Opinion
NO: 01-3379, SECTION: "D"(4)
November 27, 2002
MINUTE ENTRY
Before the court is the "Motion for Summary Judgment" filed by Plaintiff, Zen-Noh Grain Corporation (Zen-Noh). Defendant, Central Marine, Ltd., filed a memorandum in opposition. The motion, set for hearing on Wednesday, November 27, 2002, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court finds that the motion should be denied. In its motion, Plaintiff Zen-Noh claims that it is entitled to defense and indemnity from Defendant pursuant to the indemnity provision contained in Zen-Noh's Dock Tariff, and arguably incorporated by reference in an Application for Berth signed by the local agent, Southport Agency. However, Zen-Noh has presented no evidence that Southport Agency was the agent for the owners or operators of the M/V FOUR STEEL (rather than the agent for the vessel's charterers), or that Southport Agency acted with the requisite (actual or apparent) authority to bind the vessel's owners or operators.
Zen-Noh seeks defense and indemnity regarding the claims asserted by Paul Anthony Fountaine (a Federal Grain Inspector), who filed suit in the Middle District of Louisiana (No. 01-527, Judge Tyson), against Zen-Noh (and others) for injuries he allegedly sustained while boarding the ocean vessel, the MN FOUR STEEL which was docked at Zen-Noh's grain elevator in Convent, Louisiana. Defendant Central Marine filed a Motion to Transfer that case to the Eastern District, but no ruling has been made on that motion.
See e.g., Armit v. Eleni International Shipping, S.A., 201 F.3d 556 (5th Cir. 2000) (charterer's agent did not have actual or apparent authority to bind vessel's owner to indemnification provisions of dock tariff) and Marvirazon Comapnai Naviera v. H.J. Baker Bros., Inc., 674 F.2d 364 (5th Cir. 1982) (agent lacked actual authority to bind vessel owner in accepting tariffs limitation of liability for damage to vessel).
As the moving party, Plaintiff Zen-Noh bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 548, 92 L.Ed.2d 265 (1986). Zen-Noh has failed to meet this burden regarding the indemnity provision contained in the Tariff (and arguably incorporated in the Application for Berth).
Finally, in its Reply Memorandum, Plaintiff argues for the first time that the vessel, her owners and operators are still obligated to defend and indemnify Zen-Noh from the claim of Mr. Fountaine pursuant to the indemnity provision contained in the Contract for Gangway Rental, which was arguably signed by the master of the vessel. However, in its Complaint, Plaintiff Zen-Noh makes no allegations regarding the Contract for Gangway Rental.
Accordingly;
IT IS ORDERED that Plaintiff Zen-Noh's "Motion for Summary Judgment" be and is hereby DENIED.