Opinion
No: 99-2073
June 1, 2000
MINUTE ENTRY
Before the court is the "Motion for Summary Judgment" filed by Petitioner-in Limitation, Cargill, Inc. Claimant, Byron Parker, filed a memorandum in opposition. The motion, set for hearing on Wednesday, May 32, 2000, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court finds that the motion should be denied, but that it is a close call.
I. Background
On or about February 17, 1998, Claimant Byron Parker was employed as a deckhand aboard the M/V MELISSA LEE, a vessel owned and operated by his employer LL Marine Transportation (LL). LL was under contract with Cargill to provide tugboat services to Cargill's grain elevator service located on the Mississippi River. The M/V MELISSA LEE transferred barges across the Mississippi River from a fleet of barges to and from Cargill's elevator.
Once the barges were unloaded at the elevator, the M/V MELISSA LEE transferred the empty barges back to the fleet, where they would remain until taken to the cleaning facility (which is also located in the fleeting area of the Mississippi River across from the elevator). Claimant Parker alleges that, while the M/V MELISSA LEE was putting one of these empty barges back into the fleet, he was attempting to board an empty tow from the M/V MELISSA. LEE, when he slipped on wet and moldy grain on the deck.
Parker ultimately filed suit in state district court (in the Parish of St. John the Baptist, State of Louisiana) against both LL and Cargill. Cargill then filed in this court a Complaint for Exoneration from or Limitation of Liability, to which both Parker and LL filed their respective Claims and Answers. Cargill now moves for summary judgment, arguing that as a matter of law, Claimant cannot establish that Cargill was negligent because the presence of wet grain was an open obvious hazard.
II. Legal Analysis
Cargill argues that under Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), Cargill'S liability depends on a determination that Cargill failed to warn Claimant Parker of any hidden defects which were unknown to the plaintiff prior to turning over control of the barge. Based on Claimant's own deposition testimony that he was an experienced and well-trained deckhand, that the presence of grain was a common condition aboard barges, and that on the day of his alleged injury he saw the wet grain aboard the barge prior to boarding it, Cargill further argues that it cannot be found liable for such a common, open and obvious situation.
For purposes of its motion, Cargill assumes that the barge had wet grain on its walkway as described by Claimant Parker and that this condition caused him to fall. (Cargill's Memo., p. 10).
The court finds several problems with Cargill'S argument. First, Scindia sets forth a vessel owner's duties to a longshoreman engaged in stevedoring operations. While such duties enumerated by Scindia are not limited to stevedores, the court rejects Cargill's all-encompassing statement that "the [Scindia] principles apply to all independent contractors and their maritime employees working aboard the vessel." (Cargill's Memo., p. 10 at n. 2). Here, Claimant parker was a Jones Act seaman, and as such he was not a LHWCA-covered employee and he is not asserting a § 905(b) claim against cargill. Rather, Claimant Parker is claiming that Cargill was negligent under the general maritime law. Thus, the court finds that a Scindia-type analysis is inapplicable in this case.
In Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 533 (5th Cir. 1991), the court found that Scindia governed the 905(b) action filed by a non-stevedore employee against his employer for an accident which occurred on a barge owned by Broussard Bros. (Plaintiff settled his claims against Broussard Bros. prior to Trial. (943 F.2d 530, n. 3).
In Lormand v. Superior Oil Co., 845 F.2d 536, 54-42 (5th Cir. 1987), the court found that Scindia defined the duties owed to the LHWCA-covered employee of an independent contractor working aboard a jack-up vessel.
Similarly, in Teply v. v. Mobil Oil Corp., 850 F.2d 375, 377 (5th Cir. 1988), the court stated that in Scindia "[t]he Supreme Court interpreted § 905(b) as it applies to stevedores, but in principle as it applies to other harborworkers who work on board vessels as well."
Scindia defines the duties owed to an injured worker by a vessel owner acting in a dual capacity as employer. Castorinav Lykes Bros. S.S. Co., 758 F.2d 1025, 1033 (5th Cir. 1985).
Second, even if a Scindia-type analysis was appropriate here, the court finds that under the circumstances presented, Cargill has too narrowly framed the query in the determination of whether or not Cargill can be found liable. Again, Cargill argues that Cargill's vessel liability arises if Cargill failed to warn of any hidden defects which were unknown to the plaintiff prior to turning over control of the barge. (Cargill's Memo., p. 12; see also Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir. l990), cited in Cargill's Memo., pp. 10-11). However, Claimant parker is not making the allegation that Cargill failed to warn him of a hidden defect; indeed he could not make such a claim because he readily admits that he saw the grain that he allegedly slipped on.
Scindia delineated the respective duties owed to a longshoreman by the vessel owner and the stevedore: first, the shipowner may rely on the stevedore to avoid exposing the longshoreman to unreasonable hazards; second the vessel owes to the stevedore and his longshoremen employees the duty of exercising due care under the circumstances. Scindia, 101 S.Ct. at 1623, 1626.
"The basic principle which emerges from Scindia is that the primary responsibility for the safety of the longshoremen rests upon the stevedore." Randolph, 896 F.2d at 970. The Fifth Circuit has set forth three exceptions to Scindia's broad statement of vessel liability:
(1) if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known;
(2) for injury caused by hazards under the ship's control; and
(3) if the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge both of the hazard and that the stevedore, in the exercise of "obviously improvident" judgment, means to work on in face of it and therefore cannot be relied on to remedy it.Randolph, 896 F.2d at 970.
What Claimant Parker is claiming is that under the general maritime law, Cargill owed him a duty to exercise reasonable care, and Cargill breached that duty. And even under Scindia (if applicable here), Cargill owed Claimant Parker the duty of exercising due care "under the circumstances." This duty included exercising ordinary care to have the [barge] in such condition that an expert and experienced stevedore [would] be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property." Scindia, 101 S.Ct. at 1622. Warning Claimant Parker of any hidden hazards which were unknown to him was a corollary of this duty.
The fact that the wet grain in this case was open and obvious is not in and of itself a defense.
This is so because when faced with an openly dangerous shipboard condition, the longshoreman's "only alternatives would be to leave his job or face trouble for delaying work." In short, "a longshoreman's own knowledge of a shipboard hazard will not negate a shipowner's duty of care which would exist otherwise."Stass v. American Commmercial Lines, Inc., 720 F.2d 879, 882 (5th Cir. 1983).
However, the fact that the wet grain was open and obvious will go a long way in the assessment of Claimant Parker's contributory negligence.
However, the Stass court pointed out that:
In the context of repair operations . . . a vessel owner's duty to the shipyard and its workers is subtly altered. The courts have long recognized that the vessel owner has no duty to deliver his ship in a hazard-free condition, when the requested repairs would remedy the hazards which cause the injury.Stass, 720 F.2d at 882.
In his opposition memorandum, Claimant Parker argues that the barge was unsafe because: it was not equipped with a some type of metal grating to allow the grain to fall through; it did not have a handrail, guide wire or non-skid paint to help maintain his footing; it had not been sufficiently cleaned "for quite some time as evidenced by the existence of the old, moldy mixture of grains present on the barge's walkway"; and it was not cleaned of grain after unloading and before being returned to the fleet by Claimant. (Opp. Memo., pp. 3-4).
Claimant has submitted no support to show that a metal grating, a hand rail, guide wire, and non-skid paint were appropriates necessary or reasonable. Indeed, Cargill correctly points out in its supplemental memorandum that Plaintiff himself testified in his deposition that there was nothing wrong with the barge (except for the presence of the grain). (Plaintiff's Dep., pp. 118-19).
Further, Claimant and his employer had no responsibility to clean the barge. Rather, Cargill was the sole entity responsible for cleaning the barge and its walkway. significantly, Edward Scott, the Cargill supervisor on duty at the time of Claimant's alleged accident, testified in his deposition that Cargill's standing procedure was to clean the barges prior to its employees unloading the barges, but that Cargill did nothing to clean grain from the barges after the unloading (and before the barges were turned over to Claimant's employer, who would bring the empty barge back to the fleet where it was held until it was subsequently taken to the cleaning facility). Mr. Scott's testimony is key in denying Cargill' a motion.
Edward Scott testified that:
"I make sure that the crew, if they're not aware of it, I make sure they're aware of it; to clean the area before they start setting the covers or removing the covers, because it's very easy for a deckhand to slip and fall, because a lot of times when we receive barges that come in, they have grain on them and we make sure that — well, our responsibility is to make sure the guy cleans the area before he starts, you know, fumbling with the covers.
(Ex. C attached to Plaintiff's Opp. Memo., Scott Dep., pp. 11-12; see also pp. 13, 18, 19).
Mr. Scott further testified:
Q. When the barge emerges empty on the upriver side, it's going to have grain on its deck?
A. Yeah.
Q. It could either be because it had grain to begin with on its deck, or certainly because there's going to be grain spilled on it during the unloading process?
A. Yes, right.
Q. At that point, do you have anybody get on there with a broom and sweep it off?
A. No.
Q. It's no longer your problem?
A. No, once they get out of that slip, it will be turned over to the tug to pull them and take them to the cleaning process.
Q. But you would agree with me that that deckhand that works on that tugboat is going to encounter the same slippery conditions that your guys might have encountered before, when you would have swept it off?
A. Right. That's a possibility, yeah.
Q. But you haven't done anything to insure that that slippery condition won't be there for that deckhand?
A. No, huh-uh (negative response).
( Scott Dep., pp. 20-21).
Of course, Claimant Parker himself had the concomitant duty to perform his work with reasonable care. Thus, whether Cargill's liability [or lack thereof) is determined under the general maritime law or under a Scindia-type analysis, the court draws all inferences from the summary judgment presented in favor of Claimant Parker, and concludes that there are genuine issues of material fact such as to whether or not Cargill exercised due care under the circumstances, and although Claimant was aware of the grain on the deck of the barge, whether or not "circumstances made safer alternatives [of boarding the barge] unduly impractical or time consuming". Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir. 1990).
Again, as previously noted, the fact that the grain on which Claimant allegedly slipped was "open and obvious" to him will likely result in a finding of significant contributory negligence.
Accordingly;
IT IS ORDERED that Cargill's Motion for Summary Judgment be and is hereby DENIED.