MEMORANDUM RULING

S. MAURICE HICKS, JR., District Judge.

Before the Court is a Motion for Summary Judgment (Record Document 198) filed by the United States of America ("the United States"), a third party defendant. The United States moves for summary judgment, arguing that Defendant Starcraft Marine, LLC ("Starcraft") cannot prove that negligence of the United States caused or contributed to Plaintiff Daniel J. Regan's ("Regan") injuries. See id. Starcraft opposes the motion. See Record Document 203. For the reasons which follow, the Motion for Summary Judgment is GRANTED and all of Starcraft's claims against the United States are DISMISSED.

BACKGROUND1

This is a maritime products liability and general maritime law negligence personal injury case. Regan was seriously injured on April 16, 2005, when he fell from the bow of a Starcraft pontoon boat designed, manufactured, and sold by Starcraft. Regan was a passenger on the pontoon boat, which was being operated on the Toledo Bend Reservoir by Defendant John C. Vandergriff ("Vandergriff").

In April 2005, both Regan and Vandergriff were Staff Sergeants in the United States Army, Missouri National Guard. Both were also assigned to Fort Polk in Leesville, Louisiana and served as members of Fort Polk's Military Police.

The subject pontoon boat is a 2004 model year Starcraft Holiday 200 Fish Hull Identification Number # STR80734F404 and designated by the United States Army as #35. Starcraft sold the subject boat and five identical pontoon boats to the United States through a broker, Earle Kinlaw Assoc., Inc. ("EKA") on or about April 22, 2004. The six boats were sold as a package and the United States paid $14,108 for each boat and Mercury outboardmotor.

The six boats were purchased from EKA, through the Nonappropriated Fund Procurement System, by the United States Army's Toledo Bend Morale, Welfare and Recreation ("MWR") Command, a Nonappropriated Fund Instrumentality located in Florien, Louisiana. The boats were to be used at Fort Polk's Toledo Bend MWR facility, which includes a boat rental operation that makes various types of recreational boats available for rent to members of the United States military.

Individuals who rent boats at the Toledo Bend MWR facility must be at least 18 years old and possess a valid safe boater card, which shows that the individual has taken and passed the United States Coast Guard Auxiliary Boater Safety Course. Prior to renting boats at the Toledo Bend MWR facility, Vandergriff passed the boater safety test, and was issued a safe boater card. The Toledo Bend MWR boat rental procedure includes an Operator' Briefing Checklist. The checklist included the following instructions:

Two weeks prior to Regan's accident, Vandergriff had rented a pontoon boat at the Toledo Bend MWR facility. He read the Operator's Briefing Checklist and put his initials on it. Vandergriff did not experience any problems with his boat rental that day.

On April 16, 2005, at 9:30 a.m., Vandergriff rented the subject pontoon boat from the United States's MWR facility at the Toledo Bend Reservoir. At that time, he was not on duty and was not acting for, or on behalf of, the United States. He was given and initialed the bottom of the Operator's Briefing Checklist. The United States contends that Vandergriff's initials signify his understanding of the rules and agreement to abide by the rules. See Record Document 198-2 at ¶ 9. Starcraft contests whether Vandergriff's signature signifies understanding. See Record Document 203 at ¶ 9.

At the time of Regan's accident, pontoon boat #35 was about 10 months old, and had been in the water at Toledo Bend for approximately 7-8 months prior to the accident. Between the date of purchase and the date of Regan's accident, civilian Army personnel performed the following maintenance and repairs to pontoon boat #35:

There were no modifications or repairs to the front gate or railing of pontoon boat # 35 prior to Vandergriff's April 16, 2005 rental.2

The United States now moves for summary judgment, arguing that Starcraft cannot prove that negligence of the United States caused or contributed to Regan's injuries. Alternatively, the United States moves for summary judgment pursuant to the Limitation of Liability Act, which would exonerate the United States from liability or limit its liability to the value of the pontoon boat involved in the accident.

LAW AND ANALYSIS

I. Summary Judgment Standard.

Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a 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." Id., 477 U.S. at 322, 106 S.Ct. at 2552. If the party moving for summary judgment fails to satisfy its initial burden of demonstrating the absence of a genuine issue of material fact, the motion must be denied, regardless of the nonmovant's response. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). If the motion is properly made, however, Rule 56(c) requires the nonmovant to go "beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial." Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citations omitted). The nonmovant's burden may not be satisfied by conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla of evidence. See Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047. All factual controversies must be resolved in favor of the nonmovant. See Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 456 (5th Cir.2005).

Here, Starcraft's claims against the United States would be tried either by the Court or by using an advisory jury.3 In certain nonjury cases, there is an even more lenient standard for summary judgment. See Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15 (5th Cir.1987). The Fifth Circuit elaborated on this more lenient standard:

Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir.1991), citing Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978). The rationale of this more lenient standard is based on the principle that it makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts. See id. "If a trial on the merits will not enhance the court's ability to draw inferences and conclusions, then a district judge properly should draw his inferences without resort to the expense of trial." Id.

II. Negligence/Unseaworthiness.

Starcraft alleges that the United States was negligent or at fault in the following ways:

Record Document 223 at 12-13. Maritime tort law, which embodies general principles of negligence, governs the instant matter. See In re Signal Int'l, LLC, 579 F.3d 478, 491 (5th Cir.2009). "To prove negligence under the general maritime law, the plaintiff must demonstrate the following:

In re Nassau Bay Water Sports, Inc., 1995 WL 449710, *4 (emphasis added). Starcraft's evidentiary burden in its negligence claim is to show that the United States' conduct was, more likely than not, the cause of Regan's injuries. See QT Trading, LP v. M/V Saga Morus, No. 09-702, 2010 WL 2488983, *6 (S.D. Tex. June 15, 2010), citing Marquette Transp. Co. v. La. Machinery Co., 367 F.3d 398, 402 (5th Cir.2004).

Negligence/Fault

Starcraft contends that the United States was negligent or at fault because it selected the wrong model boat.4 Even if this Court assumes that the United States was somehow negligent in selecting a fishing model pontoon boat, which has a 19 inch rail height, rather than a cruise model pontoon boat, which has a 27 inch rail height,5 Starcraft's argument fails due to causation. Starcraft's own expert testified that a higher rail would not have prevented Regan's accident:

Record Document 198, Exhibit 11 at 224-225 (emphasis added). While Starcraft's cruise model pontoon boats are indeed equipped with an 8 inch higher rail at the bow, Starcraft's own expert has conceded that it would have taken a cage to keep Regan on the boat. See id. Thus, Starcraft has not met its burden of establishing that the United States' selection of a fish model pontoon boat was, more likely than not, the cause of Regan's injuries.

Next, Starcraft contends that the United States did not effectively convey and/or enforce its established boating rules and procedures relating to the rental and use of pontoon boat # 35. Starcraft contends that this "negligence" is evidenced by Vandergriff's alcohol consumption; the Vandergriff party's failure to return to the MWR at the appointed time;6 the passengers failure to remain seated while the boat was underway;7 Vandergriff allowing another passenger to operate the boat; and the MWR personnel's failure to review the Operator's Briefing Checklist.8 Again, despite these alleged negligent acts, Starcraft's own expert, Augusto Villalon ("Villalon"), conceded that it would have been Vandergriff's responsibility, not the United States, to enforce the rules set forth in the Operator's Briefing Checklist once the boat was underway. See Record Document 198, Exhibit 11 at 274-275. Villalon further stated that he was not aware of any reason why the Army should not have entrusted Vandergriff to follow and enforce the rules that were given to him when he rented the pontoon boat. See id. at 275. These rules included:

Id., Exhibit 3. Finally, in his expert report, Villalon stated:

Id., Exhibit 14. The law simply does not require the MWR to anticipate, and warn against, every potential danger or mistake a boater may make. See Craine v. U.S., 722 F.2d 1523, 1525 (11th Cir.1984); In re: Fun Time Boat Rental & Storage, LLC, 431 F.Supp.2d 993, 1001 (D.Ariz.2006).

Starcraft also maintains that the United States did not properly instruct9 and warn Vandergriff and the passengers about the operation of the boat. The core of this argument relates to warnings to passengers not to sit in the bow seats while the boat is underway. In its opposition, Starcraft argues:

Record Document 203 at 17. It appears that Starcraft is asserting that the United States had a legal duty "to warn about all the possible dangers on board the boat." Id. (emphasis added). "The law imposes no requirement that one who rents equipment such as a boat or vehicle instruct . . . on every possible danger that could be faced." Craine, 722 F.2d at 1525. Rather, general principles of maritime law call for a shipowner to "exercise such care regarding a non-crew member as is reasonable under the circumstances." In re: Fun Time Boat Rental & Storage, LLC, 431 F.Supp.2d at 1001.

Here, pontoon boat # 35 came equipped with warnings, including:

Record Document 198, Exhibit 16. Additionally, MWR's Operator's Briefing Checklist advised that passengers should "stay seated while underway." Record Document 198, Exhibit 3. Starcraft has simply not produced sufficient summary judgment evidence to establish that additional warnings were legally required given the specific warning sign on the boat itself and the warning set forth in the Operator's Briefing Checklist.

Starcraft also attacked the United States' maintenance procedures, arguing that it did not properly maintain the vessels used at the MWR facility and/or the maintenance procedures contributed to the subject accident. In opposing the Motion for Summary Judgment, Starcraft does not adduce summary judgment evidence to attack the condition or maintenance procedures relating to the front railing of the subject pontoon boat. See Record Document 203 at 11-12. Instead, it focuses on the lack of an operational radio, alterations to or lack of a ladder, and MWR general maintenance procedures. See id. As set forth infra, there is simply no causal connection between the lack of an operational radio and Regan's injuries. Further, while there is record evidence that there was a ladder on the subject pontoon boat on the day of the accident, Starcraft's expert stated in his deposition that the absence of a ladder did not cause or contribute to the accident:

Record Document 213, Exhibit 2 at 259. Starcraft's attack on general maintenance procedures is also insufficient to defeat summary judgment. The United States has come forward with undisputed summary judgment evidence regarding the maintenance of pontoon boat # 35, establishing that at the time of Regan's accident, pontoon boat #35 was about 10 months old and had been in the water at Toledo Bend for approximately 7-8 months prior to accident. Between the date of purchase and the date of Regan's accident, civilian Army personnel performed regular maintenance and repairs to pontoon boat # 35, including oil changes, repairs to a side door latch, and fuse replacement. There were no modifications or repairs to the front gate or railing of pontoon boat # 35 prior to Vandergriff's April 16, 2005 rental. Starcraft does not dispute these facts, but rather "clarifies" that it has no first hand knowledge of whether any other maintenance and repairs were made. See Record Document 203 at 26 (¶ 6). When asked about the Army's maintenance of pontoon boat # 35, Villalon, Starcraft's expert, testified: (1) he is not aware of any evidence that the Army had made any changes to the front gate of pontoon boat #35 prior to the accident; (2) he is not aware of any evidence that the gate was broken or damaged in any way at the time the boat was rented to the Vandergriff party; and (3) he is not aware of any evidence that the boat was not in good condition at the time it was rented to Vandergriff. See Record Document 198, Exhibit 11 at 235, 253, 262. Therefore, Starcraft's conclusory allegations as to general maintenance procedures are insufficient to withstand summary judgment. See Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1266 (5th Cir.1991) ("Summary judgment, to be sure, may be appropriate, even in cases where elusive concepts such as motive or intent are at issue, if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.").

Finally, Starcraft maintains that the United States was negligent or at fault because it failed to enforce the posted weight capacity of the subject boat. As set forth more fully infra, two experts in this matter have testified that the weight of the individuals on the subject boat played no role in the accident because the weight of the passengers would not impact the handling or performance of the boat. See Record Document 213, Exhibit 2 at 135-136; Record Document 203, Exhibit G at 178. Therefore, Starcraft has failed to establish that any failure to enforce the posted weight was, more likely than not, the cause or a contributing factor of Regan's injuries.

Unseaworthiness

Starcraft further contends that the subject pontoon boat was unseaworthy because the radio was not working and because the boat was overloaded. To establish causation for unseaworthy claims, Starcraft "is required to establish a causal connection between [Regan's] injury and the breach of duty that rendered the vessel unseaworthy." Nunez v. Weeks Marine, Inc., No. 06-3777, 2009 WL 1789437, *2 (E.D.La. June 19, 2009), citing Gavagan v. U.S., 955 F.2d 1016, 1020 (5th Cir.1992) ("To establish the requisite proximate cause in an unseaworthiness claim, a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness."). Here, even if the Court assumes the existence of unseaworthy conditions, Starcraft has not adduced sufficient summary judgment evidence to establish the requisite causal connection between the unseaworthy conditions and Regan's injuries.

There is record evidence that Vandergriff was running late in returning the subject pontoon boat to the rental facility because he had gotten lost. Starcraft argues that if the radio has been operational, Vandergriff or one of his passengers could have contacted the MWR for assistance or the MWR could have contacted Vandergriff to inquire as to his tardiness. Starcraft further contends:

Record Document 203 at 16. This argument is simply implausible in light of the causation standard set forth above. Starcraft has presented no summary judgment evidence that Vandergriff tried to contact the MWR prior to the accident or that the MWR tried to contact the Vandergriff party to inquire as to his location prior to the accident. Starcraft has failed to establish the requisite proximate cause, that is, that an inoperable radio "played a substantial part in bringing about or actually causing" Regan's injuries and that Regan's injuries were "either a direct result or a reasonably probable consequence of the unseaworthiness." Gavagan, 955 F.2d at 1020.

Starcraft's overloading argument likewise fails due to causation. Starcraft's own expert opined that he believed that "the amount of poundage of the people on the [subject] boat" played no role in the accident. See Record Document 213, Exhibit 2 at 135-136 (emphasis added). Robert Swint, one of Regan's experts, has also reached the same opinion, stating in his deposition that the weights of the individuals on board would have no effect on the handling or performance of the subject boat. See Record Document 203, Exhibit G at 178 (emphasis added). Therefore, Starcraft's conclusory assertion that overloading caused the accident is insufficient to create a genuine issue of material fact.

CONCLUSION

The Court finds that Starcraft has failed to present competent summary judgment evidence establishing a genuine issue of material fact as to whether any negligence or fault on the part of the United States caused or contributed to Regan's injuries. Accordingly, the Motion for Summary Judgment (Record Document 198) filed by the United States of America is GRANTED and all of Starcraft's claims against the United States are DISMISSED.10

An order consistent with the terms of the instant Memorandum Ruling shall issue herewith.