Opinion
Civil Action No. 01-0695
February 24, 2003
ORDER AND REASONS
The following motions are pending before the Court:
1)The motion of defendant, Coastal Towing, Inc. ("Coastal Towing"), for summary judgment (Rec. Doc. No. 16); and
2) The motion of defendant, Bayou Fleet, Inc. ("Bayou Fleet"), for summary judgment (Rec. Doc. No. 19).
Both motions are opposed.
Background
Plaintiff, John J. White ("White"), sued defendants, Coastal Towing and Bayou Fleet, for damages arising out of a slip and fall accident which he sustained on April 30, 2000. Plaintiff alleges that both of the defendants were negligent under the general maritime law for failing to provide him with a safe means of ingress and egress to a vessel.
Rec. Doc. Nos. 1 and 11.
On April 30, 2000, the DOUG ROBERTS, a vessel owned and operated by defendant, Coastal Towing, was moored to a docking facility owned, operated, and maintained by defendant, Bayou Fleet. The docking facility was a barge which has been attached by spuds, since the early 1990s, to the bed of the Mississippi River. It was constructed as a deck cargo barge and utilized for many years to load cargo on deck. When it was converted to a spud barge, handrails and a storage room were added. While it is capable of being moved from its place in the river, since it has been spudded to the river bed, the barge's only movement has been up and down with the fluctuating river levels. The docking facility is not inspected by the Coast Guard. There is a walkway leading from the barge to the bank of the Mississippi River. There is space for several vessels to tie up to the barge. Designated walkways on the barge have been painted in yellow, heavy non-skid paint. Bayou Fleet supplied fresh water and electricity to vessels through water hoses and electrical lines on the docking facility.
Rec. Doc. Nos. 16 and 19.
Rec. Doc. Nos. 16 and 19.
Rec. Doc. No. 25.
Rec. Doc. No. 25.
Rec. Doc. No. 19. It has not been used as a means of transportation since it was permanently spudded to the Mississippi River bed in the early 1990s. Rec. Doc. No. 19.
Rec. Doc. No. 19.
Rec. Doc. No. 19.
Rec. Doc. No. 19.
Rec. Doc. No. 16.
Plaintiff, White, was an electrician employed by Watercom who was dispatched on April 30, 2000, to the DOUG ROBERTS to make repairs. When White first arrived at the Bayou Fleet dock, he did not notice any accumulation of water on the walking surface and he walked across the dock to the DOUG ROBERTS without incident. He encountered a person whom he assumed was a Bayou Fleet employee who told him to lock the gate when he was finished. Bayou Fleet had a policy of allowing their customers to use the facility without restriction. Bayou Fleet employees regularly hosed off the barge when it was dusty. The deck of the barge was not smooth, but had "undulations" in which water accumulated whenever it rained or the hose was allowed to run on the barge's deck.
Rec. Doc. Nos. 16 and 19.
Rec. Doc. Nos. 16 and 18.
Rec. Doc. No. 25, Exh. A, p. 44.
Rec. Doc. No. 25, Exh. C, p. 9.
Rec. Doc. No. 25, Exh. C, p. 32.
Rec. Doc. No. 25, Exh. C, pp. 31-32.
Later in the morning, White stepped back on the dock carrying a cardboard box as he walked away from the vessel. He slipped and fell in a puddle of water on the dock which was between 4 to 6 feet wide and 1-1/2 to 3 inches deep. The plaintiff walked back across the barge using approximately the same route he used when he first traversed it. He stated that the puddle of water in which he slipped was not there the first time he walked across the surface of the docking facility. According to plaintiff, while the puddle of water was readily visible, he was carrying a box in front of him which obscured his view at the time he fell.
Rec. Doc. No. 16.
Rec. Doc. No. 16.
Rec. Doc. No. 16.
Rec. Doc. No. 16.
Rec. Doc. Nos. 16 and 19.
There was a fresh water hose traversing the width of the docking facility and continuing onto the DOUG ROBERTS, but White did not know whether it was there when he first arrived at the dock and he could not tell if it was leaking or not. Glenn Frank, the chief engineer aboard the DOUG ROBERTS, stated that on the morning plaintiff allegedly fell, the vessel took on fresh water using the Bayou Fleet hose. Frank stated that the hose was not leaking, but that prior to plaintiff's arrival, the entire deck of the docking facility was wet as if it had been washed down even though it had not rained. The puddle of water on the deck was located adjacent to the water hose.
Rec. Doc. No. 18, Exh. A, pp. 72-73.
Rec. Doc. Nos. 18 and 25, Exh. D, pp. 23-24.
Rec. Doc. Nos. 18 and 25, Exh. D, pp. 26-29.
Rec. Doc. No. 25.
Summary Judgment Standards
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 the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). In determining whether summary judgment should be granted, the Court must find "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hunt v. Rapides Healthcare System, LLC, 2001 WL 150961 (5th Cir. 2001); Sanders v. Diamond Offshore Drilling, Inc., 2002 WL 31654973 *1 (E.D. La. 2002).The burden of establishing that there are no genuine issues of material fact is upon the moving party. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). The Court must construe all facts in the light most favorable to the non-moving party in evaluating a summary judgment motion. Anderson, 477 U.S. at 255, 106 S.Ct. at 2505;Hamlin v. Blue Cross and Blue Shield of Louisiana, 178 F. Supp.2d 673, 678 (E.D. La. 2001). However, the non-moving party may not rely upon denials of the moving party's allegations, but must come forward with competent evidence to support his claims. Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992); Martin v. John W. Stone Oil Dist., Inc., 819 F.2d 547, 549 (5th Cir. 1987);Hernandez v. Wal-Mart Stores, Inc., 2001 WL 1229592 at *1 (E.D. La. 2001).
Coastal Towing
Coastal Towing, the vessel owner, moves for summary judgment on the basis that it did not breach its duty of reasonable care under the circumstances to plaintiff, a non-crew member. Plaintiff contends that the vessel owner owed him a duty to provide a means of safe ingress and egress to him which included ensuring that the method of ingress and egress from the vessel to the shore was reasonably safe.
Relying upon Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807, 814 (La.App. 3rd Cir. 1980), plaintiff suggests that the shipowner's duty to provide a safe means of ingress and egress extends from the vessel to the shore. In Rivers, the court held that a Jones Act employer has a duty to furnish a seaman a safe means of ingress and egress which "extends from the vessel to the shore and includes the dock to which the vessel may be berthed, and adjacent land." 389 So.2d at 814.
Coastal Towing, however, is not plaintiff's Jones Act employer and plaintiff is not a seaman. In addition, the facts are undisputed that, at all pertinent times, plaintiff was a ship repairman. 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 seg, to sue a vessel for negligence exclusively arises under 33 U.S.C. § 905(b). The duty of a vessel to LHWCA-covered employees of independent contractors working aboard vessels is governed by the principles enunciated in Scindia Steam Navigation Co. v. De Los Santos, 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). Because plaintiff meets the status and situs requirements for coverage under the LHWCA, his negligence claim against the vessel is governed by 33 U.S.C. § 905(b). See, 33 U.S.C. § 902(3) and 903(a) and Herb's Welding v. Gray, 470 U.S. 414, 420, 105 S.Ct. 1421, 1425, 84 L.Ed.2d 406 (1985).
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 sec. 902(3) is entitled to compensation under 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 because he was a ship repairer under 33 U.S.C. § 902(d).
Regardless of whether the docking facility is a vessel or an adjoining dock or drydock, i.e., an extension of land, the place of plaintiff's injury falls within the coverage venue of the statute. 33 U.S.C. § 903(a).
The court in Lormand reiterated the following Scindia rules applicable to § 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).845 F.2d at 542.
Applying these principles, there is no evidence in the summary judgment record that Coastal Towing, the vessel owner, breached its duty to provide a ship and equipment in such condition that the plaintiff would be able to carry on his employment with reasonable safety. There is no evidence that the ship or any of its equipment was unsafe in any way. Further, plaintiff's injury did not occur on the vessel or on or any of the vessel's equipment.
Similarly, there is no evidence that there were any hidden dangers of which Coastal Towing was aware and about which it failed to warn the plaintiff. The water on the barge/docking facility was not a hidden danger, but it was plainly visible.
Finally, there is no evidence that Coastal Towing had actual knowledge that the plaintiff could not be relied upon to avoid any hazard created by standing water on the deck. While the chief engineer of the DOUG ROBERTS did observe the wet deck, there is no evidence that he knew or should have known that the plaintiff would walk across the wet surface holding a box in front of him which would obscure his view. Under such circumstances, the Court finds that there is no dispute as to any material fact and that defendant, Coastal Towing, is entitled to judgment as a matter of law. See, F.R.Civ.P. 56(c).
Bayou Fleet
In Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5th Cir. 1999), the court summarized the requirements for admiralty jurisdiction:
To give rise to a tort claim in admiralty, an incident must have both a maritime situs and a connection to traditional maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982); Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). . . .
The situs requirement or `location test' requires the plaintiff to show that the tort either occurred on navigable waters, or if the injury is suffered on land, that it was caused by a vessel on navigable waters. See Grubart, 115 S.Ct. at 1048; 46 App. U.S.C. § 740 [The Admiralty Extension Act]. . . .
The connection test requires that the activity which caused the plaintiff's injury bear a significant relationship to traditional maritime commerce.182 F.3d at 351-52.
While there can be little doubt that plaintiff's accident has a connection to traditional maritime activity because plaintiff was engaged in maritime employment when he was injured, Bayou Fleet argues that it fails the location test. Bayou Fleet contends that the barge/docking facility which had been moored to the shore for several years prior to the accident and had not been used as a means of transportation was not a vessel. Plaintiff argues that the barge is a vessel.
In determining whether a structure used in ship repair or longshoring operations is a vessel, the court in Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995) noted that the touchstones are "the purpose for which the craft is constructed and the business in which it is engaged." The Burchett court identified three factors normally present when a floating platform is not a vessel:
(1) the structures involved were constructed and used primarily as work platforms; (2) they were moored or otherwise secured at the time of the accident; and (3) although they were capable of movement and were sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose.48 F.3d at 176, quoting Bernard v. Binnings Constr. Co., 741 F.2d 824, 831 (5th Cir. 1984). The Burchett court also noted that the Fifth Circuit has. "routinely held that floating work platforms and dry docks, even if equipped for travel across navigable waters, are not vessels when permanently moored and used as work platforms or dry docks." Id. at 177.
The ability to move does not alter the conclusion that a permanently moored, floating structure is not a vessel. In Cook v. Belden Concrete Prods., Inc., 472 F.2d 999, 1002 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973), the court noted that "some movement, both perpendicular and lateral, is necessarily part of the regular operations of floating dry docks and similar structures. However, capability to sustain such movement has been held insufficient to establish that such craft are constructed for the purpose of navigation." See also, Burchett, 48 F.3d at 177-178.
In Manuel v. P.A.W. Drilling Well Service, Inc., 135 F.3d 344 (5th Cir. 1998), the Fifth Circuit summarized the following principles used to determine what is a vessel:
We start from the bedrock premise that in determining what is a vessel, we ask what is the `purpose for which the craft is constructed and the business in which it is engaged.' The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12 48 L.Ed.73 (1903). If the owner constructs or assembles a craft for the purpose of transporting passengers, cargo, or equipment across navigable waters and the craft is engaged in that service, that structure is a vessel. In many cases, the purpose for which the craft is constructed or assembled can be inferred from the use to which the craft is put by the owner. . . . In the occasional case where the intended purpose of the craft is not clear, our cases have recognized that other factors may be relevant. These include the intention of the owner to move the structure on a regular basis and the length of time that the structure has remained stationary. [ Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990)]. `Objective vessel features' such as navigational aids, a raked bow, lifeboats and other lifesaving equipment, bilge pumps, crew quarters, and Coast Guard registration may also be relevant in determining an owner's purpose in constructing or assembling a craft. Bernard, 741 F.2d at 832 n. 25.
The second prong of our inquiry, the business in which the craft is engaged, is usually the most difficult. Here, evaluating the importance of the craft's transportation function is the key to determining the craft's status. In all of our work platform cases, the transportation function of the craft at issue was merely incidental to its primary purpose of serving as a work platform. Conversely, where the use of the craft in transporting passengers, cargo, or equipment was an important part of the business in which the craft was engaged, we have found that craft to be a vessel, even if it also served as a work platform.135 F.3d at 350-51.
Applying these guidelines to the docking facility in question, the first question to be answered is the purpose for which the craft is constructed. The barge was initially constructed as a deck cargo barge and used as an aggregate barge to load cargo for several years. Photographs of the barge depict a square-bowed barge with no obvious navigational aids, propulsion equipment, or lifeboats. As previously noted, it is not Coast Guard inspected. There is no evidence that it was constructed primarily as a means of transportation, but as a platform used to load cargo.
Rec. Doc. No. 25.
Rec. Doc. No. 18, Exh. C.
The second factor, the business in which the craft is engaged, is more telling. The barge in question was permanently moored to the shore and it was used as a docking facility. Since the early 1990s, it had not been used as a means of transportation or navigation, but solely as a docking facility and floating work platform. While it was capable of movement, for several years prior to the accident its only movement was up and down with the river stage fluctuations. It served no transportation function, but it was utilized solely as a work platform. Under these circumstances, the Bayou Fleet barge/docking facility is not a vessel for purposes of establishing admiralty jurisdiction. See Leonard v. Exxon Corporation, 581 F.2d 522, 524 (5th Cir. 1978); Burchett, 48 F.3d at 176-177, and cases cited therein. It is essentially a work platform which, like a dry dock, is considered an extension of land. Manual, 135 F.3d at 350.
Plaintiff alternatively argues that pursuant to the Admiralty Extension Act, 46 App. U.S.C. § 740, there is admiralty jurisdiction over his claim. The Admiralty Extension Act provides in pertinent part that:
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel in navigable water, notwithstanding that such damage or injury be done or consummated on land.46 App. U.S.C. § 740.
In Dahlen v. Gulf Crews, Inc., 281 F.3d 487 (5th Cir. 2002), the court noted that "[i]n order to invoke maritime jurisdiction under the Extension Act, a plaintiff injured on shore must allege that the injury was caused by `a defective appurtenance of a ship on navigable waters.'"Id. at 493, quoting Margin v. Sea-Land Services, Inc., 812 F.2d 973, 975 (5th Cir. 1987). In order for the Admiralty Extension Act to apply, "the defect must be in the appurtenance and not be due to the personnel performing services for the vessel." Dahlen, 281 F.3d at 494, citing Egorov, Puchinsky, Afanasiev, Juring v. Terriberry, Carroll Yancey, 183 F.3d 453, 456 (5th Cir. 1999). There is no evidence that the plaintiff's injury was caused by a defective appurtenance of the DOUG ROBERTS. The Admiralty Extension Act does not apply.
"Absent a maritime status between the parties, a dock owner's duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law." Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332-33 (5th Cir. 1993). Because there is no maritime status between plaintiff and Bayou Fleet, the owner of the docking facility, Louisiana law defines the duty that the owner of a dock or wharf owes to an invitee. Id. at 333. In such circumstances, the duty of a dock owner is to provide a dock "which is reasonably safe." Id. at 333-34; Champagne v. Nautical Offshore Corporation, 2002 WL 31387134 *2 (E.D. La. 2002). A dock owner owes a duty to invitees "to discover, correct and protect an individual from unreasonable risk of harm."Douglas v. State of Louisiana, 636 So.2d 1098, 1099 (La.App. 5th Cir. 1994).
While the court does not have admiralty jurisdiction over the plaintiff's claims against Bayou Fleet, it has supplemental jurisdiction over pendent state law claims, even when admiralty issues no longer remain in the case. Huval v. Offshore Pipelines, Inc., 1997 WL 86340 *1 (S.D. La. 1997). The state law claims herein arise out of a common nucleus of operative facts with admiralty claims and resolving these claims in a single proceeding furthers the interests of conservation of judicial resources and fairness to the parties. Id. See also Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1346-47 (5th Cir. 1991); Rococo Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292, 1297 (2nd Cir. 1990); Coastal Cargo Company, Inc. v. M/V Gustav Sule, 1999 WL 782478 at *1 (E.D. La. 1999).
Whether or not the Bayou Fleet dock was "reasonably safe" is a question of fact for the factfinder. See Champagne, 2002 WL 31387134 at *3. There is evidence in the record that the docking facility was dry at the time the plaintiff arrived, that it was wet with puddles of water after the plaintiff initially traversed the dock to make repairs on the ship, and that the entire dock appeared to have been washed down after the plaintiff arrived. There is also evidence that occasionally Bayou Fleet employees washed down the docking facility, that water accumulated in the undulations on the barge, and that plaintiff encountered a person who may have been a Bayou Fleet employee prior to his accident.
Notwithstanding the above, plaintiff has not alleged a state law claim. In the interests of justice, plaintiff is given until March 10, 2003, to amend his complaint by adding a state law claim against Bayou Fleet. Should he not do so within that time period, the motion for summary judgment filed by Bayou Fleet will be granted.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Coastal Towing, Inc., for summary judgment is GRANTED; IT IS FURTHER ORDERED that the motion of defendant, Bayou Fleet, Inc., for summary judgment is DENIED reserving Bayou Fleet the right to reurge its motion if a timely amendment is not filed.