BRADSHAW, Plaintiff, v. UNITY MARINE CORPORATION, INC.;
CORONADO, in rem; and PHILLIPS PETROLEUM COMPANY, Defendants.
ACTION NO. G-00-558
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON
2001 U.S. Dist.
LEXIS 8962 June 26, 2001, Decided June 27, 2001, Entered
Defendant's Motion for Summary Judgment GRANTED.
JOHN W BRADSHAW, plaintiff: Harold Joseph Eisenman, Attorney at
Law, Houston, TX.
UNITY MARINE CORPORATION, INC., defendants: Ronald L White, White
Mackillop et al, Houston, TX.
PETROLEUM COMPANY, defendant: Charles Wayne Lyman, Giessel Barker
& Lyman, Houston, TX.
For UNITY MARINE
CORPORATION, INC., cross-claimant: Ronald L White, White Mackillop
et al, Houston, TX.
PETROLEUM COMPANY, cross-defendant: Charles Wayne Lyman, Giessel
Barker & Lyman, Houston, TX.
B. KENT, UNITED STATES DISTRICT JUDGE.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
this action for personal injuries sustained while working aboard
the M/V CORONADO. Now before the Court is Defendant Phillips Petroleum
Company's ("Phillips") Motion for Summary Judgment. For
the reasons set forth below, Defendant's Motion is GRANTED.
Plaintiff John W. Bradshaw claims that he was working as a Jones
Act seaman aboard the M/V CORONADO on January 4, 1999. The CORONADO
was not at sea on January 4, 1999, but instead sat [*2] docked at
a Phillips' facility in Freeport, Texas. Plaintiff alleges that
he "sustained injuries to his body in the course and scope
of his employment." The injuries are said to have "occurred
as a proximate result of the unsafe and unseaworthy condition of
the tugboat CORONADO and its appurtenances while docked at the Phillips/Freeport
First Amended Complaint, which added Phillips as a Defendant, provides
no further information about the manner in which he suffered injury.
However, by way of his Response to Defendant's Motion for Summary
Judgment, Plaintiff now avers that "he was forced to climb
on a piling or dolphin to leave the vessel at the time he was injured."
This, in combination with Plaintiff's Complaint, represents the
totality of the information available to the Court respecting the
potential liability of Defendant Phillips.
Six days after
filing his one-page Response, Plaintiff filed a Supplemental Opposition
to Phillips Petroleum Company's Motion for Summary Judgment. Although
considerably lengthier, the Supplement provides no further illumination
of the factual basis for Plaintiff's claims versus Phillips. Defendant
now contends, in its Motion for Summary Judgment, that the Texas
two-year statute of limitations for personal injury claims bars
injury on January 4, 1999 and filed suit in this Court on September
15, 2000. However, Plaintiff did not amend his Complaint to add
Defendant Phillips until March 28, 2001, indisputably more than
two-years after the date of his alleged injury. Plaintiff now responds
that he timely sued Phillips, contending that the three-year federal
statute for maritime personal injuries applies to his action.
further, the Court notes that this case involves two extremely likable
lawyers, who have together delivered some of the most amateurish
pleadings ever to cross the hallowed causeway into Galveston, an
effort which leads the Court to surmise but one plausible explanation.
Both attorneys have obviously entered into a secret pact — complete
with hats, handshakes and cryptic words — to draft their pleadings
entirely in crayon on the back sides of gravy-stained paper place
mats, in the hope that the Court would be so charmed by their child-like
efforts that their utter dearth of legal authorities in their briefing
would go unnoticed. Whatever actually occurred, the Court is now
faced with the daunting task of deciphering their submissions.
With Big Chief
tablet readied, thick black pencil in hand, and a devil-may-care
laugh in the face of death, life on the razor's edge sense of exhilaration,
the Court begins.
is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. When a
motion for summary judgment is made, the nonmoving party must set
forth specific facts showing that there is a genuine issue for trial.
Therefore, when a defendant moves for summary judgment based upon
an affirmative defense to the plaintiff's claim, the plaintiff must
bear the burden of producing some evidence to create a fact issue
some element of defendant's asserted affirmative defense.
the descent into Alice's Wonderland by submitting a Motion that
relies upon only one legal authority. The Motion cites a Fifth Circuit
case which stands for the whopping proposition that a federal court
sitting in Texas applies the Texas statutes of limitations to certain
state and federal law claims. That is all well and good — the Court
is quite fond of the Erie doctrine; indeed there is talk of little
else around both the Canal and this Court's water cooler. Defendant,
however, does not even cite to Erie, but to a mere successor case,
and further fails to even begin to analyze why the Court should
approach the shores of Erie.
does not even provide a cite to its desired Texas limitation statute.
A more bumbling approach is difficult to conceive — but wait folks.
a Reply brief, on June 11, 2001, after the Court had already drafted,
but not finalized, this Order. In a regretful effort to be thorough,
the Court reviewed this submission. It too fails to cite to either
the Texas statute of limitations or any Fifth Circuit cases discussing
maritime law liability for Plaintiff's claims versus Phillips.
to this deft, yet minimalist analytical wizardry with an equally
gossamer wisp of an argument, although Plaintiff does at least cite
the federal limitations provision applicable to maritime tort claims.
Naturally, Plaintiff also neglects to provide any analysis whatsoever
of why his claim versus Defendant Phillips is a maritime action.
Instead, Plaintiff "cites" to a single case from the Fourth
citation, however, points to a nonexistent Volume "1886"
of the Federal Reporter Third Edition and neglects to provide a
pinpoint citation for what, after being located, turned out to be
a forty-page decision. Ultimately, to the Court's dismay after reviewing
the opinion, it stands simply for the bombshell proposition that
torts committed on navigable waters (in this case an alleged defamation
committed by the controversial G. Gordon Liddy aboard a cruise ship
at sea) require the application of general maritime rather than
state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir.
1999) (What the ..)?!
The Court cannot
even begin to comprehend why this case was selected for reference.
It is almost as if Plaintiff's counsel chose the opinion by throwing
long range darts at the Federal Reporter (remarkably enough hitting
a nonexistent volume!). And though the Court often gives great heed
to dicta from courts as far flung as those of Manitoba, it finds
this case unpersuasive. There is nothing in Plaintiff's cited case
about ingress or egress between a vessel and a dock, although counsel
must have been thinking that Mr. Liddy must have had both ingress
and egress from the cruise ship at some docking facility, before
uttering his fateful words.
noted above, Plaintiff has submitted a Supplemental Opposition to
Defendant's Motion. This Supplement is longer than Plaintiff's purported
Response, cites more cases, several constituting binding authority
from either the Fifth Circuit or the Supreme Court, and actually
includes attachments which purport to be evidence. However, this
is all that can be said positively for Plaintiff's Supplement, which
does nothing to explain why, on the facts of this case, Plaintiff
has an admiralty claim against Phillips (which probably makes some
sense because Plaintiff doesn't).
to rely on the fact that he has pled Rule 9(h) and stated an admiralty
claim versus the vessel and his employer to demonstrate that maritime
law applies to Phillips. This bootstrapping argument does not work;
Plaintiff must properly invoke admiralty law versus each Defendant
discretely. Despite the continued shortcomings of Plaintiff's supplemental
submission, the Court commends Plaintiff for his vastly improved
choice of crayon — Brick Red is much easier on the eyes than Goldenrod,
and stands out much better amidst the mustard splotched about Plaintiff's
briefing. But at the end of the day, even if you put a calico dress
on it and call it Florence, a pig is still a pig.
the Court must return to grownup land. As vaguely alluded to by
the parties, the issue in this case turns upon which law — state
or maritime — applies to each of Plaintiff's potential claims versus
Defendant Phillips. And despite Plaintiff's and Defendant's joint,
heroic efforts to obscure it, the answer to this question is readily
The Fifth Circuit
has held that "absent a maritime status between the parties,
a dock owner's duty to crew members of a vessel using thedock is
defined by the application of state law, not maritime law. Specifically,
maritime law does not impose a duty on the dock owner to provide
a means of safe ingress or egress. Therefore, because maritime law
does not create a duty on the part of Defendant Phillips vis-a-vis
Plaintiff, any claim Plaintiff does have versus Phillips must necessarily
arise under state law. Take heed and be suitably awed, oh boys and
girls — the Court was able to state the issue and its resolution
in one paragraph ... despite dozens of pages of gibberish from the
parties to the contrary!
therefore ... applies the Texas statute of limitations. Texas has
adopted a two-year statute of limitations for personal injury cases.
Plaintiff failed to file his action versus Defendant Phillips within
that two-year time frame. Plaintiff has offered no justification,
such as the discovery rule or other similar tolling doctrines, for
this failure. Accordingly, Plaintiff's claims versus Defendant Phillips
were not timely filed and are barred. Defendant
Phillips' Motion for Summary Judgment is GRANTED and Plaintiff's
state law claims against Defendant Phillips are hereby DISMISSED
WITH PREJUDICE. A Final Judgment reflecting such will be entered
in due course.
remarkably long walk on a short legal pier, having received no useful
guidance whatever from either party, the Court has endeavored, primarily
based upon its affection for both counsel, but also out of its own
sense of morbid curiosity, to resolve what it perceived to be the
legal issue presented. Despite the waste of perfectly good crayon
seen in both parties' briefing (and the inexplicable odor of wet
dog emanating from such) the Court believes it has satisfactorily
resolved this matter. Defendant's Motion for Summary Judgment is
At this juncture,
Plaintiff retains, albeit seemingly to his befuddlement and/or consternation,
a maritime law cause of action versus his alleged Jones Act employer,
Defendant Unity Marine Corporation, Inc. However, it is well known
around these parts that Unity Marine's lawyer is equally likable
and has been writing crisply in ink since the second grade. Some
old-timers even spin yarns of an ability to type. The Court cannot
speak to the veracity of such loose talk, but out of caution, the
Court suggests that Plaintiff's lovable counsel had best upgrade
to a nice shiny No. 2 pencil or at least sharpen what's left of
the stubs of his crayons for what remains of this heart-stopping,
In either case,
the Court cautions Plaintiff's counsel not to run with a sharpened
writing utensil in hand — he could put his eye out.
IT IS SO ORDERED.
DONE this 26th
day of June, 2001, at Galveston, Texas.
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
Carolyn J. Stevens
Post Office Box 999
Lolo, MT 59847-0999