ENSCO Offshore Company

Filing 147

OPINION AND ORDER Denying 98 MOTION for Summary Judgment re: Sea Robin Pipeline Company's Claim (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In the Matter of the Complaint of
ENSCO Offshore Company, as Owner
of the Modu ENSCO 74 for
Exoneration from or Limitation
of Liability

§
§
§
§
§

CIV. A. NO. H-09-2838

OPINION AND ORDER
Pending before the Court in the above referenced cause of
exoneration from or limitation of liability pursuant to 46 U.S.C.
§ 30501, et seq.,1 civil and maritime, is Plaintiff ENSCO Offshore
1

The Limitation of Liability Act

provides in relevant part,

(a) In general.--Except as provided in section 30506 of
this title, the liability of the owner of a vessel for
any claim, debt, or liability described in subsection (b)
shall not exceed the value of the vessel and pending
freight. . . .
(b) Claims subject to limitation.--Unless otherwise
excluded by law, claims, debts, and liabilities subject
to limitation under subsection (a) are those arising from
any embezzlement, loss, or destruction of any property,
good, or merchandise shipped or put on board the vessel,
any loss, damage, or injury by collision, or any act,
manner, or thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity or knowledge
of the owner.
46 U.S.C. § 30505.
Once a claimant proves that negligence or
unseaworthiness caused an accident, to be entitled to limitation
the owner of the vessel seeking limitation bears the burden of
showing that it lacked privity or knowledge of the condition, i.e.,
the cause of the loss. In re Signal Intern., LLC, 579 F.3d 478,
496 (5th Cir. 2009), quoting Gateway Tugs, Inc. v. Am. Commercial
Lines, Inc. (In re Kristie Leigh Enters., Inc.), 72 F.3d 479, 481
(5th Cir. 1996). “‘’Privity or knowledge,’ sometimes described as
‘complicity in fault,’ extends beyond actual knowledge to
knowledge that the shipowner would have obtained by reasonable
investigation.’’” Id., quoting Cupit v. McClanahan Contractors,
-1-

Company’s (“ENSCO’s”) motion for summary judgment against Sea Robin
Pipeline Company, LLC (“Sea Robin”) (#98) on the grounds that Sea
Robin cannot prove the ENSCO 74 allided with Sea Robin’s pipeline.
Background Facts
ENSCO was the sole owner of the ENSCO 74, a self-elevating
drilling unit and a registered vessel of Panama, Official No.
8764420, approximately 74.0918 meters long and 62.788 meters wide,
and a depth of 7.924 meters. It weighed approximately 16.1 million
pounds.
Coast

On September 8, 2008 the ENSCO 74 was located off the

of

Louisiana

approached.

ENSCO

in

South

claims

Marsh

that

it

149

when

followed

Hurricane
its

Ike

hurricane

procedures, made fast the rig, and evacuated all personnel.

On

September

to

12,

2009,

at

approximately

9:00

a.m.

according

experts, the ENSCO 74 was swept off its location, with the barge
ending up floating upright in the Gulf of Mexico, while the rig

Inc., 1 F.3d 346, 348 (5th Cir. 1993), quoting Brister v. AWI, Inc.,
946 F.2d 350, 356, 358 (5th Cir. 1991). See Complaint of Bowmech
Marine, Inc., Civ. A. No. 91-2409 et al., 1992 WL 266098, at *3
(E.D. La. Sept. 24, 1992), aff’d, 15 F.3d 500 (5th Cir. 1994)(“‘[A]
corporate shipowner may be deemed to have constructive knowledge if
the unseaworthy or negligent condition could have been discovered
through the exercise of reasonable diligence.’”), citing Brister,
946 F.2d at 355.
Moreover, “knowledge of certain corporate
employees may be attributed to the business entity.
Because a
corporation is a legal fiction which must act through individuals,
‘the privity and knowledge of individuals at certain level of
responsibility must be deemed the privity and knowledge of the
organization, ‘else it could always limit its liability.’‘” Id.,
quoting Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376
(5th Cir, 1983), quoting Corvell v. Jahncke Service, Inc., 341 F.2d
956, 958 (5th Cir. 1965).
-2-

broke free of its legs just below the barge, leaving only parts of
two of its three legs on the drill site, and was destroyed by
Hurricane

Ike.

The

rig

was

moved

approximately

100

miles

northwesterly by the storm and finally sank sixty-five miles south
of Galveston, Texas in High Island 241A.
According to ENSCO, on March 6, 20092 the M/V SATILLA allided
with and was damaged by the remains of the ENSCO 74.

At that time

the ENSCO 74 had been missing and considered lost for six months,
despite efforts of ENSCO, C&C Technologies, the National Oceanic
and Atmospheric Administration (“NOAA”), the U.S. Coast Guard, and
third parties to locate it.

ENSCO filed this limitation of

liability action, and among the claimants who appeared and filed
claims is Sea Robin (#10, 11, and 39-3).
Sea Robin asserts that when the ENSCO 74 broke away from the
sea floor, it drifted west, crossing and damaging Sea Robin’s
pipeline at East Cameron Blocks 300, 315, 317, and 334. ENSCO 74’s
location was revealed when the M/V Satilla allided with its
submerged remains.

Sea Robin claims that ENSCO was negligent in

failing to secure the ENSCO 74, in failing to follow recommended
procedures

of

the

Mineral

Management

Service

in

advance

of

approaching storms, in failing to perform an appropriate search for
the ENSCO 74, in putting a damaged drilling rig weakened by

2

Sea Robin states that the allision occurred on March 7,

2009.
-3-

previous hurricanes or otherwise unseaworthy back out to sea, and
in failing to implement safeguards to prevent such damage if the
ENSCO 74 broke loose of its moorings.

Sea Robin states that under

general maritime law, the negligence of a defendant is presumed
when a drifting vessel strikes a fixed object, based on the logical
deduction that a drifting vessel was mishandled or improperly
moored.3

Moreover Sea Robin explains that it had entered into

3

Pioneer Natural Resources USA, Inc. v. Diamond Offshore Co.,
638 F. Supp. 2d 665, 688 & n.142 (E.D. La. 2009), citing The
Louisiana, 70 U.S. (3 Wall) 164, 173 (1965); and James v. River
Parishes Co., 686 F.2d 1129, 1132-33 (5th Cir. 1982).
The
presumption generally shifts the burden of proof–-both the burden
of producing evidence and the burden of persuasion–-to the vessel,
which must show by a preponderance of the evidence that it was
without fault or that the collision was caused by the fault of the
stationary object or was the result of inevitable accident.” Id.
at 689, citing Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795
(5th Cir. 1997), cert. denied, 435 U.S. 924 (1978). The vessel can
meet this burden by demonstrating “that the accident could not have
been prevented by ‘human skill and precaution and a proper display
of nautical skills.’ Defendants ‘’must exhaust every reasonable
possibility which the circumstances admit and show that in each
they did all that reasonable care required.’‘” Id. at 689 and n.
155. While it is true that in pipeline damage actions, maritime
law
permits proof of causation by inferences based on
circumstantial evidence, in a suit in admiralty the plaintiff must
prove causation by a preponderance of evidence, direct and/or
circumstantial evidence.
Pioneer, 638 F. Supp. 2d at 688-89.
Where an Act of God or vis major is alleged to have caused a vessel
to break its moorings, to defend against a presumption of
negligence the vessel bears a heavy burden to affirmatively show
that its “‘drifting was the result of an inevitable accident, or a
vis major, that human skill and precaution and a proper display of
nautical skill could not have prevented.’” Bunge Corp., 240 F.3d
at926, quoting The Louisiana, 70 U.S. 164, 173 (1865); Petition of
U.S.(Dammers & Van der Heide Shipping & Trading (Antilles), 425
F.2d 291, 995 (5th Cir. 1970). One who invokes the defense of Act
of God must prove not only that “the weather was heavy, but also
that it ‘took reasonable precautions under the circumstances as
known or reasonably to be anticipated.’”
In re Southern Scrap
-4-

agreements with oil and gas producers in the Gulf of Mexico to
transport their product through its pipeline, but because of the
damage the pipeline was shut in and could no longer transport
production.

One of these companies, Energy Resource Technology

GOM, Inc. (“ERT”), filed suit against Sea Robin seeking damages for
lost revenues and escalating shipping costs that ERT has sustained
because it is unable to transport production through Sea Robin’s
pipeline.

Medco Energi US LLC (“Medco”), which owns and operates

platforms located in Blocks 317 and 318B of the East Cameron area
of

the

Gulf

and

whose

production

from

these

platforms

was

transported to market through Sea Robin’s pipeline pursuant to a
contract between Medco and Sea Robin, has also filed suit against
Sea Robin.

Sea Robin seeks to recover specifically for damage to

Material Co., 713 F. Supp. 2d 568, 5 (E.D. La. 2010), quoting
Petition of United States, Inc. v. Steamship Joseph Lykes), 425
F.2d 991, 995 (5th Cir. 1970).
A party asserting an Act-of-God defense must show not only
that the weather was extreme, but that it “took reasonable
precautions under the circumstances as known or reasonably
anticipated” to prevent the damage. Petition of U.S., 425 F.2d
991, 995 (5th Cir. 1970). “[H]uman negligence as a contributing
cause defeats any claim to the ‘Act of God’ immunity because of an
‘Act of God’ is not only one which causes damage, but one as to
which reasonable precautions and/or the exercise of reasonable care
by the defendant could not have prevented the damage from the
natural event.” Crescent Towing & Salvage Co., Inc. v. M/V Chios
Beauty, Civ. A. No. 05-4207, 2008 WL 3850481, at *14 (E.D. La. Aug.
14, 2008). See also Union Pac. R. Co. v. Heartland Barge Mgmt.,
LLC, Civ. a. Nos. H-02-0438 et al., 2006 WL 2850064, at *13 (S.D.
Tex. Oct. 3, 2006)(“[A]n act of God is defined as any accident due
directly and exclusively to natural causes without human
intervention, which by no amount of foresight, pains, or care,
reasonably to have been expected, could have been prevented.”).
-5-

its pipeline, lost revenue due to interruption in service of the
pipeline, and costs of surveying the damage to the pipeline, as
well as reimbursement, indemnification or contribution resulting
from any liability it is found to have to ERT or Medco, whether
through tort, contract or otherwise. Sea Robin further claims that
ENSCO is not entitled to limitation or exoneration because all of
its negligent actions were within its privity and knowledge.
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is

appropriate

interrogatories

when

“the

pleadings,

and

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, 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.”

Fed. R, Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

A fact is material if it might affect the outcome

of the suit under the governing law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute of material fact is

“genuine” if the evidence would allow a reasonable jury to find in
favor of the nonmovant.

Id.

The court must consider all evidence

and draw all inferences from the factual record in the light most
favorable to the nonmovant.

Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986); National Ass’n of Gov’t Employees
v. City Pub. Serv. Board, 40 F.3d at 712-13.
The application of the rule depends upon which party bears the
-6-

burden of proof at trial.

If the movant bears the ultimate burden

at trial, the movant must provide evidence to support each element
of its claim and demonstrate the lack of a genuine issue of
material fact regarding that claim.

Malacara v. Garber, 353 F.3d

293, 403 (5th Cir, 2003); Rushing v. Kansas City S. Ry., 185 F.3d
496, 505 (5th Cir. 1999), cert. denied, 528 U.S. 1160 (2000).

The

nonmovant must then respond with evidence that raises a genuine
issue of material fact to avoid summary judgment against it; a
“complete failure of proof concerning an essential element of the
nonmoving

party’s

immaterial.”

case

necessarily

renders

all

other

facts

Celotex, 477 U.S. at 323.

If the nonmovant bears the burden of proof at trial on an
issue, the movant may either offer evidence that undermines one or
more of the essential elements of the nonmovant’s claim or point
out the absence of evidence supporting essential elements of the
nonmovant’s claim; the movant may, but is not required to, negate
elements of the nonmovant’s case to prevail on summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v.
National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v.
Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998); International
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir.
1991); Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.
19991).

“[A] complete failure of proof concerning an essential

element of the nonmoving party’s case renders all other facts

-7-

immaterial.”

Celotex, 477 U.S. at 323.

The nonmovant cannot rely

on unsubstantiated allegations, but must set forth specific facts
showing the existence of a genuine issue of material fact on every
element

of

its

cause

of

action.

Nat’l

Ass’n

of

Government

Employees v. City Public Service Bd. of San Antonio, 40 F.3d 698,
712 (5th Cir. 1994).

If a rational trier of fact could not find for

the nonmoving party based on the evidence it presents, there is no
genuine issue of material fact for trial.

Id. at 712-13, citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
584-88 (1986).
“‘[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion
for summary judgment . . . .’”

State Farm Life Ins. Co. v.

Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v.
Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986).

“Nor is the

‘mere scintilla of evidence’ sufficient; ‘there must be evidence on
which the jury could reasonably find for the plaintiff.’”

Id.,

quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires
the nonmovant to submit “‘significant probative evidence.’”

Id.,

quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d
436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v.
Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986);
National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d
at 713. Conclusory statements are not competent evidence to defeat
-8-

summary judgment.

Turner, 476 F.3d at 346-479 (plaintiff “must

offer specific evidence refuting the factual allegations underlying
[defendant’s] reasons for her termination), citing Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).

“If the evidence is

merely

probative,

colorable,

or

is

not

judgment may be granted.”

significantly

summary

Thomas v. Barton Lodge II, Ltd., 174

F.3d 636, 644 (5th Cir. 1999), citing Celotex, 477 U.S. at 322, and
Liberty Lobby, 477 U.S. at 249-50.
Relevant Law
The

elements

of

an

action

for

negligence

under

general

maritime law are “essentially the same as land-based negligence
under the common law”:
plaintiff,

breach

of

“‘a duty owed by the defendant to the
that

duty,

injury

sustained

by

[the]

plaintiff, and a causal connection between the defendant’s conduct
and the plaintiff’s injury.”

In re Great Lakes Dredge & Dock Co.,

LLC, 624 F.3d 201, 211 (5th Cir. 2010), quoting Withhart v. Otto
Candies, LLC, 431 F.3d 840, 842 (5th Cir. 2005), and Canal Barge Co.
v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000).

Determination

of a tortfeasor’s duty, which is “a duty of ordinary care under the
circumstances,” is a question of law for the court.

Id.

“‘Duty .

. . is measured by the scope of the risk that negligent conduct
foreseeably entails.’”

Consolidated Aluminum Corp. v. C.F. Bean

Corp., 833 F.2d 65, 67 (5th Cir. 1987), citing Harper, James & Gray,
The Law of Torts, Scope of Duty in Negligence Cases § 18.2 at 655
-9-

(2d ed. 1986).

Determination of whether there was a breach of a

duty is for the trier of fact. In re Great Lakes, 634 F.3d at 211.
“‘Under

general

maritime

law,

a

party’s

negligence

is

actionable only if it is the ‘legal cause,’ of the plaintiff’s
injuries,’” a standard that requires “something more than ‘but for
causation [--] the negligence must be a substantial factor’ in
causing the injuries.’‘”

In re Great Lakes, 624 F.3d at 213-14,

quoting Donaghev v. Ocean Drilling & Explor. Co., 974 F.2d 646, 649
(5th Cir. 1992).

To prove causation, Sea Robin must show that the

ENSCO 74 more probably than not caused the damage to the Sea Robin
Pipeline.

In

re

Great

Lakes,

624

F.3d

at

211-12

(“To

be

foreseeable, the harm alleged must bear some proximate relationship
with the negligent conduct such that it can reasonably be said to
be within the ‘scope of risk’ created by the conduct.”)(finding
victims failed to allege which act by which of a number of
companies

that

performed

dredging

cause

their

injury).

The

claimant must show that the Limitation petitioner reasonably should
have foreseen the consequences leading to the claimant’s damages;
“harm is not foreseeable unless ‘it might have been anticipated by
a reasonably thoughtful person, as a probable result of the act or
omission.”

Id. at 211, citing Consolidated Aluminum, 833 F.2d at

68. The vessel owner must have “‘knowledge of a danger, not merely
possible, but probable.’” Id., quoting Republic of France v. U.S.,
290 F.2d 395, 401 (5th Cir. 1961).

-10-

See also In

re:

Cooper/T.

Smith, 929 F.2d 1073, 1077 (5th Cir. 1991)(To prevail on a claim for
maritime negligence a plaintiff/claimant must show (1) that the
defendant owed a duty to the plaintiff, (2) that the defendant
breached that duty, (3) that the plaintiff sustained an injury, and
(4) that the defendant’s conduct was the actual and proximate cause
of the plaintiff’s injury.), citing Thomas v. Express Boat Co., 759
F.2d 444, 448 (5th Cir. 1985).
Proximate

cause

is

more

than

“but

for”

causation;

negligence must be a ‘substantial factor’ in the injury.”

“the

Thomas,

759 F.2d at 448.
Moreover, the result must be reasonably foreseeable.
Cooper/T. Smith, 929 F.2d at 1077.
not

measured

against

normal

In re

“The test of foreseeability is

conditions,

but

those

that

anticipated or reasonably should have been anticipated.”

were
In re

Signal Intern., Inc., 579 F.3d 478, 493 (5th Cir. 2009), 833 F.2d
65, 68 (5th Cir. 1987)(holding that foreseeability incorporates
“the interplay of natural forces”), and In re Kinsman Transit Co.,
338 F.2d 708, 724 (5th Cir. 1964)(“[W]here . . . the damage was
caused by just those forces whose existence required the exercise
of greater care than was taken--the current, the ice, and the
physical mass of the [vessel], the incurring of consequences other
and greater than foreseen does not . . . provide a reasoned basis
for insulation.”).

In

In re Signal, the court found that “the

approaching hurricane, the expected height and predicted movement

-11-

of storm surge, and the typology of the Pascagoula basin gave rise
to the need to moor the barges and made this allision a foreseeable
consequence of negligence in that mooring” and therefore the damage
was within the scope of duty owed to the owner of the damaged
bridge.

Id. at 493, 495-96.
When a maritime action involves an allision,4 the Supreme

Court has recognized two presumptions of fault.

In THE LOUISIANA,

3 Wall. (70 U.S.) 164, 173 (1866), it found a presumption of fault
that when a drifting vessel allides with a stationary object, she
must be liable for the resulting damages “unless she can show
affirmatively that the drifting was the result of inevitable
accident, or a vis major, which human skill and precaution and a
proper display of nautical skill could not have prevented.”).5 The
rationale

for

this

presumption

of

negligence

is

the

logical

deduction that a drifting vessel was mishandled or not properly
moored.

Pioneer Natural Resources USA, Inc. v. Diamond Offshore

Co., 638 F. Supp. 2d 665, 689 (E.D. La. 2009).

In

THE OREGON, 158

U.S. 186 (1895), it applied a presumption of fault that shifts the
burden of production and persuasion to a moving vessel that under

4

“An allision is a collision between a moving vessel and a
stationary object.” Thomas J. Schoenbaum, Admiralty & Maritime Law
§ 14-2 (4th ed. 2004).
5

See, e.g., In re Katrina Canal Breaches Consol. Litig., Civ.
A. No. 05-4182, 2011 WL 1792542, at *1 (E.D. La. Jan. 20, 2011)(The
LOUISIANA rule “imposes a presumption of fault on a vessel that
breaks free from its moorings and drifts into a stationary
object.”).
-12-

her

own

power

allides

with

a

stationary

object.

See

Combo

Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599 60405 (5th Cir. 2010)(discussing the two presumptions and noting that
“[b]oth of these presumptions are closely related to the doctrine
of res ipsa loquitur which creates a rebuttable presumption of
fault on the part of the person controlling the instrumentality. .
. . [A]lthough the two presumptions apply to different types of
vessels--vessels under their own power and drifting vessels--the
courts treat them similarly, looking to law on one to inform
decisions on the other.”)(citing Schoenbaum, Admiralty & Maritime
Law § 14-3, and Fischer v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir.
2007)(doctrines are the same except the vessels to which they
apply)). Here, because the ENSCO 74 was adrift, the LOUISIANA rule
applies.

Under both doctrines, the burden of production and

persuasion on the issue of fault shifts to the other party.
605.

Id. at

The presumption applies unless the drifting vessel can “show

that her drifting was the result of an inevitable accident or a vis
major, which human skill and precaution and a proper display of
nautical skill could not have prevented.” Petition of U.S., 425 F.
2d at 995. “If the drifting vessel offers a defense of unavoidable
accident or vis major, ‘[t]he burden of proving inevitable accident
or Act of God rests heavily upon the vessel. . . .’”

James v.

River Parishes Co., 686 F.2d 1129, 1132 (5th Cir. 1982). The vessel
“‘must exhaust every reasonable possibility which circumstances
-13-

admit and show that in each [it] did all that reasonable care
required.’”

Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795

(5th Cir. 1997), cert. denied, 435 U.S. 924 (1978).

The moving

vessel may rebut the presumption of fault against it by showing by
a preponderance of the evidence that the allision (1) was the fault
of the stationary object, (2) that the moving vessel acted with
reasonable care, or (3) the allision was an unavoidable accident.
Pioneer Natural Resources USA, Inc. v. Diamond Offshore Co., 638 F.
Supp. 2d 665, 688 (E.D. La. 2009), citing Bunge Corp. v. M/V
Furness Bridge, 558 F.2d 790, 795 (5th Cir. 1977), cert. denied, 435
U.S. 924 (1978).

Once evidence is produced for review by the

court, the presumptions become “superfluous” and no longer apply
and the plaintiff must prove by a preponderance of the evidence the
elements

of

general

negligence

injury), as is the case here.

(duty,

breach,

causation

and

Combo Maritime, 615 F.3d at 605.

A key element of an allision claim, and the focus of the
motion for summary judgment here, is that the offending vessel or
her equipment actually made contact with the stationary object,
here a subsea pipeline.

Pioneer Natural Resources USA, Inc. v.

Diamond Offshore Co., 638 F. Supp. 2d 665 (E.D. La. 2009).

In

admiralty actions, the plaintiff, or the claimant, may prove its
claim by a preponderance of the evidence by either direct or
circumstantial evidence.

Pioneer Natural Resources USA, Inc. v.

Diamond Offshore Co., 638 F. Supp. 2d 665, 689 (E.D. La. 2009);
-14-

Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). In addressing
pipeline damage caused by allision, maritime law permits proof of
causation by inferences arising from solely circumstantial evidence
because the law generally makes no distinction between direct and
circumstantial evidence.

Pioneer, 638 F. Supp. 2d. at 688-89.

Nevertheless, when “‘circumstantial evidence is relied upon to
prove a fact, the circumstances must be proved and cannot be
presumed.’”

AEP Elmwood, LLC v. Tesoro Marine Services, LLC, No.

Civ. A. 02-3570, 2004 WL 1575545, at *4 (E.D. La. July 13, 2004),
citing Montgomery-Ward & Co. v. Sewell, 205 F.2d 463, 467 (5th Cir.
1953).

“When a plaintiff relies solely on circumstantial evidence

to show negligence and recover damages against the defendant, the
plaintiff must produce evidence which must exclude every other
reasonable

hypothesis

that

the

accident

resulted as plaintiff contends.

happened

and

damages

Id., citing McClendon v. T.L.

James & Co., 231 F.2d 802, 806 n.4 (5th Cir. 1956).

“‘Taken as

whole,

reasonable

circumstantial

evidence

must

exclude

hypotheses with a fair amount of certainty.

other

This does not mean,

however, that it must negate all other possible causes.’”

Id.,

quoting Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.
Supp. 890 (E.D. La. 1972).

“Other possible causes of an accident

which are ‘remote, conjectural and speculative . . . as a possible
cause in fact’ may be disregarded.’”

Id., citing id. at 896.

ENSCO’s Motion for Summary Judgment and Memorandum (#98)
-15-

ENSCO insists that Sea Robin cannot meet its burden to prove
that the ENSCO 74, floating on the surface, allided with Sea
Robin’s pipeline, which was at least 195 feet below the surface.
Supported by substantial documentary evidence, ENSCO claims that
after four independent surveys of the pipeline by experts, the
factual evidence shows that Sea Robin’s pipeline sustained no
strike damage, no kinks, no dents, and no internal dents on its top
or sides6 and that the sea floor around the damaged portion of the
pipeline was undisturbed and void of any drag marks that might
indicate that it came into contact with the pipeline at the point
where the pipeline ruptured.

ENSCO maintains that Sea Robin has

been unable to produce any evidence that its rig contacted Sea
Robin’s pipeline.

Absent proof of contact between a vessel and a

subsea pipeline, dismissal of Sea Robin’s claims is appropriate.
Pioneer Natural Resources USA, Inc. v. Diamond Offshore Co., 638 F.
Supp. 2d 665 (E.D. La. 2009).

Moreover the rupture occurred forty

miles from where the remains of ENSCO 74 sank to the bottom in High
Island

Block

241.

ENSCO

further

asserts

that

Sea

Robin’s

surveyors, engineers, and experts have conceded that hurricane
forces moved the pipeline out of its original built location on
September 12, 2008.

After the storm, ENSCO conducted aerial

searches for the pipeline without success.

6

The only physical damage to the pipeline was longitudinal
scratches on the bottom of the pipeline.
-16-

After Hurricane Ike passed, the government issued a Notice to
Leasees to inspect their pipelines.

Sea Robin found that its 30"

pipeline was no longer buried, but had been moved by the storm.

It

hired Cal Dive to dig a trench to re-bury the pipeline.
ENSCO points out that while Cal Dive buried that section of
pipeline several weeks before the rupture of the pipeline on July
31, 2009, Cal Dive used a jet sled over the rupture spot at least
eleven times and, then again, over what became a second rupture
site on September 13, 2009. #98-1, Ex. 1, Sea Robin representative
Butch

Till

Deposition,

p.

Deposition., p. 22, ll. 2-8.

134,

ll.2-8;

Ex.

2

Rick

Reggio

Cal Dive made several unsuccessful

passes with a “European Device” moving along the pipe and digging
a trench ten feet under the pipe, but went back to using “a normal
everyday jet sled.”

Id., Ex. 1 at p. 134, l.9-p. 135, l. 16.

Reggio and Till testified that the equipment kept getting stuck on
the pipeline.

Ex. 1, p. 34, l.9-p. 135, l.16; Ex. 2, p. 30, l.24-

p. 32, l. 25.

They requested a Monster Jet Sled, which they used

to complete the remaining passes.

Ex. 1, p. 134-p. 135, l. 16 &

Exs. 3,4 and 5, picture of jet sled used and a diagram showing how
it is configured.

Cal Dive finished the work in June of 2009.

Monster Jet Sled also got stuck a number of times.

The

Ex. 1, p. 134,

l. 9-p. 135, l. 16 and Ex. 2, p. 30, l.24-p. 32, l. 25.

See also

Exs. 6 (photograph) & 7 (diagram) of where pipe was scratched. The
damage is comprised of longitudinal scratches in a rake-like

-17-

pattern on the bottom of the pipe at the 4 o’clock to 8'oclock
sections of the pipe.7

ENSCO argues that it is common sense that

the sled was getting stuck and scraping along the bottom portion of
the pipeline, the section that was damaged, and that the burial of
the pipeline within 30 days before the rupture probably caused the
scrape marks and the rupture.

The first rupture of the pipeline

occurred ten months after the hurricane.

ENSCO insists that Sea

Robin must, but cannot, prove that the ENSCO 74 more likely than
not caused the damage to the pipeline.
Although Sea Robin argues that the ENSCO 74 hit the pipeline
ten months earlier, ENSCO points out that the bottom portion of the
deepest leg only extended less than 22 feet beyond the bottom of
the floating rig, and for the rig to have hit the pipeline it would
have had to sink 200 feet to the bottom, hit the pipeline, then
risen to the surface, and moved on to its ultimate location.

#98-

1, p. 6.8

7

ENSCO observed that the Monster Jet Sled had rigid piping
and a set of nozzles that extended below the pipeline, which, if
they contacted the pipe, would for a rake-like patter of scratches
on the pipe. #127 at p. 9. If the led hit an obstruction on one
side of the pipe, the rigid piping and the nozzles would rotate
under the pipe. Id. at p. 10.
8

At another point in its memorandum, #98-1, p. 8, ENSCO

writes,
As the pipe was sitting on the seafloor, the deck of the
rig would have to sink 160 feet below the surface, the
rig leg scoop under the pipeline, drag
along its
underside for two non-contiguous sections totaling 1,200
feet without disturbing any portion of the seafloor.
-18-

ENSCO asserts that since this theory is not credible, Sea
Robin changed its theory and now its drift pattern expert, Kenneth
Smith, contends that the rig stayed on the surface of the water
with its leg extending below and that the end of the leg slid under
the pipe without disturbing the seafloor.

Sea Robin claims that a

cross-braced reinforced steel rig leg split in half lengthwise,
that the two halves slid down the leg, and one half hooked onto the
bottom of the other half, doubling the length of the leg so that it
could reach down 200 feet.
Dep., p. 113, ll. 3-25.

#98-1 at p. 8; Ex. 11, Kenneth Smith

Insisting there is no evidence to support

this speculative theory, ENSCO responds that not only does Sea
Robin fail to show any drag scars close to the point of rupture or
identify any portion of the rig that matches this scenario, but the
leg would have left a drag scar from the rupture site to the final
wreck location since the seafloor became shallower as the rig moved
towards shore, and the scar made by the “mystery leg” would have
alerted Sea Robin where to find the rig or at least a piece of the
leg.

Nor can Sea Robin show a drift pattern crossing the three

known locations:

the starting point, the spot where ENSCO 74

Furthermore, it would have to keep all of its equipment
on deck and return to the surface after sinking to a
depth of 200 feet. It is also important to note that
there was absolutely no damage on either the top or the
side of the pipe. [Ex. 8, Messman Dep. p. 18, ll. 4-9]
Moreover, it comments that once a rig weighing 15.5 million pounds
loses buoyancy and descends approximately 200 feet below the
surface, it does not rise and travel another 40 miles.
-19-

capsized and debris fell to the bottom, and its end location.

#11

at p. 140, l.18-p. 147, l.3; p. 153, l. 6-p. 157, l. 20l p. 164, l.
20-p. 172, l.4. Unsubstantiated theories will not defeat a summary
judgment.

Gateway Offshore Pipeline Co. v. M/V Antalina, Civ. A.

No. 4:10-CV-860, 2012 WL 3930316, *6 (S.D. Tex. Sept. 10, 2012).
The only evidence that Sea Robin has is that the rig was large and
adrift in the Gulf of Mexico.
Moreover, four independent surveys of the seafloor arranged
for by Sea Robin did not find any drag scars or bottom deformity,
nor did they find any equipment from the rig.
deposition,

p.

93,

ll.

deposition, pp. 40-41.

8-5

and

pp.

Ex. 8, Jim Messman

70-71;

Ex.

16,

Meehan

Although Sea Robin conducted a number of

offshore surveys (by International Offshore Services in March 2009,
and by T. Baker Smith, by C&C Technologies, and by Deep Marine
Technology (“DMT”)9) on behalf of Cal Dive, as well as inspections,
Sea Robin has not discovered nor produced any evidence that the rig
contacted its pipeline.

Ex. 1, p. 111, ll. 6-16, and pp. 122-23.

DMT employed an inspection class ROV to “fly” the line and look for

9

ENSCO states that both T. Baker Smith and C&C Technologies
found no evidence of damage to the pipeline.
T. Baker Smith
preformed its first survey in January 2009 and found movement of
the pipe was consistent with hurricane forces. Ex. 9, Stuart Babin
Deposition, p. 49, l.13-p. 50, l.8. C&C reviewed T. Baker Smith’s
data and conducted another survey to try to find evidence that the
ENSCO 74 hit the pipeline, but it also found no evidence of trauma
or breakage by third parties, but found the pipeline moved due to
natural forces. Ex. 10, Scott Croft Deposition, p. 178, p. 171,
l,14-p. 173, l. 5.
-20-

damage, but its dive videos show its built position was no longer
buried and that there was no sign of damage to the pipeline or
surrounding seafloor. Ex. 8, p. 78, ll. 1-15. ENSCO contends that
none of these surveys by firms hired by Sea Robin proves that the
ENSCO 74 caused any damage to Sea Robin’s pipeline; in fact they
support the opposite conclusion.
ENSCO points out that the survey by T. Baker Smith on May 2324, 2000 was performed before Hurricane Ike.

It found that the

pipeline was out of position when compared to the “as built”
drawings and that 44% of the pipeline (49,246 feet) was no longer
buried and was sitting 75-350 feet out of its “as built” location.
Ex. 9, Babin Deposition, pp. 14-17.

Babin testified that it was

not unusual for pipelines to move during storms in the Gulf of
Mexico.

Id. at p. 12,

ll. 19-22.

T. Baker Smith’s survey

provides a base line, which ENSCO claims proves that the damage in
dispute is hurricane-related and not caused by contact with the
ENSCO 74.

T. Baker Smith performed another survey after Hurricane

Ike on January 21-23, 2009.
18-22.

Ex. 9, Babin Deposition, p. 18, ll,

It found further movement of the pipeline and determined

that 100 % of the pipeline was fully exposed and no longer buried.
Id. at p. 23, ll. 1-16.10

T. Baker Smith believed, based upon

10

Sea Robin states that this survey revealed for the first
time that the West Leg of the pipeline system had been displaced in
an oxbow shape between Eastern Cameron Block (“EC”) 334 and EC 300,
but that it did not reveal any damage to the pipeline itself.
#110, citing #110, Ex. 1, Messman Deposition at p. 33, ll.3-23; p.
-21-

seafloor evidence, that the pipeline was moved solely by hurricane
forces.

Id. at p. 27, ll.8-p. 32, l.1.

At the point of greatest

difference between the two surveys, the pipeline had moved 1,230
feet out of position from its earlier pre-Hurricane Ike surveyed
location.

Id. at p. 53, l.20-p. 54, l. 6.

T. Baker Smith found

the pipeline was not grabbed by anything because T. Baker Smith
found no kinking and no floor scarring, as opposed to what it
expected to find had the pipeline been grabbed.
ll. 4-24, p. 52 at ll. 4-9.

Id. at p. 33 at

Babin also testified that he found no

evidence indicating that the ENSCO 74 had been in the area or come
into contact with Sea Robin’s pipeline.

Id. at p. 35, ll. 11-21.

He found only movement of the line that was caused by hurricane
forces because the sonar images showed a smooth seafloor with few
drag scars, none of which were near the pipeline, and the area near
the rupture site did not have any seafloor scarring.

Id. at p. 49,

l.13-p.50, l. 8.
In another survey performed by T. Baker Smith on August 3-5,
2009, after the rupture, to examine an area 2000 feet radius away
from the rupture and three miles down from the rupture to see what
caused the rupture, it found no evidence that anything came into
contact with the pipeline and that the only scarring on the
seafloor was the result of the blowout.

Id. at p. 61, ll. 9-17.

It also described what kind of evidence would be expected when a

129, l. 25-p. 131, l. 16.
-22-

rig or an anchor hits a pipeline and that such was not found in the
survey.

Id. at p. 117, ll. 9-17.

The data for T. Baker Smith’s first survey was sent to the
engineering firm of Kiefner & Associates to evaluate.
Robert Francini Deposition, p. 16, ll. 4-18.
although

the

pipeline

had

been

bowed,

structurally sound to be serviceable.

Id.

it

Ex. 12,

Kiefner found that
was

sufficiently

The engineers further

found the damage was consistent with that usually caused by the
movement

of

pipelines

during

hurricanes

forces.

Id. at p. 18, ll. 9-16.

because

of

hurricane

They did not see any evidence

that the ENSCO 74 contacted the pipeline.

Id. at p. 18.

Next Sea Robin hired C&C Technologies to review the data from
T. Baker Smith and conduct another survey of the location.

C.C.

Technologies, too, after examining the pipeline twice, found that
the pipeline was damaged by movement caused by the hurricane and
found no evidence showing that the ENSCO 74 came into contact with
the pipeline.

Ex. 8, Jim Messman Deposition, p. 62, ll. 1-25; p.

66, l. 16-p. 67. l.2.
Finally, Sea Robin hired Tesla Offshore to survey the pipeline
and the structures attached to it.
others’ findings.

Tesla’s survey confirmed the

Ex. 13, Corporate Representative George Loy’s

Deposition, p. 55, l.15-p. 56, l. 5; p. 47, ll. 16-23.
At Sea Robin’s request, Cal Dive also looked for evidence that
the pipeline came into contact with the ENSCO 74 but did not find

-23-

any.

#8, Messman Deposition, p. 78, ll. 1-15; Ex. 10, Scott Croft

Deposition at p. 169. Cal Dive examined the entire pipeline, using
a ROV, prior to rupture and after rupture, worked on repairs and
looked for signs of contact, but its divers found only normal wear
and tear and no evidence of contact with ENSCO 74.

#8 at p. 79,

ll. 2-16; p. 78, ll. 1-5.
Sea Robin’s expert on pipeline stability, Gerhardus Koch of
DNV, performed a detailed analysis of the pipeline and of the
currents during Hurricane Katrina.

He also determined that the

pipeline’s movement was caused by hurricane forces and that the
currents created by Hurricane Ike moved the pipeline about 1,200
feet out of its “out built” position. #14, Koch Deposition, p. 17,
ll. 18-24.

He also did not see any evidence that indicated that

the ENSCO 74 came into contact with the pipeline.

Id. at p. 14,

l. 22-p. 15, l. 2.
Sea Robin’s expert metallurgist, Lee Swanger, determined that
the rupture of the pipeline was caused by gouges on the bottom of
the pipeline, but had no evidence as to what caused these gouges.
Swanger testified that Sea Robin’s attorney, Mr. Ordeneaux, told
Swanger that there were “puncture marks in the seabed [near the
point of rupture] that a portion of the legs of the rig could have
made if it were bouncing in the waves and contacting the seabed,”
but that Swanger had not seen them.
29, l.4-p. 30, l. 14.

-24-

#15, Swanger Deposition at p.

In sum, argues ENSCO, Sea Robin has not and cannot meet its
burden to show that the rig caused the damage to its pipeline.

See

Ex. #8, Messman Deposition, pp. 70-71; Ex. 16, Meehan Deposition,
pp. 40-41; #1, Ex. 1, Till Deposition, p. 21, l. 25-p. 123, l. 9.
It cannot explain how ENSCO’s rig could have damaged a pipeline 195
feet below the surface, it cannot show a drift pattern that crosses
the three known locations of ENSCO, it cannot explain the lack of
drag marks and debris from the ENSCO 74 near the pipeline, it
cannot explain why the pipeline is scraped only on the bottom, and
it cannot show the date on which the pipeline was damaged.

Thus

ENSCO is entitled to a summary judgment dismissing Sea Robin’s
claims against it and the ENSCO 74.

Gateway Offshore Pipeline Co.

v. M/V Antalina, Civ. A. No. 4:10-CV-860, 2012 WL 3930316 (S.D.
Tex. Sept. 10, 2012)(granting summary judgment where Gateway was
unable to provide evidence showing that the M/V Antalina’s anchor
caused the damage to Gateway’s pipeline).11
Sea Robin’s Memorandum in Opposition (#110-116)
Insisting that it never claimed that the ENSCO 74 alone caused

11

Sea Robin claims that the facts here are distinguishable
from those in Gateway Offshore Pipeline, in which a vessel’s
functioning AIS produced evidence that confirmed that the vessel
did not pass within 19 miles of the pipeline in dispute, in the
following ways: (1) there were no witnesses to the path of the
ENSCO 74 or its striking of Sea Robin’s pipeline; and (2) there is
no direct evidence of the rig’s path because the ENSCO 74 lacked a
functioning tracking system after it left station, preventing ENSCO
from tracking its rig in real time and any party from later
determining the rig’s path.
-25-

the pipeline to displace out of its pre-storm location, Sea Robin
concedes that hurricane forces “would have undisputably caused the
pipeline to move,” but argues that “hurricane forces did not
extensively gouge and scratch steel pipe and/or pipe coating over
a distance of 2,000 feet” because such damage could only have been
done by “a heavy steel object.”

#110 at p. 7.

It points to the

fact that martensite,12 which both parties’ expert metallurgists
agree existed at the likely origin of the rupture,13 must have
formed due to the heat generated to over 1500 degrees by frictional
rubbing against the pipe by the ENSCO 74, which crossed the Gulf of
Mexico at approximately 10 miles per hour and weighed approximately
16,000,000 pounds.

It

emphasizes that no other jack up drilling

12

According to Sea Robin, in addition to mechanical damage to
the pipe, a layer of carbon steel was transformed into martensite
at the likely point of the rupture of the pipeline. #113, Ex. 9,
Dep. of George Vander Voort, ENSCO’s expert, at p. 387. Martensite
only forms from steel with the carbon content of Sea Robin’s
pipeline if it is heated to at least 1550 degrees Fahrenheit and
quickly cooled.
The metal quenches due to the rapid cooling,
causing microscopic cracks in the layer of martensite. #113, Ex.
8, Swanger Affidavit, ¶¶ 8-10. The martensite allegedly caused a
rupture of the pipeline at an internal pressure of approximately
900 psig, less than the routine operating pressure of 1,050-1,150
psig before the hurricane. #110, at pp. 4-5 and 7. Ex. 1, Messman
Dep., p.52, ll. 1-5.
Vander Voort testified that it was more
probable than not that the failure would not have occurred if the
cracks had not been there. #113, Ex. 9 at p. 390, l. 24-p. 391, l.
9.
He also testified that to create the layer of martensite
observed would require abrasion by rubbing against it with enough
energy to heat the pipeline to a temperature of 1550 degrees
Fahrenheit. Id. at p. 254, l.4-p. 255, l. 12.
13

#113, Ex. 9, Dep. of George Vander Voort, at p. 387 (finding
martensite within an inch of the oxbow bend).
-26-

rig crossed the area during Hurricane Ike and there is no evidence
that any other vessel of any kind with the ability to contact the
pipeline crossed the pipeline near the location of the damage.
Furthermore Sea Robin points to the deformation of the pipeline’s
steel, i.e., the gouges or scratches which indisputably were the
result of contact with another object.

Basic physics establishes

that to scratch or gouge an object, the offending object must be at
minimum

at

least

fractionally

harder

than

the

object

it

is

scratching or gouging. Sea Robin’s metallurgist testified that the
gouging required more energy than that required to form martensite.
#113, Ex. 10, Swanger Deposition and exhibits, p. 24, l. 11-p. 25,
l. 12.

Sea Robin calls the martensite “the closest thing to a

witness which exits in this case.”

#110 at p.22.

Moreover Sea

Robin emphasizes that ENSCO concedes for purposes of the motion for
summary judgment that mechanical damage to the pipeline caused the
rupture on July 31, 2009.
Vander Voort opined that, in addition to the jet sled repair
a

month

before

the

rupture

(“the

most

likely

source”),

the

mechanical damage to the pipeline could have preexisted Hurricane
Ike and that the additional stress of the hurricane that moved the
pipeline caused the rupture. Sea Robin argues that these potential
causes can be conclusively dismissed.

Regarding the jet sled, Sea

Robin asserts that Vander Voort’s opinion is largely based on his
assumption that the ENSCO 74 could not have contacted the pipeline,

-27-

not on a specific scientific principle.

Swanger, a qualified

mechanical engineer and a metallurgist, testified in an affidavit
(#113, Ex. 8, ¶¶ 9-16) that he ruled out a jet sled as a possible
cause

of

damage

because

based

on

a

momentum

calculation

to

determine what force the jet sled was capable of transferring to
the pipeline during operations: (1) a minimum force of 32,000
pounds is required, applied perpendicular to the pipeline, to make
martensite; (2) his research showed the largest jet sleds are
usually 80 tons, or at least 75 times smaller than the ENSCO 74;
(3) one inch of rubbing travel in less than 6 milliseconds was
required so that the water and steel did not prevent the steel from
reaching at least 1500 degrees Fahrenheit to a depth of at least 5
millimeters; (4) he concluded from work records that the fastest
speed recorded for the jet sled during the whole process was 23.7
feet per minute, or just under .4 feet per second or just over onefourth of a mile per hour; (5) the jet sled was towed parallel, not
perpendicular, to the pipeline and any downward movement would have
lacked sufficient force to jam the steel nozzles against the
pipeline with even 32,000 pounds of force14; (6) even the biggest

14

ENSCO points out that the lay barge that was towing the jet
sled across the seafloor had the ability to apply forces 3-4 times
higher than needed to generate the forces that scratched the pipe.
The jet sled was pulled by the winch on the L/B PECOS that was
cable of exerting 110,000 pounds of force. #127, Ex. 16, copy of
the Specification Sheet for the L/B PECOS. If the jet sled gets
stuck, as the records show it did, the winch could exert four times
the tension needed to scratch the pipe and form martensite.
-28-

jet sleds are not capable of imposing enough force on the pipeline,
and even their fastest speed is much too slow to cause martensite
to form; and (6) the ENSCO 74 has sufficient mass and velocity and
was traveling fast enough to cause the damage to the pipeline.
#133, Ex. 8, Swanger Affidavit, ¶¶ 9-16 and Ex. 2 to affidavit.
Sea Robin observes that ENSCO relies on the timing of the
burial operation and the testimony of Rick Reggio, Sea Robin’s
engineering consultant for repairs. Sea Robin maintains the timing
was irrelevant because from the time of Hurricane Ike until the
pressure test resulting in the July 31, 2009 rupture, the pipeline
was never under pressure. Moreover ENSCO has presented no evidence
that there was ever any contact between a jet sled and the
pipeline.

Reggio testified that the pipeline would damage the jet

sled before the opposite occurred because of the force and strength
of materials.

#113, Ex. 11, p. 107, l.16-p. 108, l. 17.

Sea Robin

emphasizes that there were no other repairs near the location of
the damaged pipeline before the rupture.
pipeline was on the bottom.

The damage to the

The pipeline lay on the seafloor

undisturbed from the time of Hurricane Ike until the time of the
burial of the pipeline, with no intervening hurricanes.

There was

no opportunity for damage to occur.
Sea Robin argues that the damage could not have existed before
Hurricane Ike.

Kiefner and Associates calculated that in movement

of the pipeline, the highest bending strain was .02%, way below the

-29-

.76% critical buckling strain for the line, and determined that the
bending would not have damaged an otherwise sound pipeline.
Ex 1, Messner Dep., p. 224, l. 23-p. 226, l. 12.

#110,

Swanger testified

that the strength of the pipeline had been “proof-tested” by prior
operation of the pipeline at an internal pressure of at least 1,035
psig.

Clearly the internal operating pressure of 910 psig caused

less stress than the earlier internal pressure.

Bending strain

does not increase axial stress at neutral axes, such as the 6
o’clock position where the origin of the rupture occurred. Swanger
calculated that axial stress on the pipe due to .02% bending strain
of 6,000 psi would only have existed at the 3 o’clock or 9 o’clock
position, whichever was in compression.

If the movement of the

pipeline contributed to the failure of the pipeline, the rupture
would have occurred on the axis affected by the movement since the
pipeline performed under greater stress just before the storm.
Instead it occurred where the martensitic cracks and mechanical
deformation were found, a location that only developed after
September 9, 2008.
In summary in this case, Sea Robin maintains, the rights of
the parties must be determined by a preponderance of the evidence,
and reliance on circumstantial evidence that supports the inference
of causation and negligence is permissible.
527 F. Supp. at 831.

Marathon Pipe Line,

Expert Ken Smith’s testimony shows that the

ENSCO 74 more than likely crossed over the Sea Robin and that after

-30-

losing station, the rig’s remaining legs had the capability to, and
more likely than not did, strike the pipeline.

Testimony of

ENSCO’s path expert Tom Burns shows that evidence of the exact path
of the rig is inconclusive.

Sea Robin also raises its expert

Smith’s theory about the rig’s legs breaking jaggedly at different
levels on each of the four chords of the four-chorded structure,
dropping and extending deeper into the water, making contact with
the pipeline, which Sea Robin proclaims far more plausible than
ENSCO’s opinion that the rig capsized and lost buoyancy.

This

evidence raises a genuine issue of material fact sufficient to
preclude summary judgment, Sea Robin insists.
Sea

Robin

further

argues

that

sonar

survey

evidence

is

uncertain or equivocal and that the appearance of the seafloor can
change with the passage of time. That evidence should therefore be
discounted.
Sea Robin maintains that since the parties’ expert opinions
greatly differ, and therefore the factfinder must make credibility
determinations,15 the Court’s finding of a genuine issue of material
fact would preclude the grant of summary judgment on the negligence
claims. Sea Robin’s expert, Kenneth Smith, finds the probable path
of the ENSCO 74 as crossing over Sea Robin’s pipeline.

He also

presents a theory about two legs of the ENSCO 74 breaking off and

15

The Court observes that this standard may apply at trial,
but not at summary judgment.
-31-

the remaining third one extending below the bottom of the hull,
combined with the draft and motion of the hull in the storm, to
demonstrate so that it probably made contact with and damaged the
pipeline.

Sea Robin also points to its metallurgist expert’s

opinion that the gouges in the pipeline contained a change in the
metal composition that could only have been caused by a structure
with force similar to a drifting rig.

Sea Robin emphasizes that

there is no evidence that any other rig crossed over the pipeline
before, during or after the hurricane.

It further insists that

ENSCO’s efforts to blame the damage on the hurricane and a jet sled
used during repair operations are ineffective because neither
scenario is physically and thus reasonably possible.

Sea Robin

urges that in this “battle of the experts,” the Court “should hear
the

testimony

of

the

opposing

experts

to

determine

their

credibility and weigh each party’s evidence.”16 #110 at pp. 18-19.
Even ENSCO’s experts will agree that the ENSCO 74 crossed the
pipeline within three miles of the damage to the pipeline and that
no other rigs or vessels capable of causing the damage were so
near.
ENSCO’s Reply (#127)
16

The Court notes that under black letter law it may not do
either in reviewing motions for summary judgment. Total E&P USA,
Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir.
2013)(“In determining whether a case presents triable issues of
fact, . . . the district court may not make credibility
determinations or weigh the evidence . . . .”), citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)..
-32-

The key issue here is whether the ENSCO 74 contacted Sea
Robin’s pipeline.

ENSCO contends that after four years all Sea

Robin provides is forty pages of potential scenarios that possibly
might have occurred where ENSCO 74 could possibly have caused
damage to the pipeline, but without a single piece of evidence
showing that it did.

It is Sea Robin’s burden to prove causation,

but it has provided no fact indicating that ENSCO 74 came into
contact with its pipeline: there are no drag scars caused by the
rig; there is not a single piece of rig equipment that was lost in
the area of the alleged contract; it cannot explain how a rig
floating 200 feet above the pipeline contacted the pipeline, no
less that it got under the pipeline to cause damage on two portions
of the underside of pipe that was sitting in the mud.
ENSCO claims it has met its burden to show that there is no
evidence that ENSCO 74 struck the Sea Robin pipeline.

The burden

has

than

shifted

to

nonmovant

Sea

Robin

to

show

more

some

metaphysical doubt that ENSCO 74 more probably than not was the
cause of damage to Sea Robin’s pipeline, i.e., evidence upon which
a judge or jury could reasonably base a verdict in its favor.

In

re Great Lakes Dredge & Cock Co., LLC, 624 F.3d at 211; Anderson,
477 U.S. at 248.

According to ENSCO, because “Sea Robin’s story

defies physics, reason and is void of any physical evidence,” it
has failed to meet its burden. For example, since the pipeline was
sitting on the seafloor, (1) the deck of the rig would have to sink

-33-

160 feet below the surface, (2) the leg of the rig would have to
scoop under the pipeline and drag along its underside for two noncontiguous sections totaling 1200 feet without disturbing any
portion of the seafloor and leaving the top and side of the pipe
undamaged, and (3) the ENSCO 47 would have to keep all of its
equipment on deck and return to the surface after sinking to the
depth of 200 feet.

Even Sea Robin’s engineer expert, Kenneth

Smith, testified that an object weighing over 16,000,000 traveling
at 8 and one-half knots per hour would create “a lot of force
(#127, Ex. 15 at pp. 120-23),” yet there is no evidence of any
contact between the rig and the pipeline or any portion of the sea
floor in the vicinity of the rupture site. Smith further testified
that it is not possible, using his drift model, for the rig to have
left from its starting point, made contact with the pipeline,
crossed the debris field, and ended up where it sank.
164-72.

Id. at pp.

Sea Robin’s contention that the rig may have passed over

the pipeline does not satisfy its burden on causation.

That

assertion does not provide any evidence that the rig struck the
pipeline, no less that it came into contact with the pipeline below
the mud line and left no mark on the seafloor.

Although Sea Robin

argues that possible evidence of drag scars and/or rig equipment
could have been covered over during the months after the storm,
ENSCO points out that bottom surveys by Sea Robin’s experts provide
important details about the pipeline’s performance in the storm,

-34-

including “wall marks” caused by the pipeline’s slow movement on
the seafloor and various pock marks caused by vessels anchored in
the area that were not covered up, yet somehow all of the evidence
created by the rig disappeared.

Sea Robin fails to identify a

single seafloor disturbance where the rupture occurred.
Moreover since there is no evidence that the pipeline was
damaged in September 2012, it makes more sense that the burial of
the pipeline that occurred after these seafloor surveys were
conducted caused the damage to the pipeline.
Sea Robin’s Surreply (#30)
Sea Robin objects to ENSCO’s submission of the specifications
of the L/B PECOS.

The Specifications are not an expert opinion

calling into doubt Swanger’s calculations and opinion that the jet
sled is a possible cause of the damage to the pipeline nor physical
evidence of contact between the sled and the pipeline, but merely
an argument.

It cannot overcome the principle establishing that

the jet sled could not cause the martensitic deposit at the site of
the rupture.

Swanger determined that the force applied to the jet

sled by the towing barge is parallel, not perpendicular, to it. He
also found that if the jetting nozzles were to make contact with
the pipeline, they would only inadvertently brush against it,
without the force to scratch or puncture.

Swanger also concluded

that the jet sled was far too slow to have caused the martensitic
transformation or the indelible witness mark in the steel of the

-35-

pipeline.

Sea Robin argues that on summary judgment review all

evidence produced by the nonmovant is taken as true and all
inferences are drawn in the nonmovant’s favor.

Bejil v. Ethicon,

Inc., 269 F.3d 477, 479 (5th Cir. 2001).
Court’s Decision
A threshold question in this limitation of liability action is
whether ENSCO owed a duty of care to Sea Robin.

In In re Signal,

579 F.3d at 491-96, the Fifth Circuit provided a lengthy discussion
of legal principles that applied in determining whether the owner
of

two

barges

that

broke

loose

from

their

moorings

on

the

Pascagoula River, Mississippi during Hurricane Katrina and allided
with and damaged a bridge of Interstate 10, approximately five
miles away, owed a duty of care to the Mississippi Department of
Transportation (“MDOT”) regarding the bridge.

Judge Carolyn King,

writing for the panel, opined,
“Duty . . . is measured by the scope of the risk
that negligent conduct foreseeably entails.”
Consol.
Aluminum, 833 F.2d at 67. . . . [T]he determination of
duty “involves a number of factors, including most
notably the foreseeability of the harm suffered by the
complaining party.” [Id.] (citing, e.g., PROSSER AND
KEETON ON TORTS § 53 (5th ed. 1984)); see generally [1
DAN B. DOBBS, THE LAW OF TORTS] at 466 [(2001)] (“The
defendant is liable for harms he negligently caused so
long as a reasonable person in his position should have
recognized or foreseen the general kind of harm the
plaintiff suffered.”); 3 FOWLER V. HARPER ET AL., HARPER,
JAMES AND GRAY ON TORTS § 18.2, at 762 (3d ed. 2007)(“The
obligation to refrain from that particular conduct is
owed only to those who are foreseeably endangered by the
conduct and only with respect to those risks or hazards
whose
likelihood
made
the
conduct
unreasonably
dangerous.”); . . . . “Foreseeability obviously marks the
-36-

limits placed on a defendant’s duty; the precise meaning
of the concept is vital.” Consol. Aluminum
“The test [of foreseeability] is whether the harm
that does occur is within the scope of danger created by
the defendant’s negligent conduct. 3 [STUART M. SPEISER
ET AL., THE AMERICAN LAW OF TORTS 71 (2008)]; see also 1
DOBBS . . . at 463[“[F]oreseeability is a short hand
expression intended to say that the scope of the
defendant’s liability is determined by the scope of the
risk he negligently created.”)
Although we sometimes
speak in terms of probability, we do so not in a
mathematical, more-likely-than-not usage, but in terms of
the “natural and probable” risks that a reasonable person
would likely take into account in guiding her practical
conduct. See [Republic of France. v. United States, 290
F.2d 395, 401 (5th Cir. 1961)]; Consol. Aluminum, 833
F.2d at 68 (“[F]oreseeability . . . includes whatever is
likely enough in the setting of modern life that a
reasonably thoughtful person would take account of it in
guiding practical conduct.”) . . . The scope of danger
incorporates “not only those [natural] forces which are
constantly and habitually in operation but also those
forces which operate periodically or with a certain
degree of frequency.” Republic of Fr., 290 F.2d at 400.
. . .
In re Signal, 579 F.3d at 491-92.

Asking “whether the allision

with the Interstate 10 bridge was a harm of the general sort to an
entity of a general class that a reasonably thoughtful person might
have anticipated to result from Signal’s negligent mooring” of the
barges “in light of the anticipated natural forces wrought by
Hurricane Katrina,” Judge King wrote,
[O]ur analysis does not focus on the particular allision
site, but the general risk of allision; it does not focus
on MDOT, but on the class of property owners in the paths
available to the runaway barges.
We agree with the
district court that the risk of allision with a fixed
structure located within the reach of the anticipated
storm surge was foreseeable if the barges broke free due
to negligent mooring. Allision with fixed structures is
one of the principal risks of a vessel, moored inland,
that breaks from its negligently executed moorings.
-37-

Id. at 492.

Rejecting Signal’s attempt to narrow the inquiry to

the specific risk of allision with the particular portion of the
Interstate 10 bridge, Judge King continued, “We find no principled
reason to break with our precedent that guides our determination by
reference to the general sorts of harms that are reasonably
foreseeable consequences of the scope of danger risked by the
negligence involved.
at 493.

See Consol. Aluminum, 833 F.2d at 68.”

Id.

She further observed, “[N]either the distance covered by

the barges nor the lack of typically navigable waters around the
allision site rendered the allision unforeseeable.

The test of

foreseeability is not measured against normal conditions, but those
that were anticipated or reasonably should have been anticipated.
See Consol. Aluminum, 833 F.2d at 68 (holding that foreseeability
incorporates ‘the interplay of natural forces”); In re Kinsman
Transit, 338 F.2d 708, 724 (2d Cir. 1964)](“[W]here . . . the
damage was caused by just those forces whose existence required the
exercise of greater care than was taken-–the current, the ice, and
the physical mass of the [vessel], the incurring of consequences
other than and greater than foreseen does not . . . provide a
reasoned basis for insulation.”) . . . .”

Id. at 493.

The panel

examined the pre-storm forecast for Hurricane Katrina, considered
the storm’s expected height and predicted movement, and decided
that the storm, as it came in, corresponded to the predicted
Category 4 and “exposed the barges to anticipated forces.” It also

-38-

found that Signal foresaw that in a large storm its vessels would
escape from the mooring site and its own witnesses testified that
if they broke free from faulty mooring they would leave the
sheltered mooring areas and enter into the general river.

There

were no natural or man-made obstructions between the mooring site
and the bridge.

Id. at 494.

It concluded that these factors made

it foreseeable to a reasonably thoughtful person that the barges
could reach the bridge.

Id.

The panel held that “‘where, as here,

the damages resulted from the same physical forces whose existence
required the exercise of greater care than was displayed and were
of the same general sort that was expectable, unforeseeability of
exact developments . . . will not limit liability.”
quoting In re Kinsman, 338 F.2d at 726.

Id. at 495,

Furthermore, “[t]he

allision was a harm of the general sort to an entity of the general
class that might have been anticipated by a reasonably thoughtful
person as a probable consequence of the negligent mooring of the
barges on the Pascagoula River in light of the interplay of the
expected storm surge and the surrounding typology.”

Id. at 496.

It concluded that Signal owed a duty to MDOT because the allision
with the bridge was foreseeable and Signal was not entitled to
exoneration.

Id. at 496.

This Court first observes that although it would be Sea
Robin’s burden, neither party has addressed, no less produced
evidence showing, whether ENSCO owed a duty of care to Sea Robin.

-39-

In a limitation of liability action, the claimant, here Sea
Robin, normally bears the burden of proving by a preponderance of
the evidence, by either direct or circumstantial evidence, that the
vessel owner was negligent, a claim which includes the element of
causation.

Pioneer, 638 F. Supp. 2d at 689.

Nevertheless, as noted, under general maritime law and the
LOUISIANA rule, when a drifting vessel propelled by current or
wind, such as the ENSCO 74, strikes and causes damage to a
stationary object like an undersea pipeline on the seafloor, there
is a strong presumption that the owner of
negligent and at fault.
NERAIDA, 508 F.3d at

moving ship was

Bunge, 240 F.3d at 923;

503, citing

Fischer v. S/Y

The LOUISIANA, 70 U.S. 164; and

River Parishes Co., 686 F.2d at 1132-33.

That presumption shifts

the burden of producing rebuttal evidence and the burden of
persuasion to the vessel owner. Thomas J. Schoenbaum, “Chapter 14.
Collision and Marine Casualty,” 2 Admiralty & Mar. Law § 14-3 (5th
ed. updated Nov. 2013). The presumption imposes a heavy burden” on
the ship owner.

Bunge, 240 F.3d at 923.

The vessel owner can

rebut the presumption in three different ways:

(1) showing that

the allision was the fault of the stationary object; (2) showing
that the moving vessel acted with reasonable care (presumably not
possible where the rig is moved by wind and/or water during a storm
out of the owner’s control); or (3) showing that the allision was
an unavoidable accident. e.g., and act of God.

-40-

Schoenbaum, 2

Admiralty & Mar. Law § 14-3;

Bunge, 240 F.2d at 923, 926.

ENSCO,

which bears the burden of persuasion to rebut the presumption that
it was negligent, has not addressed nor provided evidence that the
allision was the fault of the pipeline or that the unmooring was an
accident or due to an Act of God that was not preventable by human
skill and precaution.
Moreover given the presumption that ENSCO was negligent under
the LOUISIANA rule, the “owner seeking liability must show that it
lacked privity or knowledge of the condition (the presumably
negligent mooring) that it could have obtained by reasonable
investigation.

Neither party has addressed, no less submitted

evidence, on this issue.
There is no evidence in the record about the mooring of the
ENSCO 74, pre-storm, in the Gulf of Mexico, which is an area well
known to be subject to severe storms and hurricanes.

There is no

evidence about the forecast and warnings for Hurricane Ike.

Thus

there is no evidence for the Court to determine whether ENSCO owed
a duty of care to Sea Robin.

Moreover given the presumption of

negligence that arises under the LOUISIANA rule, there is also no
evidence showing whether ENSCO had knowledge of the condition (the
presumably

negligent

mooring)

reasonable investigation.

or

could

have

obtained

it

by

In sum, there is no evidence from which

the Court can determine whether ENSCO owed a duty of care to Sea
Robin and whether it breached such a duty.

-41-

Accordingly,

even

though

ENSCO

has

made

some

strong

arguments about causation, the unrebutted presumption of negligence
controls and the failure of the parties to address the threshold
issues makes ENSCO’s motion for summary judgment premature.
Accordingly the Court
ORDERS that ENSCO’s motion for summary judgment (#98) is
DENIED without prejudice.
SIGNED at Houston, Texas, this

26th

day of

March , 2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-42-