The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Pending is defendants M/V Ethel E. ("Ethel E."), William C.
Selvick, and Curley's Marine Towing's Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure ("Rule") 56(c) as to all
claims. For the following reasons, the Court denies the motion.
As discussed below, there are very few facts as to which the parties
agree. The following, however, are the undisputed facts. Plaintiff N.M.
Paterson & Sons is the owner of the M/V Paterson
("Paterson"), which is a Great Lakes bulk carrier registered in
Canada. (Defs.' LR 56.1(a)(3) ¶ 1.) Defendant William C. Selvick is
the owner and Defendant Curley's Marine Towing is the managing entity of
the Ethel E. (Id. ¶ 3.) On October 2, 2000, the
Paterson, which is approximately 736 feet long and 76 feet wide,
delivered cargo to Acme Steel on the Calumet River. (Id. ¶
4.) At 1:50 a.m. on October 7, 2000, after unloading its cargo, the
Paterson departed back through the Calumet River.
(Id. ¶ 5.)
A tug, the Ethel E., assisted the Paterson in its
journey back to Lake Michigan. (Id. ¶ 14.) The captain of
the Paterson, Captain Houde, told the Ethel E. when to
pull the Paterson away from the dock and to try to keep the
Paterson in the middle of the channel. (Id. ¶ 16.)
The Ethel E. was to help keep the stem of the Paterson
in the middle of the river. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(B) ¶
3.) One of plaintiff's expert witnesses, G.E, Leithner of Hunt, Leithner
& Co., Inc., concluded that the rudder of the Paterson
grounded on either the river bottom or on debris on the river bottom
within the channel limits. (Defs.' LR 56.1(a)(3) ¶¶ 48-49.)
Plaintiff's other expert, J.K. Coates of Meridian Marine Consulting Ltd.,
concluded that the Paterson's rudder and the tips of its
propeller struck underwater debris from the Cronimet Dock that was
located within the navigable channel. (Id. ¶¶ 48, 50.)
Houde has been the captain of the Paterson since 1999 and,
prior to the grounding that is the subject of this litigation, has
brought vessels into the Calumet River five or six times per year since
1997. (Id. ¶¶ 7-8.) Houde considers himself an expert on the
conditions of the Calumet River. (Id. ¶ 9.) The procedure
manual for the Paterson indicates that there must be one lookout
aft and one lookout forward while the vessel is in transit in order to
keep the master informed of any obstructions or hazards. (Id.
¶¶ 27-28.) During the tow, Dan McDonald served as lookout on the stern
of the Paterson and was equipped with a radio to communicate
with Houde. (Id. ¶ 37.) For reasons unknown, Houde and
McDonald were out of radio contact for approximately three to four
minutes. (Id. ¶ 41.) Wray, captain of the Ethel E.,
was aware that the master of the Paterson was experiencing
communication difficulties with the stern lookout. (Id. ¶
13.) Wray did not know where the spotters were on board the
Paterson. (Id. ¶ 27.) Wray knows the Calumet River
as well as other tugboat captains. (Defs.' Resp. Pl.'s LR 56.1(b)(3)(B)
Wray did not know of the underwater obstruction located at or
around the Cronimet Dock that is the subject of this lawsuit. (Defs.' LR
56.1(a)(3) ¶ 51.) Wray was not aware of the contours of the bottom
of the Calumet River. (Defs.' Resp. PL's LR 56.1(b)(3)(B) ¶ 28.)
The court shall grant summary judgment 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. CIV. P. 56(c). When considering the evidence
submitted by the parties, the court does not weigh it or determine the
truth of the matters asserted. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). In deciding a motion for summary judgment, all
facts must be viewed and all reasonable inferences drawn in the light
most favorable to the non-moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158 (1970); Shank v. William R. Hague,
Inc., 192 F.3d 675, 683 (7th Cir. 1999), If a reasonable jury could
find for the party opposing the motion, summary judgment may not be
granted. Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 931
(7th Cir. 1995).
Initially, the party moving for summary judgment bears the burden of
identifying the basis for the summary judgment motion by pointing to the
parts of the record that the party believes demonstrate the lack of any
genuine issues of material fact, Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The nonmovant must then show that there is a
genuine issue for trial. Id. at 324. The moving party is
entitled to summary judgment if the nonmoving party fails to make a
sufficient showing on an essential element of the case upon which it has
the burden of proof. Id. at 322.
This case is governed by admiralty law and questions of negligence in
maritime cases are treated as factual issues. Folkstone Maritime,
Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir. 1995). In order to
succeed on any negligence theory, the plaintiff must establish that: (1)
the defendant owed plaintiff a duty of care; (2) the defendant breached
that duty; (3) and the defendant's breach was the proximate cause of
plaintiff's injury. Rhodes v. Ill. Cent. Gulf R.R.,
665 N.E.2d 1260, 1267 (Ill. 1996). When a plaintiff Ms to establish a
genuine issue as to a material fact regarding any one of these required
elements, then summary judgment must be granted in favor of the defendant.
See Montgomery v. Petty Mgmt. Corp., 752 N.E.2d 596, 599 (Ill.App. Ct.
In this case, the proper standard to be applied is that a tug, while
neither a bailee nor an insurer, is obligated to provide reasonable care
and skill "`as prudent navigators employ for the performance of similar
service.'" King Fisher Marine Serv., Inc. v. NP Sunbonnet,
724 F.2d 1181, 1184 (5th Cir. 1984) (quoting Stevens v. White City,
285 U.S. 195 (1932)). The duty of the tug boat to the tow is to use
ordinary care in performing the towage. Geertson v. United
States, 223 F.2d 68, 71 (3d Cir. 1955). A tug is bound to act and
avoid, so far as reasonable care and skill can afford, dangerous points
in navigation that are known or should have been known to a master in
charge of the tug. Folkstone Maritime, 64 F.3d at 1055 (citing
In re W.H. Baldwin, 271 F. 411, 413 (2d Cir. 1921)). Further,
"[n]avigators are not to be charged with negligence unless they make a
decision which nautical experience and good seamanship would condemn as
unjustifiable at the time and under the circumstances shown."
Id. (quoting In re W.H. Baldwin, 271 F. at 413).
When damages involve a tow or an entire flotilla, courts employ the
"dominant mind" doctrine to "place liability on the tug and absolve the
tow from liability." In re TT Boat Corp.,
Nos. CIV. A. 98-0494, 98-1109, 1999 WL 123810, at *3 (E.D. La. Mar.
3, 1999) (citing 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW §
12-7 (2d ed. 1994)). The "dominant mind" doctrine provides that the
vessel that is liable is the vessel whose people are actually in control
of the operation. Id. (citing Chevron U.S.A. Inc. v.
Progress Marine Inc., No. CIVIL ACTION 77-463, 1980 A.M.C. 1637
(E.D.La. Aug. 24, 1979), aff'd, 632 F.2d 893 (5th Cir. 1980)). A
tug is usually considered to be the "dominant mind" because it provides
the "motive power." Id. (citing Marathon Pipeline Co. v. Drilling Rig
Rowan/Odessa, 521 F. Supp. 824, 834 (E.D. La. 1981)). A tug that
tows the tow into a collision is presumed to be at fault, especially if
that collision is with a stationary object. Id. (citing Ryan
Walsh Stevedoring Co., Inc. v. James Marine Serv., Inc.,
557 F. Supp. 457, 461 (E.D. La. 1983), aff'd, 729 F.2d 1457 (5th Cir.
1984)). If the tug is the "dominant mind," the tug is responsible for
knowledge of navigational conditions, including knowledge of channels,
depth of water, obstructions, pipelines and other dangers to her tow.
However, the presumption that the tug is the "dominant mind" is
rebuttable. Id. (citing Chevron, 1980 A.M.C. 1637). If
the tow breached a duty or acted in a negligent manner that contributed
to the damages, the tow may be held partially or solely liable.
Id. An arrangement that the tug is not the "dominant mind" can
be made by agreement, expressed or implied from the circumstances.
Dow Chem. Co. v. Tug Thomas Allen, 349 F. Supp. 1354, 1363 (E.D.
La. 1972). If the tow is deemed to be the "dominant mind," "the tug is
not liable provided the tug has obeyed the tow's orders and has not
herself been guilty of negligence, either in the manner of executing the
orders or by participating in an obviously dangerous maneuver."
Many genuine issues of material fact are in dispute, including which
party was the "dominant mind." The following facts, which are essential
to resolving this issue, make it
impossible to grant the motion for summary judgment. As stated
above, the "dominant mind" doctrine provides that the vessel that is
liable is the vessel whose people are actually in control of the
operation. In re TT Boat Corp., 1999 WL 123810, at *3 (citing
Chevron, 1980 A.M.C. 1637). The parties disagree as to who was
in ultimate control: the tug or the tow. The defendants believe that the
master of the Paterson was ultimately responsible for
maneuvering his ship, with the assistance of the tugboat, and that Houde
had ultimate responsibility to make sure that the Paterson was
being operated properly. (Def.'s Resp. Pl.'s LR 56.1(b)(3)(B) ¶ 3.)
The plaintiff claims that it was the tug Ethel E.'s
responsibility to tow the Paterson out of the Calumet River and
keep the stern of the Paterson in the middle of the River.
(Pl.'s LR 56.1(b)(3)(A) ¶ 23.) Defendants argue that it was the
responsibility of the Ethel E. to tow the Paterson and
listen to Houde's commands and that Houde had authority to override the
tugboat captain. (Def.'s LR 56.1(a)(3) ¶¶ 23, 25.) Because the parties
do not agree as to whom had ultimate responsibility, it is impossible to
determine which vessel was the "dominant mind," and, thus, impossible to
determine the duties owed to the tow Paterson by the tug
Ethel E. This is because if the tug is the "dominant mind," the
Ethel E. is responsible for knowledge of navigational
conditions, including knowledge of channels, depth of water,
obstructions, pipelines and other ...