ORDER denying 197 Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 9/13/2016. (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
IN RE: CROUNSE
CIVIL ACTION NO. 1:14-cv-154-SA-DAS
Muscle Shoals (“MSMS”) has requested summary judgment regarding third party
complaints made against them by Jeremie Floyd’s wife and his child’s mother (“Floyd
Factual and Procedural Background
On August 28, 2014, Crounse tugboat M/V Diane Siegal unloaded eight barges for
fleeting at the Muscle Shoals Yellow Creek Fleet on Pickwick Lake, part of the Tennessee
Tombigbee Waterway. Diane Siegal crew members assisted Roy Casteel, the pilot for Muscle
Shoals fleeting tug M/V Michael R., in securing the barges to the shore with fleet lines tied to
trees on the bank.
During this process, the fleet line intended for the southernmost Crounse vessel—Barge
C512—broke. Because the northernmost Crounse barge was already secured to the bank and
because the barges were joined together by a separate rigging line, the crews chose to tie Barge
C512 to a fleet line even further south. This caused Barge C512’s berth to be closer to the center
of the waterway than it would have been had the original fleet line not broken.
More than a day later, just after midnight on August 30, a bass boat driven by Carey
Downs allided with Barge C512, resulting in the deaths of Downs and his passenger Jeremie
Floyd. Michael Voyles, the post-accident investigator for the Mississippi Department of Wildlife
and Fisheries, concluded that Downs was driving in excess of 40 miles per hour.1
Based on toxicology results from the Mississippi Crime Laboratory, Investigator Voyles also determined that
Downs and Floyd were under the influence of alcohol and narcotics at the time of the accident.
Investigator Voyles inquired as to whether the barge’s location was within the fleeting
area granted by the Tennessee Valley Authority (“TVA”) permit. Though he was unable to reach
a definitive conclusion, the Floyd Claimants’ tendered expert David Cole opined that Barge
C512 was outside the TVA permit. Two eyewitnesses stated in an affidavit they had noticed
Barge C512 prior to the accident due to its “unusual placement and its distance away from the
bank.” In contrasting testimony, Pilot Casteel explained that the barge was secured within the
normal lower fleeting area.
Testimony also varies in relation to the lighting on Barge C512. Russel Stewart, who was
fishing near the accident, averred that he noticed mooring lights on the barge “earlier that night.”
According to the joint affidavit of eyewitnesses Tony and Deborah Forsythe, who owned a
condominium in the area, they could see no visible lights on the barge at the time of the accident,
although they did see lights on Downs’ bass boat. By all accounts, after the accident, two
mooring lights were found on the barge covered by water. Neither was illuminated.
MSMS moved for summary judgment regarding liability for the allision. The Floyd
claimants answered, arguing that factual inconsistencies preclude summary judgment, and that
fault truly lies with MSMS.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and the
moving party is entitled to judgment as a matter of law. The rule “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 that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
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.” Id. at 323, 106 S. Ct. 2548.
The nonmoving party must then “go beyond the pleadings” and “set forth ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing
the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when
. . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). Importantly, conclusory allegations, speculation,
unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276
F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d
Analysis and Discussion
“To establish maritime negligence, a plaintiff must ‘demonstrate that there was a duty
owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and
a causal connection between the defendant’s conduct and the plaintiff’s injury.’” Canal Barge
Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929
F.2d 1073, 1077 (5th Cir. 1991)). “Whether a defendant owes a plaintiff a legal duty is a
question of law.” Id. (internal quotation marks omitted). As to causation, in maritime collision
cases “fault which produces liability must be a contributory and proximate cause of the collision,
and not merely fault in the abstract.” Inter–Cities Nav. Corp. v. U.S., 608 F.2d 1079, 1081 (5th
Cir. 1979). “To give rise to liability, a culpable act or omission must have been ‘a substantial and
material factor in causing the collision,’” and but-for causation is insufficient. American River
Transp. Co. v. Kavo Kaliakra SS, 148 F.3d 446, 450 (5th Cir.1998) (quoting Inter Cities, 608
F.2d at 1081).
Legal Framework for Cases Involving the Oregon and Pennsylvania Rules
This case implicates two common law burden-shifting presumptions invoked when a
moving vessel allides with a stationary vessel. First, the Oregon Rule creates a rebuttable
presumption of fault that shifts the burden of production and persuasion to a moving vessel who,
under its own power, allides with a stationary object. The Oregon, 158 U.S. 186, 197, 15 S.Ct.
804, 809, 39 L. Ed. 943 (1895). The Oregon Rule must be properly confined to the issue of
breach only—not “causation (either in fact or legal cause) or the percentages of fault assigned to
the parties adjudged negligent.” In re Mid-S. Towing Co., 418 F.3d 526, 532 (5th Cir. 2005).
This presumption may be rebutted by showing, by a preponderance of the evidence,
either that the allision was the fault of the stationary object, that the moving vessel acted with
reasonable care, or that the allision was an unavoidable accident. Combo Mar., Inc. v. U.S.
United Bulk Terminal, LLC, 615 F.3d 599, 605 (5th Cir. 2010).
Second, under the Pennsylvania Rule,
when ... a ship at the time of a[n allision] is in actual violation of a
statutory rule intended to prevent [allisions], it is no more than a
reasonable presumption that the fault, if not the sole cause, was at
least a contributory cause of the disaster. In such a case the burden
rests upon the ship of showing not merely that her fault might not
have been one of the causes, or that it probably was not, but that it
could not have been.
The Steamship Pennsylvania v. Troop, 86 U.S. 125, 19 Wall. 125, 22 L.Ed. 148 (1873).
The Fifth Circuit has stressed that the Pennsylvania Rule shifts the burden of proof as to
causation to the statutory offender, but it does not ipso facto impose liability. Pennzoil Prod. Co.
v. Offshore Exp., Inc., 943 F.2d 1465, 1472 (5th Cir. 1991); Florida East Coast Ry. Co. v. Revilo
Corp., 637 F.2d 1060, 1065-66 (5th Cir. 1981); Green v. Crow, 243 F.2d 401, 403 (5th Cir.
MSMS argues that the claimants cannot meet the burden of proving absence of fault as
required by the Oregon Rule, as their vessel was fully powered while the MSMS vessel was
stationary. Additionally, MSMS contends that Plaintiff was in violation of several Inland
Navigational Rules, including those requiring a look-out and those forbidding boating at
excessive speeds. See 33 C.F.R. §§ 83.05—83.06. Furthermore, MSMS argues that these
violations were the cause of the allision. MSMS alleges that these violations were further
compounded by the intoxication of the occupants of the Claimant’s vessel, and that even though
Floyd was not the operator of the Skeeter boat, he was the owner of the vessel, and is therefore
held to be responsible for obeying the “rules of the road.” Therefore, MSMS argues that the
Pennsylvania and Oregon Rules should apply to Floyd claimants.
Floyd claimants, conversely, also assert the Pennsylvania Rule by alleging that MSMS
was in violation of statute as to their permit and required lighting.
Where both parties to a collision are guilty of statutory fault, the heavy presumption that
the fault of each contributed to the accident may be rebutted by proof that, in fact, the fault of
either of the parties was the sole cause of the accident or, instead, not a substantial contributing
cause thereof. Otto Candies, Inc. v. M/V Madeline D, 721 F.2d 1034, 1036 (5th Cir. 1983). In
other words, if each vessel successfully invokes the Pennsylvania Rule against its opponent, then
each vessel must overcome a presumption of fault by showing its violation could not have been a
cause of the allision. Therefore, the Pennsylvania presumption must be applied to both parties,
while the Oregon presumption only applies to the Floyd Claimants.
However, the Oregon Rule speaks explicitly to a presumed breach of duty on the part of
the Floyd Claimants, and is not a presumption regarding the question of causation. Mid–South
Towing, 418 F.3d at 532. The Pennsylvania Rule speaks to causation for both parties. See United
States v. Reliable Transfer Co., 421 U.S. 397, 411, 95 S. Ct. 1708, 1716, 44 L. Ed. 2d 251
Even if Floyd Claimants cannot rebut the presumption that Floyd breached a duty
pursuant to the Oregon Rule, MSMS has not established causation pursuant to the Pennsylvania
Rule. This is because there are substantial issues in material facts regarding the lighting of the
vessel and whether it was located within its permitted area. Thus, the parties have not established
statutory violations, and furthermore, they have not proved the opposing party’s violations were
the sole cause of the accident.
Accordingly, summary judgment as to any of these claims is premature.
As there remain significant questions of material fact concerning the statute violations
giving rise to use of the Pennsylvania Rule, causation has not been established. Therefore,
summary judgment is DENIED.
SO ORDERED, on this 13th day of September, 2016.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?