D&S Marine Services, Llc v. Samsung Fire & Marine Insurance Company

MOTION for Partial Summary Judgment

E.D. La.June 14, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICES, LLC * CIVIL ACTION NO.: 17-2392 * * SECTION: “I” (1) versus * * DISTRICT JUDGE AFRICK SAMSUNG FIRE & MARINE * INSURANCE COMPANY * MAGISTRATE JUDGE van MEERVELD MOTION OF SAMSUNG FIRE & MARINE INSURANCE COMPANY FOR PARTIAL SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Samsung Fire & Marine Insurance Co., (“SFMI”), and moves the Court for a partial summary judgment dismissing that part of the claim of D&S Marine Service, Inc., which requests reimbursement of $71,608.55 paid to Marquis Energy, for the reason that D&S Marine Service, Inc., was not legally liable to pay for the purely economic damages of Marquis Energy, and so is not entitled to reimbursement from its underwriter, as more fully appears in the memorandum attached. New Orleans, Louisiana, this 14th day of June, 2017. /s/ Joseph P. Tynan______________ JENNIFER E. MICHEL (#18114) JOSEPH P. TYNAN (#12973 LEWIS BRISBOIS BISGAARD & SMITH, LLP 400 Poydras Street, Suite 2000 New Orleans, Louisiana 70130 Telephone: 504-302-0484 Facsimile: 504-754-7569 E-mail: Joseph.Tynan@lewisbrisbois.com Jenny.Michel@lewisbrisbois.com Attorneys for Defendant, Samsung Fire & Marine Insurance Co. Case 2:17-cv-02392-LMA-JVM Document 18 Filed 06/14/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record using the Court’s CM/ECF system, to which all attorneys in this case have subscribed, on this 14th day of June, 2017. /s/ Joseph P. Tynan____________ JOSEPH P. TYNAN Case 2:17-cv-02392-LMA-JVM Document 18 Filed 06/14/17 Page 2 of 2 4815-1115-7066.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICES, LLC * CIVIL ACTION NO.: 17-2392 * * SECTION: “I” (1) versus * * DISTRICT JUDGE AFRICK SAMSUNG FIRE & MARINE * INSURANCE COMPANY * MAGISTRATE JUDGE van MEERVELD MEMORANDUM OF SAMSUNG FIRE & MARINE INSURANCE COMPANY IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT MAY IT PLEASE THE COURT: On November 3, 2015, the M/V RANDOLPH C, owned and operated by D&S Marine Services, LLC (“D&S Marine”), was pushing ahead the barge CBC-376, owned by Canal Barge Corporation, on the Atchafalaya River when the tow allided with the Highway 190 Bridge spanning the river at Krotz Springs, Louisiana, resulting in physical damage to the barge.1 Samsung Fire and Marine Insurance Company (“Samsung”) issued a Hull and Machinery and Protection and Indemnity Policy (“the Policy”) Number 20141113002200 to D&S Marine Services, LLC, which was in effect on the date of the casualty.2 Plaintiff made claim against Samsung for reimbursement of amounts it paid to various claimants under the Collision and Towers Liability Clause appearing on page 26 of the Policy.3 Claim has also 1 Plaintiff’s Petition, attached as Exhibit A, paragraphs 4 and 5. 2 The Policy is attached as Exhibit B. 3 Plaintiff has designated the Collision and Towers Liability Clause as the portion of the policy under which its claim is being made. See Exhibit “C”, D&S Marine Services, LLC’s Responses to Interrogatories of Samsung Fire & Marine Insurance Company, Response No. 5. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 1 of 8 4815-1115-7066.1 been made by D&S Marine against Samsung under the Extended Tower’s Liability Clause appearing on page 27 of the Policy4; however, that clause extends coverage specifically to the legal or contractual liability of D&S Marine arising out of towage by vessels owned and operated by towing operators other than D&S Marine and who are acting as subcontractors/agents of D&S Marine while towing vessels under agreements D&S Marine has with the vessels being towed.5 Since the damage in this case was caused by the M/V RANDOLPH C, a vessel actually owned and operated by D&S Marine and not a vessel acting as a subcontractor or agent of D&S Marine, the Extended Tower’s Liability Clause does not apply of its own terms. Most of the claims made against Samsung by D&S Marine for reimbursement of amounts made to claimants were paid to D&S Marine. There are, however, three specific claims which were not paid and which form the basis of this suit.6 Those claims include one by Marquis Energy in the amount of $71,608.55,7 which Samsung now asks the Court to dismiss in this motion. The Collision and Towers Liability Clause of Samsung’s Policy provides that, if the M/V RANDOLPH C should collide with any structure, “…or shall cause any other loss or damage to her tow or the freight thereof or to the property on board,” and D&S Marine is at fault and “shall become liable to pay and shall pay by way of damages to any other person or persons, any sum or sums,” Samsung, as underwriters, will reimburse D&S Marine whatever D&S Marine has paid for those damages. Here, the RANDOLPH C allided with the Krotz 4 See Exhibit C, Response No. 5. 5 See Exhibit B, p. 27. 6 See Exhibit C., Response No. 1. 7 See Exhibit C., Response No. 1. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 2 of 8 4815-1115-7066.1 Springs Bridge and caused damage to her tow, the CBC-376, and the RANDOLPH C was liable under law to its tow for that damage. That part of the clause appears to be satisfied, and, as mentioned, most of the claims for damage sustained by the barge have been reimbursed to D&S Marine by Samsung. However, it is a requirement of the policy that D&S Marine Service “shall become liable to pay” the claimant before Samsung must reimburse D&S Marine for any sums the latter shall have paid. In other words, D&S Marine must prove that it was liable to pay Marquis Energy, a condition which it is D&S Marine’s burden to prove – and which it cannot prove – before reimbursement must be made. In this case, D&S Marine was not liable by law to Marquis Energy for the damages it claims, because Marquis Energy did not sustain any physical damage to its property as a result of the allision of the barge CBC-376 with the Highway 190 Bridge in Krotz Springs, and Marquis Energy’s purely economic damages are not recoverable at law. Since D&S Marine is not liable to Marquis Energy, Samsung is not required by the policy to reimburse D&S Marine for its payment to Marquis Energy. “It is well settled under the general maritime law that there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest.” Reserve Mooring, Inc. v. American Commercial Barge Line, LLC, 251 F.3rd 1069 (5th Cir. 2001). In that case, Reserve Mooring sought to recover lost income resulting from the loss of use of its mooring site when a barge owned by American Commercial Barge Line sunk while moored to Reserve’s midstream mooring facility on the Mississippi River. The district court denied summary judgment, reasoning that, although Reserve sustained no physical damage to its facility, its claim for lost income was foreseeable, and so was recoverable in maritime tort. The district court certified its order denying summary judgment to the Fifth Circuit. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 3 of 8 4815-1115-7066.1 The Fifth Circuit found that it had previously considered and rejected just such a case- by-case foreseeability approach to recovery of economic damages in cases of unintentional maritime tort in Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985)(en banc) at 1028. In that case, “[T]he court instead chose the predictability afforded by the ‘bright line’ rule that allows plaintiffs to recover economic losses only when a plaintiff has suffered physical injury to a proprietary interest.” Reserve Mooring, 251 F.3rd at 1071; TESTBANK, supra at 1029. See, also, Taira Lynn Marine LTD. No. 5, LLC. v. Jay’s Seafood, Inc., 444 F.3rd 371 (5th Cir. 2006), (“[I]t is unmistakable that the law of this circuit does not allow recovery of purely economic claims absent physical injury to a proprietary interest in a maritime negligence suit.” Id at 377); and Bertucci Contr. Co., LLC v. Steele, 712 F.3rd 245 (5th Cir. 2013), (quoting that same language from Taira Lynn to deny recovery to property owners who claimed that damage to a bridge, making it inoperable, interfered with the use of their property). In its Interrogatories to the plaintiff, Samsung asked, “Please describe in detail all physical damages sustained by Marquis Energy, LLC.”8 In its response, D&S Marine said, “The allision caused Marquis Energy to sustain damages,9 including certain expenses and costs, some of which were associated with barge surveys and consignment.”10 It went on to say, “D&S Marine was required to cover Marquis Energy’s damages, and Samsung is thus required to reimburse D&S Marine….”11 In other words, D&S Marine evaded rather than answered the Interrogatory, and did not describe in detail any physical damages sustained by 8 Exhibit C, Interrogatory No. 3. 9 The Court should note the absence of the word “physical” in D&S Marine’s response. 10 Exhibit C, Response No. 3. 11 Id. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 4 of 8 4815-1115-7066.1 Marquis Energy, as it was asked to do. Although it offered, without being asked, that it was “required” to pay Marquis Energy, D&S Marine did not explain and did not show how or why D&S Marine might be liable to pay Marquis Energy in any amount. Subsequent discovery12 confirmed that the damages Marquis Energy claimed were not for any physical damages to its property, but instead were for demurrage, i.e., the delay of its cargo laden aboard the CBC-376 at the time of the casualty in reaching Houston in time to be loaded aboard the ocean-going M/T STAR for subsequent transportation abroad. An undated e-mail message between Marquis Energy’s General Counsel and counsel for D&S Marine, received in discovery, states, “The major item ($71,608.33) is vessel demurrage that was incurred due to the additional time it took for a replacement barge from AEP to reach Houston.”13 On January 14, 2016, Marquis Energy’s General Counsel sent an e-mail to counsel for D&S Marine referencing his earlier e-mail and characterizing the claim of $71,608.33 as “due to delay caused by the collision.”14 Attached to that e-mail was the invoice of the owner/charterer of the M/T STAR15 showing a total of $175,373.61 for ship demurrage, of which Marquis Energy charged $71,608.33 to D&S Marine.16 D&S Marine itself admitted in its Petition that the claim of Marquis Energy was for demurrage or 12 A subpoena duces tecum was served on Dufour, Laskay & Strouse, the marine surveyors retained by D&S Marine to represent the vessel owner’s interests in connection with this casualty. Its file was delivered to all parties as a result. 13 See Exhibit D, DUFOUR-000010, 09, and 04-06, attached. 14 See Exhibit E, DUFOUR-000019-22, attached. 15 See Exhibit F, DUFOUR -000008, attached. 16 See Exhibit E. Marquis Energy originally made claims for reconsignment and cargo inspection, as well, but these claims are not for physical damage to its property either. “Reconsignment, as technically understood, is a privilege extended by carriers to shippers under which goods may be forwarded to a point other than their original destination . . . .” So. Pacific Co. v. Brown, Alcantta & Brown, 409 F.2d 1331, 1332 (5th Cir. 1969); see, also, Exhibits G and H, attached. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 5 of 8 4815-1115-7066.1 “downtime,” when it stated: “As of today, Samsung has not reimbursed D&S for the downtown [sic] claim of Marquis Energy . . . .”17 There are no documents or other facts which show that Marquis Energy sustained any physical damage to its property as a result of this allision. As the Fifth Circuit noted in Blanton v. Continental Ins. Co.,18, “[t]he Supreme Court long ago defined demurrage as ‘the loss of profits or the loss of use of the vessel pending repairs or other detention.’”19 It is “merely an allowance or compensation for the delay or detention of a vessel.”20 In this particular case, it is “a fine or payment made by the shipper to the vessel owner if the shipper fails to complete the loading of his cargo within an allowed period of time . . . .”21 In other words, time is money, and any delay of the ship awaiting cargo is payable in dollars – a purely economic loss. This is what happened here; the cargo aboard the CBC-376 was delayed in reaching Houston to be loaded aboard the M/T STAR, and Marquis Energy had to pay demurrage to the shipowner, which it turned around and claimed from D&S Marine. However, because it is a purely economic loss – Marquis Energy did not sustain any physical damage to its property – D&S Marine was not liable for the demurrage costs, and because the Policy requires D&S Marine to be liable to a claimant, Samsung is not required by the policy to reimburse D&S Marine for those costs. 17 Exhibit A, Paragraph 10. See Isquith ex rel. Isquith v. Middle S. Utils., 847 F.2d 186, 195 (5th Cir. 1988) (“[W]e see no reason why, for purposes of the resolution of summary judgement only, we cannot treat the factual allegations of the complaint as admissions or stipulations.”) 18 565 Fed. Appx. 330, 337 (5th Cir. 2014). 19 The Conqueror,166 U.S. 110, 125 (1897); the Supreme Court found this definition to be “too well settled both in England and America to be open to question.” Id. 20 Hellenic Lines v. Embassy of Pakistan, 467 F.2d 1150, 1156 (2d Cir. 1972), quoting The Appollon, 22 U.S. (9 Wheat.) 362, 368 (1824). 21 Hellenic Lines v. Commodities Bagging & Shipping, 611 F.Supp. 665, 675 (Dist. N.J. 1985). Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 6 of 8 4815-1115-7066.1 “Under Louisiana law, the insured must prove that the claim asserted is covered by the policy.” Bayle v. Allstate Ins. Co., 615 F.3d 350, 357 (5th Cir. 2010), and cases sited therein. It is D&S Marine’s burden to prove that it is liable to Marquis Energy as required by the Policy in order to be reimbursed by Samsung. This it cannot do. In Am. Comm. Lines, LLC v. Brown Water Towing I, Inc., 02-41062, 2003 U.S. App. Lexis 28827 at *2 (5th Cir. April 8, 20030, the Fifth Circuit held: “Our precedent is firmly to the effect that parties who suffer non-contact, purely economic damages, resulting from an unintentional maritime tort like the one here at issue, cannot recover in the absence of physical damage to the property in which the claimants have an ownership interest.” In this case, D&S Marine cannot show that Marquis Energy sustained any physical damage arising out of the bridge allision to property Marquis Energy owns, and so D&S Marine is not liable to Marquis Energy for the latter’s purely economic damages. Because D&S Marine is not liable to Marquis Energy, the Collision and Towers Liability Clause and the Policy itself does not cover those damages. New Orleans, Louisiana, this 14th day of June, 2017. /s/ Joseph P. Tynan_______________ JENNIFER E. MICHEL (#18114) JOSEPH P. TYNAN (#12973 LEWIS BRISBOIS BISGAARD & SMITH, LLP 400 Poydras Street, Suite 2000 New Orleans, Louisiana 70130 Telephone: 504-302-0484 Facsimile: 504-754-7569 Joseph.Tynan@lewisbrisbois.com Jenny.Michel@lewisbrisbois.com Attorneys for Defendant, Samsung Fire & Marine Insurance Co. Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 7 of 8 4815-1115-7066.1 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record electronically using the Court’s CM/ECF system, to which all attorneys in this case have subscribed, on this 14th day of June, 2017. /s/ Joseph P. Tynan____________ JOSEPH P. TYNAN Case 2:17-cv-02392-LMA-JVM Document 18-1 Filed 06/14/17 Page 8 of 8 4839-8076-3722.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICES, LLC * CIVIL ACTION NO.: 17-2392 * * SECTION: “I” (1) versus * * DISTRICT JUDGE AFRICK SAMSUNG FIRE & MARINE * INSURANCE COMPANY * MAGISTRATE JUDGE van MEERVELD STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO MATERIAL ISSUE TO BE TRIED BY SAMSUNG FIRE & MARINE INSURANCE COMPANY MAY IT PLEASE THE COURT: For purposes of its Motion For Partial Summary Judgment submitted herewith, Samsung Fire & Marine Insurance Company (“Samsung”) submits that there is no material issue to be tried as to the following facts: 1. On November 3, 2015, D&S Marine Services, Inc. (“D&S Marine”)was the owner and operator of the M/V RANDOLPH C. 2. On November 3, 2015, M/V RANDOLPH C was pushing the barge CBC-376 on the Atchafalaya River near Krotz Springs, Louisiana. 3. On November 3, 2015, the M/V RANDOLPH C and its tow allided with the U.S. Highway 190 Bridge spanning the Atchafalaya River at Krotz Spring, Louisiana (“the Casualty”). 4. At the time of the Casualty, the CBC-376 was owned by Canal Barge Corporation. 5. Samsung had issued to D&S Marine its Policy Number 20101113002200 (“Policy”)which was in effect on November 3, 2015. 6. The Policy requires in its Collision and Towers Liability Clause that, in the event that the M/V RANDOLPH C shall cause her tow to come into any structure through he fault of the M/V Case 2:17-cv-02392-LMA-JVM Document 18-2 Filed 06/14/17 Page 1 of 2 4839-8076-3722.1 RANDOLPH C, Samsung will reimburse D&S Marine for any damages D&S Marine shall have become liable to pay to any other person. 7. After the Casualty, Marquis Energy made a claim against D&S Marine in the amount of $71,688.33. 8. The claim of Marquis Energy was for demurrage it owed to Raizen North America for the demurrage of the M/T STAR. 9. Marquis Energy did not sustain any physical damage to any of its own property as a result of the Casualty. 10. D&S Marine is not liable to Marquis Energy for the latter’s purely economic loss. NEW ORLEANS, LOUISIANA, this 14th day of June, 2017. /s/ Joseph P. Tynan _______ JOSEPH P. TYNAN (#12973) JENNIFER E. MICHEL (#18114) LEWIS BRISBOIS BISGAARD & SMITH, LLP 400 Poydras Street, Suite 2000 New Orleans, Louisiana 70130 Telephone: 504-302-0484 Facsimile: 504-754-7569 E-mail: Joseph.Tynan@lewisbrisbois.com Jenny.Michel@lewisbrisbois.com Attorneys for Defendant, Samsung Fire & Marine Insurance Co. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record using the Court’s CM/ECF system, to which all attorneys in this case have subscribed, on this 14th day of June, 2017. /s/ Joseph P. Tynan JOSEPH P. TYNAN Case 2:17-cv-02392-LMA-JVM Document 18-2 Filed 06/14/17 Page 2 of 2 4812-4686-3946.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICES, LLC * CIVIL ACTION NO.: 17-2392 * * SECTION: “I” (1) versus * * DISTRICT JUDGE AFRICK SAMSUNG FIRE & MARINE * INSURANCE COMPANY * MAGISTRATE JUDGE van MEERVELD NOTICE OF SUBMISSION TO: D&S Marine Services, LLC Through its counsel of record Jefferson R. Tillery, Esq. Jones Walker LLP 201 St. Charles Avenue New Orleans, LA 70170 PLEASE TAKE NOTICE that Samsung Fire & Marine Insurance Company will submit the attached Motion For Partial Summary Judgment to the Court for its decision on Wednesday, July 12, 2017. NEW ORLEANS, LOUISIANA, this 14th day of June, 2017. /s/ Joseph P. Tynan _______ JOSEPH P. TYNAN (#12973) JENNIFER E. MICHEL (#18114) LEWIS BRISBOIS BISGAARD & SMITH, LLP 400 Poydras Street, Suite 2000 New Orleans, Louisiana 70130 Telephone: 504-302-0484 Facsimile: 504-754-7569 E-mail: Joseph.Tynan@lewisbrisbois.com Case 2:17-cv-02392-LMA-JVM Document 18-3 Filed 06/14/17 Page 1 of 2 4812-4686-3946.1 Jenny.Michel@lewisbrisbois.com Attorneys for Defendant, Samsung Fire & Marine Insurance Co. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record using the Court’s CM/ECF system, to which all attorneys in this case have subscribed, on this 14th day of June, 2017. /s/ Joseph P. Tynan JOSEPH P. TYNAN Case 2:17-cv-02392-LMA-JVM Document 18-3 Filed 06/14/17 Page 2 of 2 4823-2309-6138.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA D&S MARINE SERVICES, LLC * CIVIL ACTION NO.: 17-2392 * * SECTION: “I” (1) versus * * DISTRICT JUDGE AFRICK SAMSUNG FIRE & MARINE * INSURANCE COMPANY * MAGISTRATE JUDGE van MEERVELD REQUEST FOR ORAL ARGUMENT NOW INTO COURT, through undersigned counsel, comes Samsung Fire & Marine Insurance Company and requests that the Court schedule a time and date for oral argument of its attached Motion For Partial Summary Judgment, now set for submission to the Court for its decision on Wednesday, July 12, 2017. NEW ORLEANS, LOUISIANA, this 14th day of June, 2017. /s/ Joseph P. Tynan _______ JOSEPH P. TYNAN (#12973) JENNIFER E. MICHEL (#18114) LEWIS BRISBOIS BISGAARD & SMITH, LLP 400 Poydras Street, Suite 2000 New Orleans, Louisiana 70130 Telephone: 504-302-0484 Facsimile: 504-754-7569 E-mail: Joseph.Tynan@lewisbrisbois.com Jenny.Michel@lewisbrisbois.com Attorneys for Defendant, Samsung Fire & Marine Insurance Co. Case 2:17-cv-02392-LMA-JVM Document 18-4 Filed 06/14/17 Page 1 of 2 4823-2309-6138.1 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record using the Court’s CM/ECF system, to which all attorneys in this case have subscribed, on this 14th day of June, 2017. /s/ Joseph P. Tynan JOSEPH P. 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