“[I]t is unclear whether the testimony [taken at a Coast Guard hearing while it was investigating a collision] is even admissible in a civil case pursuant to § 6308.”
How later courts described this case
- “[I]t is unclear whether the testimony [taken at a Coast Guard hearing while it was investigating a collision] is even admissible in a civil case pursuant to § 6308.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COX OPERATING, LLC CIVIL ACTION
VERSUS NO: 20-2845
c/w 20-2871
ATINA M/V ET AL. SECTION “H”
ORDER AND REASONS
Before the Court are Petitioner Besiktas Likid Tasimacilik Denizcilik
Ticaret A.S.’s Motion to Strike (Doc. 356) and Cox Operating, LLC, Energy XXI
GOM, LLC, and EPL Oil & Gas, LLC’s Motion for Reconsideration (Doc. 355).
For the following reasons, the Motion to Strike is GRANTED, and the Motion
for Reconsideration is DENIED.
BACKGROUND
This action arises out of an allision between the M/V ATINA and the SP
57B offshore platform. In this action, Cox Operating, LLC, Energy XXI GOM,
LLC, and EPL Oil & Gas, LLC (collectively “Claimants”) bring general
maritime negligence and punitive damages claims against Besiktas Likid
Tasimacilik Denizcilik Ticaret A.S. (“Besiktas”), the crew and technical
1
manager of the M/V ATINA, for damages sustained by the SP 57B platform.1
This Court considered summary judgment motions on the issue of punitive
damages and found that, even taking the facts in a light most favorable to
Claimants, no reasonable trier of fact could award punitive damages.2 The full
facts of this matter are detailed therein.3
Claimants now ask this Court to reconsider that holding. They provide
the Court with new evidence that they contend creates a material issue of fact
as to the issue of punitive damages. Petitioner Besiktas, for its part, moves to
exclude that evidence from consideration, arguing that it is not admissible. The
Court will consider each Motion in turn.
LAW AND ANALYSIS
A. Besiktas’s Motion to Strike
Besiktas moves to strike Claimants’ Exhibits 1 and 26 submitted in
support of their Motion to Reconsideration of Dismissal of Punitive Damages
Claims. At the outset, Claimants argue that Besiktas’s Motion is procedurally
improper because motions to strike under Federal Rule of Civil Procedure 12(f)
are limited to pleadings. This Court finds Besiktas’s Motion to be proper under
Federal Rule of Civil Procedure 56(c)(2). Rule 56(c)(2) provides that on
summary judgment “[a] party may object that the material cited to support or
1 Claimants also brought claims against Hanzhou 1 Ltd., as owner of the M/V ATINA,
and Ciner Ship Management, as the commercial manager, but this Court dismissed those
claims on summary judgment (Docs. 334, 347). Claimants also bring claims against Atina
Martime Limited, the bareboat charterer of the M/V ATINA, but this Court dismissed the
punitive damages claims against it on other grounds, Doc. 347 at 10, n.22, and Claimants do
not ask for reconsideration of that holding.
2 Doc. 347.
3 Id.
2
dispute a fact cannot be presented in a form that would be admissible in
evidence.” Because Claimants ask this Court to consider new evidence in
reconsidering their Motion for Partial Summary Judgment on punitive
damages, Besiktas’s Motion is appropriate under Rule 56. Claimants have the
burden to show that “the material is admissible as presented or to explain the
admissible form that is anticipated.”4
The exhibits at issue contain excerpts of transcripts of post-allision
interviews with the master of the M/T ATINA, Capt. Fuat Onur Hurmuzlu,
and the Second Officer of the M/T ATINA, Bertan Pisirici, taken as part of an
investigation on behalf of the United States Coast Guard (USCG) and/or the
United States National Transportation Safety Board (NTSB). Besiktas argues
that the interviews are inadmissible pursuant to 46 U.S.C. § 6308(a), which
prohibits any part of a USCG report from being used as evidence in a civil trial,
or 49 U.S.C. §1154(b), which prohibits any part of a NTSB report from being
admitted into evidence in a civil action.
The parties dispute the applicability of 46 U.S.C. § 6308(a) and 49 U.S.C.
§ 1154(b) to the interview transcripts at issue. 46 U.S.C. § 6308(a) states:
Notwithstanding any other provision of law, no part of a report of
a marine casualty investigation conducted under section 6301 of
this title, including findings of fact, opinions, recommendations,
deliberations, or conclusions, shall be admissible as evidence or
subject to discovery in any civil or administrative proceedings,
other than an administrative proceeding initiated by the United
States.5
4 FED. R. CIV. P. 56 cmt.
5 46 U.S.C. § 6308(a).
3
49 U.S.C. § 1154(b) similarly provides: “No part of a report of the [NTSB],
related to an accident or an investigation of an accident, may be admitted into
evidence or used in a civil action for damages resulting from a matter
mentioned in the report.”6
The parties dispute whether the transcripts of the interviews are “part
of” the USCG or NTSB report and therefore whether they should be excluded
under 46 U.S.C. § 6308(a) or 49 U.S.C. § 1154(b). Judge Barbier addressed this
issue with respect to the joint investigation of the Deepwater Horizon oil spill
between the Coast Guard and the Bureau of Ocean Energy Management,
Regulation, and Enforcement.7
Joint Investigation testimony, photographs, and other
material within Volumes I and II [of the Joint Investigation
Report] are excluded; though this does not prevent the admission
of evidence existing independently of the Joint Investigation or
that likely would have been created absent the investigation.
“Factual data” displayed or cited within the report are “parts” of
the report within the meaning of the statute. The statutory list of
findings of fact, opinions, and so forth is illustrative only.
Additionally, Joint Investigation witnesses likely provided
testimony with inadmissible components. See 46 C.F.R. § 4.19-5
(providing that “strict adherence to the formal rules of evidence is
not imperative” at marine casualty investigation hearings). . . .
Hearsay exceptions do not make any portions of the Joint
Investigation Report admissible. The applicable statute states,
“Notwithstanding any other provision of law, no part of a report of
a marine casualty investigation ... shall be admissible as
evidence....” 46 U.S.C. § 6308(a) (emphasis added). The Federal
Rules of Evidence (“FREs”) are “provisions of law,” and the fact
that they address the hearsay problem does not alter the statute’s
6 49 U.S.C. § 1154(b).
7 In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on Apr. 20,
2010, No. MDL 2179, 2012 WL 13026743, at *1–2 (E.D. La. Jan. 26, 2012).
4
broad prohibition against the admission of marine casualty
investigation reports and testimony.8
This Court finds Judge Barbier’s reasoning compelling. The interviews
of the ATINA crewmembers by the USCG were taken as part of its
investigation of the allision and the facts gleaned therein formed the basis of
the USCG’s report on the allision.9 “The investigations of marine casualties
and accidents and the determinations made are for the purpose of taking
appropriate measures for promoting safety of life and property at sea, and are
not intended to fix civil or criminal responsibility.”10 Accordingly, this Court
agrees that 46 U.S.C. § 6308(a) and 49 U.S.C. § 1154(b) prevent the use of
transcripts of interviews taken by the USCG in the course of an investigation
in a civil trial.11
For their part, Claimants rely on another case from this district,
Complaint of Danos & Curole Marine Contractors, Inc.12 There, the court
considered whether photographs taken during a marine casualty investigation
were inadmissible pursuant to § 6308.13 The court concluded that the
photographs were not the “conclusory items which the statute seeks to
8 Id.
9 See Incardone v. Royal Caribbean Cruises, Ltd., No. 16-20924-CIV, 2020 WL
3507533, at *2 (S.D. Fla. June 29, 2020) (“[B]y cross-referencing the Report and the testimony
contained within the interview transcripts, it is particularly apparent that the ‘Narrative of
Events’ as described in the Report derives from the statements made during the course of
these investigative interviews.”).
10 46 C.F.R. § 4.07-1(b); Nexen Petroleum U.S.A., Inc. v. Sea Mar Div. of Pool Well
Servs. Co., No. 06-3043, 2007 WL 2874805, at *4 (E.D. La. Sept. 26, 2007).
11 See Gabarick v. Laurin Mar. (Am.), Inc., 406 F. App’x 883, 890 (5th Cir. 2010) (“[I]t
is unclear whether the testimony [taken at a Coast Guard hearing while it was investigating
a collision] is even admissible in a civil case pursuant to § 6308.”).
12 In re Complaint of Danos & Curole Marine Contractors, Inc., 278 F. Supp. 2d 783,
785 (E.D. La. 2003).
13 Id.
5
exclude,” explaining that “the photographs do not provide findings of fact,
opinions, recommendations, deliberations, nor conclusions, instead, they
merely illustrate the condition of the objects depicted in the photos as they
existed” on the date of the allision and investigation.14 Important to that case,
however, was the fact that the photographs were the only evidence depicting
the condition of the vessel on the day of the allision.15 Subsequent to the USCG
investigation but before any other party could perform an inspection, the
wiring of the vessel was replaced “materially altering the condition and
appearance of the wiring which was the subject of the Coast Guard Report.”16
Setting aside the obvious difference between photographs and interview
transcripts, the opinion in Complaint of Danos & Curole Marine Contractors,
Inc. is distinguishable because here the parties have not presented any reason
why the testimony of the crewmembers of the ATINA could not have been
taken independent of the USCG investigation and presented in an admissible
form. Accordingly, this Court does not find Claimants’ reliance on Complaint
of Danos & Curole Marine Contractors, Inc. compelling. Besiktas’s Motion is
granted, and this Court will not consider Exhibits 1 and 26 in deciding
Claimants’ Motion for Reconsideration of Dismissal of Punitive Damages
Claims.
B. Motion for Reconsideration of Dismissal of Punitive Damages
Claims
Claimants have asked this Court to reconsider its decision to dismiss
their punitive damages claims under Federal Rule of Civil Procedure 59(e).
14 Id.
15 Id.
16 Id.
6
However, because the Court’s order dismissing Claimants’ punitive damages
claims was an interlocutory order, this Motion is properly considered under
Rule 54(b). Rule 54(b) states that: “[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.” “Under
Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any
reason it deems sufficient, even in the absence of new evidence or an
intervening change in or clarification of the substantive law.’”17 “‘[T]he power
to reconsider or modify interlocutory rulings is committed to the discretion of
the district court, and that discretion is not cabined by the heightened
standards for reconsideration’ governing final orders.’”18
Claimants argue generally that the Court erred in failing to view the
evidence in a light most favorable to them in dismissing their claim for punitive
damages. In particular, they contend that the Court erred in making four
factual findings. First, Claimants argue that the Court erred in finding that
there was no evidence that any representative of Besiktas knew that Captain
Hurmuzlu was fatigued or that he had not slept in 52 hours prior to the
allision. In so arguing, Besiktas relies on the transcript of Hurmuzlu’s
interview with the USCG. As previously discussed, this evidence is
inadmissible pursuant to 46 U.S.C. § 6308(a) and 49 U.S.C. § 1154(b).
17 Austin v. Kroger Tex., L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
18 Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. Appx. 829, 831–32 (4th Cir.
2011).
7
Claimants do not offer any other evidence that any corporate official was aware
that Hurmuzlu was fatigued. To be sure, Besiktas was aware of his lengthy
travel schedule, but there is no evidence that they were aware that he did not
sleep at any point on his flights from Istanbul to New Orleans.
Relatedly, Claimants complain about the Court’s finding that there was
“no reason for Petitioners to believe that placing Hurmuzlu at the helm of the
ATINA created a risk to others.”19 Claimants argue that Besiktas put
Hurmuzlu in command of the ATINA at night without following turnover or
rest rules when they knew that he was not familiar with the ATINA and that
he had never operated a tanker of that size.20 As the Court previously pointed
out, however, Besiktas also knew that Hurmuzlu would be assisted by a river
boat pilot, a second officer, and a chief officer in navigating the ATINA to an
anchorage location. Even viewing this evidence in a light most favorable to
Claimants, it does not rise to the level of conduct meriting an award of punitive
damages. Under general maritime law, punitive damages may be available if
the plaintiff proves that the defendant’s behavior was “so egregious as to
constitute gross negligence, reckless or callous disregard for the rights of
others, or actual malice or criminal indifference.”21 The Supreme Court has
advised that “[p]unitive damages are limited to cases of ‘enormity,’ that is,
where a defendant’s conduct is outrageous, owing to gross negligence, willful,
wanton, and reckless indifference for others’ rights, or even more deplorable
conduct.”22 “The theory of a punitive damage award is that the defendant has
19 Doc. 355 (quoting Doc. 347).
20 Besiktas contests the assertion that Hurmuzlu had never captained a vessel of that
size.
21 Gonzalez v. Sea Fox Boat Co. Inc., 582 F. Supp. 3d 378, 381 (W.D. La. 2022).
22 Exxon Shipping Co. v. Baker, 554 U.S. 471, 492 (2008).
8
committed the civil equivalent of a crime.”23 Claimants’ allegations amount to
garden-variety negligence and are not the outrageous, egregious conduct
warranting punitive damages.
Next, Claimants complain about the Court’s finding that there was no
evidence that Besiktas’s actions were motivated by money. In so arguing,
Claimants still do not present any such evidence. Instead, they argue that
Besiktas’s motivation can—and should—be inferred from its actions where
Besiktas “disregarded an easy, safe option—changing crew at the dock—in
favor of a reckless alternative” of performing a crew change in the middle of
Mississippi River.24 To do so, this Court would have to ignore the testimony of
Besiktas’s agent to the contrary.25 Besiktas’s agent testified that it did not
consider performing the transfer at the Nustar dock, that the plan was to
perform the transfer at the Southwest Pass Anchorage, and that the decision
was not motivated by money.26 Claimants have refused to acknowledge that
Besiktas was addressing a rapidly changing situation. The captain of its vessel
began acting erratically, its initial selection to relieve him did not have the
required visa, and then its initial plan to perform the master exchange at the
Southwest Pass Anchorage changed either because of the weather or because
of the captain’s demands to get off the vessel. The most reasonable inference is
that it was doing its best to address a fluid situation and not that it was
motivated by money. Further, even assuming Besiktas was motivated by
23 Matter of Crosby Marine Transportation, L.L.C., No. CV 17-14023, 2021 WL
1931168, at *4 (E.D. La. May 13, 2021).
24 Doc. 355.
25 See Doc. 274-3 at 122 (Besiktas’s representative stating that there was no financial
reason no waiting at NuStar terminal to conduct the captain transfer).
26 Id.
9
money in its decision-making, its actions were not the outrageous, egregious
conduct warranting punitive damages.
Finally, Claimants argue that the Court erred in finding that there was
a “collective confusion” between Hurmuzlu and his second officer in the bridge
prior to the accident “regarding whether the platform was moving and, if so, in
what direction and at what speed.”27 Claimants contend that the confusion was
Hurmuzlu’s alone and was a result of his fatigue. They argue that the second
officer talking to Hurmuzlu likely did not realize that Hurmuzlu was asking
questions about the platform because that was “unthinkable” and therefore his
answers were identifying a nearby vessel. Accepting Claimants’ interpretation
of the conversation of the bridge, the second officer was confused about what
Hurmuzlu was asking him. Ergo, there was confusion. The Court’s statement
that there was a “collective confusion” was not error and further had no bearing
on the Court’s holding.
Accordingly, Claimants have not identified any error of fact committed
by this Court in its decision dismissing their claim for punitive damages. They
also argue that the Court erred as a matter of law in holding that Besiktas’s
conduct was not sufficiently egregious. In so arguing, however, they simply
rehash arguments already considered and rejected by this Court.
It is well-settled that “in bench-trial cases the district court has greater
discretion to grant summary judgment.”28 The Court is permitted to draw
inferences from what has been incontrovertibly proven in order to avoid the
expense of trial.29 “The judge may decide that the same evidence, presented to
27 Doc. 355 (quoting Doc. 347).
28 Jones v. United States, 936 F.3d 318, 323 (5th Cir. 2019).
29 Nunez v. Superior Oil Co., 572 F.2d 1119, 1123–24 (5th Cir. 1978).
10
him or her as a trier of fact in a plenary trial, could not possibly lead to a
different result.”2° Here, the Court need not resolve any issues of fact to find
that there is no presentation of the evidence in which it would find punitive
damages are warranted.
CONCLUSION
For the foregoing reasons, Petitioner Besiktas’s Motion to Strike is
GRANTED and Claimants Cox Operating, LLC, Energy XXI GOM, LLC, and
EPL Oil & Gas, LLC’s Motion for Reconsideration is DENIED.
New Orleans, Louisiana this 20th day of July, 2023.
g TRICHE Lh 4
UNITED STATES DISTRICT JUDGE
30 Jones, 936 F.3d at 323.
11