Case: 15-30932       Document: 00513625732         Page: 1     Date Filed: 08/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                       No. 15-30932                                 FILED
                                                                               August 5, 2016

OPERACIONES TECNICAS MARINAS, S.A.S.,                                          Lyle W. Cayce
                                                                                    Clerk
               Plaintiff - Appellant

v.

DIVERSIFIED MARINE SERVICES, L.L.C.; ST. PAUL FIRE & MARINE
INSURANCE COMPANY,

               Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1979


Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:*
       For the summary judgment awarded Diversified Marine Services,
L.L.C., in this maritime proceeding about an oral ship-repair contract,
primarily at issue is whether a genuine dispute of material fact exists for
Diversified’s—a vessel service and repair entity—claimed failure to repair, or
adequately repair, two vessels owned by Operaciones Tecnicas Marinas, S.A.S.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 15-30932
(OTM), of Colombia.        Because there is a genuine dispute regarding
inadequate—as opposed to no—repairs, starting with the disputed scope of the
work under the oral contract, the summary judgment was improperly granted
in that regard against OTM’s three claims presented on appeal. AFFIRMED
in part; VACATED in part; REMANDED.
                                        I.
      It is undisputed the parties entered into an oral contract for Diversified’s
inspection and repair of two offshore crew vessels, M/V MARY TIDE and M/V
THOMAS TIDE, before OTM purchased them for $120,000 each in November
2010. The vessels had not been in service for several years. The first of many
disputes, mainly concerning the repair of three of the vessels’ total of six
engines, is the scope of repair work to which Diversified and OTM agreed.
Diversified asserts it agreed to perform only necessary repairs for the vessels
to reach Cartagena, Colombia, from Diversified’s shipyard in Houma,
Louisiana, asserting OTM planned to have additional repairs done there,
where they allegedly would be less expensive.        On the other hand, OTM
disputes repairs would be less expensive in Colombia, because parts would
allegedly be more expensive there, and maintains Diversified agreed to “make
the vessels seaworthy and ready for service”, “as typical offshore crew boats
upon arrival” in Cartagena. The parties understood the cost of repairs would
increase from the approximately $100,000–$120,000 cost-of-repairs estimate
as Diversified inspected the vessels and discovered more needed repairs; they
ultimately cost OTM approximately $345,000.
      Although the parties do not dispute Diversified was to repair, inter alia,
MARY TIDE’s starboard and center main engines, and THOMAS TIDE’s
center main engine, they disagree whether Diversified recommended, and
OTM approved, other repairs.       OTM contends, and its principal, Gonzalo
Martinez, testified by deposition: he was the only one from OTM who discussed
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                                 No. 15-30932
the repairs with Diversified and observed its working on the engines only once;
he approved all the repairs Diversified recommended as it continued inspecting
the vessels; and some important repairs were not recommended to him.
Diversified, on the other hand, asserts OTM was present at the shipyard and
specifically authorized or rejected repairs.
      In May 2011, Martinez, a licensed master pilot with 25 years’ experience,
and his attorney: inspected the vessels, started their engines successfully, and
made final payment to Diversified. Martinez raised no major issues, besides
noting: a “bad” hose and clamp in the steering compartment’s bilge on MARY
TIDE; and an exhaust leak in both generators and a “hole in [starboard] stern
from [the] sea wall” on THOMAS TIDE.
      The vessels departed Houma for Cartagena on 23 June 2011. OTM
presented evidence that a rebuilt or overhauled engine can operate between
5,000 and 10,000 hours before requiring another overhaul; however, the first
sign of trouble occurred just over four hours after departure, when the crews
were forced to shut off both vessels’ malfunctioning center engines. By 1 July,
the vessels were stranded without motive power and required a tow to
Colombia. Diversified contends OTM caused the problem by overloading the
vessels with contraband and excess fuel before departing, in addition to earlier
rejecting repairs essential to the engines’ function; OTM denies these
assertions.
      In Cartagena, OTM employed Lloyd’s Register, an international marine
surveying firm, to survey the vessels. Lloyd’s reported MARY TIDE’s engines
were “out of order”, but did not comment on the cause. Francisco Hoyos, a
surveyor for Lloyd’s, testified by deposition the engines at issue in MARY TIDE
and THOMAS TIDE showed signs of “lack[ing] maintenance”.                He also
identified several repairs that are “not permitted ever”, such as an exhaust
pipe that was improperly repaired by doubling it, which can result in leakage.
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      Lloyd’s employed Stewart & Stevenson, an international distributor of
Detroit Diesel engines, to evaluate the engines on both vessels. For Stewart &
Stevenson, Oscar Guerrero concluded the vessels’ engines did not show signs
of recent repair. As a result, he recommended removing and disassembling the
engines “to verify the condition and wear of internal components . . . to later
proceed with their repair and reassembly”.
      OTM filed this action in July 2012, claiming, inter alia, breach of
contract, negligence, and breach of warranty of workmanlike performance
(WWLP) (the claims at issue here). Diversified moved for summary judgment,
contending: OTM could not prove a breach of WWLP; and OTM’s expert
witnesses abandoned their own reports and “opinions on causation or whether
the engines were overhauled by Diversified”.
      In opposition to the summary-judgment motion, OTM stated, inter alia,
Martinez’ deposition was being taken and would be a supplement to its
opposition. Diversified’s reply, about a month after OTM’s opposition was filed,
included excerpts of the deposition of OTM’s liability expert, David Merrion, a
retired executive for Detroit Diesel Corporation with over 50 years’ experience;
his deposition, however, had not been taken until shortly after OTM filed its
opposition.
      OTM immediately moved to supplement its opposition to include, inter
alia, other parts of Merrion’s deposition; the motion was first rejected for
exceeding the district court’s ten-page limit for reply memoranda and failure
to show good cause for doing so, and again for failure to include a supporting
memorandum. OTM moved a third time for leave to file its supplemental
opposition.
      Without ruling on that motion, the court granted summary judgment for
Diversified, concluding:   OTM could not prove Diversified did not do the
promised work, or that the repairs were inadequate or substandard.
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                                  No. 15-30932
Operaciones Tecnicas Marinas S.A.S. v. Diversified Marine Servs., LLC, 127 F.
Supp. 3d 669, 673–76 (E.D. La. 2015). In reaching the second conclusion, the
court relied in large part on OTM’s stating it did “not have to prove precisely
why the engines failed” because, OTM maintained, the evidence showed
Diversified did not perform, or negligently performed, the repairs. Id. at 675.
The court concluded OTM failed to show “the vessels’ other deteriorating parts
or operator error” were not the cause of the vessels’ breakdown.          Id.   In
dismissing the claims, it did not address breach of contract.
      OTM moved to alter the judgment under Rule 59(e), asserting: a genuine
dispute of material fact existed; the court erred in not ruling on OTM’s motion
for leave to supplement its opposition to summary judgment with depositions,
including Merrion’s; and the law Diversified cited in its reply to OTM’s
opposition was inapposite. The motion was denied.
                                       II.
      The procedure for reviewing a summary judgment hardly needs
discussion or citation to authority. It is reviewed de novo, applying the same
standard as the district court. E.g., Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). And, it should be granted only when there
is “no genuine dispute [for] any material fact and the movant is entitled to
judgment as a matter of law”. Fed. R. Civ. P. 56; e.g., Celtic Marine Corp. v.
James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014). “When assessing
whether a dispute to any material fact exists, we consider all of the evidence
in the record but refrain from making credibility determinations or weighing
the evidence.” Turner, 476 F.3d at 343.
      For the reasons that follow, and based on the evidence’s being viewed in
the requisite light most favorable to the non-movant and drawing all
reasonable inferences in its favor, e.g., Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013), OTM’s three claims
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                                 No. 15-30932
regarding Diversified’s inadequate repairs were improperly dismissed on
summary judgment.
      As part of its contesting summary judgment, and citing the rule of
completeness, OTM challenges the court’s:         denying OTM’s motion to
supplement its opposition to summary judgment; and ruling any such error
was harmless. Fed. R. Evid. 106 (allowing, in response to party’s introducing
part of a writing, adverse party to “require the introduction . . . of any other
part [of a writing] . . . that in fairness ought to be considered”). Because
summary judgment was improper concerning the claimed inadequate repairs,
we need not reach this issue. The same applies to OTM’s assertion the court
held it to an improperly high burden of proof on its negligence and breach-of-
warranty claims.
                                      A.
      At the outset, the court did not err in concluding OTM cannot prove no
repairs were done to the vessels. See Operaciones, 127 F. Supp. 3d at 674.
OTM’s expert, Merrion, stated in his report, submitted by Diversified, that
some repairs were evident, and other experts, Stewart & Stevenson’s Guerrero
and Luis Santamaria, and Lloyd’s Hoyos, could not confirm no repairs were
done without further examination.      Moreover, as OTM confirmed at oral
argument here, the engines that had been frozen at the time of purchase were
started during OTM’s pre-departure check of Diversified’s work. OTM does
not point to other evidence creating a genuine dispute of material fact for
Diversified’s doing no work. Of course, this does not preclude Diversified’s
having performed repairs inadequately for the following claims presented on
appeal: negligence, breach of WWLP, and breach of contract.
                                      B.
      In asserting Diversified performed substandard repairs, OTM relies on
deposition testimony from its experts, who reported the condition of the
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                                  No. 15-30932
engines upon arrival in Cartagena was inconsistent with engines that had been
rebuilt or overhauled recently. Diversified contends, and the court agreed:
none of the disputed underlying facts highlighted by OTM are material to its
claims; and its experts were not retained to determine the cause of the engines’
failure.
      Furthermore, Diversified and OTM dispute what duty Diversified owed
OTM under their oral contract. OTM asserts no agent was present to monitor
day-to-day work, and Diversified was to recommend repairs based on its
ongoing inspection. Diversified, on the other hand, states OTM’s principal,
Martinez, communicated a list of repairs to Diversified, and he declined to
repair several parts on the vessels, as well as authorize a typical repair survey
by a qualified marine surveyor.
      As shown, the parties agree they had an oral contract, but dispute its
material terms. Along that line, the three claims at issue here are premised
on the scope of the work to be done under that contract; but, there is also a
dispute about that. These disputes, of course, bear heavily on there being
genuine disputes of material fact.
                                       1.
      Under the well-known standard for a negligence claim, OTM must
establish: Diversified owed OTM a duty; Diversified breached it; there is “a
causal connection between” Diversified’s breach and OTM’s injury; and, as a
result, OTM incurred damages. Canal Barge Co. v. Torco Oil Co., 220 F.3d
370, 376–79 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929 F.2d 1073,
1077 (5th Cir. 1991)). In that regard, as the district court noted, OTM concedes
it has not attempted to prove the “precise cause” of the engines’ malfunction;
instead, it maintains it presented sufficient evidence to create the requisite
genuine dispute of material fact for whether the claimed substandard
overhauls by Diversified caused the engines’ breakdown.
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                                  No. 15-30932
      As noted, in opposition to summary judgment, OTM must establish only
a genuine dispute of material fact for whether it is more probable than not that
Diversified was negligent (which, of course, includes causation) in performing
the duty owed OTM. See, e.g., Celtic Marine Corp., 760 F.3d at 481; Movible
Offshore Co. v. Ousley, 346 F.2d 870, 875 (5th Cir. 1965). In other words, at
this stage, OTM is not required to prove exactly which part failed, or disprove
that “the vessels’ other deteriorating parts or operator error” was not the cause
of the vessels’ breakdown, Operaciones, 127 F. Supp. 3d at 675, because OTM
showed a genuine dispute exists for whether Diversified’s inadequate repairs,
more probably than not, caused the engines’ malfunction.          See Marquette
Transp. Co. v. La. Mach. Co., 367 F.3d 398, 404–05 (5th Cir. 2004)
(circumstantial evidence need not disprove all other explanations, but must
allow for “strong inference[ ]” defendant’s negligence was the cause of
plaintiff’s damages).
      In that regard, OTM presented evidence the engines showed signs of
inadequate repair, which conflicted with the conclusions of Diversified’s
witnesses. For example, in his deposition, Stewart & Stevenson’s Guerrero
testified: he agreed with Santamaria that physical inspection of the engines
did not reveal “evidence of [their] having recently [been] rebuilt or overhauled”;
and, he saw no evidence of the crews’ alleged improper use of the engines.
Similarly, Lloyd’s Hoyos testified in his deposition that the apparent condition
of the engines in the surveyor’s photos was not that expected of engines
overhauled in the previous 500 hours. Merrion, OTM’s expert whose entire
deposition was not allowed to be included in the summary-judgment record
before the district court ruled on Diversified’s summary-judgment motion, also
stated in his report (as noted, submitted by Diversified) that he saw no
evidence of engine overhauls, and that the vessels’ first voyage after
Diversified’s repair “had a slight adverse effect on the engine conditions
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considering the low number of hours the engines operated, but cannot explain
the absence of evidence of an overhaul or rebuild”.
      Even considering the disputed evidence regarding causation, and as
referenced supra, a genuine dispute exists for Diversified’s duty under the oral
contract.   Obviously, this question is material to causation vel non.         If
Diversified had no duty to repair parts of the vessels because OTM rejected
those repairs, and those parts failed, then Diversified did not breach its duty
to OTM. If, on the other hand, OTM authorized all the recommended repairs,
then OTM must merely create a genuine dispute for whether Diversified failed
to repair the engines, as agreed, such that the repairs complied with the scope
of the contract. For example, as discussed supra, OTM’s Martinez testified
OTM authorized all of Diversified’s recommended repairs, in contrast with
Diversified’s maintaining OTM rejected important repairs.
      That summary judgment was not proper is supported by our court’s
opinion in Marquette Transportation Co., because, unlike here, the dispute in
that instance was decided through a bench trial. Id. at 401. The district court
ruled, and our court affirmed: in a competition between the parties’ reasonable
theories of causation, the evidence in support of the ship owners’ contention
the repair company had negligently repaired its vessels, thereby causing a
damaging fire, was insufficient to show negligence and causation. Id. at 400–
01 (citing Marquette Transp. Co. v. La. Mach. Co., No. CIV.A. 00-1504, 2002
WL 1809092 (E.D. La. 7 Aug. 2002)). In reaching its conclusion, the district
court relied on trial testimony concerning possible causes of the loose part at
issue, and who installed it.    Id.   Accordingly, because a genuine dispute
existed—each party presented reasonable theories, supported by evidence, of
what caused the damage—the matter was properly decided at a bench trial.
See id.


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                                   No. 15-30932
                                         2.
      The breach-of-WWLP claim requires OTM to show Diversified breached
“the essence of a contractor’s obligation[:] . . . the duty to perform the contract’s
obligations ‘properly and safely’”. Butterfly Transp. Corp. v. Bertucci Indus.
Servs. LLC, 351 F. App’x 855, 858 (5th Cir. 2009) (quoting Parfait v. Jahncke
Serv., Inc., 484 F.2d 296, 301 (5th Cir. 1973)). Additionally, OTM must show
Diversified’s breach of that warranty caused OTM’s injury. Id. Consequently,
as the court noted correctly, OTM’s burden for establishing its breach-of-
warranty claim is indistinguishable from that for its negligence claim. See id.
at 858 & n.1; Operaciones, 127 F. Supp. 3d at 674. Therefore, for the reasons
discussed above, summary judgment was improper against OTM’s breach-of-
WWLP claim.
                                         3.
      OTM asserts the court erred in failing to address its claim that
Diversified’s alleged failure to perform adequate repairs was a breach of
contract. We agree. “A ship repairer potentially faces three sources of liability
for repairs he performs improperly on a vessel. He may be liable in contract
for a breach of his expressly assumed obligations or for a breach of an implied
warranty of workmanlike performance that attaches to admiralty contracts[,]
. . . [as well as] for the maritime tort of negligence.” La Esperanza de P.R., Inc.
v. Perez y Cia. de P.R., Inc., 124 F.3d 10, 16–17 (1st Cir. 1997) (citing Alcoa
S.S. Co. v. Charles Ferran & Co., 383 F.2d 46, 50 (5th Cir. 1967)) (other
citations omitted).
      For this claim, the parties disagree whether federal or Louisiana law
governs. “It is well settled that a contract to repair a vessel is maritime”, Alcoa,
383 F.2d at 50; and oral contracts under maritime law are binding, Kossick v.
United Fruit Co., 365 U.S. 731, 733–34 (1961).


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                                No. 15-30932
       At minimum, the record shows a genuine dispute of material fact exists
for whether OTM received what it was owed under its contract. OTM paid,
inter alia, for three engines to be overhauled, and its experts reported the
engines did not show signs of recent repair. Moreover, as discussed supra, the
parties dispute Diversified’s obligations under the contract, and whether OTM
relieved it of any obligations by refusing certain repairs. That disagreement
underscores the remaining genuine dispute. For the reasons discussed supra,
a genuine dispute existed for whether Diversified breached its contract with
OTM.
                                     III.
       For the foregoing reasons, the judgment is AFFIRMED in part and
VACATED in part, and this matter is REMANDED for further proceedings
consistent with this opinion.




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