The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELTA MARINE SUPPORT, LLC, ET AL. CIVIL ACTION
VERSUS NO. 21-2003
MARSH BUGGIES, INC., ET AL. SECTION “R” (1)
ORDER AND REASONS
Before the Court is plaintiffs Delta Marine Support, LLC (“Delta
Marine”) and Shallow Water Equipment, LLC’s (“Shallow Water”) motion
for partial summary judgment.1 Defendants Marsh Buggies, Inc. and Liberty
Mutual Insurance Company (“Liberty Mutual”) oppose the motion.2
Because material facts remain in dispute, the Court denies the motion.
I. BACKGROUND
This case involves a dispute regarding liability for alleged damage to a
spud barge. In March of 2021, plaintiff Delta Marine chartered the spud
barge LA TIGER from plaintiff Shallow Water.3 Delta Marine in turn
1 R. Doc. 8.
2 R. Doc. 9.
3 R. Doc. 8-5 at 3 (Charter Agreement between Shallow Water and Delta
Marine) (Mar. 24, 2021).
chartered the LA TIGER to defendant Marsh Buggies.4 Marsh Buggies
obtained a hull insurance policy (the “Policy”) with defendant Liberty
Mutual, covering the LA TIGER.5 The Policy names Delta Marine as the loss
payee,6 and provides that the insurance covers, inter alia, “any latent defect
in the machinery or hull,”7 as well as losses or damage caused by “[a]ccidents
on shipboard or elsewhere,” or “[n]egligence, error of judgment or
incompetence of any person.”8 The Policy expressly excludes from coverage
“the cost of repairing, replacing or renewing any part condemned solely as a
result of a latent defect, wear and tear, gradual deterioration or fault or error
in design or construction.”9 The Policy also excludes from coverage any
damage that results from “want of due diligence by” Delta Marine.10
On March 24, 2021, the day the LA TIGER was chartered to Marsh
Buggies, James Bailey, a credentialed marine surveyor, surveyed the barge.11
Bailey’s report noted, among other observations, that the deck plating on the
4 Id. at 4 (Charter Agreement between Delta Marine and Marsh Buggies)
(Mar. 24, 2021).
5 R. Doc. 8-4 at 1-4 (Commercial Marine Hull Policy) (Apr. 1, 2021).
6 Id. at 34.
7 Id. at 33.
8 Id.
9 Id.
10 Id.
11 See R. Doc. 8-3 at 1-2 (Declaration of James Bailey) (Jan. 18, 2022).
barge was “moderately to heavily wash boarded throughout,”12 including
zero- to one-inch “random indents throughout.”13 The survey report also
indicated that other parts of the barge, including the spuds, spud engine, and
spud winches, were operating properly.14 Bailey included twenty
photographs of the barge at the time of inspection,15 and concluded that the
“spud barge, as described [in the report], [was] in good condition.”16
On August 2 and 3, 2021, after the LA TIGER’s return from Marsh
Buggies, Bailey conducted another survey of the barge.17 This “off-charter”
survey indicated that the deck plating was “heavily wash boarded,” and that
some areas are “set down” zero to two inches.18 Bailey also found that the
forward spud was broken, and its spud winch was “torn apart with pieces
lying on the deck.”19 Bailey included thirty pages of photographs
documenting these observations, and recommended multiple repairs to the
barge.20
12 Id. at 8 (Survey Report of James Bailey) (Mar. 24, 2021).
13 Id.
14 Id. at 7.
15 Id. at 16-25.
16 Id. at 15.
17 Id. at 26-58 (Survey Report of James Bailey) (Aug. 5, 2021).
18 Id. at 26.
19 Id. at 27.
20 Id. at 26-28.
On November 1, 2021, Delta Marine, Shallow Water, and Tidewater
Dock, Inc., the owner of a different barge involved in this litigation,21 filed
suit in this Court, invoking federal admiralty jurisdiction under 28 U.S.C.
§ 1333.22 Plaintiffs allege that Marsh Buggies owes repair costs, charter-hire
fees until the barge is repaired, and attorneys’ fees.23 Plaintiffs allege that
Liberty Mutual, as the hull insurer of the LA TIGER, owes repair costs,
damages for its arbitrary denial of coverage, and bad-faith damages under
La. Rev. Stat. §§ 22:1973 and 22:1892.24
On January 18, 2022, plaintiffs Delta Marine and Shallow Water
moved for partial summary judgment.25 As to Liberty Mutual, movants seek
coverage for (i) the broken spud, (ii) the broken spud winch, and (iii) the
damaged deck.26 Movants represent that the first two items have already
been repaired, but, because of cost, the deck has not yet been repaired.27 As
to Marsh Buggies, movants seek the same damages for repairs to the barge,
21 Plaintiffs also allege damage to a barge named the DJV #3 and an
excavator named the Linkbelt #24. Only the LA TIGER is at issue on
this motion for summary judgment.
22 R. Doc. 1 ¶¶ 1-7 (Complaint).
23 Id. ¶ 36.
24 Id. ¶ 40.
25 R. Doc. 8.
26 R. Doc. 8-1 at 1.
27 Id.
as well as charter-hire fees while the barge is inoperable, and attorneys’ fees,
which they contend are due under the parties’ contract.28
Liberty Mutual and Marsh Buggies oppose the motion, asserting that
material facts remain in dispute.29 Specifically, defendants argue that there
are factual disputes regarding the nature, cause, and age of the damage to
the barge, including the question of whether the alleged damage constitutes
ordinary wear and tear.30 Defendants also argue that, despite movants’
contentions, the LA TIGER is able to return to work in its current condition.31
The Court considers the parties’ arguments below.
II. LEGAL STANDARD
Summary judgment is warranted when “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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
28 Id. at 2.
29 R. Doc. 9.
30 Id. at 6-8.
31 Id. at 8.
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION
The parties dispute coverage regarding the alleged damage to the deck
of the LA TIGER. There appears to be no ongoing dispute regarding the
barge’s broken spud and spud winch. Liberty Mutual represents, and
plaintiffs do not contest, that defendants have offered to pay for the already-
completed repairs to those parts of the barge.32 Accordingly, the Court
addresses only the parties’ dispute regarding the barge’s deck.
The Court finds that multiple issues of fact regarding the nature, cause,
and extent of damage to the deck of the LA TIGER preclude summary
judgment. Indeed, plaintiffs concede that they “cannot tell the Court
precisely when and how the barge was damaged.”33 While plaintiffs contend
that the damage occurred during the charter, and was caused by the
operations of Marsh Buggies, defendants’ expert surveyor, Randy Bullard,
opines that many aspects of the damage predated the charter.34 He notes
that, at the time of Bailey’s initial survey of the barge’s deck, the “newer paint
coating aids in camouflaging/blending the washboarding in [the] photos . . . ,
whereas the coating loss atop the internals in later photos emphasizes the
washboarding by framing the depressions.”35 Bullard further opines that
certain problems on the deck identified at the off-charter survey “are visibly
present at the time of [the first] survey.”36 He also states that the
washboarding identified by plaintiffs as damage is “within the industry
32 Id. at 2.
33 R. Doc. 8-1 at 7.
34 R. Doc. 9-5 at 2-3 (Bullard Report) (Jan. 31, 2022).
35 Id. at 3.
36 Id.
standard guidelines of normal wear and tear, and therefore [is] not
characterized as damage.”37 As noted above, wear and tear is excluded from
coverage under the Liberty Mutual Policy.
Moreover, while plaintiffs assert that the damage to the LA TIGER has
precluded the barge’s return to service, defendants have introduced evidence
to the contrary. Specifically, Bullard states that, because the “LA TIGER is
not a certificated or inspected vessel by Coast Guard standards/regulations,
any maintenance or repair of the vessel would be at the discretion of the
vessel owner, not by mandate of the Coast Guard.”38 According to Bullard,
there are thus “no existing restrictions to the continued, uninterrupted use
of the vessel since the time of vessel return.”39 Bullard also opines that “the
condition of the vessel as returned would not make [it] unfit for its intended
service.”40 Facts regarding the operability of the LA TIGER therefore remain
in dispute.
This conflicting record precludes any findings regarding whether the
asserted damage to the LA TIGER amounts to ordinary “wear and tear” for
the purposes of the Liberty Mutual Policy, and whether the vessel is able to
37 Id. at 5.
38 Id.
39 Id.
40 Id.
return to service.41 These uncertainties also render impossible any
calculation of what Marsh Buggies might owe for repairs under the contract,
as well as the necessity of those repairs, which in turn affects the extent of
Marsh Buggies’s obligations to pay charter hire and attorneys’ fees.
Resolving the nature, extent, cause, and consequences of the damages
to the LA TIGER, as well as the associated obligations of Marsh Buggies and
its insurer, Liberty Mutual, will require, at the very least, an assessment of
conflicting expert opinions, and interpretation and comparison of survey
photographs. These factfinding tasks and credibility judgments are not
appropriate for the summary-judgment stage. Because material facts remain
in dispute, Delta Marine and Shallow Water are not entitled to summary
judgment.
41 R. Doc. 8-4 at 33 (Commercial Marine Hull Policy) (Apr. 1, 2021).
IV. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’ motion for
partial summary judgment.
New Orleans, Louisiana, this 4th day of April, 2022.
dernk Varner
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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