In the Matter of Aries Marine Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF CIVIL ACTION

ARIES MARINE

CORPORATION, ET AL. No. 19-10850

c/w 19-13138

REF: ALL CASES

SECTION I

ORDER & REASONS

Before the Court is a motion1 for summary judgment filed by petitioner-in-

limitation Aries Marine Corporation (“Aries”). Claimants Calvin Abshire, Glenn

Gibson, Tomas Arce Perez, Lee Bob Rose, Gilberto Gomez Rozas, Gabriel Vilano, and

Ronald Williams (collectively, “claimants”) oppose2 the motion. For the reasons below,

the Court denies the motion.

I. FACTUAL BACKGROUND

This matter arises from a November 18, 2018 incident involving the RAM

XVIII, a 195-gross-ton liftboat3 owned and operated by Aries.4 At the relevant time,

the RAM XVIII was placed in the West Delta 68-U (“WD 68-U”) region on the Outer

1 R. Doc. No. 151.

2 R. Doc. No. 204. Claimants previously filed joint oppositions to the instant motion

at R. Doc. Nos. 177 and 189. Each of these previously filed oppositions contained the

same memorandum as that filed as R. Doc. No. 204, but lacked a statement of

material facts and certain exhibits. To reduce confusion, the Court granted claimants

permission to refile their opposition memorandum with all relevant attachments

included. R. Doc. No. 200.

3 A liftboat is a self-elevating vessel used in offshore mineral exploration and

production. E.g., R. Doc. No. 204, at 1.

4 R. Doc. No. 151-26, ¶ 1; R. Doc. No. 204-1, at 1.

Continental Shelf in the Gulf of Mexico.5 The RAM XVIII was chartered to provide

services in support of the work to be performed by claimants on a platform located in

the WD 68-U area.6

The RAM XVII arrived at the work location on November 16, 2018.7 As

planned, the starboard leg of the vessel was placed into an existing “can hole.”8 To

achieve this, the vessel’s port leg was placed in the same location where previous

liftboats had placed their legs.9

Aries asserts that, once the vessel’s legs were placed, the vessel went through

a “preload process” intended “to ensure that the leg pads [were] on stable ground and

[would] not punch through the seabed.”10 According to Aries, during this process the

vessel’s tanks were filled with water to add weight, the vessel was lifted 5 feet out of

the water, and the captain leaned the vessel on one leg at a time for 20 to 30 minutes

each.11 Aries asserts that this process began at 2 P.M. on November 16th and ended

at 3 A.M. on November 17th.12

Claimants disagree with Aries’ account of the preload. They assert that the

preload was improperly completed because the vessel used its cranes while

5 R. Doc. No. 151-26, ¶ 30; R. Doc. No. 204-1, at 3−4. Aries Marine and claimants

disagree over the exact location of the WD 68-U region. R. Doc. No. 204-1, at 2–3.

6 R. Doc. No. 151-26, ¶¶ 17–18; R. Doc. No. 204-1, at 2. The exact scope of the charter

is disputed. R. Doc. No. 204-1, at 2.

7 R. Doc. No. 151-26, ¶ 30; R. Doc. No. 204-1, at 3−4.

8 R. Doc. No. 151-26, ¶ 40; R. Doc. No. 204-1, at 4−5.

9 R. Doc. No. 151-26, ¶ 44; R. Doc. No. 204-1, at 4−5.

10 R. Doc. No. 151-26, ¶ 50.

11 Id. ¶¶ 53−56.

12 Id. ¶ 51.

preloading, in violation of Aries’ internal policies,13 and because the captain did not

jack up the hull of the vessel to the height required by Aries’ policies.14

Alternatively, claimants argue that during the time the vessel was allegedly

preloading, it in fact “jacked[ ] up to approximately 50 feet above the water” to allow

workers to board the vessel via a walkway, and therefore the vessel “may not have

preloaded at all.”15 Aries maintains that the workers were transferred to the vessel

using a crane, and that the vessel did perform a preload.16

The parties agree that, regardless of when the vessel was raised, the RAM

XVIII and the construction crew worked without incident throughout the day of

November 17, 2018.17 Then, at approximately 1:30 A.M. on November 18, 2018, the

captain noticed the bathroom door in his bunk room moving, and the vessel’s tilt

alarm rang shortly afterward.18 The captain attempted to correct the vessel’s listing,

but he was unable to do so. All occupants were evacuated, and the vessel ultimately

sank.

After this incident, Aries filed a complaint for exoneration or limitation of

liability in this Court.19 The seven claimants, all of whom were present on the vessel

during the incident, then filed answers and claims.20 Claimants also filed a separate

13 R. Doc. No. 189, at 10.

14 Id. at 11.

15 Id. at 12 (citing worker testimony to this effect).

16 R. Doc. No. 151-26, ¶ 66.

17 R. Doc. No. 151-26, ¶¶ 73−76, R. Doc. No. 204, 14−15.

18 R. Doc. No. 151-26, ¶¶ 77−78; R. Doc. No. 204, 14−15.

19 R. Doc. No. 1.

20 R. Doc. Nos. 6, 13. Six of the seven claimants were employed by Fluid Crane and

Construction. The seventh, Glenn Gibson, was employed by United Fire and Safety.

complaint21 against Fugro USA Marine, Inc. (“Fugro”), and Fieldwood Energy LLC

(“Fieldwood”). That matter was consolidated with the exoneration and limitation

action.22

In the instant motion, Aries asks this Court to find that it is entitled to

exoneration as a matter of law, and to dismiss all of claimants’ claims against it. In

the alternative, Aries asks this Court to find that it is entitled to limit its liability to

the post-incident value of the RAM XVIII and any pending freight, and to dismiss any

claim for punitive damages.

II. STANDARD OF LAW

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always

bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The party seeking summary judgment need not produce evidence

negating the existence of a material fact; it need only point out the absence of evidence

supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190,

1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory allegations should

21 E.D. La. Case No. 19-13138.

22 R. Doc. No. 51.

suffice to require a trial when there is no evidence to support them even if the movant

lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine issue of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

“Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . the material may be

presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore

Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

The party responding to the motion for summary judgment may not rest upon the

pleadings but must identify specific facts that establish a genuine issue. See

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255.

If the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must then articulate specific facts showing a genuine issue and point to

supporting, competent evidence that may be presented in a form admissible at trial.

See Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R.

Civ. P. 56(c)(1)(A), (c)(2). These facts must create more than “some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. “A non-movant will not

avoid summary judgment by presenting speculation, improbable inferences, or

unsubstantiated assertions.” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d

670, 673 (5th Cir. 2015) (quotation and citation omitted). If the nonmovant fails to

meet their burden of showing a genuine issue for trial that could support a judgment

in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d

at 1075–76.

This matter is set for a bench trial. Therefore, so long as “the evidentiary facts

are not disputed and there are no issues of witness credibility,” Manson Gulf, L.L.C.

v. Modern Am. Recycling Serv., 878 F.3d 130, 134 (5th Cir. 2017), “the district court

has the limited discretion to decide that the same evidence, presented to him or her

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) (quotation and citation

omitted).

III. ANALYSIS

“When a court determines whether a shipowner is entitled to exoneration or

limitation of liability, it employs a two-step process.” Archer Daniels Midland, Co. v.

M/T AMERICAN LIBERTY, 545 F. Supp. 3d 390, 402 (E.D. La. 2021) (Fallon, J.)

(quotations and citations omitted). “First, the party seeking to dissolve limitation

must establish that the vessel was negligent or unseaworthy, and those acts caused

the accident.” Id. (quotation and citation omitted). If the claimants do not make this

showing, the vessel owner is entitled to exoneration. If negligence or unseaworthiness

is established, then “the burden shifts to the owner of the vessel to prove that

negligence or unseaworthiness was not within the owner’s privity or knowledge.” Id.

(quotation, citation, and alteration omitted). If the owner of the vessel makes that

showing, then it is entitled to limit its liability to the value of the vessel and pending

freight. In re Omega Protein, Inc., 548 F.3d 361, 371 (5th Cir. 2008) (citing 46 U.S.C.

§ 30505(a)).

a. Exoneration

The Court first addresses exoneration. Claimants’ claims arise under 33 U.S.C.

§ 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).23 That

statute “provides longshoremen and other maritime workers with a negligence cause

of action against vessel owners.” Anthony v. Deep South Airboats, No. 21-1070, 2021

WL 4460319, at *2 (E.D. La. Sept. 29, 2021) (Ashe, J.).

In Scindia Steam Navigation Co v. De Los Santos, the Supreme Court held

that a vessel owner’s duties under § 905(b) are limited to: (1) the “turnover duty,”

which requires the vessel owner to turn over a reasonably safe ship, (2) the “active

23 R. Doc. No. 151-1; R. Doc. No. 204, at 22 & n.117 (stating that the claimants are

“longshore workers” who have the “right to bring claims against third-party vessel

owners like Aries under general maritime law via 33 U.S.C. § 905(b)”).

control duty,” which requires the vessel owner to protect against hazards under the

active control of the vessel, and (3) the “duty to intervene,” which requires that the

vessel owner intervene when it “knows of a serious hazard and the stevedore

improvidently decides to ignore that risk.” Guidry v. Noble Drilling Servs. Inc., No.

16-4135, 2018 WL 1631327, at *3 (E.D. La. Apr. 4, 2018) (Feldman, J.); Scindia

Stream Navigation Co. v. De Los Santos, 451 U.S. 156, 170 (1981).

“To be a legal cause of a plaintiff’s injury, breach of a Scindia duty must be a

‘substantial factor in the injury.’” Moore v. M/V ANGELA, 353 F.3d 376, 383 (5th Cir.

2003) (quoting Donaghey v. ODECO, 974 F.2d 646, 649 (5th Cir.1992)). “Although

posited in Scindia in terms of stevedoring operations, [the Fifth Circuit’s]

jurisprudence generally has extended this reading of the section 905(b) negligence

action to other independent contractors falling under the Longshore and Harbor

Worker’s Act.” Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 n.6 (5th Cir.

1997).

Though claimants state that they are longshore workers within the meaning

of the LHWCA, and that they bring their claims against Aries pursuant to 33 U.S.C.

§ 905(b),24 they do not state which of the Scindia duties they believe Aries breached.

Aries asserts that this matter likely falls within the “active control duty.”25 Both Aries

and claimants assume, however, that general principles of maritime negligence law

24 R. Doc. No. 204, at 22 & n.117.

25 R. Doc. No. 151-1, at 18.

apply.26 The parties further agree27 that, in order to succeed, the claimants must

show (1) that Aries Marine owed claimants a duty; (2) that Aries Marine breached

that duty; (3) that the claimants sustained damages; and (4) that the breach caused

claimants’ damages. See Kiwia v. Bulkship Mgmt, A.S., No. 21-30353, 2022 WL

3006214, at *2 (per curiam) (unreported) (5th Cir. July 28, 2022) (“To prevail on a

§ 5(b) negligence claim, the plaintiff must prove duty, breach, causation, and

damages.” (citing 1 THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW § 7:14, at

703 (6th ed. 2020))).

Aries Marine asserts that the claimants lack evidence for—and have therefore

failed to raise genuine issues of material fact as to—duty, breach, and causation.28

Claimants offer two theories as to why the listing incident occurred: first, that one of

the vessel’s legs experienced a “punch-through event,” in which the port leg further

penetrated the seabed, and second, that “its port leg slid into a nearby hole or

impression left by another rig or vessel.” Claimants argue that Aries was negligent

under either theory.

The Court concludes that the factual dispute as to whether the RAM XVIII

performed a preload before jacking up to allow the workers to cross via a walkway

precludes summary judgment. Aries itself states that the preload is performed “to

ensure that the leg pads are on stable ground and will not punch through the

26 Id.; R. Doc. No. 204, at 7.

27 See R. Doc. No. 151-1, at 18–19; R. Doc. No. 204, at 7.

28 R. Doc. No. 151-1, at 19.

seabed.”29 Both parties indicate that Aries’ captain was responsible for performing

the preloading process.30 If, as claimants argue, the captain did not perform a preload,

that could constitute negligence in an area under the vessel’s “active control,” and

could have been a “substantial factor” in causing a punch through event. See

Blanchard v. Weeks Marine, Inc., No. 13-5089, 2014 WL 1414640, at *5 (E.D. La. Apr.

11, 2014) (Africk, J.) (noting that, under the § 905(b) “active control” duty, “a vessel

owner no longer retains the primary responsibility for safety in a work area turned

over to an independent contractor, [but] no such cession results as relates to areas or

equipment over which the vessel’s crew retains operational control”); Guidry, 2018

WL 1631327, at *3; Moore, 353 F.3d at 383.

Because the Court concludes that this dispute constitutes a genuine dispute of

material fact precluding summary judgment, it defers consideration of the remainder

of the parties’ arguments until trial.

b. Limitation of Liability

Aries alternatively requests that this Court find that it is entitled to limit its

liability to the value of the RAM XVIII and any pending freight at the end of the

voyage. As stated above, in order to be entitled to limitation, Aries must show that

any negligence that occurred was not within its privity or knowledge. Archer Daniels

Midland, 545 F. Supp. 3d at 402. The Court concludes that summary judgment on

this issue is not warranted.

29 Id. at 9.

30 See R. Doc. No. 151-26, ¶¶ 49−65; R. Doc. No. 204-1, at 7−13.

First, the Court notes that, pursuant to 46 U.S.C. § 30506, in the case of a

“seagoing vessel,” “privity or knowledge of the master or the owner’s superintendent

or managing agent, at or before the beginning of each voyage, is imputed to the

owner.” Though the statute does not define “seagoing vessel,” the Fifth Circuit has

defined the term as meaning a vessel that is either intended to navigate or does

navigate beyond twelve nautical miles from the coast of the United States. Matter of

Talbott Big Foot, Inc., 854 F.2d 758, 761 (5th Cir. 1988). Claimants assert,31 and Aries

does not dispute, that the RAM XVIII is a seagoing vessel within the meaning of the

statute. Moreover, the parties agree that the RAM XVIII was located more than

twelve nautical miles from the coast at the time of the incident,32 and the record

suggests that the vessel navigated there itself.33 Accordingly, to the extent negligent

acts took place before the beginning of the voyage, knowledge and privity appear to

be imputed to Aries.

Even if privity and knowledge are not imputed pursuant to § 30506, claimants

have pointed to evidence that, if credited, could support Aries’ privity or knowledge

of negligence, namely: providing an allegedly unqualified captain and allegedly

31 R. Doc. No. 204, at 20.

32 Aries states that the WD 68-U block is approximately 20 nautical miles west of

Southwest Pass, Louisiana, while claimants maintain that it is approximately 15

nautical miles south-southeast of Grand Isle, Louisiana. R. Doc. No. 204-1, at 1−2.

The parties therefore seem to agree that the RAM XVIII was located more than 12

nautical miles from the coast of the United States.

33 E.g., R. Doc. No. 151-26, ¶ 30 (“The RAM XVIII then proceeded to the West Delta

68 field on the OCS.”), ¶ 35 (“As the RAM XVIII neared the WD-68U platform,

Plaisance contacted the platform by radio to request permission to proceed closer

than 500 feet.”).

failing to properly train the captain as to how to operate the RAM XVIII in foreseeable

conditions. See Matter of Dredge Big Bear, 525 F.Supp.3d 731, 740 (M.D. La. 2021)

(“Privity and knowledge exist where a vessel owner fails to provide training needed

to operate the vessel safely in known or foreseeable conditions.”). Accordingly, the

Court finds that summary judgment as to limitation of liability is not warranted.

c. Punitive Damages

Aries requests that this Court dismiss all punitive damages claims against it.

Aries asserts that punitive damages are unavailable as a matter of law because (1)

“punitive damages are only recoverable against a third-party tortfeasor by a

longshore worker who is injured in state territorial waters” and (2) claimants lack

evidence of willful and wanton conduct on Aries’ part.34

In support of its first argument, Aries cites only Sinegal v. Merit Energy Co.,

in which the court held “that general maritime law precludes claims for loss of

consortium for injuries to longshoreman that occur outside of the territorial waters

of the United States.” No. 07-1740, 2010 WL 1335151, at *3 (W.D. La. Mar. 29, 2010)

(citing Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 122–123 (5th Cir. 1994)).

That case does not discuss the availability of punitive damages, and Aries does not

explain how the case supports its position.35

34 R. Doc. No. 151-1, at 24−25.

35 In its reply in support of its motion, Aries states that it “maintains that it has a

good faith basis legal argument regarding the non-availability of [ ] punitive damages

for longshore workers injured outside of territorial waters,” R. Doc. No. 231, at 8, but

does not explain what that basis is.

Punitive damages may be available in claims brought pursuant to § 905(b).

Bommarito v. Belle Chasse Marine Transp., No. 21-204, 2022 WL 2149445, at *8 (E.D.

La. June 10, 2022) (Fallon, J.); In re Rodi Marine LLC, No. 17-5394, 2019 WL 861251,

at *3 (E.D. La. Feb 22, 2019) (Morgan, J.) (noting that the Fifth Circuit has left the

question open and collecting district court opinions holding that punitive damages

may be recovered under § 905(b)). “To recover punitive damages, [claimants must

demonstrate the defendant engaged in behavior that is more than merely negligent;

rather, the court looks for gross negligence, reckless or callous disregard for the rights

of others or actual malice or criminal indifference.” In re Rodi Marine LLC, 2019 WL

861251, at *3 (cleaned up).

For largely the same reasons that preclude summary judgment as to

exoneration and limitation, the Court concludes that summary judgment on punitive

damages is likewise not warranted.

IV. CONCLUSION

For the reasons stated above,

IT IS ORDERED that Aries’ motion** for summary judgment is DENIED.

New Orleans, Louisiana, January 19, 2023.

□□

Sfp

UNITED S¥FATES DISTRICT JUDGE

86 R. Doc. No. 151.

13