Opinion
CIVIL ACTION NO. 02-2789, SECTION "N"
August 21, 2003
ORDER AND REASONS
Before the Court is Defendant Coastal Towing Inc.'s Motion for Summary Judgment on the Issue of Vessel Negligence. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Ronald Magee, brings this action against his former employer, Coastal Towing, Inc. ("Coastal"), seeking damages for an injury to his shoulder that allegedly occurred on September 15, 2001, while he was working for Coastal as a shoreside tankerman. Coastal's tug, the MIV Tony, had brought two barges into the Clark Refinery in Mount Airy, Louisiana for loading. See Plaintiff's Depo. at 37-38. Plaintiff had finished loading the larger of the two barges and had packed his tools to go home, when the Tony's captain asked plaintiff to supervise the re-spotting of the smaller barge, which had been moved alongside the dock at the refinery's request. Id. at 41-44, 52-54. Plaintiff agreed and supervised the Tony's two deckhands as they secured three of the four lines. Id. at 56-57. When they came to the last line, the bow line. plaintiff took the two-and-one-half-inch nylon line himself after one of the deckhands two or three times without success to hit the hook, which was 15 to 20 feet away. Id. at 57-60, 87. Like the deckhand, plaintiff missed on the first try. Id. at 60. He succeeded on the second try, but afterwards felt as though he had pulled a muscle in his shoulder. Id. at 60-63. He later underwent surgery to the shoulder. Id. at 100-101.
Plaintiff brings this suit under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b). He alleges that Coastal is not immune under the LHWCA from tort liability in this case because the injury was caused by the ship's negligence, not by negligence attributable to Coastal as employer.
On January 7, 2003, Coastal moved for summary judgment, asserting that plaintiff is unable to establish a genuine issue of material fact regarding vessel negligence. On four separate occasions, this Court has granted motions by the plaintiff to continue the hearing pursuant to Rule 56(f). Despite these four continuances, totaling seven months, plaintiff has submitted no evidence to counter defendant's motion.
II. LAW AND ANALYSIS
A. Standard for Summary Judgment:
"Summary judgment is proper `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 judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied. 122 So. Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211.
B. "Dual Capacity" Employers Under the LHWCA:
"The LHWCA provides for two different types of liability." Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 531 (5th Cir, 1991), cert. denied, 504 U.S. 940 (1992). Section 904 entitles a covered worker to receive compensation benefits from his employer, without regard to fault; while section 905(b) permits the worker to sue the vessel owner for acts of "vessel negligence." Id. Thus, a longshoreman working for an independent stevedore may recover benefits from his employer and at the same time "pursue a separate action in tort against the owner of the vessel on which he was injured." Id. He may not sue his employer, however, for section 905(a) affords employers full immunity from tort suits. See 33 U.S.C. § 905(a) (compensation benefits "shall be exclusive and in place of all other liability of such employer to the employee").
Where a company is both the vessel owner and the covered worker's employer, "the entity retains its immunity for acts taken in its capacity as an employer, but may still be sued `qua vessel' for acts of vessel negligence." Levene, 943 F.2d at 531. Thus, a dual capacity employer may be held liable for ship's negligence, but only "under the same negligence standards applicable to an independent vessel owner." Id.; see also Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1033 (5th Cir.) ("duty is neither heightened nor diminished when the longshoreman is employed directly by the vessel"), cert. denied, 474 U.S. 846 (1985). Consequently, "the difference between the capacities in which an employer may act is extremely important." Levene, 943 F.2d at 531. The framework of the LHWCA requires the Court "to separate the negligence of the shipowner and that of the stevedore." Castorina v. Lykes Bros. Steamship Co., Inc., 758 F.2d 1025, 1033-36 (5th Cir.) (distinguishing the knowledge, acts, and duties of "Lykes as vessel owner" from those of "Lykes as stevedore"), cert. denied, 474 U.S. 846 (1985).
C. Vessel Negligence Under Section 905(b):
The Supreme Court laid out the scope of the shipowner's duty under § 905(b) in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The duty has three basic aspects: (1) a "turnover" duty, which is a duty "`to turn over the ship and its equipment . . . in such condition that an expert and experienced . . . contractor . . . will be able by the exercise of ordinary care to carry on . . . operations with reasonable safety;'" (2) an "active control" duty, which is the "duty to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation;" and (3) "a duty to intervene" where the shipowner "knows of a serious hazard and the stevedore improvidently decides to ignore that risk." Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 (5th Cir. 1997).
The Fifth Circuit has emphasized that "Scindia alone supplies the substantive negligence standards in an action under § 905(b)," including where "a vessel owner act[s] in a dual capacity as employer." Levene, 943 F.2d at 534, 533.
D. No Genuine Issues of Material Fact Exist in this Case:
Plaintiff does not specify which of the Scindia duties is allegedly implicated. It does not appear from the record that Coastal the tug owner had yet "turned over" the barge in question to Coastal the longshoreman employer for loading. Certainly, loading operations had not begun. Nevertheless, the Court will assume for purposes of this motion that the Tony had "active control" of the barge, such that Coastal owed a duty to exercise due care to avoid exposing plaintiff to harm from hazards he might encounter on the Tony or the barge.
Plaintiff's petition mentions three potential sources of negligence on the part of the Tony. (1) the youth of the deckhands; (2) the inability of the captain to position the vessel and its tow properly; and (3) the lack of a smaller throw line. plaintiff's deposition testimony outright refutes the latter two allegations.
Regarding the positioning of the barge, plaintiff testified that the smaller barge was repositioned according to Clark Refinery's instruction and that it was not unusual for a refinery to give such an instruction. See plaintiff's Depo. at 46-47, 52. He farther testified that, in order to reposition the barge in accordance with the refinery's orders, the tug had to untie the smaller barge, bring it around in the river, and then push it alongside the dock behind the larger barge. Id. at 53-55. Nothing in plaintiff's testimony suggests any infirmity in the manner this was done. Nor has plaintiff produced any other evidence suggesting anything inappropriate about the fact or manner of the repositioning.
Likewise, regarding the appropriateness of the lines provided, plaintiff has produced no evidence tending to suggest any deficiencies or defects. To the contrary, plaintiff testified that the lines were standard and of good quality: "Q. Are there heavier lines out there and lighter lines? A. Our lines was pretty much standard two-and-a-half-inch. . . . there are heavier and lighter lines but — for different things. Coastal didn't send none of that crap out to you, they sent two-and-a-half-inch lines. Q. Okay. Those are pretty good lines? A. Yes Coastal bought good line. They wanted the barges secured to the dock good. They — that's one thing they wouldn't skimp on is the lines and stuff for you to work with." Depo. at 62.
This leaves the deckhands as a possible source of negligence. According to plaintiff's deposition testimony, this was the first hitch for one of the deckhands and the second hitch for the other. Depo. at 43. Plaintiff claims that the deckhands were "green" and did not know how to throw the mooring line. It is questionable whether the evidence in the record supports a genuine issue as to this fact. Plaintiff testified that he took the line from the deckhand after only two (possibly three) unsuccessful throws. Depo. at 59, 87 ("I told him to give me that line, 1 didn't have all day to stand around waiting for him to catch that line there."). Plaintiff himself then missed the hook the first time he threw the line, even though he was very experienced at the task. Id. at 61, 34-35, 64. He testified that missing was not unusual, that he "missed more than [he] caught." Id. at 61. As plaintiff put it: "well, . . . the cowboy don't rope every cow he throws at." Id. at 88. Thus, taking the evidence as a whole, it is doubtful that a jury could reasonably find that the deckhands were too "green" to secure the line.
He also testified that Coastal sends new deck hands to a three — or four-day deck hand school where they learn the fundamentals, although he did not know personally whether these particular two deckhands had been to the school. Id. at 93.
Moreover, even if plaintiff could establish a genuine issue on this point, his case would fail nonetheless, for he has presented no evidence to support a reasonable finding that the deckhands' inexperience caused plaintiff's injury. At most, the deckhand's inexperience resulted in the line falling in the water. No reasonable jury could find that it resulted in harm to the plaintiff.
Even this inference is questionable. Plaintiff was very experienced, and his first throw fell in the water as well.
Nor can the Court find any other basis in the record to support a finding of vessel negligence. The captain asked only that plaintiff supervise the placement of the lines, not that he handle the lines himself. Thus, there exists no basis for attributing plaintiff's own actions ( e.g., his decision to take the line from the deckhand, his decision to throw the line himself rather wait for the captain) to the vessel. Certainly, plaintiff has pointed the Court to no authority that would support such conclusion.
III. CONCLUSION
Accordingly, for all of the foregoing reasons, IT IS ORDERED that Defendant Coastal Towing Inc.'s Motion for Summary Judgment on the Issue of Vessel Negligence is GRANTED.