Hewitt v. American Pollution Control Corporation
Filing
29
ORDER & REASONS granting 18 Motion for Partial Summary Judgment; ORDERED that Defendant's Motion for Partial Summary Judgment (Rec. Doc. 18 ) is GRANTED, dismissing with prejudice Plaintiff's claim of unseaworthiness. Signed by Judge Carl Barbier on 5/31/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HEWITT
CIVIL ACTION
VERSUS
NO: 11-2051
AMERICAN POLLUTION CONTROL
CORPORATION
SECTION: “J”(5)
ORDER AND REASONS
Before the Court are Defendant’s Motion for Partial Summary
Judgment (Rec. Doc. 18) and Plaintiff’s opposition to same (Rec.
Doc. 28).
The motion is under submission to the Court on
supporting memoranda and without oral argument.
Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court now issues its ruling in this matter.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This action arises from two separate accidents that
allegedly occurred while Plaintiff Melvin Hewitt was working
aboard vessels in cleanup operations in the wake of the April
2010 Deepwater Horizon oil spill.
1
The first of the two accidents
allegedly occurred on or about July 15, 2010, while Plaintiff was
attempting to tie off the M/V BLUEFIN at Joshua’s Marina in
Buras, Louisiana.
Plaintiff alleges that unexpected movement of
the vessel caused him to fall into the water between two pilings.
The second incident allegedly occurred on or about August 2,
20101 aboard the M/V LITTLE APACHE.
Plaintiff allegedly tripped
and fell over anchors and/or other obstructions on the deck while
he was attempting to carry a 45-pound anchor.
Plaintiff alleges
that he was a seaman—a deckhand employed by Defendant—at the time
of his accidents.
Plaintiff filed his complaint on August 18,
2011, invoking admiralty jurisdiction, the Jones Act, and general
maritime law.
Defendant has filed the instant motion for partial
summary judgment.
THE PARTIES’ ARGUMENTS
Defendant argues that the Court should dismiss Plaintiff’s
unseaworthiness claim because there is no genuine contention that
1
The complaint states that the second accident occurred in 2011, which
appears to be a mistake. Rec. Doc. 1, at 2, ¶ 6. Defendant states in its
memorandum that both accidents occurred in 2010. Rec. Doc. 18-1, at 1.
Plaintiff’s opposition memorandum also states that both accidents happened in
2010. Rec. Doc. 28, at 1. Plaintiff in his deposition testimony stated that
the correct date was August 2, 2010. See Rec. Doc. 18-2, at 2 (Plaintiff
agreeing with his examiner that “the petition says August 2, 2011, but we know
that ain’t right”). The Court’s analysis proceeds under the apparent
agreement among the parties that both accidents actually occurred within the
July-August 2010 time frame.
2
Defendant owned, operated, or chartered either of the vessels
aboard which Plaintiff worked when he allegedly was involved in
the accidents at issue.
Defendant cites the affidavit testimony
of its operations manager that it did not own, operate, or
charter either the BLUEFIN or the LITTLE APACHE in July or August
2010.
It also cites Plaintiff’s deposition testimony that the
vessels were neither navigated nor operated by Defendant’s
employees.
Defendant avers that it simply provided the oil
technicians who worked aboard these vessels to assist in the oil
spill cleanup operations.
Accordingly, it avers that it is
entitled to partial summary judgment dismissing Plaintiff’s
unseaworthiness claim.
Plaintiff argues that Defendant fails to show that there are
no genuine issues of material fact or that Defendant is entitled
to judgment as a matter of law.
He avers that Defendant had a
duty to provide him with a safe place to work and that Defendant
makes no effort to show that it made any attempt to discharge
this duty.
He asserts that the only evidence before the Court is
that Plaintiff himself does not know who the vessel owners were,
and he points out the “confusion that reigned during the cleanup”
following the oil spill.
Rec. Doc. 28, at 3.
Plaintiff argues
that even if Defendant did not own, operate, or charter the
3
vessels, it may be liable for unsafe or unseaworthy conditions
aboard those vessels to which it permitted its employees to be
assigned.
He argues that the duty to provide a safe place to
work is identical to the duty to provide a seaworthy vessel.
He
states that a finding of unseaworthiness is tantamount to a
finding of unsafe conditions and that a Jones Act employer
becomes the owner pro hac vice of an unseaworthy vessel, to the
extent it may be liable for damages caused in part by the
unseaworthy, or unsafe, condition.
Moreover, Plaintiff argues
that more investigation must be made, and more facts disclosed,
before the Court can consider dismissing any of his claims.
Plaintiff concludes that Defendant has not made an adequate
showing for dismissal of the unseaworthiness claim, either as a
matter of fact or of law.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
4
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”
Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All
reasonable inferences are drawn in favor of the nonmoving party,
but a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions.
Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.”
Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991) (citation omitted).
The nonmoving party can then
defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.”
5
Id. at 1265.
If the dispositive issue is one on 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 is insufficient with respect to an essential element
of the nonmoving party’s claim.
See Celotex, 477 U.S. at 325.
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 id. at 324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.
See,
e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
“For a vessel to be found unseaworthy, the injured seaman
must prove that the owner has failed to provide a vessel,
including her equipment and crew, which is reasonably fit and
safe for the purposes for which it is to be used.”
OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001).
Jackson v.
The duty to
provide a seaworthy vessel is an “incident of vessel ownership,”
and “[t]o be held liable for breach of the duty, the defendant
must be in the relationship of an owner or operator of a vessel.”
Baker v. Raymond Int’l, Inc., 656 F.2d 173, 181 (5th Cir. 1981)
6
(quotation marks omitted).
In other words, generally speaking,
the owner or operator of the vessel containing the allegedly
unseaworthy condition is the proper defendant with respect to a
claim of unseaworthiness.
See Fla. Fuels, Inc. v. Citgo
Petroleum Corp., 6 F.3d 330, 332 (5th Cir. 1993) (“It is
well-settled, however, that the doctrine of ‘seaworthiness’ is
not applicable to a dock owner who does not occupy the position
of owner or operator of the vessel.”); Daniels v. Fla. Power &
Light Co., 317 F.2d 41, 43 (5th Cir. 1963) (“The idea of
seaworthiness and the doctrine of implied warranty of
seaworthiness arises out of the vessel, and the critical
consideration in applying the doctrine is that the person sought
to be held legally liable must be in the relationship of an owner
or operator of a vessel.”) (emphasis added).
The one exception
to this general rule is that a bareboat or demise charterer who
assumes full possession and control of a vessel may owe a duty of
seaworthiness with respect to that vessel.
Baker, 656 F.2d 173,
181-82 (5th Cir. 1981); cf. Martin v. Walk, Haydel & Assocs.,
Inc., 742 F.2d 246, 248-49 (5th Cir. 1984) (where plaintiff’s
employer was a user, but not a demise charterer, of flatboats,
the employer did not warrant the boats’ seaworthiness).
7
In this case, if Defendant did not own, operate, or charter
either the BLUEFIN or the LITTLE APACHE, Plaintiff’s
unseaworthiness claim fails as a matter of law.
Defendant
submits evidence that it meets none of these criteria for
liability for unseaworthiness.
The affidavit testimony of Malwen
A. Theriot, Defendant’s current vessel manager, is that in July
and August 2010, while Theriot was an operations manager,
Defendant did not own, operate, or charter the vessels identified
as the BLUEFIN and the LITTLE APACHE.
Rec. Doc. 18-3, at 1.
Theriot avers that Defendant provided pollution control
technicians as part of the Vessels of Opportunity Program but did
not provide personnel to navigate or operate the BLUEFIN and
LITTLE APACHE.
testimony.
Id.
Also in the record is Plaintiff’s deposition
Plaintiff did not provide any testimony concerning
the owner(s) of the vessels.
He testified that on the day of the
first accident, the BLUEFIN was captained by an individual who
was not employed by Defendant, and Plaintiff was unsure whether
the other mate on board was an employee of Defendant.
18-2, at 9.
Rec. Doc.
With respect to the LITTLE APACHE, Plaintiff thought
that a captain known to him as “Big Buoy” owned the boat, but he
was unsure who owned it.
Id. at 14.
Defendant owned the LITTLE APACHE.
8
He could not state whether
Id.
In addition to the
captain, also aboard the LITTLE APACHE on the day of the second
accident were three other individuals:
someone who worked for
Big Buoy, Plaintiff, and a second employee of Defendant.
Id. at
17.
Plaintiff does not contest that Defendant did not own,
operate, or charter the BLUEFIN or the LITTLE APACHE.
He states
that the only evidence concerning this issue is that he does not
know who the owners were and points out that the oil spill
cleanup operations involved ever-shifting orders and work
assignments.
Although Plaintiff could not state what entity or
entities owned the vessels at issue, he has introduced no
evidence to rebut Theriot’s assertion, based on his knowledge as
the operations manager at the time of the accidents, that
Defendant did not own, operate, or charter either vessel.
As a
result, Plaintiff raises no genuine issue of material fact.
In
his statement of contested facts, he does not contest Theriot’s
assertion.
Rec. Doc. 28-1, at 1.
Moreover, his statement of
contested facts does not counter Defendant’s statement of
uncontested facts, which states as uncontested that Defendant did
not own, operate, or charter the BLUEFIN or LITTLE APACHE.2
2
Rec.
See FED. R. CIV. P. 56(e) (where a party fails to properly address
another party’s assertion of fact, the court may give an opportunity to
address the fact, consider the fact undisputed for purposes of the motion,
grant summary judgment if shown that movant is entitled to it, or issue any
9
Doc. 18-4, at 1.
Finally, his suggestion that more investigation
must be done before the Court’s ruling is not persuasive because
none of the reasons given are relevant to the issue of who owned,
operated, and/or chartered the vessels.3
Plaintiff has not
suggested that additional discovery will reveal that Defendant
meets one of the criteria for making it a proper defendant for an
unseaworthiness claim.4
Plaintiff asserts that the duty of seaworthiness is
identical to the duty of an employer to provide his employees
other appropriate order).
3
See Rec. Doc. 28, at 6 (suggesting that additional investigation to
disclose more facts is necessary with respect to, at a minimum, (a) what
measures Defendant undertook to provide a safe workplace, (b) any agreements
Defendant entered into by which it furnished Plaintiff’s services during the
cleanup, (c) to which vessels Plaintiff was assigned, and (d) whether
Defendant’s personnel were involved in personnel assignments). None of these
issues are relevant to who owned, operated, or chartered the BLUEFIN and the
LITTLE APACHE. With respect to (c), Plaintiff cannot be heard to raise an
issue as to what vessels he worked aboard, where his complaint and his own
testimony only assert that he was aboard the BLUEFIN and LITTLE APACHE when he
experienced the alleged accidents at issue.
4
See FED. R. CIV. P. 56(d).
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Id. Plaintiff has not stated any such specified reasons in any affidavit or
declaration.
10
with a safe place to work.
The duty to provide a safe place to
work is a negligence-based duty.
See Nivens v. St. Louis Sw. Ry.
Co., 425 F.2d 114, 118 (5th Cir. 1970) (claim of unsafe place to
work sounding in negligence).
The duty to furnish a seaworthy
ship, on the other hand, is completely independent of a Jones Act
defendant’s duty to exercise reasonable care.
See Mitchell v.
Trawler Racer, Inc., 362 U.S. 539, 549-50 (1960) (stating that
unseaworthiness liability is completely divorced from concepts of
negligence).
Accordingly, Plaintiff’s implication that
unseaworthiness is tantamount to a negligent failure to provide a
safe working environment is incorrect.
do not support his position.
Cases cited by Plaintiff
See Martin, 742 F.2d at 249 (fact
that employer did not own flatboats did not relieve it of
obligation to exercise reasonable care to provide its employee a
safe place to work); Davis v. Hill Eng’g, Inc., 549 F.2d 314, 329
(5th Cir. 1977), overruled by Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331 (5th Cir. 1997) (addressing liability for negligence
and unseaworthiness separately); Yost v. Amer. Overseas Marine
Corp., 798 F. Supp. 313, 318 (E.D. Va. 1992) (addressing duty to
use reasonable care to provide safe place to work).
The Court holds that there is no genuine dispute that
Defendant did not own, operate, or charter the vessels on which
11
Plaintiff worked during the events at issue.
As a result,
Defendant did not owe Plaintiff the duty to furnish a seaworthy
vessel, and Defendant is entitled to partial summary judgment
with respect to the unseaworthiness claim.5
For the foregoing reasons, IT IS ORDERED that Defendant’s
Motion for Partial Summary Judgment (Rec. Doc. 18) is GRANTED,
dismissing with prejudice Plaintiff’s claim of unseaworthiness.
New Orleans, Louisiana, this 31st day of May, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
5
Although the motion is meritorious, the granting of relief requested
therein will have no practical effect on the outcome of this case. The Court
admonishes counsel to avoid filing unnecessary motions that will not affect
the scope of remedies available, the evidence to be used at trial, or any
other outcome-determinative aspect of cases. Such motion practice is a waste
of both the parties’ and the Court’s time and resources.
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