UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-31107

CONTICARRIERS AND TERMINALS, INC., ET AL,

Plaintiffs,

VERSUS

VENFLEET, LTD., ET AL,

Defendants

VENFLEET, LTD; HANSEATIC SHIPPING COMPANY, LTD; M/T EOS,

her engines, tackle, apparel, furniture, etc., in rem,

Third Party Plaintiffs - Appellants,

VERSUS

CENAC TOWING COMPANY, INC.,

Third Party Defendant - Appellee

CITY OF NEW ORLEANS, ETC.,

Plaintiff,

VERSUS

VENFLEET, LTD., ET AL,

Defendants

VENFLEET, LTD.; HANSEATIC SHIPPING COMPANY, LTD.; M/T EOS

her engines, tackle, apparel, furniture, etc., in rem,

Third Party Plaintiffs - Appellants,

VERSUS

CENAC TOWING COMPANY, INC.,1 Pursuant to 5th Cir. R. 47.5, the Court has determined that

this opinion should not be published ad is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

2 Third Party Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

94-CV-727

December 1, 1997 Before GARWOOD, DUHÉ, AND DeMOSS, Circuit Judges

PER CURIAM: 1

In its third attempt to obtain a summary judgment, third-party

defendant Cenac Towing Company, Inc. (“Cenac ”) achieved success.

Upon review, we determine that genuine issues of material fact

still exist. Regrettably, the third time is not the charm for

Cenac.

I.

On February 22, 1994, the M/T EOS (“EOS”), traveling downriver

on the M ississippi River, allided with the Orleans Parish water

intake wharf and then st ruck barges owned by plaintiff

ContiCarriers and Terminals, Inc. (“ContiCarriers”), near the

Ca rrollton Bend of the river at Nine Mile Point (“Carrollton

Bend”). ContiCarriers sued Venfleet, Ltd., and Hanseatic Shipping

Co., Ltd. (collectively “Appellants”), the owners and operators of

the EOS for damages to its barges and cargo. The Appellants denied

liability and filed a third party complaint against Cenac Towing

Co., Inc. (“Cenac”), asserting that the allision was caused when a3

tugboat operated by Cenac, while pushing two “red flag” barges

across the ri ver, “embarrassed” the navigation of the EOS and

caused her to allide with the wharf and the ContiCarrier barges.

Cenac answered, asserting that the AMMIE CENAC was not in the

Carrolton Bend area at the time of the acci dent and that the

accident was instead caused by the faulty navigation of the EOS’

river pilot.

The di strict court denied Cenac’s first two motions for

summary judgment, finding there were disputed f actual issues

remaining. Its thi rd motion relied on evidence presented in the

earlier motions as well as deposition excerpts from its tugboat

captain, Jose ph Trosclair, (“Trosclair”) and the relief captain,

Paul Robin, both of whom claimed no personal recollection of the

alleged event. The Appellants relied on previously submitted

evidence, introducing no new evidence in opposition to this third

motion for summary judgment. Rather, they argued that the two

depo sition excerpts proved nothing new and pointed to the AIMEE

CENAC’s log, already in evidence, which Trosclair admitted did not

show all alterations of the boat’s speed. Appellants contended

that simple calculations based on time and location points

preceding the accident could well place the tug at the Carrollton

Bend site at the time of the accident.

We agree with Appellants that the evidence before the district

court on the third motion for summary judgment did not dispel

factual disputes and that a genuine issue exists as to the location4

of the AMMIE CENAC at the time of the accident. We hold that the

district court applied an incorrect standard in examining the

evidence before it and improperly granted Cenac’s motion.

II.

We review de novo an appeal from an entry of summary judgment.

Summary judgment is appropriate only 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 mo ving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c). In resolving

the motion, the court may not undertake to evaluate the credibility

of the witnesses, weigh the evidence, or resolve factual disputes;

so long as the evidence in the record is such that a reasonable

jury drawing all inferences in favor of the nonmoving party could

arrive at a verdict in that party’s favor, the court must deny the

motion. Anderson V. Liberty Lobby , 477 U.S. 242, 255 (1986).

III.

It is clear from its opinion that the district court has

engaged in weighing evidence. The court’s order granting summary

judgment included the statement “...Cenac provided expert testimony

to prove that the tug was well beyond the point where the alleged

embarrassment occurred.” Appellants, however, pointed to the

AIMEE CENAC’s log indicating that earlier notations o f time and

locations that day could be inter preted to place the tug at the2 See International Shortstop, Inc. v. Rally’s, Inc.

, 939 F.2d

1257, 1264 (5th Cir. 1991).

3 Id.

4 Id. at 1263-64.

5 allision site at the proper time and to Cenac statements that

reduction in speed over periods shorter than 30 minutes were not

recorded. The district court accepted Cenac’s evidence and

rejected the Appellants’. The court failed to regard facts

presented in the light most favorable to the nonmovants and

impermissibly weighed the evidence and resolved a factual dispute

in a summary judgment proceeding. 2

In response to Cenac’s motion, the Appellants c ame forward

with their own evidence, previously su bmitted, establishing the

element in dispute

- the location of the AIMEE CENAC at the time of

the allision. 3 Additionally, the Appellants also point to

inconsistencies in the evidence off ered by the movants that

e stablish a disputed material fact. 4 That the log is subject to

more than one interpretation is a n inconsistency sufficient to

preclude summary judgment.

Material facts regarding a second issue, whether the tug that

allegedly caused the allision was a Cenac tug, also remain in

dispute. The EOS pilot recalls a tug with two red flag barges; a

vessel upstream from the EOS described it as a Cena c tug bearing

the Cenac colors. The traffic logs that day indicate a Cenac

vessel moving upstream on the river pushing either one or two red5 Anderson v. Liberty Lobby, Inc. , 477 U.S. at 252.

6 flag barges. Cenac admits that the AIMEE CENAC, pushing two red

flag barges, was on the r iver that day. Her log reflects no

incident; her captain has no personal recollection of an incident;

her relief pilot was asleep during the time in question. The EOS

pilot indicated the embarrassing tug wa s being tied off at T. T.

Barge Cleaning, Inc., as he entered the Carrollton Bend area, but

an official at the facility confirmed that his records showed no

Cenac vessel present on that day. The tug’s log reflects no tieup. A photograph taken by a ContiCarrier employee from 10 to 20

minutes after the accident shows a red and white tug pushing what

could be a crane barge; no red flag barges, however, are visible in

the sho t. Cenac denies pushing a crane barge that day. These

differences reflect factual disputes that are not to be resolved on

summary judgment.

Summary judgment does not require a movant to prove his case;

he must demonstrate there is “no genuine issue of material fact.”

The non-movant is not charged with refuting the defendant’s proof

-

in this case that there was no Cenac tug involved in this incident.

The Appellants’ burden is only to direct the court’s attention to

evidence in the record, and when all inferences are drawn in their

favor, show that a reasonable jury could arrive at a verdict in

that party’s favor. 5 We hold that the Appellants have submitted

evidence that establishes the existence of genuine issues of fact

-7

whether the AIMEE CENAC was the vessel present at Carrollton Bend

at the time of the accident. The granting of summary judgment was

improper. We reverse and remand.

REVERSED AND REMANDED.