Opinion
CIVIL ACTION NO. 01-0840, SECTION "K"(1)
November 19, 2002
ORDER AND REASONS
Before this Court is defendant Danos and Curole's Motion for Summary Judgment. After reviewing the pleadings, depositions, exhibits, and affidavits, the Court finds no merit in the motion. The plaintiff, Michael Benoit, has established a genuine issue of material fact as to whether Danos and Curole's employees negligently loaded cargo onto a supply vessel causing Mr. Benoit's injury.
A. Background
On May 1, 1999 at approximately 9:00 a.m., Michael Benoit, a seaman, injured himself while unloading cargo from the M/V CHERAMIE BO-TRUC NO. 30. Benoit filed suit against LM Bo-Truc Rentals, Inc., his Jones Act employer, Ocean Energy, the charterer of the vessel, and Danos Curole Marine Contractors, Inc.("DC"), the stevedore company that loaded the cargo aboard the vessel.
Prior to the filing of this motion for summary judgment, the plaintiff settled his claims with Ocean Energy and LM Bo-Truc Rentals, Inc.
At approximately 12:00 a.m. on May 1, 1999 at Ocean Energy's dock in Venice Louisiana, DC's employees loaded and secured cargo aboard BO-TRUC NO. 30 under the direction of acting mate, Michael Skinner. The vessel was scheduled to make three stops in the following order: 1) South Pass 70, 2) Main Pass 138 A and B, and 3) South Pass 65. Skinner designated where the cargo should be placed in order to safely and efficiently off-load it. He organized the cargo into three rows, each row containing cargo designated for a different stop.
The South Pass 70 cargo consisted of two tote tanks, a drum rack, and two cargo boxes. The Main Pass cargo consisted of two cargo boxes and an aluminum grocery box. The South Pass 65 cargo consisted of three cargo boxes and a basket.
Skinner testified in his deposition that the cargo was secured with chains and binders owned by the vessel. In the first row, one chain and one binder was used to secure the cargo. The chain was attached to the port and starboard stanchion. It was then wrapped around the starboard stanchion, strapped across the top of the cargo, and run down to the port-side stanchion pad-eye. The slack was pulled on the starboard side with a binder. DC completed its loading duties at the Ocean Energy dock without incident.
When the BO-TRUC NO. 30 reached its first stop at South Pass 70, Mr. Benoit and another crewman, Chris Crochet, were preparing to off-load some cargo in the second row to an offshore platform, when a larger than normal swell caused the stem of the vessel to dip allowing a wave to come inboard. The wave struck the first row of cargo and broke the port-side single chain that bound the first row of cargo to the vessel's deck. The first row cargo shifted forward and knocked into the second row cargo. A basket that broke loose from the first row pinned Mr. Benoit against a third row cargo box, crushing his right femur.
The salient issue in this summary judgment proceeding is whether the cargo was properly loaded by DC, in accordance with its duty to properly load cargo onto a vessel, and whether this breach of duty caused Mr. Benoit's injury. DC argues that the evidence establishes "without contradiction, that the cargo was properly loaded and secured with the vessel's gear, in accordance with the captain's instructions and approval." To support this argument, DC relies on the following testimony of Michael Skinner:
Q: So would I be correct then after the cargo was loaded and binded that you made an inspection in order to determine that the cargo had been safely stowed and bound?
A: That's correct.
Q: Any you found nothing wrong in the manner in which the cargo was stowed and bound?
A: Not a thing in the world.
Q: In other words, it was loaded in accordance with standard operating procedure for cargo bound for platforms in the Gulf of Mexico, wasn't it?
A: It was loaded according to — it was loaded like it was loaded all the time. If it was some circumstances that were dictating it was going to be extremely rough or something like that, maybe you might have done something different or more not go but it was bound to my satisfaction.
Q: All right.
A: The cargo was not shifting on the deck. We had no problems with the cargo at all up until we arrived on the scene and then started off loading.
(Skinner Deposition, pp. 141-42).
To create a genuine issue of fact in order to defeat DC's motion, Mr. Benoit offers an affidavit of Richard C. Koch, an expert marine surveyor and cargo consultant. The report disputes the fact that DC properly loaded the cargo. Mr. Koch reviewed the depositions, the accident report, photographs of the vessel, the weather report, and a cargo diagram. In his report, it is Mr. Koch's opinion that
A single lashing (chain) for a two point deck connection [the method DC used] is never acceptable on vessels. Cargo on a vessel must be secured to overcome longitudinal, transverse, and vertical forces . . . [t]his requires lashings to restrain cargo from transverse sliding, reverse tipping, longitudinal sliding, and longitudinal tipping. . . This type of configuration requires lashings attaching to the vessel not less than eight (8) points . . .
Danos and Curole . . . state they do the best they can when loading and securing a vessel. With 20 to 30 chains on-board and only 3 used to secure the load they did not come close to doing the best they could. Additionally, with only (1) lashing on and entire row of cargo leaves an entire row of cargo unlashed when the unloading stevedores are removing one (1) cargo container from that row.
Another aspect overlooked in securing this cargo was that the weight of the cargo was not compared to the maximum securing load of the chain . . . .
(Koch Report, p. 3).
Mr. Benoit argues that this affidavit also raises the issue of whether the acts and omissions of DC's employees constitute a proximate cause of his injuries and the Court concurs in that evaluation.
B. Motion for Summary Judgment Standard
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushitia Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "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). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of- fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard c. Dixie Well Service Supply, Inc. 828 F.2d 291, 294 (5th Cir. 1987).
C. Discussion
Mr. Benoit is pursuing a cause of action against DC under general maritime law for negligence. In order to prove negligence, the plaintiff must demonstrate that: (1) there was a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) injury sustained by the plaintiff, and (4) a causal connection between defendant's conduct and the plaintiff's injury. Cooper v. Gnots-Reserve, Inc., 929 F.2d 1073, 1077 (5th Cir. 1991). According to applicable case law, a loading stevedore owes a duty to the discharging longshoreman to load the cargo so that an expert and experienced stevedore will be able to discharge the cargo with reasonable safety by exercising reasonable care. Couch v. Cro-Marine Transp. Inc., 44 F.3d 319, 327 (5th Cir. 1995). In Couch the court reasoned that as between the vessel owner and the stevedore, the stevedore is a specialist in cargo operations, while the vessel is a non-expert. Id. at 325-26. Consequently, the loading stevedore is in a better position to prevent injuries than the vessel owner.
To defeat DC's contention that their employees properly loaded the vessel and that it was the unseaworthiness of the vessel alone that was the cause in fact of Mr. Benoit's injury, Mr. Benoit submits an affidavit of marine surveyor expert, Richard Koch. An expert report may be used to defeat a summary judgment motion if it creates a genuine issue of material fact. Jacobs v. Northern King Shipping, Co., 1998 WL 13644 *2 (E.D.La. 1998)("A plaintiff may submit expert reports and affidavits in opposition to defendant's Motion for summary judgment."), Hayter v. City of Mount Vernon, 154 F.3d 269, 274 (5th Cir. 1998)("[Plaintiff's affidavit] satisfied his burden of submitting evidence sufficient to create a genuine issue of material fact."). In this case, Mr. Benoit raises a genuine issue of material fact concerning whether DC properly loaded the cargo on BO-TRUC No. 30 so that an expert and experienced stevedore would be able to discharge the cargo with reasonable safety by exercising reasonable care. Mr. Koch's expert report sets forth specific facts which create an issue for trial. The affidavit raises the question of whether the proper number of chains were used to secure the cargo, whether the cargo was positioned correctly in relation to the other rows and the stern, and whether a weight calculation was made or should have been made. (Koch Report, p. 3). This proof is sufficient to defeat DC's contention that there is an absence of material fact on the issue of its negligence in loading the vessel and that it is entitled to judgment as a matter of law. Accordingly,
IT IS ORDERED that the defendant, DC's Motion for Summary Judgment is DENTED.