ORDER AND REASONS

Eldon Fallon, United States District Court

Before the Court are petitioner/defendants Griffin Marine, Inc. and Continental Casualty Company's Motion for Summary Judgment and claimant/plaintiffs Sara and Joseph Tweedel's Motion to Strike Eighth Defense by Defendant Robert Gourgues, and Motion to Strike Motion for Summary Judgment filed by Griffin Marine, Inc. and Contimental Casualty Company. For the following reasons, petitioners' Motion for Summary Judgment is GRANTED, and claimants' Motion to Strike Eighth Defense and Motion to Strike Summary Judgment are DENIED.

I. BACKGROUND

This limitation of liability action arises from a fishing trip incident in Lafourche Parish, Louisiana on July 1, 2000 when a Kenner 21v-200 Tunnel Bay Boat, owned by Griffin Marine and operated by Robert Gourgues, abruptly turned causing three passengers to be ejected.

Gourgues, an experienced boatman who has hosted a television program about fishing for sixteen years, verbally arranged with Griffin Marine to use its boat in exchange for commercial endorsements during his program, personal appearances on Griffin's behalf, and demonstrations of the boat for customers. Griffin Marine provided Gourgues with the vessel, outfitted it with equipment, perfo routine maintenance, and insured it. Whenever Gourgues desired to use the boat, he would pick it up from Griffin Marine's facility, supply it with fuel and fishing equipment, and then return it to Griffin Marine at his discretion.

On July 1, 2000, Gourgues chose to take Joseph Tweedel, Adrian Mintz, and Jason Lane aboard the boat for a fishing trip as a courtesy to Crescent City Ford for its sponsorship of Gourgues' television program. Although the group were forced to return to shore by mid morning because of rain, they returned to fishing when the weather cleared in the afternoon. While in route, the boat suddenly took a sharp turn and catapulted Tweedel, Mintz, and Gourgues from the vessel. Tweedel suffered severe injuries to his heel when he was struck by the propeller.

Plaintiffs do not suggest that the accident was caused by the unseaworthiness or malfunction of the vessel. Rather, they claim that Gourgues lost control of the boat causing it to turn sharply. Defendants suggest that the vessel struck a submerged object and indicate that there is evidence of minor scratching on the bottom of the boat.

II. SUMMARY JUDGMENT STANDARD

Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. If the party moving for summary judgment demonstrates the absence of a genuine issue of material fact "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588 (1986). Therefore, "the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis, 61 F.3d at 315.

The burden of demonstrating the existence of a genuine issue is not met by "metaphysical doubt" or "unsubstantiated assertions." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5111 Cir. 1994) (quoting Matsushita, 475 U.S. at 588). The Court must "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contrary facts." Id. The Court does not, "in the absence of proof, assume that the nonmoving party could or would prove the necessary facts." Id. If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

III. ANALYSIS

Griffin Marine argues that it is entitled to summary judgment because its arrangement with Gourgues created a bareboat or demise charter which absolves Griffin Marine of vicarious liability for the accident. A demise or bareboat charter is a contract whereby the owner of a vessel transfers full possession and control to the charterer. See Agrico Chemical Co. v. M/V Ben W. Margin, 664 F.2d 85, 91 (5th Cir. 1981). To create a demise charter, the owner must transfer complete "possession, command, and navigation of the vessel" to the charterer by written or verbal agreement. Id (quoting Gaspard v. Diamond M. Drilling Co., 593 F.2d 605, 606 (5th Cir. 1979)). The arrangement is "tantamount to, though just short of, an outright transfer of ownership." Id. (Guzman v. Pichirilo, 369 U.S. 698, 700 (1962)).

The primary obligation of the owner in a demise charter is to furnish a vessel in a seaworthy state when it is delivered to the charterer. See id. (citing G. Gilmore C. Black, The Law of Admiraley 241 (2d ed. 1975)). The charterer is responsible for returning the boat in as good of condition absent ordinary wear and tear. See Gilmore Black at 241. "The charterer is also regarded as the owner of the vessel for the period of the charter and is responsible for the vessel's operation." Agrico Chemical Co., 664 F.2d at 91.

The Court finds that the relationship between Gourgues and Griffin Marine created a bareboat charter because Gourgues possessed complete control over the vessel. Gourgues freely removed and returned the boat from Griffin Marine's facility. He decided when, where, and with whom to use the boat. Although plaintiffs contend that Griffin Marine retained possession of the vessel after Gourgues' use, Griffin Marine had no control over the navigation of the vessel. The Fifth Circuit in O'Donnel v. Latham considered a similar relationship of a fisherman who rented a boat from its owner. See 525 F.2d 650 (5th Cir. 1976). In that case, the Court held that a demise charter had been created when a fisherman rented a boat because the renter/charterer exercised possession and control of the vessel. See id. at 653. The Court did not find the fact that the boat was returned to the owner sufficient to negate the demise. See id. Similarly, the fact that Gourgues returned the vessel to Griffin Marine for storage and routine maintenance does not obviate his status as a bareboat charterer.

Plaintiffs alternatively argue that Gourgues served as an agent of Griffin Marine at the time of the accident. Plaintiffs explain that the only reason Griffin Marine permitted Gourgues to use their boats was to generate sales by demonstrating the boat to potential customers and by advertising them on his television program. But the evidence reveals that Gourgues did not receive any commission or bonus for sales. He had no economic incentive to produce sales for Griffin. Finally, plaintiffs seek to distinguish cases such as O'Donnel that involve rental agreements by noting that Gourgues agreed to pay Griffin Marine in service rather than in money. The form of consideration, however, does not determine whether a bareboat charter has been created. A bareboat charter exists in the present case because Griffin Marine transferred complete control of the boat to Gourgues. See Agrico Chemical Co., 664 F.2d at 91.

Plaintiffs also argue that Griffin Marine negligently entrusted the vessel to Gourgues because he liked specific training and a proper license to operate the boat. The evidence, however, indicates that Gourgues is an experienced boatman and fisherman with more than a decade of boat operation experience. The fact that he may not have been licensed is irrelevant to Griffin Marine's potential for liability. Because claimants do not allege that the vessel was unseaworthy or suffered any mechanical malfunction, there exists no grounds for liability against Griffin Marine.

Additionally, plaintiffs move to strike Gourgues' defense of limitation of liability because they argue he is not the owner of the vessel. As a bareboat charterer, Gourgues qualifies as the owner of the vessel pro hac vice and is entitled to raise a limitation of liability defense. See Gilmore Black at 242. Although he may not later be found entitled to limit his liability, Gourgues may raise it as a defense in his answer.

IV. CONCLUSION

For the foregoing reasons, petitioner/defendants Griffin Marine, Inc. and Contimental Casualty Companys Motion for Summary Judgment is GRANTED; and, claimant/plaintiffs Sara and Joseph Tweedel's Motion to Strike Eighth Defense by Defendant Robert Gourges and Motion to Strike Motion for Summary Judgment filed by Griffin Marine, Inc. and Contimental Casualty Company is DENIED.