Gateway Offshore Pipeline Company v. M/V Antalina et al
Filing
54
OPINION AND ORDER denying 49 Motion to Supplement; granting 20 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GATEWAY OFFSHORE PIPELINE
COMPANY,
§
§
§
Plaintiff,
§
VS.
§
§
M/V ANTALINA, her engines, tackle, apparel, §
etc., in rem and PEROVO SHIPPING CO.
§
LTD., in personam
§
§
Defendants.
§
CIVIL ACTION NO. 4:10-CV-860
OPINION AND ORDER
Pending before the Court is Defendant the M/V Antalina and Defendant/Claimant Perovo
Shipping Co. Ltd.’s (collectively “Defendants”) motion for summary judgment. Doc. 20. In that
motion, Defendants contend that Plaintiff Gateway Offshore Pipeline Company (“Gateway”)
“has not been and will not be able to present proof of a factual element essential to its case, i.e.,
that its pipeline was damaged by an anchor deployed by M/V ANTALINA on or about
September 12, 2008.” Id. at 2.
Gateway has responded to the motion and introduced summary judgment evidence in
support of its claims. Doc. 21. On February 4, 2012 Gateway filed its motion to supplement
summary judgment evidence. Doc. 49. In that motion it sought to supplement the existing
affidavit of Captain Wozniak with a new and expanded affidavit (Doc 49-1) composed after the
deposition of Defendant’s witness Captain Psomalis. Defendant responded to the motion to
supplement, maintaining that the affidavit did nothing to bring forth evidence of a material fact
issue that Gateway’s pipeline was damaged by an anchor deployed by the M/V ATALINA on or
about September 12, 2008. Doc 52. After considering the motions, the new affidavit of Captain
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Wozniak, and the summary judgment evidence in this case, the Court finds that Gateway has
failed to bring forward sufficient evidence that demonstrates the existence of a genuine issue of
material fact for trial. The Court therefore grants Defendants’ motion for summary judgment.
I. Background
This case arises from damage sustained by a section of Gateway’s underwater gastransport pipe in the Gulf of Mexico. Gateway contends, and Defendants have not contested, that
Gateway owns a length of 10” gas transport pipeline in the High Islands area of the Gulf of
Mexico. Doc. 21 at 3. In September, 2008, in preparation for Hurricane Ike, the operators of that
pipeline, HIOS Group ("HIOS"), stopped the flow of gas through that pipe. Id. at 4. See also
Doc. 21-1 at 7. In November of that year, the operators attempted to restore gas flow through the
pipe and discovered a leak. Id. Gateway’s subsequent investigation indicated that “separation
[had] occurred from the HIOS 30” subsea tie-in valve assembly and part of the pipeline was
missing.” Id.
Gateway obtained data from PortVision, a vessel tracking company, that indicated that
the Antalina had been in the vicinity of the Gateway pipeline during Hurricane Ike. Id. at 6.1
Deposition testimony of a PortVision representative indicates that the Antalina was
approximately 40 miles from the Gateway pipeline around the time of Hurricane Ike. Id. See also
Doc. 21-3 at 6. The parties agree that at 6:20 am on September 12, the Antalina allided with a
fixed platform approximately 19 miles from the Gateway pipeline. Docs. 21 at 6, 25 at 2. A
geophysical inspection of the seafloor by sonar indicated the presence of a “scar” on the seabed
near the Gateway pipeline. Docs. 21 at 6, 21-2 at 3. Gateway has also obtained the statements of
various experts interpreting the available data, which the Court addresses below.
1
PortVision locates and tracks vessels using a unique VHS signal broadcast by vessels’ Automatic Identification
System (“AIS”). Doc. 21 at 6.
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Gateway filed its complaint against the Defendants in this Court on March 16, 2010 for
negligence and gross negligence. In that complaint, Gateway asserted that “Gateway’s pipeline
was severely damaged when drifting M/V Antalina’s anchoring system allided with the pipeline,
grabbed it, and dragged it about 2,000 feet upon which the northern connection to the HIOS line
ruptured and caused the end of Gateway’s pipeline to come to rest approximately 800 feet to the
southwest of the connection to HIOS.” Doc. 1 at 2.
On January 12, 2012, Defendants filed a motion for summary judgment in which it
contends that “Gateway has not been and will not be able to present proof of a factual element
essential to its case, i.e., that its pipeline was damaged by an anchor deployed by M/V
ANTALINA on or about September 12, 2008.” Doc. 20 at 2. That motion has been fully briefed
and is ripe for consideration.
II. Summary Judgment Standard
A party moving for summary judgment must inform the court of the basis for the motion
and identify those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that 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, 325 (1986).
The substantive law governing the suit identifies the essential elements of the claims at
issue, and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The initial burden falls on the movant to identify areas essential to the nonmovant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen.
Ins. Col. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). If the moving party fails to meet its initial
burden, the motion must be denied, regardless of the adequacy of any response. Little v. Liquid
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Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Moreover, if the party moving for
summary judgment bears the burden of proof on an issue, either as a plaintiff or as a defendant
asserting an affirmative defense, then that party must establish that no dispute of material fact
exists regarding all of the essential elements of the claim or defense to warrant judgment in his
favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (the movant with the burden of
proof “must establish beyond peradventure all the essential elements of the claim or defense to
warrant judgment in his favor”) (emphasis in original).
Once the movant meets its burden, the non-movant must direct the court’s attention to
evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.
Celotex, 477 U.S. at 323–24. The non-moving party “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indust. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Instead, the non-moving party must produce evidence upon which a jury could reasonably base a
verdict in its favor. Anderson, 477 U.S. at 248; see also DIRECTV Inc. v. Robson, 420 F.3d 532,
536 (5th Cir. 2006). To do so, the non-movant must “go beyond the pleadings and by its own
affidavits or by depositions, answers to interrogatories and admissions on file, designate specific
facts that show there is genuine issue for trial.” Webb v. Cardiothracic Surgery Assoc. of N. Tex.,
P.A., 139 F.3d 532, 536 (5th Cir. 1998).
Unsubstantiated and subjective beliefs and conclusory allegations and opinions of fact are
not competent summary judgment evidence. Morris v. Covan World Wide Moving, Inc., 144
F.3d 377, 380 (5th Cir. 1998); Grimes v. Tex. Dep’t of Mental Health and Mental Retardation,
102 F.3d 137, 139–40 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert.
denied, 513 U.S. 871 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (1992), cert. denied, 506
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U.S. 825 (1992). Nor are pleadings summary judgment evidence. Wallace v. Tex. Tech. Univ., 80
F.3d 1042, 1046 (5th Cir. 1996) (citing Little, 37 F.3d at 1075.). The non-movant cannot
discharge his burden by offering vague allegations and legal conclusions. Salas v. Carpenter,
980 F.2d 299, 305 (5th Cir. 1992); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). Nor
is the court required by Rule 56 to sift through the record in search of evidence to support a
party’s opposition to summary judgment. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir.
1992)).
Nevertheless, all reasonable inferences must be drawn in favor of the nonmoving party.
Matsushita, 475 U.S. at 587–88; see also Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable
Co., 336 F.3d 410, 412 (5th Cir. 2003). Furthermore, the party opposing a motion for summary
judgment does not need to present additional evidence, but may identify genuine issues of fact
extant in the summary judgment evidence produced by the moving party. Isquith v. Middle S.
Utils., Inc., 847 F.2d 186, 198–200 (5th Cir. 1988). There is a “genuine” issue of material fact if
the evidence “is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
Analysis
“[N]egligence is an actionable wrong under general maritime law,” and the elements of
that tort are “essentially the same as land-based negligence under the common law.” In re Great
Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010) (quoting Withhart v. Otto
Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005)). The elements of the cause of action,
therefore, are “‘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
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plaintiff's injury.’” Id. (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.
2000) (international citations omitted)).
After substantial time for discovery, Gateway has failed to produce sufficient evidence to
create a genuine issue of material fact on the question of the Defendants’ role in the damage
sustained by the Gateway pipeline. Although the parties appear to agree that Gateway’s pipeline
was damaged, Gateway has introduced little, if any, evidence that Defendants were responsible
for that damage.
As a threshold matter, Gateway has introduced no evidence that its pipeline was damaged
on September 12, 2008, the date on which the Antalina was drifting in the Gulf, and not at any
other time during the approximately two months in which the gas line was shut off. In fact,
Gateway has conceded that “it is not possible for [it] to [know] when the damage to the Pipeline
occurred. . . . Gateway is only certain that there was flow through its Pipeline prior to Hurricane
Ike, and that a rupture was discovered after Hurricane Ike.” Doc. 21 at 4. Gateway nevertheless
focused its accident investigation on shipping activity taking place during Hurricane Ike. Id. at 5.
That investigation resulted in a geophysical survey of the seabed around Gateway’s
pipeline that indicated a “drag scar” on the seabed. Doc. 21-2 at 3. Gateway introduced
deposition testimony of Matt Keith, a technician with the company that performed the seabed
inspection, to support its contention that its pipeline was displaced by an anchor. Keith’s
strongest endorsement of Plaintiff’s theory was his statement that “maybe it was displaced
because of an anchor or something.” Id. However, Keith also said that he “[didn’t] think we had
the ability to determine one way or the other” whether the pipeline was displaced by an anchor
and that “there’s . . . a lot of drag scars on the sea floor in the Gulf of Mexico from shrimpers and
things along those lines.” Id. Further, Keith stated that drag scars at the depths of the seabed in
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the vicinity of Gateway’s pipeline can remain “for extended periods of time” and that he lacked
both the experience and information to determine the age of the scar purported to be the cause of
the pipeline damage.2
The strength of Keith’s testimony is best characterized by Gateway itself: “Basically, he
never left out the possibility of the displacement due to an anchor.” Doc. 21 at 6. The Court
agrees with this assessment. Keith did not exclude the possibility that the damage was caused by
an anchor, but he also failed to state that it was. The equivocal testimony fails to create a genuine
issue of material fact as to whether the damage to Gateway’s pipeline was caused by an anchor,
rather than a shrimp trawler, that it occurred during Hurricane Ike, rather than at some period
before or after that event, or whether the damage was caused by human activity, rather than by
the action of extreme weather.
Gateway also introduces deposition testimony of PortVision’s corporate representative,
Jason Tieman. Gateway retained PortVision to determine the location of vessels near the pipeline
during Hurricane Ike. Doc. 21 at 6. Tieman contends that, based on the maps and data he
analyzed for the deposition, it was “safe to say [the Antalina was] more than 40 [miles] from
Gateway’s pipeline.” Doc. 21-3 at 6. The parties agree that the Antalina approached somewhat
closer to Gateway’s pipeline when it struck an oil platform 19 miles away. Doc. 21 at 6. There is
no evidence before the Court that it came closer than that. Even if the Court agreed with
Gateway’s characterization of this evidence as demonstrating that the Antalina “was surely in the
vicinity of the Pipeline,” the presence of the Antalina within 19 miles of the pipeline fails to
create a genuine issue of material fact as to whether it passed over and thereby caused damage to
Gateway’s pipeline.
2
“[I]n these water depths, we do see these scars for extended periods of time. So I know there are -- I've heard of
studies that are done to determine the age of scars. But based on the geophysics alone, we can't tell, you know, tell
how old they are.” Doc. 21-2 at 4.
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Gateway also offers speculation as to the Antalina’s heading and movements based on
prevailing winds during and after Hurricane Ike, as interpreted by Stefan Wozniak, an
experienced sea captain. Docs. 21-4, 21-9. This evidence also fails to create a genuine issue of
material fact. Even after repeated questioning in his deposition, Wozniak failed to state
affirmatively that the Antalina drifted across the Gateway pipeline. Instead, Wozniak stated only
that it was his “understanding from the [Antalina’s] logbook . . . that the ship was drifting in the
area of the pipeline.” Doc. 21-4 at 4. After Defendant’s counsel requested that he answer with
more specificity, Wozniak continued to state that the Antalina “drifted in a southwesterly
direction in the area of the Gateway pipelines,” that he “compared the chart positions [of the
Antalina] with the grid lines shown for the location of the l0” pipeline . . . [a]nd they are shown
to be in a similar area,” and that the longitudinal location “of that pipeline on the grid
corresponds to the general area of the vessel.” Id. Wozniak offered no more definite statement of
the Antalina’s location.
Although the Court does not impugn Wozniak’s experience nor his knowledge of marine
navigation, the limits of his testimony are evident in his own statement that “I guess [the
damage] could have been caused by some other anchor, I don't know, . . . I'm not a metallurgist,
but I have seen enough damaged pipeline to know that to bend these sections of pipeline with
that thickness of wall and so on would have been caused by significant pulling and leverage . . .
that may have been caused by a loaded vessel, bolt canier and its anchor.” Doc. 21-4. Wozniak
provides no more than a suggestion that the damage to Gateway’s pipeline “may have been
caused by a loaded vessel,” not by the Antalina, and does little to bolster Gateway’s bare
allegations.
Similarly, Wozniak offered his opinion that “a prudent captain would have deployed
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anchors” in the same conditions that the Antalina experienced during Hurricane Ike, but offers
no evidence that the Antalina did, in fact, lower its anchors. Defendants, in contrast, have
introduced affidavit testimony of David Scruton, a marine consultant and surveyor with
experience assessing ship damage, who examined the Antalina on September 18 and 19, 2008.
Doc. 20-7. Based on his observations and experience, Scruton stated that “neither of the two (2)
anchors on board M/V ANTALINA were dropped” while the vessel was adrift. Id. at 3.
Gateway’s rebuttal is limited to the strange assertion that “[t]his fact is disputed, as Scruton
produced a photo showing one anchor deployed.” Doc. 21 at 13. Because Scruton acknowledges
the fact that he inspected the Antalina while she was at anchor in Port Arthur,3 Gateway’s
rebuttal is unconvincing.
That the evidence Gateway has produced fails to support its allegations against the
Defendants is shown most clearly by a single heading in Gateway’s response to the motion for
summary judgment–“If It Was not M/V Antalina,” Gateway asks, “Then Who?” Doc. 21 at 5.
Gateway’s question appears to lead the Court to its invocation of the doctrine res ipsa loquitur.
Under that theory, if
a thing which causes injury, without fault of the injured person, is shown
to be under the exclusive control of the defendant, and the injury is such as in the
ordinary course of things does not occur if the one having such control uses
proper care, it affords reasonable evidence, in the absence of an explanation, that
the injury arose from the defendant's want of care.
Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1166 (5th Cir. 1990) (quoting San Juan
Light & Transit Co. v. Requena, 224 U.S. 89, 98-99, 32 S.Ct. 399, 401, 56 L.Ed. 680 (1912)).
Nevertheless, “[t]he doctrine is not proof and does not supply a want of proof.” Cie. Des
Messageries Maritimes v. Tawes, 205 F.2d 5, 7 (5th Cir. 1953).
3
“After M/V ANTALINA departed Port Arthur, Texas on 11th September 2008, the next time that an anchor was
dropped was at 1045 hours on 18th September 2008, when the M/V ANTALTNA arrived off Port Arthur, Texas,
under tow.” Doc. 20-7 at 3.
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Gateway must still provide some evidence indicating which “thing” caused the injury of
which they complain and that the thing was in the exclusive control of the Defendants. Gateway
relies on the uncontested fact that the Antalina was “[t]he only vessel . . . in the High Island area
during and after Hurricane Ike that could have possibly deployed its anchor.” Doc. 21 at 12.
Gateway has introduced no evidence to show that the Antalina was the instrumentality of the
damage, however, or that the damage occurred while the Antalina was in the vicinity of the
Gateway pipeline. Without such evidence, Gateway has offered only an unsubstantiated theory:
“If It Was not M/V Antalina, Then Who?” Doc. 21 at 5. The Court does not know, nor,
apparently, do the Defendants, but that ignorance fails to negate the Plaintiff’s burden of creating
a genuine issue of material fact on which to proceed to trial. Because Gateway has failed to do so
here, the Court grants the Defendants’ motion for summary judgment.
Accordingly, it is hereby
ORDERED that Plaintiff Gateway Offshore Pipeline Company” Motion for Leave to
Supplement its Summary Judgment Evidence (Doc. 49) is DENIED. It is further
ORDERED that Defendant the M/V Antalina and Defendant/Claimant Perovo Shipping
Co. Ltd.’s motion for summary judgment (Doc. 20) is GRANTED.
SIGNED at Houston, Texas, this 10th day of September, 2012.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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