Opinion
CASE NO. 6:18-CV-00822
01-15-2020
Scott CROCHET v. MORTON SALT, INC.
Paul Richard Miller, Houston, TX, for Scott Crochet. Salvador J. Pusateri, Rowen Fricker Asprodites, Pusateri Johnston et al, New Orleans, LA, for Morton Salt Inc.
Paul Richard Miller, Houston, TX, for Scott Crochet.
Salvador J. Pusateri, Rowen Fricker Asprodites, Pusateri Johnston et al, New Orleans, LA, for Morton Salt Inc.
MEMORANDUM RULING
ROBERT R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
The present matter is a Motion for Summary Judgment filed by Defendant Morton Salt, Inc. ("Morton Salt") seeking dismissal of all claims asserted by Plaintiff Scott Crochet. [Doc. No. 28]. Specifically, Defendant seeks dismissal of Plaintiff's claims for Jones Act negligence, unseaworthiness, and maintenance and cure, as well as Plaintiff's claim, pleaded in the alternative, for vessel negligence under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). For the reasons set forth below, Defendant's motion is GRANTED.
I.
BACKGROUND
Plaintiff alleges he was injured in the course and scope of his employment while aboard a barge owned by Regions Commercial Equipment Finance, LLC ("Regions") and operated by AEP River Operations, LLC ("AEP"). [Doc. No. 28-1 at 9; see also Doc. No. 28-2 at 4, ¶¶ 24, 27]. At the time of the incident, Plaintiff was employed as a Bargetender/Deckhand for Morton Salt at Morton Salt's bulk terminal facility located on the Intracoastal Waterway in Weeks Island, Louisiana. [Doc. Nos. 42 at 3; 28-1 at 5]. Plaintiff alleges that on January 30, 2016, he sustained injuries to his "knee, leg and body generally" while attempting to close a hatch cover on the barge AEP 4028R, which was secured to Morton Salt's loading dock. [Doc. No. 42 at 3, 7; Doc. No. 28-2 at 107].
Morton Salt's operation includes the loading of salt onto barges at the facility's land-based loading dock for delivery to various destinations. [Doc. No. 28-1 at 5]. At the time of Plaintiff's injury, Defendant held contracts with two barge lines (AEP and Ingram Barge Company) for the transport of its salt to its customers and to Defendant's other locations. [Doc. No. 28-2 at 2-3, ¶¶ 15-21]. Five other barge lines, which were directly contracted by Defendant's customers, also operated barges through the facility at that time. Id. at 3, ¶ 22. To carry out Morton Salt's operation, empty barges were brought to a fleeting area within the Weeks Island Facility known as the Carlin Fleet. The empty barges were brought to the Carlin Fleet by third-party towing vessels operated at the direction of a barge line and/or a customer. Id. at 2, ¶ 9. Once fleeted and ready for towing, an empty cargo barge was taken into possession by the M/V ERIN W., a third-party towing vessel provided by T&M Boat Rentals, LLC. [Doc. No. 28-1 at 6]. The ERIN W. would then take the empty barge to the loading dock for loading. After loading, the ERIN W. would return the barge to the fleeting area to be retrieved by a separate third-party vessel, put into a tow, and moved to its ultimate destination. Id. at 7.
Morton Salt contracted with T&M to provide a fleet boat for barge transit within the Weeks Island Facility. Id. The ERIN W. was equipped with its own crew. Id.
When an empty barge was brought to the loading dock by the ERIN W., Plaintiff, working from the loading dock, assisted in shifting the barge into position utilizing ropes. [Doc. No. 28-2 at 76]. Once the barge was secured to the dock, Morton Salt's operator would begin loading the salt into the hatches via a spout located on land. Plaintiff would then board the barge and monitor the loading to ensure the salt was evenly distributed. Id. Occasionally Plaintiff would travel via the ERIN W. to the Carlin Fleeting area to inspect the hatches of barges and ensure the holds were clean before loading. Id. at 76-77, 87. When Plaintiff boarded a barge at the loading dock, it was always secured by ropes to the dock. Id. at 92-93. On those occasions when Plaintiff inspected barges at the Carlin Fleeting area, the barges were "tied up in the fleet." Id. at 85. Plaintiff never worked from a barge while it was under tow, nor did he assist in attaching the loaded barges to the ERIN W. Id. at 93, 98. According to Plaintiff, 70 percent of his work was performed from the cover of barges, while they were "sitting on the water." [Doc. No. 42 at 9]. Plaintiff performed no work from the ERIN W. and was not a member of its crew. [Doc. No. 28-2 at 88].
On June 20, 2018, Plaintiff filed this suit asserting claims under the Jones Act and for maintenance and cure. [Doc. No. 1]. He later supplemented his Complaint to add a claim for unseaworthiness, and an alternative claim for vessel negligence under the LHWCA. [Doc. Nos. 20, 21]. Defendant now seeks dismissal of all claims, contending Plaintiff is not a seaman and therefore cannot assert claims for Jones Act negligence, unseaworthiness or maintenance and cure. Defendant additionally contends Plaintiff's claim for vessel negligence, brought pursuant 33 U.S.C. § 905(b), is impermissible as a matter of law. [Doc. No. 28].
Plaintiff is currently receiving compensation benefits under the LHWCA.
II.
APPLICABLE LAW
A. Summary Judgment Standard
"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Fed. R. Civ. P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. However, where the nonmovant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (internal citations omitted). When reviewing evidence in connection with a motion for summary judgment, "the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir. 2001) ; see also Feist v. Louisiana, Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (courts must view all facts and evidence in the light most favorable to the non-moving party). "Credibility determinations are not part of the summary judgment analysis." Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002). Rule 56 "mandates the entry of summary judgment ... 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." Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
B. Seaman Status
Maritime workers injured in the course of their employment may proceed, depending on their status and the status of the responsible party, under the Jones Act , the Longshore and Harbor Workers' Compensation Act , the general maritime law, and/or state law. See e.g. Chandris, Inc. v. Latsis, 515 U.S. 347, 355-56, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) ; The Dutra Group v. Batterton, ––– U.S. ––––, 139 S.Ct. 2275, 2278-79, 204 L.Ed.2d 692 (2019). The Jones Act provides a cause of action in negligence to any "seaman injured in the course of employment ... against the employer." 46 U.S.C. § 30104. Jones Act seamen may also bring claims for maintenance and cure and unseaworthiness. See e.g. Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5th Cir. 2003) ; Meche v. Doucet, 777 F.3d 237, 244 (5th Cir. 2015). The LHWCA is a workers' compensation system, "which provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers but which also excludes from its coverage ‘a master or member of a crew of any vessel.’ " Chandris at 355, 115 S.Ct. 2172 (quoting 33 U.S.C. § 902(3)(G) ). "These masters and crewmembers are the seamen entitled to sue for damages under the Jones Act," thereby making the LHWCA and the Jones Act mutually exclusive compensation regimes. Harbor Tug and Barge Co. v. Papai 520 U.S. 548, 553, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997) ; see also McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 347, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) (" ‘[M]aster or member of a crew’ [as used in the LHWCA] is a refinement of the term ‘seaman’ in the Jones Act.... Thus, it is odd but true that the key requirement for Jones Act coverage now appears in another statute.")
33 U.S.C. § 901, et seq.
Unlike other maritime workers, Jones Act seaman are afforded "heightened legal protections ... because of their exposure to the ‘perils of the sea.’ " Chandris, 515 U.S. at 354, 115 S.Ct. 2172. "[S]eamen ‘are emphatically the wards of the admiralty’ because they ‘are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour.’ " Id. at 354-33, 115 S.Ct. 2172 (quoting Harden v. Gordon, 11 11 F.Cas. 480, 485 (C.C.D. Me. 1823) ).
The LHWCA covers "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder and ship-breaker," 33 U.S.C. § 902(3), but does not include "a master or member of a crew of any vessel," id. at § 903(3)(G). However, even where a "claimant's job fits within one of the enumerated occupations defining the term ‘employee’ covered by the LHWCA," he may nevertheless be a seaman, if he has "the requisite connection to a vessel in navigation to qualify for seaman status." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 88-89, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991).
The Jones Act does not define the term "seaman," but not every "maritime worker on a ship at sea ... is automatically a member of the crew of the vessel within the meaning of the statutory terms." Chandris at 363, 115 S.Ct. 2172. "[S]ome workers who unmistakably confront the perils of the sea, often in extreme form, are thereby left out of the seamen's protections." Id. at 361-62, 115 S.Ct. 2172 (quoting David W. Robertson, A New Approach to Determining Seaman Status , 64 Tex. L. Rev. 79, 93 (1985) ). Seamen, in contrast to maritime workers, "owe their allegiance to a vessel and not solely to a land-based employer." Chandris at 359, 115 S.Ct. 2172. Seaman status is not determined by the employee's job title. Papai at 558, 117 S.Ct. 1535. Rather, the "inquiry is fundamentally status based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore." Chandris at 361, 115 S.Ct. 2172.
A plaintiff claiming the benefits of the Jones Act bears the burden of establishing seaman status. Becker v. Tidewater, Inc., 335 F.3d 376, 390 (5th Cir. 2003). To prove seaman status, a plaintiff must show: (1) his duties "contribut[ed] to the function of the vessel or to the accomplishment of its mission," and (2) he has "a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Chandris at 368, 115 S.Ct. 2172. "[S]atisfying the first prong of the test is relatively easy: the claimant need only show that he ‘do[es] the ship's work.’ " Becker at 387-88, 115 S.Ct. 2172 (quoting Chandris at 368, 115 S.Ct. 2172 ). "This threshold requirement is ‘very broad,’ encompassing ‘all who work at sea in the service of a ship.’ " Id. at 388, 115 S.Ct. 2172 (quoting Chandris at 368, 115 S.Ct. 2172 ). The purpose of the second prong (i.e. the "substantial connection" requirement) is to "separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea." Chandris at 368, 115 S.Ct. 2172 ; see also Papai at 555, 117 S.Ct. 1535 ("For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea."). "The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." Chandris at 370, 115 S.Ct. 2172. Thus, although the second prong "is not merely a temporal concept, ... it necessarily includes a temporal element." Id. at 371, 115 S.Ct. 2172. "A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel's crew, regardless of what his duties are." Id. at 371, 115 S.Ct. 2172. "Generally, ... an appropriate rule of thumb for the ordinary case [is]: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Id.
"Because the determination of whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact, it is usually inappropriate to take the question from the jury." In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir. 2000) (citing Papai, 520 U.S. at 554, 117 S.Ct. 1535 ); see also Wallace v. Oceaneering Intern., 727 F.2d 427, 432 (5th Cir. 1984) ("The issue is to be left to the jury even when the claim to seaman status appears to be relatively marginal"). "Nevertheless, summary judgment is mandated where the facts and the law will reasonably support only one conclusion." Id. (internal quotation marks and alterations omitted).
III.
ANALYSIS
A. Whether Plaintiff is a Jones Act seaman
Defendant contends Plaintiff is not a Jones Act seaman, but rather, "a quintessential land-based worker whose sole remedy against his employer ... is a claim for benefits under the Longshore and Harbor Workers' Compensation Act." [Doc. No. 28-1 at 4]. According to Defendant, Plaintiff's duties as a barge tender did not contribute to the function of any vessel, and Plaintiff does not have a connection to a vessel or identifiable fleet of vessels that is substantial in duration and nature. Id. at 13-19. In response, Plaintiff argues he satisfies both prongs of the test for seaman status. As to the first prong, Plaintiff contends "it is undisputed" that he performed " ‘the ship's work,’ including: loading the vessels, mooring and moving the vessels, cleaning the vessels, inspecting the vessels and checking the drafts of the vessels." [Doc. No. 42 at 3-4]. As to the second prong, Plaintiff contends he has a connection to an identifiable group of vessels (i. e. a fleet) that is substantial in duration and in nature. Id. at 5. Specifically, Plaintiff asserts from the time empty barges are deposited at the Carlin fleeting area until they are released after loading, Morton Salt exercises sufficient control over the barges to constitute the "Morton Salt fleet" for Jones Act purposes. Id. at 10-11. According to Plaintiff, he "spent approximately 70% of his work time" on the Morton Salt fleet. [Id. at 4]. Alternatively, Plaintiff contends he has a substantial connection to an identifiable fleet of vessels owned by AEP (Defendant's contractor), upon which he "worked about 45% of the time," thereby granting him seaman status. Id. at 5-6, 13.
Again, to receive Jones Act protection, a claimant must have a connection to a vessel in navigation or to an identifiable group of such vessels. Papai, 520 U.S. at 557, 560, 117 S.Ct. 1535 ; Chandris, 515 U.S. at 368, 115 S.Ct. 2172. A "fleet of vessels" in this context does not include "any group of vessels an employee happens to work aboard," as such a construction would obliterate "the fundamental distinction between members of a crew and transitory maritime workers such as longshoremen." Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) ; see also Coats v. Penrod Drilling Corp., 5 F.3d 877, 890 (5th Cir. 1993). Rather, "[i]n deciding whether there is an identifiable group of vessels of relevance for a Jones Act seaman-status determination, the question is whether the vessels are subject to common ownership or control." Papai at 557, 117 S.Ct. 1535. When a group of vessels is at issue, a worker who seeks seaman status must show that at least 30 percent of his work time was spent on vessels under the ownership or control of one common entity. Roberts v. Cardinal Services, Inc., 266 F.3d 368, 377 (5th Cir. 2001) ; see also Coats at 890 ; Jenkins v. Aries Marine Corp., 554 F.Supp.2d 635, 640-41 (E.D. La. 2008).
Because the Court finds Plaintiff does not satisfy the second prong of the Chandris test, it need not address the first prong, i.e. whether Plaintiff contributed to the function of the vessel or to the accomplishment of its mission.
As to Plaintiff's first argument (i.e. that he spent 70 percent of his work time aboard all barges entering Morton Salt's facility), Plaintiff has failed to show those vessels constitute a fleet for Jones Act purposes. These vessels were not under common ownership or control, but rather, "were owned and/or operated by a myriad of barge lines, which were providing transportation services for Morton Salt and different customers to facilitate the delivery of Morton Salt's product." [Doc. No. 28-2 at 2, ¶ 8]. Plaintiff argues that once barges were delivered to the Weeks Island Facility, Defendant assumed sufficient "control" of the barges such that they became Defendant's fleet for Jones Act purposes. However, the Fifth Circuit has rejected an "operational control" test for purposes of defining "fleet," which is essentially what Plaintiff argues. In St. Romain v. Industrial Fabrication and Repair Service, Inc., 203 F.3d 376, 380 (5th Cir. 2000), plaintiff was injured on an offshore platform while working as a plug and abandon helper. Id. at 377. Plaintiff, who was not permanently assigned to any one vessel in navigation, contended "he was a member of the crews of the several liftboats used in the p&a jobs performed by [his employer], and that these boats constitute[d] an identifiable fleet of vessels." Id. at 379. During plaintiff's employment, he worked aboard liftboats owned by nine different companies and chartered by five different entities. Id. Plaintiff's employer did not own any of the liftboats, and the evidence showed that the captain and owner of the liftboats retained ultimate authority at all times with respect to the navigation and operation of the vessels. Id. On appeal, Plaintiff argued "control over a group of vessels should not be determined by who owns or charters the vessels but, instead, should be determined by who supervises the practical operations aboard the vessels." Id. at 380. Plaintiff further argued that because his employer selected the particular liftboat needed for the job, directed the liftboat's captain where to position the boat, and told the captain when to jack-up or down, his employer exercised "operational control" over the vessels "which should satisfy the common control requirement." Id. In rejecting this position, the Fifth Circuit stated:
[T]o qualify as a seaman an employee must establish an attachment to a vessel or to an identifiable fleet of vessels. We are not persuaded by the proposed operational control test. To accept that position would involve the court in analyzing the day-to-day minutiae of a liftboat's operations. This we decline to do and, rather, resort to developed workable standards for determining who qualifies as a seaman under the Jones Act. In doing so we must decline to depart from these established principles.
Id. ; see also White v. Valley Line Co., 736 F.2d 304, 307 (5th Cir. 1984) ("We have never held ... that for Jones Act purposes a fleet of vessels may permissibly be defined as the variously-owned ships putting in to a given facility for fleeting or repairs."); Bach v. Trident Steamship Co., Inc., 920 F.2d 322, 324 (5th Cir.), judgment reinstated Bach v. Trident S.S. Co., Inc., 947 F.2d 1290 (5th Cir. 1991) (Compulsory river pilot was not a "seaman" for purposes of Jones Act; the aggregation of the vessels he worked aboard, over which he had control while traversing a particular stretch of the Mississippi River, did not constitute an identifiable group of vessels acting together or under one control).
As to Plaintiff's alternative argument that he spent 45 percent of his work time aboard AEP's vessels, Plaintiff has failed to show he had a sufficiently substantial connection to AEP's vessels to qualify him as a Jones Act seaman. Plaintiff did not work exclusively on AEP's barges, but instead worked on whatever barge happened to be at Defendant's terminal. Plaintiff's duties while aboard the various barges in Defendant's facility, including AEP's barges, related solely to loading the vessels while secured to Defendant's dock – classic longshoreman duties. Plaintiff did not "sail with the vessel" once the loading was accomplished. Papai at 559, 117 S.Ct. 1535. Rather, Plaintiff performed a distinct service for each barge which is the sort of "transitory or sporadic" connection to a group of vessels that does not qualify one for seaman status. Id. at 560, 117 S.Ct. 1535 ; see also Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 933 (5th Cir. 2014) (A worker seeking seaman status must demonstrate "that his connection to a vessel or fleet of vessels is, temporally, more than fleeting, and, substantively, more than incidental."); Fazio v. Lykes Bros. S. S. Co., Inc., 567 F.2d 301, 303-04 (5th Cir. 1978) (Plaintiff's contention he was assigned to his shoregang employer's fleet of vessels was without merit, as such an argument "would be tantamount to a longshoreman stating that he is assigned to load and unload all the ships that enter the port of New Orleans and, therefore, he, too, is assigned to a particular group of vessels."); Buras v. Commercial Testing & Engineering Co., 736 F.2d 307, 312 (5th Cir. 1984) (assignment to "identifiable fleeting facilities" is insufficient to confer seaman status).
Viewing the summary judgment record in the light most favorable to Plaintiff, he cannot establish that he is a Jones Act seaman. Plaintiff concedes he never went out on any vessel other than occasionally, as a passenger, to inspect barges at the Carlin fleeting area. He never ate or slept on a vessel, and he had nothing to do with any vessel's navigation. He was not employed by the owners of the various barges, but rather was an employee of a land-based entity. Plaintiff cites no case in which a court has found that the loading of materials onto a vessel is sufficient to establish the relationship presupposed by the Jones Act. The loading of docked vessels is classic longshoreman work, and Plaintiff is the precise type of worker Congress desired to exclude from Jones Act protection. See e.g. Balfer v. Mayronne Mud and Chemical Co., Inc., 762 F.2d 432, 434 (5th Cir. 1985) ; Chandris at 358-59, 115 S.Ct. 2172. In sum, Plaintiff has failed to show there exists a genuine issue of material fact as to whether he was a Jones Act seaman. As Plaintiff is not a seaman, his claims for unseaworthiness and maintenance and cure likewise fail. See e.g. Hall v. Diamond M Co., 732 F.2d 1246, 1248 (5th Cir. 1984) ; Becker, 335 F.3d at 387.
Plaintiff does not argue he is a Sieracki seaman and therefore, the Court does not address whether he could recover for unseaworthiness under the very narrow exception to the rule that only seamen can recover for unseaworthiness. See e.g. Green v. Vermilion Corp., 144 F.3d 332, 337 (5th Cir. 1998).
B. Vessel Negligence
Under the LHWCA, an employer is immune from tort liability for any negligent act committed in its capacity as an employer. 33 U.S.C. § 905(a). The exclusive remedy for a covered employee is compensation benefits, to which the injured employee is entitled without regard to the employer's fault. Id. at § 904. A vessel owner, however, is not immune from suit. Under section 905(b), a worker covered by the LHWCA "may pursue a tort action against the owner of a vessel for acts of vessel negligence." Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 531 (5th Cir. 1991). Such a tort action may also be brought against the vessel's "owner pro hac vice, agent, operator, charter [sic] or bare boat charterer, master, officer, or crew member." 33 U.S.C. § 902(21). "When an employer acts in a dual capacity as vessel owner, 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 at 531.
Here, Plaintiff has sued only his employer, Morton Salt, and not the owner (Regions) or the operator (AEP) of the AEP 4028R. Nevertheless, Plaintiff contends "Morton's supervisor has admitted that when the barges were docked at the Morton Salt dock at Weeks Island that the barge was at that time under the operational control of the dock - in other words, of Morton." [Doc. No. 42 at 24]. The evidence shows Morton Salt was responsible only for loading its product onto barges while docked at Morton Salt's facility. The shipper, AEP, was responsible for furnishing a qualified master and crew, and Morton Salt exercised no control over any of AEP's barges nor over AEP's employees. [Doc. No. 28-2 at 15, 21]. Viewing the facts and drawing all reasonable inferences in favor of Plaintiff, he has failed to show that Morton Salt exerted sufficient control over the AEP4028R to be liable for vessel negligence under section 905(b). See e.g. Ducote v. International Operating Co. of La., Inc., 678 F.2d 543, 545-46 (5th Cir. 1982) (plaintiff's employer, a cargo terminal company, was not the owner pro hac vice of a vessel by virtue of controlling the vessel during cleaning operations, as "all [employer]-controlled movements of the barge were simply incidental to the cleaning and loading of the vessel" and the employer "did not have the right to use the barge for its own purposes in maritime commerce"); Bossard v. Port Allen Marine Service, Inc., 624 F.2d 671 (5th Cir. 1980) (employer was not the owner pro hac vice of the barge upon which its employee was fatally injured; employer had been hired for a discreet job and did not exercise the complete control required for ownership pro hac vice); Payano v. Environmental Safety & Health Consulting Services, Incorporated, 778 Fed.Appx. 313, 314-15 (5th Cir. 2019) (employer/time-charterer, who employee argued exercised operational and navigational control over vessel, did not become owner pro hac vice by controlling vessel's movement for a temporary time and limited purpose; although employer could direct the captain to pull the vessel back or forward, this did not grant the employer unrestricted use of the vessel). Accordingly, Morton Salt is entitled to summary judgment in its favor on Plaintiff's claim of vessel negligence pursuant to section 905(b).
Plaintiff makes no other argument on this issue, nor does he cite any caselaw in support of his position.
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IV.
CONCLUSION
For the reasons set forth above, Defendant's Motion for Summary Judgment [Doc. No. 28] is GRANTED, and all claims asserted herein by Plaintiff against Defendant are DISMISSED WITH PREJUDICE.