Opinion
Civil Action No: 01-2179
July 31, 2002
Kevin Amadeus Rieth, [COR NTC], Kevin A. Rieth, Attorney at Law, Gretna, LA, Michael Samuel Zerlin, [COR LD NTC], Michael S. Zerlin, Attorney at Law, Thibodaux, LA for MICHAEL J JOINER, plaintiff.
Travis R. LeBleu, [COR LD NTC], Johnson, Stiltner Rahman, Baton Rouge, LA, LOUISIANA WORKERS' COMPENSATION CORPORATION intervenor.
Gary Alan Hemphill, [COR LD NTC], Jason A. Schoenfeld, [COR] for SEABULK OFFSHORE LTD, defendant.
Terriberry, Carroll Yancey Energy Centre, New Orleans, LA for HYDE SHIPPING CORPORATION, defendant.
ORDER AND REASONS
Before the Court is defendant, Seabulk Offshore, Ltd. (Seabulk's) Motion for Summary Judgment (Rec. Doc. 17) pursuant to F.R.C.P. Rule 56. Plaintiff, Michael Joiner, opposes the motion. The matter is before the Court on the briefs, without oral argument.
The plaintiffs' action against the vessel in this case is predicated upon Title 33 U.S.C. § 905 (b) of the Longshore and Harbor Worker's Act (LHWCA). The provisions of this act authorize a repairman, such as the plaintiff, to bring a negligence action against the vessel's owner. The basis of the defendant's motion for summary judgment is that under the undisputed facts, the vessel owner had no duty with respect to the negligence alleged.
BACKGROUND
The plaintiff, Michael Joiner, was employed by Energy Technical Services as an electrical technician. According to Mr. Joiner's deposition, he was hired by Energy Technical Services to repair electrical equipment such as lights and broken switches on vessels. On July 19, 1998, Mr. Joiner responded to a call from SEABULK to repair a debarkation light aboard the SEABULK MISSOURI. He testified in his deposition that this was not the first time he had been called upon to repair debarkation lights on vessels.
Upon arriving at the vessel, Mr. Joiner met with the captain and engineer who informed him that there was a malfunctioning light on the port side of the vessel. Mr. Joiner observed that the malfunctioning light was located on the second level of the vessel's port side. He was directed to the second level of the stem of the vessel where a power control panel was located to attempt to determine if the port side of the vessel and hence the debarkation light was getting power.
In order to troubleshoot the problem with the debarkation light it, was necessary for Mr. Joiner to enter the stern power control panel. Mr. Joiner opened the right access door to the power control panel but was unable to reach the panel with either his hand or a long screwdriver. He then entered the left access door to the power control panel and attempted to get into a crawl space under the panel. He testified that he has no clear memory of what happened next but apparently at this point he was shocked by an electrical current that rendered him unconscious.
Mr. Joiner did not attempt to turn off the power to the vessel. Nor did he attempt to turn off the power to the control panel before beginning his investigation of the source of power failure to the debarkation light. In fact he stated in his deposition that it would have been safer if he had turned off the power to the control panel. There is no indication that the captain, engineer or any member of the crew had knowledge of any hazardous condition inside the crawl space under the power control panel.
DISCUSSION
Summary judgment may be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). All disputed facts and reasonable inferences are viewed "in the light most favorable to the nonmoving party." Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). The Court notes that all disputed facts and reasonable inferences will be viewed in the light most favorable to the plaintiff.
Recovery for injury to a person, other than a Jones Act seaman, working on a vessel is governed by the LHWCA, 33 U.S.C. § 901-950. Section 905(b) permits a worker to recover from a vessel owner for personal injury "caused by the negligence of the vessel." The United States Supreme Court defined the vessel's duty to longshoremen under § 905(b) in Scindia Steam Navigation v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981),
Section 905(b) provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, 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. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services, no such action shall be permitted if the injury was caused buy the negligence of persons engaged in providing ship building or repair services to the vessel 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 in this chapter.
In Scindia, the Court held that a vessel owner has three duties to a longshoreman engaged in stevedoring operations. First, before operations begin, the owner must 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 or reasonable care to carry on its cargo operations with reasonable safety . . ." Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. The shipowner may rely on the stevedore to perform its work with reasonable care, but must warn the stevedore of "any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known to the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work." 451 U.S. at 166-167, 101 S.Ct. at 1621-22. Second, once the work begins, the shipowner has no general duty to supervise, inspect, or monitor the stevedoring operations for dangerous conditions that develop during that process unless required to do so by contract, positive law, or custom. Id. at 167-72, 101 S.Ct. a 1622-24. "The shipowner, within limits, is entitled to rely on the stevedore, and owes no duty to longshoremen to inspect or supervise the cargo operations." Id. at 169-72, 101 S.Ct. at 1623-24 (original emphasis). Third, the shipowner is entitled to rely on the stevedore's judgment only until the shipowner becomes aware of a hazard on the ship that the stevedore is unreasonably failing to protect the longshoremen against, at which time it has a duty to intervene and remedy the hazard. Although the shipowner is deemed to know about hazards existing before work begins, it must have actual knowledge of hazards which develop during the operations. Id. at 175-76, 101 S.Ct. at 1626.
The Fifth Circuit has enunciated these three specific legal duties that a vessel owner owes to independent contractors working on a vessel under the ambit of section 905(b) and Scindia as: (1) the turnover duty, (2) the duty to protect against hazards arising in areas or equipment under the vessel's active control, and (3) the duty to intervene when the vessel owner knows of a serious hazard and the stevedore improvidently decides to ignore that risk. Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31 (5th Cir. 1997).
This Circuit has held that the Scindia principles apply to all longshoremen and harbor workers covered by the LHWCA, including those employed by an independent contractor doing repair and maintenance work on a vessel. Hill v. Texaco, 674 F.2sd 447, 451 (5th Cir. 1982). Further, the various duties owed by a shipowner to repairmen break down into essentially three categories: (1) The duty owed to a repairman prior to and at the commencement of the repair operation; (2) the duty owed when the vessel owner actively participates in the repair operation; and (3) the duty owed once the repair operation begins. Further, once the independent contractor begins work, the vessel owner has no general duty to inspect or supervise the longshoreman's work in order to discover dangerous conditions that might develop within the confines of the contractor's operations. Scindia, 101 S.Ct. at 1624. "Scindia entitles the shipowner to rely on an `expert and experienced stevedore' acting with reasonable care. . . . Because the shipowner has no duty to anticipate the actions or inaction of a careless stevedore, Morris must look only to his employer for compensation for his injuries." Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67 (5th Cir. 1987) cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988).
The Fifth Circuit has found that shipowner liability may arise: (1) If the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known; (2) for injury caused by hazards under the control of the ship; and, (3) if the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge both of the hazard and the stevedore, in the exercise of "obviously improvident" judgment, means to work on in the face of it and therefore cannot be relied on the remedy it. Masinter v. Tenneco Oil Co., 867 F.2d 892 at 896-97 (5th Cir. 1989).
It is clear that the instant case involves a condition that arose prior to the commencement of the repair operation. Although it is unclear what exactly caused the plaintiffs' shock, it was in place and the shock occurred after the plaintiff entered the space behind and under the power control panel. Scindia requires that the shipowners must provide the independent contractor with a reasonably safe work place when the vessel is "turned over". Here, the captain and engineer told Mr. Joiner as much as they knew about the condition of the debarkation light. The owners of the Seabulk Missouri employed Energy Technical Services as an expert independent contractor whose employees were required to have skills which neither the owners nor their employees possessed, to perform a hazardous activity in dealing with electricity. The owners and their employees could not know the extent of damage to the power control panel or the risks that repair of the panel would necessitate. This is specifically why they called in an electrician accustomed to working on vessels and in particular, as stated in the plaintiffs' deposition, correcting problems with debarkation lights. The owners had to rely on the independent contractor to identify and correct the problem and his use of reasonable care in doing so. "A ship may not be found negligent merely because a condition of the ship that requires repair or inspection injures the person hired to inspect or repair that condition." Stass v. American Commercial Line, Inc., 720 F.2d 879, 883 (5th Cir. 1983). "In the context of repair operations, however, a vessel owner's duty to the shipyard and its workers is subtly altered. The courts have long recognized that the vessel owner has no duty to deliver his ship to the shipyard in a hazardfree condition, when the requested repairs would remedy the hazards which cause the injury". Id. 720 F.2d at 882, citing West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959). The shipowner clearly had no duty to inspect the power control panel prior to the arrival of the electrician, the very job he was hired to do. Nothing in the record indicates that the electrician's immediate workplace was anything but reasonably safe. In West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959) the Court stated:
It appears manifestly unfair to apply the requirements of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe. The [shipowner], having hired [the shipyard] to perform the overhaul and reconditioning of the vessel — including testing — was under no duty to protect petitioner from risks that were inherent in the carrying out of the contract.
See also Deyerle v. United States, 149 F.3d 314 (4th Cir. 1998) wherein the court stated, "[t]o hold a shipowner liable to repairmen for injuries resulting from the very equipment they have been hired to repair would, in many cases, effectively render the shipowner an insurer of all repair operations, a result that Congress clearly did not intend by its 1972 Amendments to the LHWCA, which were designed to eliminate the essentially strict liability regime of `seaworthiness' and to establish a negligence regime."
The Court concludes that the shipowner was entitled to rely upon the contractor to exercise reasonable care within the confines of his workplace (the power control panel) and was further entitled to rely on Mr. Joiner's expertise. Mr. Joiner had performed the task of repairing debarkation lights on a routine basis. He did not investigate whether the power could be turned off to the area where he was working while admitting that it would have been safer to do so. Although the shipowner has a duty to warn a repairman of hidden danger which would have been known to the shipowner through the exercise of reasonable care, the Court concludes that the shipowner in this case had no duty to open the area behind and under the power control panel, inspect the area and make a judgment as to whether the area was safe. This was the province of the electrician and he was charged with carrying out his repairs with reasonable care. The Court further finds that the shipowner turned the vessel over to Mr. Joiner in such condition that the workplace was reasonably safe and the turnover duty was not breached.
Although plaintiffs' petition alleges other acts of negligence, the Court notes that such acts, if they were negligent, would have occurred outside the area where plaintiff was working and did not contribute to his injury.
Considering the above and foregoing reasons, the submissions of the parties and the evidence before the Court,
IT IS ORDERED that the defendant, Seabulk Offshore Ltd.'s Motion for Summary Judgment (Rec. Doc. 17) be and is hereby GRANTED pursuant to F. R. C. P. 56(c), dismissing plaintiffs' complaint against it, with prejudice.