Opinion
Civil Action No. 03-0791 Section: I/3.
December 8, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BACKGROUND
Plaintiff, Willie J. Garry, brought this vessel negligence action after being injured aboard the M/V LEIV ERIKSSON in September, 2001. This action was initiated against the vessel owner pursuant to the Longshoremen Harbor Workers Compensation Act, 33 U.S.C. § 905(b). At all relevant times herein, plaintiff was employed by intervenor, Freide Goldman Halter Inc. ("FGH"), a rig design and construction company.
In 1998, defendant-vessel owner, Ocean Rig I A/S, Ocean Rig, Inc., Ocean Rig A/S/A, and U.S. Ocean Rig, Inc. (collectively "Ocean Rig"), bought two bare hulls, named BINGO I and BINGO II, from a Chinese shipyard. Ocean Rig then contracted with FGH for the remaining construction of the two drilling rigs, eventually named the M/V LEIV ERIKSSON and the M/V ERIK RAUDE. FGH was responsible for the design, engineering, outfitting, construction, commissioning and testing of the rig. FGH's obligations included the design and installation of all equipment, engines, thrusters, cranes, drilling equipment, navigation equipment, winches, galley equipment, living quarters, pumps, winches, etc. The project was very substantial as the amount charged by FGH to design, outfit, and complete the LEIV ERIKSSON exceeded $135 million dollars.
The LEIV ERIKSSON is a dynamically positioned, self-propelled semi-submersible drilling rig. It has two pontoons at the bottom of the rig and each pontoon is equipped with four thruster rooms. The thrusters are used for the positioning of the rig when on location.
Exhibit No. 55, Amended and Restated Completion Contract, Section 9.1 and the Appendix A, the Works, Section 1.1. Some Ocean Rig-supplied equipment was excepted, but none of that equipment is at issue in this case.
The LEIV ERIKSSON (also "LEIV EIRIKSSON") was the BINGO I (also "BINGO 9000-1").
FINDINGS OF FACT
1. In 2001, plaintiff was employed by FGH as a foreman overseeing a labor gang. While working at FGH, plaintiff worked on the construction and/or outfitting of a number of rigs and towboats. At times, plaintiff had approximately sixty employees under his supervision. He had various crews involved in cleaning and maintenance operations. At the time of the accident, plaintiff had a crew of five. Plaintiff was responsible for completing time sheets and all payroll paperwork associated with his crew, while Ocean Rig supervisors signed off on the time sheets.2. Under the terms of the contract, FGH was obligated during construction to maintain the vessel and its various areas and compartments in a clean and orderly manner. FGH was required to keep all areas free of trip hazards, rubbish, and trash of any kind. FGH was also obligated to deliver the vessel "in a clean state and free from rubbish." FGH performed this obligation under the contract and no Ocean Rig employees were assigned to do that job. Ocean Rig and FGH renegotiated the contract throughout the duration of the completion of the vessel due to time and money issues.
Exhibit No. 55, Amended and Restated Completion Contract, Appendix A, Section 6.26 (Bates stamped FGH-003-1508).
McGuirt trial testimony.
3. Sometime in 2001, the LEIV ERIKSSON was towed into deeper water in the Gulf of Mexico than was available alongside the FGH shipyard. FGH and its sub-contractors installed thrusters in the number 1, number 3, and number 4 rooms on each pontoon. The pontoons are tubular structures with a small, narrow corridor, which extend the length of the pontoon and provide access to the individual thruster rooms. No thrusters or other equipment were installed in the number 2 thruster room. The number 2 thruster room was also called "the future thruster room" because it could have a thruster installed at some point in the future. The future thruster room is a confined space, approximately 25 square feet, which opens on one side to the starboard pontoon corridor.
4. Over the course of FGH's completion of the rig, rainwater, hydraulic fluid, oil and other fluids collected, spilled, leaked, or were transferred to various areas of the rig. Plaintiff's primary job was to clean the rig, including the thruster rooms. Once the liquid was removed from a thruster room, plaintiff and his crew applied degreaser to the floors and walls, washed off the degreaser, and completely wiped down the area.
Garry trial testimony; Edgar deposition, pp. 40, 56; Burns deposition, p. 47.
5. Between August, 2001, and September, 2001, plaintiff and his crew would travel daily by boat to the LEIV ERIKSSON and return to land each evening. Plaintiff's supervisor was Mark Tanner. Tanner was FGH's general foreman for onshore and offshore cleaning areas, but he was solely stationed onshore.
Edgar deposition, p. 55.
6. Prior to the accident, residual oil and water from the three active thruster rooms had been pumped into the future thruster room by FGH using FGH's portable pumps. Plaintiff testified that the liquids were moved to the future thruster room at the direction of an Ocean Rig supervisor, Mr. Waldemier. Essentially, the future thruster room was used as a holding area for refuse. The final thruster to be cleaned was the future thruster room, where plaintiff and his crew had pumped the liquids from the other thruster rooms. The depth of the accumulated liquid in the future thruster room was approximately 2 1/2 feet, estimated to reach just below plaintiff's knees.
Cusiter deposition, pp. 12-13; Burns deposition, pp. 9-10, 11-12.
Cusiter deposition, p. 12.
7. The future thruster room had a catwalk described as a railed and grated walkway raised three feet above the thruster room floor. The catwalk was located approximately 6 or 7 feet from the floor of the room. Below the catwalk were structural beams and surfaces as well as a domed cap where the future thruster could be installed. The future thruster room, unlike the other thruster rooms, was not equipped with a fixed ladder.
8. The future thruster room contained a fixed pump as part of the vessel's bilge system. It was part of the equipment to be designed and installed by FGH. The fixed pump within the future thruster room was installed by FGH sometime prior to the incident. The fixed pump could not pump the liquid out of the future thruster room, either because the fixed pump was not properly working or because of the liquid's viscosity.
Exhibit No. 55, Amended and Restated Completion Contract, Appendix E, Sec. 803.
Cusiter deposition, pp. 22-23.
9. Attempts to use the fixed pump and rig bilge system to remove the fluid were unsuccessful. In addition to the fixed pump, FGH provided plaintiff's crew with two or three portable pumps and hoses which plaintiff's crew maintained and stored in the rig's pontoon. After it was determined that the fixed pump was not working, plaintiff and his crew attempted to use FGH's portable pumps to transfer the accumulated fluids; however, the portable pumps also were not effective in removing the liquid. After it was determined that the accumulated fluids could not be pumped out of the future thruster room by the bilge pump or by the portable pumps, plaintiff notified the LEIV ERIKSSON's 1st Assistant Engineer (also called the Technical Section Assistant Leader), David Cusiter, of the situation. Cusiter's position involved supervision of Ocean Rig's operational and technical crew on board the vessel. Sigmund Bornivik, another Ocean Rig supervisor, was Cusiter's "back-to-back" and worked shifts opposite to those worked by Cusiter. Bornivik was not aboard the vessel on the date of plaintiff's accident. However, Bornivik did request the cleaning crew for the thruster rooms.
Edgar deposition, pp. 47-48.
At trial, plaintiff testified that the portable pumps were only removing the fluids at a trickle. See also Edgar deposition, pp. 56-58, 80-81; deposition of Burns, p. 32.
Cusiter deposition, p. 13.
10. Cusiter investigated the situation in the future thruster room by examining the strainer and suction valves of the fixed pump. Cusiter was not able to resolve the problem, and he told plaintiff to remove the fluid "however plaintiff saw fit." While Cusiter knew that the fixed pump servicing the future thruster compartment remained inoperable when plaintiff and his crew were working in the area, Cusiter neither knew nor was he responsible for the operational details of plaintiff's work.
At Cusiter's request, an FGH employee involved in the commissioning process, Doug Butler, tried to repair the fixed pump before plaintiff's accident. See Garry trial testimony; Edgar deposition, pp. 69-70; Burns deposition, p. 51. Another individual, "Scooter," also examined the fixed pump at some time after plaintiff's accident; however, it is unclear whether Scooter was a FGH or an Ocean Rig employee.
11. As of the date of plaintiff's accident, it is unclear whether the future thruster room, the bilge system, or the fixed pump in the future thruster room had been signed over, commissioned, or delivered to Ocean Rig.
McGuirt trial testimony; Cusiter deposition, p. 45.
12. Plaintiff and his crew returned to shore the evening after they first learned that neither the fixed pump nor the portable pumps would be effective in removing the oil and other fluids from the future thruster room.
13. The following day, September 10, 2001, plaintiff and his crew returned to the vessel sometime between 9:00 a.m. and 10:00 a.m. In order to remove the liquid, they implemented a bucketing system, by which they would climb down into the thruster room over the railing of the catwalk and remove the oil using five-gallon buckets and ash shovels. They were required to climb over the catwalk railing and step down onto various surfaces in the thruster room, including the dome of the thruster cap, to reach the floor of the room. Plaintiff both directed and assisted in the removal of the liquid.
14. On September 10, 2001, plaintiff, having worked in the bottom of the future thruster room for a few hours and while in the process of removing accumulated liquid from the future thruster room, stepped on the thruster cover when climbing down into the compartment. In the process of doing so, plaintiff slipped and injured his knee.
15. Plaintiff testified that the bucketing operation was his own idea and that no one from Ocean Rig assisted them or told him how to clean this area. Cusiter provided no equipment, instructions or suggestions to plaintiff with respect to how he and his gang were to clean the area. Plaintiff testified that without the fixed pump working, it was clear that the method used was the only possible method to clean the future thruster room. However, plaintiff also testified that he originally thought he would be able to safely do the job.
Deposition of Burns, pp. 20-21; Garry trial testimony.
16. Plaintiff testified that before returning to the vessel on the day of his accident, he did not discuss, either onboard the vessel or at the shipyard, the problems that he and his crew faced with respect to the future thruster room with anyone at FGH. Plaintiff did not speak with his onshore supervisor, Tanner, about the fixed pump, the accumulated oil, or alternative methods of performing the work without a functional pump or a ladder. Plaintiff also did not attempt to locate any additional equipment, portable pumps or ladders while at the shipyard. Plaintiff and his crew looked for a ladder on the vessel, but the one that they found would not fit in the elevator and, therefore, it could not be taken to the thruster area. Plaintiff also testified that he found smaller ladders that could have been taken down to the thruster area, but that those ladders would not have been able to reach the bottom of the compartment from the catwalk. Plaintiff also did not ask Cusiter for a ladder to access the bottom of the future thruster compartment.
17. Cusiter did not directly supervise or control any FGH employees or any subcontractors. The only contact Cusiter had with respect to the work being done in the future thruster room was through FGH's foreman, in this case, plaintiff. No one from Ocean Rig was with plaintiff or his crew or in the thruster room when plaintiff formulated his plan to remove the oil. All directions to the crew as to the work that had to be performed and how it was to be performed came from plaintiff. In addition, there were communications systems, including e-mail, telephone, and radios, that allowed regular communication between plaintiff and his onshore supervisor, Tanner. Plaintiff did not attempt to use any such method to contact Tanner or anyone else at FGH to seek equipment, advice or direction.
Garry trial testimony; Cusiter deposition, pp. 14-15, 16-17.
Cusiter deposition, p. 52; Burns deposition, pp. 9-10.
Deposition of Brown, p. 40.
Garry trial testimony; Brown deposition, p. 69; Edgar deposition, pp. 16, 31.
McGuirt trial testimony.
18. Neither Cusiter nor Ocean Rig had control over the work being done in future thruster room. Cusiter did not attempt to locate a ladder for plaintiff and his crew to use. Cusiter merely pointed out tasks that needed to be completed; Cusiter's direction to plaintiff involved no operational detail. Cusiter was not in charge of determining how plaintiff's work would be completed, nor was he responsible for equipment or methods. Plaintiff testified that Cusiter did assist him in acquiring drums or tanks to store the liquid so that it could be moved out of the thruster areas.
Cusiter deposition, p. 23-24.
19. Plaintiff reported the incident to the rig medic, but his name was not recorded on the rig's hospital register. There is no record of the incident in vessel documents, and Cusiter, the Ocean Rig employee who plaintiff reports talking to about cleaning the thruster area, testified that he first learned of plaintiff's accident when he was contacted by his employer in conjunction with this litigation, nearly three years after the incident. After the incident, plaintiff continued to work until September 21, 2001, when he and his crew were laid off as a result of completing their job.
Exhibit No. 43, Bingo I Hospital Register; Cusiter deposition, pp. 6-7.
20. Plaintiff formally reported the accident on October 8, 2001, over two weeks after he was laid off and almost a month after the incident. Both FGH and FGH's insurer have paid LHWCA compensation benefits to plaintiff on a bi-weekly basis at a rate of $723.61 per week.
Exhibit No. 33, FGH medical treatment form.
CONCLUSIONS OF LAW
1. Plaintiff's remedy against the defendant-vessel owner, Ocean Rig, is limited by the Longshore and Harbor Worker's Compensation Act ("LHWCA") and the jurisprudence interpreting section 905(b) of that Act. The right of ship repairers, longshoremen, and employees of independent contractors covered by the LHWCA, 33 U.S.C. § 901 et seq, to sue a vessel owner for negligence arises exclusively under 33 U.S.C. § 905(b). The duty of a vessel owner to LHWCA-covered employees of independent contractors working aboard a vessel is governed by the principles enunciated by the United States Supreme Court in Scindia Steam Navigation Co. v. De Los Santos (" Scindia"), 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); Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) (applying the LHWCA and Scindia to an independent contractor working aboard a vessel). The parties agree that Scindia and its progeny apply in this case.
33 U.S.C. § 905(b) provides in relevant part:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
2. The Supreme Court has recognized that "negligence" is not defined within the LHWCA, and that the contours of vessel owners' duties are "left to be resolved through the application of accepted principles of tort law and the ordinary process of litigation." Scindia, 451 U.S. at 165-66, 101 S. Ct. at 1621; see Howlette v. Birkdale Shipping Co., S.A., 512 U.S. 92, 97-98, 114 S. Ct. 2057, 2063, 129 L. Ed. 2d 78 (1994).
3. Fifth Circuit law interprets Scindia to outline three duties owed to independent contractors by vessel owners: 1) the "turnover duty," which relates to the condition of the ship upon the commencement of the contractor's operations; 2) the "control duty," which requires a vessel owner to prevent injuries to contractors in areas remaining under the "active control" of the vessel; and 3) the "duty to intervene," which concerns the vessel's obligation in areas under the principal control of the contractor. Moore v. Angela MV, 353 F.3d 376, 380 (5th Cir. 2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S. Ct. 2057, 129 L. Ed. 2d 78 (1994)). The Scindia duties are exceptions to the general rule that the primary responsibility for protecting contractors is the party best able to prevent injuries, i.e., the employer.
4. This Court previously granted partial summary judgment in favor of the defendant and against the plaintiff with respect to the turnover duty and the duty to intervene. The only issue that remains is whether Ocean Rig owed and breached the "control duty."
5. The control duty "requires [vessel owners] to exercise reasonable care to prevent injuries to [contractors] in areas that remain under the `active control of the vessel'". Howlette v. Birkdale Shipping Company, S.A., 512 U.S. 92, 98, 114 S. Ct. 2057, 2063, 129 L. Ed. 2d 78 (1994). The control duty, or "active operations doctrine," applies only after the vessel owner has turned over control of an area to an independent contractor. If the vessel owner is actively involved in the contractor's operations, or if the vessel owner fails to exercise due care to avoid exposing the employee to harm from hazards he may encounter in areas, or from equipment, under the active control of the vessel owner during the contractor's operation, then liability may be imposed. See Charles M. Davis, MARITIME LAW DESKBOOK § 7 at 227 (2001).
6. Fifth Circuit law equates the control duty with "operational control." See Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir. 1997) (stating that "[the control] duty recognizes that although a vessel owner no longer retains the primary responsibility for safety in a work area turned over to an independent contractor, no such cession results as relates to areas or equipment over which the vessel's crew retains operational control"). In order for liability to be imposed under the active control duty, such active control must be over the actual methods of work used by the independent contractor and the operative details of the work. Breaux v. United States, Civ.A. No. 95-2924, 1996 WL 626328 *3-*4 (E.D. La. Oct. 23, 1996) (citing 1 T. Shoenbaum, ADMIRALTY MARITIME LAW, § 7-10 at 478-79 (4th ed. 2001); see also Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1259-60 (9th Cir. 1998) (finding no liability because the vessel owner did not actively involve itself in the operations of the stevedore).
7. When attempting to establish that a vessel owner owed the control duty, "a plaintiff is required to show more than mere casual use or ownership of parts of the vessel." Wright v. Gulf Coast Dockside, Inc., No.Civ.A. 97-2745, 1998 WL 334851 *2 (E.D. La. June 23, 1998).
8. Plaintiff did not establish that Ocean Rig, through its supervisors, actively involved itself in plaintiff's operations. Ocean Rig did not have control of the operations which were being directed by plaintiff as foreman for FGH. Ocean Rig did not have active control of the area when plaintiff and his crew were working in the thruster area.
9. Regardless of whether the future thruster area or the vessel's bilge system had been commissioned, plaintiff himself constructed the method and supervised the operations that specifically caused his injury. Similarly, even if the Court were to believe plaintiff's testimony that the bucketing operation was the only way to remove the oil, the Court finds that Ocean Rig was not unreasonable in expecting plaintiff to perform the operation in a safe way. Cusiter's knowledge that plaintiff was accessing the future thruster room without a ladder does not change the fact that an independent contractor is primarily responsible for the safety of its employees.
10. Plaintiff argues that certain provisions in the contract between Ocean Rig and FGH created a duty; however, plaintiff has not provided the Court with any legal authority which would mandate imposing a Scindia duty based on contractual language as opposed to the actions of the parties and the circumstances onboard the vessel.
Specifically, plaintiff argues that the Remuneration Agreement granted Ocean Rig control over the vessel. See Exhibit No. 65. However, the same agreement also provided that FGH remained responsible for its equipment and employees.
11. Plaintiff has failed to meet his burden of proof and, therefore, he has failed to prove by a preponderance of the evidence that Ocean Rig had active control of the future thruster room or operational control of the work being done at the time of plaintiff's accident. Accordingly, Ocean Rig is not liable to plaintiff pursuant to 33 U.S.C. § 905(b).
Conclusion
Based on the foregoing findings of fact and conclusions of law, IT IS ORDERED that judgment shall be entered in favor of defendant, Ocean Rig, and against plaintiff, Willie J. Garry, each party to bear its own costs.