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In re Complaint of Kindra Lake Towing, L.P.

United States District Court, N.D. Illinois, Eastern Division

September 18, 2017

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

         Kindra 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[1] 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. 55.[2] 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.

         Legal Standard

         Summary 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 (1986).

         Analysis

         Navy 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).

         The 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”).

         By 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))).

         The 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 follows:

Q: What is it about the selected berth for the [barge] that makes it so apparent that a severe weather contingency plan was necessary?
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 necessary.
Q: And you state, again, that would be obvious to anyone with basic ...

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