Opinion
Civil Action No. 01-2397, SECTION "C"(5)
October 11, 2002
ORDER AND REASONS I. Introduction
Darlene Taylor Dalleo ("Dalleo" "Plaintiff") has filed a claim individually and as the surviving spouse of Salvadore Dalleo, III, pursuant to section 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA") ( 33 U.S.C. § 901 et seq.) against River Construction, Inc. ("River Construction"), River Contractors, Inc., Redwing Marines, Inc., Jet Industries, Inc., Taylor Industries, Inc., Louisiana Workers' Compensation Corporation ("LWCC"), Bunge North America, Inc. ("Bunge"), Bunge Corporation, Bunge Properties, Inc., Bunge Cranes, Inc., Bunge Global Properties, Inc., Great Grain Elevator Insurance Company (collectively "Defendants"). Presently before the Court is River Construction's and Louisiana Workers' Compensation Corporation's Motion for Summary Judgment. After reviewing the motions, the memoranda and exhibits submitted, the applicable law, and the case record, the Court GRANTS summary judgment in favor of the Defendants, River Construction, Company, Inc., and Louisiana Workers' Compensation Corporation.
River Construction Company, Inc., is incorrectly referred to as River Construction, Inc.
II. Background
Salvadore Dalleo, III was injured while working for River Construction on August 9, 1998, when he fell while attempting to climb down the timbers and crossbeams of a dock and onto a barge that was being used by River Construction to repair the timbers of a dock located at the Bunge North America ("Bunge") facility in Destrehan, Louisiana. Plaintiff alleges that the only means of egress and ingress from the dock to the barge was by climbing down the timbers and crossbeams of the dock. Plaintiff alleges that River Construction was at fault in causing the accident by failing to provide a safe means of egress and ingress from the dock to the barge. Plaintiff alleges that Salvadore Dalleo, III died as a result of his August 9, 1998 accident on June 2, 2001.
III. Summary Judgment
The Court can grant a motion for summary judgment only when 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). Upon such a showing, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Id. A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a motion for summary judgment, the Court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
IV. Discussion
Plaintiff's theory of liability is that River Construction had a maritime duty to exercise due care in furnishing a reasonably safe means of access from the dock to the deck of the barge. Plaintiff contends that this is a valid negligence claim against a vessel owner, under 33 U.S.C. § 905(b). (Rec. Doc. No. 64). Defendant contends that Plaintiff's negligence claim is an unseaworthiness claim in disguise, and that a longshoreman's claim against a vessel, under § 905(b) cannot be based upon the warranty of seaworthiness or breach thereof. (Rec. Doc. No. 54). Alternatively, Defendant contends that a reasonably safe means of access was provided, of which Mr. Dalleo chose not to avail himself.
Section 905(b) expressly provides that a longshoreman whose injury is caused by the negligence of a vessel may bring a third-party action for damages against the owner of the vessel. 33 U.S.C. § 905(b). "[S]uch a separate action is authorized against the vessel even when there is no independent stevedore and the longshoreman is employed directly by the owner." Jones Laughlin Steel Corp. v. Pfeifer, 464 U.S. 523, 530 (1983). Under § 905(b), however, "a vessel owner acting as its own stevedore is liable only for negligence in its `owner' capacity, not for negligence in its `stevedore' capacity." Pfeifer, 462 U.S. at 531 n. 6.
Although § 905(b) "eliminated a longshoreman's seaworthiness remedy against a vessel and replaced it with a negligence standard, it did not specify the particular acts or omissions of a vessel that would constitute negligence." Castorina v. Lykes Bros. Steamship Co., Inc., 758 F.2d 1025, 1032 (5th Cir. 1985). In Scindia Steam Navigation Co. v. DeLos Santo, 451 U.S. 156 (1981), the Supreme Court set forth the basic principles governing a vessel owner's duty to a longshoreman employed by an independent stevedore. First:
The vessel owner must warn the stevedore of any hazards with respect to the ship or its equipment of which the shipowner is aware or should by the exercise of reasonable care be aware which would not be obvious to or anticipated by a reasonably competent stevedore.Castorina, 758 F.2d at 1032 citing Scindia 451 U.S. at 167. Second:
Once the shipowner turns the vessel over to the stevedore and cargo operations begin, the shipowner may rely on the stevedore to discharge his duties in a workmanlike manner, avoiding exposing the longshoremen to unreasonable hazards, without supervision by the ship.Id., citing Scindia, 451 U.S. at 170.
The Supreme Court also recognized that "the shipowner may have a duty to intervene when it becomes aware of a dangerous condition and the stevedore's continued operations are so `obviously improvident' as to `present an unreasonable risk of harm to the longshoremen'" Id., citing Scindia, 451 U.S. at 175-76. The Fifth Circuit has clarified this duty of the vessel owner to intervene "only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation." Helaire v. Mobile Oil Company, 709 F.2d 1031, 1038-39 (5th Cir. 1983) (emphasis in original) (finding no duty on the part of the vessel owner to "discover the condition or to anticipate the danger").
In Castorina, the Fifth Circuit addressed a factual situation similar to the instant case, where a shipowner was conducting its own stevedoring operations. In that case the Court determined that Scindia and the general scheme of the LHWCA required the Court "to separate the negligence of the shipowner and that of the stevedore." Castorina, 758 F.2d at 1033 ("The stevedore's knowledge of dangerous conditions that may have arisen during the cargo operations should not be imputed to the shipowner, nor should the shipowner be deemed to know that the stevedore's actions in dealing with such dangers are obviously improvident.").
Here, River Construction, as shipowner provided a vessel with a reasonably safe means of access to River Construction as dock repair contractor. It is undisputed that on the day of the accident, the barge supplied by River Construction vessel owner had a personnel basket attached to it. Both Defendant and Plaintiff submit exhibits that provide evidence of the presence of the personnel basket at the time of the accident. The personnel basket was attached to a crane on the barge and served as a means to access the barge. ( See Rec Doc. No. 64, Ex. 8, at 2). Mr. Dalleo, himself, admitted that he had used the personnel basket on Saturday, August 8, 1998, and that the basket was present on the day of accident, Sunday, August 9, 1998. ( See Rec Doc. No. 54, Ex. A).
Kevin Murphy, a River Construction employee on the barge at the time Mr. Dalleo fell, confirmed the presence of the personnel basket. ( See Rec Doc. No. 64, Ex. 1, at 6-7). Murphy stated that at the time of the accident the whole crew was already on the barge and had taken the personnel basket down from the dock. ( Id.). Murphy had no idea why Mr. Dalleo did not use the personnel basket. ( Id.). William D. Weidner, III., president of River Construction confirmed the presence of the personnel basket. ( See Rec Doc. No. 64, Ex. 4, at 4, 7-9).
Another member of the work crew, Jeff Mooney, stated that everyone climbed down the timbers on the day of the accident, even though the usual practice was for the crane operator to climb down and then raise the basket for everyone else. ( See Rec Doc. No. 64, Ex. 7, at 1-2). Still, Mooney confirmed the presence of the basket on the day of the accident and refused to say that Mr. Dalleo had no choice but to climb down. ( Id. at 5-6). In a later deposition, Mooney stated that Mr. Dalleo chose to climb down the timbers. ( See Rec Doc. No. 64, Ex. 8).
The Court is satisfied that at the time the barge was turned over from River Construction as vessel owner to River Construction as employer that a reasonably safe means of access was present. Once the vessel is transferred to the employer, the vessel owner can rely on the employer to conduct its operations safely. In Castorina, longshoremen unloading raw asbestos from the holds of the vessel were not wearing respirators or other protective equipment, despite the open and obvious conditions both to themselves and the stevedoring crew. Castorina, 758 F.2d at 1036. ("At that point, Lykes as vessel owner was entitled to rely on Lykes as stevedore to conduct offloading operations properly."). Here, the situation is identical. River Construction as vessel owner was entitled to rely on River Construction as dock repair contractor to transport the men properly.
Mr. Dalleo was an employee of River Construction as dock repair contractor. When he climbed down the timbers and crossbeams of the dock, he was acting as an employee of River Construction in that capacity alone. He was not acting in any way as an employee of River Construction in its capacity as vessel owner.
A recent case from the Second Circuit applies the Scindia dual capacity analysis to a construction contractor employing LHWCA covered harbor workers, like Mr. Dalleo, who are not longshoremen. In Gravatt v. The City of New York, 226 F.3d 108 (2d Cir 2000), Steven Gravatt, a journeyman dock builder was employed by a construction company retained by the City of New York to repair one of its bridges. Gravatt was injured while working on a barge at the mid-river construction site. Gravatt, 226 F.3d at 111. The repair of the bridge required the use of several barges, however, Gravatt's duties as dock builder required him to spend nearly all his time working directly on the fender system of the bridge.
The fender system is described as the "wooden, pier-like structures that surround a bridge's mid-river stanchion in order to protect it in case of collision with shipping." Gravatt, 226 F.3d at 112.
The Second Circuit aptly found that in applying the Scindia test, "[t]he negligent actions of a dual-capacity defendant's employees must be analyzed to determine whether they were undertaken in pursuance of the defendant's role as vessel owner or as employer." Id. at 124-25. The Gravatt Court reached this decision after considering First and Fifth Circuit precedent and finding it comported with Second Circuit recognition that "Congress did not intend the rights of employees and the liabilities of employers and vessels under the LHWCA to turn on whether the injured employee was employed by an entity acting in the dual capacity of employer and vessel owner." Id. at 125 (citation omitted). Further, the Second Circuit found that "the key issue is whether the shipowner's employees who were at fault committed the negligent acts in their capacity as agents of the vessel . . . or as employees . . . on the other." Id., quoting Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir. 1979).
In Gravatt, the Second Circuit found that the task of the materials barge as a vessel was to transport the building materials from Newark, New Jersey to the mid-river work site and to transport debris from the work site back to Newark. On the other hand, the task assigned to the negligent Holzheuer and the work crew was to make repairs to the 145th Street Bridge. Id. at 125 ("The performance of the construction work was separate and apart from the vessel's work."). The fact that the accident occurred on the barge did not justify imposing liability on the owner of the barge as a third party. Id.
The Court determined that the Gravatt and another worker were instructed by the foreman, Holzheuer to perform a task in an unsafe and negligent manner, contrary to industry practice and routinely violated by Gravatt's employer, Simpson Brown.
Here, Mr. Dalleo fell while climbing down the timbers of the dock. The task of the vessel was to supply a work platform from which repair work on the dock timbers could be facilitated. Another task of the vessel was to supply a safe means to transport the work crew down from the dock to access the timbers being repaired. The task assigned River Construction as employer was to make repairs to the dock, which included safely managing the work crew members and access to the construction site.
Here, the construction site required that the work crew be transported between the dock and the barge. Even if it were negligent on the part of River Construction, or one of its agents, to have failed to stop Mr. Dalleo from climbing down the timbers, or to have permitted him to climb down, or even to have prohibited him from using the personnel basket, altogether, and forced him to climb down the timbers, such action or inaction was attributable to the negligence of River Construction in its capacity as contractor performing dock repairs, not in its capacity as vessel owner.
Applying the facts of the case to the Scindia standard, there is nothing in the record to suggest that River Construction as vessel owner was negligent. First, River Construction as vessel owner had a duty to turnover a reasonably safe vessel and notify River Construction as employer of any known hazards. It is not alleged, nor are there any facts to suggest that the barge was in a dangerous condition. Second, after turning over the vessel, River Construction as vessel owner was entitled to rely on River Construction as employer to use the barge safely. Finally, absent actual knowledge of an "obviously improvident" condition that "presents an unreasonable risk of harm to the longshoremen" ( Scindia, 451 U.S. at 175-76), and actual knowledge that the employer will not rectify the situation, ( Helaire, 709 F.2d at 1038-39), River Construction as vessel owner had no obligation to intervene.
V. Conclusion
Plaintiff has failed to establish that River Construction in its capacity as vessel owner was negligent. Because § 905(b) does not impose liability on the part of River Construction in its capacity as employer, Defendant, River Construction Company, Inc. and therefore, its insurance carrier, Louisiana Workers' Compensation Corporation are entitled to judgment as a matter of law. Accordingly, IT IS ORDERED that Defendants' Motion for Summary Judgment is hereby GRANTED with prejudice.