Goodloe Marine, Inc. v. Caillou Island Towing Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GOODLOE MARINE, INC.,

Plaintiff and Counter-

Defendant,

v. Case No: 8:20-cv-679-JLB-AAS

Case No: 8:20-cv-1641-JLB-AAS

CAILLOU ISLAND TOWING

COMPANY, INC., and B.C. TOWING,

INC.,

Defendants and

Counter-Plaintiffs.

ORDER

These consolidated cases arise from the January 22, 2020 sinking of Plaintiff

and Counter-Defendant Goodloe Marine, Inc.’s (“Goodloe”) Dredge, while under tow

by Defendant and Counter-Plaintiff Caillou Island Towing Company, Inc.’s (“CIT”)

Tug in the Gulf of Mexico. Before the Court is Goodloe’s Motion for Partial

Summary Judgment (Doc. 194). CIT has responded, and Goodloe has replied. (Doc.

198; Doc. 201). For the following reasons, Goodloe’s Motion for Partial Summary

Judgment is GRANTED in part and DENIED in part.

FACTS

On January 8, 2020, Goodloe and CIT entered into a Towing Agreement

under which CIT would tow Goodloe’s Dredge and Idler Barge from Port Bolivar,

Texas to Port St. Lucie, Florida or Wilmington, North Carolina. (Doc. 195-1). The

Tug—called the Charles J. Cenac—was owned by B.C. Towing1 and chartered by

CIT. (Doc. 195-3 at 28; Doc. 198-1 at 12; Doc. 195-5 at 7). Goodloe’s Dredge was a

sectional dredge that had at least three feet of linear distance—known as

freeboard—between the waterline and the deck of the dredge when the vessel was

sitting still. (Doc. 195-6 at 4, 9; Doc. 195-4 at 7). Goodloe is owned by Bettie

Goodloe whose husband, Benton Goodloe, is Goodloe’s project manager and general

superintendent. (Doc. 195-2 at 2). Benton Goodloe’s son, Benjamin Goodloe, was

aboard the tow during the journey. (Doc. 194-3 at 35). To avoid confusion, the

Court will refer to each member of the Goodloe family by their full name throughout

this Order.

Prior to the voyage, Goodloe hired Captain Danny Duzich of RJA, Ltd. to

perform a pre-departure Trip in Tow Survey. (Doc. 195-7 at 9, 13; Doc. 195-5 at 8).

Captain Duzich inspected the tow and issued nine recommendations. (Doc. 195-9 at

2–3). Among these recommendations, Captain Duzich stated, “[f]avorable weather

forecast to be obtained prior to departure from Carrabelle, Florida Sea Bouy for

Boca Grande, Florida” and “[i]dentify Ports of Refuge and / or sheltered water,

should weather conditions / sea state exceed three (3) feet during the voyage

segment” during the voyage segment between Carrabelle, Florida and Boca Grande,

Florida. (Id. at 2). Captain Duzich then issued a Trip in Tow Approval Certificate

1 B.C. Towing was initially a party to this action but was terminated after the Court

granted its Motion for Summary Judgment. (See Doc. 101).

to which his recommendations were attached with the intention that the Tug rely

on these recommendations during the voyage. (Doc. 195-5 at 9; Doc. 195-7 at 43).

1. The Beginning of the Voyage

Captain Andrew Adams—who was the captain of the Tug at the beginning of

the voyage—reviewed Captain Duzich’s Trip in Tow recommendations and signed

the Approval Certificate but not the list of recommendations. (Doc. 195-5 at 8–9;

Doc. 195-3 at 32; Doc. 195-10 at 19; Doc. 195-12 at 13–14). The tow commenced on

January 8, 2020, leaving Port Bolivar, Texas around 1:00 p.m. (Doc. 195-5 at 8).

The tow arrived at Port St. Joe, Florida on January 16, 2020. (Id.) There, Captain

Adams was relieved by Captain Roger Taylor, but Captain Adams remained on

board “acting as relief master.” (Id.) Captain Taylor took the tow to Carrabelle,

Florida, and once in Carrabelle, the crew waited for a period of good weather that

would facilitate the portion of the voyage over open water to Boca Grande, Florida.

(Id.)

While in Carrabelle, the crew aboard the Tug was in frequent contact with

Michael Arcement, CIT’s “Human Resources / Safety / Designated Person” who was

at CIT’s headquarters in Houma, Louisiana. (See Doc. 195-17 at 147; Doc. 195-3 at

35; Doc. 195-13 at 1–3; Doc. 195-10 at 34). Mr. Arcement ensured that prior to

departing Carrabelle, CIT “checked weather forecasts on NOAA both from shoreside

and from the vessel crew’s perspective.” (Doc. 195-3 at 34). Mr. Arcement also

testified that during this period of waiting, “[w]hat we did is we . . . just stayed in

communication with . . . the boat and with Captain Duzich and . . . [Benton]

Goodloe.” (Doc. 195-3 at 35). For example, on January 18, 2020, Mr. Arcement sent

Captain Duzich the weather report that Captain Adams was reviewing to determine

whether to leave Carrabelle. (Doc. 195-13 at 1). And in a separate email that day,

Mr. Arcement told Captain Duzich, among others, that “we will monitor the

weather closely and when we see our gap, we will make the crossing. We don’t want

to leave now with the cold front tonight.” (Doc. 195-13 at 1–2).

2. Resumption of the Voyage

On January 20, 2020, Captain Taylor decided to resume the voyage. (Doc.

195-5 at 8). That day, forecasts issued by the National Weather Service (“NWS”)

advised “northeast winds at 15 to 20 knots and seas 2 to 4 feet during portions of

the 5-day forecast period with choppy to moderate chop in protected waters” for the

zone that the tow would be travelling through. (Doc. 195-15 at 3). On January 21,

2020, at 3:36 a.m., the NWS advised “wave heights of 3 to 5 feet with wind speeds of

20 knots for the overnight period of January 21 to 22, 2020.” (Id.) The broadcasts

issued later in the day on January 21, 2020 advised the same wave heights as well

as an increase in wind speed to 25 knots. (Id.)

As the tow continued to travel south on January 21, 2020, the Tampa office of

the NWS broadcast three urgent marine weather messages. (Id. at 4). All three

messages advised seas of four to seven feet overnight in the zone of the Gulf that

the tow was approaching, namely: “coastal waters from Tarpon Springs to

Suwannee River.” (Id. at 4, 10). Forecast conditions in zones of the Gulf to the west

of the tow—closer to where the tow began its journey in Carrabelle—advised of seas

of one to two feet and two to three feet. (Id. at 5, 10). Thus, as Austin Dooley, an

expert in meteorology and oceanography opined, “[a]t the time of the [Tampa]

urgent marine weather messages issued on January 21, 2020, the forecasts for

returning to Carrabelle were more favorable than proceeding toward Tampa.” (Doc.

195-15 at 5).

In the early afternoon on January 21, 2020, the Tallahassee office of the NWS

broadcast an urgent marine weather message advising that between 7:00 p.m. on

January 21, 2020 and 10:00 a.m. on January 22, 2020, there would be winds of 20 to

25 knots and seas of two to four feet in the zone of the Gulf that the tow had just

arrived in. (Id. at 5, 10, 12). An hour later, the Tampa office of the NWS forecast

“[n]orth winds around 20 knots increasing to 20 to 25 knots in the late evening and

early morning, then diminishing to around 20 knots toward morning. Seas 3 to 5

feet. Bay and inland waters rough.” (Doc. 195-15 at 19).

Despite these messages, the tow proceeded on its voyage and continued to a

zone of the Gulf approximately seven miles offshore from the Suwannee River.

(Doc. 195-16 at 2). Shortly after midnight on January 22, 2020, the coupling at the

stern barge failed, and the dredge and the barge parted. (Id.; Doc. 195-14 at 17).

According to Roland Louis Campana, Sr., a seamanship expert, this occurred

because waves affected the coupling by creating “pressure points,” which the

coupling was not designed for. (Doc. 198-4 at 36.) The crew on the tug tried to get

the dredge into more shallow water, but the dredge began taking on water at

around 6:00 A.M. (Doc. 195-16 at 2). By 3:00 P.M., the dredge was completely

submerged in water. (Id.; Doc. 195-14 at 17). As the dredge sank, the tow line

between the dredge and the Idler Barge “came off” so that the dredge and the Idler

Barge began separating. (Doc. 195-14 at 17). By 5:30 P.M., the Idler Barge had

completely parted from the dredge. (Id.) CIT’s Report of Marine Casualty

submitted to the Coast Guard stated that there were seven-to-nine-foot seas at the

time of the sinking. (Doc. 195-16 at 2).

Captain Taylor and Captain Adams had been trained with the CIT Safety

Management Manual, which “requires the captain to ensure the safe navigation of

the tug and the tow.” (Doc. 195-3 at 13–14). According to this manual, when the

tow encounters adverse weather conditions, the captain is required to take

precautions to the “best of his ability” in order to “ensure . . . a safe transit.” (Id.)

CIT required its captains to undergo various trainings, but in January of 2020, CIT

did not have a specific training on the evaluation of weather. (Id. at 15). At that

time, CIT also was not using Navigation Assessment Forms, which are voyage plans

reviewed on board which include reports on current water conditions and actions to

take during heavy weather conditions. (Id. at 16–17).

3. Post Sinking Determinations

After the sinking, Captain Roger Shore, a master mariner and marine

surveyor, investigated the dredge. (Doc. 195-5 at 1–4). Captain Shore testified that

“[u]pon the Tug receiving unfavorable weather forecasts with seas exceeding 3 feet .

. . the Tug’s master should have sought shelter, whether it be turning back to the

west toward Carrabelle, Florida or seeking other sheltered water, instead of

proceed[ing] onward toward[s] Tampa.” (Doc. 195-5 at 3). Captain Shore added

that “the Tug’s actions were imprudent. A prudent mariner would not have forged

ahead in light of the forecasted weather conditions along the planned route.” (Id.)

Benton Goodloe echoed Captain Shore’s determination testifying, “the dredge never

should have been out there in rough seas . . . [o]nce they left Carrabelle[,] if the

weather got a little crappy they had the opportunity to turn around and go back.”

(Doc. 195-6 at 23–24).

In the course of this litigation, it was also determined that CIT never asked

for weather reports from Continental Weather Corporation (“CWC”)—a company

which provides weather forecasts to CIT on a subscription-type, daily basis—for the

gulf coast of Florida, which could have changed the course of their journey. (Doc.

195-18 at 3–5). Alan Mitleider, the President of CWC, testified that CIT had been a

client of CWC’s for almost twenty years and in January 2020 had asked for weather

forecasts for coastal Mississippi and southeast Louisiana, but not for any part of

Florida relevant to its voyage with Goodloe’s dredge. (Id. at 3–5). Mr. Mitleider

added that CWC could “tailor” its forecasts to “cover any routes” that its clients

might be taking, and CWC had the capacity to send forecast updates to CIT for a

route from Carrabelle, Florida to Tampa, Florida in January 2020. (Id. at 5).

Further, Mr. Mitleider testified that if CIT had asked for such forecasts, CWC

would have provided them at no extra cost on top of CIT’s existing subscription. (Id.

at 8).

Finally, inspections of the dredge after it sank revealed that the dredge was

not properly watertight. For example, Christopher Karentz, an expert surveyor

who inspected the dredge after it sank, testified “when the vessel left Carrabelle,

without any doubt whatsoever, the decks were not in a seaworthy condition.

Meaning there were exposed openings that would allow flooding of the

compartments. The hatches were not watertight.” (Doc. 198-5 at 87). And William

Cenac, the President of CIT, testified that, “[i]n this particular case, this thing sunk

like a brick. There was no compartment that was watertight. If this thing would

have been watertight, we could have towed this thing all the way in, I mean, this is

common.” (Doc. 195-11 at 9). Finally, Mr. Campana testified, “[i]t was an

unseaworthy vessel. It should never have been towed across the ocean. It should

have been picked up way before they left Port Bolivar.” (Doc. 198-4 at 33).

On March 24, 2020, Goodloe brought suit in this Court alleging negligence

and gross negligence against CIT (Counts I and II), negligence and gross negligence

against BC Towing (Counts III and IV), breach of contract against CIT (Count V),

and breach of implied warranty of workmanlike service against CIT (Count VI).

(Doc. 1 at 3–8).

On July 17, 2020, CIT filed a Complaint and Petition for Exoneration from or

Limitation of Liability in this Court pursuant to 46 U.S.C. § 30501 et seq., seeking

exoneration (Count I) and limitation of liability (Count II). See Caillou Island

Towing Co., Inc. & B.C. Towing, Inc. v. Goodloe Marine, Inc., 8:20-cv-1641-JLB-AAS

ECF 1 (M.D. Fla. July 17, 2020). That action was consolidated with the case

brought by Goodloe. (Doc. 33). CIT also filed a Third-Party Complaint against RJA,

who conducted the Trip in Tow Survey, alleging breach of warranty of workmanlike

performance and seeking to indemnify CIT for all damages sought by Goodloe.

(Doc. 33; Doc. 77). CIT has since settled with RJA, and RJA has been terminated

from the case. (Doc. 202; Doc. 203).

Goodloe now moves for summary judgment on Counts I and II of CIT’s

limitation of liability action, arguing that CIT is not entitled to exoneration or

limitation of liability. (Doc. 194 at 13–23). Goodloe also moves for summary

judgment on Count V of its Complaint, arguing that CIT breached its contract with

Goodloe. (Id. at 24–25).

STANDARD OF REVIEW

Summary judgment is proper if the movant shows that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “[T]he substantive law will identify which facts are

material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a

“genuine” dispute exists if “a jury applying [the applicable] evidentiary standard

could reasonably find for either the plaintiff or the defendant” as to the material

fact. Id. at 255. And a “genuine” dispute exists if “a jury applying [the applicable]

evidentiary standard could reasonably find for either the plaintiff or the defendant”

as to the material fact. Id. at 255.

In evaluating a motion for summary judgment, the Court considers the

evidence in the record, “including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . ., admissions, interrogatory

answers, or other materials . . .” Fed. R. Civ. P. 56(c)(1)(A). The Court “must view

all the evidence and all factual inferences reasonably drawn from the evidence in

the light most favorable to the nonmoving party [and] must resolve all reasonable

doubts about the facts in favor of the non-movant.” Rioux v. City of Atlanta, 520

F.3d 1269, 1274 (11th Cir. 2008) (quotation omitted). At the summary judgment

stage, the Court’s task is not to “weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Anderson, 477

U.S. at 249.

Finally, substantive admiralty law applies here because the sinking of the

dredge occurred in navigable waters. See Bunge Corp. v. Freeport Marine Repair,

Inc., 240 F.3d 919, 924 (11th Cir. 2001) (“[E]very species of tort, however occurring,

and whether on board a vessel or not, if upon the high seas or navigable waters, is

of admiralty cognizance”) (citing The Plymouth, 70 U.S. 20, 36 (1866)); Everett v.

Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Even when the

parties allege diversity of citizenship as the basis of the federal court’s jurisdiction

(as they did in this case), if the injury occurred on navigable waters, federal

maritime law governs the substantive issues in the case”) (citations omitted); East

River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986) (“With

admiralty jurisdiction comes the application of substantive admiralty law”) (citation

omitted).

DISCUSSION

Goodloe moves for summary judgment that (1) CIT is not entitled to

exoneration from, or limitation of, liability and (2) CIT breached the towing

agreement with Goodloe. The Court takes up each of these arguments in turn.

I. Goodloe is entitled to summary judgment as to CIT’s

action for exoneration but not as to CIT’s action for

limitation of liability.

CIT filed a petition for exoneration from or limitation of liability pursuant to

the Limitation of Liability Act, 46 U.S.C. § 30501. Caillou Island Towing, 8:20-cv-

1641-JLB-AAS, ECF 1. CIT asserts that it is entitled to exoneration under the

Limitation Act because they allege that they acted like reasonable, prudent vessel

owners, and thus, the sinking of the dredge was not the result of their negligence.

(Id. at ¶¶ 18, 19). Goodloe now moves for summary judgment that CIT is not

entitled to exoneration or limitation of liability because CIT “acted with complete

disregard to published weather forecasts and sailed the Tow into unsuitable

conditions. CIT had privity or knowledge of such negligence based on its daily

communications with the Tug during the voyage, including while the Tow was in

Carrabelle awaiting weather.” (Doc. 194 at 14).

The Limitation Act gives a vessel owner the right to limit liability for claims

of damage or injury from a maritime accident occasioned without the owner’s

knowledge or privity. 46 U.S.C. § 30523(a), (b). The limit on the claims of damage

or injury is the value of the vessel and pending freight. 46 U.S.C. § 30523(a).

Actions under the Limitation Act are governed by 46 U.S.C. § 30511, Supplemental

Rule F, and Local Admiralty Rule 7.06. See In re Petnuch, No. 3:20-CV-497-J-

32PDB, 2020 WL 4206369, at *1 (M.D. Fla. July 22, 2020).

In a proceeding under the Limitation Act, a vessel owner may seek both

exoneration from, and limitation of, liability for maritime accidents. See In re

Skanska USA Civil Southeast Inc., 577 F. Supp. 3d 1302, 1313 (N.D. Fla. Dec. 29,

2021) (citing Beiswenger Enter. Corp. v. Carletta, 86 F.3d 1032, 1036 (11th Cir.

1996)). In all Limitation of Liability Act proceedings where both exoneration and

limitation are sought, the first inquiry is whether the tug or its owners are liable.

See Providence & New York S.S. Co. v. Hill Mfrg. Co., 109 U.S. 578, 595 (1883).

Liability is established where the vessel owner’s negligent acts were “a contributory

and proximate cause of the accident.” Hercules Carriers, Inc. v. Claimant State of

Florida, 768 F.2d 1558, 1566 (11th Cir. 1985). And “[a] shipowner is entitled to

exoneration from all liability . . . only when it demonstrates that it is free from any

contributory fault.” Amer. Dredging Co. v. Lambert, 81 F.3d 127, 129 (11th Cir.

1996); see also In re Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1370 (S.D.

Fla. June 18, 1999) (“If there is no evidence of [defendant’s] negligence or

contributory fault, then [defendant] is entitled to exoneration from all liability.”).

The Eleventh Circuit has outlined a two-step analysis to determine whether

a shipowner is entitled to receive exoneration or limitation of liability. See

Hercules, 768 F.2d at 1563–64. “First, the court must determine what acts of

negligence or conditions of unseaworthiness caused the accident. Second, the court

must determine whether the shipowner had knowledge or privity of those same acts

of negligence or conditions of unseaworthiness.” Id. Moreover, once a claimant

satisfies the initial burden of proving negligence or unseaworthiness, the burden of

proof shifts to the shipowner to prove the lack of privity or knowledge. See Coryell

v. Phipps, 317 U.S. 406, 409 (1943); Coleman v. Jahncke Service, Inc., 341 F.2d 956,

958 (5th Cir. 1965). If negligence or unseaworthiness is not found—or if it is found

but the shipowner did not have knowledge or privity thereof—the petitioner is

entitled to a decree of exoneration. See Providence, 109 U.S. at 595; see also

Complaint of Sheen, 709 F. Supp. 1123, 1128 (S.D. Fla. 1989) (“If negligence or

unseaworthiness is found, the court must then determine if the owners are entitled

to a limitation of liability”).

To defeat a claim for exoneration at the summary judgment stage, therefore,

a plaintiff must prove that there is no genuine dispute of material fact that there

was some negligence on either the owner’s, crew’s, or vessel’s part, or that the vessel

was unseaworthy, and the owner had knowledge or privity thereof. See In Re

Petition of M/V Sunshine II, 808 F.2d 762, 764 (11th Cir. 1987).

A. Summary judgment is due to be granted in favor of Goodloe

as to CIT’s exoneration claim.

To succeed on a claim of negligence under federal maritime law, Plaintiff

must prove: “(1) a duty recognized by the law requiring a certain standard of

conduct for the protection of others against unreasonable risks; (2) breach of the

duty; (3) a reasonably close causal connection between the conduct and the resulting

injury; and (4) actual loss or damage resulting to the interests of another.” See

Crayton v. Oceania Cruises, Inc., 600 F. Supp. 2d 1271, 1275 (S.D. Fla. 2009)

(citation omitted).

1. There is no genuine dispute of material fact that CIT

owed a duty to exercise the reasonable care and

maritime skill of a prudent mariner under the

circumstances.

As for the duty element in a maritime negligence context, the Eleventh

Circuit has held that:

the benchmark against which a shipowner’s behavior must be measured

is ordinary reasonable care under the circumstances, a standard which

requires, as a prerequisite to imposing liability, that the carrier have

had actual or constructive notice of the risk-creating condition, at least

where . . . the menace is one commonly encountered on land and not

clearly linked to nautical adventure.

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (emphasis

added). “In a contract of towage . . . the tug owes the tow the ‘duty to exercise such

reasonable care and maritime skill as prudent navigators employ for the

performance of similar service.’” Collier v. 3-A’s Towing Co., Inc., 652 F. Supp. 576,

579 (S.D. Ala. Jan. 29, 1987) (quoting Stevens v. The White City, 285 U.S. 195, 202

(1932)). The tug also owes the tow the duty to “assess the nature of the undertaking

that it assumes; it must be sufficiently knowledgeable about its vessel, its

customer’s ship and the interaction of the two upon the sea . . . .” Id. at 579–80

(quoting M.P. Howlett, Inc. v. Tug Dalzellido, 324 F. Supp. 912, 917 (S.D.N.Y.

1971)). Further, “[a] tug has an obligation to utilize available weather reports in

order to operate in a manner consistent with foreseeable risks, and the Captain of a

tug is chargeable with knowledge of weather predictions, whether he knows of them

or not.” Aiple Towing Co., Inc. v. M/V/ Lynne E. Quinn, 534 F. Supp. 409, 411

(E.D. La. March 2, 1982). And the failure of a tug to seek safe waters in light of

available weather forecasts predicting high winds and high seas constitutes

negligence. Id. at 410–12 (explaining that the captain of a tug was negligent when

he ignored an NWS forecast predicting “shifting winds becoming north to northwest

at 20 to 30 knots at night, seas 5 to 8 feet, and thunderstorms with the wind shift.”).

2. There is no genuine dispute of material fact that CIT

breached its duty of care by sailing the tow into poor

weather conditions despite ample forecasts advising

such conditions, but there is a genuine dispute of

material fact as to whether CIT breached its duty of

care by leaving Carrabelle when it did.

Goodloe has introduced evidence that CIT breached its duty of care by acting

with “complete disregard to published weather forecasts and sailed the Tow into

unsuitable conditions.” (Doc. 194 at 14). First, Captain Duzich’s Trip in Tow

Survey stated, “[f]avorable weather forecast to be obtained prior to departure from

Carrabelle, Florida Sea Buoy for Boca Grande, Florida” and “[i]dentify ports of

refuge and/or sheltered water, should weather conditions/sea state exceed three (3)

feet during the voyage segment” during the voyage between Carrabelle, Florida and

Boca Grande, Florida. (Doc. 195-9 at 2). Captain Adams was aware of Captain

Duzich’s recommendations. (Doc. 195-7 at 43–44). And Captain Taylor testified

that he knew that Captain Duzich’s recommendations included obtaining a

favorable weather window before crossing from Carrabelle, Florida to Tampa,

Florida. (Doc. 195-10 at 19).

Further, Captain Shore, an expert in marine surveyor, testified that the tow

should not have departed Carrabelle on the morning of January 20, 2020 because he

“[didn’t] feel that they received sufficient weather forecasts. And [he] th[ought]

there was far more information available to them” and that an NWS forecast of two-

to-three-feet seas might be non-compliant with the recommendations made by

Captain Duzich. (Doc. 195-4 at 12). Captain Shore added in his report, “Captain

Taylor’s actions and decisions to leave Carrabelle were not those of a prudent

mariner . . . . This incident could have been avoided if Captain Taylor had waited at

Carrabelle for the weather to abate and follow[ed] the weather recommendations

issued by an experienced and professional marine surveyor.” (Doc. 195-5 at 11).

Goodloe has also introduced evidence that various urgent marine weather

forecasts were issued on January 21, 2020 advising of seas from four to seven feet in

zones of the Gulf where the tow was heading that day. (See Doc. 195-15 at 4–5).

Mr. Dooley, an expert meteorologist, noted that these forecasts were confirmed by

Captain Adams and Captain Taylor’s reports as Captain Adams stated that there

were waves of five to seven feet and Captain Taylor stated three-to-four-foot seas

were present during the night. (Id. at 28). And Mr. Dooley testified that at the

time of these urgent marine weather messages, “the forecasts for returning to

Carrabelle were more favorable than proceeding toward Tampa.” (Id. at 5).

Further, Benton Goodloe testified that:

the dredge should never have been out there in rough seas . . . I think if

they’d have followed all of the recommendations . . . in my opinion they

never should have left Carrabelle. Once they left Carrabelle if the

weather got a little crappy they had the opportunity to turn around and

go back. They had that opportunity. Once it got a little rough they could

have [sought] safe shelter, because . . . I don’t think this weather event

just came up all of a sudden and got terribly bad in an instant. I think

it was a building thing and they should have known that . . . I don’t think

it . . . ever should have happened, and I just think they were negligent

in not, mainly in getting, you know, a good weather forecast.

(Doc. 195-6 at 23–24). Benton Goodloe added that he believed CIT was responsible

because CIT had the “opportunity to turn around and go back” as they “weren’t that

far out” in the gulf when the weather began to turn. (Id. at 24) In sum, Goodloe

has introduced considerable evidence to support its contention that CIT breached its

duty of care by continue its voyage as planned after receiving the weather forecasts

issued by the NWS on January 20th, 2020 and January 21st, 2020.

CIT, meanwhile, has introduced ample evidence that it was reasonable to

allow the tow to leave Carrabelle on January 20, 2020. For example, CIT waited for

three days at Carrabelle for a good stretch of weather to make the journey across

the Gulf. (See Doc. 195-10 at 19). Captain Taylor testified that the crew on the Tug

had radars, listened to the marine weather forecast, and used the standard weather

app on their iPhones to determine whether they had a favorable weather window.

(Doc. 195-10 at 19–20). And the crew on the Tug checked the weather “both from

shoreside and from the vessel crew’s perspective” to ensure that they had a

favorable weather window before crossing. (Doc. 195-3 at 34). The forecast issued

by the NWS Tallahassee station before the tow departed Carrabelle on January 20,

2020 advised seas from three to five feet during the day on January 20, 2020. (Doc.

198-2 at 3). And forecasts for later that day and overnight advised seas of one to

two feet. (Id. at 6–8). Captain Duzich’s recommendation was that they “[i]dentify

Ports of Refuge and/or sheltered water, should weather conditions/sea state exceed

three (3) feet during the voyage,” so the one-to-two-foot swells were well within this

limit. (Doc. 195-9 at 2). Furthermore, as Mr. Campana noted, Captain Duzich’s

recommendation to identify ports of refuge in seas higher than three feet did not

mean that if the seas were higher than three feet, the tow could not sail. (See Doc.

195-12 at 6). It simply meant that in such conditions, the crew on the Tug should

identify ports of refuge. (Id.)

Construing these facts in the light most favorable to CIT as the Court is

required to do at the summary judgment stage, the Court finds that there is a

genuine dispute of material fact as to whether CIT breached its standard of care in

taking the tow out from Carrabelle on January 20, 2020. Thus, proceeding in

conditions where seas were predicted to be slightly above three feet was not per se a

breach of the “duty to exercise such reasonable care and maritime skill as prudent

navigators employ.” See Collier, 652 F. Supp. at 579. And CIT has introduced

sufficient evidence that the captains’ decision to leave Carrabelle was a

discretionary navigational decision made after “assess[ing] the nature of the

undertaking” and that they were “sufficiently knowledgeable about [their] vessel,

[their] customer’s ship and the interaction of the two upon the sea . . . .” Id.

But while CIT has introduced evidence that it was reasonable to allow the

tow to leave Carrabelle on January 20, 2020, CIT has failed to introduce any

evidence that it was reasonable to ignore the urgent weather forecasts issued by the

NWS on January 21, 2020 or that it was reasonable to not turn back to calmer

waters on January 21, 2020. In fact, Defendants’ Response contains no mention

whatsoever of the urgent weather forecasts issued by the NWS on January 21, 2020

and January 22, 2020. (See Doc. 195-15 at 4–5). These forecasts reflected sea levels

several feet above the three-foot sea levels warned of by Captain Duzich in the Trip

in Tow survey. (Id.) For example, the first urgent marine weather message issued

at 3:42 A.M. on January 21, 2020 advised “North winds 20 to 25 kt with gusts up to

30 kt and seas 4 to 7 feet” for the zone which the tow would be approaching later

that day. (Id. at 4). The weather described in these forecasts clearly posed a risk to

the tow. As Captain Shore explained, “If I got a forecast of 2 to 3 [foot sea levels]

and the rest of the voyage is 1 to 2 feet, I’d say we should be in good shape. If I’m

getting two to three and I start seeing three to five and then five to seven, of course,

that speak for itself. But it’s a no-go.” (Doc. 195-4 at 15).

Captain Shore also suggested that the evidence indicated that the crew

aboard the Tug was not properly monitoring the weather, stating, “they’ve only

been into the voyage a short number of hours and they’ve already hit heavy

weather. They know they’ve got a five-day trip south. They . . . should be getting

more access to weather. I don’t . . . feel that they got sufficient weather reports.”

(Doc. 195-4 at 14). Benton Goodloe echoed this opinion, noting “I think if they had

given [the captain] proper instructions and proper backup or weather or what you

will, they never probably would have left the day they left, but after they left, you

know, I just think they had equal opportunity to turn around and go back.” (Doc.

195-6 at 24).

And while Captain Taylor testified that the crew listened to the marine

weather forecast, (Doc. 195-10 at 19), none of the individuals on board the Tug

testified that they had heard, or actively sought out, the urgent marine weather

messages from the NWS. Instead, the testimony from Captain Taylor that the

weather “got rough on [them] . . . and then [they] just . . . had to pull into shallow

water when . . . the water was getting bad” reflects that the crew was caught off

guard by the bad weather. (Doc. 195 at 21).

While the Court is sympathetic to the variable and fast-changing nature of

weather conditions in the Florida Gulf, CIT has introduced no evidence that the

crew’s failure to heed—or acknowledge—the urgent marine weather messages for

the zones of the Gulf towards which the tow was headed was a reasonable decision

under the circumstances. Again, liability cannot be imposed unless CIT has “actual

or constructive notice of the risk-creating condition.” Keefe, 867 F.2d at 1322. Here,

the weather reports issued by the NWS warning of high seas gave CIT just such

knowledge. That CIT did not heed these warnings demonstrates a failure “to

exercise such reasonable care and maritime skill as prudent navigators employ for

the performance of similar service.’” Collier, 652 F. Supp. at 579.

And as noted above, Goodloe has introduced ample evidence that CIT’s

conduct vis-à-vis the weather reports was not in compliance with the relevant

standard of care, which states that “[a] tug has an obligation to utilize available

weather reports in order to operate in a manner consistent with foreseeable risks,

and the Captain of a tug is chargeable with knowledge of weather predictions,

whether he knows of them or not.” See Aiple Towing Co., 534 F. Supp. at 411.

Thus, because there is no genuine dispute of material fact that CIT should have, but

did not, properly monitor and respond to the weather forecasts advising sea levels

well above the tow’s freeboard, the Court finds that CIT breached its duty

“requiring a certain standard of conduct for the protection of others against

unreasonable risks,” see Crayton 600 F. Supp. 2d at 1275.

Accordingly, while there is a genuine dispute of material fact as to whether

the crew’s decision to leave Carrabelle on January 20, 2020 was a breach of the duty

of care owed by CIT, this alone does not counteract the Court’s finding that there is

no genuine dispute of material fact as to whether CIT failed to properly heed the

relevant weather warnings as a prudent mariner would. Thus, the Court must find

that CIT breached its duty of care irrespective of the reasonableness of the crew’s

decision to leave Carrabelle when it did, and summary judgment is due to be

granted in favor of Goodloe as to this second element of its negligence claim.

3. There is no genuine dispute of material fact that CIT’s

breach of the standard of care, at least contributorily,

caused the dredge to sink.

In order to establish negligence, Goodloe must also prove that CIT’s breach of

its duty of care caused the dredge to sink. See Crayton, 600 F. Supp. 2d at 1275

(explaining that the third element of negligence is “a reasonably close causal

connection between the conduct and the resulting injury”). Again, liability is

established only where the vessel owner’s negligent acts were “a contributory and

proximate cause of the accident.” Hercules, 768 F.2d at 1566.

Here, Goodloe has introduced evidence that CIT’s breach of its duty of care

caused the dredge to sink. Captain Shore testified that “you just don’t want to be

towing a dredge and an idler barge in seas in excess of 3 feet. You start getting into

moderate to heavy weather . . . it certainly would be a cause for concern.” (Doc. 195-

4 at 12). He added that among these concerns was the possibility of wave wash

coming across the deck of the dredge causing the dredge to sink. (Id. at 12–16).

This warning was echoed by Benton Goodloe who stated that the vented

compartments on the idler barge “[we]re not made for the whole ocean to come over

the top of the dredge and completely submerge it with waves.” (Doc. 195-2 at 11).

And Benton Goodloe confirmed these potential adverse effects, testifying that

shortly before the dredge sank, his son, who was on the tow, “called [the Coast

Guard] on the radio and he told them, you know, you’ve got some really rough seas

out here, you know, we got water coming over the deck.” (Id. at 48). He also

testified that “when it got rough it was going over the top of the dredge. You know,

7-foot seas, you’ve got a barge there with three or four feet of freeboard, it was going

over the decks, over everything, all over everything.” (Doc. 195-6 at 6). Finally, in

CIT’s report to the Coast Guard, CIT conceded that the seas were significantly

higher than three feet and added that these high seas affected the couplings

between the barges, stating:

Dredge being towed in the Gulf of Mexico by the M/V Charles J. Cenac .

. . Seas picked up. Winds began to blow approximately 40 mph and seas

were roughly 7-9 ft. Action that caused the dredge to sink: Dredge

situated on 2 barges that were connected together by pipes welded with

couplings on each side to allow for movement with the seas. The

coupling at the stern barge failed . . . [t]he dredge partially sank.

(Doc. 195-16 at 2). In sum, Goodloe has introduced significant evidence that CIT

knew that the dredge was vulnerable to waves above three feet, CIT failed to

properly monitor weather reports advising seas of four to seven feet, seven-foot seas

occurred, and the dredge sank after being exposed to such waves for hours.

For its part, CIT points to record evidence that the dredge sank because the

tow was unseaworthy. (See, e.g., Doc. 198-5 at 87; Doc. 195-3 at 35; Doc. 195-11 at

9; Doc. 198-4 at 33). But CIT has not introduced any evidence that unseaworthiness

alone was the cause of the sinking of the dredge. For example, Mr. Cenac, the

President of CIT, (Doc. 195-11 at 4), stated in response to an interrogatory that at

the time the dredge sank there were “winds of 30 to 40 miles per hour and seas of

three to five feet, with occasional swells of seven feet . . . [and] it is believed that

weather conditions combined with the unseaworthy condition of the tow,

contributed to the sinking of the tow.” (Id. at 15). And the record is replete with

evidence that the tow was not so unseaworthy that the slightest wave above three

feet would have caused the dredge to sink. First, at the time the dredge sank, the

tow had already made a several hundred-mile journey from Texas to Florida.

Second, the tow did not immediately sink when it was exposed to high sea levels;

instead, it survived hours and hours while being pummeled by waves anywhere

from one foot to three feet above its freeboard. Third, the tow was inspected by

Captain Duzich before he issued his Trip in Tow recommendations, and Captain

Duzich did not identify any notable vulnerabilities with the tow. Finally, neither

Captain Adams nor Captain Taylor found in their pre-voyage preparations that the

tow was unseaworthy.

Accordingly, while unseaworthiness may have contributed to the dredge’s

sinking, there is no dispute of material fact that unseaworthiness was not the

exclusive cause of the sinking. Instead, the sinking of the dredge was caused at

least in part by CIT’s failure to exercise reasonable care with respect to the marine

weather forecasts advising seas of four to seven feet in a zone of the Gulf through

which the tow would be traveling. This is “a reasonably close causal connection

between the conduct and the resulting injury” satisfying the causation element of a

maritime negligence claim. See Crayton, 600 F. Supp. 2d at 1275. Because liability

is established where the vessel owner’s negligent acts were “a contributory and

proximate cause of the accident,” Hercules, F.2d at 1566, the Court finds that CIT is

at least partially liable for the sinking of the dredge.

4. There is no genuine dispute of material fact that

Goodloe suffered damage to its dredge.

The final element in a negligence claim is damages. See Crayton, 600 F.

Supp. 2d at 1275. Here, it is uncontested that the dredge sank. Accordingly,

Goodloe has established the four elements of negligence without any genuine

dispute of material fact, and thus, as a matter of law, CIT was at least

contributorily negligent. Hercules, 768 F.2d at 1563–64. The Court therefore finds

that Goodloe is entitled to summary judgment as to CIT’s exoneration claim.

B. Goodloe is not entitled to summary judgment as to CIT’s

limitation of liability claim.

Having granted summary judgment for Goodloe as to CIT’s claim for

exoneration of liability under the Limitation Act, the Court turns to the second facet

of CIT’s claim—limitation of liability—to determine whether CIT is able to limit its

liability to the value of the vessel. See Beiswenger Enter., 86 F.3d at 1036. To do so,

CIT must demonstrate that it had no knowledge of the asserted acts of negligence or

that it was not in privity with them. Id. The burden of proof is on CIT to show it

lacked knowledge or privity. See Coryell, 317 U.S. at 409. “[K]nowledge is not only

what the shipowner knows but what he is charged with discovering in order to

apprise himself of conditions likely to produce or contribute to a loss.” Hercules, 768

F.2d at 1564. In the context of a corporate vessel owner, “privity or knowledge”

means the privity or knowledge of a managing agent, officer or supervising

employee. Id.; see also In re Signal Int’l, LLC, 579 F.3d 478, 496 (5th Cir. 2009) (“A

corporation is charged with the knowledge of any of its managing agents who have

authority over the sphere of activities in question.”) (citation and quotation marks

omitted).

Here, Goodloe introduced evidence that prior to departing Carrabelle, Mr.

Arcement, a managing agent at CIT, was in contact with the crew on the tow about

the best time for the tow to leave and maintain a window of good weather. (Doc.

195-7 at 64–65). Mr. Arcement stated that he was asking Captain Adams about the

weather to review the information “in support of his go-no-go decision” and because

he “want[ed] to have . . . [his] eyes on the same information to ensure the spirit of

[Captain Duzich’s] recommendations w[as] being followed.” (Id. at 66). While this

level of involvement in Captain Adams’s decision-making would certainly constitute

privity or knowledge, as the Court determined above, the crew’s decision to depart

Carrabelle on the day it did may not have been negligent. Thus, these

communications alone are insufficient to support summary judgment in favor of

Goodloe on CIT’s limitation of liability claim.

As far as the communications between CIT and the tow’s crew while the tow

was en route from Carrabelle to Boca Grande, the extent of CIT’s involvement in

the day-to-day navigational decisions of the tug is uncertain. On the one hand,

Goodloe has introduced testimony from Mr. Arcement that CIT provided sea state

reports twice a day to the tow, and Mr. Arcement talked on the phone with crew on

the tow to get the tow’s position and then emailed Goodloe a report on the tow’s

position along with a weather report. (Doc. 195-3 at 17). But Goodloe has not

introduced any evidence that Mr. Arcement, or any staff at CIT who were not on the

tow, were directing the tow and telling the tow to proceed with respect to the

weather reports that CIT was sending. Accordingly, there is a genuine dispute of

material fact as to whether CIT’s managing agents had knowledge of or privity to

the navigational decisions being made by the crew on the tow. Because these

navigational decisions form the crux of CIT’s negligence—described above—the

Court cannot grant summary judgment in favor of Goodloe as to CIT’s limitation of

liability claim.

II. Goodloe is not entitled to summary judgment that CIT

breached the towing agreement.

Goodloe next argues that because “CIT failed to tow Goodloe’s equipment to

its final destination, and instead sank the Dredge,” CIT breached its towage

contract with Goodloe. (Doc. 194 at 24–25). A breach of contract claim in the

maritime context requires that the plaintiff “prove (1) the terms of a maritime

contract; (2) that the contract was breached; and (3) the reasonable value of the

purported damages.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242,

1249 (11th Cir. 2005). A tug which enters into an agreement to tow a vessel is

bound use reasonable care in providing its towing services. See Collier, 652 F.

Supp. at 579. Further, “[t]he tug’s duty to the tow ‘includes the requirement to

assess the nature of the undertaking that it assumes; it must be sufficiently

knowledgeable about its vessel, its customer’s ship[,] and the interaction of the two

upon the sea.” Id. at 579–80.

At the same time, the owner of the tow has a duty to furnish a seaworthy

vessel. King Fisher Marine Service, Inc. v. NP Sunbonnet, 724 F.2d 1181, 1183 (5th

Cir. 1984). “[T]he obligation to provide a seaworthy vessel goes beyond providing a

structurally sound one. The duty requires the tow owner to prepare the vessel,

including its appurtenances, in such a way that the tug operator will be able to

successfully negotiate the conditions and obstacles that the tow will encounter.” See

Arkansas State Highway Comm’n v. Arkansas River Co., 271 F.3d 753, 760 (8th Cir.

2001). And just because a vessel “would float does not mean it was adequately

prepared for its intended journey.” Id.

But a “tug cannot complain about a condition of unseaworthiness or other

weakness that caused the loss if it knew [or had reason to know] of the condition

and failed to use reasonable care under the circumstances.” King Fisher Marine,

724 F.2d at 1184. If the alleged unseaworthiness of the tow is so apparent that it

would be negligent for the tow to attempt to proceed, the tug cannot disclaim

responsibility for the loss. King Fisher, 724 F.2d at 1183. “Only in this narrow

circumstance does the law require a tug operator to protect the tow or its cargo from

loss caused by an unseaworthy condition.” Arkansas, 271 F.3d at 759.

Here, there is no dispute that a valid and enforceable maritime contract

existed between Goodloe and CIT for the tow. (Doc. 195-1). There is also no dispute

that because the dredge sank, it was not towed to its final destination and thus, the

contract was not fulfilled. Finally, it is undisputed that the towing agreement is

silent as to the tow’s purported seaworthiness, as well as which party is to be held

liable for damage caused to the tow as a result of unseaworthiness or negligence.

(See Doc. 195-1). What is disputed is the cause of the sinking and whether CIT’s

failure to deliver Goodloe’s equipment to its final destination because of that

sinking constitutes a breach of contract.

CIT has introduced evidence that Goodloe did not furnish a seaworthy tow

and thus, Goodloe is at least partially liable for the sinking of the dredge. (See Doc.

198 at 19–20). For example, Mr. Karentz testified “when the vessel left Carrabelle,

without any doubt whatsoever, the decks were not in a seaworthy condition.

Meaning there were exposed openings that would allow flooding of the

compartments. The hatches were not watertight.” (Doc. 198-5 at 87). Mr. Karentz

added that the condition of the tow meant that water that got on deck could not

properly drain off because “flooding doesn’t relieve itself. It doesn’t go away unless

you start pumps and dewater the vessel.” (Id.) And Mr. Cenac, the President of

CIT, testified that, “[i]n this particular case, this thing sunk like a brick. There was

no compartment that was watertight. If this thing would have been watertight, we

could have towed this thing all the way in, I mean, this is common.” (Doc. 195-11 at

9). Mr. Cenac added that the coupling between the barge and the dredge was also

not seaworthy for the voyage because “if you had looked at where his ball and joint

sockets were at, they only had the top and the sides with a plate welded into the

barge. They never had a bottom piece of plate welded to the bottom of the barge.”

(Id. at 13–14). Finally, Mr. Campana testified that “[i]t was an unseaworthy vessel.

It should never have been towed across the ocean. It should have been picked up

way before they left Port Bolivar.” (Doc. 198-4 at 33). According to Mr. Campana,

the barge had a number of holes and defects that made it susceptible to flooding.

(Doc. 195-12 at 10).

But Goodloe has introduced evidence that the tow was in seaworthy

condition. For example, Benton Goodloe, Goodloe’s Project Manager, testified, “I

think by us getting the marine surveyor out there and doing our inspections and all

of that, I think that it was . . . safe to leave on tow if the conditions of the Trip in

Tow Certificate were followed.” (Doc. 195-2 at 20). And when asked if he tried to

determine the cause of the sinking, Benton Goodloe added, “[i]t was pretty apparent

to me it was the weather. It was really, really rough. You know, I could hear stuff

banging around on the dredge, pipes swinging around, banging into things, and I

could hear the wind in the phone.” (Id. at 47). Mr. Shore added in his report that

“[t]he dredge and idler barge were seaworthy and fit for their intended voyage and

it was not until Caillou Island Towing Company Inc., towed the dredge and idler

barge in unsuitable weather condition that a problem existed.” (Doc. 195-5 at 9).

And Captain Duzich, who conducted the Trip in Tow Survey, testified that part of

his inspection included inspecting the connections between the tug and the tow as

well as surveying whether the tow itself maintained watertight integrity, and he

would not have signed off on the survey if Goodloe’s dredge and barge were not

seaworthy or were unfit for their intended purpose. (Doc. 195-7 at 29–31). Goodloe

has also introduced evidence that the dredge was inspected in 2018 and that

inspection confirmed that the vessel was “[i]n apparent good condition fully found to

put in man for its intended service.” (Doc. 195-12 at 16–17).

And as to the question of whether the alleged unseaworthiness of the tow is

so apparent that it would be negligent for the tow to attempt to proceed, several

witnesses testified that the defects allegedly causing unseaworthiness were not

necessarily visible to the captain of a tug doing a pre-voyage inspection. For

example, Mr. Campana stated, “[t]he captain of a tug when he takes a tow has a

precursory responsibility to do a walk-around . . . many times, you can’t access the

interior of the hull of the barge, so you couldn’t go in to look. [The captain of a tug]

has a presumption that the owner is presenting him a seaworthy item.” (Doc. 195-

12 at 19). And Mr. Duzich stated that if the barge had a hole in it, the existence of

that hole would have been readily apparent because air bubbles coming from the

hole would have been visible “as that air is being displaced out of that void or tank

or compartment.” (Doc. 195-7 at 52). Accordingly, it is not clear from the evidence

that CIT had reason to know about the alleged defects in the barge such that it

would have been unreasonable to undertake the voyage.

In sum, there is a genuine dispute of material fact as to whether Goodloe

fulfilled its obligation to provide a seaworthy vessel, and there is a genuine dispute

of material fact as to whether CIT had reason to know of the allegedly compromised

condition of the vessel and failed to use reasonable care under the circumstances.

See King Fisher Marine, 724 F.2d at 1183. These disputes of fact preclude this

Court from entering summary judgment in favor of Goodloe on its breach of contract

claim because if the dredge sank due to the tow’s unseaworthiness and CIT had no

reason to know the tow was unseaworthy, CIT did not breach the towing agreement

by failing to tow the dredge to Port St. Lucie. Accordingly, summary judgment is

denied as to Goodloe’s breach of contract claim.

CONCLUSION

For the foregoing reasons, the Court finds that Goodloe’s Motion for Partial

Summary Judgment (Doc. 194) is GRANTED in part and DENIED in part.

Specifically, Goodloe is entitled to summary judgment as to CIT’s exoneration claim

because there is no genuine dispute of material fact that CIT was at least

contributorily negligent in its failure to heed relevant weather warnings, but

Goodloe is not entitled to summary judgment as to CIT’s limitation of liability claim

and Goodloe’s breach of contract claim.

ORDERED at Tampa, Florida on June 28, 20238.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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