Opinion
No. 2009 CA 1547.
January 19, 2011.
I agree with the majority that Tidewater Dock, Inc. and Blue Tide, Inc. is not entitled to summary judgment as a matter of law. However, I believe the rationale found in Hercules v. Stevens Shipping Co., 765 F2d. 1069 (11th Cir. 1985) to be the more persuasive reasoning. Federal maritime law utilizes a system of strict comparative fault. With the adoption of comparative fault in Louisiana, many of the theories formerly used in the analysis of contributory negligence are no longer applicable. Concepts such as last clear chance and assumption of the risk have been subsumed into the theory of comparative fault. I believe this also to be the case with superseding cause. "Unless it can truly be said that one party's negligence did not in any way contribute to the loss, complete apportionment between the negligent parties, based on their respective degrees of fault is the proper method for calculating and awarding damages in maritime cases. . . " Hercules, 765 F2d. at 1075. I believe there are genuine issues of material fact concerning allegations of fault against Tidewater Dock, Inc. and Blue Tide, Inc.that make summary judgment inappropriate. For these reasons I respectfully concur.