Transportation & Development v. Marquette Transportation Co L L C et al

Filing 115

RULING re 28 SEALED MOTION for Summary Judgment filed by Marquette Transportation Co L L C. Signed by Judge Robert G James on 7/18/13. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

LOUISIANA DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

CIVIL ACTION NO. 12-0712

VERSUS

JUDGE ROBERT G. JAMES

MARQUETTE TRANSPORTATION
COMPANY, LLC and JOHN DOE

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a Motion for Summary Judgment [Doc. No. 28] filed by
Defendant Marquette Transportation Company, LLC (“Marquette”). Plaintiff Louisiana Department
of Transportation and Development (“LDOT”) has filed an opposition memorandum [Doc. No. 37],
and Marquette has filed a reply memorandum [Doc. No. 59].
For the following reasons, the motion is GRANTED, and LDOT’s claim that Marquette’s
sunk barge caused scouring at the base of Piers E1 and E2 of the Vicksburg Bridge is DISMISSED
WITH PREJUDICE. At this time, subject to review of the pending motions, LDOT’s other claims,
including its claim that the sinking of Marquette’s barge aggravated the scouring, remain pending
for trial.
I.

FACTS
This case arises from the sinking of a barge on the Mississippi River. On the afternoon of

March 23, 2011, a tug owned by Marquette, KAY A. ECKSTEIN, was southbound on the
Mississippi River pushing a 30-barge tow. The river stage of 41.58 feet was high and rising, and the
current was strong. While passing through the old I-80 bridge, barge BUNGE-489, the second lead

barge from starboard, struck the left descending channel span pier of the bridge, causing the tow to
break apart at 1430 hours. The starboard lead barge, SCF-2301, was adrift and contacted the left
descending channel span (“Pier E1”) of the I-20 bridge.1 A short time later, the barge sank in its
position on the upriver side of Pier E1.
In its original Complaint, the LDOT asserted a claim that the sinking of the barge caused
scouring at the bases of Piers E1 and E2. Scour, a type of erosion, is the removal of sediment, such
as sand and rocks from river banks and beds, which occurs as a result of swiftly moving waters.
However, the LDOT’s hydrologist, Steve Lee, admitted that there have been scour holes around Piers
E1 and E2 since LDOT began its Hydrographic Survey Monitoring in 1975.
II.

LAW AND ANALYSIS
A.

Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
FED . R. CIV . P. 56(c)(2). The moving party bears the initial burden of informing the court of the
basis for its motion by identifying portions of the record which highlight the absence of genuine
issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is
“material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render

1

LDOT has not alleged in its Complaint or subsequent filings that the sinking of the barge
resulted in damage to the piers or in pier movement.
2

a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party
to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19
F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). In evaluating the evidence tendered by the parties, the Court must accept the
evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477
U.S. at 255.
B.

Maritime Claims Related to Scouring

“‘Under the general maritime law, a party’s negligence is actionable only if it is the ‘legal
cause’ of the plaintiff's injuries,’ which is ‘something more than ‘but for’ causation [—]the
negligence must be a substantial factor’ in causing the injuries.” In re Great Lakes Dredge & Dock
Co., LLC, 624 F.3d 201, 213-14 (5th Cir. 2010) (quoting Donaghey v. Ocean Drilling & Explor.
Co., 974 F.2d 646, 649 (5th Cir. 1992)).
Although LDOT filed an opposition memorandum in this case, LDOT admits that the sinking
of the Marquette barge did not cause scouring. Rather, LDOT contends that “this is a case of
aggravation [of the scour holes], not original causation.” [Doc. No. 37]. In a July 16, 2013
Memorandum Order [Doc. No. 102], Magistrate Judge Hayes granted leave for LDOT to file a
Second Amended Complaint [Doc. No. 103] “to clarify that Marquette’s sunken barge generated
turbulence around Pier E1 that aggravated the scour hole by causing the rapid expansion of the

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dimensions of the hole.”2 [Doc. No. 102, p. 2]. Under these circumstances, there is no genuine issue
of material fact for trial on LDOT’s original causation claim.
III.

CONCLUSION
For the foregoing reasons, Marquette’s Motion for Summary Judgment [Doc. No. 28] is

GRANTED. LDOT’s claim that the sinking of Marquette’s barge caused the scouring at the bases
of Piers E1 and E2 of the I-20 Vicksburg Bridge is DISMISSED WITH PREJUDICE. At this time,
subject to review of the pending motions, LDOT’s other claims, including its claim that the sinking
of Marquette’s barge aggravated the scouring, remain pending for trial.
MONROE, LOUISIANA, this 18th day of July, 2013.

2

Although LDOT did request emergency federal funding to repair a scour hole after this
incident, that scour hole was approximately 400 feet downriver of Piers E1 and E2. LDOT does
not contend that the repair to this scour hole was related to the incident at issue.
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