Nieves v. Cooper Marine & Timberlands Corp.

276 F.Supp.3d 904

Kassandra NIEVES, individually and as Personal Representative of the Estate of Juan Nieves, and His Surviving Heirs and Dependents, Plaintiff

v.COOPER MARINE & TIMBERLANDS CORPORATION; Logistic Services, Inc.; Steel Dynamics Columbus, LLC ; Kinder Morgan Bulk Terminals, Inc.; and Kinder Morgan Marine Services, LLC, Defendants

No. 3:15CV00350 JLH

United States District Court, E.D. Arkansas, Jonesboro Division.

Signed August 17, 2017

Erica Blume Slater, John G. Simon, John M. Simon, Timothy M. Cronin, The Simon Law Firm, P.C., Myles D. McDonnell, Pro Hac Vice, McDonnell & McDonnell, St. Louis, MO, Brent L. Probinsky, Brent Probinsky, P.A., Sarasota, FL, for Plaintiff.

Andre' J. Mouledoux, Mouledoux, Bland, Legrand & Brackett, LLC, Thomas P. Diaz, Pro Hac Vice, Liskow & Lewis, New Orleans, LA, Donald C. Radcliff, Brady Radcliff & Brown LLP, Mobile, AL, Gordon S. Rather, Jr., Wright, Lindsey & Jennings, Guy Alton Wade, Friday, Eldredge & Clark, LLP, Little Rock, AR, Nathan L. Burrow, Pro Hac Vice, Richard P. Salloum, Pro Hac Vice, Franke & Salloum, Gulfport, MS, Gregory W. O'Neal, Elissa Mulrooney Coombs, Bratton & O'Neal, P.C., Memphis, TN, for Defendants.

OPINION AND ORDER

J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

Kassandra Nieves commenced this action to recover damages for the tragic death of Juan Nieves. Nieves died when the CMT 123B barge on which he was working sank. Cooper Marine & Timberlands Corporation was the owner pro hac vice of the barge and is also the owner of a tug that had custody of the barge for part of its voyage. Kinder Morgan Marine Services, LLC, owned a tug that also had custody of the barge for some time. Cooper Marine and Kinder Morgan Marine Services are the only vessel-owner defendants. They have moved for summary judgment. For the following reasons, Cooper Marine's motion is granted and Kinder Morgan Marine Services's motion is granted in part and denied in part.

A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) ; Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson , 477 U.S. at 249, 106 S.Ct. at 2511.

Steel Dynamics Columbus, LLC, manufactures steel coils and contracted with Cooper Marine to transport steel coils from Columbus, Mississippi, to Blytheville, Arkansas. Document # 135–6. On March 4, 2014, Angel Camp, a Steel Dynamics logistics manager, asked Cooper Marine if it had any available barges. Document # 215–3, Ex. 10. Cooper Marine asked Camp how many she wanted and whether she wanted open or covered barges. Id. Camp responded, "Whatever you got!" Id. Camp later clarified that she "need[ed] three uncovered if possible." Id. Ex. 11. Cooper Marine sent three barges to Columbus, one of which was the CMT 123B open hopper barge. Document # 216–13 at 29, 59. Cooper Marine owned the CMT 123B barge pro hac vice under the terms of a bareboat charter agreement with GATX Third Aircraft, LLC. Document # 135–1. Steel Dynamics enlisted Logistic Services, Inc., to load the barges in Columbus. Document # 135–5 at 4–5. Steel Dynamics provided Logistic Services with the wooden dunnage, described as "saddles," to secure the steel coils. Id. at 5. Logistic Services prepared a stowage plan and loaded the coils in the CMT 123B barge and on the saddles without incident. Document # 135–11 at 8–11. Forty-six coils were loaded on the barge. Document # 135–15. All of the coils were arranged along the side of the barge end-to-end—twenty-three on each side. Document # 135–16. The arrangement left a large gap down the center of the barge. Id. The barge was later to be unloaded by Kinder Morgan Bulk Terminals, Inc. Document # 135–9 at 9–10, Document # 135–19 at 3.

On March 12, 2014, a Cooper Marine tug took custody of the barge and towed it to Yellow Creek, Mississippi. Document # 135–13 at 1–2. A tug owned by a different company then towed the barge to Cairo, Illinois. Document # 216–13 at 9. From Cairo, yet another company and a different tug towed the barge to the Kinder Morgan Hickman Terminal in Blytheville. Id. Cooper Marine maintained the contractual obligation to Steel Dynamics to deliver the barge to Blytheville, Arkansas. Document # 135–6. This voyage of over 500 river miles was without incident. Document # 216–8 at 5; Document # 216–9 at 53–54. Once in Blytheville, the barge was delivered into the custody of a Kinder Morgan Marine Services tug on March 30 or 31, 2014. Document # 135–18; Document # 216–3 at 41.

Before taking custody of the barge, Kinder Morgan Marine Services inspected the barge and determined that it was in suitable, stable, and seaworthy condition. Id. On the morning of April 8, a Kinder Morgan Marine Services tug shifted the barge to Kinder Morgan's coil dock to be unloaded by stevedoring employees of Kinder Morgan Bulk Terminals. Document # 216–8 at 3–4. Kinder Morgan Bulk Terminals trained its longshoremen to inspect cargo and dunnage for any issues. Document # 135–19 at 8–9; Document # 216–3 at 40. If cargo appeared unsecured, Kinder Morgan Bulk Terminals had chocks and wedges available that would be used to secure the cargo before unloading commenced. Document # 135–19 at 5–11. If a saddle or any other type of dunnage did not look right, Kinder Morgan Bulk Terminals instructed its stevedores to take pictures and add additional chocks or wedges to the cargo. Document # 208–13 at 7. If, however, any stevedoring employee thought that the cargo could not be made safe to unload, that employee had "stop-work authority" and Kinder Morgan Bulk Terminals had an obligation to reject unsafe barges. Document # 135–19 at 8–12.

After the CMT 123B barge was docked, a Kinder Morgan Bulk Terminals crew led by Grady Hamilton was set to unload the barge. Id. at 3. Hamilton operated the crane on the coil dock that lifted the steel coils out of the barge. Document # 208–13 at 3. Nieves and Nicholas Perez Hernandez, longshoremen on Hamilton's crew, climbed into the barge to inspect the cargo before unloading began. Id. at 5. Hamilton instructed them to ensure that the coils were properly secured by saddle dunnage. Document # 135–19 at 8–11. Hamilton testified that neither Nieves nor Perez Hernandez reported any issues. Id. at 7, 11. They did not add additional chocks or wedges to the coils but proceeded with unloading them. Id. at 11–12. Hamilton also testified that he had a duty to reject any barge he deemed unsafe to unload. Id. at 8. He testified that although he did not like the way the coils were arranged along the sides of the barge with a wide gap between them, he did not see any thing that made the barge unsafe to unload. Id. at 7.

While the barge was being unloaded, a Kinder Morgan Marine Services tug was towing a scrap barge upriver. Document # 207 at ¶ 12. Steven Ayers, the captain of the tug, testified that he was pushing a barge that was 200 feet in length and that weighed approximately 1600 tons. Document # 181–5 at 5. The tug is 65 feet long and has 3 engines. Id. at 3–4. It was traveling at a speed of one knot against a current of approximately three knots. Id. at 7. Ayers estimated that the barge and tug were 150 feet east of the CMT 123B barge. Id. His written statement after the accident states that the barge he was pushing upriver was "abreast," or alongside of, the CMT 123B barge. Id. at 10. He further testified that the stern of his tug was 100 feet downriver from, or south of, the stern of the CMT 123B barge when it sank. Id. at 8. Ayers testified that the barge and his tug were not putting out much of a wake at the speed they were traveling. Document # 158–6 at 8. Daniel Allen and Adam Parker, crewmen on Ayer's tug, testified that the wake from their vessel had not reached the CMT 123B barge before it sank. Document # 158–7 at 4; Document # 158–8 at 4–5.

Frederick Siebert, a Kinder Morgan Bulk Terminals operations supervisor, witnessed the CMT 123B barge sink. Document # 181–6. In his written statement after the accident, he states that he saw a Kinder Morgan Marine Services tug and a scrap barge passing by at the same time the CMT 123B barge was docked and being unloaded. Id. He heard the CMT 123B barge and the coil dock "clank" together and noticed that the upriver end of the CMT 123B barge raised up. Id. Shortly after, he heard Hamilton on the radio say "I need everyone down here now, we have a barge sinking." Id.

Cooper Marine and Kinder Morgan Marine Services are vessel owners under the Longshore and Harbor Workers' Compensation Act. 33 U.S.C. § 905(b). The Supreme Court explained the contours of the duty of care that vessel owners owe longshoremen under section 905(b) in Scindia Steam Navigation Co. v. De Los Santos , 451 U.S. 156, 166–67, 101 S.Ct. 1614, 1622, 68 L.Ed.2d 1 (1981). The duty consists of a turnover duty, a duty to "exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active control of the vessel,’ " and a duty to intervene. Howlett v. Birkdale Shipping Co., S.A. , 512 U.S. 92, 98, 114 S.Ct. 2057, 2063, 129 L.Ed.2d 78 (1994) (citation omitted). Nieves alleges Cooper Marine and Kinder Morgan Marine Services breached the turnover duty only. The turnover duty "relates to the condition of the ship upon the commencement of stevedoring operations." Id. It has two facets: a duty to "exercis[e] ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations...