UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-31107
CONTICARRIERS AND TERMINALS, INC., ET AL,
Plaintiffs,
VERSUS
VENFLEET, LTD., ET AL,
Defendants
VENFLEET, LTD; HANSEATIC SHIPPING COMPANY, LTD; M/T EOS,
her engines, tackle, apparel, furniture, etc., in rem,
Third Party Plaintiffs - Appellants,
VERSUS
CENAC TOWING COMPANY, INC.,
Third Party Defendant - Appellee
CITY OF NEW ORLEANS, ETC.,
Plaintiff,
VERSUS
VENFLEET, LTD., ET AL,
Defendants
VENFLEET, LTD.; HANSEATIC SHIPPING COMPANY, LTD.; M/T EOS
her engines, tackle, apparel, furniture, etc., in rem,
Third Party Plaintiffs - Appellants,
VERSUS
CENAC TOWING COMPANY, INC.,
Third Party Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
94-CV-727
December 1, 1997
Before GARWOOD, DUHÉ, AND DeMOSS, Circuit Judges
PER CURIAM:1
In its third attempt to obtain a summary judgment, third-party
defendant Cenac Towing Company, Inc. (“Cenac”) achieved success.
Upon review, we determine that genuine issues of material fact
still exist. Regrettably, the third time is not the charm for
Cenac.
I.
On February 22, 1994, the M/T EOS (“EOS”), traveling downriver
on the Mississippi River, allided with the Orleans Parish water
intake wharf and then struck barges owned by plaintiff
ContiCarriers and Terminals, Inc. (“ContiCarriers”), near the
Carrollton Bend of the river at Nine Mile Point (“Carrollton
Bend”). ContiCarriers sued Venfleet, Ltd., and Hanseatic Shipping
Co., Ltd. (collectively “Appellants”), the owners and operators of
the EOS for damages to its barges and cargo. The Appellants denied
liability and filed a third party complaint against Cenac Towing
Co., Inc. (“Cenac”), asserting that the allision was caused when a
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published ad is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2
tugboat operated by Cenac, while pushing two “red flag” barges
across the river, “embarrassed” the navigation of the EOS and
caused her to allide with the wharf and the ContiCarrier barges.
Cenac answered, asserting that the AMMIE CENAC was not in the
Carrolton Bend area at the time of the accident and that the
accident was instead caused by the faulty navigation of the EOS’
river pilot.
The district court denied Cenac’s first two motions for
summary judgment, finding there were disputed factual issues
remaining. Its third motion relied on evidence presented in the
earlier motions as well as deposition excerpts from its tugboat
captain, Joseph Trosclair, (“Trosclair”) and the relief captain,
Paul Robin, both of whom claimed no personal recollection of the
alleged event. The Appellants relied on previously submitted
evidence, introducing no new evidence in opposition to this third
motion for summary judgment. Rather, they argued that the two
deposition excerpts proved nothing new and pointed to the AIMEE
CENAC’s log, already in evidence, which Trosclair admitted did not
show all alterations of the boat’s speed. Appellants contended
that simple calculations based on time and location points
preceding the accident could well place the tug at the Carrollton
Bend site at the time of the accident.
We agree with Appellants that the evidence before the district
court on the third motion for summary judgment did not dispel
factual disputes and that a genuine issue exists as to the location
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of the AMMIE CENAC at the time of the accident. We hold that the
district court applied an incorrect standard in examining the
evidence before it and improperly granted Cenac’s motion.
II.
We review de novo an appeal from an entry of summary judgment.
Summary judgment is appropriate only 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). In resolving
the motion, the court may not undertake to evaluate the credibility
of the witnesses, weigh the evidence, or resolve factual disputes;
so long as the evidence in the record is such that a reasonable
jury drawing all inferences in favor of the nonmoving party could
arrive at a verdict in that party’s favor, the court must deny the
motion. Anderson V. Liberty Lobby, 477 U.S. 242, 255 (1986).
III.
It is clear from its opinion that the district court has
engaged in weighing evidence. The court’s order granting summary
judgment included the statement “...Cenac provided expert testimony
to prove that the tug was well beyond the point where the alleged
embarrassment occurred.” Appellants, however, pointed to the
AIMEE CENAC’s log indicating that earlier notations of time and
locations that day could be interpreted to place the tug at the
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allision site at the proper time and to Cenac statements that
reduction in speed over periods shorter than 30 minutes were not
recorded. The district court accepted Cenac’s evidence and
rejected the Appellants’. The court failed to regard facts
presented in the light most favorable to the nonmovants and
impermissibly weighed the evidence and resolved a factual dispute
in a summary judgment proceeding.2
In response to Cenac’s motion, the Appellants came forward
with their own evidence, previously submitted, establishing the
element in dispute - the location of the AIMEE CENAC at the time of
the allision.3 Additionally, the Appellants also point to
inconsistencies in the evidence offered by the movants that
establish a disputed material fact.4 That the log is subject to
more than one interpretation is an inconsistency sufficient to
preclude summary judgment.
Material facts regarding a second issue, whether the tug that
allegedly caused the allision was a Cenac tug, also remain in
dispute. The EOS pilot recalls a tug with two red flag barges; a
vessel upstream from the EOS described it as a Cenac tug bearing
the Cenac colors. The traffic logs that day indicate a Cenac
vessel moving upstream on the river pushing either one or two red
2
See International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d
1257, 1264 (5th Cir. 1991).
3
Id.
4
Id. at 1263-64.
5
flag barges. Cenac admits that the AIMEE CENAC, pushing two red
flag barges, was on the river that day. Her log reflects no
incident; her captain has no personal recollection of an incident;
her relief pilot was asleep during the time in question. The EOS
pilot indicated the embarrassing tug was being tied off at T. T.
Barge Cleaning, Inc., as he entered the Carrollton Bend area, but
an official at the facility confirmed that his records showed no
Cenac vessel present on that day. The tug’s log reflects no tie-
up. A photograph taken by a ContiCarrier employee from 10 to 20
minutes after the accident shows a red and white tug pushing what
could be a crane barge; no red flag barges, however, are visible in
the shot. Cenac denies pushing a crane barge that day. These
differences reflect factual disputes that are not to be resolved on
summary judgment.
Summary judgment does not require a movant to prove his case;
he must demonstrate there is “no genuine issue of material fact.”
The non-movant is not charged with refuting the defendant’s proof -
in this case that there was no Cenac tug involved in this incident.
The Appellants’ burden is only to direct the court’s attention to
evidence in the record, and when all inferences are drawn in their
favor, show that a reasonable jury could arrive at a verdict in
that party’s favor.5 We hold that the Appellants have submitted
evidence that establishes the existence of genuine issues of fact -
5
Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.
6
whether the AIMEE CENAC was the vessel present at Carrollton Bend
at the time of the accident. The granting of summary judgment was
improper. We reverse and remand.
REVERSED AND REMANDED.
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