Opinion
Civil Action No: 99-1586, Section: "R" (4)
June 20, 2000
ORDER AND REASONS
Third-party defendants, Wilhelmsen Lines Shipowning, A.S. and Barber Ship Management, A.S., move the Court for summary judgment pursuant to Federal Rule of Civil Procedure 56, seeking to dismiss the claims against them by T.L. James Co., Inc. Also before the Court is the motion in limine of T.L. James to strike the testimony and report of third-party defendants' expert Ian Cairns and to exclude a videotape of the M/V TAMPA. For the following reasons, the motion for summary judgment and the motion in limine are DENIED.
I. BACKGROUND
The Court has summarized the facts of this general maritime law negligence action in several prior motions and will not reiterate them here. For purposes of this motion, it is relevant to note that plaintiff, Frank Gregg, seeks damages for injuries he allegedly suffered while being transported down the Mississippi River aboard the M/V TRINITY, a 43-foot survey vessel owned and operated by T.L. James. At the time of the accident, Captain Jeffrey Burks, a James employee, was navigating the TRINITY through a wake allegedly created by the N/V TEXAS, an 851 foot ocean-going vessel owned by Wilhelmsen and chartered by Barber. The TEXAS was traveling upriver when it passed the TRINITY.
On January 20, 2000, T.L. James filed a third-party demand against Wilhelmsen, Barber, and the TEXAS in rem, alleging that Mr. Gregg's injuries were caused by the TEXAS' negligence in passing the TRINITY at an excessive speed and creating a large wake. T.L. James seeks complete indemnity or contribution from third-party defendants.
II. DISCUSSION
A. Motion in Limine
T.L. James moves the Court in limine to exclude a videotape filmed by third-party defendants. The video allegedly shows the MIV TAMPA, a vessel not involved in this litigation, traveling up the Mississippi River at the same rate of speed and in the same location as the TEXAS on the morning of the accident. Based on the video, third-party defendants' expert calculated the wake created by the TEXAS to be approximately 18 inches.
The district court has broad discretion to admit evidence of experimental tests and will be reversed on appeal only for abuse of that discretion. See Williams v. Briggs Co., 62 F.3d 703, 707-08 (5th Cir. 1995); Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977). The standard the Court uses to determine the admissibility of video evidence depends upon whether it is being offered to reenact the accident or to demonstrate general scientific principles. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1993); Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993); Wallace v. General Motors Corp., 1997 WL 269498, at *1 (E.D. La. May 19, 1997) (citations omitted). Courts recognize that a bright line cannot easily be drawn between these two categories. Rather, experimental evidence falls on a spectrum with "the foundational standard for its admissibility determined by whether the evidence is closer to simulating the accident or to demonstrating abstract scientific principles." See McKnight, 36 F.3d at 1402 ( citing Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993)). Video reenactments may be properly admitted only if they were filmed under conditions substantially similar to those of the actual accident. See id. The conditions do not have to be identical but should be "nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed." Barnes, 547 F.2d at 277. The purpose behind the substantially similar requirement is to avoid the risk of misleading members of the jury who may attach exaggerated significance to the evidence. See id.
Because the videotape of the TAMPA reenacts the TEXAS' alleged role in Mr. Gregg's accident, third-party defendants must establish that the videotape was filmed under conditions substantially similar to the actual conditions. T.L. James argues that because the video involves a different vessel traveling on the Mississippi River, under different conditions than those on the morning of July 19, 1998, the Court must exclude it as not substantially similar.
The Court declines to exclude the video of the TAMPA at this time. First, third-party defendants claim that the TAMPA is an exact sister ship of the TEXAS, built with the same hull design, with similar drafts, and to the same specifications. ( See Mem. Supp. Opp'n Mot. Lim. at 3 n. 2, Ex. 1, Cairns Report, at 4.) Second, the video apparently depicts the TAMPA proceeding upriver at the same speed as the TEXAS was traveling at the time of the alleged accident, based on third-party defendants' review of marine traffic logs. ( See Id. Ex. 1, Cairns Report, at 4.) Third, although there is some dispute as to the TEXAS's exact location at the time of the accident, the video comports with third-party defendants' estimation of the TEXAS's position on the river. Fourth, third-party defendants assert that the weather conditions of the video were similar to those testified to by witnesses of the alleged accident. ( See Id. at 3.) Based on the foregoing, and noting that the risk of prejudice from the video is diminished as this trial does not involve a jury, the Court will not exclude the video of the TAMPA in limine. Third-party defendants must establish at trial, however, that the conditions in the video were substantially similar to those under which the TEXAS was operating at the time of the accident. T.L. James and plaintiffs will then have the opportunity to point out any material differences between the video and the accident on cross-examination or by the testimony of their own witnesses.
T.L. James also moves the Court in limine to exclude the report of third-party defendants' expert, Ian Cairns, because it is arguably based on the TAMPA video. The Court notes that the video of the TAMPA is one of several materials relied on by Mr. Cairns to prepare his expert report, including among others, marine traffic logbooks from the day of the accident, the deposition testimony of Mr. Greggs and Captain Burks, the T.L. James Employee Handbook and Safety Guidelines, and the T.L. James Accident Prevention Standards. ( See Opp'n Mot. Lim. Ex. 1, Cairns Report, at 1-2.) Mr. Cairns also conducted a general inspection of the TRINITY in preparation for his report. ( See id.) Furthermore, the TAMPA video provides the basis of only one of his nine conclusions. ( See id. at 5.) Because the Court has denied T.L. James' motion to exclude the video, the Court also declines to exclude Mr. Cairns' report. To the extent third-party defendants fail to establish the proper foundation for admission of the video at trial, the Court will then determine if any of Mr. Cairns' report should be excluded.
Finally, T.L. James briefly argues that the Court should exclude Mr. Cairns' conclusion regarding the "barstool" on which Mr. Gregg sat at the time of the accident for lack of proper foundation. Specifically, T.L. James contends that Mr. Cairns' report and expert opinion on this issue lack the proper foundation and are unreliable and irrelevant because Mr. Cairns admitted that he never viewed the barstool or any similar seating arrangement aboard the TRINITY. Under Federal Rule of Evidence 702, expert testimony is admissible on an issue "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The district court has considerable discretion to admit expert testimony under Rule 702 and will be reversed on appeal only for abuse of that discretion. See Snap-Drape, Inc. v. Commission of Internal Revenue, 98 F.3d 194, 197 (5th Cir.), cert. denied, 522 U.S. 821 (1997). Here, T.L. James does not cite which of the nine conclusions rendered by Mr. Cairns it objects to. The Court finds that only two of his conclusions concern the barstool, namely, the conclusions that Mr. Gregg was allowed to sit on a non-approved seat and that the TRINITY'S change in movement was not likely to cause a chair to tip over. ( See Opp'n Mot. Lim. Ex. 1, Cairns Report, at 5-6.) The Court finds these opinions relevant to the issues of liability in this case. Further, neither of these opinions requires an examination of the actual barstool at issue. They are based on general scientific principles that the Court would expect of a qualified marine surveyor as well as a review of the T.L. James Acdident Prevention Standards general operating procedures. ( See id.) T.L. James has not challenged Mr. Cairns qualifications. Accordingly, the Court finds no grounds for excluding Mr. Cairns' conclusions regarding the barstool as unreliable.
B. Motion for Summary Judgment
1. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. p. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1996). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. The nonmovant may not rest upon allegations and denials. See Id. at 324, 106 S.Ct. at 2552.
C. Wake Damage to Moving Vessel
Third-party defendants argue that summary judgment is appropriate here because no genuine issue of fact exists as to whether the wake created by the TEXAS was reasonable and was to be anticipated by the TRINITY'S captain. T.L. James opposes the motion, asserting that a prima facie case of liability is established by proof of injury caused by a swell from a passing vessel. It is well established that a presumption of fault arises when a vessel collides with a stationary object, its wake causes damage to a moored or anchored vessel, or it violates a safety statute. See West India Fruit Steamship Co. v. Raymond, 190 F.2d 673, 674 (5th Cir. 1951) ("fact of injury to (properly moored vessel) from swells prima facie establishes the liability of the [moving vessel]"); Petro United Terminals, Inc. v. J.O. Odfjell Chemical Carriers, 756 F. Supp. 269, 274 (E.D. La. 1991) (violation of statutory safe speed rule shifted burden shifts to passing vessel to prove that its fault was not the sole cause of the accident); New Orleans Steamboat Co. v. MIT HELLESPONT GLORY, 562 F. Supp. 391, 392 (E.D. La. 1983) ("Once a properly moored vessel proves that a passing vessel caused swells or suction that resulted in damage to the moored vessel, the passing vessel is obligated to exonerate itself from blame."). This case involves none of those circumstances, and the Court finds no grounds for presuming fault here. See Maxwell v. Hapag-Lloyd Akt., Hamburg, 862 F.2d 767, 769 (9th Cir. 1988) ("presumption of fault does not extend to personal injuries occurring as a result of a fall on properly moored vessels that do not themselves suffer damage") ( citing Annotation, Res Ipsa Loquitur With Respect to Personal Injuries On or About Ship, 1 ALR 3d 642, 657-60 (1965)); Moran v. M/V GEORGIE MAY, 164 F. Supp. 881, 885 (S.D. Fla. 1958) (applying general negligence principles to personal injury claim of passenger in motorboat hit by wake of passing vessel). But see Sweeney v. Car/Puter Int'l Corp., 521 F. Supp. 276, 281, 285 (D.S.C. 1981) (not relying on res ipsa loquitur, but noting it supported responsibility of vessels whose wakes violated Inland Rules of the Road and caused personal injuries to passengers aboard vessel navigating intercoastal waterway).
In order to succeed on its claim, T.L. James must establish that third-party defendants operated the TEXAS negligently and that this negligence created an excessive swell which injured T.L. James. The facts and circumstances of each particular case determine whether a vessel is responsible for damages created by her swells. See Moran, 164 F. Supp. at 885. A moving vessel owes a duty of reasonable care to appreciate the reasonable effect of its wake and to take reasonable precautions to avoid creating unusual swells that may injure others. See Maxwell, 862 F.2d at 769 (affirming jury instructions that passing vessel owed duty to use reasonable care not to create unusual and dangerous swells); O'Donnell Transp. Co. v. M/V MARYLAND TRADER, 228 F. Supp. 903, 909 (S.D.N.Y. 1963) ("only unusual swells or suction which cannot reasonable be anticipated furnish the basis for a claim") (citations omitted); Barthelemy v. Phillips Petroleum Co., 1999 WL 65024, at *3 (E.D. La. Feb. 9, 1999) (holding plaintiff injured when wake of passing vessel hit his boat "must prove, by a preponderance of the evidence, that [passing vessel] failed to exercise reasonable care that an ordinary, reasonable and prudent person would have used under similar circumstances").
A vessel causing injury to others by her swell must be held responsible for any failure to appreciate the reasonable effect of her own speed and motion through the water at the particular place and under the particular circumstances where the injury occurred and her officers are required to take into consideration others who may reasonably be expected to be affected, and to take all reasonable precautions to avoid their injury even though former experience has shown that in the ordinary and usual course of events they are likely to escape injury or that the larger vessel was proceeding on ordinary course and at her customary speed.Moran, 164 F. Supp. at 884-85. Applying this standard, the Moran court found the 43-foot vessel GEORGIE MAY negligent and thus liable for personal injuries sustained by a passenger in a 14-foot outboard motorboat. See id. at 885. The court noted the relative size of the vessels, and that despite tacitly accepting a starboard passage, the GEORGIE MAY maintained a course in the center of the channel. It passed unnecessarily close to the motorboat, and at a speed that created maximum waves and swells of three to five feet. See Id.
Here, third-party defendants assert that the wake created by the TEXAS was reasonable and of a size that the TRINITY's captain should have anticipated on the relevant area of the Mississippi. Although the Court finds that the evidence weighs in third-party defendants' favor, genuine issues of material fact exist that preclude finding for them as a matter of law. In support of their summary judgment motion, third-party defendants point to the deposition testimony of the TRINITY's master, Captain Burks. Captain Burke described the wake created by the TEXAS as "not incredibly large" and "anywhere probably from one to three feet maybe, two, two and a half foot." (Mot. Summ. J. Ex. 4; Burks Dep., at 81-82.) Third-party defendants also rely on their expert's interpretation of the TAMPA video to establish that the height of the TEXAS's wake was approximately 18 inches at the time of the accident. Mr. Cairns opined that an 18-inch wake "is not an unreasonable or unusual size for a wake for a vessel transiting the Mississippi River" and "all small vessels navigating the Mississippi River should at all times be prepared to deal with waves of this type." (Mot. Summ. J. Ex. 1-A, Cairns Report, at 5.) This is persuasive evidence that the wake created by the TEXAS was reasonable and should have been expected by the TRINITY under the circumstances. However, the Court notes that the admission of the video on which Mr. Cairns' conclusion relies is contingent upon third-party defendants' establishing a proper foundation at trial.
Moreover, the size of the wake is in dispute. Mr. Gregg's workers' compensation claim reports that he believed the wake of the TEXAS was four to five feet at the time it hit the TRINITY. ( See T.L. James Opp'n Mot. Summ. J. Ex. B.) Although Mr. Gregg is admittedly inexperienced in maritime matters, he testified at his deposition that the impact of the TEXAS's wake was strong enough to throw him off the stool on which he was seated in the wheelhouse and to cause him to roll backwards some 15 to 20 feet into the main cabin of the TRINITY. ( See Pls.' Opp'n Mot. Summ. J. Ex. 1, Gregg Dep., at 56-57.) Mr. Gregg also testified that he was holding onto the counter top of the TRINITY so tightly that the force of the wake "ripped two holes in [his] thumb." ( See id. at 64.) The Court finds this testimony creates an issue of fact as to whether the wake created by the TEXAS was normal and to be expected under the circumstances.
Additionally, although third-party defendants present evidence that the TEXAS was traveling at a speed of 9 knots at the time of the accident and that speed was reasonable under the circumstances, T.L. James has questioned third-party defendants' calculation of the speed on the grounds that the speed of vessels traveling on the Mississippi River is calculated in statute miles per hour (MPH), not in knots. Mr. Greggs also testified that none of the other vessels that the TRINITY passed on the morning of the alleged incident was going as fast as the TEXAS. ( See Id. at 58.)
Finally, third-party defendants rely on the deposition testimony of T.L. James' expert, Norman Antrainer, and an admission by T.L. James to support their summary judgment motion. These materials indicate that the TRINITY was sufficiently seaworthy to navigate a one to three foot wake at the relevant area of the Mississippi River. ( See Mem. Supp. Summ. J., at 6; Mot. Supp. Exs. Mot. Summ. J., Antrainer Dep., at 40-42.) The Court agrees with T.L. James that the TRINITY's ability to safely navigate a particular wake does not establish that the wake was reasonable under the circumstances.
Because genuine issues of material fact exist as to the reasonableness of the wake created by the TEXAS and whether the much smaller vessel TRINITY should have reasonably anticipated such a wake under the circumstances, third-party defendants' motion for summary judgment is denied.
III. CONCLUSION
For the foregoing reasons, the Court denies the motion in limine of T.L. James and denies third-party defendants' motion for summary judgment.