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In re Complaint of Marquette Transportation Company Offshore, LLC

United States District Court, W.D. Kentucky

March 22, 2019

IN RE THE MATTER OF THE COMPLAINT OF MARQUETTE TRANSPORTATION COMPANY OFFSHORE, LLC, AS OWNER AND OPERATOR OF THE M/V MISS BECKY, FOR EXONERATION FROM OR LIMITATION OF LIABILITY
v.
ABEL CISNEROS CLAIMANTS MARQUETTE TRANSPORTATION COMPANY OFFSHORE, LLC PETITIONER AND GREAT LAKES DREDGE & DOCK COMPANY, LLC

          MEMORANDUM OPINION AN ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE

         This matter is before the Court upon a motion by Petitioner Marquette Transportation Company Offshore, LLC (“Marquette”) against Claimant Abel Cisneros (“Cisneros”). [DN 84]. Claimant Cisneros has responded, [DN 87], and Marquette has filed its reply [DN 91]. Fully briefed, Marquette's motion is ripe for review, and for the following reasons, it is GRANTED.

         Background

         Abel Cisneros was employed by Marquette at all times relevant to this case. [DN 84-1 at 4]. In November 2015, Cisneros was set to begin work on the tug boat M/V MISS KATIE.[1] Id. During his hitch on the MISS KATIE, Cisneros would be working on a Great Lakes dredging project near Sandy Hook, New Jersey. [DN 87 at 1]. The MISS KATIE's role on the dredging project was to assist by moving scows[2] after the Great Lakes' dredges had filled them with dredge materials. [DN 84-1 at 5]. The dredges and scows used in the project were owned and operated by Great Lakes. Id.

         On November 3, 2015, Cisneros arrived at a dock in Atlantic Highland, New Jersey, where he boarded a crewboat named the M/V NS-IV. [DN 84-1 at 4]. Great Lakes supplied the NS-IV to transport employees out to the dredging project. [DN 84-2 at 2]. The NS-IV was scheduled to transport Cisneros to the MISS KATIE. [DN 84-1 at 4]. The NS-IV was operated by Great Lakes employees. Id. Cisneros claims that he injured his back while boarding the NS-IV (“The First Incident”). [DN 87 at 3]. More specifically, Cisneros claims that he felt a “pop” in his back while handing his bag to the captain of the NS-IV. Id. The captain of the NS-IV, a great lakes employee, had instructed Cisneros to hand his bag over. [DN 87 at 1]. Although it is disputed, it appears that Cisneros's bag-which Cisneros packed-weighed between forty and sixty pounds. [DN 84-1 at 4; DN 87-1 at 6]. No. other Marquette employees were present when Cisneros boarded the NS-IV. [DN 84-1 at 4]. Cisneros did not report his alleged injury until the next day. Id. at 4-5.

         Cisneros testified that after handing his bag to the captain of the NS-IV, he boarded the crewboat using a ladder. [DN 87-2 at 47-48]. The captain of the MISS KATIE, Charles Cannon, boarded the NS-IV earlier that day from the same dock.[3] [DN 87 at 2]. Captain Cannon testified that he boarded the NS-IV using stairs that Great Lakes provided for him. [DN 91 at 9].

         The next day, after boarding the MISS KATIE, Cisneros boarded a Great Lakes scow to untie it from the dredge. [DN 84-1 at 5]. Cisneros was the only Marquette employee on the scow. Id. Cisneros claims that he felt a bump or jerk while working on the scow that caused him to injure his back (“The Second Incident”). [DN 84-1 at 5]. More specifically, Cisneros claims that either the MISS KATIE or the Great Lakes dredge struck the scow thereby causing the bump or jerk. Id. The only evidence of the bump on the record is Cisneros's testimony. Id. Cisneros testified that he does not know which vessel struck the scow. Id.

         After he finished untying the scow from the dredge, Cisneros returned to the MISS KATIE and-for the first time-reported to Captain Cannon that he had felt a pop in his back the day before when handing his bag to the captain of the NS-IV. [DN 84-4 at 34-37]. Cisneros told Captain Cannon that he had woken up on the day of the Second Incident with significant back pain but decided to try to work through it. Id. Cisneros reported to Captain Cannon that as the day went on his pack pain continued and therefore he decided to stop working. Id. Cisneros did not report a bump to Captain Cannon. Id. Cisneros was then transferred off the MISS KATIE. Id.

         Cisneros filed suit in March 2017 against Marquette and Great Lakes in Harris County, Texas. [DN 84-1 at 6]. Marquette then filed a complaint for Exoneration from or Limitation of Liability on March 30, 2017 in the United States District Court for the Eastern District of Louisiana, and the litigation in Harris County, Texas was stayed. Id. Cisneros filed an Answer and Claim in the limitation action [DN 27, as amended by DN 62-2], alleging both that Marquette was negligent and that it failed to provide a seaworthy vessel. On consent motion, the limitation action was transferred to the United States District Court for the Southern District of Texas by Order dated April 17, 2017. [DN 12]. Finally, the matter was transferred to the Western District of Kentucky by Order dated July 17, 2017. [DN 34]. Cisneros claims that it was the unseaworthiness of the MISS KATIE and/or the negligence of Marquette that caused him-at least in part-to injure his back.

         Legal Standard

         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 556 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.'” Back v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).

         As the party moving for summary judgment, Marquette must shoulder the burden of showing the absence of a genuine dispute of material fact, as to at least one essential element of each of Cisneros's claims. Fed.R.Civ.P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If Marquette satisfies its burden of production, Cisneros “must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).

         Discussion

         I. Unseaworthiness.

         Often compared to strict liability or no-fault claims, seaworthiness stems from a shipowner's “absolute duty to maintain a seaworthy ship, the breach of which imposes liability without fault.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir. 2001) (citing Brown v. Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958)). To prevail, a plaintiff must show that the vessel upon which he was injured was unseaworthy, and that the vessel's unseaworthy condition was the proximate cause of his injuries. Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir. 2006). “A vessel is unseaworthy if the vessel and its appurtenances are not ‘reasonably fit for their intended use.'” Id. (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960)). An unseaworthy condition “proximately causes an injury if it played a substantial part in bringing about or actually causing the injury and the injury was either a direct result of a reasonably probable consequence of unseaworthiness.” Id. (internal quotation marks and citations omitted). However, a vessel is not required to be “free from all possibility of mishap, for the seaworthiness of a ship is a relative concept, dependent in each instance upon circumstances.” Perkins, 246 F.3d at 602. “Generally, unseaworthiness is a question of fact for the jury and should not be resolved by the district court as a matter of law.” Churchwell, 444 F.3d at 904.

         a. First Incident.

         Ordinarily, a defendant is only liable under a theory of unseaworthiness if they are the owner, operator, or owner pro hac vice of the vessel upon which the plaintiff's injury occurred. Guidry v. Continental Oil Co., 640 F.2d 523, 530 (5th Cir. 1981) (citing Stokes v. B.T. Oilfield Services, Inc., 617 F.2d 1205, 1207 (5th Cir. 1980)); Householder v. American Commercial Barge Lines, 1999 A.M.C. 982, 985 (W.D. Ky 1998) (“Therefore, it is clear that an unseaworthiness claim can only be brought against an owner of a vessel.”).

         Marquette has informed the Court that there is no genuine dispute of material fact regarding whether it owned or operated the NS-IV. In fact, Marquette informed the Court that no Marquette employees other than Cisneros were present when the first incident allegedly occurred. [DN 84-2]. Marquette identifies Cisneros's Amended Claim [DN 62-2 at 5] as evidence of the absence of genuine dispute. In his Amended Complaint, Cisneros alleges that “Mr. Cisneros was taken to his vessel by a Great Lakes vessel. As part of this process, the captain of the Great Lakes vessel ordered that Mr. Cisneros lift his luggage onto the Great Lakes vessel. This lift injured Plaintiff's back. . . .” Id.

         Because Marquette has cited to specific evidence on the record indicating that there is an absence of dispute of material fact regarding Cisneros's unseaworthiness claim, Cisneros “may not ‘rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact' but must make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. Caresource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Cisneros has not offered evidence-such as affidavits, depositions, or answers to interrogatories-to counter Marquette's well supported motion for summary judgment on this issue. Therefore, Marquette is entitled to summary judgment on this issue, and is exonerated from liability to Cisneros for the First Incident under a theory of unseaworthiness.

         Cisneros argues that the unseaworthiness of the Miss Katie was the proximate cause of his injuries because “Mr. Cisneros was instructed to board a vessel that did not have a gangway, and therefore required Mr. Cisneros to violate Marquette's manual lifting policy and the gangway policy.” [DN 87 at 11]. Furthermore, Cisneros argues that Miss Katie's captain (Captain Cannon) was aware that there was no gangway to board the NS-IV and “[h]ad Mr. Cannon been properly trained, he would have easily noted the safety violation and reported or fixed it.” Id. In other words, Cisneros alleges that Miss Katie's crew-specifically Captain Cannon-was not reasonably fit for its intended purpose because Captain Cannon did not ensure that a gangway was available for Cisneros to board the NS-IV.

         Captain Cannon did have personal knowledge of the workplace conditions at the dock because he had boarded the NS-IV earlier that day and admits in his deposition that a gangway was not provided.[4] [DN 87 at 2]. However, Cisneros has failed to identify a genuine dispute of fact for two reasons. First, it is undisputed from the record that it was the captain of the NS-IV who instructed Cisneros on how to board the vessel and that no other Marquette employees were present when Cisneros boarded the NS-IV. [DN 84-2].

         Second, although it is true that Captain Cannon was aware of the conditions of the dock, Cannon explains in his deposition that stairs were available as a safe alternative for boarding the vessel. [DN 91-1 at 9-10]. Instead of offering evidence to dispute Captain Cannon's explanation that a safe means of boarding the NS-IV was available, Cisneros completely ignores the existence of the stairs in his response. Cisneros does not mention the stairs in his response, much less offer an explanation supported by evidence why they are not a safe alternative to a gangway. Rather, Cisneros relies on Marquette's policy requiring a gangway as evidence that the condition of boarding the NS-IV was unsafe. The relevant policy states:

4.1 Access to vessels afloat. The company shall not permit employees to board or leave any vessel, except a barge or river towboat, until the following requirements have been met:
4.1.1 Whenever practicable, a gangway of not less than 20 inches walking surface of adequate strength, maintained in safe repair and safely secured shall be used. If a gangway is not practicable, a substantial straight ladder, extending at least 36 inches above the upper landing surface and adequately secured against shifting or slipping shall be provided. When conditions are such that neither a gangway or a straight ladder can be used, a Jacob's ladder meeting the requirement of paragraphs (d)(1) and (2) of this section may be used.

[DN 91 at 8].

         Cisneros's reliance on the text of this policy is insufficient to survive summary judgment. In his deposition, Captain Cannon explained that the stairs provided for boarding the NS-IV were a safe and practical alternative to a gangway due to the dimensions of the dock. [DN 87-3 at 13]. Cisneros does not offer evidence to counter Cannon's characterization of the stairs. The fact of the stairs' existence is absent from Cisneros's response.[5] Cisneros's unseaworthiness theory of liability requires Marquette to be on notice of the alleged unsafe conditions of the dock used to board the NS-IV. But Cisneros does not argue in his response that Cannon was incorrect when he explained that the available stairs were a safe alternative for boarding the NS-IV.

         Cisneros attached his own Declaration [DN 87-6] to his response. In this Declaration, Cisneros says that “When I was on the dock on November 3, 2015, there was no set up steps present used to board the vessel.”[6] Id. It is immaterial, however, to Cisneros's claim whether the stairs were present during his boarding for two reasons. First, because Marquette does not own or operate the NS-IV or the dock where Cisneros boarded the crew boat, Marquette may only be liable if the crew of the MISS KATIE had actual or constructive notice of the alleged unsafe boarding conditions. Second, it is undisputed from the record that Marquette had no such notice because Captain Cannon testified that a set of stairs was provided to him, that-although there was not a “gangway per se”-he considered the stairs to be a gangway, that the stairs were a safe alternative to a gangway, and because Cisneros does not refute any of Cannon's testimony about the steps in his response. Further, Cisneros explained in his deposition that the captain of the NS-IV provided him with a ladder to board the vessel. [DN 87-2 at 47-48]. Marquette's boarding policy permits the use of ladders. Therefore, it appears from the record that Cisneros's method of boarding the NS-IV was compliant with Marquette's safety policy.

         Cisneros's Declaration [DN 87-6]-filed after Marquette's motion for summary judgment-directly contradicts his deposition testimony and therefore cannot create a genuine dispute of material fact. A “party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). “A directly contradictory affidavit should be stricken unless the party opposing the summary judgment provides a persuasive justification for the contradiction.” Id. And “[a]lthough the nonmoving party is entitled to all reasonable inferences when evaluating a summary judgment motion, when a plaintiff's claims are only supported by his ‘own contradictory and incomplete testimony . . . no reasonable person would undertake the suspension of disbelief necessary to credit the allegations made in his complaint.” Bush c. Compass Group USA, Inc., 683 Fed.Appx. 440, 448-449 (6th Cir. 2017) (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005)). During the deposition of Cisneros, the following exchange took place:

Q: All right. And how did you get into the crew boat
--
A: The ladder.
Q: -- with that gap?
A: The ladder.
Q: Okay. Where was the ladder? Describe it for me.
A: On the side of the - of the stern.
Q: Is it - A: On the corner.
Q: Is it a fixed ladder on the crew boat that you ...

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