The opinion of the court was delivered by: Judge Nora Barry Fischer
Plaintiff Mon River Towing, Inc., (hereinafter "MRT" or "Plaintiff"), brought the instant civil action against Defendant Industrial Terminal and Salvage Company (hereinafter "ITS" or "Defendant") by way of complaint on November 9, 2006, alleging negligence in Count I, lost profits and uncovered costs in Count II, indemnification in Count III, and pre-judgment interest and attorney fees in Count IV. This Memorandum Opinion addresses two motions presently before the Court, Plaintiff's Motion for Partial Summary Judgment (Docket No. 33) and Defendant's Motion for Summary Judgment (Docket No. 34). For the reasons outlined herein, Plaintiff's Motion for Partial Summary Judgment is DENIED; Defendant's Motion for Summary Judgment is GRANTED, in part, and DENIED, in part.
The underlying facts giving rise to this litigation are fairly straightforward and generally undisputed.*fn1 By way of background, MRT is a Pennsylvania company engaged in the business of letting barges for hire. ITS is a Pennsylvania company operating a marine terminaling and barge fleeting facility below the Montgomery Lock and Dam on the Ohio River. In late 2003 or early 2004, MRT was awarded two contracts for the transportation of coal to power plants. In order to meet its obligations under the contract, MRT began expanding its fleet and, among other things, entered into a Charter Agreement for delivery of 104 brand new jumbo barges during 2004-2005. The first 13 barges completed, numbered sequentially MRT 416-MRT 428, took their first load under a voyage charter to TECO Barge Lines out of the shipyard in Caruthersville, Missouri, and began their maiden voyage north to Pittsburgh, Pennsylvania.*fn2
On or about May 20, 2004, these 13 barges were accepted into the fleet operated by ITS. (Docket No. 51 at ¶2). ITS directed that the barges be placed at the Shell Chemical Dock on the Ohio River. (Id. at ¶4). The Shell Chemical Dock consisted of a large river cell and 6 smaller cells and was approximately 449 feet in length.*fn3 (Docket No. 33 at 3). During the time MRT's barges were fleeted with ITS, the river was expected to rise. (Docket No. 51 ¶6).
As expected, the river did rise, and, upon inspection, ITS discovered that the most down river side line securing the fleet was fouled*fn4 and had to be cut in order to be released. (See generally, Docket No. 51 ¶12 and Docket No. 52 at ¶12). To correct the fouled line, ITS determined that it was necessary to push the fleet up river to create slack in the line so it could be cut without creating a surge on the fleet. (Docket No. 51 ¶¶13-14). In order to achieve this result, ITS employed its harbor boat, the M/V Ranger, along with the assistance of the M/V Arnie S., owned by FirstEnergy Corporation, which operated a facility across the river, to move the fleet upriver. (Docket No. 51 at ¶14; Docket No. 52 at ¶14). With both harbor boats securing the fleet, the fouled line was cut away. (Docket No. 51 at ¶15). ITS then allowed the fleet to return to its natural position secured by the remaining lines, the M/V Arnie S. was released back to her fleet, and the M/V Ranger moved to the outside of her fleet to push the lower portion of the fleet in towards the cell. (Docket No. 51 ¶¶17-18). As the M/V Ranger attempted to hold the fleet against the cells so the failed line could be replaced, the head wire and remaining side lines failed and the fleet drifted across the river and collided with the Bruce Mansfield fleet. (Docket No. 51 at ¶22). The M/V Ranger was unable to recapture the fleet and, after striking the fleet across the river, the fleet broke apart and began moving downstream before running aground. (Docket No. 51 at ¶¶26-27).
Both MRT and ITS immediately hired surveyors to assess the damage to the barges. (Docket No. 51 at ¶33). Ultimately, MRT decided that the barges were to be repaired to their as-built condition, which required the use of wheelabrated steel, and that the most time and cost effective manner for effectuating the repairs was to have the barges split between two shipyards, one being Jeffboat and the other being O-Kan, both located in Ohio. (See generally, Docket No. 51 at ¶¶38-48; Docket No. 52 at ¶¶38-48). All or some of the barges were out of service during a period between May and September 2004.
Plaintiff commenced the instant action by filing a complaint on November 9, 2006, and the case was assigned to Judge Thomas M. Hardiman. (Docket No. 1). Defendant answered Plaintiff's Complaint on February 5, 2007. (Docket No. 6). On April 6, 2007, the case was reassigned to the undersigned judge. The matter then proceeded through the Court's alternative dispute resolution (ADR) process,*fn5 particularly mediation, but said efforts proved to be unavailing.*fn6 The parties engaged in additional discovery, and additional attempts at mediation were unavailing.*fn7
On June 13, 2008, Plaintiff filed its Motion for Partial Summary Judgment (Docket No. 33) and Defendant filed its Motion for Summary Judgment. (Docket No. 34). Both parties responded to the respective motions on July 11, 2008 (Docket Nos. 37 and 38), and filed reply briefs in support of their motions on July 18, 2008 (Docket Nos. 41 and 42). As Plaintiff failed to file a concise statement of material facts with its motion for summary judgment, in violation of Local Rule 56.1, the Court ordered Plaintiff to file same on October 10, 2008. (Docket No. 45). Plaintiff eventually filed its concise statement on October 20, 2008 (Docket No. 51); and Defendant filed its response thereto on November 19, 2008. (Docket No. 52). Plaintiff subsequently replied to the objections raised in Defendant's response to the concise statement (Docket No. 53), and Defendant filed a sur-reply to Plaintiff's concise statement on December 3, 2008. (Docket No. 56). As both motions have now been fully briefed, they are ripe for disposition.
Summary judgment may only be granted "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). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A dispute of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 412 F.3d at 249. As to materiality, the relevant substantive law identifies which facts are material. Anderson, 477 U.S. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id.
"The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment." Turner v. Leavitt, Civ. Action No. 05-942, 2008 WL 828033, at *4 (W.D.Pa. March 25, 2008) (citing Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing 10 WRIGHT AND MILLER, FEDERALPRACTICE § 2721, at 40 (2d ed.1983))); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J.1956), aff'd, 248 F.2d 543 (3d Cir.1957), cert. denied, 355 U.S. 964, 78 S.Ct. 554, 2 L.Ed.2d 539 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").
In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.2007). However, the court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, 142 F.3d 639, 643 n.3 (3d Cir.1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir.1994)).
A. Arguments Advanced by the Parties
Plaintiff's Motion for Partial Summary Judgment requests the court to enter judgment as a matter of law on the issues of liability, prejudgment interest, costs, and fees against Defendant. Plaintiff argues that a bailment relationship existed between Plaintiff and Defendant, and, under maritime law, a presumption of negligence exists against Defendant given the property damage suffered by Plaintiff. Plaintiff then requests that the case proceed on the sole issue of the amount of damages to be awarded. (Docket No. 33 at 1). Defendant counters that genuine issues of material fact exist as to Defendant's liability; ...