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, . DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
facts and procedural history of this case have been set out
in prior orders, so they need not be presented again here.
See, e.g., Document #104; Document #240; Document
#431. This Opinion and Order addresses a cross-claim filed by
Logistic Services, Inc., against Steel Dynamics Columbus,
LLC, based on provisions in a marine terminal operator
schedule to which Logistic Services subscribed. The schedule
is a statutory creature. See 46 U.S.C. §
40501(f). Steel Dynamics has moved for summary judgment,
arguing that the statute does not apply here.
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.
marine terminal operator schedule contained an indemnity
provision and liability insurance provision. See
Document #391-1 at 29, 31. Logistic Services argues that
these provisions govern its relationship with Steel Dynamics.
Logistic Services does not contend that Steel Dynamics agreed
to these terms explicitly and acknowledges that Steel
Dynamics may not have even known of the schedule. It argues
that the statute, however, provides for constructive notice
and makes a schedule enforceable as an implied contract if it
has been publicly posted. Logistic Services also acknowledges
that the statute only applies if it is a “marine
terminal operator.” A marine terminal operator is
“a person engaged in the United States in the business
of providing wharfage, dock, warehouse, or other terminal
facilities in connection with a common carrier.” 46
U.S.C. § 40102(14). Whether Logistic Services meets this
definition depends on whether Cooper Marine & Timberlands
Corporation is a “common carrier” within the
meaning of the statute.
statute defines “common carrier” as a person
(i) holds itself out to the general public to provide
transportation by water of passengers or cargo between the
United States and a foreign country for compensation;
(ii) assumes responsibility for the transportation from the
port or point of receipt to the port or point of destination;
(iii) uses, for all or part of that transportation, a vessel
operating on the high seas or the Great Lakes between a port
in the United States and a port in a foreign country.
46 U.S.C. § 40102(6)(A). Logistic Services argues that
Steel Dynamics' motion should be denied because it
“has produced no evidence in this case that . . . the
ultimate destinations of the products manufactured by [Steel
Dynamics], handled by [Logistic Services], and transported by
Cooper Marine do not include overseas and South American
Ports.” Document #393 at 5. It then concludes that a
genuine dispute of material facts exists as to “whether
Cooper Marine is a common carrier within the meaning of the
Shipping Act.” Id. at 9.
moving party, Steel Dynamics bears the initial burden to show
this Court that there is an absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). It may
discharge this burden by pointing to an absence of record
evidence needed to prove a material fact. Fed.R.Civ.P. 56(c).
The burden then shifts to Logistic Services to “come
forward with ‘specific facts showing that there is a
genuine issue for trial.'” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted).
It “must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Id. at 586, 106 S.Ct. at 1356. Summary judgment is
mandated “against a party who fails 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.” Celotex Corp.,
477 U.S. at 322, 106 S.Ct. at 2552.
Dynamics says that Logistic Services has failed to establish
a genuine dispute as to whether Cooper Marine is
“common carrier.” Steel Dynamics argues that
there is no record evidence showing that Cooper Marine
engages in ocean transportation. Logistic Services responds
with a printout from Cooper Marine's website, describing
Cooper Marine's operations. See Document #393-3.
The website says that Cooper Marine is headquartered in
Mobile, Alabama, and is “in the business of providing
timber products to numerous wood consuming industries in the
Southeast U.S., marine transportation along the
Tennessee-Tombigbee River and Gulf Intracoastal Waterway, and
stevedoring services in the Port of Mobile.”
Id. at 1. It goes on to say that Cooper Marine has
“a fleet of 15 push boats” and “more than
200 barges” that “work the Tennessee-Tombigbee
River system as well as the Gulf Intracoastal Waterway from
Houston, Texas to Panama City, Florida.” Id.
Cooper Marine's stevedoring operations “include two
port terminals berthing ocean-going vessels for loading and
unloading a wide variety of products.” Id. at
2. Logistic Services offers no other evidence of Cooper
Marine's status as a common carrier.
Cooper Marine is a common carrier is an essential element of
Logistic Services' claim against Steel Dynamics. Logistic
Services ultimately bears the burden of showing that Cooper
Marine is a common carrier, which requires evidence that
Cooper Marine “uses, for all or part of that
transportation, a vessel operating on the high seas or the
Great Lakes between a port in the United States and a
port in a foreign country.” 46 U.S.C. §
40102(6)(A)(iii) (emphasis added). The printout does not say
that Cooper Marine uses its vessels between ports in the
United States and ports in other countries. Logistic Services
has offered no other evidence to show that a genuine dispute
of material fact exists that would allow the factfinder to
find that Cooper Marine was a common carrier. Discovery has
closed and Logistic Services is unable to present evidence to
prove an essential element of its claim. See Anderson,
477 U.S. at 249, 106 S.Ct. at 2511.
foregoing reasons, Steel Dynamics' motion for summary