Opinion
Civil Action NO. 99-2481, Section "R" (3)
August 15, 2000
ORDER AND REASONS
Before the Court is defendant Marine Transportation Services, Inc.'s ("MTS") motion for summary judgment to dismiss plaintiff Dale Toups's complaint pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendant's motion is denied.
I. BACKGROUND
Plaintiff Dale Toups filed this suit against MTS to recover for injuries he sustained while working as a longshoreman for Baker Hughes aboard defendant's vessel, the M/V MARGARET D. On the morning of October 2, 1998, plaintiff, formerly a mud engineer at Baker Hughes, reported to his employer's Port Fourchon facility on his first day as a roustabout. His new duties, for which he had no prior experience, required him to assist in the loading and unloading of vessels. That morning, as he helped to load the M/V MARGARET D, his supervisor directed him to board the ship to remove some crane slings. Toups obeyed and boarded the vessel by climbing the tires on the side of the vessel, injuring his knee in the process. The distance between the dock and the vessel's deck was approximately 2-3 feet. Although Baker Hughes maintained two gangways at this facility, no ladder or gangway had been deployed.
Plaintiff claims that MTS's failure to provide a ladder or a gangway caused his injury. Moreover, plaintiff contends that he was not aware that Baker Hughes had a gangway and that, even if one had been available, it was an impracticable alternative. Plaintiff further maintains that defendant's failure to provide a reasonably safe means of access left him no option but to attempt boarding by climbing the tires.
Defendant moves for summary judgment. It denies liability for plaintiff's injury because it owed no duty to provide access to longshoremen during stevedoring operations. Defendant further asserts that it did not breach its turnover duty because the hazard was open and obvious.
II. DISCUSSION
A. Sumary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Board of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000)
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)
B. Vessel Liability
The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905 (b), affords longshoremen a right to file a third-party suit against a shipowner for personal injuries caused by a shipowner's negligence during cargo operations aboard the owner's vessel. See 33 U.S.C. § 905 (b). As "Congress did not `specify the acts or omissions of the vessel that would constitute negligence,' the contours of a vessel's duty to longshoremen [were] `left to be resolved through the application of accepted principles of tort law and the ordinary process of litigation. Howlett v. Birkdale Shipping Co., 512 U.S. 92, 97-98, 114 S.Ct. 2057, 2063 (1994) (quoting Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165-66, 101 S.Ct. 1614, 1620-1622 (1981)) In Scindia Steam Navigation Co. v. De Los Santos, the United States Supreme Court analyzed the scope of section 905(b) and outlined some general duties shipowners owe to longshoremen. Id. at 98, 114 S.Ct. at 2063. While the opinion does not address every issue of shipowner liability under section 905(b), it does establish several principles. "The most basic of these is that the primary responsibility for the safety of the longshoremen rests upon the stevedore." Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir. 1983). For "[a]s a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards. The ship is not the common employer of the longshoremen and owes no such statutory duty to them." Scindia Steam Navigation Co., 451 U.S. at 170, 101 S.Ct. at 1623-24. "Once the stevedore's cargo operations have begun, absent contract provision, positive law, or custom to the contrary, the owner has no general duty by way of supervision or inspection to discover dangerous conditions that develop in the area assigned to the stevedore." Helaire, 709 F.2d at 1036. As the Scindia Court explained, the shipowner is not liable to the longshoremen for injuries caused by dangers "about which he had no duty to inform himself." Scindia Steam Navigation Co., 451 U.S. at 172, 101 S.Ct. at 1624. Rather, the shipowner "is entitled to rely on the stevedores, and owes no duty to the longshoremen to inspect or supervise the cargo operations." Id., 101 S.Ct. at 1624-25.
Notwithstanding these broad areas of immunity, however, there are circumstances in which the shipowner cannot escape liability by relying on the stevedore. "First, before turning over the ship to the stevedore, the owner has a duty to warn the longshoremen of hidden defects that would be known to the shipowner in the exercise of reasonable care. He must also exercise care to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space." ` Helaire, 709 F.2d at 1036. See also Scindia Steam Navigation Co., 451 U.S. at 166-67, 101 S.Ct. at 1622. Second, once stevedoring operations have begun, a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the "active control of the vessel." Scindia Steam Navigation Co., 451 U.S. at 167, 101 S.Ct. at 1622. Third, even though the shipowner is generally relieved of responsibility for accidents occurring after the unloading process has begun, he may have a duty to intervene. See id. at 175-76, 101 S.Ct. at 1626. Here, plaintiff alleges that MTS breached its turnover duty by failing to turn over a reasonably safe ship.
1. Applicability of Scindia
As a threshold matter, however, plaintiff argues that Scindia applies to stevedores and longshoremen, not to roustabouts. (Opp'n Defs.' Mot. Summ. J. at 4-5.) The Court disagrees. In Helaire v. Mobile Oil Co., the Fifth Circuit exhaustively analyzed Scindia when it considered the claims of a roustabout who was injured while unloading casing onto a fixed offshore platform from a supply vessel. Moreover, regardless of plaintiff's job title, at the time of his injury he was performing the duties of a traditional longshoreman.
Plaintiff also argues that " Scindia should not apply because the area where the incident occurred was not within the confines of the cargo operations." (Id. at 5.) Again, the Court disagrees. Plaintiff boarded the M/V MARGARET D to remove some crane slings after a Halliburton cementer unit had been placed on the ship's aft deck. As the operation to place the unit on the deck was unquestionably a cargo operation, the removal of the crane slings would naturally be included within the ambit of the cargo operations. Therefore, Scindia principles apply because plaintiff's injuries occurred within the context of Baker Hughes' cargo operations.
2. Turnover Duty
Consistent with the principles enunciated in Scindia, the primary responsibility for a longshoreman's safety rests with the stevedore, not the shipowner. Notwithstanding this immunity, plaintiff suggests that MTS breached its turnover duty by failing to warn Toups of a hidden defect — the absence of a gangway or ladder.
The turnover duty focuses on the condition of the vessel prior to or at the commencement of stevedoring activities. It requires a vessel owner to exercise ordinary care under the circumstances and to turn over the ship and its equipment in such a condition that an expert and experienced stevedore can execute cargo operations with reasonable safety to persons and property. Howlett, 512 U.S. at 98, 114 S.Ct. at 2063 (citing Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18, 89 S.Ct. 1144, 1151 n. 18 (1969)). The duty also requires a vessel owner to warn the stevedore of latent or hidden dangers about which the shipowner knew or should have known. See id. at 98, 114 S.Ct. at 2063 (citing Federal Marine Terminals, Inc., 394 U.S. at 416-17 n. 18, 89 S.Ct. at 1151 n. 18). This duty, however, does not extend to dangers that are either open and obvious or something a reasonably competent stevedore should anticipate. See id. at 99, 114 S.Ct. at 2064. See also Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246 (5th Cir. 1997) (no breach of turnover duty if defect causing the injury is "open and obvious" and one that "longshoremen should have seen")
Here, despite plaintiff's assertion to the contrary, any hazard posed by the absence of a gangway or a ladder was immediately noticeable and, accordingly, open and obvious. See Greenwood, 111 F.3d at 1246 (citing Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992)). Moreover, the hazard should have been readily evident to a reasonably competent stevedore.
The open and obvious nature of a hazard, however, is not sufficient to preclude a shipowner's potential liability. "A vessel owner remains liable if a longshoreman's only alternatives to the open and obvious hazard are unduly impracticable or time-consuming." Id. at 1248. See also Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir. 1997) ("We have long held that when an independent contractor has actual knowledge of a remediable hazardous condition the vessel owner's turnover duty is not implicated unless the contractor's `only alternative would be to leave his job or face trouble for delaying work.'" (quoting Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67, 70 (5th Cir. 1987))
Two Fifth Circuit cases, addressing the practicability of an alternative means of access and the associated exigent circumstances, are informative. In Pluyer v. Mitsui O. S. K. Lines, Ltd., the court reviewed a district judge's determination that "the fact that the danger inherent in the use of the ladder was open and obvious did not bar [plaintiff's] recovery." Pluyer v. Mitsui O. S. K. Lines, Ltd., 664 F.2d 1242, 1247 (5th Cir. 1982). The court considered the "realities of the stevedore work environment" and affirmed that plaintiff's use of the unsafe ladder was "unavoidable." Id. at 1248-49. In Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., the Fifth Circuit reviewed the district court's finding that exigent circumstances required the plaintiff to use a defective ladder. Morris, 832 F.2d at 70. The court reversed, finding other ladders "readily accessible." Id. Critically, in both cases, the Fifth Circuit reviewed trial determinations, not summary judgment orders.
Here, plaintiff argues that no practical alternative existed because although BaKer Hughes furnished an iron gangway, this devise was heavy and had to be transported by forklift. (Opp'n Def.'s Mot. Summ. J. at 10.) Moreover, there was uncertainty about whether the iron gangway even would have fit in the openings in the railings of the M/V MARGARET D. ( Id.) Plaintiff also argues that he was under time pressure, which made moving the iron gangway by forklift impractical. ( Id. at 10-11.) MTS, on the other hand, asserts that the iron gangway provided practical access to plaintiff. ( See Mem. Supp. Mot. Summ. J. at 4, 12, 15-16.) It also cites testimony that although a gangway was readily available, nine out of ten roustabouts did not use them because accessing the vessel by the tires was a "safe, practicable alternative." (Reply Mem. Supp. Mot. Summ. J. at 7-8.)
The Court finds that the question whether a practicable alternative existed presents an issue of fact that precludes summary judgment. While defendant asserts that the iron gangway was readily accessible, it points to no evidence that a forklift was available to move the gangway or how much time such a maneuver would take. Furthermore, it is not undisputed that accessing the vessel by means of tires was a practical alternative in this case. Therefore, based on this record, the Court cannot find as a matter of law that a safe alternative was available, and it denies defendant's motion for summary judgment.
III. Conclusion
For the foregoing reasons, the Court denies defendants' motion for summary judgment.