In re: The Matter of TK Boat Rentals, L.L.C., No. 2:2017cv01545 - Document 186 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting in part and denying in part 107 Motion for Summary Judgment. TKBR's crossclaim for negligent entrustment against Extreme Fishing is DISMISSED. The Court finds that Extreme Fishing was a demise charterer of the SUPER STRIKE as a matter of law, and grants summary judgment to TKBR on this question. Signed by Judge Sarah S. Vance on 8/21/2018. (Reference: All cases)(cg)
Download PDF
<![CDATA[
In re: The Matter of TK Boat Rentals, L.L.C. Doc. 186 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: TK BOAT RENTALS, LLC as owner and operator of the M/ V MISS IDA, for exoneration from or lim itation of liability. CIVIL ACTION NO. 17-1545 c/ w 17-2446 and 17-3657 SECTION “R” (4) ORD ER AN D REASON S Before the Court is defendant Extrem e Fishing, L.L.C.’s m otion for sum m ary judgm ent on (1) the negligence claim filed by plaintiffs Patrick A. Beck, J ustin McCarthy, and Michael Harrell; (2) the negligence crossclaim filed by defendant and plaintiff in lim itation TK Boat Rentals, LLC (TKBR); and (3) TKBR’s crossclaim for negligent entrustment. 1 The Court denies Extrem e Fishing’s m otion as to the negligence claim s brought by TKBR and plaintiffs. The Court also finds as a matter of law that Extrem e Fishing was a dem ise charterer of the vessel on the day of the collision, and grants sum m ary judgment to TKBR on this issue. Finally, the Court grants Extreme Fishing’s m otion as to TKBR’s claim for negligent entrustm ent. 1 R. Doc. 10 7. Dockets.Justia.com I. BACKGROU N D This consolidated action arises out of a boat collision on February 12, 20 17. 2 Plaintiffs Tracy Edwards, Charles “Nick” Siria, 3 J ustin McCarthy, Michael Harrell, Patrick Beck, and Beck’s m inor son, C.D.B., scheduled a chartered fishing trip with Extrem e Fishing through Troy Wetzel, Extreme Fishing’s founder and sole m ember, 4 for February 12, 20 17. 5 Wetzel arranged for defendant Andre Boudreau to captain the Beck trip. 6 On February 11, the M/ V KINGFISH, the vessel that was scheduled to be used for the trip, became inoperable. 7 Wetzel and Boudreau discussed how to proceed, 8 and Boudreau ultim ately contacted defendant Chase St. Clair about the availability of St. Clair’s fishing vessel, the M/ V SUPER STRIKE. 9 The SUPER STRIKE was available, 10 and Beck agreed with Wetzel to use the 2 R. Doc. 1. The claim s brought by Edwards and Siria have since been dism issed. R. Doc. 84; R. Doc. 10 3. 4 R. Doc. 10 7-6 at 1 ¶¶ 2-3; R. Doc. 112-8 at 1 ¶¶ 2-3; R. Doc. 113-1 at 1 ¶¶ 2-3. 5 R. Doc. 1 at 3 ¶ 13 (Case No. 17-2446); see also R. Doc. 10 7-6 at 4 ¶ 15; R. Doc. 112-8 at 2 ¶ 15; R. Doc. 113-1 at 2 ¶ 15. 6 R. Doc. 10 7-6 at 5 ¶ 19; R. Doc. 112-8 at 2 ¶ 19; R. Doc. 113-1 at 2 ¶ 19. 7 R. Doc. 10 7-6 at 4 ¶ 18; R. Doc. 112-8 at 2 ¶ 18; R. Doc. 113-1 at 2 ¶ 18. 8 R. Doc. 10 7-6 at 5 ¶ 19; R. Doc. 112-8 at 2 ¶ 19; R. Doc. 113-1 at 2 ¶ 19. 9 R. Doc. 10 7-6 at 5 ¶ 20 ; R. Doc. 112-8 at 3 ¶ 20 ; R. Doc. 113-1 at 2 ¶ 20 . 10 Id. 2 3 SUPER STRIKE. 11 On the evening of February 11, Boudreau retrieved the SUPER STRIKE and brought it to the launch site in Venice, Louisiana. 12 On the m orning of February 12, 20 17, the Beck trip departed Venice on the SUPER STRIKE with Boudreau as captain. 13 There was considerable fog that reduced visibility to 50 to 70 yards. 14 Shortly after the trip began, the SUPER STRIKE collided with the M/ V MISS IDA, a vessel owned by TKBR. 15 The plaintiffs allegedly suffered physical and em otional injuries as a result of the accident. 16 On February 23, 20 17, TKBR filed a lim itation of liability action related to the collision. 17 On March 24, 20 17, plaintiffs filed suit for dam ages against m ultiple defendants, including Extrem e Fishing, TKBR, Wetzel, Boudreau, St. Clair, and GEICO Marine Insurance Company, which plaintiffs allege was St. Clair’s insurer on the date of the collision. 18 On April 19, 20 17, St. Clair and Boudreau jointly filed a lim itation of liability action. 19 11 R. Doc. 10 7-6 at 6 ¶ 23; R. Doc. 112-8 at 3 ¶ 23; R. Doc. 113-1 at 2 ¶ 23. R. Doc. 10 7-6 at 6 ¶ 24; R. Doc. 112-8 at 3 ¶ 24; R. Doc. 113-1 at 3 ¶ 24. 13 R. Doc. 10 7-6 at 6 ¶ 25; R. Doc. 112-8 at 3 ¶ 25; R. Doc. 113-1 at 3 ¶ 25. 14 Id. 15 R. Doc. 10 7-6 at 7 ¶ 28; R. Doc. 112-8 at 3 ¶ 28; R. Doc. 113-1 at 3 ¶ 28. R. Doc. 1 at 4 ¶ 16 (Case No. 17-2446). 16 R. Doc. 1 at 5-7 ¶¶ 17-23 (Case No. 17-2446). 17 R. Doc. 1. 18 R. Doc. 1 at 7 ¶ 25 (Case No. 17-2446). 19 R. Doc. 1 (Case No. 17-3657). 3 12 The two lim itation actions and plaintiffs’ suit for dam ages were eventually consolidated into this action. 20 Plaintiffs’ com plaint alleges that the collision was the result of negligence on the part of Extreme Fishing, TKBR, Boudreau, Wetzel, and St. Clair. 21 On May 19, 20 17, TKBR filed crossclaim s against Boudreau, Wetzel, 22 Extreme Fishing, St. Clair, and GEICO. 23 TKBR alleges that Boudreau’s negligence caused the collision, and that “Extrem e Fishing, LLC, as the employer of Andre Boudreau, [is] responsible for the collision and resulting dam ages.”24 TKBR also alleges that Extreme Fishing is “further responsible for the collision and resulting dam ages because . . . Extreme Fishing, LLC negligently entrusted the SUPER STRIKE and the passengers to Andre Boudreau.”25 Extrem e Fishing now m oves for sum mary judgment on plaintiffs’ and TKBR’s claim s for negligence and negligent entrustm ent. 26 Plaintiffs do not 20 R. Doc. 6; R. Doc. 16. R. Doc. 1 at 7 ¶ 24 (Case No. 17-2446). 22 All claim s filed by plaintiffs and TKBR against Wetzel in his individual capacity have since been dism issed. R. Doc. 87. 23 R. Doc. 18. 24 Id. at 12 ¶¶ 20 -21. 25 Id. ¶ 22. 26 R. Doc. 10 7. 4 21 oppose the m otion. 27 TKBR opposes the m otion. 28 St. Clair, Boudreau, and GEICO have jointly subm itted an opposition m em orandum . 29 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 27 R. Doc. 110 . R. Doc. 113. 29 R. Doc. 112. Extrem e Fishing questions whether St. Clair, Boudreau, and GEICO—which have not filed any crossclaims against Extrem e Fishing— “have standing” to oppose Extreme Fishing’s m otions for sum m ary judgm ent. R. Doc. 122 at 2 n.2. “While som e courts have precluded codefendants without crossclaim s from filing oppositions to a co-defendant’s m otion for sum m ary judgment, others have considered a co-defendant’s opposition.” Slatten, LLC v. Roy al Caribbean Cruises, Ltd., No. 13-673, 20 14 WL 4186781, at *3 (E.D. La. Aug. 22, 20 14) (quotation m arks om itted). This Court has previously considered oppositions filed by co-defendants who have not filed a claim against the movant. See id. (citing Edw ards v. Perm obil, Inc., No. 11-190 0 , 20 13 WL 40 94393, at *1 n.2 (E.D. La. Aug. 13, 20 13)). In light of these precedents, the Court will consider the argum ents and evidence St. Clair, Boudreau, and GEICO provide in their opposition. 5 28 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonm oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or by “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by 6 pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION A. N e glige n ce Claim s Extrem e Fishing first argues that it cannot be held vicariously liable for Boudreau’s alleged negligence because there is no evidence that Boudreau was working as an em ployee of Extreme Fishing at the tim e of the collision. 30 In response, TKBR, St. Clair, Boudreau, and GEICO contend that Extrem e Fishing can be liable for Boudreau’s alleged negligence because Extreme 30 R. Doc. 10 7-1 at 13. 7 Fishing was a dem ise or bareboat charterer of the SUPER STRIKE on the day of the collision and thus responsible for the negligence of its crewmember, Captain Boudreau. 31 The Court finds as a m atter of law that Extrem e Fishing was a dem ise charterer of the SUPER STRIKE. In a bareboat, or dem ise, charter, “the vessel owner transfers full possession and control to the charterer, who in turn furnishes the crew and m aintenance for the vessel (thus the term ‘bareboat’).” Forrester v. Ocean Marine Indem . Co., 11 F.3d 1213, 1215 (5th Cir. 1993); see also W alker v. Braus, 995 F.2d 77, 81 (5th Cir. 1993) (“Under a bareboat or dem ise charter the vessel is transferred without crew, provisions, fuel or supplies, . . . and if[] the charterer operates the vessel he m ust supply also such essential operating expenses.”). The thrust of a bareboat charter, therefore, is the “com plete transfer of possession, comm and, and navigation of the vessel from the owner to the charterer.” Gaspard v. Diam ond M. Drilling Co., 593 F.2d 60 5, 60 6 (5th Cir. 1979); see also In re Griffin Marine, Inc., No. 0 0 2683, 20 0 1 WL 936313, at *2 (E.D. La. Aug. 17, 20 0 1) (finding a dem ise charter existed where the owner had no control over the navigation of the vessel, and the charterer “decided when, where, and with whom to use the boat”). The charter need not be in writing. Agrico Chem . Co. v. M/ V BEN 31 R. Doc. 112 at 9; R. Doc. 113 at 2. 8 W . MARTIN, 664 F.2d 85, 91 (5th Cir. 1981); see also St. Paul Fire & Marine Ins. v. Vest Transp. Co., 666 F.2d 932, 939 (5th Cir. 1982) (“[A] charter party m ay be im plied from circum stances concerning the actual possession and use of a vessel.”). Because of the demise charterer’s extensive control over the vessel, the charterer is considered the owner pro hac vice of the vessel for the duration of the contract. Forrester, 11 F.3d at 1215. “The dem ise charterer is therefore responsible in personam for the negligence of the crew and the unseaworthiness of the vessel.” Id. The Fifth Circuit has held that a dem ise charter can exist in the context of a short-term boat rental for a fishing trip. See O’Donnell v. Latham , 525 F.2d 650 , 652-53 (5th Cir. 1976). In O’Donnell, the plaintiff and his fishing party agreed to rent the defendant’s vessel for $ 85, plus the cost of fuel. Id. at 651. The defendant owner agreed to leave the vessel tied at the dock and fully fueled for the plaintiff. Id. The plaintiff and his party supplied its own fishing supplies, provisions, and operating crew. Id. The Fifth Circuit affirm ed the district court’s determ ination that the arrangem ent between the parties am ounted to a dem ise charter, because the “dom inant feature of such a charter” was present: that “[p]ossession, com m and[,] and navigation” of the vessel “rested com pletely and exclusively” in the plaintiff’s party. Id. at 653. The court noted that “[t]he fact that the [plaintiffs] were to return the 9 boat at the end of the day—thus lim iting its use to m axim um period of time— [was] not a sufficient curtailm ent of possession and control to negate the dem ise.” Id. Here, no rational trier of fact could dispute that Extrem e Fishing was the dem ise charterer of the SUPER STRIKE. First, St. Clair com pletely relinquished possession, com m and, and navigation of the vessel when he agreed to rent it out. It is undisputed that—as Boudreau testified—once the SUPER STRIKE launched, Boudreau was solely responsible for deciding “when and how to proceed” with the fishing trip, and for the safety of the vessel and its passengers. 32 It is also undisputed that Boudreau, rather than St. Clair, provided all of the “rods, reels, fishing nets and other fishing equipm ent” for the trip. 33 The “dom inant feature” of a dem ise charter— relinquishm ent of the possession, comm and, and navigation of the vessel— was therefore present. See id. at 653. Second, an overwhelm ing am ount of evidence shows that Extrem e Fishing, rather than Boudreau, rented the SUPER STRIKE and was therefore the dem ise charterer on the day of the collision. Extrem e Fishing concedes that Boudreau was at least its independent contractor and that Boudreau 32 33 R. Doc. 112-4 at 5; R. Doc. 10 7-1 at 15. R. Doc. 10 7-6 at 9 ¶ 41; R. Doc. 112-8 at 4 ¶ 41; R. Doc. 113-1 at 3 ¶ 41. 10 would frequently run trips for the com pany. 34 It is undisputed that Wetzel enlisted Boudreau to serve as captain for the Beck trip, which Extrem e Fishing booked. 35 Wetzel testified that prior to the collision, he planned to charge Beck $ 2,20 0 , and that he would have paid Boudreau $ 50 0 for his work. 36 Wetzel also adm itted during his deposition that when the KINGFISH became inoperable, he asked Boudreau to m ake phone calls to see if another boat was available to use. 37 These facts show that Boudreau contacted St. Clair as a representative of Extrem e Fishing. Testim ony from St. Clair, Boudreau, and Beck further confirm s that Extrem e Fishing is the party who rented the SUPER STRIKE. St. Clair testified that he agreed to rent out the SUPER STRIKE for $ 50 0 , 38 and both he and Boudreau testified that the fee was to be paid by Wetzel. 39 Beck 34 R. Doc. 10 7-6 at 3 ¶ 9; R. Doc. 112-2. R. Doc. 10 7-6 at 4 ¶ 17; R. Doc. 112-8 at 2 ¶ 17; R. Doc. 113-1 at 2 ¶ 17. 36 R. Doc. 112-1 at 12. 37 Id. at 7 (Wetzel testifying that he said to Boudreau, “you run m ultiple boats, [w]hat can we do, [w]e got people down here in Venice that’s fishing tom orrow”). Boudreau’s testim ony about this phone call differed slightly. He stated that Wetzel specifically asked him to reach out to St. Clair because Wetzel knew that the SUPER STRIKE was available. R. Doc. 112-4 at 3. 38 R. Doc. 112-5 at 2. 39 Id.; R. Doc. 113-4 at 3 (St. Clair testifying that “[w]hen it cam e to Troy and Andre, [he] would assum e that [Wetzel] would pay [him ]”); R. Doc. 1124 at 3 (“Q: So Mr. Wetzel was going to pay Chase St. Clair $ 50 0 to lease his boat for the— [Boudreau]: Yes. Q: —Sunday trip with the—the Becks and the other— [Boudreau]: Yes.”) 11 35 testified that he expected to pay Wetzel the $ 2,20 0 trip fee even though they were no longer using one of Wetzel’s boats. 40 Beck further testified that when Wetzel called him to ask if he would be willing to use a different boat, Wetzel did not disclose who owned the new boat. 41 This suggests that Wetzel did not tell Beck that he was going to be fishing with a different charterer. Finally, Beck testified that he initially chose to book the trip with Wetzel and Extrem e Fishing because he had previously been on trips through Extreme Fishing and trusted Wetzel. 42 Beck explained that he would not have brought his m inor son on the trip had he not fished with Wetzel before. 43 This testim ony further suggests that Beck would not have agreed to transfer his fishing trip to a different charter com pany, and that he thus believed his trip was still booked with Wetzel and Extrem e Fishing on the day of the collision. The totality of this evidence establishes that Extrem e Fishing, rather than Boudreau, rented the SUPER STRIKE and retained control of the Beck trip on the day of the collision. Extrem e Fishing was therefore the dem ise charterer. See O’Donnell, 525 F.2d at 652-53; Theriot v. Daw son Prod. Servs., Inc., No. 97-190 0 , 1998 WL 637384, at *9 (E.D. La. Sept. 16, 1998) 40 41 42 43 R. Doc. 113-5 at 3-4. Id. at 6. See id. at 5. Id. 12 (party that had physical control of a barge was not a dem ise charterer when its custody was simply in connection with its obligation “to carry out the tasks it was hired to do” by the party who rented the barge); In re Suard Barge Servs., Inc., No. 96-3185, 1998 WL 2846, at *3 (E.D. La. J an. 5, 1998) (party renting two barges could still be found to be a dem ise charterer even though the contract was made through an interm ediary). The only evidence that suggests Extrem e Fishing is not the party who rented the SUPER STRIKE is Wetzel’s testim ony that he “gave the trip away” to Boudreau once the KING FISH becam e inoperable. 44 The Court finds that this self-serving and im plausible testim ony is insufficient to create a genuine dispute as to whether Extrem e Fishing was the dem ise charterer. See United States v. Law rence, 276 F.3d 193, 197 (5th Cir. 20 0 1) (“[S]elf-serving allegations are not the type of significant probative evidence required to defeat summ ary judgm ent.” (internal quotation m arks om itted)); Galindo, 754 F.3d at 1221 (noting that “m ere statements of conclusions of law or ultim ate fact cannot shift the sum m ary judgment burden to the nonm ovant”). Wetzel stood to m ake a profit of $ 1,20 0 for the Beck trip after renting the SUPER STRIKE for $ 50 0 and paying Boudreau $ 50 0 . 45 It m akes 44 45 R. Doc. 112-1 at 11. Id. at 12; R. Doc. 112-5 at 2; R. Doc. 112-4 at 3. 13 no econom ic sense for Wetzel and Extrem e Fishing to have sim ply foregone this profit by turning the trip entirely over to Boudreau. Indeed St. Clair, Boudreau, and Beck all testified that Wetzel did no such thing. Wetzel’s testim ony m akes econom ic sense only as a post-collision argum ent to escape liability. This type of testim ony is not sufficient to create a genuine dispute of a m aterial fact. See Law rence, 276 F.3d at 197; Halm ekangas v. State Farm Fire & Cas. Co., No. 0 6-3942, 20 0 8 WL 5110 711, at *5 (E.D. La. Nov. 25, 20 0 8) (nonm ovant’s “irrational” testim ony that he m ay not have received his entire insurance declaration, despite evidence that he received the first page, was not sufficient to defeat sum m ary judgment), vacated on other grounds, 60 3 F.3d 290 (5th Cir. 20 10 ). Extrem e Fishing’s other arguments for why it was not the dem ise charterer are sim ilarly unavailing. Extrem e Fishing points out that there are no “texts or written agreements” between St. Clair and Wetzel concerning the SUPER STRIKE. 46 But a dem ise charter need not be in writing, and can be assumed from the circum stances surrounding the use of the vessel. See Agrico Chem . Co., 664 F.2d at 91; St. Paul Fire & Marine Ins., 666 F.2d at 939. Because no rational trier of fact would disagree that Boudreau contacted St. Clair as a representative of Extrem e Fishing, the lack of contact 46 R. Doc. 122 at 4. 14 between Wetzel and St. Clair is im m aterial. That Boudreau, rather than Wetzel, was in com m and and control of the SUPER STRIKE is sim ilarly im m aterial to whether Extreme Fishing was the dem ise charterer. 47 A party renting a vessel can still be a dem ise charterer even if that party is not physically com m anding the boat. See In re Suard Barge Servs., Inc., 1998 WL 2846, at *3 (a finding that a party is a dem ise charterer “does not depend upon whether” the party is “physically present at the job site, supervising and controlling” the vessel); Theriot, 1998 WL 637384, at *9. Extrem e Fishing also argues that St. Clair did not actually relinquish control of the SUPER STRIKE because “St. Clair stored the vessel in a shed under lock and key,” and Boudreau needed to notify St. Clair before he retrieved the vessel. 48 Extrem e Fishing seems to suggest that this is inconsistent with a dem ise charter because Boudreau and Extrem e Fishing did not have a standing agreem ent with St. Clair to freely use the SUPER 47 See R. Doc. 10 7-1 at 15-16 (Extrem e Fishing arguing that because Boudreau com m anded the SUPER STRIKE, plaintiffs and TKBR cannot prove that Extrem e Fishing exercised a sufficient “indicia of control” over the vessel to be held liable). Extrem e Fishing’s position would appear to im m unize it from any liability stem m ing from Boudreau’s actions even if the parties used the KIN G FISH, which Extrem e Fishing charters from Wetzel on a dem ise basis. R. Doc. 10 7-6 at 2 ¶ 6. This position conflicts with the clear law that a dem ise charterer is responsible in personam for the negligence of its crew. See Forrester, 11 F.3d at 1215. 48 R. Doc. 122 at 4. 15 STRIKE when they needed it. See In re Griffin Marine, Inc., 20 0 1 WL 936313, at *2 (finding a dem ise charter when charterer “freely rem oved and returned the boat from [owner’s] facility”). But as O’Donnell instructs, a dem ise charter can exist when a party rents a fishing vessel for a single voyage. See 525 F.2d at 652-53 (“The fact that the fisherm en were to return the boat at the end of the day—thus lim iting its use to a m axim um period of tim e—is not a sufficient curtailm ent of possession and control to negate the dem ise.”). In any dem ise charter of any length, the charterer has to initiate his com mand and control somehow. That Boudreau had to arrange with St. Clair to pick up the SUPER STRIKE on behalf of Extreme Fishing does not change the Court’s analysis. The Court finds that when taking into account the whole record, no rational trier of fact could disagree that Extrem e Fishing was the dem ise charterer of the SUPER STRIKE. See EEOC, 767 F.3d at 481. The Court therefore grants sum m ary judgment to TKBR on this question. Granting sum m ary judgm ent to TKBR sua sponte is consistent with Federal Rule of Civil Procedure 56(f). See Fed. R. Civ. P. 56(f) (a court m ay “grant sum m ary judgm ent for a nonm ovant” after giving the nonm ovant “notice and a reasonable tim e to respond”); Atkins v. Salazar, 677 F.3d 667, 681 (5th Cir. 20 11) (affirm ing district court’s grant of sum m ary judgm ent sua sponte 16 without form al notice to the litigants because the party against whom sum m ary judgment was granted “was aware [the legal issue] was at play and had a full opportunity to argue against it and present whatever evidence he had”); cf. Luig v. N . Bay Enters., Inc., 817 F.3d 90 1, 90 5 (5th Cir. 20 16) (suggesting that a district court m ay have violated Rule 56(f) when it granted sum m ary judgm ent for the nonm ovant on a legal issue not briefed by either party). Here, TKBR, St. Clair, Boudreau, and GEICO all argue that Extrem e Fishing’s m otion should be denied because Extrem e Fishing was a dem ise charterer of the SUPER STRIKE, 49 and St. Clair, Boudreau, and GEICO explicitly argue that the evidence in the record is sufficient to grant sum m ary judgm ent for the nonm ovants. 50 Extrem e Fishing had the opportunity to refute these arguments by presenting evidence to support its position that it was not a dem ise charterer. 51 The Court thus finds that Extrem e Fishing was on sufficient notice that the Court could grant sum m ary judgm ent on this question, and that the question has been fully briefed. Granting sum m ary judgm ent sua sponte to TKBR is therefore warranted. See Atkins, 677 F.3d at 681. 49 50 51 R. Doc. 112 at 9; R. Doc. 113 at 2. R. Doc. 112 at 1. R. Doc. 122 at 4-6. 17 The Court denies Extrem e Fishing’s motion with respect to plaintiffs’ negligence claim . Because the Court finds that Extreme Fishing was the dem ise charterer as a m atter of law, the Court m ust deny Extrem e Fishing’s m otion, even though plaintiffs have not opposed it. See John v. State of La., 757 F.2d 698, 70 8 (5th Cir. 1985) (noting that on sum m ary judgment, “[i]f the m oving party fails to discharge” his burden, the motion m ust be denied “even if the nonm oving party has not responded to the m otion”). B. N e glige n t En tru s tm e n t Cro s s claim Extrem e Fishing also m oves for sum m ary judgment on TKBR’s crossclaim for negligent entrustment. A claim for negligent entrustment in the m aritim e context requires evidence “that the boat owner knew or should have known that the person to whom the boat was entrusted . . . was likely to use it in a dangerous m anner.” Regan v. Starcraft Marine, LLC, 719 F. Supp. 2d 690 , 696 n.9 (W.D. La. 20 10 ) (quoting In re Fun Tim e Boat Rental & Storage, LLC, 431 F. Supp. 2d 993, 10 0 1 (D. Ariz. 20 0 6)). Extrem e Fishing has presented considerable testim onial evidence dem onstrating Boudreau’s qualifications for captaining the SUPER STRIKE. The evidence shows that Boudreau (1) is licensed by the U.S. Coast Guard to captain trips of six or fewer passengers within 10 0 m iles offshore; 52 (2) had 52 R. Doc. 10 7-4 at 9-10 , 39-40 , 59. 18 never been in an accident reported to the U.S. Coast Guard; 53 (3) had never had his license revoked by the U.S. Coast Guard; 54 (4) had been privately navigating the Mississippi River for up to six years before receiving his Coast Guard license, taking 65 to 10 0 trips each year with a boat and equipment sim ilar to the SUPER STRIKE; 55 (5) and had captained the SUPER STRIKE on chartered fishing excursions approxim ately nine tim es before the Beck trip. 56 Wetzel also testified that he closely observed Boudreau captain vessels on the Mississippi for three years before enlisting him as a captain for Extrem e Fishing. 57 Wetzel stated that from his interactions with Boudreau, Boudreau “seem ed like a very responsible [and] good captain.”58 TKBR does not refute any of this testim onial evidence. TKBR instead solely argues that Extrem e Fishing can be held liable for negligent entrustment because it allowed Boudreau to captain the SUPER STRIKE after he had fewer than six hours of sleep, supposedly in violation of 46 U.S.C. § 810 4(a). Section 810 4(a) states that [a]n owner, charterer, m anaging operator, m aster, individual in charge, or other person having authority m ay perm it an officer to take charge of the deck watch on a vessel when leaving or 53 54 55 56 57 58 Id. at 42. Id. at 12. Id. at 37-38. Id. at 23-24, 48. R. Doc. 112-1 at 3. Id. 19 im m ediately after leaving port only if the officer has been off duty for at least 6 hours within the 12 hours im m ediately before the tim e of leaving. While a breach of a statutory provision or regulation can support a parallel tort claim if the violation causes the plaintiff’s injury, see, e.g., Bass v. Stry ker Corp., 669 F.3d 50 1, 510 -11 (5th Cir. 20 12), TKBR fails to establish how this statutory provision applies to a sm all fishing vessel like the SUPER STRIKE. But even if Section 810 4(a) were to apply, TKBR has not provided evidence establishing a connection between the collision and Boudreau’s failure to sleep a full six hours the night before the trip. In other words, TKBR has failed to show that its injury resulted from Extrem e Fishing’s supposed violation of the statute. See Rodriguez v. Am . Med. Sy s., Inc., 597 F. App’x 226, 230 (5th Cir. 20 14) (dism issing tort claim based on an alleged violation of FDA regulations because com plaint failed to allege “any causal connection between a violation of federal requirem ents and [plaintiff’s] injuries”). TKBR has not, for instance, provided evidence suggesting that Boudreau’s lack of sleep caused him to m ake poor decisions that led to the collision. Boudreau in fact testified that he did not feel tired or fatigued on the m orning of the collision, and that he does not know what else he could 20 have done “to be more evasive” of the MISS IDA in the foggy conditions. 59 TKBR has not provided evidence sufficient to dispute this testim ony. Extrem e Fishing’s uncontested evidence establishes that Boudreau had the proper credentials to operate the SUPER STRIKE, that he had experience operating the SUPER STRIKE and sim ilar vessels on the Mississippi, and that Wetzel had enlisted Boudreau as a captain only after m ultiple years of observing him and ensuring he was qualified. The Court therefore finds that a trier of fact could not reasonably infer that Extreme Fishing knew or had reason to know that Boudreau was likely to use the SUPER STRIKE in a dangerous m anner. See Regan, 719 F. Supp. 2d at 696 n.9 (granting sum m ary judgment when plaintiff failed to present evidence that boat operator was incapable of operating the vessel); see also In re Marquette Transp. Co. Gulf-Inland, LLC, No. 13-5114, 20 16 WL 1587382, at *3 (E.D. La. Apr. 20 , 20 16) (granting defendants’ m otion for judgm ent on the pleadings when plaintiff failed to plead that boat captain was “reckless” or “incom petent” when hired); Penski v. Jarriel, No. 91-50 1, 20 0 1 WL 65695, at *2 (D. Del. J an. 16, 20 0 1) (granting defendant’s m otion for sum m ary judgm ent when uncontested evidence showed captain was “licensed, qualified,” and had “operated the boat involved in the accident before and 59 R. Doc. 112-4 at 5. 21 was fam iliar with its instrum entation”). The Court accordingly grants Extrem e Fishing’s m otion for sum m ary judgm ent on TKBR’s negligent entrustment crossclaim . IV. CON CLU SION For the foregoing reasons, Extrem e Fishing’s m otion is GRANTED IN PART and DENIED IN PART. TKBR’s crossclaim for negligent entrustment against Extrem e Fishing is DISMISSED. The Court finds that Extreme Fishing was a dem ise charterer of the SUPER STRIKE as a m atter of law, and grants sum m ary judgm ent to TKBR on this question. New Orleans, Louisiana, this _ 21st _ _ _ _ day of August, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 22
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
