Opinion
No. 01-162 c/w, 01-97 01-2946 SECTION "A" (5)
August 5, 2002
Jack W. Harang, Law Office of Jack W. Harang, Slidell, LA, Gordon Wright Matheny, Gordon W. Matheny, Attorney at Law, Hammond, LA, Richard Hobbs Barker, IV, Smith Harang, LLC, New Orleans, LA, for plaintiff.
Jacqueline Romero, Hailey, McNamara, Hall, Larmann Papale, Metairie, LA, Philip Francis Cossich, Jr., Walter J. LeBlanc, Jr., David Allen Parsiola, Cossich, Sumich Parsiola, Belle Chasse, LA, for defendant
Before the Court is a Motion for Summary Judgment (Rec. Doc. 47) filed by defendants Daybrook Fisheries, Inc. and Westbank Corporation. Plaintiff opposes the motion. The motion, set for hearing on July 17, 2002, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
Factual Background
James Mayberry was employed by Daybrook Fisheries, Inc. ("Daybrook") as a dock foreman supervising the bailers who unload fish from the fishing boats when they were dockside. On June 12, 2000, the F/V SEA WOLF, a vessel owned by defendants Daybrook and Westbank Corporation, moored onto Daybrook's dock for unloading.
The bailing process began and Mayberry's fellow bailor, Darren Barthelemy, went down into the hold where he passed out. Barthelemy claimed that ammonia had escaped from the hose instead of water. Mayberry went down to the hold to assist Barthelemy but he also passed out. Mayberry claims continuing injuries as a result of this incident.
Mayberry filed suit against Daybrook in its capacity as vessel owner pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA") alleging vessel negligence as the cause of his personal injuries. At no time has Mayberry claimed seaman status. Rather, he is undisputedly a stevedore covered by the LHWCA who was injured during the stevedoring process. Mayberry's Memorandum in Opposition at 1.
The LHWCA establishes a workers' compensation program for longshoremen injured in work-related accidents. Watkins v. Bruno Bichoffi Shipping, Ltd., 2000 WL 1263254, at *1 n. 3 (E.D. La. Sep. 6, 2000) (citing Couch v. Cro-Marine Trans., Inc., 44 F.3d 319, 323 (5th Cir. 1995)). Under the program, the employer must pay statutory benefits regardless of fault but is shielded from liability in tort. Id.; Levene v. Pintail Enters., Inc., 943 F.2d 523, 531 (5th Cir. 1991). Section 905(b) of the LHWCA allows an injured worker to brine suit against a vessel owner, as a "third party," when he is injured on a vessel and alleges that negligence on the part of the vessel owner caused his injury. See id. Where he is injured aboard a vessel owned by his own employer, "the dual capacity doctrine" allows him to sue his. employer in tort but only for acts of vessel negligence. Id. The LHWCA continues to immunize the employer from all liability for any acts taken in its capacity as employer. Id. Thus, "the difference between the capacities in which an employer may act is extremely important." Id.
Darren Barthelemy, who also filed suit against Daybrook and Westbank, originally filed his suit pursuant to the Jones Act and general maritime law which of course require seaman status. He later amended his complaint to alternatively allege a § 905(b) claim. Judge Feldman found that Barthelemy was not a seaman and dismissed all of his Jones Act and general maritime law claims. Civil Action No. 01-971, Rec. Doc. 28. Likewise, Eugene White, who also filed a claim for injuries arising out this incident, was denied seaman status. Civil Action No. 0l-162, Rec. Doc. 34. White did not purse a § 905(b) claim and therefore the denial of seaman status was in effect a dismissal of his entire complaint. For reasons unclear from the record, a final judgment never issued in that case.
Further, Darren Barthelemy's § 905(b) claim was also dismissed by Judge Feldman on January 22, 2002, (Rec. Doc. 34), and given that the § 905(b) claim was his only remaining claim, that ruling in effect disposed of his entire complaint. Again, for reasons not apparent in the record, no final judgment issued.
Defendants now move for summary judgment arguing that Mayberry's complaint should be dismissed because he does not present a valid § 905(b) claim. In particular, Defendants argue that Mayberry's injuries did not arise from vessel negligence the sole basis upon which Mayberry can recover from Defendants.
In opposition, Mayberry contends that defendants breached their turnover duty by failing to warn him of a hidden defect in the vessel's equipment, and by failing to intervene when they had actual knowledge that the stevedores were using unsafe equipment and exercising improvident judgment in carrying out their work. Mayberry agrees that no facts are in dispute. Mayberry's Memorandum In Opposition at 5.
Discussion
I. Summary Judgment Standards
In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus. Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law. Id. (citing Celotex Corp. v. Catret:, 477 U.S. 317, 106 S.Ct. 2548, 91 1. Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id.
II. Section 905(b) Standards
In 1972 Congress amended the LHWCA to clarify that a stevedores right to recover from a vessel owner is limited to an action based upon negligence — the vessel owner's own negligence. Gravatt v. City of New York, 226 F.3d 108, 119-17 (2d Cir. 2000) In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court articulated the scope of the vessel owner's duty pertaining to a section 905(b) negligence claim. According to Scindia, vessel liability to the stevedore can arise in three instances: 1) if the vessel owner fails to warn on turning over the shim of hidden defects of which he should have known ("the turnover duty"), 2) if injury is caused by a hazard 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 that the stevedore, in the exercise of "obviously improvident" judgment, means to work on in the face of it, and therefore cannot be relied upon to remedy it ("duty to intervene") Greenwood v. Societe Francaise de, 111 F.3d 1239, 1245 (5th Cir. 1997) (citing Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13 (5th Cir. 1992)
Prior to the 1972 amendments, the vessel owner was strictly liable to the longshoreman for failure to provide a seaworthy vessel. Watkins, 2000 WL 1263254, at *1 n. 4.
Aside from articulating these three limited duties owed the stevedore by the vessel, the primary thrust of Scindia is that the shipowner is entitled to rely on the stevedore to avoid exposing the longshoreman to unreasonable hazards — the primary responsibility for the safety of the longshoremen rests on the stevedore. Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996) (citing Scindia, 451 U.S. at 172, 101 S.Ct. at 1624). Absent a breach of one of the three Scindia duties, the vessel owner will not be liable for the longshoreman' s injuries.
III. Mayberry's Section 905(b) Claim
According to Mayberry, Scindia duties (1) the turnover duty and (3) the duty to intervene are at issue in this case.
Pursuant to the Scindia "turnover duty," the ship owner owes The stevedore a duty which respect to the condition of the ship's gear, equipment, tools, and workspace to be used in the stevedoring process. Greenwood, 111 F.3d at 1246 (quoting Scindia, 451 U.S. at 167, 101 S.Ct. at 1622). The vessel owner must at the very least warn the stevedore of hidden dangers of which the vessel owner should have known and which were not obvious to the stevedore. Id.
Defendants argue that they did not breach their turnover duty because the incident involved equipment that was completely land-based. Therefore, no hazard or condition of the vessel itself caused Mayberry's injury as is required for a turnover duty breach. The Court agrees.
Defendants offered Mayberry's deposition in support of the motion for summary judgment. In his deposition Mayberry clarifies that the hoses and pump used in the bailing process are dock-side, land-based equipment. Exhibit A at 16. He also states that maintenance of that equipment was the responsibility of the bailors. Id. at 17. The injuries arising out this incident were alleged to have been caused by one of the hoses having spewed ammonia rather than water. Mayberry does not contest that the injury-causing hoses about which he expected Defendants to warn him was dockside equipment and therefore not part of the vessel. Because the turnover duty applies to the fitness of the vessel's gear and equipment, and because this dockside equipment was not part of the SEA WOLF, Defendants are entitiled to judgment as a matter of law on the turnover duty claim.
Although the classification of the equipment as either dockside or vessel-based is not pertinent to the intervention duty determination, Defendants are likewise entitled to judgment as a matter of law on that issue. In Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26 (5th Cir. 1996), the Fifth Circuit emphasized how narrow an application the intervention duty has under Scindia. Recovery under the intervention duty requires proof of actual knowledge that the shipowner knew of the stevedore's improvident judgment to conduct stevedoring operations in a manner posing a substantial risk of injury. Greenwood, 111 F.3d at 1243-49. However, even where the vessel owner knows of a dangerous condition, the duty to intervene is not triggered absent "something more" because the vessel owner is entitled to rely on the stevedore's expert judgment. Id.
Mayberry offers no evidence to create an issue of fact as to Defendants' knowledge that the stevedore's were performing their task improvidently. Moreover, there is no evidence indicating that the stevedores did in fact perform their task improvidently. Rather, Mayberry's injuries seem to be linked to a possibly malfunctioning hose — not to the way the stevedores were bailing the fish. There is no evidence before the Court that anyone, including Defendants, had any knowledge, either constructive or actual, prior to the accident, that the equipment was prone to malfunction. Mayberry has created no issue of fact on the intervention duty claim and Defendants are entitled to judgment as a matter of law on that claim.
In sum, no genuine issues of material fact preclude summary judgment in this case. Defendants are entitled to judgment as a matter of law on Mayberry's section 905(b) claim. Accordingly;
IT IS ORDERED that the MOTION FOR SUMMARY JUDGMENT (Rec. Doc. 47) filed by Daybrook Fisheries Inc. and Westbank Corporation should be and is hereby GRANTED The complaint filed by James Mayberry is DISMISSED WITH PREJUDICE
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