Marina Management Group, Inc. v. Basic Towing, Inc.

64 F. App'x 532
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 29, 2003
DocketNo. 01-2174
StatusPublished
Cited by2 cases

This text of 64 F. App'x 532 (Marina Management Group, Inc. v. Basic Towing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marina Management Group, Inc. v. Basic Towing, Inc., 64 F. App'x 532 (6th Cir. 2003).

Opinion

BATCHELDER, Circuit Judge.

Marina Management Group, Inc. (“MMG”), plaintiff/appellee, appeals the district court’s order granting summary judgment to Basic Towing, Inc. and its President Daniel Kobasic (“Basic Tow[533]*533ing”), defendants/appeUees, in this admiralty action for negligence brought by MMG. Because we conclude that the plaintiff has failed to demonstrate any negligence on behalf of Basic Towing, we will affirm the judgment of the district court.

BACKGROUND

MMG filed this action seeking damages for the loss of its sixty-one foot motorized hopper barge, the Leprechaun, which sank in Lake Michigan while being towed by Basic Towing pursuant to an agreement between the parties. The agreement called for the barge to be towed from Point Brulee, Michigan, to Grand Haven, Michigan, a trip that would take about 26 hours. On April 1, 2000, MMG’s representative Richard Barrett moved the Leprechaun to open waters to begin the tow. Daniel Kobasic, the President of Basic Towing and the master of the tug that would tow the barge, performed a visual inspection of the Leprechaun and discovered several cracks in the welding of the deck. Kobasic repaired these cracks with rags and silicone caulk. During the visual inspection, Kobasic asked Barrett about the condition of the ballast-type tanks below the deck of the barge. Barrett assured Kobasic that he had examined the tanks himself and they were dry. The watertight hatches to those tanks were then sealed. Kobasic also inquired about a slight list to the starboard side that Barrett explained was caused by the placement of a motorized power unit on that side of the barge. After the inspection, Kobasic specifically asked Barrett if he was “aware of the potential problems” and if he wanted the barge towed in its current condition. Barrett responded that he wanted Kobasic to tow the Leprechaun that evening.

Several hours into the trip, the starboard bow of the Leprechaun appeared to be riding low in the water. After pulling the tug alongside the barge, Kobasic and his crew could see that the starboard bow was awash, indicating that the barge must be taking on water. Kobasic began towing the barge stem-first in an attempt to lessen the amount of water entering the barge. As the tow became more difficult, Kobasic decided to try to tow the barge to Basic Towing’s main dock for repairs instead of completing the intended route. When Barrett was informed of the deteriorating situation, he requested that Kobasic use pumps to help keep the barge afloat, but Kobasic, citing safety concerns for his crew, refused to let anyone board the Leprechaun. As the barge rode lower and lower in the water, endangering the tug as well as the barge, Kobasic eventually decided to cut the tow line. The Leprechaun quickly sank into the 400 foot depth of Lake Michigan. It was never recovered.

MMG filed a lawsuit in admiralty alleging that Basic Towing (1) breached its duty of care and was negligent in towing the Leprechaun, causing the barge to sink in Lake Michigan; (2) breached the tow contract by failing to deliver the barge; and (3) breached the warranty of workmanlike service by failing to tow the barge in a careful, safe, prudent, and workmanlike manner. Basic Towing counterclaimed for breach of contract and filed a motion for summary judgment. The district court found that the Leprechaun was unseaworthy and that MMG had failed to provide any evidence of negligence. The court granted Basic Towing’s motion for summary judgment on all claims except the breach of contract cause of action and counterclaim, which the parties had failed to brief properly.

MMG timely filed its notice of appeal, and the parties stipulated to the dismissal of MMG’s contract claim and Basic Towing’s counterclaim pending the disposition [534]*534of this appeal. Before us, MMG contends that the district court erred in finding that no genuine issue of material fact remained for trial with regard to negligence on the part of Basic Towing in inspecting the barge before undertaking the tow or in its towing of the barge; MMG further contends that a genuine issue of fact remains as to whether Basic Towing’s negligence contributed to the loss of the barge.

ANALYSIS

We review a district court’s grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc), and considering the record as it stood before the district court at the time of its ruling. Niecko v. Emro Marketing Co., 973 F.2d 1296, 1303 (6th Cir.1992). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Crv. P. 56(c). We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“The owner of a tow is responsible for its seaworthiness, and the owner of the tug for its safe navigation.” Valentine Waterways Corp. v. Tug Choptank, 260 F.Supp. 210, 212 (E.D.Va.1966) (citing Curtis Bay Towing Co. of Virginia v. Southern Lighterage Corp., 200 F.2d 33 (4th Cir.1952)). A tug must “exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service,” Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 76 L.Ed. 699 (1932), and the burden is upon the tow to establish that “the loss for which he [seeks] recovery was caused by a breach of that duty.” Id. A court may presume that a vessel towed by a barge was unseaworthy when it sinks under normal conditions and there is no proof that the tow was improperly handled. King Fisher Marine Service, Inc. v. NP Sunbonnet,

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