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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,
v.
UNKNOWN CLAIMANTS, et al, Defendants.

          ORDER

          Hilda Tagle, Senior United States District Judge.

         The 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.

         I. BACKGROUND

         The Magistrate Judge summarized the background in the M&R. Dkt. No. 36:

I. JURISDICTION
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).
II. BACKGROUND
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. (Id.).
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 at 1-2).
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.

         The Court adopts the M&R’s statement of the jurisdiction and background in this case. The Magistrate ...


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