United States District Court, W.D. Kentucky
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
ABEL CISNEROS CLAIMANTS MARQUETTE TRANSPORTATION COMPANY OFFSHORE, LLC PETITIONER AND GREAT LAKES DREDGE & DOCK COMPANY, LLC
MEMORANDUM OPINION AN ORDER
B. RUSSELL, SENIOR JUDGE
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.
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. 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 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.
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.
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. [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].
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.
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.
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
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).
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).
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 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.”).
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. . . .”
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.
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.
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. [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].
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
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
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].
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. 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.
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.” 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.
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
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 ...