Johnson v. PPI Technology Services, L.P. et al
ORDER & REASONS: granting 355 Defendant PPI Technology Services, LP's Motion for Summary Judgment on Employment Status, Lack of Legal Duty, and Lack of Evidence of Breach; FURTHER ORDERED THAT Plaintiff James Johnson's claims against PPI Technology Services, LP's for negligence under the Jones Act and for unseaworthiness, negligence, and maintenance and cure under general maritime law are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 4/3/14. (Reference: 11-2773)(sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NO: 11-2773 c/w
APPLIES TO 11-2773
PPI TECHNOLOGY SERVICES,
L.P., et al
SECTION: “J” (3)
ORDER & REASONS
Before the Court is Defendant PPI Technology Services, LP
Motion for Summary Judgment on Employment Status, Lack
of Legal Duty, and Lack of Evidence of Breach (Rec. Doc. 355),
Plaintiff James Johnson ("Johnson")'s opposition thereto (Rec. Doc.
386), PPI's reply
memorandum (Rec. Doc. 405), Johnson's surreply.
(Rec. Doc. 406) PPI's motion is set for hearing on March 26, 2014,
on the briefs. Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that PPI's
motion should be GRANTED for the reasons set forth more fully
PROCEDURAL HISTORY AND BACKGROUND FACTS
This action arises out of
claims for negligence under the
Jones Act and for unseaworthiness, negligence, and maintenance and
cure under general maritime law. The Court has summarized the facts
of this case numerous times, thus only the pertinent facts will be
Johnson asserts that on November 8, 2010, he was working as a
seaman on the HIGH ISLAND VII, a jack-up drilling rig located
approximately twelve miles off of the Nigerian coast. Johnson
alleges that at approximately 12:30 a.m., Nigerian gunmen boarded
the rig and shot Johnson in leg with an AK-47 rifle at close range.
As a result, Johnson alleges that he suffered severe damage to his
leg which required numerous surgeries, a muscle transplant, and
months of hospitalization.
Johnson filed suit on November 8, 2011, naming as Defendants
PSL, Ltd. ("PSL"), Transocean, Ltd. ("Transocean"), and
Afren, PLC. Following the filing of the original complaint, Johnson
added GlobalSantaFe Offshore Services, Inc. as a Defendant.1 In his
complaint, Johnson asserts that Defendants were negligent, that the
HIGH ISLAND VII was unseaworthy, and that PPI is responsible for
September 21, 2012, the Court dismissed Afren, PLC from this action
following Plaintiff's motion for voluntary dismissal. (Rec. Doc.
80) On May 31, 2013, the Court dismissed Johnson's claims against
jurisdiction over PSL. (Rec. Doc. 223) PPI filed a motion to
dismiss Johnson's claims early on in litigation; however, that
Johnson's suit was later consolidated with a related suit filed by
Robert Croke. Croke's claims, however, were recently dismissed. (Rec. Doc.
motion was converted to a motion for summary judgment and was
denied. (Rec. Docs. 7, 44) PPI then filed the instant motion, in
which it re-urges many of the arguments from its earlier motion.
PPI's arguments are fairly straightforward. First, it contends
that it is not Johnson's employer, thus it cannot be liable under
the Jones Act or for the payment of maintenance and cure. In the
employer, PPI asserts that it had no duty to provide adequate
security for the vessel because it did not exercise any control
over security matters. Based on this lack of duty, PPI argues that
it also cannot be liable for negligence under general maritime law.
Further, PPI avers that even if there were a duty under the Jones
Act or general maritime law, Plaintiff has not identified any
particular act or omission that would constitute a breach of that
duty. Finally, in regards to the unseaworthiness claim, PPI asserts
that it is not liable because PPI is not and was not the owner
and/or operator of the vessel.
Johnson contends that there are only three
that could be Johnson's employer: PPI Technology Nigeria, Ltd.
("PPIN") , PPI, or PSL. Of these three entities, Johnson avers that
PSL is a shell company operating out of Belize with which Johnson
had no interaction and that PPIN is a labor broker operating out of
instructions to Johnson. (Rec. Doc. 386-9, p. 6) Rather, PPI
supervised Johnson on a daily basis. Johnson further submits
evidence that Johnson had extensive communications with other PPI
employees such as Sandra Birkline, an administrative assistant,
and Scott Kirklin, PPI's general counsel, before, during, and after
his employment and injury and that PPI retained the sole authority
to terminate Johnson.
Johnson next argues that, because PPI is Johnson's employer,
it is clear that PPI owed Johnson a duty to provide a reasonably
safe work environment under the Jones Act and that such a duty
extends to protection from third parties' tortious acts.
even if PPI is not his employer, Johnson argues that PPI is liable
under general maritime law because PPI executives Thomas and Rankin
knew that the rig was more likely to be boarded when it was moved
closer to shore, but did not communicate that risk to Johnson.
Johnson did not make any arguments specifically concerning
PPI's challenges to his maintenance and cure and unseaworthiness
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.”
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 (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
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.’”
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.”
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
A. Johnson's Employment Status
PPI contends that it cannot be held liable under the Jones Act
and is not responsible for the payment of maintenance and cure
claims because PPI was not Johnson's employer. This issue was
already subject to the Court's review when Chief Judge Sarah Vance
was presiding over this matter.
In her Order and Reasons on this issue, Chief Judge Vance
explained that while an employer-employee relationship is required
to recover under the Jones Act and for entitlement to maintenance
and cure benefits, there can be multiple Jones Act employers, and
it is the degree of control that the defendant exerts that weighs
most heavily in this determination. (Rec. Doc. 44, pps. 12-14)
After laying out this standard, Chief Judge Vance denied PPI's
motion for summary judgment2 because Johnson submitted an affidavit
with supporting evidence "detailing his extensive involvement with
PPI personnel during the hiring process, during his employment
aboard the rig, and following his injury" that PPI was not able to
contradict. Id. at 14-16.
In the instant motion, Johnson asserts nearly the same set of
facts as he presented in response to PPI's first motion for summary
judgment; however, the record is much more fully developed at this
late stage in litigation and PPI has submitted evidence to rebut
contentions in light of these new facts.
When a seaman is not a nominal employee of a defendant, the
defendant may still be a proper Jones Act defendant if the seaman
is a borrowed servant. The Fifth Circuit has explained that:
[T]he borrowed servant doctrine is the functional rule
that places the risk of a worker's injury on his actual
rather than his nominal employer. It permits the injured
worker to recover from the company that was actually
directing his work. It may also determine which of the
possible employers ultimately bears the cost of the
1981)(internal citations omitted); Spinks v. Chevron Oil Co., 507
F.2d 216, 224 (5th Cir. 1975) decision clarified, 546 F.2d 675 (5th
PPI initially filed a motion to dismiss, but the Court converted it to
a motion for summary judgment because the parties attached several agreements
and documents to the motion that were not referenced in Johnson's complaint.
(Rec. Doc. 44, pps. 9-10)
Cir. 1977) and overruled on other grounds by Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331 (5th Cir. 1997)("If a prime contractor
has assumed enough of the incidents of an employer, such as the
right to control an employee's work, he will be deemed a seaman's
employer"). Explaining how and why a Jones Act plaintiff may be
said to have two employers, the Fifth Circuit reasoned that if
the worker is hired and paid by a subcontractor, he may
look to it as his employer even though, on the job, he
worked under the direction and control of the principal
relationship between those who direct a seaman's work
results in his being on the payroll of one company and
obeying the behest of another, the injured worker is not
required to bear the risk that he will not select the
proper target for his claim.
Baker, 656 F.2d at 178. In such situations, the plaintiff
could file claims against either company.
The Fifth Circuit uses a nine factor test from Ruiz v. Shell
Oil Co., 413 F.2d 310, 313 (5th Cir. 1969) to determine borrowed
servant status. These nine factors are:
Who has control over the employee and the work he
is performing, beyond mere suggestion of details or
Whose work is being performed?
Was there an agreement, understanding, or meeting
of the minds between the original and the borrowing
Did the employee acquiesce in the new work
relationship with the employee?
Who furnished tools and place for performance?
Was the new employment over a considerable length
Who had the right to discharge the employee?
Who had the obligation to pay the employee?
Barrios v. Freeport-McMoran Res. Partners Ltd. P'ship, No. 93-0092,
1994 WL 90456, *2 (E.D. La. Mar. 11, 1994) (Livaudais, J.); Baker,
656 F.2d at 178.
“No one factor is determinative, and courts are
instructed to look to the "venture as a whole." Cosmopolitan
Shipping Co. v. McAllister, 337 U.S. 783, 795 (1949). Whether
Johnson is the borrowed servant of PPI is a question of law;
however, "[i]f some of the factors involve a factual dispute those
factors must be submitted to the jury, unless a sufficient number
of the other factors clearly favor summary judgment." Capps v. N.L.
Baroid–NL Industries, Inc., 784 F.2d 615, 617 (5th Cir.1986)
Cir.1977)), cert. denied 479 U.S. 838 (1986); Barrios, 1994 WL
90456 at *2. The Ruiz factors are considered below.
1. Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?3
Plaintiff avers that PPI exercised control over him and his
work. In support of this contention, Plaintiff deposed that his
direct supervisors, Rankin, Thomas, and Williams, were all PPI
employees. (Rec. Doc. 355-8, p. 35) Johnson indicates that he gave
daily reports to Williams, and sometimes to Rankin. (Rec. Doc. 386-
In determining who has control, the Ruiz court warns district courts
that "a careful distinction must be made between authoritative direction and
control, and mere suggestion as to details or the necessary co-operation,
where the work furnished is part of a larger undertaking. Co-operation, as
distinguished from subordination, is not enough to create an employment
relationship." Ruiz, 413 F.2d at 313 (internal citations omitted).
Further, Johnson submits that he had extensive
interaction with PPI employees before, during, and after his
employment and injury. For example, PPI employee Sandra Birkline
coordinated all administrative issues such as travel to-and-from
Nigeria, hiring paperwork, insurance claims following the attack,
etc. Further, Scott Kirklin, general counsel for PPI, communicated
frequently with Johnson following the attack.
Defendant does not dispute that Rankin, Williams, and/or
Thomas supervised Johnson, but it argues that none of these men
worked for PPI. (Rec. Doc. 355-1, p.11) Thomas claims that he was
acting as a Drilling Advisor for Afren Energy Service, Ltd. ("Afren
Nigeria"), was supplied to Afren Nigeria by PPIN, and that he was
paid by an entity named CIMA Management (Rec. Doc. 355-9, p.15).4
Defendants claim that Williams and Rankin were both PSL consultants
Additionally, Defendant avers that Johnson was "controlled" by the
well plan–in the sense that he was bound to follow it–and the well
The CIMA set-up is not fully explained; however, that is not relevant
because it appears from Schwarz's deposition that PSL paid him through his
CIMA policy and/or account. (Rec. Doc. 386-9, p.7)
Emeka Ochonogor, and employee of Transocean Support Services Nigeria
Limited ("TSSN"), deposed that Williams and Rankin were PPIN personnel working
on behalf of Afren Nigeria (Rec. Doc. 355-11, p. 6) Kent Schwarz, an employee
of PSL who serves as the Managing Director of PPIN, deposed the same. (Rec.
Doc. 355-11, p. 6) Juan Garza, a PSL consultant who held the same position as
Johnson, deposed that Williams was from the Afren office and was his direct
supervisor, that Garza and Johnson were the company men for Afren Nigeria, and
that "the only thing that [he knew] about PPI was the paperwork that was done
for his visa." (Rec. Doc. 355-13, p. 4-5)
sentiment, stating that "[a]ll programs, all engineering, all rig
supervision, [...] they're all Afren positions and we all work for
Afren [...] as consultants." (Rec. Doc. 355-10, p. 25)
Johnson contends that there is at least an issue of material
fact regarding who these individuals actually work for because,
despite their official titles, they often held themselves out as
PPI employees, Thomas was the President of PPI (Rec. Doc. 386-7),
and Williams was
the Vice President of PPI. (Rec. Doc. 355-10, p.
Johnson further provides a series of e-mails showing that
Rankin's e-mail address was from PPI, and more importantly, that
Rankin's signature block stated "Afren Energy Ebok Development
Project, PPI Technology Services." (Rec. Doc. 386-6, p. 24)
Thomas, and Williams worked for, it may be reasonably concluded
that they each worked for either PPIN, Afren, or PSL, but not for
PPI. Further, Plaintiff cites no case in support of his contention
that, in analyzing this factor, the Court should consider Johnson's
subjective beliefs or analyze who each person held themselves out
to work for. In fact, under very similar facts in Baker, the Court
did not find it relevant to the borrowed servant analysis that the
In Baker, the defendant recruited the plaintiff to work on a vessel,
worked with him in pre-employment negotiations, sent monthly time sheets with
the defendant's name on it, and filled out certain benefit forms–such as a
life insurance policy–wherein the defendant was listed as plaintiff's
employer. Baker, 656 F.2d at 179. The Baker plaintiff's employment contract
was with a different entity, but one of the defendant's employees explained to
Therefore, because Johnson and his work on the vessel were not
controlled by PPI, this factor weighs against finding that Johnson
is PPI's borrowed servant.
(2) Whose work is being performed?
On a broad level, it is fairly clear that, Johnson was
performing Afren Nigeria's work, as Afren Nigeria was the customer
who owned the rights to the minerals. (Rec. Doc. 355-12, pps. 4-6)
Williams testified that "[a]ll programs, all engineering, all rig
supervision,[...] they're all Afren positions and we all work for
Afren [...] as consultants." (Rec. Doc. 355-10, p. 25) Further,
even on a more narrow level, it seems improper to say that Johnson
was performing PPI's work.
PPI was contracted to provide support
services to PPIN, not actual drilling services. (Rec. Doc. 355-6,
pps. 1-2) So, because it was PPIN who was ultimately responsible
for drilling services, Johnson's services would be performed for
PPIN, not PPI. Therefore, this factor weighs against a finding that
Johnson was a borrowed servant of PPI.
(3) Was there an agreement, understanding, or meeting of the
minds between the original and the borrowing employer?
PSL is the alleged original employer, thus the question is
whether there was an agreement between PSL and PPI regarding
There was a consulting agreement between PSL and PPI
the plaintiff that the defendant and the company named on the contract were
the same and that the non-defendant company was used for "tax purposes" only.
Id. The Fifth Circuit reversed a jury's finding that the plaintiff was a
borrowed servant. Id.
support to its wholly owned subsidiary, PPI Technology Services
Nigeria Limited." (Rec. Doc. 355-6, p.1) PPI believed and still
maintains that it had no real control or direction over Johnson,
but rather provided support to PPIN under the terms of a contract
between PSL and PPI.
PSL, PPI, and PPIN all saw PPI as a service
provider or facilitator for PPIN. (Rec. Doc. 355-12, pps. 4-8)
Though their procedure is rather fractured, PSL, PPI, and PPIN all
seemed to understand their arrangement, thus this factor weighs
against a finding that Johnson was PPI's borrowed servant.
(4) Did the employee acquiesce in the new work situation?
Johnson clearly believed that he worked for PPI. (Rec. Doc.
386-1) PPI asserts that this subjective belief is unfounded because
Johnson signed the Consulting Agreement that stated on its face
that it was a contract between PSL and Johnson, and later, between
PSL and Global Oil.7 Johnson contends that his belief is founded,
he was led to believe that the PSL entity was just a formality
based on statements made by Birkline, a PPI employee, wherein
she said that "PSL is our [PPI's] international entity that we
run all of our international guys thru [sic]" (Rec. Doc. 3866, p.5);
his initial contact regarding this position was with John
Arriaga, a corporate recruiter who was a PPI employee (Rec.
Global Oil was substituted as a party to the Consulting Agreement
after Johnson initially signed the contract individually.
Doc. 386-1, p.1; Rec. Doc. 386-2, p. 2);
Rankin's signature block stated "Afren Energy Ebok Development
Project, PPI Technology Services" (Rec. Doc. 386-6, p. 24)
all e-mail addresses of people with which Johnson interacted
were PPI e-mail addresses. (Rec. Doc. 386-6)
[Plaintiff] had an opportunity to observe the conditions under
which he was working and whether, after such an opportunity, he
chose to continue working." Barrios, 1994 WL 90456 at *2. Johnson
worked on the HIGH ISLAND VII, from mid-April through earlyNovember 2010, and he never chose to discontinue work. This factor
is not especially helpful, though, because the "conditions" at
issue are not physical conditions that one can observe readily,
rather, the conditions involved a complex corporate structure that
was likely to go unnoticed until an issue, such as the current
litigation, arose. Therefore, while this factor balances somewhat
against finding that Johnson was PPI's borrowed servant, it will
not be given much weight.
(5) Did the original employer terminate his relationship with
PSL continued to pay Johnson on a monthly basis throughout his
employment. Save for the signing of Johnson's Consulting Agreement
at the onset of his employment, this is essentially the only
interaction that PSL and Johnson ever had, and it remained constant
throughout the duration of Johnson's employment. Therefore, this
factor weighs against finding that Johnson was PPI's borrowed
(6) Who furnished the tools and place for performance?
PPI argues that it did not furnish tools and a place for
performance to Johnson, and Johnson offers no evidence to the
contrary. Further, PPI points to (1) evidence that GlobalSantaFe
was the owner of the vessel and that Sedco Forex International was
the bareboat charterer (Rec. Doc. 179-8); (2) deposition testimony
that PPI was not the owner of the vessel or its appurtenances (Rec.
Doc. 355-8, pps. 28-30); and (3) deposition testimony from Robert
Croke that PPI did not have any equipment on the vessel and that
Transocean had control over the actual equipment and the vessel
itself. (Rec. Doc. 355-5, pps. 19-20)
Schwarz's deposition also
reveals that PSL and PPI were on the "services" side of the Afren
Nigeria operation, as opposed to the "rig side," and that the rig
side of the operation would be the party responsible for furnishing
the rig and its appurtenances. (Rec. Doc. 355-12, pps. 4-8)
Therefore, this factor weighs against finding that Johnson was
PPI's borrowed servant.
(7) Was the new employment over a considerable length of time?
There was never any "new employment" in this situation.
Rather, Johnson's employment situation was always one of acting as
a consultant for PSL that was hired through PPI to work for PPIN's
benefit, and Johnson allegedly never learned of this arrangement.
Therefore, this factor weighs against finding that Johnson was
PPI's borrowed servant, but will be given minimal weight as it is
not especially illuminating.
(8) Who had the right to discharge the employee?
In Spinks, the court was charged with determining whether an
independent contractor who was in the business of supplying workers
for vessels was a Jones Act employer. Spinks, 507 F.2d at 224.
There, the court found it relevant that the independent contractor
in question also employed the plaintiff's supervisor, who had the
power to fire plaintiff, and the court found that such a fact
weighed in favor of finding that plaintiff was a borrowed servant
of the independent contractor. Id. The court found that the record
strongly supported the inference that the operator had no power to
fire the plaintiff, but rather only had the power to instruct the
independent contractor to terminate the plaintiff and replace him
with a new one. Id.
Based on the evidence in the instant record, Spinks applies
here. Williams deposed that, on the individual level, he, Thomas,
and Randy Sullivan had the capacity to terminate Johnson. (Rec.
Doc. 355-10, pps. 22-23) Randy Sullivan is the CEO of PPI.8
also indicated that the Country Manager of PPI could terminate
The Court never saw where the parties explained Mr. Sullivan's role;
however, PPI's website reveals that Randy Sullivan is in fact PPI's CEO. PPI
Technology Services LLC, Our Company, B. Randy Sullivan,
visited Mar. 24, 2013 at 2:31 p.m.)
Johnson. (Rec. Doc. 355-10, p. 23). Based on these facts, it
appears that some PPI employees had the some power to terminate
Johnson, and that other entities in this complex structure would
only be able to tell9 PPI to fire Johnson; therefore, this factor
weighs slightly in favor of a finding that Johnson was PPI's
(9) Who had the obligation to pay the employee?
PPI points to 88 pages of bank records which indicate that PSL
was the only entity that ever paid Global Oil, which, as noted
above, is the corporate structure through with Johnson chose to be
compensated. (Rec Doc. 319-7) This factors weighs against finding
that Johnson was PPI's borrowed servant.
After considering the nine Ruiz factors and considering the
venture as a whole, it is clear that: (1) PPI, PPIN, and PSL
understood, and (2) that Johnson did not appreciate the complexity
of this structure when employed as a drilling rig supervisor. The
record reveals that Afren Nigeria, the operator, contracted with
PPIN to provide drilling services. PPIN, lacking the infrastructure
The weight of this is only slight because, it seems reasonable to
conclude that it was actually PPIN who held the power to decide who would be
fired, and then PPI support personnel would carry out the firing. This is
supported by a clause in contract between Afren Nigeria and PPIN that states:
"[Afren Nigeria] may instruct [PPIN] to remove from the WORKSITE any person
engaged in" certain conduct laid out in the agreement. (Rec. Doc. 355-7, p. 3,
to provide such drilling services in its entirety, contracted with
operational support. Essentially, PSL appears to have contracted
out the entirety of its functions to PPI while only retaining the
role of actually funding the consultants that were hired. Though
Johnson did not seem to understand this structure, it appears from
determining where Johnson fits into this corporate structure, the
Court finds the facts in Baker to be both strikingly similar and
instructive. Baker, 656 F.2d at 179. There, the defendant recruited
the plaintiff to work on a vessel, worked with him on preemployment matters, sent monthly time sheets stamped with the
defendant's name, and filled out certain benefit forms–such as a
contract, however, was with a different entity; but, one of the
defendant's employees explained to the plaintiff that the defendant
and the company named on the contract were the same and that the
non-defendant company was used for "tax purposes" only. Id. At
trial, a jury found that the plaintiff was the defendant's borrowed
servant. Id. The Fifth Circuit reversed the jury's verdict, finding
that the defendants presented uncontroverted evidence that another
one of the defendant's affiliates employed the plaintiff and master
of the vessel and its crew, operated the vessel, and paid the
seaman's wage; therefore the plaintiff's beliefs were unfounded and
he was not the defendant's borrowed servant. Baker, 656 F.2d at
The Fifth Circuit's ruling in Baker makes it clear that
Johnson's beliefs, no matter how justified, are only part of the
equation, and that the Ruiz factors are controlling. Johnson's
evidence does show that PPI retained some of the authority to
employees–namely Williams and Thomas. Further, it is clear that
Johnson interacted extensively with people affiliated with and/or
employed by PPI. These nominal employees of PPI, however, were
working in support of PSL pursuant to a contract. Further, and as
was the case in Baker, such executive tasks cannot overcome the
heavy weight of the other Ruiz factors and the fact that PPI did
not operate the vessel, it did not pay Johnson, and it did not
employ any other members of the crew. PPI could not authoritatively
instruct Johnson how to carry out his substantive role, but rather
it was Afren Nigeria and PPIN who were charged with that role. In
fact, in light of the record, it seems that Johnson errs in setting
up the borrowed servant issue between PPI and PSL. Instead, it
appears that it should be framed as a question of whether Johnson
worked for PSL, Afren Nigeria, PPIN, or a combination of the three.
None of these entities are currently parties to this litigation,
however, so the Court cannot expand on that issue.
Based on the evidence and the argument of the parties, as well
as a consideration of the Ruiz factors, the Court finds that PPI is
not Plaintiff's Jones Act employer; therefore, the Court will grant
summary judgment on Johnson's Jones Act and maintenance and cure
B. General Maritime Negligence
Plaintiff contends that even without an employee-employer
relationship, PPI may be liable for negligence under general
theories: (1) PPI failed to provide a safe place to work, and (2)
PPI failed to inform Johnson of the known10
risk that gunmen would
board the vessel due to its close proximity to the shore. Johnson's
first theory necessarily fails because PPI had no control over the
vessel and was not Johnson's employer, thus it is clear that PPI
had no duty to provide a safe work environment on a vessel that it
did not control to a seaman that it did not employ. As to the
second theory, PPI contends that it had no duty to Johnson, and
even if it did, it did not breach that duty because regular safety
drills were conducted.
demonstrate that there was a duty owed by the defendant to the
Plaintiff submits the deposition of Thomas, PPI's CEO, wherein he
stated that Rankin had "expressed concerns about making sure that everybody
knew the protocols [...and was] following the procedures because, you know,
you are close to shore." (Rec. Doc. 386-10, p. 3)
plaintiff, and a causal connection between the defendant's conduct
and the plaintiff's injury.” Canal Barge Co., Inc. v. Torco Oil
Co., 220 F.3d 370, 376 (5th Cir. 2000)(internal citation omitted).
Ultimately, the Court must decide if PPI had a duty to inform
Johnson specifically that the vessel's proximity to the shore
increased the chance that the vessel would be boarded by gunmen. If
there is a duty, it would necessarily be breached because PPI does
not argue that it informed Johnson specifically of the risk that
the vessel would be boarded, but rather PPI indicates that lockdown
and safety drills were performed (by other entities who were
responsible for safety) and that such actions were sufficient to
protect those on board the vessel.
"[T]he 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." Canal Barge Co., Inc.,
at 377. The Fifth Circuit has explained that:
"Duty ... is measured by the scope of the risk that
negligent conduct foreseeably entails. To explicate that
concept, this circuit noted [...that...] [w]e perceive a
harm to be the 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."
Id. "In determining if there is a duty, the Court must consider
what human conduct should have appeared likely to come on the
scene, and [...] weigh the dangerous consequences likely to flow
from the challenged conduct in the light of these interventions."
In re Signal Int'l, LLC, 579 F.3d 478, 492 (5th Cir. 2009) citing
Harper, Fowler, V., HARPER, JAMES
TORTS 765 (3d ed. 2007).
Here, the Court finds that, although the alleged harm to
Johnson may have been a foreseeable consequence of not warning him
that the vessel could be boarded, the danger posed is tempered
greatly by the expectation, and the reality, that those entities
charged with operating the rig would intervene and address such a
danger. PPI was not charged with security of the rig, as is
admitted by Johnson and various other witness in this matter,11 thus
it is illogical to hold that PPI could be liable when consultants
that it recruited failed to inform other consultants that it
recruited of risks that a third party was charged with preventing.12
In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of
Mexico, on April 20, 2010, 808 F. Supp. 2d 943, 963 (E.D. La. 2011)
aff'd sub nom. In re DEEPWATER HORIZON, 12-30012, 2014 WL 700065
may have had did not give rise to a duty to intercede
in an independent contractor's operations.")
Johnson deposed that "I think that – PPI, since they were running the
operation for Afren, I think that they could have done a better job on their
security. Of course they didn't have control of the – that's the only thing
that they didn't have control over, was the security officers that I know of.
(Rec. Doc. 355-8, pps. 262-263) Further, Emeka Ochonogor of TSSN testified
that Afren Resources, Ltd was responsible for security of the HIGH ISLAND VII.
(Rec. Doc. 355-11, p. 8-9).
Further, even if there was a duty, it is difficult to say that Thomas
or Rankin's failure to warn Johnson caused a breach in security that allowed
the gunmen to board the vessel.
Accordingly, the Court finds that PPI did not have a duty to
inform Johnson about the risk that the vessel could be boarded
and will grant summary judgment in favor of PPI on this issue.
unseaworthiness of the vessel because it is not the owner or
operator of the HIGH ISLAND VII, and Johnson did not dispute this
contention in its opposition to the instant motion.
The proper defendant to an unseaworthiness claim is the "owner
or operator of a vessel.” Baker, 656 F.2d at 181-82 citing Daniels
v. Florida Power & Light Co., 317 F.2d 41, 43 (5th Cir. 1963),
cert. denied, 375 U.S. 832 (1963). In addition to an owner or
operator, a bareboat or demise charterer may also be liable for
unseaworthiness if "the charterer assumes full possession and
control of the vessel." Baker, 317 F.3d at 181-82.
Here, PPI claims that it was not in control of the vessel and
points to: (1) evidence that Sedco Forex International was the
bareboat charterer of the vessel (Rec. Doc. 179-8), (2) deposition
appurtenances (Rec. Doc. 355-8, pps. 28-30), and (3) deposition
testimony from Robert Croke that PPI did not have any equipment on
equipment and the vessel itself. (Rec. Doc. 355-5, pps. 19-20) The
fact that PPI did not own or exert control over the vessel itself
is further corroborated by the fact that, under the terms of the
consulting agreement, PPI acted
"for the benefit of PSL to retain
subsidiary, PPI Technology Services Nigeria Limited." (Rec. Doc.
319-1-, p.1) This evidence clearly demonstrates that PPI did not
exert complete control over the vessel itself, and Johnson has
Therefore, summary judgment will be granted in favor of PPI on
Johnson's claim for unseaworthiness.
IT IS ORDERED THAT Defendant PPI Technology Services, LP's
Motion for Summary Judgment on Employment Status, Lack of Legal
Duty, and Lack of Evidence of Breach (Rec. Doc. 355) is GRANTED.
IT IS FURTHER ORDERED THAT Plaintiff James Johnson's claims
against PPI Technology Services, LP's
for negligence under the
Jones Act and for unseaworthiness, negligence, and maintenance and
New Orleans, Louisiana this 3rd day of April, 2014.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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