Crescent Towing & Salvage Co., Inc. et al v. Jalma Topic M/V

Filing 180

ORDER AND REASONS: IT IS ORDERED that Limitation Petitioners' 166 motion for summary judgment is DENIED. Signed by Judge Susie Morgan on 1/3/2025. (Reference: All Cases)(pp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRESCENT TOWING & SALVAGE
CO., INC., ET AL.,

CIVIL ACTION

VERSUS

NO. 21-1331
c/w 21-1390,
21-1953, 24-501

M/V JALMA TOPIC,

SECTION: “E” (2)

Plaintiffs

Defendant
Applies to: All cases
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Limitation Petitioners
Lotina Navigation Company and Marfin Management S.A.M. (collectively, “Limitation
Petitioners”).1 Claimant Gawain Schouest (“Claimant”) opposes Limitation Petitioners’
motion.2 Limitation Petitioners filed a reply in support of their motion.3
BACKGROUND
This case arises from the July 12, 2021, allision (the “Allision”) involving the M/V
JALMA TOPIC.4 On that day, the M/V JALMA TOPIC was traveling up the Mississippi
River near New Orleans when its rudder stuck to port, causing it to allide with a barge
and dock structure owned by Crescent Towing and Salvage Co. Inc. (“Crescent”), along
with several small boats owned by Cooper Mooring, Inc. (“Cooper”), situated on the west
bank of the river.5 On July 13, 2021, Crescent and Cooper filed the present action against

1 R. Doc. 166.
2 R. Doc. 168.
3 R. Doc. 172.

4 R. Doc. 62 at p. 3.
5 Id.

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the M/V JALMA TOPIC in rem pursuant to Supplemental Admiralty Rule C arrest.6 On
July 22, 2021, the Limitation Petitioners, which are the owner and managing owner of the
M/V JALMA TOPIC, filed a verified complaint in limitation pursuant to Supplemental
Admiralty Rule F of the Federal Rules of Civil Procedure (the “Limitation Action”).7 On
July 28, 2021, the Court approved the Limitation Petitioners’ stipulation for value,
directed issuance of notice to claimants, and stayed all actions against the Limitation
Petitioners and the M/V JALMA TOPIC arising from the Allision.8
On September 8, 2023, all claimants in the Limitation Action settled their claims
with the Limitation Petitioners except for Claimant,9 who at the time of the Allision was
employed by Crescent as a port captain.10 Claimant moved the Court to dissolve the
injunction, stay the Limitation Action, and allow him to proceed in state court,11 subject
to certain protective stipulations, which provided he would not seek or enforce any
judgment against the Limitation Petitioners exceeding the value of the limitation fund.12
Finding the stipulations adequately protected the Limitation Petitioners’ rights, the Court
granted Claimant’s motion and allowed him to pursue claims in state court under the
“single claimant rule.”13
On October 6, 2023, Claimant filed a petition in Louisiana state court against
Crescent, Cooper, and the Limitation Petitioners (the “Schouest Action”).14 Claimant
brought a general maritime negligence claim against Limitation Petitioners for injuries

6 R. Doc. 1.

7 R. Doc. 1 (In re Lotina Navigation Co., et al., Case No. 21-1390).
8 R. Doc. 7 (21-1390).
9 See R. Doc. 129.

10 R. Doc. 27-1 at 2.
11 R. Doc. 130.

12 R. Doc. 130-3.

13 R. Doc. 135. A “single claimant” may proceed in state court. See Langnes v. Green, 282 U.S. 531 (1931).
14 R. Doc. 1-6 at pp. 7-10 (Schouest v. Lotina Navigation Co., et al., Case No. 24-501).

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he allegedly suffered while responding to the Allision.15 After being named as defendants
in the Schouest Action, Crescent and Cooper requested permission to lift the stay and
amend their claims against the Limitation Petitioners and the limitation fund to include
contribution, indemnity, and recovery related to their liability arising from the Schouest
Action.16 On February 7, 2024, the Court reopened the Limitation Action for the limited
purpose of allowing Crescent and Cooper to file their amended claims.17
Limitation Petitioner Marfin Management S.A.M. noticed removal of the Schouest
Action to federal court on February 27, 2024.18 While proceeding in this Court, Schouest
filed a motion to remand the Schouest Action to state court.19 Subsequently, Claimants
Crescent and Cooper filed a motion in the Limitation Action requesting that the Court
reopen the Limitation Action, consolidate the Schouest and Limitation Actions, and
reinstate the limitation injunction.20 The Court granted Crescent and Cooper’s motion and
denied Claimant’s motion to remand as moot.21
Limitation Petitioners then filed a motion for summary judgment against Claimant
seeking dismissal of Claimant’s general maritime negligence claim.22
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”23 “An issue is material if its resolution could affect the outcome of the action.”24

15 Id.
16 R. Doc. 136.

17 R. Doc. 152; R. Doc. 153.
18 R. Doc. 1 (24-501).

19 R. Doc. 22 (24-501).
20 R. Doc. 154.
21 R. Doc. 162.
22 Id.

23 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
24 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

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When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.”25 All reasonable inferences are drawn in favor of the nonmoving party.26
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.27
If the dispositive issue is one for which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”28 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.29
On the other hand, if the dispositive issue is one on which the nonmoving party
will bear the burden of persuasion at trial, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that negates an essential element
of the nonmovant’s claim, or (2) demonstrating there is no evidence in the record to
establish an essential element of the nonmovant’s claim.30 When proceeding under the

25 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
26 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
27 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
28 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
29 Celotex, 477 U.S. at 322-24.
30 Id. at 331-32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322-24, and
requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s

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first option, if the nonmoving party cannot muster sufficient evidence to dispute the
movant’s contention that there are no disputed facts, a trial would be useless, and the
moving party is entitled to summary judgment as a matter of law.31 When, however, the
movant is proceeding under the second option and is seeking summary judgment on the
ground that the nonmovant has no evidence to establish an essential element of the claim,
the nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.”32 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant.33 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).”34 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”35

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential
element); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex,
and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims on
summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and
dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.” (internal citations omitted)).
31 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1980); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986).
32 Celotex, 477 U.S. at 332-33.
33 Id.
34 Id. at 332-33 & n.3.
35 Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.

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Still, “unsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”36
LAW AND ANALYSIS
I.

There are genuine disputes of material fact with respect to Claimant’s
maritime negligence claim.
Claimant brings a maritime negligence claim against Limitation Petitioners.37 “To

establish maritime negligence, ‘a plaintiff must demonstrate that there was [1] a duty
owed by the defendant to the plaintiff, [2] breach of that duty, [3] injury sustained by the
plaintiff, and [4] a causal connection between the defendant’s conduct and the plaintiff's
injury.’”38 The fourth element, causation, “has the sub-elements of: (a) cause in fact and
(b) proximate or legal cause.”39 Cause in fact, or legal cause, “is something more than ‘but
for’ causation, and the negligence must be a ‘substantial factor’ in the injury.”40 A court’s
determination on proximate cause “involves a number of factors, including most notably
the foreseeability of the harm suffered by the complaining party.”41 “[I]f the damages
claimed to be sustained as a result of the Defendants’ alleged negligence were not

36 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (first citing Celotex, 477 U.S. at 324;

then Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); then quoting Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 915-16 & n.7 (5th Cir. 1992)).
37 R. Doc. 1-6 at pp. 7-10 (24-501).
38 SCF Waxler Marine, L.L.C. v. Aris T M/V (“Waxler II”), 24 F.4th 458, 470 (5th Cir. 2022) (quoting GIC
Servs., L.L.C. v. Freightplus USA, Inc., 866 F.3d 649, 659 (5th Cir. 2017)).
39 Cooper/T. Smith Stevedoring Co., Inc. v. Bright Navigation, Inc., No. 17-1216, 2019 WL 13214727, at *8
(E.D. La. Aug. 30, 2019) (internal quotations omitted).
40 Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992) (quoting Thomas v. Express
Boat Co., 759 F.2d 444, 448 (5th Cir. 1985)).
41 Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987).

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‘foreseeable,’ then Defendants owed no duty to the Claimants and are not liable as a
matter of law.”42
A. The disputed and undisputed material facts
The following facts are undisputed: (1) Claimant, an employee for Crescent, was at
home at the time of the Allision,43 (2) Claimant was called to the scene of the Allision after
it occurred,44 (3) Claimant performed work responsive to the Allision,45 and (4) the hours
Claimant worked following the Allision.46
The parties dispute (1) whether the office barge was stable on the bank or not when
Claimant arrived at the scene of the Allision,47 (2) the amount of work and the nature of
the work Claimant was required to perform in response to the Allision,48 and (3) when
Claimant was injured.49
Limitation Petitioners state it is an undisputed fact that when Claimant arrived at
the Crescent facility after Crescent called him to the scene of the Allision, the office barge
was pushed into the levee’s mud and was stuck.50 Claimant disputes this and points to his
deposition testimony.51 Claimant testified that, upon arrival at the scene of the Allision,
“[t]here was no time” to wait for help because there was “nothing to hold” the barge in
place and that “[s]omething ha[d] to be done.52

42 In re Oil Spill, MDL No. 2179, 2011 WL 4829905, at *3 (E.D. La. Oct. 12, 2011).
43 R. Doc. 166-2 at ¶¶ 1-5; R. Doc. 168-1 at pp. 1-2.
44 R. Doc. 166-2 at ¶ 5; R. Doc. 168-1 at pp. 2-4.

45 R. Doc. 166-2 at ¶¶ 12, 14-16; R. Doc. 168-1 at pp. 7, 9.
46 R. Doc. 166-2 at ¶¶ 1-5; R. Doc. 168-1 at pp. 1-2.

47 R. Doc. 166-2 at ¶¶ 6, 8-10, 13; R. Doc. 168-1 at pp. 4-6, 8.
48 R. Doc. 166-2 at ¶¶ 11-12, 17; R. Doc. 168-1 at pp. 6-9.
49 R. Doc. 166-2 at ¶ 18; R. Doc. 168-1 at pp. 7, 9-10.

50 R. Doc. 166-2 at ¶ 6 (citing R. Doc. 166-3 at pp. 9-11 (Claimant Deposition)).

51 R. Doc. 168-1 at pp. 4-5 (citing R. Doc. 168-2 at pp. 22-26, 31-33 (Claimant Deposition)).
52 R. Doc. 168-2 at pp. 31, 32-33.

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Limitation Petitioners state it is an undisputed fact that Claimant unrolled “large”
mooring lines in the parking lot, carried these lines down the batture, and put them up on
the barge with the help of another Crescent Towing employee.53 Claimant contests this.54
Claimant testified that there were three Kevlar mooring lines on spools in storage in
Crescent Towing’s parking lot.55 Claimant then testified that he rolled the stools into the
parking lot and then unrolled lines.56 Claimant testified that, after another Crescent
employee, Jarod, arrived at the scene of the Allision, Claimant and Jarod carried the three
lines down the levee, put them around a column, and threw a monkey fist onto the barge
to pull the lines onto the barge.57 Claimant testified that he and Jarod carried each line in
sections one at a time and carried each “bite” as far as they could before stopping.58 Then,
Claimant testified they would grab the next bite of line and carry that bite as far as they
could.59 Claimant testified they repeated this process for each mooring line.60 Although
the parties dispute the amount of work and the nature of the work Claimant was required
to perform in response to the Allision, the parties do not explain the relevance of this
dispute to Limitation Petitioners’ motion for summary judgment. Nor does the Court find
these factual disputes relevant.
Limitation Petitioners state it is an undisputed fact that Claimant told Crescent he
was hurting at the end of July 13, 2021 and that Claimant did not go to a doctor until
“several” weeks later.61 Claimant contests this fact.62 Claimant testified that he first told

53 R. Doc. 166-2 at ¶ 11 (citing R. Doc. 166-3 at pp. 12-17).
54 R. Doc. 168-1 at pp. 6-7 (citing R. Doc. 168-2 at pp. 10-14).
55 Id.

56 Id.
57 Id.

58 Id.
59 Id.

60 Id.

61 R. Doc. 166-2 at ¶ 18 (citing R. Doc. 166-3 at p. 30).
62 R. Doc. 168-1 at p. 10 (citing R. Doc. 168-2 at pp. 29-30).

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Crescent Towing about his injury on July 12, 2021.63 This factual dispute is material
because it is relevant to when Claimant suffered his injury and whether Claimant suffered
his injury while performing work in response to the Allision.
B. Analysis
Limitation Petitioners move the Court to grant summary judgment against
Claimant and dismiss Claimant’s maritime negligence claim.64 As the United States Court
of Appeal for the Fifth Circuit has explained:
Because of the peculiarly elusive nature of the term “negligence” and the
necessity that the trier of facts pass upon the reasonableness of the conduct
in all the circumstances in determining whether it constitutes negligence, it
is the rare personal injury case which can be disposed of by summary
judgment, even where the historical facts are concededly undisputed. 65
F

Thus, a court will grant summary judgment in a negligence case only in “rare
circumstances.” 66
F

Limitation Petitioners ask the Court to dismiss Claimant’s maritime negligence
claim because Claimant cannot establish the duty and causation elements as a matter of
law.67 A court should “decide the issue of causation on summary judgment [only] if the
allegation is so frivolous and obviously impossible as to fall short of presenting a genuine
issue of material fact.”68 Based on the record, the Court finds a reasonable factfinder could

63 R. Doc. 168-2 at pp. 28-30.
64 R. Doc. 166.

65 Gauk v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965).

66 Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1339 & n.8 (5th Cir. 1983) (“In tort actions in which

determinations of a less ‘elusive nature,’ such as the existence of an agency relationship, waiver, or whether
a plaintiff is in a class protected by a statute, are dispositive, summary judgment may more often be
appropriate.” (citing 10A Wright, § 2729 at 197–201)); see also Keating v. Jones Dev. of Mo., Inc., 398 F.2d
1011, 1015 (5th Cir. 1968) (“Negligence is a seldom enclave for trial judge finality. Negligence is a composite
of the experiences of the average man and is thus usually confined to jury evaluation.”).
67 R. Doc. 168-1.
68 Tidewater Marine, Inc. v. Sanco Intern., Inc., No. 96-1258, 1997 WL 543108, at *5 (E.D. La. Sept. 3,
1997) (first quoting Del Valle v. Marine Transp. Lines, Inc., 582 F. Supp. 573, 578 (D.P.R. 1984); then citing
Bonmarito v. Pendrod Drilling Corp., 929 F.2d 186, 188 (5th Cir. 1991)).

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find that Limitation Petitioner’s alleged negligence caused Claimant’s injuries because
Claimant was injured while performing work that the Allision necessitated.
Claimant has established a genuine dispute of material fact as to the stability of the
office barge when Claimant arrived at the scene of the Allision. This factual dispute
regarding whether the office barge needed to be secured immediately shows why
summary judgment is inappropriate. Whether Claimant was presented with an
emergency when he arrived at the scene of the Allision impacts the foreseeability analysis
and therefore the causation and duty analyses. The foreseeability of Claimant’s injuries
depends on whether Claimant was injured while responding to an emergency that
Limitation Petitioners caused through their negligence.
Limitation Petitioners ask the Court to find that Limitation Petitioners did not
proximately cause Claimant’s injuries as a matter of law based primarily on three cases.69
Each case is distinguishable.70 None of Limitation Petitioners’ cited cases addresses a
situation in which an individual who was not present at the time of the allision was injured
while performing work in response to the allision.71
SCF Waxler Marine LLC v. M/V ARIS T and Cooper/T. Smith Stevedoring Co.,
Inc. v. Bright Navigation, Inc. involve decisions issued following a bench trial and
presentation of evidence, not summary judgment orders.72 Waxler is distinguishable
because, in Waxler, “[t]he cause-in-fact and proximate cause of [the injured party’s]
injuries was his own carelessness or inattention” and it was not foreseeable that the

69 R. Doc. 166-1 at pp. 8-16.
70 SCF Waxler Marine LLC v. M/V ARIS T (“Waxler I”), 427 F. Supp. 3d 728 (E.D. La. 2019), aff’d sub nom.
Waxler II, 24 F.4th 458; Hardimon v. SCF Lewis & Clark Fleeting LLC, 614 F. Supp. 3d 632 (S.D. Ill. 2022);
Bright Navigation, 2019 WL 13214727 (E.D. La. Aug. 30, 2019).
71 Waxler I, 427 F. Supp. 3d 728; Waxler II, 24 F.4th 458; Hardimon, 614 F. Supp. 3d 632; Bright
Navigation, 2019 WL 13214727.
72 Waxler I, 427 F. Supp. 3d 728; Waxler II, 24 F.4th 458; Bright Navigation, 2019 WL 13214727.

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allision “would have caused [the injured party], who did not hear or see the allision, to
panic and injure himself on a dock that was not hit, and was never in danger of being hit,
by the Aris T.”73 In this case, however, it was not Claimant’s “carelessness or inattention”
that caused his injuries. Instead, it was Claimant’s efforts in response to the Allision.
Waxler is further distinguishable because, in Waxler, the injured party was not
performing work related to the allision. In Waxler, the injured party merely saw a ship
1,000 feet away and tripped and fell.74
Bright Navigation also is distinguishable. In Bright Navigation, the plaintiff
argued the owner of the AGAPI S, which was involved in an allision, caused barges in the
plaintiff’s fleet to break loose.75 One of the plaintiff’s theories was that ships responding
to the AGAPI S allision caused water turbulence and that this turbulence caused its barge
to break loose.76 Because the owner of the AGAPI S did not control the vessels responding
to the allision and because there was no ongoing emergency when the vessels responded
to the allision, the plaintiff “failed to prove” the AGAPI S’s owner caused the barge
breakaway.77 The factual dispute regarding whether the office barge in this case was stable
and/or secure, and whether there was an emergency at the time Claimant arrived at the
scene of the Allision, distinguishes this case from Bright Navigation.
Hardimon v. SCF Lewis & Clark Fleeting LLC was decided on a Federal Rule of
Civil Procedure 12(b)(6) motion to dismiss. It is non-binding precedent from the United
States District Court for the Southern District of Illinois and is distinguishable.78 In
Hardimon, the plaintiff alleged that he was injured after he boarded a barge damaged by
73 Waxler I, 427 F. Supp. 3d at 784-85.
74 Id.

75 Bright Navigation, 2019 WL 13214727, at *12, 18-19.
76 Id.

77 Id. at *18-19.
78 Hardimon, 614 F. Supp. 3d 632.

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barges that broke away from an American River Transportation Company, LLC
(“ARTCO”) fleet.79 The plaintiff failed “to allege that he was assigned to the barge . . . for
the purpose of repairing damage.”80 Moreover, from the plaintiff’s allegations, it did “not
appear that [his] injuries had any relation to any damage created by the ARTCO barge.”81
In this case, Claimant was called to the scene of the Allision in response to the Allision
and performed work related to the Allision.82 This is not a case in which Claimant was
present because of the Allision but just so happened to suffer an injury. Claimant argues
he was injured performing work that the Allision necessitated.83
Given the lack of on point legal authority and the factual disputes regarding the
stability of the barge when Claimant arrived and when Claimant suffered his injury,
summary judgment is not appropriate.
CONCLUSION
IT IS ORDERED that Limitation Petitioners’ motion for summary judgment is
DENIED.84
New Orleans, Louisiana, this 3rd day of January, 2025.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

79 Id. at 633-34.
80 Id. at 638.
81 Id.

82 R. Doc. 166-2 at ¶¶ 5, 12, 14-16; R. Doc. 168-1 at pp. 2-4, 7-9.
83 R. Doc. 168.
84 R. Doc. 166.

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