ORDER AND REASONS
Before the Court are Plaintiffs’ Motion to Strike Declarations of Robert Mehl (R. Doc. 73) and the related Motion for Summary Judgment (R. Doc. 41) filed by Defendants, Dawn Services, LLC (“Dawn”). Having reviewed the pleadings, memoran-da, record, and relevant law, the Court, for the reasons assigned, grants the motions.
Great Lakes Dredge & Dock Company and Great Lakes Dredge & Dock, LLC of Louisiana (collectively “Great Lakes”) hired Dawn, an offshore towing company, to provide two tugboats, the M/V COASTAL DAWN and the M/V PACIFIC DAWN as support for its dredge, the dredge TEXAS, during a restoration project in South Louisiana. (Def. Mem. Supp. Summ. J. 1, R. Doc. 41). On March 16, 2012, the crew of the dredge TEXAS decided to move the dredge from the area of the restoration project to an area of calmer water. Great Lakes sent a survey crew consisting of two site managers for the project, Armand Riehl and Keith Pearse, and the captain of the dredge, Ronaldo Cisneros on a survey boat to determine an appropriate lоcation to anchor the dredge for the repair. Once they located the area, the team used the survey boat to obtain the GPS coordinates for the location and returned to the dredge. The survey team transferred the coordinate information to the dredge’s electronic chart and provided the location coordinates to the captains of the tugs. The tugs then transported the dredge TEXAS to the location, where, on March 17, 2012, the dredge’s crew lowered the dredge’s ladder to the seafloor. In so doing, the Plaintiffs allege that the dredge’s ladder, which included a cutterhead, ruptured the Plaintiffs underwater pipeline that was used to transport crude oil. Plaintiffs filed the instant action against both Great Lakes and Dawn and their respective vessels seeking damages under maritime law for the negligence of the parties.
In its Motion for Summary Judgment, Dawn contends that, under the “dominant mind” theory, it сannot be negligent under these circumstances, where the tugs acted under the direction of the tow, the dredge TEXAS. Alternatively, if Dawn could be held negligent, it asserts that Great Lakes’ actions were a supervening cause of the nеgligence and Dawn should be not be held liable for any resulting harm to the Plaintiffs pipeline.
II. LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any mаterial fact and the movant is entitled to judgment as a matter of law.” When the “pleadings, depositions, answers to interrogatories, and admission on file, together with affidavits, if any, show that there is no genuine issue as to any material faсt,” summary judgment should be granted in favor of the moving party. Fed. R. Civ. Proc. 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,
When the moving party has carried its burden under Rule 56, its opponent must, do more than simply show that there is some metaphysical doubt as to the materiаl 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.,
[cjonclusory statements, speculation, and unsubstantiated assertions cannot defeаt a motion for summary judgment. The Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.
RSR Corporation v. International Insurance Company,
III. DISCUSSION
“Where damages are caused by a casualty involving a tow or an entire flotilla, courts employ the concept of the ‘dominant mind’ to place liability on the tug and absolve thе two from liability.” Thomas J. Schoenbaum, 2 Admiralty & Mar. Law § 12-6 (5th ed.); In re TT Boat Corp.,
As the Plaintiffs acknowledge in their opposition, in order to rebut the presumption that the tug is the dominant mind, Dawn must show that thе act was attributable to the tow and not Dawn’s tugs or that Great Lakes was “in complete control of the operation,” particularly in light of the fact that no contractual arrangement evidencing this relationship exists. PL Opp. 7, R. Doc. 49. Great Lakes’ site manager and one of the members of the survey crew, Keith Pearse, testified that the survey crew chose the location to anchor the dredge without consulting the
The Plaintiffs counter this evidence with the testimony of their expert, Marc Fazioli, according to whom the tug captains would have necessarily been part of the decision on where to tow the dredge. Fazioli Aff. 2, Pl. Opp., Exhibit A, R. Doc. 49. Mr. Fazioli states thаt had typical towing procedure been followed, the tugs could have stopped the dredge without the need to lower the dredge ladder to the sea floor; he also opines that the tugs failed to control the speed of the dredge making it necessary to drop the ladder and “must have” agreed with the dredge’s actions in lowering the cutterhead and ladder. Id. These actions, he states, violate “Rules 2 and 6 of the Inland Navigation Rules of the Roаd.” Id. However it is unclear what facts Mr. Fazioli bases his opinion upon, as he has not inspected the tugs or dredge or interviewed any dredge or tug personnel. Moreover, the rules to which Mr. Fazioli cites deal with the speed of thе vessels, not choice of location of anchoring. See 33 C.F.R. §§ 83.02, 83.06. It is solely the choice of location of where the dredge was to be anchored which is at issue in this matter. In addition, the Plaintiffs and their expert make the statement that there were no licensed mariners aboard the dredge — a common situation
The Court has taken precaution in an attempt to avoid a premature ruling by making its review of this motion only after receiving relevant deposition testimony and considering whether to strike testimony thаt would unfairly prejudice the Plaintiffs as discussed in Plaintiffs’ Motion to Strike the Declarations of Robert Mehl. See R. Doc. 73. Robert Mehl was the captain on board the PACIFIC DAWN during the relevant time related to the incident. PL Motion to Strike, R. Doc. 73.
In its review of the remaining pleadings, affidavits, and deposition testimony, however, the evidence overwhelmingly shows that the decision on the location to anchor the dredge was made by Great Lakes personnel, namely the survey crew members and the dredge captain, and was not made by the personnel of Dawn’s tugs. The tow in this instance acted as the “dominant mind,” instructing the tug captains on the location to bring the dredge as well as how the dredge would be anchored. The record demonstrates that the allision involved a sunken stationary object, the under-water pipeline, and neither Plaintiffs nor the record reveal evidence that the tugs did not act with reasonable care in towing thе dredge to its location. The record also shows that the tow made the decision on the location to bring the dredge. Indeed, “[t]ugs generally move their tow at the behest of their tow; this fact does not make the tow liable if the tug сrew makes foolish choices.” In re TT Boat Corporation,
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Strike Declarations of Robert Mehl (R. Doc. 73) is GRANTED.
IT IS FURTHER ORDERED that Dawn’s Motion for Summary Judgment (R. Doc. 41) is GRANTED.
Notes
. See Contango Operators, Inc. v. United States,
. The Court need not address the argument that Dawn Sеrvices’ tugs were a supervening cause in the negligent act as the Court has determined that, under the general maritime law of negligence, the tugs were not acting as the “dominant mind” of the operation and cannot be held liable.