      Case: 10-30148 Document: 00511336824 Page: 1 Date Filed: 12/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                                   December 30, 2010

                                             No. 10-30148                              Lyle W. Cayce
                                                                                            Clerk

STEPHEN MARSHALL GABARICK, on Behalf of Himself and All Others
Similarly Situated; ET AL

                                                          Plaintiffs
v.

LAURIN MARITIME (AMERICA), INC.; ET AL,

                                                          Defendants
-------------------------------------------------------------------------------------------------
AUSTIN SICARD; ET AL

                                                          Plaintiffs
v.

LAURIN MARITIME (AMERICA) INC; WHITEFIN SHIPPING CO.
LIMITED

                                                          Defendants – Appellees
v.

AMERICAN COMMERCIAL LINES, L.L.C.

                                                          Appellant
-------------------------------------------------------------------------------------------------
WHITEFIN SHIPPING CO. LIMITED, As Owner and Managing Owner of
the M/V Tintomara, Petitioning for Exoneration from or Limitation of
Liability; LAURIN MARITIME (AMERICA) INC, As Owner and Managing
Owner of the M/V Tintomara, Petitioning for Exoneration from or Limitation
of Liability; LAURIN MARITIME AB; ANGLO-ATLANTIC STEAMSHIP
LIMITED

                                                          Petitioners – Appellees
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                                             No. 10-30148

v.

AMERICAN COMMERCIAL LINES, L.L.C.

                                                          Appellant
-------------------------------------------------------------------------------------------------
GEORGE C. MCGEE; ET AL,

                                                          Plaintiffs
v.

LAURIN MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO.
LIMITED,

                                                          Defendants – Appellees
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Defendant – Appellant
-------------------------------------------------------------------------------------------------
BERNADETTE GLOVER, on Behalf of Herself and all Others Similarly
Situated,

                                                          Plaintiff
v.

LAURIN MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO.
LIMITED,

                                                          Defendants – Appellees
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant
-------------------------------------------------------------------------------------------------
AMERICAN COMMERCIAL LINES, L.L.C., As Owner of Barge DM-932,
Praying for Exoneration from or Limitation of Liability

                                                          Petitioner – Appellant


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                                             No. 10-30148

v.

CSILLA FEKETE; ET AL,

                                                          Defendants
v.

LAURIN MARITIME AB; WHITEFIN SHIPPING CO. LIMITED; ANGLO-
ATLANTIC STEAMSHIP LIMITED, LAURIN MARITIME (AMERICA) INC.

                                                          Movants – Appellees
-------------------------------------------------------------------------------------------------
JEFFERSON MAGEE, Individually and on Behalf of All Others Similarly
Situated; ET AL,

                                                          Plaintiffs
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant
v.

WHITEFIN SHIPPING CO. LIMITED; LAURIN MARITIME AB,

                                                          Defendants – Appellees
-------------------------------------------------------------------------------------------------
JAMES ROUSSELL; ET AL,

                                                          Plaintiffs
v.

LAURIN MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO.
LIMITED,

                                                          Defendants – Appellees
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant


                                                     3
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-------------------------------------------------------------------------------------------------
JAMES JOSEPH, on Behalf of Himself and All Others Similarly Situated,

                                                          Plaintiff
v.

LAURIN MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO.
LIMITED,

                                                          Defendants – Appellees
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant
-------------------------------------------------------------------------------------------------
VINCENT GRILLO, Individually and on Behalf of All Others Similarly
Situated; ET AL,

                                                          Plaintiffs
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant
v.

WHITEFIN SHIPPING CO. LIMITED; LAURIN MARTIME AB,

                                                          Defendants – Appellees
-------------------------------------------------------------------------------------------------
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,

                                                          Plaintiff
v.

AMERICAN COMMERCIAL LINES, L.L.C.

                                                          Defendant – Appellant
v.



                                                     4
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                                         No. 10-30148

ANGLO-ATLANTIC STEAMSHIP LIMITED; LAURIN MARITIME AB;
LAURIN MARITIME (AMERICA), INC.; WHITEFIN SHIPPING CO.
LIMITED,

                                                          Defendants – Appellees
-------------------------------------------------------------------------------------------------
DRD TOWING COMPANY, INC., as Owner Pro Hac Vice or Alleged Owner
Pro Hac Vice of the M/V Mel Oliver,

                                                      Petitioner
v.

MURACIN VILCEUS; ET AL,

                                                      Defendants
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                      Claimant – Appellant
v.

LAURIN MARITIME AB; WHITEFIN SHIPPING CO. LIMITED; ANGLO-
ATLANTIC STEAMSHIP LIMITED; LAURIN MARITIME (AMERICA),
INC.,

                                                          Movants – Appellees
-------------------------------------------------------------------------------------------------
DONNETTA CHERAMIE, Individually and on Behalf of All Others Similarly
Situated,

                                                      Plaintiff
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                      Appellant
v.

WHITEFIN SHIPPING CO. LIMITED; LAURIN MARITIME AB,



                                                 5
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                                             No. 10-30148

                                                          Defendants – Appellees
-------------------------------------------------------------------------------------------------
TRI NATIVE CONTRACTORS, INC.; ET AL,

                                                          Plaintiffs
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Appellant
v.

WHITEFIN SHIPPING CO. LIMITED; LAURIN MARITIME AB,

                                                          Defendants – Appellees
-------------------------------------------------------------------------------------------------
AMERICAN COMMERCIAL LINES, L.L.C., as Owner of the M/V Mel Oliver
Praying for Exoneration from or Limitation of Liability,

                                                          Petitioner – Appellant
v.

JAHDA MUHAMMAD,

                                                          Defendant
v.

LAURIN MARITIME (AMERICA), INC.; LAURIN MARITIME AB;
WHITEFIN SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP
LIMITED,

                                                          Movants – Appellees
-------------------------------------------------------------------------------------------------
KEVIN A. PETTIGREW,

                                                          Plaintiff
v.

AMERICAN COMMERCIAL LINES, L.L.C.,

                                                          Defendant – Appellant


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                                       No. 10-30148

v.

LAURIN MARITIME (AMERICA), INC.; LAURIN MARITIME AB;
WHITEFIN SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP
LIMITED,

                                                   Movants – Appellees




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-cv-4007


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       American Commercial Lines, LLC appeals the district court’s grant of
partial summary judgment dismissing its claims against the Tintomara
Interests under the Oil Pollution Act of 1990. Because we believe that summary
judgment is premature, we reverse the district court’s judgment and remand for
further proceedings.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       This case involves an oil spill in the Mississippi River near New Orleans,
Louisiana. At approximately 1:30 a.m. on July 23, 2008, the M/V TINTOMARA,
an ocean-going tanker, collided with the DM 932, an unmanned non-self-
propelled barge laden with fuel oil, which was being towed by the tug M/V MEL
OLIVER. At the time of the collision, the TINTOMARA was traveling down
river near the west bank, and the MEL OLIVER, pushing the DM 932, was




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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                                   No. 10-30148

traveling up river. The collision caused substantial damage to the barge, and a
large quantity of oil spilled into the river.
      The TINTOMARA was owned and operated by Laurin Maritime (America),
Inc., Laurin Maritime AB, Whitefin Shipping Co. Limited, and Anglo-Atlantic
Steamship Limited (collectively, the “Tintomara Interests”). The tug, barge, and
fuel oil cargo were owned by American Commercial Lines, LLC (“ACL”). The
crew for the tug had been provided by D.R.D. Towing, LLC (“DRD”) pursuant to
a bareboat charter between ACL and DRD. No ACL personnel were aboard
either the tug or the barge at the time of the collision.
      Immediately following the spill, the United States Coast Guard began
investigating the circumstances surrounding the collision and sent ACL a letter
stating that, as owner of the DM 932, ACL “may be liable as a responsible party”
under the Oil Pollution Act of 1990 (“OPA”). ACL responded that it denied
liability as the responsible party and reserved all defenses, but that, as owner
of the discharging vessel, it would move forward to coordinate the removal and
cleanup efforts.
      Within days of the spill, several suits were filed in the United States
District Court for the Eastern District of Louisiana. Among them were several
class actions against ACL, DRD, and the Tintomara Interests filed by parties
who had been injured by the spill. In addition, ACL, DRD, and the Tintomara
Interests each filed a petition seeking exoneration from or limitation of liability
for all claims arising out of the spill. The district court later consolidated all of
the pending actions into the first-filed action.
      ACL filed a claim in the Tintomara Interests’ limitation proceeding
alleging that the Tintomara Interests were liable to ACL for all losses ACL
incurred as a responsible party under the OPA.               ACL also demanded
contribution from the Tintomara Interests under the “OPA and/or the General
Maritime Law of the United States.”          The Tintomara Interests moved for

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                                       No. 10-30148

summary judgment with respect to ACL’s OPA claims because, under the OPA,
ACL, as owner of the discharging vessel, is strictly liable for all removal costs
and damages arising from the spill unless it can shift liability to a third party
under one of several narrow available defenses. The Tintomara Interests argued
that ACL’s pleadings demonstrated that no material factual issues remained
regarding ACL’s liability and that, as a result, ACL could not shift OPA liability
to the Tintomara Interests. ACL responded that its pleadings in the various
pending actions were inconsistent and therefore could not constitute admissions
on which the court could base factual findings.                ACL further argued that
summary judgment was premature because it had not had the opportunity to
conduct discovery.1
       The district court granted the Tintomara Interests’ motion. The court held
that “Tintomara—a non-discharging party—would be liable as a responsible
party only if there was no fault on the part of ACL and no fault on the part of
DRD,” ACL’s alleged contractual partner. The district court found that “at least
some fault is attributable to the actions of DRD and/or ACL,” and therefore the
Tintomara Interests could not be held liable under the OPA as a matter of law.
ACL then moved the district court to enter the partial summary judgment as
a final order under Federal Rule of Civil Procedure 54(b) to permit it to appeal
the decision. The district court denied the motion, stating that “as discovery
progresses on the remaining maritime claims, the dismissal of claims for OPA
contribution and subrogation could, arguably, be revisited.” ACL nevertheless
appeals the district court’s grant of partial summary judgment as an
interlocutory order.
                                    II. DISCUSSION


       1
        According to all parties, discovery in the various cases pending in the Eastern District
of Louisiana had been delayed while a marine casualty investigation was being conducted by
the Coast Guard.

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                                    No. 10-30148

A.    Jurisdiction
      We have jurisdiction over appeals from interlocutory orders that
“determin[e] the rights and liabilities of the parties to admiralty cases.” 28
U.S.C. § 1292(a)(3). “As a general rule, whenever an order in an admiralty case
dismisses a claim for relief on the merits it is appealable under Section
1292(a)(3).” Francis ex rel. Frances v. Forest Oil Corp., 798 F.2d 147, 149 (5th
Cir. 1986).
      We have jurisdiction to hear this appeal. The OPA provides a distinct
cause of action to all claimants injured by the oil spill. See 33 U.S.C. §§ 2702(b),
2713. ACL, who has already paid many of the claims submitted by injured
claimants, is subrogated to the rights of the claimants if it can demonstrate that
a third party is liable under the OPA. § 2702(d)(1)(B). The district court’s order
dismissed ACL’s OPA claims against the Tintomara Interests on the merits;
therefore, the order is appealable under § 1292(a)(3).
B.    Standard of Review
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Addicks Servs. v. GGP–Bridgeland, LP, 596 F.3d
286, 293 (5th Cir. 2010). Summary judgment is proper only if there are no
genuine issues of material fact and the moving party is entitled to judgment as
a matter of law. F ED. R. C IV. P. 56(a).
C.    Summary Judgment is Premature
      Title I of the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701–2720, assigns
strict liability to the owners and operators of vessels that discharge oil into the
navigable waters of the United States. Section 2702(a) provides that “each
responsible party for a vessel or facility from which oil is discharged . . . is liable
for the removal costs and damages . . . that result from such incident.” The
“responsible party” for a vessel is “any person owning, operating, or demise
chartering the vessel.” § 2701(32)(A).

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                                         No. 10-30148

       The OPA provides a responsible party with a complete defense to liability
in certain very narrow circumstances. At issue in this case is the defense in
§ 2703(a)(3), which provides:
       A responsible party is not liable for removal costs of damages under
       Section 2702 of this title if the responsible party establishes, by a
       preponderance of the evidence, that the discharge or substantial
       threat of a discharge of oil and the resulting damages or removal
       costs were caused solely by an act or omission of a third party, other
       than . . . a third party whose act or omission occurs in connection
       with any contractual relationship with the responsible party.
       (emphasis added).
To shift OPA liability to a third party under this section, the responsible party
must prove it had no fault in the spill and that it was not in a contractual
relationship with any party that had any fault in the spill.2 If the responsible
party establishes this defense, liability under the OPA shifts to the third party
at fault for the spill, and the third party becomes the responsible party and is
liable to all claimants under the OPA. § 2702(d)(1)(A).
       ACL has alleged that the Tintomara Interests are liable third parties
under the OPA. The Tintomara Interests do not argue that ACL had any fault
in the spill.     Therefore, the Tintomara Interests are entitled to summary
judgment only if they can demonstrate that ACL was in a contractual
relationship with a party that had some fault in the spill.
       Although very little discovery has taken place, the Tintomara Interests
argue that ACL has pled itself out of court by admitting that it was in a
contractual relationship with DRD and that DRD had some fault in causing the
collision and resulting oil spill. Allegations in party’s pleadings may constitute


       2
          The responsible party must also satisfy certain other requirements, including
demonstrating that it “exercised due care with respect to the oil concerned, taking into
consideration the characteristics of the oil and in light of all relevant facts and circumstances,”
and that it “took precautions against foreseeable acts or omissions of any such third party and
the foreseeable consequences of those acts or omissions.” § 2703(a)(3)(A)–(B). These other
requirements are not implicated in this appeal.

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admissions in some situations; however, “one of two inconsistent pleas cannot
be used as evidence in the trial of the other.” Continental Ins. Co. of New York
v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971). Indeed, Federal Rule of Civil
Procedure 8(d)(3) allows a party to “state as many separate claims or defenses
as it has, regardless of consistency.” Here, ACL took inconsistent positions in
the various actions in the district court. Accordingly, under the circumstances
presented here, the district court erred in treating the allegations in any one of
ACL’s many pleadings as an admission sufficient to settle an issue of fact.
       Material issues of fact therefore remain regarding fault for the collision
and the existence of a contractual relationship between ACL and DRD. The
Tintomara Interests argue, however, that no factual issues exist regarding ACL’s
contractual relationship with DRD because ACL has admitted in all of its
pleadings that it was in a contractual relationship with DRD. In its claim
against the Tintomara Interests, ACL alleged, as part of the factual basis for its
claim, that it bareboat charted the MEL OLIVER to DRD “[p]ursuant to a
Master Bareboat Charter Agreement.” ACL made the same allegation in the
claim it filed against DRD. Although ACL does not dispute that signed contracts
with DRD exist, ACL has filed a declaratory judgment action to have its
contracts with DRD declared void ab initio.3 According to ACL, if the contracts
are declared void, then ACL and DRD will not have been in a “contractual
relationship” for purposes of OPA liability. We express no opinion regarding the
merits of ACL’s position, but summary judgment is premature until the cases
pending in the district court are further developed.


      3
         It is undisputed that John Bavaret, a DRD employee, was alone in the wheelhouse of
the MEL OLIVER at the time of the collision. Bavaret held only an apprentice
mate/steersman Coast Guard license, and, under the applicable Coast Guard regulations, was
not permitted to operate the tug without a licensed captain present. ACL has alleged that
DRD made a regular practice of allowing unlicensed crew members, like Bavaret, to man
ACL’s tugs, and that ACL would not have entered into the contracts with DRD had it known
of this practice.

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                                         No. 10-30148

       Furthermore, neither ACL nor DRD has had the opportunity to litigate the
various disputed allegations regarding fault for the collision and resulting spill.
ACL has at various times alleged that the Tintomara Interests were solely at
fault for the collision and that DRD was solely at fault for the collision. In its
order, however, the district court assigned “at least some fault” to “DRD and/or
ACL.”4 ACL agreed in its briefing to this court that it believes the actions of
John Bavaret, the DRD employee at the helm of the MEL OLIVER, contributed
to the collision, but it appears that in the district court DRD has disclaimed
responsibility for Bavaret’s actions. Because of the complex nature of this case
and the unresolved relationships between the parties, we think it is premature
to treat any party’s mere allegations as sufficient evidence to conclude that a
contractual partner of ACL had some fault in the collision such that summary
judgment in favor of the Tintomara Interests is warranted. There has not been
enough factual development to conclusively assign fault to any of the parties,
and with further factual development, the pleadings themselves may change.
       In short, the many and varied and contradictory pleadings in the district
court are in their infancy and the facts are too undeveloped to make the
necessary factual findings with any certainty.                 The district court erred in
focusing on one pleading to the exclusion of all other conflicting pleadings at this
early juncture. Even the district court indicated (wisely, we think) that further
development might change the result of the partial summary judgment.
                                   III. CONCLUSION

       4
           The district court arrived at this conclusion based on the Tintomara Interests’
reference in their reply brief to the testimony of John Bavaret at the hearings held by the
Coast Guard while it was investigating the collision. However, the testimony was not before
the district court because the Tintomara Interests failed to submit the transcript of the
testimony until after the court rendered its decision. Further, it is unclear whether the
testimony is even admissible in a civil case. See 46 U.S.C. § 6308 (“[N]o part of a report of a
marine casualty investigation . . . shall be admissible as evidence or subject to discovery in any
civil or administrative proceeding.”). Therefore, it was error to treat this evidence as sufficient
to permit the assignment of any portion of fault to any of the parties.

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                                No. 10-30148

      For the foregoing reasons, we REVERSE the district court’s grant of
partial summary judgment in favor of the Tintomara Interests and REMAND
for further proceedings. The Tintomara Interests shall bear the costs of this
appeal.




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