United States District Court, N.D. Illinois, Eastern Division
In the Matter of the Complaint of Kindra Lake Towing, L.P. and Black Diamond Marine Equipment, Inc. for exoneration from or limitation of liability. In the Matter of the Complaint of Foundation Theatre Group, Inc. for exoneration from or limitation of liability. In the Matter of the Complaint of FOUNDATION THEATRE GROUP, INC. for exoneration from or limitation of liability.
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
Lake Towing, L.P., and Black Diamond Marine Equipment, Inc.,
bring this action under admiralty law, 46 U.S.C. §
30505, et seq. See R. 1. Kindra demise
chartered a barge to Black Diamond, which then
demise chartered the barge to intervenor Foundation Theatre
Group, Inc. Foundation-a theater company that specializes in
the production of zombie themed attractions-chartered the
barge because it had a contract with Navy Pier, Inc. to
produce a haunted house on the barge which would be docked at
Navy Pier for Halloween in 2014. The barge sank during a
storm while docked at Navy Pier. Kindra and Black Diamond
seek a declaration that they are not liable for the barge
accident. Foundation filed an intervenor complaint seeking a
declaration regarding its potential liability. See
R. 20. Travelers Property Casualty Company and National Union
Fire Insurance Company have appeared as subrogees of Kindra
and Black Diamond (all together, the “Kindra
Parties,” and together with Foundation, the
“Claimants”). The Kindra Parties and Foundation
have also made negligence claims against Navy Pier. R. 50; R.
Navy Pier seeks summary judgment on those claims. R. 146; R.
147; R. 148; R. 158. For the following reasons, the summary
judgment motions are granted.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The Court considers the entire
evidentiary record and must view all of the evidence and draw
all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723
F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a
nonmovant must produce more than “a mere scintilla of
evidence” and come forward with “specific facts
showing that there is a genuine issue for trial.”
Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir.
2013). Ultimately, summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Pier’s only argument on these motions is that it
“had no duty to act in this case.” R. 158 at 3.
The parties agree that Navy Pier’s duty in this
incident was that of a “wharfinger.” “It is
well settled that a wharfinger is not the guarantor of the
safety of a ship coming to his wharf,” but is
“under a duty to exercise reasonable diligence to
furnish a safe berth and to avoid damage to the
vessel.” Trade Banner Line, Inc. v. Caribbean S. S.
Co., S.A., 521 F.2d 229, 230 (5th Cir. 1975); see
also Schwerman Trucking Co. v. Gartland S.S. Co., 496
F.2d 466, 477 (7th Cir. 1974) (“It is well settled that
a wharfinger must exercise reasonable care to provide safe
facilities for vessels using its docks.”). “This
includes the duty to ascertain the condition of the berth, to
make it safe or warn the ship of any hidden hazard
or deficiency known to the wharfinger or which, in the
exercise of reasonable care and inspection, should be known
to him and not reasonably known to the
shipowner.” Trade Banner, 521 F.2d at 230
(emphases added); see also Medomsley Steam Shipping Co.
v. Elizabeth River Terminals, Inc., 354 F.2d 476, 480
(4th Cir. 1966) (a wharfinger must “warn a ship of any
unexpected hazard or deficiency known to the
wharfinger, or which, in the exercise of reasonable care, he
should have known”) (emphasis added).
cases setting forth these principles of a wharfinger’s
duty primarily concern the duty to warn of hidden underwater
obstructions. See Smith v. Burnett, 173 U.S. 430,
433 (1899) (“a large rock, sunk in the water, and
thereby concealed from sight,” of which the wharfinger
“had notice of its existence and position . . . and of
its danger to vessels, but neglected to buoy or mark it, or
to give any notice to [the plaintiff vessel]”);
Slater Fireproof Storage Co. v. Nicholson Transit
Co., 47 F.2d 734, 734-35 (7th Cir. 1931) (“several
feet below the water there projected beyond the face of the
pier . . . rods or bolts . . . causing holes to be made in
the [ship’s] side, and . . . caus[ing] [it] to
sink”; the wharfinger’s “failure to make
the inspection, and either to remove the obstruction that
would have been revealed, or to warn the boat of the danger,
was [the wharfinger’s] omission, but for which the
accident . . . would not have occurred”).
contrast, courts have held that wharfingers do not
have a duty to warn of ordinary weather conditions because,
unlike a rock or bolts hidden under the water but known to
the wharfinger, weather conditions are open and obvious and
do not require a warning. See In re Aramark Sports &
Entm’t Servs., LLC, 831 F.3d 1264, 1282 (10th Cir.
2016) (“Because most weather conditions are open and
obvious, and can be discovered with reasonable diligence, a
wharfinger does not have a duty to warn of such
dangers.” (quoting West v. City of St. Paul,
936 P.2d 136, 139 (Alaska 1997))); Bangor & A. R. Co.
v. Ship Fernview, 455 F. Supp. 1043, 1062 (D. Me. 1978)
(“A wharfinger is under no duty to advise an
approaching vessel of weather reports at the pier or of other
conditions arising during the ordinary course of navigation
or docking and which are readily apparent to the ship.”
(citing Bunge Corp. v. M/V Furness Bridge, 558 F.2d
790, 800 (5th Cir. 1977))).
Claimants argue that Navy Pier should have known and warned
them about the conditions of the berth on the north side of
Navy Pier where Navy Pier required the barge to be docked.
The Kindra Parties produced an expert who testified as
Q: What is it about the selected berth for the [barge] that
makes it so apparent that a severe weather contingency plan
A: It’s located at the south end of Lake Michigan which
gives storms or gales from the northeast an extended fetch
with which to develop very large waves. And it’s
exposed inside the breakwater which is only eight feet high.
So particularly in that time of year, according to the Coast
Pilot, the weather can be quite severe, and so it would be
advisable putting a high-profile vessel in that location at
that time of year to have a plan to get it out of there, if
Q: And you state, again, that would be obvious to anyone with