Steve Landers v. Kevin Gros Offshore, L.L.C.

Filing

UNPUBLISHED OPINION FILED. [10-30236 Affirmed ] Judge: TMR , Judge: FPB , Judge: EBC Mandate pull date is 12/30/2010 [10-30236]

Steve Landers v. Kevin se: 10-30236L.L.C. Ca Gros Offshore, Document: 00511317273

Page: 1 Date Filed: 12/09/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 9, 2010 N o . 10-30236 Lyle W. Cayce Clerk

S T E V E D. LANDERS, P la in t if f -A p p e lla n t v. B O L L I N G E R AMELIA REPAIR, LIMITED LIABILITY CORPORATION, D e fe n d a n t -A p p e lle e

A p p e a l from the United States United States District Court for the Eastern District of Louisiana U S D C No. 2:08-CV-1293-MVL-SS

B e fo r e REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges. P E R CURIAM:* T h is admiralty case requires us to determine whether a maritime status a r o s e between Defendant-Appellee dock owner, Bollinger Amelia Repair, L.L.C. (" B A R " ), and Plaintiff-Appellant, Steve D. Landers, when Landers used BAR's gangw ay. As no relevant facts or law support a finding that a maritime

r e la t io n s h ip existed between this dock owner and the docked vessel's crew m e m b e r , we find no admiralty status and affirm the judgment of the district c o u r t.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 10-30236 Document: 00511317273 Page: 2 Date Filed: 12/09/2010

No. 10-30236 T h e M/V ROSEANNA, an offshore supply boat owned and operated by K e v in Gros Offshore, L.L.C. ("Kevin Gros"), arrived at a BAR dock on June 12, 2 0 0 6 , after its starboard stern hull next to its water tank was punctured by an o ffs h o r e platform.1 The gangway aboard the M/V ROSEANNA was unusable b e c a u s e it was defective and blocked by cargo. In any case, BAR requires that v e s s e ls tied to its dock use a BAR gangway. Landers, an unlicensed engineer a s s ig n e d to the M/V ROSEANNA, and Leonard Horne, another crew member, t h e n obtained a thirteen-foot aluminum gangway from the BAR dock and placed it between the dock and the vessel.2 An employee of Kevin Gros inspected the g a n g w a y before the crew used it and found it to be free of defects. Landers used t h e gangway several times without a problem. Thereafter, the Kevin Gros port c a p t a i n determined that the M/V ROSEANNA crew could repair the damage a r o u n d the water tank without BAR's assistance. Thus Kevin Gros never

c o n t r a c te d with BAR for repair work. Later that day while Landers and Horne w e r e in the process of removing the gangway­Landers pushed the gangway a w a y from the vessel, and Horne pulled it onto the dock­the gangway stopped a n d sprung back, injuring Landers' back. Afterwards, Landers observed a

b r o k e n metal cross bar on the underside of the gangway. Landers then filed suit against Kevin Gros, and later added BAR as a d e fe n d a n t claiming BAR was negligent under maritime law for failing to provide a safe gangway. Landers settled his claims against Kevin Gros. The district

We will assume that BAR did own this dock, viewing the facts in the light most favorable to the non-moving party. See R. at 134-35. Landers asserts that a BAR employee may have placed the gangway between the dock and vessel, but this representation is contrary to the sworn testimony of Horne. R. at 863-64 ("[Landers and I] put it­if I remember right . . . I don't remember nobody else helping us do that"). The testimony of BAR's 30(b)(6) representative, which Landers cites as evidence that a BAR employee may have placed the gangway, in fact indicates that a BAR employee did not personally place the gangway since "[a]s a rule [BAR] use[s] extended-boom forklifts and cranes to move and set [its] gangways in place." R. at 2647.
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Case: 10-30236 Document: 00511317273 Page: 3 Date Filed: 12/09/2010

No. 10-30236 c o u r t granted BAR's motion for summary judgment, holding that BAR did not h a v e a maritime relationship with Landers, and that any claim under Louisiana la w had expired under the one-year statute of limitations for tort claims. The d is t r ic t court denied Plaintiff's Motion to Re-Open Case and Motion for New T r ia l. Landers timely filed a Notice of Appeal of the district court's order

d e n y in g his motion to re-open the case. Though Landers specifically appealed only the district court's judgment d e n y in g his motion to re-open the case in his Notice of Appeal, a denial which we w o u ld review for abuse of discretion, Landers argues that he intended to appeal t h e district court's grant of BAR's motion for summary judgment and consequent d is m is s a l of his complaint. A party must designate each judgment he appeals, F e d . R. App. P. 3(c)(1)(B), but "[w]e will liberally construe such notices where the in t e n t to appeal an unmentioned or mislabeled ruling is apparent and there is n o prejudice to the adverse party." Choate v. Potter, 349 F. App'x 927, 929 (5th C ir . 2009) (citing C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1 0 4 9 , 1056 (5th Cir. July 1981)). "When the appellant clearly intends to appeal fr o m the underlying judgment and the appellee will not be prejudiced, we treat a n appeal from an order denying a motion for new trial as an appeal from the a d v e r s e judgment itself." United States v. Lopez-Escobar, 920 F.2d 1241, 1244 (5 t h Cir. 1991) (citations omitted). While Landers noticed only his appeal of the d is t r ic t court's denial of his motion for reconsideration, that judgment was in t e r t w in e d with the judgment granting BAR's motion for summary judgment, a n d the latter appeared in the title of his motion challenging the district court's r e fu s a l to reopen the case, which he included in the Notice of Appeal. Moreover, b o th parties briefed the issues related to the judgment dismissing the complaint, a n d BAR will not be prejudiced by our consideration of it. Accordingly, we will c o n s id e r the district court's grant of BAR's motion for summary judgment and t h e issues involved therein. 3

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No. 10-30236 " W e review a grant of summary judgment de novo, applying the same legal s t a n d a r d as the district court." Croft v. Governor of Tex., 562 F.3d 735, 742 (5th C ir. 2009) (internal quotations omitted). Summary judgment should be rendered if the record demonstrates that "there is no genuine issue as to any material fact a n d that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 ( c )(2 ). "An issue is material if its resolution could affect the outcome of the a c t io n ." Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). "In d e c id in g whether a fact issue has been created, the court must view the facts and t h e inferences to be drawn therefrom in the light most favorable to the n o n m o v in g party." Id. Landers argues that by requiring docked ships to use BAR's gangways, B A R "stepped into the vessel owner's shoes and, as a result, [] assumed a m a r it im e duty to provide a gangway free from hidden defects," under "general m a r it im e negligence law." Appellant's Br. at 20, 22.3 Landers acknowledges t h a t "BAR, as a dock owner, had no duty to furnish plaintiff's vessel with a g a n g w a y ," id. at 22, and also concedes that BAR "did not owe the plaintiff a duty o f seaworthiness because [BAR] was not the vessel owner." Id. at 25. Rather, L a n d e r s asks the court to "establish a new legal precedent . . . [that] [w]hen a s h ip repairer/dockowner assumes the vessel owner's duty to provide equipment t o a vessel . . . then the ship repairer/dockowner should be [potentially] liable u n d e r the general maritime law of negligence." Id. at 26. As Landers has failed t o present any cogent basis for us to expand maritime jurisdiction in this way, w e decline to do so, and find that the district court properly refused to apply m a r it im e law to the facts of this case.

We reject BAR's contention that Landers waived the argument that BAR acquired a maritime status with Landers because he failed to present it to the district court. Rather, we believe that Landers did make this argument before the district court as this argument was one of the primary arguments that the district court addressed. See R. at 3038-40.

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Case: 10-30236 Document: 00511317273 Page: 5 Date Filed: 12/09/2010

No. 10-30236 " I t is well-established that maritime law encompasses the gangway. It is a ls o well-established that a vessel owner has a `fundamental duty' to provide its c r e w members with a reasonably safe means of boarding and departing from the v e s s e l." Florida Fuels v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir. 1993) (in tern al citations omitted). "Under general maritime law, a vessel owner has `an a b s o lu t e nondelegable duty to provide a seaworthy vessel' to crew members." Id. (q u o tin g Brister v. A.W.I. Inc., 946 F.2d 350, 355 (5th Cir. 1991)). This duty is i r r e s p e c t iv e of "`fault or the use of due care.'" Id. (quoting Brister, 946 F.2d at 3 5 5 ). "The idea of seaworthiness and the doctrine of implied warranty of

s e a w o r t h in e s s arises out of the vessel, and the critical consideration in applying t h e doctrine is that the person sought to be held legally liable must be in the r e la t io n s h ip of an owner or operator of a vessel. The usual relationship for r e c o v e r y has been referred to as three-cornered: master, i.e., owner or operator, v e s s e l and shipworker." Daniels v. Florida Power & Light Co., 317 F.2d 41, 43 (5 t h Cir. 1963). For these reasons, "[i]t is well-settled [] that the doctrine of `s e a w o r t h in e s s ' is not applicable to a dock owner who does not occupy the p o s it io n of owner or operator of the vessel." Florida Fuels, 6 F.3d at 332. Moreover, "[a]bsent a maritime status between the parties, a dock owner's duty t o crew members of a vessel using the dock is defined by the application of state la w , not maritime law." Id. We are unconvinced by Landers' argument that BAR's gangway policy g iv e s it a maritime relationship with Landers. As a prelim i n a r y m a t t e r , we n o te that in this case there is no summary judgment evidence that BAR played a role in the M/V ROSEANNA's crew members' use of BAR's gangway. In fact, it is undisputed that there was no useable and accessible gangway aboard the M /V ROSEANNA, and thus Kevin Gros's employees could not possibly have used t h e ir own gangway. There is no evidence that anyone other than Landers and H o r n e , both Kevin Gros employees, set up or removed the BAR gangway. 5

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No. 10-30236 A d d it io n a lly , a Kevin Gros employee inspected the gangway before its use. Next, Landers does not cite any cases that stand for his proposition that a dock owner may step into the role of the shipowner and trigger maritime tort lia b ilit y by requiring use of one of its gangways. Instead, Landers asks us to a p p ly the "`Good Samaritan' rule," Appellant's Br. at 22, that "[o]ne who u n d e r t a k e s . . . to render services to another . . . is subject to liability to the other fo r physical harm resulting from his failure to exercise reasonable care to p e r fo r m his undertaking," if certain conditions are met. Restatement (Second) o f Torts § 323. Landers fails to explain how this principle triggers maritime lia b ilit y rather than negligence liability under state law, however. This principle p r o v id e s no basis to apply maritime law in this case. In any case, because a shipowner's duty to provide a gangway to his crew m e m b e r s falls under his absolute duty to provide a seaworthy vessel to them, the lo g ic a l conclusion of Landers' argument that by requiring use of its gangway B A R has stepped into the role of shipowner, is that BAR has acquired the a b s o lu t e duty of providing a seaworthy gangway to Landers. But, the law is c l e a r that the seaworthiness doctrine is limited to vessel owners or operators, a n d thus would not apply in this case. See Daniels, 317 F.2d at 43 ("The refusal o f the District Court to apply the doctrine to hold a husbanding agent, not the e m p lo y e r of the seaman and who did not operate and control the vessel at the t im e of the injury was affirmed in Romero v. International Terminal Operating C o m p a n y , 1959, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368."). Landers' attempt t o avoid this result by concluding that by having a policy requiring use of a BAR g a n g w a y , BAR acquired the duty of providing a safe gangway under general m a r it im e negligence law, is not based in law or logic, and thus we reject it. Additionally, Landers' argument would require us to ignore our e s t a b lis h e d precedent that a dock owner does not have a general maritime duty t o provide a crew member with a means of boarding and departing from the ship; 6

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No. 10-30236 s u c h a duty does not exist between a "dock owner toward a vessel crew member a b o a r d the vessel." Florida Fuels, 6 F.3d at 333 (finding dock owner had no m a r it im e duty to a crew member of a docked vessel who fell off of a ladder that h e used when the dock owner failed to provide access to its dock). We also accept B A R 's argument that in this case, where BAR employees played no role in the p la c e m e n t or removal of the BAR gangway, BAR's policy that docked ships must u s e a BAR gangway is similar to the sort of custom that we have found in s u ffic ie n t to create a duty. See id. at 334 ("Although custom may be considered a s evidence bearing on the question of negligence once a duty is found to exist, c u s t o m itself does not create the duty . . . the fact that [the dock owner] fu r n is h e d means of access to vessels at some of its docks does not create a legal d u t y on the part of [the dock owner] to provide a means of access for the [ship's] c r e w members.") As we find that the district court properly granted summary judgment to B A R , we also find that the district court properly denied Landers relief under F e d e r a l Rule of Civil Procedure 59(e), as Landers did not present any newly d is c o v e r e d evidence or demonstrate a manifest error of fact or law in his motion t o re-open the case. F o r the foregoing reasons, the opinion of the district court is AFFIRMED.

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