Opinion
Civil Action No. 03-3636, Section: I/2.
February 24, 2005
ORDER AND REASONS
Before the Court is a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed on behalf of defendants, Chios Challenge Shipping and Trading S.A. and Harbor Shipping and Trading S.A. Plaintiff, Edwin Prestenbach, opposes the motion. For the following reasons, the motion for summary judgment is GRANTED.
Rec. Doc. No. 36.
FACTS AND PROCEDURAL HISTORY
This action is a maritime personal injury case arising from a slip and fall that occurred on July 17, 2000 aboard the M/V CHIOS CHALLENGE. At the time of the accident, plaintiff, Edwin Prestenbach, was employed as a longshoreman/stevedore by intervenor, Total Logistics, Inc. ("TLI"). In July, 2000, TLI was engaged to discharge bundles of steel rebar from the M/V CHIOS CHALLENGE, a vessel owned and operated by defendants, while the vessel was anchored near Reserve, Louisiana. Plaintiff, a TLI forklift operator, a TLI tally clerk, and two TLI riggers performed the unloading operation from the deck of the CHIOS CHALLNGE's No. 4 cargo hold. In order to unload the cargo, TLI placed one of its forklifts into the No. 4 hold.On July 16, 2000, toward the end of plaintiff's work day, plaintiff observed an amount of hydraulic fluid on the deck of the No. 4 cargo hold in the area where the forklift had worked. Plaintiff reported the presence of hydraulic fluid on the deck to Frank Catilano, his TLI supervisor aboard the CHIOS CHALLENGE, but plaintiff did not ask Catilano for any supplies to clean up the fluid. Plaintiff testified that he did not know whether, on July 16, 2000, Catilano spoke to anyone connected with the vessel about the presence of hydraulic fluid in the vessel's No. 4 cargo hold.
Rec. Doc. No. 36, Ex. A., deposition of Edwin Prestenbach ("Pl. Dep."), at pp. 43:3-17, 45:9-17.
On July 17, 2000, plaintiff and the other TLI crew members continued their unloading operation aboard the CHIOS CHALLENGE. At about 9:00 A.M., the TLI forklift's hydraulic fluid line ruptured causing hydraulic fluid to leak onto the deck of the cargo hold. When the forklift's hydraulic line ruptured, the TLI forklift operator alerted Catilano, who was on a deck of the vessel above the cargo hold, that the line had ruptured. TLI then rigged the forklift, removed the forklift from the cargo hold, and replaced it with another TLI forklift. Plaintiff testified that he believed that CHIOS CHALLENGE crew members who were present on the deck above the cargo hold assisted with unhooking the forklift from the rigging when it was removed from the cargo hold, but he did not actually see the CHOIS CHALLENGE crew members do so and he was unsure who unhooked the forklift. Plaintiff testified that he and the other stevedores working in the cargo hold verbally informed Catilano of the presence of hydraulic fluid on the cargo hold deck and of the necessity of cleaning up the fluid. Catilano responded that the stevedores could either continue to work in the hydraulic fluid or go home.
Id., at p. 25:5-25.
Id., at p. 19:3-11.
Id., at pp. 32:9-14, 35:21-25, 37:13-17. Plaintiff testified that the crew members were on a deck of the vessel more than forty feet above the deck of the cargo hold where plaintiff was working. Id., at p. 36:1-11.
Id., at pp. 47:11-49:1.
Id.
Ultimately, the stevedores in the cargo hold continued to work in the hydraulic fluid without cleaning any of the fluid off the deck as they did not have any supplies to clean the deck. Shortly thereafter, while the crane was raising several bundles of steel rebar out of the cargo hold, plaintiff observed that some of the wrapping holding the steel rebar together in bundles was beginning to break. Anticipating that the bundles of steel rebar being unloaded were going to fall back into the cargo hold, plaintiff turned to his left and took several steps to avoid being struck when he lost his footing and fell due to the hydraulic fluid on the cargo hold deck. Plaintiff alleges that, as a result of the fall, he suffered serious injuries to his back.
Id., at pp. 31:3-8, 85:2-13.
See id., at pp. 62-65; Rec. Doc. No. 1, Ex. A, Pl. Pet., ¶ VI.
On June 9, 2003, plaintiff filed this personal injury lawsuit in state court against the vessel and its owners alleging a personal injury claim pursuant to section 905(b) of the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq. On December 30, 2003, defendants removed this action to this Court. On December 28, 2004, defendants, seeking dismissal of this claim, filed the instant motion arguing that there is no genuine issue of material fact with respect to whether defendants breached any duty owed plaintiff pursuant to Scindia Steam Navigation Co. Ltd. v. De Los Sanots, 451 U.S. 156, 101 S. Ct. 1614, 68 L.Ed.2d 1 (1981).
See Pl. Pet. at 1.
LAW AND ANALYSIS
I. Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith 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). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. 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. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will 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 contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim") (citation omitted).
II. Vessel Owner Negligence pursuant to the Longshore and Harbor Worker's Compensation Act
The right of ship repairers, longshoremen, and other persons covered by the LHWCA to sue a vessel owner for negligence arises exclusively under 33 U.S.C. § 905(b). The duties of a vessel owner to longshoremen working aboard vessels are governed by the principles enunciated by the United States Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, 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). In Lormand, the Fifth Circuit reiterated the three general Scindia duties applicable to section 905(b) claims:
Section 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.
The Court in Scindia explained that at the outset, prior to the commencement of the worker's operations, the shipowner has a duty to 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 of reasonable care to carry on its cargo operations with reasonable safety.' 101 S.Ct. at 1622. The shipowner also has a duty at the outset to warn the stevedore or independent contractor of hidden dangers. Id.; Theriot v. Bay Drilling Corp., 783 F.2d 527, 535 (5th Cir. 1986). Once the employees of the stevedore or independent contractor begin working, however, the vessel owner has no general duty to discover dangerous conditions that develop within the confines of their operations. Scindia, 101 S.Ct. at 1624; Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 213 (5th Cir. 1984). The Court specifically relieved the vessel owner of any duty, absent custom, law, or contractual provision to the contrary, to inspect or supervise the operations of the stevedore's or independent contractor's employees. Scindia, 101 S.Ct. at 1624. Scindia also created an exception to these principles, however, finding that where two conditions are present, a vessel owner retains a duty to intervene with respect to obvious dangers that arise in areas outside his control and after the workers' operations have begun. This duty attaches only when the vessel owner has (1) actual knowledge that a dangerous condition exists and (2) actual knowledge that the stevedore or independent contractor, or its employees, cannot be relied upon to remedy the condition, and that if unremedied it will pose a substantial risk of injury. Id. at 1626-27; Barrios v. Pelham Marine, Inc., 796 F.2d 128, 131 (5th Cir. 1986).845 F.2d at 542. In sum, Scindia outlines three distinct duties owed to longshoremen 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 longshoremen 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)). Although a shipowner owes those "limited" duties to a longshoreman, "generally the shipowner may rely on the stevedore to avoid exposing the longshoreman to unreasonable hazards and . . . 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). At issue in this case is whether defendants breached either the "turnover duty" or the "duty to intervene."
Defendants argue that the "control duty" is not implicated in this case. In his brief in opposition to defendants motion for summary judgment, plaintiff agreed that the "control duty" may not be implicated in this case. The Court agrees. Plaintiff has presented no evidence that the cargo hold was under the active control of the vessel during the cargo operations nor has plaintiff briefed the issue in either his opposition or his supplemental opposition to defendants' motion for summary judgment.
A. The "Turnover Duty"
The turnover duty relates to the condition of the ship upon commencement of the stevedore's operations and it requires a vessel owner to exercise due care under the circumstances to have the vessel and its equipment in such a condition that a worker can perform his duties with reasonable safety. See Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S.Ct. 2057, 2063, 129 L.Ed.2d 78 (1994) (duty applies "upon the commencement of stevedoring operations"). A vessel owner may be liable for a breach of the turnover duty "if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known." Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997) (emphasis in original). Therefore, an exception to the turnover duty exists if the defect causing the injury is open and obvious. See Moore, 353 F.3d at 376; Greenwood, 111 F.3d at 1245; Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992). A hazard is considered open and obvious if the longshoreman knew of the condition or defect. Greenwood, 111 F.3d at 1246. However, the exception does not apply, and a shipowner may be liable for a breach of the turnover duty, if the longshoreman's only alternatives to facing such a hazard are unduly impracticable or time-consuming or would force him to leave the job. Moore, 353 F.3d at 381; Greenwood, 111 F.3d at 1248; Pimental, 965 F.2d at 16 (citations omitted).
Although most turnover duty cases concern the condition of the ship, itself, or of ship equipment used in stevedoring operations, the turnover duty to warn may extend to certain latent hazards in the cargo stow. Howlett, 512 U.S. at 99, 114 S. Ct. at 2064. A hidden defect in this context is a hazard "that would be neither obvious to nor anticipated by a competent stevedore in the ordinary course of cargo operations." Id. Additionally, the turnover duty to warn "is confined to latent hazards that `are known to the vessel or should be known to it in the exercise of reasonable care.'" Id. at 99-100, 114 S. Ct. at 2064 (quoting Scindia, 451 U.S. at 167, 101 S. Ct. at 1622). Absent a contract provision, positive law or custom to the contrary, "a vessel `has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.'" Id. at 101, 114 S. Ct. at 2064-65 (quoting Scindia, 451 U.S. at 172, 101 S. Ct. at 1624). The limitations on the vessel's turnover duty rest upon the vessel's justifiable expectation that the stevedore will perform with reasonable competence in ensuring the safety of cargo operations and the fact that the stevedore is in the best position to avoid accidents during such operations. Id. at 101, 114 S. Ct. at 2065 (citations omitted). "[S]hipowners engage a stevedore for its expertise in cargo operations and are entitled to assume that a competent stevedore will be able to identify and cope with defects in the stow." Id. at 104, 114 S. Ct. at 2066. In sum, the scope of the vessel owner's duties with respect to latent defects in the cargo stow is narrow "[b]ecause the vessel does not exercise the same degree of operational control over, and does not have the same access to, the cargo stow." Id. at 105, 114 S. Ct. at 2067.
Plaintiff argues that defendants breached the turnover duty in several respects. First, plaintiff argues that the flooring in the cargo hold was completely covered in rust and that there were no non-slip mats or non-slip paint on the deck of the cargo hold to reduce the likelihood of danger. Plaintiff also argues that the presence of rust in the cargo hold caused a dangerous condition to develop in the cargo. Plaintiff argues that a reasonable factfinder could infer that the rust on the cargo hold's deck caused the bands wrapped around the bundles of the rebar to rust, thereby creating a dangerous and hidden condition in the cargo leading to the breakage of the wrapping.
With respect to the condition of the deck of the cargo hold, plaintiff testified that the bottom of the deck of the cargo hold was rusted and that, other than the rust, the deck did not have any other color. Additionally, Catilano submitted an affidavit stating that, to the best of his knowledge, there was no non-slip paint or surfacing on the deck of the cargo hold. Because the plaintiff and his foreman were aware of the condition of the flooring of the cargo hold, the turnover duty to warn does not extend to that alleged hazard because it was open and obvious to both plaintiff and the stevedore employer. See e.g., Greenwood, 111 F.3d at 1246-47. Additionally, there is no evidence that plaintiff's only alternatives to facing the hazard of working on a rusty floor were unduly impracticable or time-consuming or would force him to leave the job. Moore, 353 F.3d at 381; Greenwood, 111 F.3d at 1248; Pimental, 965 F.2d at 16 (citations omitted). Plaintiff has not offered any evidence that he was instructed by the vessel owners to either continue to work or "face trouble for delaying the work." Greenwood, 111 F.3d at 1248 (citation and internal quotation omitted); see also Teply v. Mobil Oil Corp., 859 F.2d 375, 378 (5th Cir. 1988) ("Ship owners are not liable for obvious dangers that injure contractors aboard their vessels unless the contractors, in order to avoid the danger, would be forced either to leave the job or to face penalties for causing delay.").
Pl. Dep., p. 21:16-22:11.
Rec. Doc. No. 39, Ex. B., affidavit of Frank Catilano ("Aff. Catilano"). As discussed below, defendants challenge Catilano's affidavit on the ground that it is not based upon personal knowledge in compliance with Fed.R.Civ.P. 56(e). However, the Court need not reach that issue with respect to defendant's turnover duty because even assuming that there was not any non-slip paint or mats on the deck of the cargo hold, that fact does not create a genuine issue of material fact sufficient to withstand defendant's motion for summary judgment as plaintiff was aware of the condition of the deck.
Plaintiff's allegation that there existed a latent hazard with respect to the condition of the cargo also fails for lack of summary judgment evidence. Although plaintiff's theory of how and why the wrapping on the rebar became unstable offers an explanation as to what caused the rebar to begin to fall, there is no evidence supporting any one of the links in the chain of inferences required to establish the theory. There is no evidence that the rusty floor caused the wrapping on the rebar to rust. Nor is there any evidence that the bands on the rebar were, in fact, rusted or that even if they were rusted, the rusty condition caused the bands to break. In fact, plaintiff testified that the wrapping around the bundles of rebar was non-metal wire. Accordingly, there is no genuine issue of material fact with respect to whether the defendants breached the turnover duty to warn.
Pl. Dep., a p. 61:8-13.
B. The Duty to Intervene
A vessel owner is required to intervene when the owner has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of "obviously improvident" judgment, has failed to remedy the hazard. Greenwood, 111 F.3d at 1248 (citations omitted); Singleton, 79 F.3d at 28. In order to prevail on a claim that the vessel breached the duty to intervene, the longshoreman must show not only that the shipowner had actual knowledge of the hazard and of the stevedore's continuing hazardous operations, but also (1) that the vessel owner had actual knowledge that the hazard posed an unreasonable risk of harm, and (2) that the vessel owner had actual knowledge that it could not rely on the stevedore to protect its employees and that if unremedied the condition posed a substantial risk of injury. See Greenwood, 111 F.3d at 1248 (citing Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir. 1990)). The duty to intervene is narrowly construed and requires more than mere knowledge of a dangerous condition. Greenwood 111 F.3d at 1249; Singleton, 79 F.3d at 28. As stated by the Fifth Circuit:
To impose a duty to intervene on the shipowner, respecting dangers not created by it which are obvious to the stevedore's employees and arise during and in the area of the stevedore's operations, something more is required than the mere shipboard location of the dangerous situation and the shipowner's knowledge of it.Singleton, 79 F.3d at 28 (quoting Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 215 (5th Cir. 1984)) (further citations omitted).
In order for the expert stevedore's judgment to appear "obviously improvident," that expert stevedore must demonstrate that a condition exists that is so hazardous that anyone can tell that continued operations create an unreasonable risk of harm even when the stevedore's expertise is taken into account. See Greenwood, 111 F.3d at 1249. In short, "`[o]nce the loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore resulting from open and obvious dangers only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation.'" Williams v. M/V SONORA, 985 F.2d 808, 813 (5th Cir. 1993) (quoting Helaire v. Mobile Oil Corp., 709 F.2d at 1038-39 (5th Cir. 1983) (emphasis in original)).
In Futo, the Fifth Circuit found that a shipowner had no duty to intervene in an independent contractor's operations despite that fact that it had actual knowledge that the independent contractor had erected a scaffold without a guardrail. See Futo, 742 F.2d at 218. The Fifth Circuit subsequently explained that the Futo court found that a shipowner's duty to intervene "`does not . . . extend to an open and obvious transitory condition' created and controlled by the independent contractor, and wholly related to the contractor's gear and operations. The missing guardrail was such a condition." Casaceli v. Martech Int'l, Inc., 774 F.2d 1322, 1327 (5th Cir. 1985) (quoting Futo, 742 F.2d at 216). In Casaceli, the Fifth Circuit discussed the duty to intervene and it outlined six factors to be considered when determining whether such a duty was owed to an independent contractor. See id. at 1328. As stated by the Casaceli court:
A distinction between defects in the ship itself and its gear, and defects not directly related to the ship, is logical since the owner is primarily responsible for the ship, gains the most from its proper maintenance, and can usually best comprehend the danger from a defect in the ship, its gear or equipment.
Scindia, therefore, requires the existence of two basic conditions for the imposition of the shipowner's duty to intervene — the shipowner's actual knowledge of a danger to a longshoreman, and the shipowner's knowledge that the longshoreman's employer is not acting reasonably to protect its employees from that danger. The Futo court outlined considerations that pertain to the existence of these basic conditions: [1] whether the danger was open and obvious; [2] whether the danger was located within the ship or ship's gear; [3] which party created the danger or used the defective item and was therefore in a better position to correct it; [4] which party owned and controlled the defective item; [5] whether an affirmative act of negligence or acquiescence in the use of the dangerous item occurred; and [6] whether the shipowner assumed any duty with regard to the dangerous item.Casaceli, 774 F.2d at 1328 (citations omitted) (alterations in original).
The Fifth Circuit has applied those factors in the context of a longshoreman injured in the course of loading cargo, holding that a vessel owner did not have a duty to intervene in a stevedore's loading operation notwithstanding that the vessel owners had actual knowledge that the stevedore was attempting a dangerous method of loading the ship. See Williams, 985 F.2d at 815; see also Greenwood, 111 F.3d at 1249 (holding that although the ship owners had actual knowledge of the ship's defective crane and knew of the stevedore's continued use of the crane, there was no evidence that the defect was such a serious defect that the stevedore's continued use was "obviously improvident"). The Williams court noted that none of the six Casaceli factors demonstrated that there was "something more" than knowledge of the dangerous operation, such as an element of shipowner supervisory control or the involvement of a ship appurtenance. See id. at 814-15; see also Singleton, 79 F.3d at 29. Noting that the Fifth Circuit cases "are unanimous in stating [that] knowledge alone is not enough," the Williams court emphasized that "[t]he `something more' requirement provides a useful and helpful threshold below which owners are not liable." Id. at 815; see also Hunter v. Intreprinderea de Explore Flott Maritime Navrom, 868 F.2d 1386, 1388 (5th Cir. 1989) (per curiam) (finding no duty to intervene notwithstanding the assumptions that the stevedore's operations were dangerous, that the owner knew that the stevedore's practices were dangerous and that the plaintiff could not avoid the danger).
Plaintiff argues that genuine issues of material fact exist with respect to whether the vessel breached its duty to intervene based upon evidence which, according to plaintiff, demonstrates that the stevedores were continuing to work in a rusty hold, unloading cargo with rusty packaging materials, and performing the unloading operation with hydraulic fluid covering the floor. Plaintiff argues that the combination of the hydraulic fluid on the floor and the alleged rusty conditions of the deck and cargo satisfy the requirement that there be evidence of "something more" than knowledge of a dangerous condition during the cargo operation. Plaintiff points to his testimony that he believed that CHIOS CHALLENGE crew members, present on the deck above the cargo hold, assisted with unhooking the forklift from the rigging when it was removed from the cargo hold. Additionally, plaintiff testified that because the crew members were on the deck above the cargo hold and saw the forklift being taken out of the cargo hold, the crew members knew that there was hydraulic fluid on the deck of the cargo hold. Plaintiff also points to Catilano's affidavit in which he averred that members of the CHIOS CHALLENGE crew were "well aware of the existence of the dangerous condition" created by the spilled hydraulic fluid "as they observed the condition," but that the crew never attempted to clean up the spilled hydraulic fluid. Finally, plaintiff submits the unsworn preliminary report of his purported liability expert, Capt. George H. Reid. Plaintiff points to Reid's statements that the hydraulic fluid on the deck could have been cleaned up by the vessel's crew because they had the facilities to effect a clean-up and that there was no non-skid paint on the cargo hold deck.
Id., at p. 32:9-14.
Id., at pp. 141:21-142:19.
Aff. Catilano, ¶¶ 5, 6.
In addition to the two statements cited above, Captain Reid also states his opinion that the cargo hold was unseaworthy and that the vessel was grossly negligent for failing to clean up the spill. See Rec. Doc. No. 39, Ex. C, at 2. Although plaintiff does not rely on those statements, the Court notes that such legal conclusions do not constitute competent summary judgment evidence. As stated by the Fifth Circuit:
Federal Rule of Evidence 704(a) states that opinion testimony otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact; Federal Rule of Evidence 702 permits the district court to admit expert testimony that will assist the trier of fact in either understanding the evidence or determining a fact in issue. Neither rule, however, permits expert witnesses to offer conclusions of law. See Owen v. Kerr McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).C.P. Interests, Inc. v. California Pools, Inc., 238 F.3d 690, 697 (5th Cir. 2001); see also Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (holding that expert's affidavit stating a legal conclusion with respect to defendant's state of mind is not competent summary evidence). Moreover, to the extent that Captain Reid states that the vessel was unseaworthy, that conclusion is legally irrelevant because "negligence, rather than unseaworthiness, is the controlling standard where longshoremen are concerned." Howlett, 512 U.S. at 105, 114 S. Ct. at 2066-67.
Defendants respond, initially, by arguing that neither Catilano's affidavit nor the preliminary report of plaintiff's liability expert are competent summary judgment evidence. Further, defendants argue that there is no competent summary judgment evidence that creates a genuine issue of material fact with respect to their actual knowledge of the hydraulic fluid on the deck and, even if a genuine issue of material fact exists with respect to their actual knowledge, there is no evidence supporting "something more" than defendant's knowledge of a dangerous condition.
Pretermitting defendant's evidentiary argument with respect to the plaintiff's summary judgment evidence, the Court finds that there is no genuine issue of fact with respect to whether the vessel owners had a duty to intervene in TLI's cargo unloading operation even if the Court considers plaintiff's evidence. Viewing the facts in the light most favorable to plaintiff, plaintiff's testimony with respect to the presence of the crew during the replacement of the TLI forklift and Catilano's affidavit stating that the crew members were "aware" of the dangerous condition only demonstrates that there may be an issue of fact with respect to defendant's actual knowledge of hydraulic fluid on the deck based upon their presence on a deck more than forty feet above the cargo hold.
The Fifth Circuit has stated that "[m]ere presence of the vessel's crew on the ship . . . does not prove knowledge of the hazardous condition." Casaceli, 774 F.2d at 1330 (internal quotation and citation omitted). Plaintiff testified that he saw some crew members look down into the cargo hold from a deck more than forty feet above the deck of the cargo hold. Plaintiff also testified that the hydraulic fluid was clear. Although plaintiff testified that the forklift operator alerted Casitano as to the presence of the hydraulic fluid spill by yelling to Casitano on the deck above, plaintiff testified that the crew members did not speak English. Although plaintiff's evidence would permit a reasonable factfinder to conclude that members of the vessel's crew were present when the TLI forklift was removed and that they had an opportunity to see hydraulic fluid on the deck of the cargo hold, there is no evidence that either plaintiff or Catilano reported to the vessel's crew that there was a dangerous amount of hydraulic fluid on the deck of the cargo hold. Nor is there any evidence that the vessel's crew had actual knowledge of the reason why the TLI forklift was being replaced. Nor is there any evidence that either plaintiff or any other TLI employee communicated to the vessel's crew that they needed supplies to clean up the hydraulic fluid. At best, plaintiff's evidence presents only a weak issue of fact with respect to the vessel's actual knowledge of a dangerous condition based upon the crew's presence.
Id., at pp. 32:9-14, 35:21-25, 36:1-11, 37:13-17.
Pl. Dep., p. 22:16-18.
Pl. Dep., p.
Pl. Dep., p. 38:10-14.
As noted by the Fifth Circuit, "knowledge that a condition . . . exists does not imply knowledge that the condition is dangerous." Casaceli, 774 F.2d at 1330.
Even assuming, however, that plaintiff's evidence creates a genuine issue of material fact with respect to the vessel's crew members actual knowledge of the hydraulic fluid spill, that alone does not suffice to show that defendants had a duty to intervene in the cargo unloading operation. See Greenwood, 111 F.3d at 1249; Williams, 985 F.2d at 815. Instead, to withstand summary judgment, plaintiff must point to facts which demonstrate "something more" than actual knowledge pursuant to the considerations outlined in Casaceli and Futo.
Applying the Casaceli/Futo factors to the instant case, the undisputed evidence establishes, as to the first factor, that the rusty condition of the deck and the presence of hydraulic fluid on the deck of the cargo hold were actually known to plaintiff. Therefore, those conditions were open and obvious to plaintiff.
With respect to the second factor, there is not sufficient evidence to create a genuine issue of material fact with respect to whether any dangerous condition of the ship or the ship's gear was involved in plaintiff's accident. It is undisputed that a TLI forklift, under the control of TLI, leaked hydraulic fluid onto the deck of the cargo hold. The presence of hydraulic fluid on the deck of the cargo hold "was not a part of the ship's normal gear which the owner created or controlled." Casaceli, 774 F.2d at 1331.
Furthermore, notwithstanding the evidence with respect to the condition of the cargo hold, there is insufficient evidence creating a genuine issue of material fact with respect to whether the condition of the cargo hold deck was a substantial factor in plaintiff's injuries. Plaintiff testified that although the cargo hold was rusty, he slipped because he was working in hydraulic fluid and that he reported to Catilano that he had slipped in the hydraulic fluid. Additionally, although plaintiff's expert, Captain Reid, notes in the challenged preliminary expert report that the cargo hold was in poor condition and that there was no non-slip paint in the cargo hold, Captain Reid states that plaintiff's injuries were caused by the hazardous condition created by the hydraulic fluid spill. Reid does not offer any opinion suggesting that the lack of non-slip surfacing on the deck of the cargo was an unreasonably dangerous condition absent the presence of hydraulic fluid, a condition caused by TLI. Additionally, as noted above, plaintiff has offered no summary judgment evidence to support a claim that the rust in the cargo hold had any effect on the bundles of rebar that allegedly failed.
To be a legal cause of a plaintiff's injury, the breach of a Scindia duty must be a "substantial factor" in the injury. Moore, 353 F.3d at 383; Donaghey v. ODECO, 974 F.2d 646, 649 (5th Cir. 1992).
Pl. Dep., at pp. 49:4-15, 63:22-66:1.
Rec. Doc. No. 39, Ex. C, at 2.
With respect to the third factor, the undisputed evidence demonstrates that TLI was in a better position to address the danger created by the hydraulic fluid spill. Plaintiff testified that on the day before his accident, he notified Catilano that there was hydraulic fluid on the deck of the cargo hold. There is no evidence, however, suggesting that any steps were taken by TLI to address that problem. Furthermore, although Captain Reid states that the vessel had the ability to clean up the hydraulic fluid once the fluid line on the TLI forklift ruptured, there is no evidence demonstrating that the vessel's crew had actual knowledge that TLI did not have any such ability. Nor is there sufficient evidence from which a reasonable factfinder could find that the vessel's crew had actual knowledge that the stevedore had not cleaned up the hydraulic fluid after the new forklift was lowered into the cargo hold. There is no evidence demonstrating whether the crew remained near the cargo hold after the new forklift was lowered into the hold.
With respect to the fourth factor, it is undisputed that TLI controlled the forklift containing the hydraulic line that ruptured and there is no summary judgment evidence demonstrating that the vessel had any supervisory control over the cargo hold during the stevedore's unloading operation. Plaintiff testified that no CHIOS CHALLENGE crew member interfered with TLI's unloading operation and that no vessel crew member ever entered the No. 4 cargo hold during TLI's operation.
Pl. Dep., p. 69:13-23.
Finally, plaintiff fails as to the fifth and sixth Casaceli/Futo factors. Plaintiff's theory of liability rests on the vessel's failure to clean the fluid off the deck rather than on an affirmative negligent act. Further, there is no evidence to suggest that the vessel assumed a duty with respect to the forklift or the condition created by the rupture of its hydraulic line.
The foregoing application of the Casaceli/Futo factors to the undisputed facts in this case demonstrates that there is no genuine issue of material fact with respect to whether the vessel owners had a duty to intervene in the stevedore's unloading operation. Even assuming that the vessel had actual knowledge of the hydraulic fluid spill, the evidence before the Court would not permit a reasonable factfinder to conclude that the vessel had "actual knowledge that it could not rely on the stevedore to protect its employees and that if unremedied the condition posed a substantial risk of injury." Greenwood, 111 F.3d at 1248; Pimental, 965 F.2d at 17.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion for summary judgment filed on behalf of defendants, Chios Challenge Shipping and Trading S.A. ("Chios Challenge Shipping") and Harbor Shipping and Trading S.A. ("Harbor Shipping"), be and hereby is GRANTED and plaintiff's claims are DISMISSED WITH PREJUDICE and at plaintiff's cost.