id.
11
Id. at 3.

2

On the evening of November 18, 2017, Carter received clearance to push Bertucci Barge
708 from Dredge 7 to Dredge 8.12 Earlier that evening, Carter learned of an approaching cold front
that would change the winds from a southerly direction to a strong northerly direction.13 Despite
advance warning of the imminent front, he decided to proceed toward Lake Cataouatche through
Bayou Segnette.14 While en route, Carter decided to push the tow against the west bank of Bayou
Segnette due to increased wind speeds and changing weather conditions.15 At midnight, the Delta
Duck’s watch changed, and mate Derek Hebert assumed the helm of the tug.16 When Hebert came
on watch, the head of Barge 708 was nosed up against the bank and the stern of the tug was 90 feet
from the bank, thereby blocking about 35% of Bayou Segnette.17 For the entire time Barge 708
was thus situated, neither the Delta Duck nor the barge displayed red and green navigational lights,
and the barge displayed no white all-around light.18 However, the Delta Duck used its work lights
to light up the tug and the deck barge.19
On the morning of November 19, 2017, at approximately 4:00 a.m., a 22-foot Fishmaster
recreational vessel, piloted by Chad Williams, headed south along Bayou Segnette.20 The Crosby
interests maintain that Williams, who had spent the night and early morning hours drinking
alcohol, was impaired at the time of the accident.21 Angela Huggins, Anna Clark, and Samantha
Randle were passengers in the boat.22 As the boat approached the intersection of Bayou Segnette

12

Id. at 4.
Id.
14
Id.
15
Id.
16
Id. at 5.
17
Id.
18
Id.
19
R. Doc. 324-1 at 4 (citing R. Doc. 324-2 at 27).
20
R. Doc. 315-1 at 5.
21
R. Doc. 340-1 at 3 (citing R. Doc. 340-6 at 4-5).
22
R. Doc. 315-1 at 5.
13

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and Tar Paper Canal, it struck Bertucci Barge 708, which was still pushed up against the west bank
of Bayou Segnette.23 Huggins and Clark suffered severe injuries, and Randle was killed.24
The Crosby interests maintain that the placement of the Fishmaster’s all-around navigation
light contributed to the accident.25 The vessel was manufactured and sold by Tracker Marine in
2004.26 When the Fishmaster left Tracker Marine’s factory, it had an all-around navigation light
on a 54-inch light pole affixed to the center console, which configuration complied with applicable
standards promulgated by the National Marine Manufacturer’s Association, the American Boat &
Yacht Council, and the United States Coast Guard.27

In 2015, Claude Toups purchased the

Fishmaster from a friend and allowed his son-in-law, Williams, unfettered access to the boat.28 At
some point, Williams replaced the original all-around navigation light assembly with a light pole
measuring 44½ inches.29 On the night of the accident, Williams noticed that the replacement allaround navigation light was flickering, so he zip-tied an Attwood clamp-on portable LED light kit
to the 44½-inch light pole.30 Williams testified at his deposition that neither the fixed replacement
all-around navigation light nor the temporary zip-tied light was shining in his eyes or impairing
his vision at the time of the accident.31
Crosby Tugs and Bertucci Contracting filed this limitation-of-liability proceeding in
December 2017.32 Eventually, the Crosby interests filed a third-party complaint and Rule 14(c)
tender against Tracker Marine asserting claims under the Louisiana Products Liability Act

23

Id.
Id. at 6.
25
R. Doc. 220.
26
R. Doc. 350-1 at 2.
27
Id. at 3 (citing R. Doc. 350-5).
28
Id. at 2-3; R. Doc. 245-2 at 1-2.
29
R. Doc. 350-1 at 5 (citing R. Doc. 350-6)
30
Id. (citing R. Doc. 350-6).
31
Id. (citing R. Doc. 350-6).
32
R. Doc. 1.
24

4

(“LPLA”), La. R.S. 9:2800.51, et seq., and for redhibition.33 With respect to the LPLA claim, the
Crosby interests allege that the Fishmaster was unreasonably dangerous in design due to the
placement of the all-around navigation light on the center console instead of the stern, and that
Tracker Marine failed to provide an adequate warning that the all-around navigation light should
not be replaced with a shorter pole or a non-anti-glare bulb.34 With respect to the redhibition claim,
the Crosby interests allege that the placement of the all-around navigation light pole made the boat
so inconvenient that a reasonable person would not have bought it and, thus, Toups is entitled to
recover for damage to the vessel or other economic losses he has sustained.35
II.

PENDING MOTION
Tracker Marine argues that it is entitled to summary judgment dismissing the Crosby

interests’ LPLA claim because there is no evidence that the accident occurred as a result of the
reasonably anticipated use of the 54-inch all-around navigation light pole.36 Indeed, that light pole
was no longer on the vessel at the time of the accident because Williams had replaced it with a
44½-inch pole.37 Moreover, when the accident occurred, Williams was relying on a portable light
zip-tied to the replacement pole.38 Tracker Marine argues that the dangers posed by using a shorter
replacement pole and a zip-tied temporary light were open and obvious to Williams, an
experienced boater.39 As to the redhibition claim, Tracker Marine argues that there is no evidence

33

R. Doc. 220.
Id. at 7-10.
35
Id. at 11-12.
36
R. Doc. 350-1 at 16-21.
37
Id.
38
Id.
39
Id.; R. Doc. 386 at 2-6. Tracker Marine also argues that there is no competent evidence that the accident
and resulting damages were caused by the all-around navigation light on the Fishmaster because Williams testified
that the light was not impairing his vision, nor is there any evidence of a design defect or inadequate warning. R. Doc.
350-1 at 21-32. The Court need not address these arguments because it holds that there was no reasonably anticipated
use.
34

5

that the 54-inch light pole in place when the Fishmaster left its custody rendered the boat unusable
or inconvenient.40
In opposition, the Crosby interests argue that Tracker Marine knew that the Fishmaster’s
component parts, including the all-around navigation light pole, would need to be replaced at some
point during the vessel’s useful life and it should have anticipated that a boat owner might not fully
understand or appreciate the potential danger of replacing the original pole with a shorter one that
did not have an anti-glare light.41 The Crosby interests maintain that the placement of the allaround navigation light rendered the Fishmaster unreasonably dangerous in design, and that
Tracker Marine failed to provide an adequate warning regarding replacement of the all-around
navigation light pole.42
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
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

40

Id. at 33-35.
R. Doc. 381 at 2, 11-15.
42
Id. at 4-6, 15-17. The remainder of the Crosby interests’ arguments concern whether the light was shining
in Williams’s eyes and impairing his vision, id. at 6-10, which are issues the Court need not reach given its disposition
of the motion on other grounds.
41

6

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);
EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated 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; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994); 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, 656-57 (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, 37
F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine issue of material fact, the
nonmovant must articulate specific facts showing a genuine issue and point to supporting,

7

competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co., 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)(1)(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. The Louisiana Products Liability Act
The LPLA prescribes “the exclusive theories of liability for manufacturers for damage
caused by their products.” La. R.S. 9:2800.52. Under the LPLA, a plaintiff may only recover
against a manufacturer “for damage proximately caused by a characteristic of the product that
renders the product unreasonably dangerous when such damage arose from a reasonably
anticipated use of the product by the claimant or another person or entity.” Id. 9:2800.54(A). The
statute further limits recovery for damage resulting from “unreasonably dangerous” characteristics
to four theories of liability: (1) unreasonably dangerous in construction or composition;43 (2)
unreasonably dangerous in design;44 (3) unreasonably dangerous for failure to provide an adequate
warning;45 and (4) unreasonably dangerous for nonconformity to an express warranty.46 Id.
9:2800.54(B). The unreasonably dangerous characteristic “must exist at the time the product left
the control of its manufacturer.” Id. 9:2800.54(C). The plaintiff bears the burden of proving each

43

See La. R.S. 9:2800.55.
See id. 9:2800.56.
45
See id. 9:2800.57.
46
See id. 9:2800.58.
44

8

of these elements of an LPLA claim. Id. 9:2800.54(D); see also Johnson v. Transwood, Inc., 2015
WL 5680369, at *3 (M.D. La. Sept. 25, 2015) (an unreasonably dangerous condition is not
presumed solely because an injury occurred).
“‘Reasonably anticipated use’ is the threshold LPLA element.” Matthews v. Remington
Arms Co., 641 F.3d 635, 641 (5th Cir. 2011). Without a reasonably anticipated use, a court need
not analyze whether the product was unreasonably dangerous under one of the LPLA’s four
theories of liability. Id. The LPLA defines “reasonably anticipated use” as “a use or handling of
a product that the product’s manufacturer should reasonably expect of an ordinary person in the
same or similar circumstances.”

La. R.S. 9:2800.53(7). The Louisiana supreme court has

explained “reasonably anticipated use” as follows:
Notably, [the LPLA’s] definition [of “reasonably anticipated use”] is narrower in
scope than its pre-LPLA counterpart, “normal use,” which included “all reasonably
foreseeable uses and misuses of the product,” but, like “normal use,” what
constitutes a reasonably anticipated use is ascertained from the point of view of the
manufacturer at the time of manufacture. Unlike its “normal use” counterpart,
though, the use of the words “reasonably anticipated” effectively discourages the
fact-finder from using hindsight.
“Reasonably anticipated use” also effectively conveys the important message that
“the manufacturer is not responsible for accounting for every conceivable
foreseeable use” of its product. Likewise, “knowledge of the potential and actual
intentional abuse of its product does not create a question of fact on the question of
reasonably anticipated use.”
Payne v. Gardner, 56 So. 3d 229, 231 (La. 2011) (internal citations omitted).
Applying this standard, the Crosby interests must produce sufficient evidence that, at the
time of manufacture, Tracker Marine should have reasonably expected that an ordinary consumer
or user of its Fishmaster vessel would replace its original 54-inch all-around navigation light pole
with a shorter pole and then zip-tie a temporary light to that replacement pole at a height that would
impair his vision. See id. The Crosby interests have produced no such evidence. They instead

9

argue that Tracker Marine should have expected that an end-user would need to replace the
navigation light pole eventually and should have passed on the pole manufacturer’s warning that
the pole should be replaced with one at least as long as the existing one and that an anti-glare light
should be used so that it does not impair the operator’s vision.47 It is unclear whether the pole
manufacturer’s warning accompanied the Fishmaster when it left the showroom, but it is
undisputed that Toups (who was not the original owner) and Williams never received it.48
Regardless, “[e]ven if the warning did not reach the users, if the danger from a particular use of a
product is obvious, then it is not a ‘reasonably anticipated use’ under the LPLA.” Spears v. Cintas
Sales Corp., 414 F. App’x 667, 669 (5th Cir. 2011) (quotation omitted). Here, Williams’s
replacing the all-around navigation pole with a shorter one that did not have an anti-glare light,
and more importantly, zip-tying a temporary light to that pole right in his field of vision, as alleged
by the Crosby interests, is certainly an obvious danger, and thus, not a reasonably anticipated use
of the product. Id. (affirming summary judgment for manufacturer because welder’s use of the
uniform at issue was not a reasonably anticipated use under the LPLA in that the danger of
exposing the uniform to flammability risk was obvious). Because use of the product was not
reasonably anticipated, Tracker Marine is entitled to summary judgment on the Crosby interests’
LPLA claim.
C. Redhibition
Under Louisiana law, sellers impliedly warrant buyers against redhibitory defects, or vices,
in the thing sold. La. Civ. Code art. 2520. A seller is liable to a buyer for a redhibitory defect
when: (1) the thing the seller sold is either absolutely useless for its intended purpose or its use is
so inconvenient or imperfect that had the buyer known of the defect, he or she would not have

47
48

R. Doc. 381 at 5.
Id. at 5-6.

10

purchased it; (2) at the time of the sale, the thing sold contained a defect that was neither known
nor apparent to the buyer; and (3) the seller was afforded an opportunity to repair the defect. See
Alston v. Fleetwood Motor Homes of Ind., Inc., 480 F.3d 695, 699 (5th Cir. 2007). “The warranty
against redhibitory defects covers only defects that exist at the time of delivery.” La. Civ. Code
art. 2530. A buyer has a duty to inspect the item for defects. See, e.g., Crow v. Laurie, 729 So.
2d 703, 707-08 (La. App. 1999) (citing Pursell v. Kelly, 152 So. 2d 36, 41 (La. 1963)). Whether
an inspection is reasonable depends on the facts of the case, including such factors as the
knowledge and expertise of the buyer, the opportunity for inspection, and the assurances made by
the seller. See Merlin v. Fuselier Constr., Inc., 789 So. 2d 710, 715 (La. App. 2001); see also
Lemaire v. Breaux, 788 So. 2d 498, 501 (La. App. 2001) (requiring the buyer to conduct an
investigation “as would be conducted by a reasonably prudent buyer acting under similar
circumstances”). Although the LPLA is the exclusive remedy for damages caused by a product,
redhibition claims are preserved to plaintiffs but “only to the extent the claimant seeks to recover
the value of the product or other economic loss.” De Atley v. Victoria’s Secret Catalogue, LLC,
876 So. 2d 112, 115 (La. App. 2004); see also NAZ LLC v. Philips Healthcare, 2018 WL 5847862,
at *7 (E.D. La. Nov. 18, 2018) (discussing the LPLA’s limiting effect on a redhibition claim, and
stating “a plaintiff must bring an action under the LPLA to recover all damages caused by a
product, except for damage to the product itself and economic loss sought under the Chapter 9
Redhibition articles”).
The Crosby interests have produced no evidence that the 54-inch all-around navigation
light pole or its placement on the center console rendered the Fishmaster useless or so inconvenient
that a reasonable buyer would not have purchased it. As installed by the manufacturer of the boat,
that light would have been well above the operator’s head. It was an obvious feature of the vessel

11

when Toups bought it from his friend. Further, the original light pole was no longer on the vessel
at the time of the accident and thus could have had nothing to do with the accident. Williams had
replaced it with a shorter pole and had also attached a makeshift temporary light to the shorter
pole. These changes to the Fishmaster – made after the boat left the manufacturer’s hands when
sold new in 2004 – are factors the Crosby interests allege to have contributed to the accident.
Therefore, Tracker Marine is entitled to summary judgment on the Crosby interests’ redhibition
claim.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Tracker Marine’s motion for summary judgment (R. Doc. 350) is

GRANTED, and all claims against it are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Tracker Marine’s motion to exclude third-party
plaintiffs’ liability expert Nicholas Engels (R. Doc. 343) is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Tracker Marine’s motion to exclude third-party
plaintiffs’ expert Dr. Clifford A. Hendricks (R. Doc. 344) is DISMISSED AS MOOT.
New Orleans, Louisiana, this 19th day of May, 2021.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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