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Weeks Marine, Inc. v. United States

United States District Court, S.D. Texas, Houston Division

October 31, 2017

WEEKS MARINE, INC., Plaintiff,



         Pending before the court are Plaintiff Weeks Marine, Inc.'s ("Weeks Marine") Motion for Summary Judgment ("Plaintiff's MS J") (Docket Entry No. 19) and defendant The United States of America's ("United States") Motion for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 20). For the reasons stated below, Plaintiff's Motion for Summary Judgment will be denied and Defendant's Motion for Summary Judgment will be granted.

         I. Background

         Weeks Marine and the United States were co-defendants in Contango Operators, Inc. v. United States of America and Weeks Marine, Inc., 9 F.Supp.3d 735 (S.D. Tex. 2014), aff'd, 613 Fed.Appx. 281 (5th Cir. 2015) (the "Underlying Litigation"). That action forms the basis for the pending motions for summary judgment. Contango Operators, Inc. ("Contango") filed an application for a permit to construct a natural gas pipeline in the Gulf of Mexico with the Regulatory Division of the United States Army Corps of Engineers ("the Corps"). The Corps granted Contango a permit to construct a pipeline across the "Atchafalaya Pass Channel" in November of 2007. Information concerning the proposed placement of the Contango pipeline across the Atchafalaya Pass Channel was not forwarded by the Regulatory Division of the Corps to the Waterways Division of the Corps. The Waterways Division provides the locations of submarine pipelines to the engineers who prepare dredging contracts for Corps-maintained channels.

         After completing the pipeline in April of 2008 Contango provided as-built drawings that illustrated the intersection of the pipeline and the Atchafalaya Pass Channel to the Minerals Management Service ("MMS"), the National Ocean Service ("NOS"), and the United States Coast Guard (the "Coast Guard"). No division within the Corps received the as-built drawings. In April of 2009 the Corps solicited bids on a contract to dredge the Atchafalaya Pass Channel. Corps engineers prepared project specifications that were provided to the bidders and that would ultimately become part of the dredging contract. Five submarine pipelines located in or near the Atchafalaya Pass Channel were identified in the specifications; the Contango pipeline, however, was not listed. Weeks Marine was awarded the contract in August of 2009. The Contango pipeline was not identified in the dredging contract.

         The National Oceanic and Atmospheric Administration ("NOAA") is the federal agency tasked with the publication of nautical charts. Before November 25, 2009, the relevant NOAA charts -Electronic Navigational Chart ("ENC") US4LA21E and Raster Navigational Chart ("RNC") 11351 - displayed the Atchafalaya Pass Channel without the Contango pipeline. After receiving information from MMS about a new pipeline across the Atchafalaya Pass Channel, NOAA published on its website updated ENC and RNC charts on December 3, 2009. Both the updated ENC and the updated RNC (collectively, the "updated NOAA charts") depicted the Contango pipeline. On December 2, 2009, the Coast Guard published a Local Notice to Mariners ("LNM") announcing the addition of a submarine pipeline to the area displayed in the RNC. The updated NOAA charts and the LNM were published after Weeks Marine had been awarded the contract and had commenced dredging.

         On February 24, 2010, Weeks Marine's non-self-propelled dredging barge, the G.D. MORGAN, struck the Contango pipeline, causing the pipeline to rupture and Contango to incur losses. Contango then sued Weeks Marine and the United States.

         During the Underlying Litigation Weeks Marine filed a cross-claim against the United States alleging that Contango's damages were caused by the negligence of the Corps. The court held that Weeks Marine's cross-claim was essentially contractual and that the court did not have jurisdiction to adjudicate the claim because Weeks Marine had not complied with the Contract Disputes Act ("CDA").[1] The CDA required Weeks Marine to first submit its contract claim against the United States to the Contracting Officer for a decision. 41 U.S.C. § 7103(a)(1).

         After a bench trial the court held, and the Fifth Circuit affirmed, that both defendants were liable to Contango because of separate acts of negligence. The court held that Weeks Marine was liable for 40% of Contango's damages and the United States was liable for 60%.[2] The total award to Contango, paid in full by-Weeks Marine, was $13, 919, 366.36. After the Fifth Circuit affirmed the court's Final Judgment Weeks Marine filed an Unopposed Motion for Judgment for Contribution.[3] The court granted the motion and ordered the United States to pay Weeks Marine $8, 018, 468.81.[4]

         After paying its share of the judgment, [5] Weeks Marine filed a Certified Claim against the Corps for $5, 900, 897.55.[6] The Contracting Officer denied the claim, [7] and Weeks Marine filed this action seeking indemnity against the United States.[8] The parties then filed the pending cross-motions for summary judgment[9] and responses in opposition.[10]

         II. Summary Judgment Standard

         Summary judgment is warranted if the movant establishes that there is no genuine dispute about any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An examination of substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). Material facts are those facts that "might affect the outcome of the suit under the governing law." Id. A genuine issue as to a material fact exists if the evidence is such that a reasonable trier of fact could resolve the dispute in the nonmoving party's favor. Id. at 2511.

         Where, as here, both parties have moved for summary judgment, both "motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004). The movant must inform the court of the basis for summary judgment and identify relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate there are no genuine fact issues. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986); see also Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996). If a defendant moves for summary judgment on the basis of an affirmative defense, "it must establish beyond dispute all of the defense's essential elements." Bank of Louisiana v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 241 (5th Cir. 2006). A defendant may also meet its initial burden by pointing out that the plaintiff has failed to make a showing adequate to establish the existence of an issue of material fact as to an essential element of plaintiff's case. Celotex Corp., 106 S.Ct. at 2552. If the movant satisfies its initial burden, the burden shifts to the nonmoving party to show by affidavits, depositions, answers to interrogatories, admissions on file, or other evidence that summary judgment is not warranted because genuine fact issues exist. Celotex Corp., 106 S.Ct. at 2552.

         In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). But conclusory claims, unsubstantiated assertions, or insufficient evidence will not satisfy the nonmovant's burden. Wallace, 80 F.3d at 1047. If the nonmovant fails to present specific evidence showing there is a genuine issue for trial, summary judgment is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992) .

         To prevail on its Motion for Summary Judgment Weeks Marine must establish as a matter of law that the United States is liable to it for the damages Weeks Marine paid to Contango. See Fed.R.Civ.P. 56(a) . The United States may prevail on its motion by showing that there is an absence of evidence to support liability. See Celotex, 106 S.Ct. at 2664.

         III. Analysis

         A. Weeks Marine's Motion for Summary Judgment

         In its Motion for Summary Judgment Weeks Marine argues that the United States is liable to Weeks Marine for $5, 900, 897.55, the amount it paid to satisfy Contango's judgment.[11] Weeks Marine argues that the collateral estoppel effect of the court's finding in the Underlying Litigation makes the United States liable to Weeks Marine for breach of contract and negligence.[12] Although in its response to the United States' Motion for Summary Judgment Weeks Marine states that " [it] is not making a claim for contractual indemnification, "[13] however its claim is characterized, the different terminology amounts to the same claim -- Weeks Marine seeks to be reimbursed by the United States for the $5, 900, 897.55 it paid to Contango because of its own negligence.

         1. Weeks Marine Is Not Entitled to Summary Judgment on Its Negligence Claim The court previously held that Weeks Marine's cross-claim against the United States arose out of a ...

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