Weeks Marine, Inc. v. United States of America
MEMORANDUM OPINION AND ORDER denying 19 MOTION for Summary Judgment, granting 20 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
October 31, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
WEEKS MARINE, INC.,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3642
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Pending before the court are Plaintiff Weeks Marine,
("Weeks Marine") Motion for Summary Judgment
(Docket Entry No. 19) and defendant The United States of America's
("United States") Motion for Summary Judgment ("Defendant's MSJ")
(Docket Entry No. 20).
For the reasons stated below, Plaintiff's
Motion for Summary Judgment will be denied and Defendant's Motion
for Summary Judgment will be granted.
United States were
United States of America and Weeks
F. App'x 281 (5th Cir. 2015)
(the "Underlying Litigation").
application for a permit to construct a natural gas pipeline in the
Gulf of Mexico with the Regulatory Division of the United States
Army Corps of Engineers ("the Corps").
permit to construct a
The Corps granted Contango
Channel" in November of 2007.
Information concerning the proposed
placement of the Contango pipeline across the Atchafalaya Pass
Channel was not forwarded by the Regulatory Division of the Corps
to the Waterways Division of the Corps.
The Waterways Division
provides the locations of submarine pipelines to the engineers who
prepare dredging contracts for Corps-maintained channels.
provided as-built drawings that illustrated the intersection of the
Management Service ( "MMS") , the National Ocean Service ("NOS") , and
the United States Coast Guard
(the "Coast Guard").
within the Corps received the as-built drawings.
In April of 2009
the Corps solicited bids on a contract to dredge the Atchafalaya
Corps engineers prepared project specifications that
were provided to the bidders and that would ultimately become part
of the dredging contract.
Five submarine pipelines located in or
the Contango pipeline,
was not listed.
Weeks Marine was awarded the contract in August of 2009.
Contango pipeline was not identified in the dredging contract.
The National Oceanic and Atmospheric Administration ("NOAA")
agency tasked with the publication of nautical
Before November 25,
the relevant NOAA charts -
Navigational Chart ("RNC") 11351 - displayed the Atchafalaya Pass
Channel without the Contango pipeline.
After receiving information
from MMS about a new pipeline across the Atchafalaya Pass Channel,
NOAA published on
updated ENC and
the "updated NOAA charts")
depicted the Contango
On December 2, 2009, the Coast Guard published a Local
Notice to Mariners ("LNM") announcing the addition of a submarine
pipeline to the area displayed in the RNC.
The updated NOAA charts
and the LNM were published after Weeks Marine had been awarded the
contract and had commenced dredging.
struck the Contango pipeline,
causing the pipeline to rupture and Contango to incur losses.
Contango then sued Weeks Marine and the United States.
During the Underlying Litigation Weeks Marine filed a crossclaim against the United States alleging that Contango's damages
were caused by the negligence of the Corps.
The court held that
Weeks Marine's cross-claim was essentially contractual and that the
court did not have jurisdiction to adjudicate the claim because
CDA required Weeks
contract claim against the United States to the Contracting Officer
for a decision.
7103 (a) (1).
After a bench trial the court held,
and the Fifth Circuit
affirmed, that both defendants were liable to Contango because of
separate acts of negligence.
The court held that Weeks Marine was
liable for 40% of Contango's damages and the United States was
liable for 60%. 2
The total award to Contango,
Weeks Marine, was $13,919,366.36.
paid in full by
After the Fifth Circuit affirmed
the court's Final Judgment Weeks Marine filed an Unopposed Motion
for Judgment for Contribution. 3
The court granted the motion and
ordered the United States to pay Weeks Marine $8,018,468.81. 4
Memorandum Opinion and Order, Contango Operators, Inc. , et al.
v. United States and Weeks Marine, Inc., Civil Action No. 4:1100532 (S.D. Tex. 2014), Docket Entry No. 34, pp. 4-11.
Memorandum Opinion and Order, Contango Operators, Inc. , et al.
v. United States and Weeks Marine, Inc., Civil Action No. 4:1100532 (S.D. Tex. 2014), Docket Entry No. 180, pp. 36-38.
See Defendant Weeks Marine, Inc.'s Unopposed Motion for
Judgment for Contribution, Contango Operators, Inc., et al. v.
United States and Weeks Marine, Inc., Civil Action No. 4:11-00532
(S.D. Tex. 2014), Docket Entry No. 196.
See Judgment for Contribution, Contango Operators, Inc. ,
et al. v. United States and Weeks Marine, Inc., Civil Action
No. 4:11-00532 (S.D. Tex. 2014), Docket Entry No. 197.
After paying its share of the judgment, 5 Weeks Marine filed a
Contracting Officer denied the claim, 7 and Weeks Marine filed this
action seeking indemnity against the United States. 8
then filed the pending cross-motions
summary judgment 9 and
responses in opposition. 10
Summary Judgment Standard
Plaintiff Weeks Marine, Inc.'s Memorandum of Law in Support
of Motion for Summary Judgment ("Plaintiff's Memorandum in Support
of MSJ"), attached to Plaintiff's MSJ, Docket Entry No. 19-1,
See Weeks Marine,
Inc.'s Certified Claim Against the
United States Army Corps of Engineers, Exhibit B to Defendant's
MSJ, Docket Entry No. 20-4, p. 12.
See Contracting Officer's Final Decision,
Plaintiff's MSJ, Docket Entry No. 19-11, p. 7.
See Plaintiff's Verified Original Complaint, Docket Entry
No. 1. After a contractor's claim is denied by the Contracting
Officer, the contractor may bring a claim arising out of a maritime
contract in a district court. 41 U.S.C. § 7102(d); see Bethlehem
Steel Corp. v. Avondale Shipyards, Inc., 951 F.2d 92, 94 (5th Cir.
1992) (describing Section 7102 (former Section 603) as "rather than
completely excluding maritime contracts from the Contract Disputes
Act, simply vests appeals from the administrative determination of
claims in the district courts, rather than in the Court of Claims
or the Court of Appeals for the Federal Circuit").
See Plaintiff's MSJ,
Docket Entry No. 20.
Docket Entry No.
19; Defendant's MSJ,
See The United States' Response to Weeks Marine's Motion for
Summary Judgment, Docket Entry No. 21; Plaintiff Weeks Marine,
Inc.'s Memorandum of Law in Opposition to the United States of
America's Motion for Summary Judgment, Docket Entry No. 22.
Summary judgment is warranted if the movant establishes that
there is no genuine dispute about any material fact and that it is
entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510
Material facts are those facts
outcome of the suit under the governing law."
"might affect the
A genuine issue
such that a
reasonable trier of fact could resolve the dispute in the nonmoving
Id. at 2511.
Where, as here, both parties have moved for summary judgment,
both "motions must be considered separately, as each movant bears
the burden of establishing that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law."
Shaw Constructors v.
ICF Kaiser Engineers,
538-39 (5th Cir. 2004).
395 F.3d 533,
The movant must inform the court of the
basis for summary judgment and identify relevant excerpts from
pleadings, depositions, answers to interrogatories, admissions, or
Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553
(1986); see also
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).
judgment on the basis of an
affirmative defense, "it must establish beyond dispute all of the
defense's essential elements."
Bank of Louisiana v. Aetna U.S.
Healthcare Inc., 468 F.3d 237, 241
(5th Cir. 2006).
may also meet its initial burden by pointing out that the plaintiff
has failed to make a showing adequate to establish the existence of
an issue of material fact as to an essential element of plaintiff's
Celotex Corp., 106 S. Ct. at 2552.
its initial burden,
If the movant satisfies
the burden shifts to the nonmoving party to
admissions on file, or other evidence that summary judgment is not
warranted because genuine fact issues exist.
Celotex Corp., 106
s. Ct. at 2552.
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
or weigh the
Sanderson Plumbing Products,
and it may not make
120 S. Ct. 2097, 2110
But conclusory claims, unsubstantiated assertions, or insufficient
evidence will not satisfy the nonmovant's burden.
the nonmovant fails
to present specific evidence
showing there is a genuine issue for trial,
Wallace, 80 F.3d
summary judgment is
954 F.2d 1125,
To prevail on its Motion for Summary Judgment Weeks Marine
must establish as a matter of law that the United States is liable
to it for the damages Weeks Marine paid to Contango.
See Fed. R.
The United States may prevail on its motion by
showing that there is an absence of evidence to support liability.
See Celotex, 106 S. Ct. at 2664.
Weeks Marine's Motion for Summary Judgment
In its Motion for Summary Judgment Weeks Marine argues that
the United States is liable to Weeks Marine for $5,900,897.55, the
it paid to satisfy Contango's
argues that the collateral estoppel effect of the court's finding
in the Underlying Litigation makes the United States liable to
Weeks Marine for breach of contract and negligence. 12
its response to the United States'
Motion for Summary Judgment
contractual indemnification, " 13 however its claim is characterized,
the different terminology amounts to the same claim -- Weeks Marine
seeks to be reimbursed by the United States for the $5,900,897.55
it paid to Contango because of its own negligence.
Weeks Marine Is Not Entitled to Summary Judgment on Its
See Plaintiff's Memorandum in Support of MSJ, attachment 1 to
Plaintiff's MSJ, Docket Entry No. 19-1, p. 14.
Id. at 10-12.
Plaintiff Weeks Marine,
Inc. 's Memorandum of Law in
Opposition to the United States of America's Motion for Summary
Judgment, Docket Entry No. 22, p. 1.
The court previously held that Weeks Marine's cross-claim
against the United States arose out of a contractual relationship
between Weeks Marine and the Corps. 14
Any claim that the USA was negligent for failing to
inform Weeks Marine about the pipeline is essentially
If the USA breached a duty by failing to
include information in the contract, such a duty would be
based in the contractual relationship, and a breach would
have occurred by a failure to include the information in
the contract. Any claim that the USA was negligent for
failing to inform Weeks Marine about the pipeline after
the contract was signed similarly would involve a duty
based in the contract -- even if other duties might be
implicated as well
and a breach consisting of a
failure to supply information that should have been
included in the contract.
Any claim that the USA was negligent in the
information provided in its solicitation for bids is
essentially contractual. The solicitation for bids was
a solicitation to enter into a contract. As the court in
A & S Council held, the fact that such alleged conduct
occurred before the contract was entered into does not
alone make the claim noncontractual. 56 F.3d at 240-41.
Any claim that the USA was negligent in the NOAA
navigational charts that the USA provided to Weeks Marine
is also essentially contractual.
These charts were
provided to Weeks Marine so that Weeks Marine could carry
out the promises it made to the USA in the contract.
government  involves issues of contract interpretation
-- the question of whether the USA had an obligation to
inform Weeks Marine of the pipeline (a) in the contract,
(b) in the solicitation for bids for the contract, or
(c) in any charts given to Weeks Marine so that it could
perform under the contract, and the question of whether
the USA failed to fulfill any of those obligations. On
Memorandum Opinion and Order, Contango Operators
et al. v. United States and Weeks Marine
Inc. , Civil Action
No. 4:11-00532 (S.D. Tex. 2014), Docket Entry No. 34, pp. 4-7.
these facts, arguing that the USA was negligent in not
informing Weeks Marine about the location of the pipeline
is inextricably bound up in arguing that the USA breached
a contractual duty to inform Weeks Marine about the
The CDA establishes a method for resolution of "each claim by
"[w]hen the [CDA]
applies, it provides the exclusive mechanism for dispute resolution
Trader Properties, LLC v. United States,
2015 WL 1208983, at *2
(S.D. Tex. March 16,
50 F.3d 1014,
(quoting Dalton v.
Sherwood Van Lines,
(Fed. Cir. 19 9 5) ) .
"In order to determine whether the CDA applies,
federal courts generally look to whether the dispute at issue is
one of contract . . . Effective enforcement of the jurisdictional
limits of the CDA mandates that courts recognize contract actions
that are dressed in tort clothing."
United States v. J&E Salvage
Co., 55 F.3d 985, 987-88 (4th Cir. 1995).
Weeks Marine has a claim
for breach of contract under the CDA, it does not have a negligence
Weeks Marine is therefore not entitled to summary judgment
on its negligence claim.
Weeks Marine Is Not Entitled to Summary Judgment on Its
Breach of Contract Claim
Memorandum Opinion and Order, Contango Operators, Inc. ,
et al. v. United States and Weeks Marine, Inc., Civil Action
No. 4:11-00532 (S.D. Tex. 2014), Docket Entry No. 34, pp. 8-11.
indemnity under the analysis of Michigan Wisconsin Pipeline Co. v.
551 F. 2d 945
detailed discussion of the opinion.
Two Fifth Circuit decisions involving damages to
pipelines are instructive in identifying the duties of
defendants in this case. Michigan Wisconsin Pipeline v.
Williams-McWilliams, 551 F.2d 945 (5th Cir. 1977),
involved an allision between a dredge and a pipeline.
The pipeline had been constructed pursuant to a permit
from the Corps of Engineers, but the specifications
attached to the dredger's government contract did not
show the pipeline crossing the area to be dredged.
F. 2d at 948.
The contract also contained two "site
inspection clauses" in which the dredger agreed to take
steps "reasonably necessary to ascertain the nature and
location of the work and the general and local conditions
which can affect the work and the cost thereof" and to
"acknowledge that he ha [d] investigated and satisfied
himself as to the conditions affecting the work." Id. at
949 (internal quotation marks omitted).
accident the pipeline owner sued the dredger for damages.
Id. at 947. The dredger filed a third-party complaint,
arguing that the United States was at fault for providing
specifications that failed to show the pipeline. Id. at
The district court in Michigan Wisconsin found in
favor of the pipeline owner and against the dredger, and
dismissed the dredger's third-party complaint.
Affirming the judgment against the dredger and reversing
the dismissal of the complaint against the United States,
the Fifth Circuit held the United States may be held
liable where it has "by a prolonged course of conduct
[led] a contractor to expect that when certain kinds of
material structures are present in an area in which a
contract is to be performed that the structures will be
shown on the specifications drawings." Id. at 951. The
court held that "the absence of a depiction" of a
"representation" on which a dredger-contractor was
entitled to rely, "given a prolonged course of conduct
justifying contractor reliance on the [United States]
providing this information one way or the other in
specifications drawings." Id. (internal quotation marks
The court concluded that the Corps' regular
practice of depicting pipelines on the specifications
attached to dredging contracts amounted to such a course
Id. at 952-53.
Moreover, the court held
that "government contractors .
. are not obligated to
make an independent investigation" into the accuracy of
"positive assertions" made by the United States. Id. at
The court summarily rejected the United States'
attempt to exculpate itself by virtue of the "site
inspection clauses," reasoning that such provisions do
United States' representations.
Contango Operators, 9 F. Supp. 3d at 741-42.
The court explained
Weeks Marine contends that under Michigan Wisconsin
and Hollerbach v. United States, 233 U.S. 165, 49 Ct. Cl.
686, 34 S. Ct. 553, 58 L. Ed. 898 (1914), it was
obligated to accept the government's representations in
the dredging contract as true and therefore had no duty
to Contango to consult updated charts prior to the date
of the allision.
Weeks Marine argues that it is
therefore entitled to indemnity from the United States
for any liability imposed on it because of its sole
reliance on the contract. The court finds both Michigan
Wisconsin and Hollerbach to be distinguishable from the
facts of this case.
Weeks Marine argues
that under Michigan
Wisconsin it was "obliged by the law to accept the
[g] overnment' s warranty regarding the number of pipelines
Weeks Marine points to the Supreme Court's
language in Hollerbach that the government's representations "must be taken as true and binding upon the
government," 34 S. Ct. at 556, to argue that it was
obliged by law to accept the government's representations
in the contract as true.
The court does not interpret
this language to mean that Weeks Marine was required to
accept the contract specifications as true even when it
had ready access to contrary and more recent information
from the government.
Cf. D.F.K. Enterprises, Inc. v.
United States, 45 Fed. Cl. 280, 285 (Fed. Cl. 1999)
("Without some valid basis for a contrary conclusion
(e.g., an absence of detrimental reliance by a government
contractor, or a failure to investigate sources which
would have revealed the truth), the government 'is liable
for damage attributable to misstatements of fact (in a
contract or specifications) which are representations
made to the contractor.'" (quoting Summit Timber Co. v.
677 F.2d 852, 857 [, 230 Ct. Cl. 434] (Ct. Cl.
[ . . . ] Important for purposes of applying Michigan
Wisconsin to this case is the fact that in Michigan
Wisconsin neither NOAA nor the Coast Guard had issued
charts or announcements that identified the ruptured
pipeline prior to the allision.
Here, NOAA charts and
LNMs identifying Contango's pipeline were readily
available to Weeks Marine employees before the allision.
The court has already concluded that given the
significant damage that could result from striking a
pipeline, the availability of current pipeline data, and
the ease of accessing such data, it was unreasonable for
Weeks Marine to rely solely on pipeline information
provided earlier in the contract specifications.
3d at 749-50. 16
The court again
concludes that the holding of Michigan Wisconsin does not entitle
Weeks Marine to indemnity against the United States.
Weeks Marine seeks to revive its argument for relief under
Michigan Wisconsin by citing the Fifth Circuit's statement in the
Underlying Litigation that "[i]f Weeks were maintaining a crossclaim against the government, the government would be liable if the
specifications were a representation on which Weeks was justified
Inc., 613 F. App'x 281, 285 (5th Cir. 2015).
Weeks Marine argues
that this statement affirmatively establishes that it is entitled
to recover from the United States the $5, 900, 897.55 it paid to
The court is not persuaded by this argument.
essential to the Fifth Circuit's holding.
following the statement on which Weeks Marine relies,
Circuit stated that "we have no occasion to consider that question,
Id. at 285.
Weeks Marine argues that its action against the United States
meets all the requirements of Michigan Wisconsin because the Corps'
omission was a positive assertion, Weeks Marine justifiably relied
on the positive assertion, and the absence of the pipeline in the
contract was a proximate cause of Contango's injury.
The omission of the pipeline by the Corps may have been
a positive assertion and was one cause of Contango's injury, but as
the court previously held, Weeks Marine did not "justifiably" rely
Weeks Marine possessed information about
pipeline that it could have used to avoid striking the pipeline.
In the Underlying Litigation the court held, and the Fifth Circuit
No. 19-1, p. 14.
affirmed, that "it was unreasonable for Weeks Marine to rely solely
contract specifications and dredging contract .
Operators, 9 F. Supp. 3d at 745.
The court held that "regardless
of whether the Corps' practice of identifying pipelines constituted
a 'prolonged course of conduct,' see Michigan Wisconsin, 551 F.2d
at 951, Weeks Marine's sole reliance on information provided by the
Corps did not satisfy its duty in this case to exercise reasonable
care in its dredging operations." 19
3d at 745. 20
Contango Operators, 9 F. Supp.
The holding of Michigan Wisconsin does not entitle
Weeks Marine to summary judgment against the United States.
The United States' Motion for Summary Judgment
The United States argues that indemnification is not available
under the contract between Weeks Marine and the United States 21 and
Id. at 16.
Moreover, although the absence of the pipeline in the Corps'
documents was a proximate cause of the damages caused by the Corps
to Contango, Weeks Marine was liable to the Corps because its own
negligence proximately caused damages to Contango apart from the
See Memorandum of Law in Support of the United States of
America's Motion for Summary Judgment, attachment 1 to Defendant's
MSJ, Docket Entry No. 20-1, p. 7.
that under the contract Weeks Marine is responsible for its own
Under maritime law one party may agree to indemnify the other,
"a contract of indemnity will not afford protection to an
indemnitee against the consequences of his own negligent act unless
the contract clearly expresses such an obligation in unequivocal
Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 (5th
In United States v.
(1970), the Court held that "a contractual provision should not be
construed to permit an indemnitee to recover for his own negligence
unless the court is firmly convinced that such an interpretation
reflects the intention of the parties."
contains a provision entitled "Permits and Responsibilities," which
states "[t]he Contractor shall also be responsible for all damages
to persons or property that occur as a result of the Contractor's
fault or negligence." 23
This is an express contractual undertaking
nclause 52.236-7, Contract, Exhibit A, Defendant's MSJ, Docket
Entry No. 20.
This provision is nearly identical to the one at
issue in Seckinger. See Seckinger, 90 S. Ct. at 881 (analyzing the
provision in a fixed-price government construction contract that
stated that the private contractor "shall be responsible for all
damages to persons or property that occur as a result of his fault
or negligence .
therefore precluded by its contract from recovering its portion of
the judgment from the United States.
The court found Weeks Marine negligent and responsible for 40%
of Contango's damages.
The contract between Weeks Marine and the
Corps therefore provides no basis for Weeks Marine's claim that it
is entitled to indemnity from the United States for the damages
caused to Contango by Weeks Marine's negligence.
Nor has Weeks
Marine identified any other rule of law that would entitle it to be
indemnified by the United States.
The United States' Motion for
Summary Judgment will therefore be granted.
Conclusion and Order
Motion for Summary Judgment
(Docket Entry No. 19)
is DENIED, and
Judgment (Docket Entry No. 20) is GRANTED.
SIGNED at Houston, Texas, on this 31st day of October, 2017.
UNITED STATES DISTRICT JUDGE
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