Opinion
Civil Action No. 03-0791, Section: I/3.
October 18, 2004
ORDER AND REASONS
Before the Court is the motion of defendants, Ocean Rig I A/S, Ocean Rig, Inc., Ocean Rig A/S/A, and U.S. Ocean Rig, Inc. (collectively "Ocean Rig"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion for summary judgment is DENIED IN PART and GRANTED IN PART.
Rec. Doc. No. 73.
Background
Plaintiff, Willie J. Garry ("Garry"), filed this vessel negligence action after allegedly being injured on board the M/V LEIV ERIKSSON in September, 2001. At the time of the accident, the vessel was in the Gulf of Mexico near the mouth of the Mississippi River engaged in final sea trials of various equipment. Construction of the vessel was approximately ninety-eight (98) to ninety-nine (99) percent complete. Garry was employed by Friede Goldman Offshore, Inc. ("Friede Goldman"), a completion and outfitting contractor, as a labor foreman who supervised a crew. Garry and his crew performed cleaning duties aboard the vessel in preparation for its completion. One of the tasks assigned to Garry was to empty fluids from the ST3 compartment, an unused or "future" thruster compartment. The fixed pump that normally would have been used to empty the ST3 compartment had failed. The LEIV ERIKSSON's 1st Assistant Engineer, David Cusiter, once notified that the fluids could not be pumped out of the thruster room, allegedly instructed Garry to remove the fluid however plaintiff saw fit. Garry and his crew then removed the fluids by hand, using five gallon buckets.Rec. Doc. No. 73. Friede Goldman was contracted to complete the drilling rig, including the modification of the hull, the installation of the rig's component parts, and cleaning the rig in preparation of turning the rig over to Ocean Rig at completion. Garry's crew varied in size, ranging from five to sixty persons.
Rec. Doc. Nos. 73 and 77. The fluid or "bilge water" was comprised of oil, rain water, hydraulic fluid, and other liquids.
Id. The pump was unable to pump the high viscosity oil. Id. at 4.
Rec. Doc. No. 73, exhibit 1, deposition of Cusiter, p. 52. Garry also testified at his deposition that Cusiter instructed him to remove the fluid. Rec. Doc. No. 77, exhibit A, deposition of Garry, pp. 73-75. Testimony of a member of Garry's crew corroborates that Cusiter generally instructed Garry to remove the fluid. See Rec. Doc. No. 77, exhibit C, deposition of Jereyman D. Brown, p. 31 (answering that Cusiter said, "Get it out. I don't care how you get it out. . . .").
Rec. Doc. No. 73.
The ST3 compartment, located approximately eight (8) feet below a raised catwalk, was not equipped with a fixed ladder. Plaintiff alleges that he and another crew member attempted to acquire a mobile ladder but that they could not get the ladder to the thruster area. Without a ladder, Garry and his crew accessed the compartment by climbing over the walkway handrail, stepping down to a structural bulkhead, and then stepping down into the fluid-filled compartment. On September 10, 2001, while working to remove the fluids, Garry allegedly slipped on the bulkhead, fell several feet to the bottom of the compartment, and twisted his knee.
Rec. Doc. No. 73, exhibit 3, p. 167. Garry testified that he "tried to get a ladder," that he "saw one up on the upper deck," but "it wouldn't fit in the elevator."
Rec. Doc. No. 77, exhibit A.
Rec. Doc. No. 77, memorandum in opposition to defendants' motion for summary judgment, p. 5. Specifically, plaintiff alleges that the fall caused a tear of his anterior cruciate ligament (ACL) in his right knee. Garry has received extensive medical treatment, including four knee operations. Rec. Doc. No. 77, exhibit E.
1. Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith 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). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (internal quotation omitted).In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by [his or] her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file, `designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The mere existence of a scintilla of evidence on the non-moving party's position is insufficient to defeat a properly supported motion for summary judgment, and the non-movant may not rely on mere allegations and denials. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202 (1986). The non-moving party must present evidence upon which a reasonable jury could reasonably find for the non-mover. Id. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed.2d 695 (1990)).
Moreover, this Court must enter summary judgment for a party when the nonmoving party "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, 2552, 91 L. Ed.2d 265 (1986). "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552; Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim") (citation omitted).
2. Vessel Owner Negligence pursuant to the Longshore and Harbor Worker's Compensation Act
The right of ship repairers, longshoremen, and other persons covered by the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq, to sue a vessel owner for negligence arises exclusively under 33 U.S.C. § 905(b). The duty of a vessel owner to LHWCA-covered employees of independent contractors working aboard vessels is governed by the principles enunciated by the United States Supreme Court in Scindia Steam Navigation Co. v. De Los Santos (" Scindia"), 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed.2d 1 (1981). See Lormand v. Superior Oil Co., 845 F.2d 536, 541-42 (5th Cir. 1987); Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) (applying the LHWCA and Scindia to a LHWCA-covered employee of an independent contractor working aboard a vessel). Because plaintiff meets the LHWCA's status and situs requirements for coverage, his negligence claim against the vessel owner is governed by section 905(b). See 33 U.S.C. §§ 902(3), 903(a); Herb's Welding v. Gray, 470 U.S. 414, 420, 105 S. Ct. 1421, 1425, 84 L. Ed.2d 406 (1985).
Section 905(b) provides in relevant part:
33 U.S.C. § 905(b).
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
Pursuant to 33 U.S.C. § 902(3), an employee covered under the statute is "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including ship repairman . . . ." An employee as defined in section 902(3) is entitled to compensation pursuant to the LHWCA if he suffers "injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)." 33 U.S.C. § 903(a).
Plaintiff was engaged in maritime employment as a labor foreman on board the LEIV ERIKSSON. 33 U.S.C. § 902(3).
The location of plaintiff's injury falls within the coverage venue of the statute. 33 U.S.C. § 903(a).
In Lormand v. Superior Oil Company, the Fifth Circuit reiterated the three general Scindia duties applicable to section 905(b) claims:
The Court in Scindia explained that at the outset, prior to the commencement of the worker's operations, the shipowner has a duty to exercise `ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety.' 101 S. Ct. at 1622. The shipowner also has a duty at the outset to warn the stevedore or independent contractor of hidden dangers. Id.; Theriot v. Bay Drilling Corp., 783 F.2d 527, 535 (5th Cir. 1986). Once the employees of the stevedore or independent contractor begin working, however, the vessel owner has no general duty to discover dangerous conditions that develop within the confines of their operations. Scindia, 101 S. Ct. at 1624; Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 213 (5th Cir. 1984). The Court specifically relieved the vessel owner of any duty, absent custom, law, or contractual provision to the contrary, to inspect or supervise the operations of the stevedore's or independent contractor's employees. Scindia, 101 S. Ct. at 1624.
Scindia also created an exception to these principles, however, finding that where two conditions are present, a vessel owner retains a duty to intervene with respect to obvious dangers that arise in areas outside his control and after the workers' operations have begun. This duty attaches only when the vessel owner has (1) actual knowledge that a dangerous condition exists and (2) actual knowledge that the stevedore or independent contractor, or its employees, cannot be relied upon to remedy the condition, and that if unremedied it will pose a substantial risk of injury. Id. at 1626-27; Barrios v. Pelham Marine, Inc., 796 F.2d 128, 131 (5th Cir. 1986). Lormand, 845 F.2d at 542.
Essentially, Fifth Circuit law interprets Scindia to outline three duties owed to longshoremen by vessel owners: 1) the "turnover duty," which relates to the condition of the ship upon the commencement of the contractor's operations; 2) the "control duty," which requires a vessel owner to prevent injuries to longshoremen in areas remaining under the "active control" of the vessel; and 3) the "duty to intervene," which concerns the vessel's obligation in areas under the principal control of the contractor. Moore v. Angela MV, 353 F.3d 376, 380 (5th Cir. 2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S. Ct. 2057, 129 L. Ed.2d 78 (1994)). Plaintiff asserts that defendants breached all three of these duties by not providing a ladder, instructing Garry to perform a dangerous task, and not preventing Garry from undertaking the obviously dangerous work. Defendants have moved for summary judgment with respect to each of the three Scindia duties.
A. The Turnover Duty
The turnover duty, which relates to the condition of the ship upon commencement of the contractor's operations, requires a vessel owner to exercise due care under the circumstances to have the vessel and its equipment in such a condition that the worker can perform his duties with reasonable safety. See Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S. Ct. 2057, 2063, 129 L. Ed.2d 78 (1994) (duty applies "upon the commencement of stevedoring operations"). Most turnover duty cases concern the condition of the ship itself or its equipment. 512 U.S. at 98, 114 S. Ct. 2064. However, this duty may not extend to open and obvious dangers, unless the longshoreman's only alternatives when faced with an openly dangerous condition would be to leave his job or face trouble for delaying the work." Harris v. Flota Mercante Grancolombiana, 730 F.2d 296, 299 (5th Cir. 1984) (citations and quotations omitted); see Moore, 353 F.3d at 381 (exception does not apply if "only alternatives to facing hazard are unduly impracticable or time-consuming or would force [longshoreman] to leave the job"). A danger is considered open and obvious if the longshoreman knew of the condition or defect. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246 (5th Cir. 1997).
Defendants contend that they did not breach their duty to turn over a safe vessel because the hazard causing plaintiff's injury was open and obvious and plaintiff was responsible for remedying the hazard. Plaintiff submits that Ocean Rig failed to provide a ladder or other safe means for accessing the bottom of the compartment; however, plaintiff does not assert that there was any hidden defect.
Plaintiff relies on Pluyer v. Mitsui S.K. Lines, Ltd., 664 F.2d 1243 (5th Cir. 1982), for support of his contention that Ocean Rig was negligent for failing to provide a ladder, notwithstanding the obvious and openly dangerous nature of the thruster area. In Pluyer, the Fifth Circuit distinguished the facts of that case from Scindia, and found the shipowner liable for furnishing a defective ladder. Id. at 1246 (vessel owner provided a ladder without grips). The Pluyer court characterized the shipowner's negligence as "active" and recognized that the hazard antedated or was coincident with the turnover of the vessel. Id.
This case involves a clearly different situation than the one in Pluyer. Plaintiff has introduced no evidence that suggests active negligence on the part of Ocean Rig. The evidence proffered merely establishes that Cusiter, an Ocean Rig supervisor, broadly instructed Garry and his crew to empty the liquid out of the thruster. Ocean Rig did not provide Garry any means for performing the task. Instead, Garry, as labor foreman, was left to design a method to accomplish the job. Without evidence of active negligence, the traditional Scindia turnover duty rule applies. The Court finds that the condition of the vessel and its attendant dangers were open and obvious, i.e., the thruster area had no fixed ladder, the compartment was located eight feet below the catwalk, it contained oil and other fluids, and the ship had not yet been completed.
In order to overcome the open and obvious danger exception to the turnover duty, Garry needs to identify evidence supporting his claim that he was left with no alternatives but to undertake the dangerous task or face losing his job or reprimand See Harris, 730 F.2d at 299. The only evidence plaintiff presents to this effect is his own deposition testimony that Cusiter was "as high as it gets" in the Ocean Rig vessel hierarchy. However, there is no evidence that Cusiter or Ocean Rig had the authority to fire or reprimand Garry. As Friede Goldman's employee and in the absence of evidence to the contrary, the Court does not find that Garry would have lost his job, unreasonably impeded work, or even been reprimanded if he had pursued another method of accessing the thruster. Plaintiff has failed to submit sufficient evidence to overcome this exception to the turnover duty.
Rec. Doc. No. 73, exhibit 3, p. 76.
Rec. Doc. No. 73, exhibit 1, p. 167. Plaintiff testified that after attempting to get a ladder from the upper deck, he did not ask anyone for a ladder.
B. The Control Duty
The second Scindia duty requires vessel owners to exercise reasonable care to prevent injuries in areas that remain under the active control of the vessel. Howlette, 512 U.S. at 98, 114 S. Ct. at 2036. "This duty recognizes that although a vessel owner no longer retains the primary responsibility for safety in a work area turned over to an independent contractor, no such cessation results as relates to areas or equipment over which the vessel's crew retains operational control." Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir. 1997).
Ocean Rig submits that the area where plaintiff was injured was not under defendants' active control and Ocean Rig did not have a duty to supervise. Defendants also argue that they had not taken full control of the vessel. Plaintiff suggests that Garry and his crew were performing almost the entirety of their duties pursuant to the active direction of Ocean Rig supervisors.
Defendants argue that this case falls under an exception to the control duty; an owner cannot be held liable to a repair contractor hired to repair the danger inherent in carrying out the contract. See Stass v. Am. Commercial Lines, Inc., 720 F.2d 879, 883 (5th Cir. 1983). The Court finds Stass and other repair exception cases inapposite. None of the facts indicate that Friede Goldman was a repair contractor. The ship was being completed, not having a danger repaired.
Rec. Doc. NO. 73, exhibit 1, pp. 40-45.
Rec. Doc. No. 77, p. 10.
Garry testified that he reported directly to Ocean Rig supervisors daily. Cusiter concedes that he broadly instructed the crew working in the ST3 thruster to clean the fluid out despite the fact that the area had no fixed ladder and the pump was not working to empty the compartment. Furthermore, Cusiter's deposition testimony reflects that the thruster area was a technical area over which he had control. Plaintiff has raised a genuine issue of material fact with respect to the issue of Ocean Rig's control duty over the thruster area.
Rec. Doc. No. 77, exhibit A, pp. 61, 75-76. Garry further testified that although he was employed by Friede Goldman, once he was on board the vessel he worked for Ocean Rig. Id. at p. 75.
Rec. Doc. No. 73, exhibit 1, pp. 14-15.
C. The Duty to Intervene
The duty to intervene requires a vessel owner, who knows that a contractor is engaged in hazardous work of "obviously improvident judgment," to eliminate or neutralize the hazard. Scindia, 451 U.S. at 175, 101 S. Ct. at 1626. The duty to intervene is narrowly construed and requires more than mere knowledge of a dangerous condition. Greewood v. Societe Francaise De, 111 F.3d 1239, 1249 (5th Cir. 1997). Improvident judgment that is obvious requires the contractor to use something so hazardous that anyone can tell that its continued use created an unreasonable risk of harm even when the knowledge and skill of the contractor is taken into consideration. Id. Plaintiff must prove actual knowledge of the dangerous defect and the contractor's continuing use of the defective item as well as actual knowledge that the defect posed an unreasonable risk of harm and that the owner could not rely on the contractor to correct the problem. See Greenwood, 111 F.3d at 1249; Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982).
Ocean Rig asserts that they did not breach the duty to intervene because they had neither actual knowledge of the contractor's obviously improvident judgment nor actual knowledge that the contractor failed to correct the problem. There is slight evidence that Ocean Rig had knowledge of the "bucketing" operations. While Cusiter testified that he told the crew to clean out the thruster and that he left and did not return that day, Garry testified that Cusiter may have returned to the area as the crew was climbing down into the compartment.
Rec. Doc. No. 77, exhibit D, pp. 23-24. Cusiter testified that he had no recollection as to how Garry was accessing the compartment. Cusiter also testified that if he had seen Garry and his crew performing a task in an improper manner, then he would have told them to do it differently. Id., p. 17.
Rec. Doc. No. 73, exhibit 3, p. 83. Garry's own testimony is not definitive.
Even assuming Ocean Rig had actual knowledge of Garry and his crew's improvident method for accessing the bottom of the ST3 compartment, which has not been established by competent summary judgment evidence, plaintiff does not dispute that he had access to a number of mobile ladders aboard the vessel. However, the evidence indicates that Garry only attempted to retrieve one but could not fit it into an elevator. Other than plaintiff's conclusory allegations, plaintiff presents no evidence that Ocean Rig could not rely on Friede Goldman to protect its employees. Therefore, there is not sufficient evidence to support liability under the third Scindia duty.
Conclusion
Applying the principles of Scindia and its progeny, there is competent evidence in the summary judgment record that Ocean Rig, the vessel owner, may have breached its duty to exercise reaonsable care in an area that remained in Ocean Rig's active control. However, there are no genuine issues of material fact with respect to whether the ship and/or its equipment was unsafe for the plaintiff's work when the vessel was turned over to the contractor. Further, plaintiff has not created a genuine issue of material fact with respect to whether defendant breached its duty to intervene. Accordingly,
IT IS ORDERED that defendants' motion for summary judgment with respect to the duty to intervene and the turnover duty is GRANTED. IT IS FURTHER ORDERED that defendants' motion for summary judgment with respect to the control duty is DENIED.