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New Pelican Charters, LLC v. Unknown Claimants
United States District Court, S.D. Texas, Corpus Christi Division
September 25, 2019
NEW PELICAN CHARTERS, LLC, Plaintiff,
UNKNOWN CLAIMANTS, et al, Defendants.
Tagle, Senior United States District Judge.
Court is in receipt of Deep Sea Fishing, Inc’s.
(“Deep Sea Fishing”) Complaint and Motion to
Dismiss Pursuant to FRCP 12(b)(6), or in the Alternative,
Motion for Summary Judgment, Dkt. Nos. 1, 29; Deep Sea
Fishing’s Reply Memorandum in support of its motion,
Dkt. No. 35; Steve Gilliam and Calvin Sanders’
(“Claimants”) First Amended Answer and Response
to the Motion for Summary Judgment, Dkt. Nos. 27, 31; the
Magistrate Judge’s Memorandum and Recommendation
(“M&R”), Dkt. No. 36; Deep Sea
Fishing’s Objections to the M&R, Dkt. No. 38; and
Claimants’ Response to Deep Sea Fishing’s
Objections to the M&R, Dkt. No. 39.
Magistrate Judge summarized the background in the M&R.
Dkt. No. 36:
This Court has jurisdiction pursuant to 28 U.S.C. § 1333
and Rule C of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions. Venue is proper
in this Court because the M/V New Pelican is located in Port
Aransas, Texas, which is located in the Corpus Christi
Division of the Southern District of Texas. 28 U.S.C.
§§ 1391, 124(b)(6).
a. Complaint and Claims New Pelican filed a verified
complaint and petition for exoneration from or limitation of
liability for any claims arising from an allision that
occurred on July 21, 2017. (D.E. 1 at 1-2). New Pelican seeks
exoneration from liability or, alternatively, limitation of
liability under 46 U.S.C. § 30511. (Id. at
3-4). Claimants filed an amended claim against New Pelican
and Deep Sea for injuries they suffered during the allision.
(D.E. 27 at 1-17). They allege that Deep Sea knew or should
have known of the unseaworthiness of the M/V New Pelican and
that this knowledge was imputed to New Pelican. (Id.
at 10). They claim that Deep Sea’s responsibility is
based on the negligent actions of its crew in the operation,
inspection, maintenance, and repair of the boat.
(Id.). On July 21, 2017, Claimants participated in
an off-shore fishing trip on the M/V New Pelican.
(Id. at 11). They had previously participated in
fishing trips with Deep Sea. (Id.). The M/V New
Pelican traveled several miles offshore and attempted to
position itself downstream of an anchored shrimping vessel
that was cleaning its catch. (Id. at 12). However,
the captain positioned the M/V New Pelican too close to the
shrimping vessel, leaving no room for error. The throttle and
gear shifter mechanism malfunctioned on the port side engine,
which resulted in an allision with the shrimping vessel.
Claimants further allege that, at the time of the incident,
they were in danger of being struck by the fishing rigging
and net doors on the shrimping vessel. (Id. at 13).
In attempting to move to a safer area on the boat, both men
fell and injured their backs. (Id.). Gilliam visited
a doctor and was told that he was in need of surgical repair
of spinal injuries. (Id. at 13-14). Sanders had
already undergone two back surgeries at the time of the
incident and was disabled. (Id. at 14). He suffered
two new, inoperable herniated discs in his back. Doctors also
recommended that he have a surgical procedure to relieve the
symptoms of his back injury. (Id.). Claimants seek
damages for medical expenses, pain and suffering, mental
anguish, physical impairment, and loss of wages or
wage-earning capacity. (Id. at 14-15).
b. Summary Judgment Evidence Before boarding the boat,
Claimants both signed forms that stated: “I will not
hold [Deep Sea or the M/V New Pelican] or their employees,
agents or other associated personnel responsible if I am
injured as a result of any problem[s] (medical, accidental,
or otherwise) which occur while on the boat or otherwise
participating in the trip.” (D.E. 29-2 at 1-2). The
forms also indicated that Deep Sea operated under and
practiced seamanship in accordance with the United States
Coast Guard regulations. (Id.).
In a deposition, Gilliam testified that he had signed the
waiver form at Deep Sea’s headquarters before getting
on the boat. (D.E. 29-3 at 3). He remembered reading the form
and signing it. (Id. at 4). If he did not want to
sign the form, he did not have to, and he could have found a
different fishing charter boat instead. (Id. at 5).
He signed a similar form on the two previous trips he took
with Deep Sea. (D.E. 35-1 at 3). Gilliam also stated in an
affidavit that he relied on Deep Sea to follow the
operational rules for inspecting the boat and maintaining its
seaworthiness, which he did not believe was done. (D.E. 31-3
In a deposition, Sanders testified that when they first
arrived at Deep Sea’s headquarters, they bought tickets
and signed the waiver forms, which were similar to what they
had signed on previous trips with Deep Sea. (D.E. 29-5 at
2-3). He was given the opportunity to read the document
before signing it and was not required to sign the form.
(Id. at 5-6). Sanders also stated in an affidavit
that he relied on Deep Sea to follow the operational rules
for inspecting the boat and maintaining its seaworthiness,
which he did not believe was done. (D.E. 31-4 at 1-2).
Jonathan McIntyre, the captain of the M/V New Pelican at the
time of the allision, testified in a deposition that he first
noticed that something was wrong when he tried to stop the
boat to perform a turn. (D.E. 29-6 at 2-3). Instead of
stopping, the boat continued moving forwards towards the
anchored shrimping boat. (Id. at 3). McIntyre
attempted to avoid the allision, and although the boat made
contact with the shrimping boat, it was moving very slowly at
the time. (Id. at 4-5).
Phillip Odom, a boat accident investigation expert, stated in
an affidavit that he reviewed the allision on behalf of
Claimants. (D.E. 31-5 at 1). As part of his investigation,
he: (1) inspected the M/V New Pelican and reviewed
photographs; (2) reviewed the testimony of Claimants,
McIntyre, and other employees of Deep Sea; and (3) reviewed
various regulations that the Coast Guard uses to control the
operation of vessels on the sea. (Id. at 1-2). Odom
stated that the M/V New Pelican had a mechanical issue caused
by a nut coming off the shifter for the port engine.
(Id. at 2). However, McIntyre was already too close
to the shrimping boat when the malfunction occurred and had
not left enough margin of error. (Id. at 2-3). This
mistake was a violation of the Federal International
Regulations for Preventing Collisions at Sea, which all
vessels are obligated to follow. (Id. at 3).
Moreover, vessel operators are required to maintain their
vessels in a seaworthy condition, including maintaining and
inspecting the controls. Had the proper fasteners been used
for the shifter mechanism, or had a simple inspection been
done, then the mechanical failure would not have occurred.
Odom was of the opinion that the deficient transmission
linkage made the boat unseaworthy. (Id.). Odom also
completed a more detailed report that reached the same
conclusions. (D.E. 35-2 at 1-9). In the report, he indicated
that he had also reviewed the Coast Guard report on the
incident. (Id. at 1).
Dkt. No. 36 at 2-5.
Court adopts the M&R’s statement of the
jurisdiction and background in this case. The Magistrate
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