Argos Ports (Houston) LLC v. Kirby Inland Marine, LP et al

Filing 155

MEMORANDUM OPINION AND ORDER denying 112 Brief Supporting Motion to Dismiss and 115 Amended Motion to Dismiss, denying 113 Opposed MOTION for Separate Trial (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
May 02, 2019

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ARGOS PORTS (HOUSTON) LLC,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
KIRBY INLAND MARINE, LP and
GREENS BAYOU FLEETING, LLC,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-18-0327

MEMORANDUM OPINION AND ORDER

Pending before the court are Third Party Defendant Terral
River Service,
Dismiss

Inc.'s Brief Supporting Rule 12(b) (6)

(Docket Entry No.

112)

Amended Motion to Dismiss

and Terral River Services Inc.'s

(Docket Entry No.

"Terral River's Motion to Dismiss")
Inc.'s Motion for
Separate Trials")
I.

Kirby
facility
Terminal")

Inland

located

Separate Trials

115)

(collectively,

and Terral River Service,
("Terral

River's Motion for

(Docket Entry No. 113).
Factual and Procedural Background

Marine,
along

the

LP

("Kirby")

Greens

owns

Bayou

a

channel

barge-fleeing
(the

"Kirby

where it maintains a fleet of barges owned by third-

parties including Ceres Barge Plan,
Company

Motion to

("Ingram" ) ,

Marquette

LLC

("Ceres"),

Transportation

Ingram Barge
Company,

LLC

("Marquette") ,

and Terral River Services,

(collectively,

the "Barge Owners") . 1

landfall,
Terminal. 2

approximately
Argosy Barge

71

barges

Lines,

Inc.

("Terral River")

When Hurricane Harvey made
were

moored

at

the

Kirby

LLC and Argosy Transportation

Group, Inc. (collectively, "Argosy")

also maintained a barge fleet

in Greens Bayou (the "Argosy Terminal") that was located upstream
from the Kirby Terminal. 3

During the passage of Hurricane Harvey

over Houston,

four barges broke free from the Argosy Terminal. 4

Kirby alleges

that Argosy's

breakaway barges

caused damage

to

barges and equipment at the Kirby Terminal, ultimately resulting in
71

barges

moorings. 5

from

the

Kirby

Terminal

breaking

free

from

their

Kirby's unmoored barges then traveled downstream on

Greens Bayou causing some barges to be partially capsized, fully
capsized, or pinned down by other barges. 6

Some of Kirby's barges

also allided with Argos Ports (Houston) LLC ("Argos") 's facility.

7

Ultimately, the collisions of the barges in Greens Bayou resulted
Complaint
("Argos's
See
Second Amended
and
Restated
Complaint"), Docket Entry No. 136, pp. 2-3; First Amended ThirdParty Complaint of Kirby Inland Marine, LP ("Kirby's Third-Party
Complaint"), Docket Entry No. 139, p. 5.
1

2

See Argos's Complaint, Docket Entry No. 136, p. 3.

3

See Kirby's Third-Party Complaint, Docket Entry No. 139, p. 6.

5

See id. at 6-8.

6

See id. at 7.

7

See Argos's Complaint, Docket Entry No. 136, p. 3.
-2-

in the Greens Bayou channel becoming impassable. 8

The

"damming

effect" caused by the sunken barges caused flooding and further
destruction to facilities along the Greens Bayou channel, including
Argos's facility.

9

After the breakaway of Kirby's fleet, Kirby engaged a salvage
company, T&T Salvage, LLC ("T&T Salvage")

to formulate a salvage

plan and commence salvage operations on all of the affected barges
in

the

Ingram,

Greens

Bayou

Marquette,

channel,

including

and Terral River.

10

those

owned

by

Ceres,

T&T Salvage conducted a

salvage operation that took approximately 70 days and cost more
than $7, 700, 000. 11

Kirby paid T&T Salvage for its services . 12

All

salvage rights that T&T Salvage possessed against the owners of the
barges were assigned to Kirby by T&T Salvage. 13
This action was initially brought by Argos against Kirby and
Greens Bayou Fleeting, LLC ( "GBF") alleging that Kirby and/or GBF' s
negligence was responsible for the damages its facility sustained
during

the

8

After

Kirby

filed

its

answer

to

Argos's

See id.

9

storm. 14

See id.

10

See Kirby's Third-Party Complaint, Docket Entry No. 139, p. 8.

11

See id.

12

See id.

13

See id.

14

See Complaint, Docket Entry No. 1.
-3-

Complaint,

Kirby

filed

a

Third-Party

Complaint

against

Argosy

asserting that Argosy's own negligence caused Argosy's barges to
break free during the storm and travel downstream,
barges in the

~irby

impacting the

Terminal and causing them to become unmoored,

resulting in the ultimate allision of Kirby's barges with Argos's
facility . 15

Argos subsequently amended its complaint to add claims

against Argosy. 16

Kirby's Third-Party Complaint also alleged that

the Barge Owners owe Kirby a

salvage award for rescuing their

barges after they were damaged during the storm. 17

The Barge Owners

each filed counterclaims against Kirby and cross-claims against
Argosy claiming that Kirby and/or Argosy's negligence caused the
damage sustained by their barges. 18

Argosy subsequently filed a

15

See Kirby's Third-Party Complaint,
pp. 8-9.
16

Docket Entry No.

139,

See Argos's Complaint, Docket Entry No. 136.

17

See Kirby's Third-Party Complaint,
pp. 10-12.
18

Docket Entry No.

139,

See Ceres Consulting L.L.C.'s Answer to Original Third Party
Complaint of Kirby Inland Marine, LP, Counterclaim Against Kirby
Inland Marine, LP and Crossclaim Against Greens Bayou Fleeting,
LLC, Argosy Barge Lines, LLC and Argosy Transportation Group, Inc.
("Ceres' Answer/Counterclaim/Crossclaim"), Docket Entry No. 32;
Marquette Transportation Company, LLC's Answer to Original Third
Party Complaint of Kirby Inland Marine, LP, Counterclaim Against
Kirby Inland Marine, LP and Crossclaim against Greens Bayou
Fleeting, LLC, Argosy Barge Lines, LLC and Argosy Transportation
Group, Inc. ("Marquette's Answer/Counterclaim/Crossclaim"), Docket
Entry No. 40; Ingram Barge Company's Answer and Affirmative
Defenses to Kirby Inland Marine, LP's Third-Party Complaint, CrossClaim,
and Counterclaim ("Ingram's Answer/Counterclaim/Crossclaim"), Docket Entry No. 28; and Terral River Services Inc.'s
Answer/Counter
Claim/Cross
Claim
("Terral
River's
Answer/
Counterclaim/Cross-claim"), Docket Entry No. 58.
-4-

fourth-party complaint against several towing companies and vessels
alleging that the breakaway of the Argosy fleet was caused by the
fourth-party defendants' negligence. 19
brought

into

this

action

by

The fourth-party defendants

Argosy

include

Crosby

Marine

Transportation, LLC ("Crosby Marine") and E Squared Marine Service,
( "E Squared" ) , among others . 20

L. L. C.

In its Motion to Dismiss,

Terral River argues that Kirby's

claims against Terral River should be dismissed because Terral
River does not owe any salvage award to Kirby as a matter of law.
Terral River also requests that the court hold separate trials for
Kirby's

salvage claims against

the Barge Owners and the

fleet

breakaway liability claims composing the rest of this action.

For

the reasons explained below, Terral River's Motion to Dismiss and
Terral River's Motion for Separate Trials will both be denied.
II.

Terral River's Motion to Dismiss

Terral River moves to dismiss Kirby's salvage claim, arguing
that

Kirby

is

contracted with

not

entitled

T&T Salvage

to

a

for

salvage

award

T&T Salvage

to

because
rescue

Kirby
Terral

River's barges and Terral River did not agree to the contract.
Kirby disagrees,

arguing that its voluntary acts rescued Terral

River's barges from a marine peril,

19

entitling Kirby to a salvage

See Argosy Defendants' First Amended Fourth-Party Complaint,
Docket Entry No. 65, pp. 5-8.
20

See id. at 2-3.
-5-

award under both general maritime law and the Salvage Convention of
1989 (the "Salvage Convention") . 21
A.

Standard of Review
The Federal Rules of Civil Procedure permit dismissal when

a

plaintiff fails to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b) (6).

A Rule 12(b) (6) motion tests the formal

sufficiency of the pleadings and is "appropriate when a defendant
attacks

the

complaint

cognizable claim."

because

Ramming v.

it

fails

to

United States,

state

a

legally

281 F.3d 158,

161

(5th Cir. 2001), cert. denied sub nom., Cloud v. United States, 122
S. Ct.
must

2665

plead

(2002).
"enough

To defeat a motion to dismiss,
facts

plausible on its face."
S. Ct. 1955, 1974 (2007).

to

state

a

claim

to

a plaintiff

relief

that

is

Bell Atlantic Corporation v. Twombly, 127
In ruling on a Rule 12(b) (6) motion, the

court must "accept the plaintiff's well pleaded facts as true and
view them in the light most favorable to the plaintiff."
v.

State Farm Fire & Casualty Co.,

495 F.3d 232,

237

Chauvin
(5th Cir.

2007) .

21

See Kirby Inland Marine, L. P. 's Brief in Opposition to ThirdParty Defendant Terral River Service, Inc.'s Rule 12(b) (6) Motion
to Dismiss ("Kirby's Response to Terral River's MTD"), Docket Entry
No. 129, p. 15; Kirby's Third-Party Complaint, Docket Entry
No. 139, pp. 10-12. Kirby acknowledges that the Salvage Convention
"did not change the general requirements for a salvage claim." See
Kirby's Response to Terral River's MTD, Docket Entry No. 129,
p. 15. The court will therefore apply general maritime law without
conducting a separate analysis under the Salvage Convention.
-6-

B.

Applicable Law

"An award of salvage is generally appropriate when property is
successfully and voluntarily rescued from marine peril."

Margate

Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir. 1998)
(citing The Sabine,

101. U.S.

"peculiar to maritime law,
common law."

Id.

384,

384

(1880)).

This

rule

is

and utterly at variance with terrene

"Because of the peculiar dangers of sea travel,

public policy has long been held to favor a legally enforced reward
in this limited setting,

to promote commerce and encourage the

preservation of valuable resources for the good of society."
Courts recognize two types of salvage:
and pure salvage.

Id.

contractual salvage

To determine that a pure salvage was performed,

a court must find three specific elements:

"marine peril; service

voluntarily rendered, not required by duty or contract; and success
in whole or in part, with the services rendered having contributed
to such success."

B.V. Bureau Wijsmuller v.

F. 2d 333, 338 (2d Cir. 1983)

United States,

702

(citing The Sabine, 101 U.s. at 384) .

The marine peril "must be present and impending, although it need
not be immediate or absolute."
rendered voluntarily,

Id.

As long as the service was

the motive of the salvor is irrelevant --

salvors who perform services with the expectation of monetary gain
may claim salvage awards.

Id. at 338-39.

also contributed to an ultimate success

The salvor must have
--

lack of

success

in

rescuing the imperiled vessel precludes the granting of a salvage
award.

Id. at 339.

If the court finds that the three elements of
-7-

pure salvage are met, the court will apply the factors articulated
in The Blackwall, 77 U.S. 1 (1869), to determine the value of the
salvage award:
the vessel;

(1) the labor expended by the salvors in salvaging

(2)

the promptitude,

rendering the service;

(3)

skill,

and energy employed in

the value of the property employed by

the salvors in rendering the service, and the danger to which such
property was exposed;

( 4)

the risk incurred by the salvors in

rescuing the property from the marine peril;
property

saved;

and

(6)

property was rescued.

the

degree

of

(5) the value of the

danger

from

which

the

Id. at 14.

A contractual salvage,

on the other hand,

is the "type of

salvage service entered into between the salvor and the owners of
the imperiled property,

or by their respective representatives,

pursuant to an agreement,

written or oral,

fixing the amount of

compensation to be paid whether successful or unsuccessful in the
enterprise."

3A Benedict on Admiralty

§

159 (2019).

The Supreme

Court explained in The Camanche that "nothing short of a contract
to pay a given sum for the services to be rendered, or a binding
engagement to pay at all events, whether successful or unsuccessful
in the enterprise, will operate as a bar to a meritorious claim for
salvage."

75

U.S.

448,

Development Driller I,

587

477

(1869);

F.3d 266,

see
271

also

Solana

(5th Cir.

v.

2009).

GSF
A

contract for salvage can therefore serve as a defense to a pure
salvage claim.
Cir. 1998).

Evanow v. M/V Neptune,

163 F.3d 1108, 1115

(9th

The existence of a contract for salvage or to provide
-8-

services

to

voluntariness
performed.

a

distressed

required

for

vessel
a

precludes

finding

that

a

the

pure

necessary

salvage

was

Joseph v. J.P. Yachts, LLC, 436 F. Supp. 2d 254, 266

(D . Mass . 2 0 0 6 ) .
A salvor may seek a

salvage award through an in personam

action against the owner of the vessel or an in rem action against
the vessel itself.

The Sabine, 101 U.S. at 386 ("Suits for salvage

may be in rem against the property saved or the proceeds thereof,
or in personam against the party at whose request and for whose
benefit the salvage service was performed.")

Salvage awards are

typically enforced through maritime liens.

See id. at 386.

"By

performing a voluntary and successful act,

the salvor obtains a

maritime lien on the salved property, which he can enforce in rem
in an admiralty court."

Adams v. Unione Mediterranea Di Sicurta,

220 F.3d 659, 670 (5th Cir. 2000)
C.

(internal quotations omitted).

Analysis

Terral River is the owner of some of the barges rescued by T&T
Salvage pursuant to its contract with Kirby during the Greens Bayou
cleanup.

All

salvage

assigned to Kirby.
entitled to a

22

rights

held

by

T&T

Salvage

were

fully

Kirby is the only party who claims that it is

salvage award:

Kirby argues

in its Third-Party

Complaint that it "is entitled to recover the cost of salvage of

22

p. 10

See Kirby's Third-Party Complaint,
36.

~

-9-

Docket Entry No.

139,

the barges from Ceres,

Ingram, Marquette, and Terral River under

the law of marine salvage as well as the Salvage Convention of 1989
because it successfully rescued the barges from marine peril. " 23
Kirby's

claim sounds

in pure

salvage,

rather

than contractual

salvage.
Terral River argues that because Kirby hired T&T Salvage to
rescue

Terral

River's

barges,

this

case

involves

a

"contract

salvage," barring Kirby from seeking a pure salvage award from
Terral River.

It is undisputed that T&T Salvage did not act as a

volunteer in salvaging Terral River's barges.

T&T Salvage was

contracted by Kirby to rescue and clean up the barges and was paid
by Kirby for the services it performed.

Terral River did not have

a contractual relationship with Kirby that created any duty for
Kirby to salvage Terral River's barges.

Nor was Terral River a

party to the contract between Kirby and T&T Salvage.

General

maritime law on contractual salvage contemplates a contract running
between the owner of the property to be salvaged (or the owner's
representative) and the salvor.

No such contract existed between

the Barge Owners and T&T Salvage or Kirby that would give either
T&T Salvage or Kirby the right to claim a contractual salvage award
from

the

Barge

Owners.

Because

relationship among Terral River,

there

Kirby,

was

no

contractual

and/or T&T Salvage that

would give rise to a claim for contractual salvage under general

-10-

maritime law, Kirby does not have a claim for contractual salvage
against Terral River.
Terral River argues that Kirby Marine's contract with T&T
Salvage prevents the court from finding that Kirby acted with the
requisite voluntariness for a pure salvage award.

However, Terral

River's arguments presuppose that Kirby's only salvage rights in
this case come from the assignment from T&T Salvage.

To determine

if Kirby has a cognizable salvage claim against Terral River, the
court must determine whether Kirby-'s actions satisfied the elements
of pure salvage.

Terral River does not contest that its barges

were in "marine peril" after the fleet breakaway.

Nor does Terral

River contest that the salvage operation was ultimately successful
in rescuing Terral River's barges.

Terral River only argues that

Kirby is not able to prove that the services performed by Kirby
(and T&T Salvage) were

render~d

voluntarily.

Few courts have addressed similar facts.

In Lewis v.

JPI

Corporation, No. 07-20103-CIV, 2009 WL 3761984 (S.D. Fla. Nov. 9,
2009),

Theresa and Clive Lewis saw a boat taking on water,

and

Clive boarded the vessel and found that an air-conditioning hose
had detached.

Id. at *1.

inflow of water.

He reattached the hose and stopped the

Id. at *2.

He subsequently called a company to

pump the water from the leak out of the boat.

Id.

the boat paid the cost of the pump-out to the Lewises.

The owner of
Id. at *2.

The court concluded that because the marine peril ended after the
man stopped the leak,

the salvage award owed to the couple would
-11-

not include the pump-out the next morning since the vessel was no
longer in distress when the pump-out was performed.
However,

the

court did not

rule

out

Id. at *4.

the possibility that

the

salvage award owed to the Lewises could have included the pump-out
had the vessel still been in distress the next morning, even though
the Lewises paid someone else to perform that service.

See id.

Kirby's salvage claims against the Barge Owners are unusual.
Typical

maritime

salvage

claims

are

brought

by

salvors

who

themselves ventured into a marine peril to render assistance to a
troubled vessel.

Here,

Kirby

perform the actual rescue,

contracted with T&T

Salvage

to

likely because it was not capable of

salvaging the distressed barges on its own.

Although Kirby did not

venture out into peril to rescue Terral River's barges, Kirby acted
voluntarily in contracting T&T Salvage to rescue Terral River's
barges.

Terral River admits that Kirby had no obligation to save

Terral River's barges.

Kirby's motive in saving the barges is

irrelevant to whether Kirby has stated a plausible claim for pure
maritime salvage -- courts have long recognized that a salvor can
rescue a vessel in marine peril with the motivation of ultimately
achieving payment in return. 24

See B. V. Bureau Wij smuller, 702 F. 2d

24

Crosby Marine filed briefing in support of Terral River's
Motion to Dismiss.
See Crosby Marine Transportation, LLC' s
Memorandum in Support of Terral River Service, Inc.'s 12 (b) (6)
Motion to Dismiss, Docket Entry No. 123, p. 2.
Crosby Marine
argues that Kirby is barred from recovery (1) by the application of
the pure economic loss doctrine articulated in Robins Dry Dock &
Repair Co. v. Flint, 48 S. Ct. 134 (1927), and (2) because the
(continued ... )
-12-

at 339 ("Whatever motive impels the true volunteer, be it monetary
gain, humanitarian purposes or merely error,

it will not detract

from the status accorded him by law.")
While the salvage services rendered by Kirby are not those
traditionally contemplated by general maritime law,

Terral River

points to no precedent precluding a finding of voluntariness when
a salvor contracts with an agent to perform the salvage service on
the salvor's behalf.

The court need not decide what effect Kirby's

agreement with T&T Salvage will have on any salvage award Kirby may
ultimately obtain, since that issue is not before the court.

The

court need only decide whether Kirby's Third-Party Complaint states
a plausible claim for pure maritime salvage against Terral River.
Because the existence of Kirby's contract with T&T Marine does not
preclude Kirby from asserting a pure salvage claim against Terral
River and the other Barge Owners as a matter of law, Terral River's
Motion to Dismiss will be denied.

III.

Motion for Separate Trials

Terral River argues that this action involves two separate
issues

that

should

be

separated

24

into

two

trials:

one

trial

( • • • continued)
payment to T&T Marine was voluntary and made without consideration
under Texas law.
Robins Dry Dock is not applicable.
General
maritime law allows Kirby to recover a salvage award from Terral
River if the elements of pure salvage are met -- a claim for pure
salvage does not require that Kirby have suffered "physical damage
to a proprietary interest."
Crosby Marine's second argument is
also unpersuasive because this case is governed by general maritime
law, rather than Texas contract law.

-13-

resolving liability for the fleet breakaways, and another resolving
the salvage claims made by Kirby against the Barge Owners in it's
Third-Party

Complaint.

opposing Terral

Several

River's

Motion

parties

for

have

Separate

filed

Trials,

briefing
including

Ingram, Marquette, and Ceres -- the three other similarly situated
Barge Owners. 25
A.

Standard of Review and Applicable Law

A district court has discretion to order separate trials of
one

or

more

claims

or

issues

"[f]or

convenience,

prejudice, or to expedite and economize."
The

Fifth

appropriate,

Circuit

has

the

cautioned

"issue

to

be

that

tried

to

avoid

Fed. R. Civ. P. 42(b).
for

bifurcation

[separately]

must

to

be

be

so

distinct and separable from the others that a trial of it alone may
be had without injustice."

Swofford v. B & W, Inc., 336 F.2d 406,

25

See Ingram Barge Company's Opposition to Terral River
Service, Inc.'s Motion for Separate Trials, Docket Entry No. 120;
Response of Marquette Transportation Company, LLC and Ceres
Consulting L.L.C. to Terral River Service, Inc.'s Motion for
Separate Trials Under Rule 42(b), Docket Entry No. 126.
In addition to the other barge owners, Kirby, Argosy, Crosby
Marine, and E Squared have also filed briefings opposing Terral
River's Motion for Separate Trials.
See Kirby Inland Marine,
L.P.'s Brief in Opposition to Third-Party Defendant Terral River
Service, Inc.'s Motion for Separate Trials Under Rule 42 (b) , Docket
Entry No. 122; Argosy Defendants' Memorandum in Opposition to
Terral River Services' Motion for Separate Trials, Docket Entry
No. 121; Crosby Marine Transportation, LLC's Memorandum in
Opposition to Terral River Service, Inc. 's Motion for Separate
Trials, Docket Entry No. 124; E Squared Marine Service, LLC' s
Memorandum in Opposition to Terral River Service, Inc.'s Motion for
Separate Trials, Docket Entry No. 130.
-14-

415

(5th

Cir.

1964),

cert.

denied,

85

S.

Ct.

653

(1965).

Separation of issues for separate trials is not the usual course
that should be followed.
F.2d 298,

304

(5th Cir.

McDaniel v. Anheuser-Busch,
1993).

Inc.,

987

The burden falls on the party

seeking separate trials to prove that separation is necessary.
Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 776 F. Supp. 2d
3 7 5, 4 0 2 (S.D. Tex. 2 011) .
B.

Analysis

This action involves a number of overlapping issues that fall
into two loose categories:

(1) claims by multiple parties relating

to liability for damage caused by the various fleet breakaways and
(2) Kirby's salvage claims against the Barge Owners.

After Kirby

brought

Third-Party

the

Barge

Owners

into

this

action

in

its

Complaint, each of the Barge Owners (including Terral River) filed
counterclaims

against

Kirby

and

cross-claims

against

alleging the same claims and factual assertions.

Argosy

For example,

Terral River's Answer/Counterclaim/Cross-Claim alleges both that
Kirby was negligent in failing to secure Terral River's barges,
ultimately causing their breakaway and subsequent damage, and that
Argosy was

negligent

in allowing

its

barges

to

breakaway and

subsequently causing damage to Terral River's barges. 26

The Barge

Owners are parties to both the fleet breakaway liability claims and

26

See Terral Ri.ver Services Inc. 's Amended Motion to Dismiss,
Answer/Counterclaim/Cross Claim, Docket Entry No. 115, pp. 6-9.
-15-

the salvage claims.

Terral River argues that bifurcation of the

fleet breakaway claims and Kirby's salvage claims would allow the
Barge Owners to avoid participating in unnecessary discovery on the
fleet breakaway claims.

The court is not persuaded by Terral

River's arguments.
Common questions of law and fact must be answered to resolve
all of the pending claims.
its

own

counterclaims

Because each of the Barge Owners filed

against

Kirby

(and

cross-claims

against

Argosy), "the Barge Owners will necessarily be involved and have an
interest in the fleet breakaway liability portion of the trial." 27
Separation

of

the

fleet

breakaway

and

salvage

issues

would

therefore require the Barge Owners to participate in (and bear the
costs of litigating) two different lawsuits arising from the same
factual transaction.
being

liable

to

Moreover, while the Barge Owners may end up

Kirby

for

a

salvage

award,

Kirby

may

also

ultimately owe damages to the Barge Owners for damage to their
barges caused by the fleet breakaways.

Terral River's Motion for

Separate Trials will therefore be denied.
IV.

Conclusion

Terral River has failed to demonstrate that Kirby's claim for
pure salvage fails as a matter of law.

27

Terral River has also

See Ingram Barge Company's Opposition to Terral River
Service, Inc.'s Motion for Separate Trials, Docket Entry No. 120,
p. 3.
-16-

failed to carry its burden to show that holding separate trials for
the salvage and fleet breakaway issues is appropriate.

Therefore,

Third Party Defendant Terral River Service, Inc. 's Brief Supporting
Rule 12(b) (6) Motion to Dismiss (Docket Entry No. 112) and Terral
River Services

Inc.'s Amended Motion

to Dismiss

(Docket

Entry

No. 115) are DENIED; and Terral River Service, Inc.'s Motion for
Separate Trials (Docket Entry No. 113) is DENIED.
SIGNED at Houston, Texas, on this the 2nd day of May, 2019.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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