Gateway Offshore Pipeline Company v. M/V Antalina et al

Filing 60

OPINION AND ORDER denying 57 Motion for Reconsideration.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE 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.

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CIVIL ACTION H-10-860

OPINION AND ORDER
Pending before the Court in the above referenced cause,
asserting

negligence

and

gross

negligence

and

alleging

that

Defendants M/V Antalina and Perovo Shipping Co., Ltd. (“Perovo”)
are

liable

for

damaging

Plaintiff

Gateway

Offshore

Pipeline

Company’s (“Gateway’s”) subsea pipeline at a depth of over 200 feet
during Hurricane Ike, is Gateway’s motion under Federal Rule of
Civil Procedure 59(e) for reconsideration (instrument #57) of the
Opinion and Order and Final Summary Judgment issued by the Court
(#54 and 55).
Standard of Review
A Rule 59(e) motion “calls into question the correctness of a
judgment.”

Templet v. Hydrochem, Inc., 367 F.3d 473, 478-79 (5th

Cir. 2004).

“A motion to alter or amend the judgment under Rule

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59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued.’”

Rosenzweig v. Azurix Corp., 332 F.3d 854,

863-64 (5th Cir. 2003)(quoting Simon v. United States, 891 F.3d
1154, 1159 (5th Cir. 2003)). It also cannot be used to re-litigate
issues

“that

simply

dissatisfaction.”
2001).

have

been

resolved

to

the

movant’s

In re Self, 172 F. Supp. 2d 813, 816 (W.D. La.

Altering, amending or reconsidering a judgment is an

extraordinary measure that should rarely be granted and only when
there is (1) an intervening or change in controlling law; (2) the
availability of new evidence not previously available; or (3) the
need to correct a clear error of law or fact or to prevent a
manifest injustice.

Schiller v. Physicians Resource Group, Inc.,

342

(5th

F.3d

563,

567

Cir.

2003).

A

court

has

considerable

discretion in determining whether to reopen a case in response to
a motion for reconsideration under Rule 59(e). Lavespere v. Niagra
Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.

1990),

abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d
1069, 1075 n.14 (5th Cir. 1994)(en banc).

In such a circumstance

the court “must strike the proper balance between two competing
imperatives:

(1) finality, and (2) the need to render just

decisions on the basis of all the facts.”

Edward H. Bohlin Co. v.

Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).
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“Courts do not grant

new trials unless it is reasonably clear that prejudicial error has
crept into the record or that substantial justice has not been
done, and the burden of showing harmful error rests on the party
seeking new trial.”

Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir.

1999), cert. denied, 529 U.S. 1019 (2000).
Gateway’s Motion for Reconsideration (#57) and Reply (#59)
Gateway argues that the Court’s Opinion and Order (#54)
granting Perovo’s motion for summary judgment and the Final Summary
Judgment (#55) contained clear error that will result in manifest
injustice because the Court imposed an improperly high burden
requiring positive proof.
not

draw

a

reasonable

The Court found that a factfinder could
inference

from

the

expert,

lay,

and

circumstantial evidence in the record that the M/V Antalina’s
negligence played any part in causing the damage to the pipeline
unless supported by a witness’s explicit testimony on causation.
Russell v. Delco Remy, 51 F.3d 746, 749 (7th Cir. 1995); Huffman v.
Union Pacific Railroad, 683 F.3d 619, 620 (5th Cir. 2012)(per
curiam)(Dennis, J., dissenting from the Fifth Circuit’s failure to
rehear case en banc and objecting to the “panel opinion hold[ing]
that a FELA jury may not infer directly from the evidence that the
railroad’s negligence contributed to the plaintiff’s injury unless
a

witness

has

first

expressly

testified

that

such

a

causal

relationship exists” because it adds extra burdens to the standard
of causation in FELA and Jones Act cases and because it directly
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conflicts with CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630
(2011)(test for causation of injury under FELA is “whether the
proofs justify with reason the conclusion that employer negligence
played any part, even the slightest, in producing the injury or
death for which damages are sought”), and Rogers v. Missouri
Pacific Railroad Co., 352 U.S. 500, 506 (2004)(The test for
causation under FELA “is simply whether . . . employer negligence
played any part, even the slightest, in producing the injury.”),1
1

The Jones Act adopts the FELA standard of causation by
reference. Huffman, 683 F.3d at 620. n. 1, citing Johnson v. Cenac
Towing, Inc., 544 F.3d 296, 301 n.2 (5th Cir. 2008).
Nevertheless, as Perovo correctly points out, the instant suit
is a general maritime negligence case, not a suit for Jones Act
negligence, and the reduced standard for causation under FELA and
Jones Act negligence does not apply. “Under the general maritime
law, a party’s negligence is actionable only if it is the ‘legal
cause’ of plaintiff’s injuries. . . . ‘[L]egal cause is ‘something
more than ‘but for’ causation and the negligence must be a
‘substantial factor’ in the injury.” Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992)(citations
omitted), cited for that proposition in In re Great Lakes Dredge
& Dock Co. LLC, 624 F.3 201, 213-14 (5th Cir. 2010). The elements
of negligence under general maritime law are “essentially the same
as land-based negligence under the common law.” Great Lakes, 974
F.2d at 211. This Court maintains that it applied the appropriate
standard for causation in #54 at p.4.
Perovo also suggests that on summary judgment in a nonjury
case, as where Gateway elected to have a bench trial under Federal
Rules of Civil Procedure 9(h) and 38(e), a more lenient standard
mirroring that governing involuntary dismissals, in which the court
as the fact finder may resolve disputed issues of fact, applies.
See U.S. Fid. & Guar. Co. v. Planters Bank & Trust Co., 77 F.3d
863, 865 & n.1 (5th Cir. 1996). The Court would point out that the
Fifth Circuit has since indicated that it “has not actually
adopted” the lenient standard discussed in Planters Bank under
which “the district judge could grant summary judgment based on
inferences drawn from incontrovertibly proven facts, as long as
there is no issue of witness credibility.” Illinois Central R. Co.
v. Mayeux, 301 F.3d 359, 362 n.1 (5th Cir. 2002).
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cert. denied, 133 S. Ct. 840 (2013).

Gateway insists that the

evidence, viewed in the light most favorable to Gateway, shows that
multiple issues of fact are in dispute and that the case should go
to trial.
Gateway singles out two parts of the Court’s Opinion and
Order.

First the Court pointed out that Gateway produced no

evidence that the pipeline was damaged on September 12, 2008, the
date on which the Antalina was drifting in the Gulf of Mexico in
the vicinity of the pipeline and not on some other date than when
Hurricane Ike hit the area, since the gas line was shut off for
approximately two months from September 2008 until November 2008,
when the damage and leak were first discovered.

#54 at p. 6.

Second, it found equivocal the testimony of Gateway’s witness,
experienced Captain Wozniak, “I guess [the damage] could have been
caused by some other anchor, I don’t know, . . . may have been
caused by a loaded vessel, [bulk carrier] and its anchor.”

Id. at

p. 8.2
Gateway contends that it is not required to produce evidence
of a “smoking gun,” but only to produce evidence that, when
considered in the light most favorable to Gateway, would create
genuine issues of material fact that would permit a jury to

2

This Court also pointed out that there was no evidence that
the Antalina, which struck an oil platform nineteen miles away from
the damaged section of the pipeline, came closer to that portion of
the pipeline. #54 at p.7.
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reasonably base a verdict in its favor.
Gateway argues that where damages occurred on the sea floor
during a hurricane, “positive proof” might not be available and
therefore plaintiffs may rely on circumstantial evidence. Minerals
& Chemicals Philipp Corp. v. S.S. National Trader, 445 F.2d 831,
832 (2d Cir. 1971)(“By the very nature of a fire, its cause must
often

be

proven

through

a

combination

of

common

circumstantial evidence, and expert testimony.”).3

sense,

The Fifth

Circuit recognized the value of circumstantial evidence in a
3

In response, noting that fire cases are unique in their
treatment of circumstantial evidence because fire destroys physical
evidence. Perovo cites Marquette Transp. Co. v. Louisiana Machinery
Co., 367 F.3d 398, 402 (5th Cir. 2004), in which the appellate court
states, “Even so, the evidence must be sufficient to find both
negligence and causation (emphasis in original).” In Marquette the
Fifth Circuit determined that the trial court did not err in
finding that there was insufficient circumstantial evidence of
negligence and causation to prevail because there was credible
expert testimony on both sides, the vessel had been out of the
defendants’ control for more than a month before the fire, and the
destruction caused by the fire made it difficult to determine the
cause.
In addition, Perovo cites a case it had relied on in its
motion for summary judgment but that Gateway never addressed,
Pioneer Natural Resources USA, Inc. v. Diamond Offshore Co., 638 F.
Supp. 2d 665, 688-91 (E.D. La. 2009), in which a semi-submersible
drilling rig adrift in a hurricane allegedly damaged a sub-sea
pipeline system. The court granted summary judgment to the vessel
owner after the pipeline owner sued for general maritime law
negligence, but presented insufficient evidence. Noting that “[i]n
pipeline damage cases, maritime law allows proof of causation by
inferences arising from circumstantial evidence,” the court opined
that the plaintiff must still prove his case by a preponderance of
all the evidence in the case, whether direct or circumstantial.
Id. at 689. The court inter alia found no evidence that mooring
lines or anchor chains belonging to the vessel were what caused the
damage even though it was clear that the vessel had crossed the
pipeline.
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maritime

Jones

Act

case

in

Huffman,

683

F.3d

at

620

n.2

(“‘Circumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.’”),
quoting Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 508 n.17
(1957).

While conceding that there is no direct evidence of what

happened deep underwater in the Gulf of Mexico during Hurricane
Ike, Gateway maintains that its evidence raises genuine issues of
material fact through the following evidence: expert evidence that
the pipeline was damaged by man-made forces; evidence that the
damage occurred between when the pipeline was shut in and when it
was reopened; evidence of anchor scars next to the pipeline at a
location in line with the apex of the pipeline bow as it was being
dragged across the ocean floor in an area in which one would expect
to finds such a scar; expert evidence that an anchor from a large,
loaded vessel dragging along the ocean floor and catching and
dragging Gateway’s pipeline probably caused the damage; expert
evidence that the Antalina was the only large loaded vessel in the
vicinity of the pipeline between the time the pipeline was shut in
and reopened; expert evidence showing that Antalina’s anchors were
dropped after alliding with the Beryl Platform WC599; and expert
evidence that Antalina was drifting toward Gateway’s pipeline from
its last known coordinates during Hurricane Ike when it was flown
over by a United States Coast Guard Falcon jet.
Gateway discusses testimony of Captain Wozniak and Perovo’s

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navigation chart for the date of Hurricane Ike to argue that
Antalina came within three miles of the damaged pipeline, that its
anchors were lowered and dragging along the ocean floor.

It

further objects that the Court considered Captain Wozniak only to
be a simple fact witness when he was redesignated as an expert
witness after his deposition and his opinions in his original and
supplemental affidavits are uncontroverted.
Gateway’s Reply essentially reiterates what it discussed in
its motion.
Perovo’s Response (#58)
Perovo insists that Gateway’s Rule 59(e) motion does not
establish any sort of manifest error or law or material fact and
presents no newly discovered evidence, but only rehashes the same
arguments previously considered by the Court and thus should be
denied.
Furthermore, Perovo argues that Gateway fails to meet its
burden to present evidence essential to demonstrate causation: (1)
the date when the pipeline was damaged during the two-month window
that the gas line was turned off; (2) that an anchor caused the
damage; and (3) if an anchor caused the damage, whose anchor did
so.
Court’s Decision
The Court agrees with Defendants.

Gateway has not clearly

established either a manifest error of law or fact or presented
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newly discovered evidence, but has rehashed old issues on which the
Court previously ruled. Nor has it showed any change in the
applicable law. Moreover, because, as this Court determined on
summary judgment, there was insufficient evidence, certainly less
than a preponderance, to determine on what day the pipeline was
damaged during the two-month period when the gas line was shut
down, Gateway’s evidence regarding where the Antalina was on the
day

that

Hurricane

Ike

hit

the

locality

of

the

pipeline

is

inadequate for imposing liability on Perovo and its vessel, the M/V
Antalina, no less that an anchor damaged the pipeline and, if so,
which vessel’s anchor may have damaged the pipeline.

Moreover the

Court did consider Captain Wozniak’s supplemental affidavit, did
give

credit

to

his

“experience”

and

“knowledge

of

marine

navigation” (#54 at P. 8) even if it did not use the word “expert,”
pointed out its limitations, and found that Gateway did not meet
its burden of proof.
Accordingly, the Court
ORDERS that Gateway’s motion for reconsideration (#57) is
DENIED.
SIGNED at Houston, Texas, this

29th

day of

May , 2013.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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