Opinion
Civ. No. 98-2037, c/w 98-3800, SECTION "K"(5).
January 14, 2000.
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Gladiator Marine Inc., Marine Promoters, Inc. Guidry Brothers Towing Company, Inc., and Harvey Gulf International Marine, Inc. as owners/operators/owners pro hoc vice of the M/V HARVEY GLADIATOR and the M/V HARVEY RULE (collectively "the Tug Interests") seeking judgment against Broughton Offshore Drilling, Inc., the alleged owner of the MR. BICE, and Broughton Drilling Company, the alleged charterer/operator/owner pro hac vice of the MR. BICE (collectively "the Rig interests"). The Court has reviewed the pleadings, memoranda, exhibits, deposition testimony and the relevant law, and finds the motion to be meritorious for the reasons that follow.
This suit arises out of the capsizing and sinking of the MODU MR. BICE. On June 25, 1998, while the MODU MR. BICE was being towed by the tugs HARVEY GLADIATOR AND HARVEY RULER, a mechanical failure of the derrick skid lock aboard the rig allowed the rig's substructure, drill floor and derrick assembly to break loose and move freely. Eventually the assembly broke in two, with the entire drill floor and derrick completely separating form the substructure and balancing precariously in the spot where they wedged. As a result, the rig became extremely unstable and the rig's crew was evacuated. Eventually, the MODU MR. BICE capsized and sank.
The Tug Interests filed the instant limitation of liability suit on July 10, 1998. The original deadline for filing claims was set for August 27, 1998; however, at the request of the Tug Interests, the deadline was extended to October 26, 1998, in an effort to accommodate the Rig Interests, which were beginning salvage operations at the time. Eventually the Rig Interests filed a claim in this matter on August 25, 1998, against the Tug Interests seeking recovery bases on the Tug Interests' negligence. On December 28, 1998, the Rig Interests filed their own exoneration/limitation case which which has been consolidated with the instant suit.
The Tug Interests maintain that based on the deposition testimony of Jerald Hinton ("Hinton"), the Rig Interests' drilling superintendent, who served as the rig mover at the time of the incident, and the circumstances surrounding the event, there is no basis in fact or law for the Rig Interests' Claims. Hinton repeatedly testified as to the satisfactory performance by the M/V HARVEY GLADIATOR and the M/V HARVEY RULER.
As claimant in this exoneration/limitation proceeding, the Rig Interests have the burden of proving negligence and causation at trial. Complaint of Port Arthur Towing 42 F.3d 312, 317 (5th Cir. 1995), cert. den'd, 116 S.Ct. 87 (1995). The Rig Interests opposition to the motion consists of conclusory statements allegedly supported by deposition testimony. Contrary to the requirement of L.R. 56.2E, no "separate, short and concise statement of the material facts as to which there exists a genuine issue to be tried" was attached to the memorandum." As provided by the rule, the Court will deem the material facts set forth in the Tug Interests' Statement of Uncontested Material Facts as admitted and adopts them herein.
Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that 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). The party moving for summary judgment 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." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied);Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "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 court now turns to the merits of the arguments with these standards in mind.
Uncontested Material Facts
The MODU MR. BICE was a four-legged, self-elevating, jack-up mobile offshore drilling unit that was built in Dalian, China in 1982. It was acquired by the Rig Interests in 1990 for $441,188 and was approximately sixteen years old when the events at issue in this case occurred. (See Rig Interests' answers to Tug Interests' Interrogatories Nos. 1 and 3 [Exhibit 1 to Tug Interest's Motion] and the outboard profile of the rig taken from the rig's Operations Manual [Exhibit 2 to Tug Interest's Motion].
In late June of 1998, the Rig Interests desired to move the MR. BICE from the S/L 2986 C.I. #12 ST Well where it had been working to Block 34 of the Grand Isle area of the Gulf of Mexico. (Deposition of Jerald Hinton, p. 99, line 23 through p. 101, line 3; Broughton USCG 2692 form [Exhibit 3 to Tug Interests' Motion]; IADC Daily Drilling Report for MODU MR. BICE dated June 25, 1998 [Exhibit 4 to Tug Interests' Motion].)
In accordance with the Rig Interests' standard procedure, Broughton drilling superintendent Jerald Hinton, the number three person in the Rig Interests' corporate chain of command, was physically present on the MR. BICE to serve as the rig mover for the move to Grand Isle Block 34. (Deposition of Hinton, p. 10, line 5 through p. 12, line 25.) Hinton had functioned as the rig mover on the MR. BICE as far back as 1987, and had participated in approximately ninety rig moves on the MR. BICE, more than anyone else during the time frame between 1987 and June 25, 1998. As a result, he had more experience than anyone else with the towing characteristics of the drilling rig MR. DICE. (Deposition of Hinton, p. 14, line 23 through p. 15, line 1; p. 22, line 1 through p. 23, line 1.) As the rig mover for the June 25, 1998 move of the MR. BICE, Hinton was the highest-ranking Broughton person aboard the rig, was responsible for supervising the movement of the rig, oversaw the preparation of the rig for tow, assumed responsibility for the safety of the personnel aboard the rig, and assumed responsibility for the safety of the rig and its equipment. (Deposition of Hinton, p. 17, lines 2-5; p. 23, line 12 through p. 24, line 20.)
The rig was inspected and prepared for tow under Mr. Hinton's direction by either Broughton employees or third-party personnel who were physically on the rig. No representative of the Tug Interests ever went onboard the rig either before or during the move. (Deposition of Hinton, p. 25, line 2 through p. 28, line 24; Deposition of Ernest Plaisance [relief captain of HARVEY GLADIATOR], p. 92, lines 13-21; Deposition of Thomas Jernigan [mate of HARVEY RULER], p. 128, line 24 through p. 129, line 3.)
According to Hinton, the rig personnel inspected and prepared the rig for tow in accordance with the rig's Operations Manual. In particular, Hinton testified that the substructure, drill floor and derrick assembly were properly positioned and secured for the tow and that the derrick skid locks were properly fastened. (Deposition of Hinton, p. 95, line 25 through p. 97, line 10; p. 106, lines 20-22.)
During the preparation of the rig for the June 25, 1998 move, in accordance with the Rig Interests' standard procedure, various vents and hatches aboard the rig were left open in order to ventilate the engine room and the lower hull. In order to maintain the rig's watertight integrity, rig personnel were assigned to check for water in the compartments in the lower hull as the move progressed. (Deposition of Hinton, p. 109, line 18 through p. 116, line 6.)
At the designated report time of midnight on June 24-25, 1998, the tugs HARVEY GLADIATOR, HARVEY RULER and RYAN CANDIES arrived at the MR. BICE's South Timbalier Well ST #12 location. The tugs were instructed by the rig to stand by, as Hinton had decided to wait until daylight to begin the move. (Deposition of Hinton, p. 117, line 2 through p. 119, line 14; Deposition of Plaisance, p. 31, line 7 through p. 32, line 13; Deposition of Barry Richoux [captain of the HARVEY GLADIATOR], p. 29, lines 1-24; Deposition of Jernigan, p. 32, line 7 through p. 33, line 14; IADC Daily Drilling Report for MODU MR. BICE dated June 25, 1998 [Exhibit 4].)
Between 0430 and 0500 hours, the rig, which was by then afloat, gave the tugs the order to connect tow lines, telling the tugs where to position themselves. The tugs, in turn, passed their tow lines to the rig personnel, who connected the tow lines to the MR. DICE. The hook-up was accomplished with no problems. (Deposition of Hinton, p. 120, line 2 through p. 121, line 8; Deposition of Plaisance, p. 32, line 15 through p. 35, line 20; Deposition of Jernigan, p. 33, line 15 through p. 35, line 16; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
Hinton testified that before giving the order to begin the rig move, he obtained weather forecast information and was comfortable that the rig would be able to safely handle the weather conditions that would be encountered during the tow. (Deposition of Hinton, p. 34, lines 9-18; p. 36, lines 3-17; p. 101, line 13 through p. 102, line 6.) Hinton also testified that before starting the move, he performed the stability calculations for the rig and confirmed that the towing draft of the rig was within the safe operating criteria set forth in the rig's Operations Manual, as were the rig's freeboard, actual variable load, vertical center of gravity, transverse center of gravity, and longitudinal center of gravity. (Deposition of Hinton, p. 28, line 25 through p. 29, line 12; p. 83, lines 15-19; p. 85, line 18 through p. 86, line 14; p. 87, line 21 through p. 88, line 4.)
At the beginning of the rig move, the rig appeared to have good trim stability and appeared to be floating level in the water. (Deposition of Hinton, p. 141, lines 8-11; Deposition of Plaisance, p. 58, lines 9-23; Deposition of Jernigan, p. 114, line 15 through p. 115, line 6.) By approximately 0600 hours on June 25, 1998, in response to orders from the rig mover, the tugs had moved the rig off the #12 ST Well location. This was accomplished with no problem. (Deposition of Hinton, p. 124, line 21 through p. 125, line 20; Deposition of Plaisance, p. 35, line 21 through p. 37, line 3; Deposition of Buddy Toups [captain of the HARVEY RULER], p. 26, line 22 through p. 28, line 12; IADC Daily Drilling Report for MODU MR. BICE dated June 25, 1998 [Exhibit 4].) At approximately 0630 hours on June 25, 1998, the rig mover released the tug RYAN CANDIES. (Deposition of Hinton, p. 121, lines 9-24 and p. 125, lines 21-25; Deposition of Plaisance, p. 38, lines 8-20; Deposition of Toups, p. 35, lines 14-17; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
From 0630 hours until sometime between 1400 hours and 1530 hours on June 25, 1998, the rig was under tow, with everything proceeding in a normal, routime and standard fashion. The tugs had approximately 1,500 feet of towline out. (Deposition of Hinton, p. 127, line 22 through p. 128, line 2 and p. 132, lines 3-9; Deposition of Plaisance, p. 101, lines 15-22 and p. 104, lines 14-21; Deposition of Jernigan, p. 74, lines 8-11; Deposition of Toups, p. 87, line 24 through p. 88, line 6; Deposition of Richoux, p. 30, lines 18-22, p. 40, lines 1-7, and p. 87, line 17 through p. 88, line 3. Around 1530 hours on June 25, 1998, the traveling block aboard the rig had to be re-secured by means of the rig crew tightening some lines. That minor situation was handled on the rig, without the tugs ever being informed of it. (Deposition of Hinton, p. 133, lines 16-23.)
Shortly after the traveling block was re-secured, some ventilation ducting for the SCR room air conditioning units on the starboard side of the rig was washed away by wave wash, which it is not unusual to experience while under tow. This left two ten-inch diameter holes in the wall of the SCR room and allowed for a splash intrusion in the SCR room (where the rig's electrical power systems are located) as wave wash would run across the deck and splash and run up the wall. Hinton was informed of the problem and sent one of the rig crewmembers to check on it. (Deposition of Hinton, p. 132, line 23 through p. 138, line 25; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
Hinton and the other rig personnel decided to repair the holes by welding metal plates over them. In order to do that, it was necessary to turn the rig so that her bow would be into the seas, thereby making the starboard side of the rig lee ( i.e., taking all the wave action away from that side). Hinton radioed the tugs and instructed them to turn the rig into the seas. He testified that they executed his order "picture perfect." Repairs of the SCR room commenced immediately. (Deposition of Hinton, p. 138, line 20 through p. 140, line 11; Deposition of Richoux, p. 40, line 8 through p. 42, line 6; Deposition of Jernigan, p. 73, line 21 through p. 75, line 16; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
As the work on the SCR room was being conducted, there was a mechanical failure of the derrick skid lock which held the rig's substructure, drill floor and derrick assembly in place. The entire assembly broke loose and began moving freely. Initially, the entire assembly moved along the longitudinal skid rails from its stowed position all the way to the forward stops. The assembly then almost immediately slid back to what seemed to be its original position. The assembly weighs approximately 600,000 pounds or more, and with that much movement, made a tremendous noise. (Deposition of Hinton, p. 52, lines 18-21 and p. 140, line 12 through p. 143, line 7; Broughton USCG 2692 form [Exhibit 3]; IADC Daily Drilling Report for MODU MR. BICE dated June 25, 1998 [Exhibit 4].)
Very soon after the first movement, the entire substructure, drill floor and derrick assembly moved forward a second time and hit the forward stops of the longitudinal skid rails. When this happened, the upper section of the drill floor and derrick literally sheared off of the lower section at the transverse skid rails, separating completely from the lower section. The upper assembly ( i.e., the drill floor and derrick) was propelled forward a foot or so, and then dropped down on top of the substructure, its weight creating U-shaped indentations in the beams of the substructure. The drill floor and derrick assembly was then precariously balanced where it had lodged itself. With that much weight moving forward, the stability of the rig was immediately thrown down on the bow. (Deposition of Hinton, p. 143, line 8 through p. 147, line 2.)
At that point, the rig had no control over the drill floor and derrick assembly. Hinton immediately contacted the tugs and gave them the order to hold the rig steady in position into the seas "without fail, period . . ." so as to prevent any port-to-starboard movement of the rig. Hinton explained in his deposition that he wanted to maintain the same orientation of the rig into the seas because he did not know how well the drill floor and derrick assembly was wedged into the lower section. As the rig was positioned with the bow into the seas, the damaged drill floor/derrick assembly seemed to be staying where it was lodged, and he was concerned that if the rig turned at all to either port or starboard, he was not sure what might happen to the derrick. Hinton stated in his deposition, unequivocally that the tugs executed his order to hold the rig's position "wonderfully." (Deposition of Hinton, p. 147, line 3 through p. 148, line 21; page 158, line 21 through p. 159, line 6; Deposition of Richoux, p. 42, line 7 through p. 43, line 18 and p. 50, lines 3-16; Deposition of Jernigan, p. 75, line 17 through p. 78, line 13.)
Because the precarious condition of the derrick made remaining on the rig unsafe, Hinton immediately ordered the evacuation of all personnel from the rig. As soon as the decision was made to abandon the rig, all work aboard the rig was stopped and all rig personnel were assembled in a group to facilitate the evacuation. At that point, Hinton testified that the rig was of no concern to him until all of the people had gotten off. Consequently, he did not assign anyone aboard the rig to go and close any of the open doors or hatches, nor did he assign anyone to try to find out whether the movement of the drill floor and derrick had damaged the hull or otherwise compromised the watertight integrity of the rig. (Deposition of Hinton, p. 49, line 12 through p. 50, line 5; p. 150, line 9 through p. 154, line 24; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
The tugs were able to contact a passing crew boat, the MISS JOHNETTE, which came to the scene and was able to hold position next to the rig while all 37 people on the rig safely transferred over to the crew boat. As the evacuation took place, the tugs continued to hold the rig steady in position into the seas. By approximately 1650 hours on June 25, 1998, the rig was successfully abandoned, with no injuries to the crew. (Deposition of Hinton, p. 148, line 22 through p. 150, line 8; Deposition of Richoux, p. 46, line 18 through p. 47, line 20 and p. 49, line 23 through p. 50, line 2; Deposition of Jernigan, p. 78, line 24 through p. 81, line 23; Broughton USCG 2692 form [Exhibit 3]; IADC Daily Drilling Report for MODU MR. DICE dated June 25, 1998 [Exhibit 4].)
Hinton elected to leave the scene and proceed to shore aboard the MISS JOHNETTE. As the MISS JOHNETTE was heading for shore, Mr. Hinton spoke with the HARVEY GLADIATOR and again instructed the tugs to continue holding the rig steady in position into the seas until further notice. That order was later repeated and reinforced by Doyle Bice ("Bice"), the number two man in the Rig Interests' chain of command (and the man for whom the rig is named). Bice spoke to Hinton by cell phone shortly after the rig was abandoned and was apprised of the situation. Bice then spoke by cell phone to the captain of the HARVEY GLADIATOR. After discussing the situation, Bice instructed the tug captain to continue holding the rig steady into the seas because he did not want to risk moving or turning the rig and potentially having the derrick fall off. (Deposition of Hinton, p. 155, lines 3-14 and p. 159, line 7 through p. 160, line 22; Deposition of Toups, p. 50, lines 10-23 and p. 67, line 13 through p. 68, line 8; Deposition of Richoux, p. 50, line 3 through p. 53, line 10; p. 70, line 7 through p. 72, line 23; Deposition of Jernigan, p. 84, lines 2-14 and p. 101, line 6 through p. 102, line 25.)
During the afternoon and evening of June 25, 1998, the rig remained afloat, but continued to be heavy on the bow, as it had been since the derrick assembly moved forward and broke in two. The tugs continued to hold the rig steady in position into the seas. At approximately 2255 hours on June 25, 1998, the tugs noted that the rig appeared to be taking on water and going down on her port bow side. The rig capsized to port and sank at 2315 hours on June 25, 1998. (Deposition of Toups, p. 44, line 19 through p. 46, line 17; Deposition of Plaisance, p. 45, line 19 through p. 48, line 24; Deposition of Richoux, p. 57, line 14 through p. 59, line 3; Deposition of Jernigan, p. 93, lines 6-15 and p. 99, lines 2-24.)
The USCG 2692 form submitted by the Rig Interests to the United States Coast Guard in connection with this incident states as follows in the "Description of Casualty" section:
Mechanical failure on derrick skid lock caused all personnel to evacuate rig while under tow. After evacuation, derrick skid evidently caused damage to hull allowing downflooding and rig to capsize.
(See Broughton USCG 2692 form [Exhibit 3].)
Hinton testified in his deposition that the wind and sea conditions encountered by the MR. BICE during the June 25, 1998 rig move were well within the operating criteria of the MR. BICE. He further testified that he had moved the MR. DICE on a number of occasions during wind and sea conditions that were equal to and exceeded the conditions that were experienced at the time when the skid lock mechanism failed and allowed the derrick assembly to break loose on the rig. He stated that given the conditions that were present, he never would have expected the skid lock mechanism to fail or the derrick to come loose and break in half as it did. (Deposition of Hinton, p. 41, line 5 through p. 44, line 16; p. 199, lines 13-22.)
According to the Operations Manual for the MR. BICE, the safe operating criteria for the rig are that the rig should be elevated or moved to a sheltered location if the roll and pitch exceed six degrees during a field move. Mr. Hinton testified that he was monitoring the roll and pitch of the rig throughout the move, and that at no time did the pitch and roll ever exceed six degrees. According to Mr. Hinton, the maximum movement experienced was at the time when the derrick assembly broke loose, and was a bow to stern pitch of approximately four degrees. Mr. Hinton explained that the rig should have been able to withstand a four degree bow to stern pitch without any problem. (Deposition of Hinton, p. 46, line 1 through p. 48, line 25.)
With respect to the service provided by the tugs during the rig move in question, Jerald Hinton testified as follows:
"The tugs were of sufficient horsepower and operating condition as exhibited by the performance." (Deposition of Hinton, p. 53, lines 22-23.)
"I did not observe any deficiency of the tugs used during the tow." (Deposition of Hinton, p. 54, lines 14-15.)
"From the beginning of the tow until the rig was evacuated, my observance of the [tug] personnel by radio communication did not tell me that there was any problem with the personnel." (Deposition of Hinton, p. 54, lines 19-22.)
"Each time I made a request to the tugboats, they performed as I requested." (Deposition of Hinton, p. 55, lines 8-9.)
"I did not observe the tugboats doing anything unusual during the tow." (Deposition of Hinton, p. 56, lines 1-2.)
"I did not observe them doing anything out of the ordinary area ( sic)." (Deposition of Hinton, p. 56, lines 5-6.)
"I did not observe the tugboats doing anything unsafe." (Deposition of Hinton, p. 56, lines 9-10.)
". . . the tugs that we used on the Drilling Rig MR. BICE during the last rig move gave us good service." (Deposition of Hinton, p. 56, line 25 through p. 57, line 2.) ( emphasis added)
"The observed services performed by the tugs in the field during the last rig move of the MR. BICE was good." (Deposition of Hinton, p. 57, lines 12-14.) ( emphasis added)
"As previously stated, the tugs did a good job . . ." (Deposition of Hinton, p. 124, line 19.) ( emphasis added)
"They [the tugs] executed it [Mr. Hinton's order to turn the rig into the seas once the problems developed aboard the rig] picture perfect." (Deposition of Hinton, p. 139, lines 18-19.) (emphasis added)
" Wonderfully" [describing how the tugs performed when asked to hold the rig steady in position into the seas after the rig's derrick broke in two]. (Deposition of Hinton, p. 148, line 21.) ( emphasis added)
"The actual boats did exactly as I asked them to do in all the situations during the course of that rig move . . ." (Deposition of Hinton, p. 160, lines 11-13.)
Analysis
Standard of Care Required of TowAs this Court has previously recognized, the owner of a tug is responsible only for the safe navigation of the tow, not its seaworthiness. Theriot v. Dawson Prod. Serv. Inc., 1998 WL 637384 (E.D.La. Sept. 16, 1998), citing National G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89, 94 (5th Cir. 1975). The owner of the tug is not responsible for the nonapparent unseaworthiness of the barge in tow and has no duty to make a detailed examination of the tow. Id. at 94 citing New Orleans Coal Bisso Towboat Co. v. United States, 86 F.2d 53, 60-61 (5th Cir. 1936), cert. denied, 300 U.S. 676, 57 S.Ct. 669 (1937). Thus, under general maritime law, in a towage situation, the owner of the barge is responsible for the seaworthiness of his vessel, while those responsible for the handling of the barge or vessel being towed are obligated to perform the tow using such care as a prudent person would under similar situations. Consolidated Grain Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077 (5th Cir. 1983).
Unless the tow can establish a failure on the part of the tug to meet this standard of care, the tow simply cannot recover. Kenny Marine Towing, Inc. v. M/V JOHN R. RICE, 583 F. Supp. 1196, 1199 (E.D.La. 1984) citing Stevens v. THE WHITE CITY, 52 S.Ct. 347, 350 (1932). "The burden of proof as to the negligence of the tug is on the tow throughout. Negligence must be shown by proof of specific acts of negligence or proof of a failure to exercise reasonable maritime skill unaided by any presumption of law." Kenny Marine, 583 F. Supp. at 1199.
The record is devoid of any evidence that the Tug Interests failed to provide their services with anything other than reasonable care and skill as prudent navigators employ for performance of similar services. The Rig Interests' arguments consist of pure conjecture and fail to apprise the Court of any specific act which could support their claim of negligence on the part of the Tug Interests. For instance, while pointing to testimony that the tugs were in control of the course and direction of the tow, there is no indication that the course or direction of the tow caused the casualty or was done in a negligent fashion. To the contrary, the rig master decisively stated on more than one occasion that the Tug Interests performed their tasks properly as noted above.
As to the argument that the Tug Interests "withheld information from the rig regarding its exact location" is disingenous considering the information was not requested and is irrelevant considering that Hinton testified that he knew the MR BICE was no where near a "pipe-free" zone so that they could have set the rig down. (Dep. of Hinton at 105). Furthermore, considering the precarious condition of the derrick and the necessity to abandon the rig, that option was closed to the MR. BICE. Allegations of a failure to inform the MODU MR. BICE concerning the weather conditions is likewise without basis considering Hinton's testimony that the rig had been moved in similar weather conditions without hazard. The Court would also note that the Rig Interests' characterization of testimony often was misleading and incorrect.
As stated by the Supreme Court is Stevens:
The tug does not have exclusive control over the tow, but only so far as is necessary to enable the tug and those in charge of her to fulfill the engagement. They do not have control such as belongs to common carriers and other bailees. They have no authority over the master or hands of the towed vessel beyond such as is required to govern the movement of the flotilla. In all other respects and for all other purposes the vessel in tow, its cargo and crew, remain under the authority of its master; and, in emergency, the duty is upon him to determine what shall be done for the safety of his vessel and her cargo. In all such cases the right of decision belongs to the master of the tow and not to the master of the tug.Stevens, 52 S.Ct. at 349. Considering the total failure of the Rig Interests' to provide any proof of negligence on the part of the Tug Interests,
IT IS ORDERED that Motion for Summary Judgment filed by Gladiator Marine Inc., Marine Promoters, Inc. Guidry Brothers Towing Company, Inc., and Harvey Gulf International Marine, Inc. as owners/operators/owners pro hac vice of the M/V HARVEY GLADIATOR and the M/V HARVEY RULE seeking judgment against Broughton Offshore Drilling, Inc., the alleged owner of the MR. BICE, and Broughton Drilling Company, the alleged charterer/operator/owner pro hac vice of the MR. BICE is GRANTED.
New Orleans, Louisiana, this 14th day of January, 2000.