Nassri et al v. Inland Dredging Company
Filing
134
ORDER AND REASONS DENYING 85 Motion for Partial Summary Judgment - Presumption of Negligence. Signed by Judge Stanwood Duval, Jr on 1/15/2013. (swd)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FAYEZ NASSRI AND
JAMES MORRIS
CIVIL ACTION
VERSUS
NO. 11-853
INLAND DREDGING COMPANY
SECTION “K”(1)
ORDER AND REASONS
Before the Court is the “Motion for Partial Summary Judgment - Presumption of
Negligence,” filed on behalf of plaintiffs Fayez Nassri and James Morris (Doc. 85). Having
reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons assigned,
DENIES the motion.
Background
The following facts are undisputed:
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Inland Dredging Company (“Inland”) was the owner pro hac
vice of the IDC-120 at all relevant times.
On December 8, 2010, Inland was performing dredging
operations under authority of an Army Corps of Engineers
contract, #W912P8-10-C-0127 on the Intercoastal Waterway
within Iberville Parish, Louisiana.
In connection with those dredging operations, Inland
deployed the KELLY L, two tugs (The CARDINAL and the
INLAND TIGER), a crane barge, dredging pipe, and pipe
tanks, including the IDC-120.
Robert D. Johnston, an employee of Inland, served as the
project manager for the dredging operations on December 78, 2010.
Robert Goodwin, an unlicensed master, was assigned by
Inland to pilot the KELLY L on December 7-8, 2010.
On December 8, 2010, Tim Dyer, an Inland employee, also
served as a project manager assigned to the Intercoastal
Waterway Dredging project.
IDC-120 is a 6' x 10' rolled steel pipe tank primarily utilized
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to support dredging pipe during dredging operations.
On December 7, 2010, the IDC-120 was removed from a
hopper barge on the Intercoastal Waterway and discovered to
be in need of repair because a cleat had broken off.
Sam Ford, Jr., a deck captain with Inland, moored the IDC120 to a crane barge located at the dredging site.
At approximately 6:00 p.m. on December 7, 2010, Robert
Johnson’s deck crew advised him that the IDC-120 had been
moored to the crane barge for the evening.
On December 8, 2010, at approximately 5:30 a.m., James
Ernest Morris, Jr. and his passenger Fayez Nassri, were
southbound on the Intercoastal Waterway, 0.75 miles below
Bayou Sorrell Locks in Mr. Morris’s recreational fishing
boat when the boat struck the IDC-120, which was no longer
moored to the crane barge.
“At approximately 5:45 a.m., the KELLY L was contacted by
radio and as a result of the communication, leverman Larry
McCort assigned the Inland Tiger to retrieve the IDC-120
which, according to tug operator, Jose Cortz, “ . . . broke free
from the crane barge . . . sometime in the night.” Doc. 85-2,
p. 2.
Inland’s limited post-accident investigation of the accident
failed to determine the reason the IDC-120 broke loose from
the crane barge.
As a result of the accident, both Mr. Nassri and Mr. Morris allegedly sustained injuries.
Mr. Nassri and Mr. Morris filed suit in state court against Inland and its insurer for their
damages alleging negligence under both Louisiana law and the general maritime law. Inland
removed the suit to federal court. In its answer, Inland asserted, among other defenses, the
protection of the Limitation of Liability Act, 46 U.S.C. §30501, et seq, Rule F of the Supplementary
Rules for Certain Admiralty Claims.
Plaintiffs filed a motion for summary judgment seeking a finding that Inland “as a matter of
law is presumed negligent for the IDC-120 breakaway because the tug Inland Tiger moored the pipe
tank to the crane barge on the evening of December 7, 2010; and [t]he Defendant Inland Dredging
cannot overcome this presumption of negligence with credible evidence it exercised any modicum
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of reasonable skill or care when moving the pipe tank to the crane barge.” Doc. 85-3, p. 1. Inland
opposes the motion asserting, among other things, that the presumption of negligence sought to be
invoked by plaintiff does not apply.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should
be granted "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." The party moving for summary judgment bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the record "which it believes demonstrate the absence of a genuine issue of
material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has carried its burden under Rule
56, its opponent must do more than simply show that there is some metaphysical doubt as to the
material facts. The nonmoving party must come forward with "specific facts showing that there is
a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th
Cir.1995).
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’ ” Pylant v. Hartford Life and Accident Insurance Company, 497
F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must be “viewed in the light most
favorable to the nonmovant, with all factual inferences made in the nonmovant’s favor.” Bazan ex
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rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001), citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
[C]onclusory statements, speculation, and unsubstantiated assertions
cannot defeat a motion for summary judgment. The Court has no
duty to search the record for material fact issues. Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports his claim.
RSR Corporation v. International Insurance Company, 612 F.3rd 851,857 (5th Cir. 2010).
Law and Analysis
Relying upon the rule of The Louisiana, 70 U.S.164, 18 L.Ed. 85 (1865) , plaintiffs urge this
Court to apply a presumption that Inland acted negligently. Because this case can be readily
distinguished from The Louisiana, the Court declines to apply a presumption of negligence. In The
Louisiana, a drifting vessel struck a vessel that had run aground. Thus, that case involved an
allision. Black’s Law Dictionary defines “allision” as “[t]he contact of a vessel with a stationary
object such as an anchored vessel or a pier. Black’s Law Dictionary, 88 (9th ed. 2009). The rule of
The Louisiana, “imposes a presumption of fault on a vessel that breaks free from its moorings and
drifts into a stationary object.” In re Katrina Canal Breaches Consolidated Litigation, 2011 WL
1792542 (E.D. La. Jan. 20, 2011). In contrast, the IDC-120 did not hit a stationary object; it collided
with Mr. Morris’s boat which was moving at the time of the accident. “The contact of two or more
moving vessels” constitutes a “collision.” Id. at 300. Citing James v. River Parishes Company,
Inc., 686 F.2d 1129 (5th Cir. 1982), plaintiffs urge that The Louisiana extends to cases involving
collisions, as well as those involving an allision. Although the James court opined that “[a] vessel
which drifts into collision is presumed to be at fault until the contrary is made to appear[,]” review
of the case establishes that the accident which gave rise to the litigation involved a drifting barge
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hitting a stationary vessel. In other words, it involved an allision, not a collision. Because the
Louisiana Rule does not extend to accidents where a drifting vessel collides with a moving vessel,
the presumption applied therein is inapplicable here. Therefore, the Court denies plaintiffs’ motion.
However, the Court notes that even though the Louisiana Rule does not apply herein, Inland, as
the owner pro hac vice of the drifting vessel, faces a considerable challenge in establishing that it
was not negligent in a manner that was a proximate cause of the collision.
New Orleans, Louisiana, this 15th day of January, 2013.
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE
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