Opinion
CIVIL ACTION NO. 02-1796
April 30, 2003
ORDER REASONS
Before the Court are motions for summary judgment filed by Defendant Phil Guilbeau Offshore, Inc., Defendant Stone Energy Corporation, and Defendant Aries Marine Corporation. For the following reasons, the said motions for summary judgment are GRANTED.
I. BACKGROUND
This suit arises out of an incident on June 14, 2001, when the Plaintiff Kenneth Pledger, allegedly slipped and fell on algae on the back deck of a utility boat, the M/V TONY G, while he was performing work in the course and scope of his employment with Halliburton Energy Services, Inc. On the day of the accident, Plaintiff was working with a three man crew, consisting of himself, William Meehan and Harshari Powdrell, holding the positions of operator, engineer supervisor, and helper, respectively. The Halliburton crew was performing a perforating job and dumping cement, during which they would perforate holes in a well, dump cement in the well, and then set a plug in the well. Defendant Stone Energy contracted with Halliburton to perform these wireline services on a well in the Gulf of Mexico, and chartered the utility boat, the M/V TONY G, from Defendant Phil Guilbeau Offshore and a lift boat, the RAM XI, from Defendant Aries Marine.
On the day of the accident, the Halliburton crew did not expect to backload the Halliburton equipment after they finished their work. However, the Stone Energy representative asked Meehan if he and his crew would backload the equipment. Meehan assessed the wind, seas, and weather conditions, and decided at that time that they could safely perform the backloading operation, a decision which was within his authority to make. At the time, the sea conditions were six to eight feet and the winds were 20 to 30 mph. The Aries lift boat carried the Halliburton crew onto the back deck of the TONY G by a personal basket. When the crew stepped onto the back deck, Meehan noticed that the deck was slippery and held a safety meeting prior to Plaintiff's accident. The Halliburton crew talked about the deck being slippery and all decided that they could perform the backloading operation safely. Meehan and Powdrell described the algae on the deck as being a dark or green color of growth present on both sides of the deck. After a few loads were lowered and put in place, a gun rack was lowered to the TONY G as Plaintiff and Meehan prepared to reach for the tag lines. After Plaintiff had reached for and grabbed the tag line, the Plaintiff slipped and fell on algae on the deck and was briefly underneath the load before his co-worker Powdrell pulled him out from under the load. Both witnesses, Meehan and Powdrell, attributed Plaintiff's slip and fall to the algae on the deck, in addition to the Plaintiff who stated in his deposition "If the deck wouldn't have been slippery, I wouldn't have fell."
Plaintiffs (Kenneth Pledger, individually and on behalf of his children, and his wife Trixine Pledger) sued Defendants Phil Guilbeau Offshore, Inc., owner of the M/V TONY G, Stone Energy Corporation, and Aries Marine Corporation, owner of the lift boat the RAM XI, alleging negligence under the general maritime law. Pacific Employer's Insurance Company, Halliburton's insurer for longshore and harbor workers' compensation claims, intervened in this suit to recover the amounts of worker's comp that it has paid and is continuing to pay to the Plaintiff for his injuries. All Defendants now seek summary judgment.
The parties seem to assume that the Plaintiff Kenneth Pledger is a covered employee under the Longshore and Harbor Workers' Compensation Act (LHWCA), even though Plaintiffs' complaint does not allege it and only alleges claims under the general maritime law. However, because the insurer paid benefits pursuant to the LHWCA, situs and status does not seem to be an issue. Therefore, the Court will not analyze whether the Plaintiff meets the requirements for protection under the LHWCA.
II. LAW AND ANALYSIS
Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. If the party moving for summary judgment demonstrates the absence of a genuine issue of material fact "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986).
The burden of demonstrating the existence of a genuine issue is not met by "metaphysical doubt" or "unsubstantiated assertions." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). The Court must "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contrary facts." Id. The Court does not, "in the absence of proof, assume that the nonmoving party could or would prove the necessaty facts." Id. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita, 475 U.S. at 588. Finally, "the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis, 61 F.3d at 315. If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Defendant Phil Guilbeau's Motion for Summary Judgment:
Plaintiffs' claims against Defendant Phil Guilbeau are governed by section 905(b) of the Longshore and Harbor Workers' Compensation Act. As owner of the vessel on which Plaintiff was injured, Defendant Phil Guilbeau owes three specific legal duties to independent contractors working on the vessel under 33 United States Code, section 905(b). Section 905(b) gives a longshoreman worker the right to file a third party suit against a shipowner for personal injuries sustained during the cargo operations aboard the owner's vessel as a result of the vessel's negligence. In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the United States Supreme Court defined the vessel owner's duties under section 905(b) to include the following; (1) a turnover duty, meaning that the vessel would be liable if the vessel owner fails to turn over a reasonably safe ship or fails to warn on turning over the ship of hidden defects of which it knew or should have known; (2) an active control duty, meaning that the vessel would be liable if the vessel owner fails to remedy hazards under the active control of the vessel; and (3) the duty to intervene, meaning that the vessel would be liable if the vessel owner fails to intervene in the stevedore's operations when it 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 on to remedy it. In this case, Plaintiffs argue that Defendant Phil Guilbeau breached all three Scindia duties by failing to warn of the hidden dangers of algae on the deck, failing to remedy the condition of the algae which was on the backdeck in the active control of the Phil Guilbeau, and failing to intervene when the Hallibutron crew continued to conduct the backloading operation despite the fact that the deck was covered with slippery algae.
After considering the facts of this case and applicable law, this Court concludes that Defendant Phil Guilbeau did not violate any of the Scindia duties in this case as a matter of law. First, with respect to the turnover duty, this duty relates to the condition of the vessel prior to or at the commencement of the stevedoring activities. This duty places two responsibilities on the vessel owner: (A) to exercise ordinary care under the circumstances to turn over the ship and its equipment and appliances in such condition that an expert and experienced stevedore can carry on cargo operations with reasonable safety to persons and property; and (B) to warn the stevedore of latent or hidden dangers which are known to the vessel owner or should have been known to it in the exercise of reasonable care. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994). The responsibility of the vessel owner to warn of hidden dangers, however, is narrow, and it does not include dangers which are either open and obvious, or something that a reasonably competent stevedore should anticipate encountering. See id.; Wilfred v. M/V CAPE CORNWALL, No. 97-0008, 1997 WL 567948, at *2 (E.D. La. Sept. 9, 1997). Therefore, a vessel owner has not breached its duty to warn if the defect causing the injury is either open and obvious or one that a competent longshoreman should have seen. Id. This open and obvious defense also applies to the turnover duty to provide a safe vessel. Clay v. Daiichi Shipping, 74 F. Supp.2d 665, 671 (E.D. La. 1999) ( affirmed 237 F.3d 631 (5th Cir. 2000)) (citing Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1258 (9th Cir. 1998)). The courts have created a narrow exception to the open and obvious defense when the longshoreman's only options when facing an open and obvious danger are unduly impracticable or time-consuming. Burchett v. Cargill, Inc., 48 F.3d 173, 179 (5th Cir. 1995).
In the present case, the Plaintiffs assert that the danger presented by the algae was not open and obvious to anyone in the Halliburton crew, who did not possess knowledge that algae is extremely dangerous in the spots where its growth is heavily built up. However, the evidence does not support this assertion. The deposition testimony of Meehan and Powdrell establish that the algae was clearly visible and obvious to them prior to the Plaintiff's slip and fall. Meehan and Powdrell described the algae as dark or green growths on the deck, different in color from the rest of the deck. In addition, the Halliburton crew was aware of the slippery condition of the deck due to the algae, evidenced by the safety meeting that the crew conducted during which they discussed whether they could safely perform the backloading operation on the slippery deck, which occurred prior to Plaintiff's slip and fall. Based on this uncontroverted evidence, the Court finds that the algae on the deck of the TONY G was an open and obvious condition and Defendant Phil Guilbeau did not breach its turnover duty. With respect to the exception to the open and obvious defense, Plaintiffs contend that it would have been unduly impractical or time consuming to clean the deck as the Halliburton crew did not possess the equipment or supplies or know how to clean the algae. However, the evidence shows that the Halliburton crew had the option not to perform the backloading operation at that time if they felt it was unsafe and, thus, continuing to perform the backloading operation with algae on the deck was not the only option facing the crew. Accordingly, the exception to the open and obvious defense is not applicable in this case. Therefore, Plaintiffs' claims against the vessel owner Phil Guilbeau under the first of the Scindia duties must fail as a matter of law.
Next, the second of the Scindia duties must be considered, which Plaintiffs rely on as the "main thrust" of their opposition, asserting that at all times, the Defendant Phil Guilbeau was in active control of the vessel and its backloading operation. Plaintiffs rely on the rule of law providing that the duty of the vessel owner that remains in active control of the vessel is not affected or changed even if the danger is open and obvious. Plaintiffs' argument that the TONY G remained in active control of the backdeck is based on the evidence that the Captain of the TONY G directed placement of the loads on the TONY G during the backloading operations and Plaintiffs' expert testimony that the custom and practice of backloading operations is that the captain or the captain's mate directs the operation. However, the law concerning the active control duty indicates that "the vessel's role in dictating where the cargo will be stowed does not in itself justify imposing liability on the vessel owner." Clay, 74 F. Supp.2d at 673 (citing Howlett, 512 U.S. at 103, 114 S.Ct. at 2057 and Breaux v. United States, No. 95-2924, 1996 WL 626328, at *4 (E.D. La. Oct. 23, 1996) (finding that a prerequisite to vessel liability under the second Scindia duty is active control by the vessel over the actual methods and operative details of the longshoreman's work.)). In his deposition, the Captain of the TONY G asserted that he directed where the first and heaviest piece of equipment should be placed and thereafter was mainly concerned with maneuvering the vessel and keeping the boat as stationary as he could. The fact that the Captain of the TONY G may have directed placement of all of the equipment on the barge is insufficient to establish active control under the law cited above. This Court is unable to locate any proof that any of the Defendant Phil Guilbeau's agents actively controlled the backloading operations. Even if the deckhands were standing around in the area, as suggested by Plaintiffs, there is no evidence that any deckhand gave any instruction to the Halliburton crew. Accordingly, Plaintiffs' claims under the second Scindia duty must also fail.
Finally, the Plaintiffs contend that the Defendant Phil Guilbeau violated the duty to intervene when the Captain and the crew of the M/V TONY G watched the Halliburton crew carry on the backloading operations in the face of a danger that was well known to the vessel. The Plaintiffs assert that the Defendant must be deemed to have had knowledge of the algae condition because the Captain had seen algae on the deck on previous instances, and the crew of the TONY G would have seen it when using the decks on a daily basis, considering the evidence that algae takes several days to grow. According to the Plaintiffs, the Captain of the TONY G had a complete unobstructed view of the backdeck while the backloading operations were taking place with full knowledge of the algae present on his back deck and the dangers the algae presented, thereby triggering the duty to intervene when he witnessed continuance of the backloading operations.
With respect to the duty to intervene, a vessel owner may rely on the stevedore's expert knowledge, including the stevedore's judgment that a condition, although dangerous, is safe enough on the whole to permit work to continue. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1249 (5th Cir. 1997). Nevertheless, the vessel owner has a duty to intervene when it has actual knowledge that the stevedore's longshore workers are using defective equipment or engaging in an unsafe work practice which is creating a hazard and that the stevedore in the exercise of obviously improvident judgment intends to work on in the face of it and, therefore. cannot be relied on to remedy it. See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th Cir. 1992). In short, before the duty to intervene is triggered, the vessel owner must (1) have actual knowledge of the hazard and (2) have reason to believe that the stevedore improvidently intends to continue work in the face of it. See Greenwood, 111 F.3d at 1248. The Fifth Circuit has held that the shipowner's responsibility under the third Scindia duty is "narrow and requires something more than mere shipowner knowledge of a dangerous condition." Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996). In order for a stevedore's judgment to appear obviously improvident, that expert stevedore must use an object with a defective condition or follow a procedure that is so hazardous that anyone can tell that its continued use creates an unreasonable risk of harm even when the stevedore's expertise is taken into account. See Greenwood, 111 F.3d at 1249.
In the present case, the Plaintiffs have not proved that the Defendant had actual knowledge of the algae on the back deck. Rather, the Plaintiffs assert that the Defendant should have known because the Captain had seen algae on the deck in the past, algae takes several days to grow, and because the crew used the deck on a daily basis. However, no where in the Captain's deposition did he admit to knowing that at the time of Plaintiff's accident, he saw or knew that algae was on the deck during the backloading operations. However, even if knowledge were established, the Halliburton crew was not continuing the backloading operations when it was clear and undisputed that continued acts created an unreasonable risk of harm — in fact, in this case the three Halliburton crew members did not consider the slippery deck to create an unreasonable risk of harm because they specifically considered the danger and risk and decided that they could continue the backloading operation safely. Under the facts of this case, the Defendant had no duty to intervene.
In conclusion, the Court finds that the Defendant Phil Guilbeau did not breach its turnover duty because the evidence demonstrates that the injury causing condition was open and obvious. Further, the Plaintiffs have not presented sufficient evidence such that a reasonable jury could find that the Defendant breached the second or third Scindia duties. Accordingly, the Defendant Phil Guilbeau's motion for summary judgment is GRANTED and the Plaintiffs' claims against Defendant Phil Guilbeau are dismissed with prejudice.
Stone Energy Corporation's Motion for Summary Judgment:
Defendant Stone Energy Corporation filed a motion for summary judgment arguing that it is entitled to judgment as a matter of law under the general maritime law. Plaintiffs' claims against Defendant Stone Energy are based on allegations that Stone Energy was negligent in (1) ordering the backloading of the Halliburton equipment in rough seas and under circumstances that were hazardous; (2) failing to provide any riggers or crew members of the lift boat to handle the backloading of Halliburton's equipment onto the M/V TONY G; and (3) failing to wait until the seas were calmer before ordering the backloading of Halliburton's equipment. Plaintiffs also alleged that Stone Energy ordered the backloading of the equipment as a money saving matter because the equipment was being rented on an hourly basis and an early removal would amount to a substantial savings to Stone Energy. Defendant Stone Energy contends that it owed no duty to Plaintiff and even if it did, Stone Energy did not breach a duty.
"The analysis of a maritime tort is guided by general principles of negligence law." Consolidated Aluminum Corp. v. C.F. Bean Corp., et al., 833 F.2d 65, 67 (5th Cir. 1988). To establish a cause of action based on negligence, the Plaintiff must establish the following elements: (1) the Defendant was under a duty to the Plaintiff to use due care; (2) the Defendant breached that duty; (3) the Plaintiff suffered damages; and (4) the breach of the duty proximately caused Plaintiff's damages. Lloyd's Leasing Limited v. Conoco, 868 F.2d 1447, 1449 (5th Cir. 1989). Determination of the tortfeasor's duty is a function of the Court. Consolidated Aluminum, 833 F.2d at 67. "The determination of whether a party owes a duty to another depends on a variety of factors, `most notably the foreseeability of the harm suffered by the complaining party.'" Steel Coils, Inc. v. M.V LAKE MARJON, 2002 A.M.C. 1680 (E.D. La 2002) (quoting Consolidated Aluminum, 833 F.2d at 67). A harm is a foreseeable consequence of an act or omission if harm of a general sort to persons of a general class might have been anticipated by a reasonably thoughtful person, as a probable result of the act or omission, considering the interplay of natural forces and likely human intervention. Consolidated Aluminum, 833 F.2d at 67. To be found liable, the Defendant must have knowledge of a danger, not merely possible but probable. Id.; Lloyds Leasing Limited, 868 F.2d at 1449.
Defendant Stone Energy contends that the undisputed facts show that Stone was never informed of, and had no knowledge of the slippery deck on the M/V TONY G, nor did the Halliburton crew ever notify Stone that the seas were too rough to conduct the backloading operation. In light of these facts, Stone Energy argues that it could not foresee any danger that would result in injury to the Plaintiff and, therefore, it owed no duty to the Plaintiff. On the other hand, the Plaintiffs submit that under the prevailing weather conditions, consisting of winds 20 to 30 mph winds and seas of six to eight feet, the Stone representative should not have ordered or requested the backloading operations to take place. Plaintiffs also cite deposition testimony suggesting that the Halliburton crew was obligated to follow the orders of the Stone representative.
The Plaintiffs have failed to produce any evidence that Defendant Stone knew or could foresee the harm suffered by the Plaintiff; that is, that he would slip and fall on algae on the deck of the TONY G. The Stone representative was not present on the deck of the TONY G; instead, he was on the Aries RAM XI at the time of the backloading operations. Furthermore, as stated earlier in this opinion, both witnesses, Meehan and Powdrell, attributed Plaintiff's slip and fall to the algae on the deck, in addition to the Plaintiff who stated in his deposition "If the deck wouldn't have been slippery, I wouldn't have fell." There is no evidence that the weather or sea conditions contributed or caused the Plaintiff's accident; rather, when asked what caused Pledger to fall, both witnesses pointed to the algae and not the weather or sea conditions. Because there is no evidence that Defendant Stone could foresee Pledger slipping on algae during the backloading operations, Defendant Stone Energy cannot be liable to Plaintiffs for negligence as a matter of law. Accordingly, Defendant Stone Energy's motion for summary judgment is GRANTED and Plaintiffs' claims against Stone are dismissed with prejudice.
Defendant Aries Marine Corporation's Motion for Summary Judgment:
Defendant Aries Marine Corporation. owner of the lift boat the RAM XI, filed a motion for summary judgment arguing that the evidence does not support Plaintiffs' claims and that it did not have a duty to intervene under Scindia. Plaintiffs claims against Defendant Aries Marine are based on allegations that it provided an inexperienced crane operator who lowered the gun rack in a negligent manner, that the RAM XI crane was not adequate because it lowered the load too slowly, and that the Aries crew improperly rigged the gun rack to the crane. Defendant Aries Marine simply claims that none of these allegations are supported by evidence or testimony in this case. Defendant points to the deposition testimony of Meehan and Powdrell that the cause of the Plaintiff's fall was the algae. Furthermore, Defendant Aries Marine argues that it did not have a duty to intervene under Scindia because it did not have actual knowledge of both the dangerous condition, the algae, or that Halliburton was not acting reasonably to protect its employees from that danger.
In response, Plaintiffs contend that fact questions exist regarding the negligence of the Captain of the RAM XI in this case, which precludes summary judgment. Plaintiffs cite to deposition testimony of the Captain, in which he admitted that in general, conducting backloading operations during rough weather and sea conditions would be dangerous and could result in foreseeable injuries to the workers. The Captain also stated that he considered it his duty to assess the weather conditions and determine if backloading operations could be done safely. The Plaintiffs also refer to deposition testimony of Meehan and Powdrell describing the slowness of the crane used during the backloading operations, resulting in the equipment not coming down quickly enough to keep from bouncing, in addition to the rough seas and wind, which caused the vessel to rock.
The duties of a vessel owner under Scindia are detailed above and need not be repeated here. The only duty potentially applicable to Defendant Aries Marine is the duty to intervene, as the first two duties clearly do not apply on the facts of this case as to Defendant Aries Marine. As explained above, before the duty to intervene is triggered, the vessel owner must (1) have actual knowledge of the hazard and (2) have reason to believe that the stevedore improvidently intends to continue work in the face of it. See Greenwood, 111 F.3d at 1248. In this case, there is no evidence that the Defendant Aries Marine had actual knowledge that the deck of the TONY G had algae on it or that the Halliburton crew was improvidently continuing to work in the face of a known danger. The only evidence is that the crane operator knew that in general, rough weather conditions and seas would produce dangerous conditions to conduct a backloading operation. The Captain did not state that on the day of the accident, the weather conditions and seas were so rough as to create a dangerous or unreasonable risk of harm to the workers during the backloading operation. In fact, there again is no evidence that links the weather and sea conditions to the cause of Plaintiff's slip and fall. Furthermore, both Meehan and Powdrell explained that there was nothing about the way the crane lowered the load that was odd or caused Plaintiff to slip and fall. Rather, as stated earlier, both men attributed the slip and fall to the algae, as did the Plaintiff himself. Therefore, Plaintiffs have failed to provide sufficient evidence to prove that the Defendant Aries Marine was negligent. Accordingly, Defendant Aries Marine Corporation's motion for summary judgment is GRANTED and Plaintiffs' claims against Aries Marine are dismissed with prejudice.
II. CONCLUSION
For the foregoing reasons, the motions for summary judgment filed by Phil Guilbeau Offshore, Inc., Stone Energy Corporation, and Aries Marine Corporation are GRANTED. Accordingly, Plaintiffs' claims against all Defendants are DISMISSED WITH PREJUDICE.