Court sides with boat towing company in indemnity case

By Charmaine Little | Nov 26, 2018

On Nov. 16, the U.S. District Court for the Eastern District of Louisiana denied a maritime company’s motion for partial summary judgment in an indemnity case that sparked after a boat accident.

While John W. Stone Oil Distributor LLC was the one to sue Penn Maritime Inc. and Bisso Towboat Co. Inc. after one of Penn’s boats (the Caribbean) ran into one of JWS Oil’s barges, the current dispute is Penn seeking a motion for partial summary judgement which was filed to get Bisso’s contractual defense and indemnity cross-claims against it dismissed. Penn said it never consented to a Tariff/Towage contract with Bisso that includes an indemnity provision. It added the indemnity clause would be voided anyway because Bisso allegedly didn’t follow directions during a task leading up to the accident, which allegedly caused the actual collision. Still, the court denied Penn’s motion.

“The Bisso towboat was assisting a vessel that was moving on its own power and was taking orders from the captain of the vessel,” the court pointed out as it shut down Penn’s argument that the indemnity clause is void. “Further, the contract here is not adhesionary because the parties had equal bargaining power and Kirby/Penn had the choice of over services.”

While Penn said it didn’t sign on to the Terms and Conditions in Bisso’s Tariff/Towage contract, so therefore it never agreed to the actual terms, the court said an agreement doesn’t actually have to be in writing. It went as far to say that most towage contracts are instead expressed verbally. Plus, Kirby/Penn never challenged the Terms and Conditions, even though it did admit that it received them.

As for Penn’s allegation that Bisso didn’t follow instructions, it failed to prove Bisso did so intentionally. With each of these arguments in mind, the court denied Penn’s motion for partial summary judgment.

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