XL Insurance America, Inc. v. Associated Terminals, Limited Liability Company et al

Filing 74

ORDER AND REASONS - Before the Court are defendant Kirby Inland Marine, LP's ("Kirby") motion for summary judgment (Rec. Doc. 19 ), plaintiff XL Insurance America, Inc.'s ("XL") response (Rec. Doc. 27 ), and Kirby's reply (Rec. Doc. 34 ). For the reasons discussed below, IT IS ORDERED that the motion for summary judgment is GRANTED. Signed by Judge Ivan L.R. Lemelle on 3/31/2021. (dw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
XL INSURANCE AMERICA, INC.

CIVIL ACTION

VERSUS

NO.

ASSOCIATED TERMINALS, LLC, ET AL

SECTION: “B”(3)

20-427

ORDER AND REASONS
Before the Court are defendant Kirby Inland Marine, LP’s
(“Kirby”) motion for summary judgment (Rec. Doc. 19), plaintiff XL
Insurance America, Inc.’s (“XL”) response (Rec. Doc. 27), and
Kirby’s reply (Rec. Doc. 34). For the reasons discussed below,
IT IS ORDERED that the motion for summary judgment is GRANTED.
FACTS OF THE CASE AND PROCEDURAL HISTORY
On

February

12,

2018,

defendant

Turn

Services,

L.L.C.’s

(“Turn”) tugboat the M/V Affirmed was pushing Kirby’s empty tank
barge Kirby 22400 on the Lower Mississippi River. Rec. Doc. 1 at
2. At or near mile marker 157, Kirby 22400 allided with a monopile
that was part of the St. James VIII Dock Extension Construction
Project

in

which

non-party Plains

All

American Pipeline

L.P.

contracted with Boh Bros. Construction Co., L.L.C. (“Boh”) to
construct. Rec. Doc. 19-1 at 1, 3. At the time of the incident,
the project was still ongoing, and Boh had a contractual obligation
to repair any damage to the monopile. Rec. Doc. 1 at 4.
On February 7, 2020, XL filed the instant complaint asserting
subject matter jurisdiction pursuant to 28 U.S.C. § 1333 and
1

Federal Rule of Civil Procedure 9(h). Id. at 1-2. In the complaint,
XL

brought

a

negligence

cause

of

action

against

defendants

Associated Terminals, Limited Liability Company (“Associated”),
Turn and Kirby. Id. at 2. On March 19, 2020, Associated was
voluntarily dismissed from this matter. Rec. Doc. 12.
On June 16, 2020, Kirby filed the instant motion for summary
judgment. Rec. Doc. 19. In general, Kirby alleges that summary
judgment is appropriate, considering it had no operational control
over its barge. Id. at 4.
On July 16, 2020, XL untimely opposed Kirby’s motion for
summary

judgment. 1

Rec.

Doc.

27.

In

view

of

the

contractual

relationship between Kirby and Turn, XL asserts that a factual
dispute exists on the issue of control. Rec. Doc. 27-1 at 3.
Accordingly, XL argues that a trier of fact must determine whether
Turn carried out the instructions provided by Kirby on the date of
the allision. Id. at 6.

XL also requested additional time to

inspect the M/V Affirmed and receive responses to outstanding
discovery before meaningfully responding to the summary judgment
motion.

Id. at 5. That request was resolved by the Magistrate

It is not beyond the Court that at no time did XL seek leave to file
its untimely opposition nor did XL attempt to respond to Kirby’s reply
noting as such. However, considering that this was XL’s first untimely
filing, we shall allow it and moot Kirby’s request to strike the
opposition. Nevertheless, future failures to seek leave of court shall
be subject to the “excusable neglect” standard of Federal Rule of Civil
Procedure 6(b)(1). See Reed v. Gautreaux, No. 19-130-SDD-RLB, 2019 WL
6219854, at *2 (M.D.La. Nov. 21, 2019)
1

2

Court, who partially granted XL’s motion to compel inspection of
M/V Affirmed and denied XL's other requests. See Rec. Doc. 59.
On July 27, 2020, Kirby was granted leave to file a reply.
Rec. Doc. 34. Kirby argues that XL intentionally omitted relevant
portions of Kirby and Turn’s Master Fully Found Charter Agreement
that

provides

that

Turn

was

in

control

of

M/V

Affirmed’s

operational movements. Id. at 2. Additionally, Kirby asserts that
XL has failed to overcome the presumption that only the owner of
the

vessel

in

control

may

be liable

for

damages.

Id. at

5.

Moreover, Kirby disputes XL’s assertion that the Charter Order
causes Kirby to be the dominant mind by arguing that XL omitted
relevant portions of the agreement that indicates Turn’s exclusive
control over M/V Affirmed’s operational movements. Id. at 2.
LAW AND ANALYSIS
a. Summary Judgment Standard
Pursuant

to

Federal

Rule of

Civil

Procedure 56,

summary

judgment is appropriate when “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 judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material
fact exists if the evidence would allow a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
3

477 U.S. 242, 248 (1986). As such, the court should view all facts
and evidence in the light most favorable to the non-moving party.
United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th
Cir. 2006).
When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the
movant meet its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. However, “a party cannot defeat summary judgment with
conclusory

allegations,

unsubstantiated

assertions,

or

only

a

scintilla of evidence.” See Sec. & Exch. Comm’n v. Arcturus Corp.,
912 F.3d 786, 792 (5th Cir. 2019).
b. Dominant Mind Doctrine
Generally, courts employ the “dominant mind” doctrine to hold
tugboat owners liable for damages sustained by a third party, “even
if the entire flotilla causes damage.” Plains Pipeline, L.P. V.
Great Lakes Dredge & Dock Co., 54 F.Supp.3d 586, 589 (E.D.La.
2014)(Duval,

J.)(internal

quotes
4

and

citations

omitted).

By

applying this concept, courts regard the tug as the “dominant mind”
because it “supplies the motive power” and “the tow is required to
follow directions from the tug.” Id. (citing Dow Chemical Co. v.
Tug THOMAS ALLEN, 349 F.Supp. 1354, 1363 (E.D.La. 1972)). “In that
case, the tug is responsible for the safe navigation of the
flotilla and has the duty to exercise such reasonable care and
skill

as

prudent

navigators

would

exercise

under

similar

circumstances.” Id.
However,

this

presumption

may

be

demonstrating

that

the

was

occasioned

damage

rebutted

by
by

evidence
the

tow’s

negligence and not the tug. Id. (citing El Paso Production Gom,
Inc. v. Smith, Nos. 04-2121, 04-2949, 05-140, 08-4130, 2009 WL
2990494, at *3 (E.D.La. Apr. 30, 2009)). Relevant evidence may
include an agreement between the tow’s owner and the tug’s owner
“giving control to the tow.” Id. Thus, “when the collision is a
result of a duty breach by the tow, and not the result of some
fault or omission of the tug, the tow may be held solely liable
for resulting damages.” Id.
In Plains Pipeline, defendant Great Lakes hired co-defendant
Dawn Services to provide two of the latter’s tugboats as support
for the former’s dredge. Id. at 588. Seeking to move the dredge to
calmer waters, Great Lakes sent a survey crew to determine the
appropriate transferal area and send the coordinates to the tugs’
captains. Id. When the tugs transported the dredge to the location
5

and lowered the dredge’s ladder to the seaboard, the ladder’s
cutterhead

ruptured

plaintiff’s

underwater

pipeline.

Id.

Upon

review of the pleadings, affidavits, and deposition testimony, the
court found that the tow acted as the dominant mind because Great
Lakes instructed Dawn’s tug captains where to transfer the dredge
as well as how it must be anchored. Id. at 591.
Similarly, in Mike Hooks Dredging Co., plaintiff alleged that
the tug and the six barges in tow collided with the plaintiff’s
dredge, tender vessel, and related equipment. Mike Hooks Dredging
Co., Inc. v. Eckstein Marine Service, Inc., No. 08-3945, 2009 WL
1870898, at *1 (E.D.La. June 29, 2009)(Berrigan, J.). Noting that
the complaint lacked any separate allegations of negligence by the
barges, this Court granted defendants’ motion for summary judgment
and absolved the barges of liability under the dominant mind
theory. Id. at *2. (citing In re Central Gulf Lines, Inc., 62
F.App’x 557, 2003 WL 1202793, at *10 (5th Cir. 2003)(“It is well
settled that a tow is not liable for the acts of the tug.”)).
Kirby avers that it cannot be deemed liable for the damage to
the monopile because Kirby 22400, as a dumb barge, did not have
any control over operations or its own movements at the time of
the collision. Rec. Doc. 19-1 at 5. Kirby offers the affidavit of
its Claims Manager Patrick Shamus O’Brien. See Rec. Doc. 19-3.
O’Brien testified that the Kirby 22400 barge is unmanned and has
no motive power. Id. at 1. O’Brien further attested that no Kirby
6

representatives or employees were on board the Kirby 22400 or the
M/V Affirmed at the time of the incident. Id.
XL asserts that a genuine issue of material fact exists
regarding control because the nature of defendants’ contractual
relationship required Turn to operate under Kirby’s directions.
Rec. Doc. 27-1 at 2. As such, XL submits defendants’ Master Fully
Found Charter Agreement and points to a provision, wherein Kirby
retained the right to provide training services to Turn’s employees
“from time to time.” Id.; Rec. Doc. 27-3 at 4. XL also submits the
charter order that Kirby and Turn executed two weeks before the
incident, providing that M/V Affirmed be delivered to Kirby for
one year from the charter order’s date. Id. at 3; see Rec. Doc.
27-4. In doing so, XL argues that Kirby directed the actions of
Turn, effectively making Kirby the dominant mind of the operation.
Id.
In response, Kirby cites relevant portions of the agreement
that contradict XL’s assertions and confirm Turn’s operational
control over M/V Affirmed:
While operating the Vessel under this Charter, Owner
[i.e., Turn] shall act solely as an independent
contractor and shall have exclusive control in every
particular method and manner of performing towing
operations.
Id.; Rec. Doc. 27-3 at 2, ¶ 3.
The Vessel shall be operated by Owner between such points
or ports as may be directed by Charterer [i.e., Kirby]
and/or Clients for whom Charterer may be working,
7

provided that such waterways are in Owner’s opinion,
safe for navigation of the Vessel and tow at the time.
Id.; Rec. Doc. 27-3 at 2, ¶ 5.
XL failed to provide any evidence or case authority to rebut
the presumption of liability under the dominant mind doctrine.
Kirby’s undisputed summary judgment evidence clearly shows that
M/V Affirmed was the vessel in control of the operation and its
tow.

Although

Kirby

contracted

Turn’s

services

to

provide

tugboats, M/V Affirmed pushed the nonoperational Kirby 22400 on
the

date

of

the

incident.

Despite

its

current

position,

XL

explicitly acknowledged that Kirby 22400 was “being pushed by and
[was]

under

See Rec.
issue

against

Doc.

of

control,

the
1

control
at

material
summary

Kirby

must

6.

of

Because

fact
judgment
be

M/V

on

Affirmed”
XL

fails

Kirby’s
is

in
to

its
raise

alleged

proper,

complaint.

and

a

genuine

exercise
XL’s

of

claims

dismissed.

New Orleans, Louisiana this 31st day of March, 2021

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

8