Impala Terminals Burnside, LLC v. Marquette Transportation Company, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IMPALA TERMINALS BURNSIDE LLC, ET AL. CIVIL ACTION

v. NO. 19-12584

MARQUETTE TRANSPORTATION SECTION "F"

COMPANY, LLC, in personam, ET AL.

ORDER AND REASONS

Before the Court are three motions: a motion for partial

summary judgment by each side and the plaintiffs’ motion to strike

a portion of testimony in the summary judgment record. For the

reasons that follow, the motions for partial summary judgment are

DENIED, and the plaintiffs’ motion to strike is DENIED as moot.

Background

This in personam and in rem admiralty litigation arises out

of an early morning allision in the Mississippi River. Before

dawn on March 14, 2019, Marquette Transportation Company, LLC’s

downbound towing vessel C. MICHAEL REEVES, with her 14 barges in

tow, struck Impala Terminals Burnside LLC’s sacrificial dolphin

and the northern end of its Continuous Barge Unloader (CBU) dock

at Mile Marker 169.5 AHP on the left descending bank of the lower

Mississippi River. Unbeknownst to the vessel captain and Impala.

It was so dark that the captain could not see, and did not know,

that the vessel hit a sacrificial dolphin and the CBU dock. No

one at Impala did either until the sun came up.

Impala Terminals Burnside LLC leases and operates the Impala

Terminal, a coal terminal facility near Burnside, Louisiana at

Mile Marker 169.5 AHP on the left descending bank of the Lower

Mississippi River. Installed in 2014 and commissioned in 2015,

the Impala Terminal includes the CBU dock, the uppermost river

structure, which is used to discharge coal from barges. There are

also protective or “sacrificial” dolphins, constructed to protect

the dock from impact by vessels. Downriver from the CBU dock,

there is a dock primarily used to load cargo on to ocean-going

vessels. The CBU dock was installed in 2014; the U.S. Army Corps

of Engineers issued a permit to Impala in 2012.1 At the time of

the allision, no navigational lights were installed on the Impala

CBU dock. After the allision, navigational lights were installed

to comport with the facility’s original design drawings.

The M/V C. MICHAEL REEVES is a 168-foot long, 40-foot wide,

6800-horsepower push boat owned and operated by Marquette

Transportation Company, LLC. The M/V C. MICHAEL REEVES was

equipped with navigation equipment, including Rose Point, radar,

spotlight, and swing meter, as well as three radios (or three

1 On May 3, 2012, the USACE issued Impala Permit No. MVN-2011-2044-

CO.

channels being monitored on the radio). All functioning properly

that morning.

Captain Michael Bailey, who has over 40 years of experience

operating towing vessels, came on watch at 0500 hours;2 the

allision occurred within the first 20 minutes of Captain Bailey

coming on watch.3 Navigating southbound on the Lower Mississippi

River, pushing a tow of 14 loaded barges approximately 1,000 feet

long and 105 feet wide, he took command of the tug just above

Bringier Point, which would have been his first steer that morning.

Although it was still dark outside, visibility was otherwise good

as weather conditions were clear, but the river stage in Baton

Rouge was 43 feet, above flood stage.4 The current that morning

near Mile Marker 170 was estimated between 4 and 6 miles per hour,

higher than normal, and it was prudent to be “more careful handling

the tow,” particularly around points in the river.

As the M/V C. MICHAEL REEVES and its tow were approaching the

sharp bend in the Mississippi River to port around Bringier Point

at Mile 174 AHP, Captain Bailey decided to “steer” rather than

2 Captain Bailey had rejoined the M/V C. MICHAEL REEVES two days

before on March 12, 2019 at Mile Marker 362 near Natchez, as the

tug was pushing 20 loaded barges from St. Louis to the New Orleans

area. After he went off watch on the night of March 13, the C.

MICHAEL REEVES dropped off six of the barges.

3 Captain Bailey is qualified and experienced; he has been running

towboats since he got his pilot license at age 20 in 1977.

4 Flood stage occurs when the river is measured at 35 feet and

“major” flood stage occurs when the river is measured at 40 feet.

A river above flood stage is faster flowing.

“flank” Bringier Point because he believed he could steer safely

with the 14 barges (reduced from 20) in tow.5 When one cannot

safely steer around a bend in the river, flanking is the prudent

approach. Perhaps oversimplifying the maneuver, but in laymen’s

terms, flanking involves putting the engines in reverse to slow

the flotilla’s forward speed to the speed of the current, and

allowing the current to steer the head of the tow around a bend in

the river.

As Captain Bailey steered the tow around Bringier Point, it

ended up closer to the west bank than Captain Bailey preferred.

Immediately after clearing Bringier Point, the river makes a sharp

starboard turn around Point Houmas; together, the two points

essentially create an “S” turn in the Mississippi River. Because

Captain Bailey was “able to get around Bringier Point by steering,”

he “assumed [he] should be able to make it around Point Houmas”

the same way. Because Captain Bailey had to speed up to clear

Bringier Point and, given the faster higher river, he “had quite

a bit of speed built up” when he started to make the turn at Point

Houmas and he could not get his turn started early enough. As he

started steering around Point Houmas, Captain Bailey could not get

close enough to slack water underneath the point because the tug

and stow started sliding sideways at about 7 miles per hour. While

5 Captain Bailey explained that he probably would have flanked

Bringier and Point Houmas if he had 20 barges in tow.

steering the M/V MICHAEL REEVES around the bend at Point Houmas,

just upriver from the Impala Dock, Capt. Bailey “did not cut the

point close enough,” and the M/V C. MICHAEL REEVES and its tow

ended up “sliding” in the high-water, swift-current conditions

more than intended or predicted toward the East Bank and the Impala

Dock. He had to wait “until I got past Wade Hampton Light” --

which is between Bringier Point and Point Houmas -- before he could

back up. Since he “did not make the turn,” Capt. Bailey went to

“Plan B”: “try to regroup and flank out” or back down. It was

(later discovered that it was) too late. Despite the backing-down

maneuver -- at some point between 0500 and 0520 hours, when it was

still dark6 -- the head of the M/V C. MICHAEL REEVES’ tow allided

with the Impala CBU dock and its sacrificial dolphin. Although

Captain Bailey sent someone to see if he had hit the dock, his

leadman Lucas Kaelin could not see anything from the head of the

C. MICHAEL REEVES’s tow because it was so dark. The M/V C. MICHAEL

REEVES continued on its way.

Damage was discovered after daylight. As a result of the

allision, Impala’s CBU dock sustained damage to its upstream-

offshore sheave platform, upstream walkways, its barge slip

fendering system, and to a protective dolphin.

6 Sunrise that morning was at 0714 hours.

On September 13, 2019, Impala Terminals Burnside, LLC sued

Marquette Transportation Company, LLC, in personam, and the M/V C.

MICHAEL REEVES, in rem, alleging that the M/V C. MICHAEL REEVES’s

allision with the Impala Terminal caused “significant damage to

Impala’s CBU dock, including physical damage to a tripod dolphin,

the sheave platform, several aluminum catwalks, and various

related structures[;]” and, as a result of the allision caused

exclusively by Marquette’s negligence, “the CBU dock cannot

operate as designed and will be closed for repairs for a

significant period of time” such that Impala seeks to recover

repair costs, replacement costs, survey costs, and additional tug

and barge costs. Impala also requested a warrant in rem to arrest

the vessel. That same day, the Court granted Impala’s motion

requesting issuance of a warrant in rem to arrest the M/V C.

MICHAEL REEVES. Thereafter, the Court granted Impala’s motion for

leave to file a security bond for $3.75 million posted to stay the

execution of in rem process against and the arrest of the C.

MICHAEL REEVES. This perfected the Court’s in rem jurisdiction

with the bond acting as the substitute res to respond to Impala’s

in rem claim. Marquette filed its answer, stating in defense of

the verified complaint’s allegations, among other things, that

Impala had inadequate lighting on its dock on the morning of the

allision. After the scheduling order issued, the Court granted

Impala’s unopposed motion seeking leave to file an amended

complaint to add its subrogated insurer as a party plaintiff;7 that

is, Impala’s amended complaint adds as party plaintiff XL Insurance

Company SE in its capacity as the contract leader of the

underwriters on a Port and Terminal Package Policy of Insurance,

Number B0509MARLR1800056, issued to Trafigura Group Pte. Ltd. and

Impala Terminals and Impala Warehousing (MI) LLC and affiliated

subsidiary companies, including plaintiff Impala Terminals

Burnside LLC.8

Invoking evidentiary presumptions, both sides now seek

partial summary judgment9 and the plaintiffs move to strike a

7 Marquette did not oppose the request to amend the complaint.

Marquette did not file an amended answer.

8 Thus far, it is alleged in the amended complaint, XL has

reimbursed Impala $1,193,104 for repair costs and expenses

incurred by Impala under that policy of insurance for losses that

Impala’s verified complaint seeks to recover from the defendants

and, therefore, XL has become subrogated to the rights of Impala.

It is alleged that Marquette and the M/V C. MICHAEL REEVES, in

rem, are liable to XL for $1,193,104 plus expenses, costs,

attorneys’ fees, and pre and post-judgment interest on all sums

awarded and that Impala has retained its claim against the

defendants for its deductible of $100,000 and its additional tug

costs and barge demurrage claim incurred as a result of the CBU

dock being damaged and not able to operate as designed, plus

expenses, costs, attorneys’ fees, and pre and post-judgment

interest on all sums awarded.

9 Insofar as both sides invoke The Pennsylvania Rule pertaining to

liability -- each side argues that the other committed statutory

violations and thus must prove that its conduct could not have

been a contributing cause of the allision -- the motions are cross-

motions; the plaintiffs additionally invoke The Oregon Rule, which

creates a rebuttable presumption that a moving vessel breached its

duty of care when it allides with a stationary object. Whether

either of these presumptions applies; if so, as to which party

(and, if both, whether they cancel themselves out); and whether

sufficient facts are or will be of record to dispense with these

portion of a witness’s testimony, a lay opinion regarding

causation.

I.

Summary judgment is proper if the record discloses 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). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003); Hathaway v. Bazany, 507 F.3d

presumptions is thus submitted to the Court in the present pending

motions.

312, 319 (5th Cir. 2007)("[T]he nonmoving party cannot defeat

summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence."). The non-moving

party must come forward with competent evidence, such as affidavits

or depositions, to buttress his claims. Donaghey v. Ocean Drilling

& Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Hearsay

evidence and unsworn documents that cannot be presented in a form

that would be admissible in evidence at trial do not qualify as

competent opposing evidence. Martin v. John W. Stone Oil Distrib.,

Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

The Court must not evaluate the credibility of witnesses on

a paper record, nor may it weigh evidence. When considering summary

judgment motions prior to a bench trial, however, the Court in

non-jury cases “has somewhat greater discretion to consider what

weight it will accord the evidence” and “to decide that the same

evidence, presented to him . . . as a trier of fact in a plenary

trial, could not possibly lead to a different result.” Jones v.

United States, 936 F.3d 318, 321-22 (5th Cir. 2019)(citations,

internal quotations omitted).

II.

A.

The allision occurred during navigation on the Mississippi

River and, thus, the Court has federal admiralty jurisdiction under

28 U.S.C. § 1333 and maritime law governs.

Like an ordinary negligence claim, to succeed on a negligence

claim in admiralty, the plaintiff must prove that (1) the defendant

owed a duty to the plaintiff; (2) the defendant breached that duty;

(3) the breach actually and proximately caused the plaintiff’s

injury; and (4) the plaintiff sustained an injury. In re Great

Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010).

Principles of comparative fault apply equally to admiralty cases

in general and allision cases in particular10 such that the Court

10 See Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport,

596 F.3d 357, 363 (6th Cir. 2010)(citations omitted)(observing

is tasked with “allocat[ing] damages based upon the parties’

respective degrees of fault.” In re Omega Protein, Inc., 548 F.3d

361, 370 (5th Cir. 2008)(citation omitted).

To be sure, “[l]iability in collision and allision cases has

always been apportioned based on fault.” Combo Maritime, Inc. v.

U.S. United Bulk Terminal, LLC, 615 F.3d 599, 604 (5th Cir.

2010)(citation omitted). “[F]ault which produces liability must

be a contributory and proximate cause of the collision, and not

merely fault in the abstract.” Bd. of Comm’rs of Port of New

Orleans v. M/V FARMSUM, 574 F.2d 289, 297 (5th Cir. 1978). Put

differently, “[t]o give rise to liability, a culpable act or

omission must have been ‘a substantial and material factor in

causing the collision.’” Am. River Transp. Co. v. Kavo Kaliakra

SS, 148 F.3d 446, 450 (5th Cir. 1998)(citation omitted). “[W]hen

two or more parties have contributed by their fault to cause

property damage in a maritime collision or stranding,” the Supreme

Court has instructed,

liability for such damage is to be allocated among the

parties proportionately to the comparative degree of

their fault, and that liability for such damages is to

be allocated equally only when the parties are equally

at fault or when it is not possible fairly to measure

the comparative degree of their fault.

that “comparative and contributory negligence ... are venerable

doctrines in general [and] turn on principles that have centuries

of relevance in the context of admiralty law.”).

United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411

(1975). “Where both parties to a collision are in violation of

statutes designed to prevent collisions,” the Fifth Circuit has

instructed, the Court “may apportion fault between the parties,

unless either party proves that its statutory violation was not a

substantial contributing cause of the collision.” Stolt

Achievement, Ltd. v. DREDGE B.E. LINDHOLM, 447 F.3d 360, 364, 370

(5th Cir. 2006)(citation omitted)(noting that “the calibration of

culpability simply is not susceptible to any real precision.”).

Quantifying relative fault is not a “mechanical tally [of] errors[;

rather, the Court] must determine, based upon the number and

quality of faults by each party, the role each fault had in causing

the collision.” In re Omega Protein, 548 F.3d at 370 (citing Stolt

Achievement, 447 F.3d at 370).

B.

Maritime law “uses evidentiary, fault, causation, and other

presumptions throughout its resolution of negligence suits.”

Combo Maritime, Inc., 615 F.3d at 604 (citing THOMAS J. SCHOENBAUM,

1 Admiralty & Mar. Law § 5-18 (4th ed. 2004)). Presumptions

regarding fault or breach do not affect the comparative fault

regime applicable in maritime collision law. Id. at 607-08

(citations omitted). Here, the presumptions invoked by the

parties’ papers are the rules of The Oregon and The Pennsylvania.

“It is important to distinguish ... between the presumption

of fault announced in The Oregon and the presumption of causation

announced in The Pennsylvania[.]” In re Mid-South Towing Co., 418

F.3d 526, 531 n.5 (5th Cir. 2005)(emphasis in original, citations

omitted). The plaintiffs seek partial summary judgment on the

issue of liability on the ground that The Oregon Rule applies to

establish that Marquette was solely at fault for the allision and

on the ground that The Pennsylvania Rule applies because of pilot

error amounting to statutory violations. The defendants seek

partial summary judgment that The Pennsylvania Rule is triggered

by Impala’s failure to light its dock such that Impala shall bear

the burden at trial of proving that its failure to light its dock

could not have been a cause of the allision. A closer look at the

substance and purpose of these presumptions compels the conclusion

that they are inapplicable or unnecessary on this record.

1. The Oregon Rule: Whether Fault Should be Presumed

The rule of The Oregon creates a presumption of fault that

shifts the burden of production and persuasion to a moving vessel

who, under her own power, allides with a stationary object. Combo

Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599,

604 (5th Cir. 2010)(citing The Oregon, 158 U.S. 186, 192-93

(1895)). This rule merely shifts the burden of production and

persuasion on the issue of fault, thus, as a mere “[e]videntiary

presumption[] . . . designed to fill a vacuum[; o]nce evidence is

presented . . . presumptions become superfluous because the parties

have introduced evidence to dispel the mysteries that give rise to

the presumptions.” In re Mid-South Towing Co., 418 F.3d 526, 531

(5th Cir. 2005)(citation omitted).11

Notably, the alliding-vessel presumption of fault is not “a

presumption of sole fault. Combo Maritime, 615 F.3d at 608. The

presumption under The Oregon has no impact on the doctrine of

comparative fault applied in maritime allision cases. See id. at

608-09 (even assuming that the district court properly discarded

an analogous presumption, the opposing party is nevertheless

“entitled to present evidence of comparative fault at trial.”);

see also Mid-South Towing, 418 F.3d at 532 (“[Properly cabined the

scope of the Oregon rule, which speaks explicitly only to a

presumed breach on the part of the alliding vessel, and is not a

presumption regarding either the question of causation (either

cause in fact or legal cause) or the percentages of fault assigned

parties adjudged negligent.”). Properly applied, then, that the

The Oregon is triggered to presume breach on the part of the

alliding vessel’s part does not rule out another party’s

comparative fault.

11 But see Bunge Corp. v. M/V FURNESS BRIDGE, 558 F.2d 790, 795 n.3

(5th Cir. 1977)(“[W]e reject the holding of the Third Circuit that

when both sides had ‘fully presented testimony regarding their

version as to what happened prior to the collision ... the

presumption disappeared as a matter of law.”).

Application of The Oregon Rule is “properly confined to the

issue of breach only -- not causation” and it “does not supplant

the general negligence determination which requires a plaintiff to

prove the elements of duty, breach, causation and injury by a

preponderance of the evidence.” Combo Maritime, Inc., 615 F.3d at

605 (citation omitted). A defendant rebuts the presumption of The

Oregon and may defeat liability if it demonstrates: “(1) that the

allision was the fault of the stationary object; (2) that the

moving vessel acted with reasonable care; or (3) that the allision

was an unavoidable accident.” Id. (citation omitted). If the

vessel rebuts the presumption, for example, by demonstrating that

the allision was the fault of the stationary object, then the

vessel absolves itself of liability. See Bessemer & Lake Erie

R.R. Co. v. Seaway Marine Transport, 596 F.3d 357, 363 (6th Cir.

2010). However, the vessel may advance a comparative fault defense

against the stationary object and need not rebut the presumption

to simply “relieve itself of some liability[.]” See id. (emphasis

in original).

Notably, The Oregon presumption “only applies in the absence

of evidence of fault.” In re Omega Protein, Inc., 548 F.3d 361,

368-69 (5th Cir. 2008). There, a fishing vessel allided with a

stationary oil platform. Following a bench trial, the district

court found comparative fault: the platform was unlit and the

vessel’s pilot failed to use his functional navigational aids and

maintain a proper lookout. Id. In apportioning fault for the

allision and damages 50-50, the district court also found that the

allision was caused by a combination of this pilot error and

absence of lighting. Id.

If a moving vessel proves that a stationary object was unlit,

then regardless of whether this absence of lighting is a statutory

violation (and negligence per se) or “merely” ordinary negligence,

the Court properly disregards the presumption of The Oregon. See

id. at 368-69 (finding no error of fact or law and affirming

district court’s decision to disregard The Oregon presumption

where owner of fishing vessel proved that oil platform was unlit,

which constituted a statutory violation).

2. The Pennsylvania Rule: Whether the Burden of Proving

Causation Should Shift to a Statutory Violator

The Pennsylvania Rule concerns the burden of proving

causation: any party to a maritime accident who violates a federal

statute is presumed to be at fault, and thus, has the burden of

proving that the violation could not have been a contributing cause

of the allision. See The Pennsylvania, 86 U.S. 125 (1873). In

interpreting the scope of The Pennsylvania Rule, courts have held

that fault is not only determined by the breach of a statute, but

also by resort to ordinary negligence principles, or

reasonableness under the circumstances. See Tidewater Marine,

Inc. v. Sanco Int’l., Inc., 113 F. Supp. 2d 987, 988 (E.D. La.

2000)(citation omitted). That is, “[e]ven without a statutory

violation, liability may be imposed simply where there is

negligence.” Rose Crewboat Services, Inc. v. Wood Resources, LLC,

425 F. Supp. 3d 668, 674 (E.D. La. 2019)(Vance, J.)(quoting Stolt

Achievement, Ltd. v. Dredge B.E. LINDHOLM, 447 F.3d 360, 364 (5th

Cir. 2006)).

To be sure, this evidentiary presumption gives way to factual

realities. The Pennsylvania Rule concerns the burden of proof for

showing causation; it does not determine ultimate liability for

damages. Sheridan Transp. Co. v. United States, 834 F.2d 467, 478

(5th Cir. 1987). It places on the statutory violator (or the duty-

breacher) the burden of showing that the violation could not have

caused the accident. Id. at 476. The rule may be applied against

one or both parties to an allision. Id. at 478 (noting that the

Fifth Circuit has “held that The Pennsylvania rule applies in

allision cases where those responsible for properly marking

stationary objects in navigable waters ... failed to do so.”).

All parties against whom the rule is applied may be liable “if

their negligence proximately caused the accident, and damages are

to be assessed in accordance with the principles of comparative

negligence.” Id.

3. Clashing or Dispelling Evidentiary Presumptions

“[D]esigned to fill a factual vacuum[,]” evidentiary

presumptions have no applicability where “the parties have

introduced evidence to dispel the mysteries that gave rise to the

presumption[s].” See In re Mid-South Towing Co., 418 F.3d 526,

531 (5th Cir. 2005); Bessemer & Lake Erie R.R. Co. v. Seaway Marine

Transp., 596 F.3d 357, 362 (6th Cir. 2010)(“the Oregon Rule creates

a prima facie case of negligence, not a final case of sole

negligence.”); Combo Maritime, 615 F.3d at 606-08 (“If the two

parties to a[n] allision suit each have a presumption of fault

against them, then it is likely that the presumptions would merely

cancel each other out.”).12

Insofar as The Oregon Rule “presumptively allocates fault

when the circumstances of an allision are [relatively] unknown,”

many courts decline to presume fault where there is a developed

factual record concerning the circumstances of an allision. See

Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d

357, 362 (6th Cir. 2010); see also Slatten, LLC v. Royal Caribbean

Cruises Ltd., No. 13-673, 2014 WL 5500701, at *5 (E.D. La. Oct.

30, 2014)(Vance, J.)(“The record at trial will contain sufficient

evidence on which the Court, as the finder of fact, can determine

the liabilities of the parties.”); St. James Stevedoring Partners,

LLC v. Motion Navigation LTD., No. 13-541, 2014 WL 3892178, at *6-

12 But see Bunge Corp. v. M/V FURNESS BRIDGE, 558 F.2d 790, 795 n.3

(5th Cir. 1977)(“[W]e reject the holding of the Third Circuit that

when both sides had ‘fully presented testimony regarding their

version as to what happened prior to the collision ... the

presumption disappeared as a matter of law.”).

7 (E.D. La. Aug. 6, 2014)(finding application of The Oregon and

The Pennsylvania unnecessary where evidence was presented on the

issues of fault and causation).

III.

The parties submit that undisputed facts compel application

of these evidentiary presumptions. The nature of allisions

generally and the moving vessel’s captain’s navigational errors

trigger application of The Oregon and The Pennsylvania Rules, the

plaintiffs submit, and shifts the burden to the defendants to show

that the vessel is not wholly at fault and that its sole fault did

not cause the allision. The defendants counter and submit that

Impala’s failure to light its dock triggers application of The

Pennsylvania Rule and shifts the burden to the plaintiffs to

demonstrate that this absence of lighting was not a contributing

cause of the allision. But The Oregon Rule is not a rule of

ultimate liability, and The Pennsylvania Rule is not a rule of

ultimate causation. Because these evidentiary presumptions are

rendered superfluous on a fulsome record, the Court finds it

improper to apply them here. And because genuine issues of

material fact concerning comparative negligence and causation are

evident, partial summary judgment is not warranted.

The Oregon Rule would appear to apply to the abstract facts

here: a moving vessel allided with a stationary dock and its

sacrificial dolphin. But a closer look at the concrete record

reveals that there is no factual void to fill concerning the

vessel’s negligence and, thus, presumptively allocating fault is

(or will be at trial) unnecessary. Here, the defendants (Marquette

and its vessel) do not dispute that they actually bear some (if

not most) responsibility for the allision, or at least there is no

quarrel that the record supports a finding that experienced Captain

Bailey, in hindsight, given the high-water conditions, admits that

perhaps he should have flanked rather than steered the Points when

he came on duty that morning. The record thus supports a finding

that the vessel bears some fault for the accident. Because the

Court need not presume breach on the part of the alliding vessel

in the face of factual reality, resort to The Oregon is simply

unnecessary.

Where, as here, the record supports a finding that Captain

Bailey (and thus the defendants) bear some responsibility for the

allision, the question is thus better stated as: even where the

vessel is negligent, may it shift some responsibility for the

accident to the dock owner/operator due to its alleged comparative

fault? To answer this question, the Court need not indulge The

Oregon’s evidentiary presumption. Rather, the vessel has simply

offered some support for its comparative fault defense and thus

the question becomes whether it may shift some responsibility for

the accident to the dock operator due to its alleged comparative

fault in failing to have navigation lights on the dock, or

otherwise failing to have then-existing lights illuminated before

dawn at the time of the allision.13 Marquette’s comparative fault

defense simply renders superfluous The Oregon Rule.14 And genuine

disputes concerning material facts prevent the Court from

resolving the comparative fault issue.15

So, too, regarding the issue of causation. Patent factual

controversies preclude partial summary judgment. Both sides

invoke The Pennsylvania Rule, which (again) holds that any party

to an allision that is in violation of a statutory rule intended

13 The parties hotly dispute the issue of lighting and its impact

on the allision.

14 The plaintiffs take issue with what they perceive as Marquette’s

failure to contest their invocation of The Oregon Rule. This is

simply another illustration of how the parties’ attempts to contort

application of gap-filling evidentiary presumptions to actual

facts in a developed summary judgment record, replete with factual

disputes, defies common sense. Instead of seeking to rebut the

evidentiary presumption through demonstration of one of three

scenarios sanctioned by the case literature, the vessel may invoke

the common law tort doctrine (and here, defense) of comparative

fault. This is precisely what Marquette does here. Because it is

not a rule of ultimate liability, Marquette does not need to rebut

the gap-filling presumption to relieve itself of some liability;

thus, Marquette essentially assumes or attempts to avoid

application of The Oregon Rule by invoking The Pennsylvania Rule.

Again, the parties’ singular focus on evidentiary presumptions

obviated by a developed summary judgment record is simply unhelpful

in the task of resolving the patent factual issues presented by

the record.

15 Pretermitting whether the Impala’s USACE permit required

navigational lights, Marquette submits that Impala bears some

fault for the incident due to Impala’s failure to take reasonable

precautions to install navigational lights (or to illuminate the

lights that were installed, about which the witnesses differ) on

its CBU deck and dolphin in a navigable waterway.

to prevent allisions is presumed to be a cause of the accident.

Again, each side finger-points, submitting that the other violated

statutes or regulations which caused the allision. Any utility of

this evidentiary presumption is dispelled by the facts of record.

And those facts material to causation are contested, making partial

summary judgment unwarranted.

In their quest to persuade the Court that the undisputed facts

in the record support a finding that the vessel’s piloting errors

were the exclusive cause of the allision, the plaintiffs overlook

comparative fault generally and disputed issues of material facts

specifically; the plaintiffs read Captain Bailey’s extensive

testimony too narrowly and downplay Marquette’s expert pilot’s

submission on causation.16 For its part, Marquette fails to show

by a preponderance of the evidence (on this record) that the

absence of navigational lights (or otherwise that the failure to

illuminate the lights then-existing on the CBU dock) constitutes

a statutory violation that contributed to cause the allision

sufficient to warrant partial summary judgment in its favor. As

with liability, there are material facts in the record probative

16 Captain Gregory Smith opines and Impala contests:

The Impala Burnside dock in question protrudes into the

river from the levee approximately 488 feet. It was an

obstruction to navigation and was not properly

illuminated. If it had been properly illuminated,

Captain Bailey could have maneuvered his tow in a

slightly different manner to avoid or minimize the

damages from the allision.

of each side’s causation narrative, and the parties’ genuine

disputes preclude partial summary judgment.

Neither side satisfies its burden to show that no genuine

issues of material fact remain for trial. Each side introduces

evidence supporting their liability and causation narratives;

neither is entitled to judgment as a matter of law on this

extensive paper-only record. Liability, fault-apportionment,

causation, and damages will be bench-tried starting on April 12,

2021.

***

The parties clash over whether and which admiralty

presumptions apply. But this singular focus on evidentiary

presumptions elevates form over substance, common sense, and the

longstanding admiralty tradition embracing comparative fault in

allision cases. That both sides submit competing evidence relevant

to fault and causation renders indulging presumptions unnecessary.

The all-or-nothing position embraced by the parties is simply

inapplicable to a summary judgment record containing ample facts

and factual disputes, most notably, Marquette’s comparative

negligence defense. On this fulsome record, the evidentiary

presumptions are superfluous; there is simply no factual void to

fill. The principal question presented and unanswered by the

record is whether the vessel will prove its comparative fault

defense at trial. The summary judgment record provokes genuine

issues for trial as to comparative fault and causation.

Accordingly, for the foregoing reasons, IT IS ORDERED: that

the parties’ motions for partial summary judgment are DENIED and

the plaintiffs’ motion to strike is DENIED as moot.

New Orleans, Louisiana, March 24, 2021

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MARTIN . C. ELDMAN

UNITED STATES DISTRICT JUDGE

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