United States District Court, E.D. Arkansas, Jonesboro Division
KASSANDRA NIEVES, Individually and as Personal Representative of the Estate of Juan Nieves, and His Surviving Heirs and Dependents PLAINTIFF
COOPER MARINE & TIMBERLANDS CORPORATION; LOGISTIC SERVICES, INC.; STEEL DYNAMICS COLUMBUS, LLC; KINDER MORGAN BULK TERMINALS, INC.; and KINDER MORGAN MARINE SERVICES, LLC DEFENDANTS
OPINION AND ORDER
LEON HOLMESUNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
after, he heard Hamilton on the radio say “I need
everyone down here now, we have a barge sinking.”
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 with
reasonable safety to persons and property, ” and a duty
to warn the stevedore of latent hazards on the vessel that
are or should be known to the vessel owner and that are not
known by the stevedore and would not be known by a reasonably
competent stevedore. Scindia Steam, 451 U.S. at 167,
101 S.Ct. at 1622. The Fifth Circuit has described this duty
as narrow. Kirksey v. Tonghai Mar., 535 F.3d 388,
391 (5th Cir. 2008).
Nieves's argument is that Cooper Marine was negligent in
selecting an open hopper barge to transport the steel coils.
Nieves primarily argues, however, that Cooper Marine and
Kinder Morgan Marine Services breached their turnover duties
by failing to reject the CMT 123B barge or warn Kinder Morgan
Bulk Terminals of latent hazards. Nieves offers various
reasons why these defendants had the duty to reject the barge
or warn Kinder Morgan Bulk Terminals, but the reasons are
premised on these defendants owing a duty to determine
whether the steel coils were properly and adequately secured.
argument that Cooper Marine was negligent to provide an open
hopper barge falls under the first facet of the turnover
duty. According to Nieves, Cooper Marine breached its duty to
exercise ordinary care to have the barge and its equipment in
such condition that Kinder Morgan Bulk Terminals could carry
on its cargo operations with reasonable safety when it failed
to reject the CMT 123B barge. Nieves emphasizes that an open
hopper barge is, by design, not suitable to transport steel
coils. Nieves then argues that Cooper Marine was “in
charge of selecting and providing the vessel” and that
“no one else was in any position to make this
determination.” This last contention is contradicted by
undisputed evidence in the record. The emails exchanged
between Angel Camp of Steel Dynamics and Cooper Marine
demonstrate that Cooper Marine was not “in charge of
selecting” the CMT 123B barge. Camp first emailed
Cooper Marine asking for “whatever you got” but
later asked for “three uncovered if possible.”
Document #215-3 at Ex. 10-11. Moreover, this facet of the
duty requires a vessel owner to exercise reasonable care in
turning over a “ship and its equipment” to a
stevedore. Scindia Steam, 451 U.S. at 167, 101 S.Ct.
at 1622. Nieves offers no evidence, and does not argue, that
the barge itself or its equipment were unsafe. Nieves instead
argues that the open hopper design compromised the dunnage by
allowing rain to enter the cargo hold, which goes to the duty
to warn under the second facet of the turnover duty.
alleges that Cooper Marine and Kinder Morgan Marine Services
breached their turnover duty by failing to warn Kinder Morgan
Bulk Terminals that the steel coils were loaded or secured in
an unsafe manner. Cooper Marine and Kinder Morgan Marine
Services were not, however, acting as stevedores in
transporting the CMT 123B barge from Columbus to Blytheville.
Requiring vessel owners to assess whether cargo is properly
stored-hazards that could be anticipated and prevented by a
competent stevedore- “would threaten to upset the
balance Congress was careful to strike in enacting the 1972
amendments [to the Longshore Act].” Howlett,
512 U.S. at 97, 114 S.Ct. at 2063. Cooper Marine and Kinder
Morgan Marine Services could rely on Kinder Morgan Bulk
Terminals to avoid exposing its longshoremen to unreasonable
hazards. See Scindia Steam, 451 U.S. at 170, 101
S.Ct. at 1623. Both the captain of the Cooper Marine tug and
the captain ...