Hewitt et al v. Noble Drilling US, LLC et al
Filing
158
ORDER AND REASONS granting 129 Motion for Summary Judgment; granting 131 Motion for Summary Judgment. Signed by Judge Jane Triche Milazzo on 5/5/2016. (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALTER HEWITT ET AL.
CIVIL ACTION
VERSUS
NO: 15-1197
NOBLE DRILLING US, LLC ET AL.
SECTION: “H”(5)
ORDER AND REASONS
Before the Court are Defendant Shell Offshore Inc.’s Motion for
Summary Judgment (Doc. 129) and Defendant Noble Drilling U.S. LLC’s
Motion for Summary Judgment (Doc. 131). For the following reasons, the
Motions are GRANTED, and the claims against Movants are DISMISSED
WITH PREJUDICE.
BACKGROUND
Plaintiff Walter Hewitt filed this suit alleging that he was injured while
working as a seaman aboard a drilling vessel, the FRONTIER DRILLER, 1
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Also referred to in briefings as the NOBLE DRILLER.
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when a gust of wind caused the lid of a tool box to close on his head. At the
time, Plaintiff was employed as a member of a casing crew by Defendant
Frank’s International, LLC (“Franks”). The FRONTIER DRILLER was owned
by Defendant Noble Drilling U.S., LLC (“Noble”) and operated by Defendant
Shell Offshore, Inc. (“Shell”). Plaintiff alleges that the tool box lacked certain
safety measures, specifically a hydraulic closure system, which would have
prevented it from closing on his head. In his Complaint, he brought claims
under the Jones Act and general maritime law for unseaworthiness,
maintenance and cure, and punitive damages for failure to pay maintenance
and cure.
He has also brought a claim under 33 U.S.C. § 905(b) of the
Longshore and Harbor Worker’s Compensation Act (“LHWCA”). On May 5,
2016, this Court granted Defendants’ Motions for Summary Judgment, holding
that Plaintiff is not a seaman and dismissing his claims under the Jones Act
and the general maritime law.
Only Plaintiff’s LHWCA claim remains.
Defendants Shell and Noble have filed motions for summary judgment seeking
the dismissal of Plaintiff’s final claim.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with 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.” 2 A genuine issue
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Fed. R. Civ. P. 56(c) (2012).
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of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 3
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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LAW AND ANALYSIS
Under 33 U.S.C. § 905(b) of the LHWCA, an injured worker may bring a
claim against a vessel owner for vessel negligence. Plaintiff has brought an
LHWCA claim against Noble as owner of the FRONTIER DRILLER and Shell
as the operator. In their separate motions, Noble and Shell argue that they
cannot be held liable for Plaintiff’s injury under the LHWCA because they did
not own or control the tool box that caused the injury or have a duty to inspect
or supervise the work done by Franks. It is undisputed that the tool box was
constructed, owned, and utilized by Franks in its casing work aboard the
FRONTIER DRILLER. Franks had constructed and shipped the box to be
loaded aboard the vessel prior to beginning its work. Plaintiff alleges, however,
that because the toolbox was incorporated as part of the vessel, it was a
defective appurtenance causing the vessel to be unsafe. Plaintiff alleges that
Defendants Noble and Shell should be liable for this hazardous condition.
Movants rely on the Supreme Court’s opinion in Scindia Stream Nav.
Co. v. De Los Santos, which sets forth the three duties of a vessel owner, to
argue that they did not breach a duty to Plaintiff. 10 In Scindia, an employee
of a stevedoring company was injured while loading cargo onto a vessel owned
by Scindia. 11
The Court held that a vessel owner has three duties to a
longshoreman: (1) the duty to turn over a reasonably safe vessel, (2) the duty
to protect against hazards if the vessel is left in the owner’s active control, and
(3) the duty to intervene to prevent use of an unsafe practice if the vessel owner
is aware that it is being undertaken. 12 The Court held that the vessel owner
Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981).
Id. at 159.
12 Id. at 167–78.
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has the duty to exercise due care under the circumstances. 13 Movants allege
that they did not breach any of these duties to Plaintiff and thus cannot be held
liable under the LHWCA.
Plaintiff contends that the Scindia duties do not apply to this case
because Plaintiff was not engaged in the traditional stevedoring operations of
loading and unloading. To be sure, Plaintiff was part of a casing crew hired to
install and remove casing aboard off-shore drilling rigs, such as the
FRONTIER DRILLER. Plaintiff has not, however, provided this Court with
any case law to support this position, nor could this Court find any. Indeed,
the Fifth Circuit has explicitly held that “although Scindia arose in the context
of stevedoring operations, the duties it enumerates are not limited to
stevedores.” 14 “[I]t [is] clear that the rationale of Scindia applies equally to
questions of vessel owner liability for injuries to LHWCA-covered employees of
an independent contractor working aboard the vessel.” 15 Accordingly, this
Court will apply the Scindia duties to the case at hand.
a. Turnover Duty
First, Scindia states that the vessel owner 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 [contractor] will be able by the
exercise of reasonable care to carry on its [] operations with reasonable safety
to persons and property.” 16 Movants allege that they did not breach this duty
because they did not own the injury-causing equipment. Plaintiff does not
Id. at 166–67.
Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 533 (5th Cir. 1991).
15 Lormand v. Superior Oil Co., 845 F.2d 536, 541 (5th Cir. 1987).
16 Scindia, 451 U.S. at 167.
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dispute that the tool box belonged to his employer Franks and was brought
aboard the vessel by Franks.
The turnover duty also requires that the vessel owner alert the
contractor of “any hazards on the ship or with respect to its equipment that are
known to the vessel or should be known to it in the exercise of reasonable
Movants allege that they did not breach this duty because even
care.” 17
Franks’ crew was unaware of the defect in the tool box until after the accident,
and therefore Movants had no way of knowing of the hazard. Plaintiff offers
no facts that dispute this point. Accordingly, Movants did not breach the
turnover duty.
b. Active Control Duty
Next, Scindia states that a vessel owner may be held liable if it actively
involves itself in the contractor’s operations and is negligent in harming a
longshoreman. 18 Plaintiff makes conclusory statements alleging that Movants
“owned and exercised control over and upon the work station which Plaintiff
discharged his duties,” however, his deposition testimony paints a different
story. Plaintiff testified that Franks controls the work it performs aboard the
vessel and that Franks’ work is its “show.” Plaintiff does not offer any evidence
contradicting the fact that Franks was in control of the casing operation at the
time of the injury. Accordingly, Movants cannot be liable for breaching the
active control duty.
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Id.
Id.
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c. Duty to Intervene
Finally, Scindia requires that a vessel owner intervene in the
contractor’s operations if it has actual knowledge of a danger that it anticipates
the contractor cannot or will not correct. 19 Again, it is undisputed that neither
Franks’ crew nor the crews of Noble or Shell were aware that the tool box was
lacking the appropriate safety device. Plaintiff argues, however, that the tool
box was a “defective appurtenance of the vessel,” which rendered the vessel,
under Movants’ charge, unsafe. The Fifth Circuit has held, however, that the
mere presence of a danger on board is insufficient to create a duty to
intervene. 20 “Once . . . repair operations have begun, it is the [contractor], not
the shipowner, who assumes the responsibility for the safety of its
employees.” 21 Accordingly, Movants did not breach the duty to intervene.
As outlined above, Movants did not breach any of the three duties that
they owed to Plaintiff as owners and operators of the vessel aboard which he
was injured. Therefore, they cannot be liable for negligence under § 905(b) of
the LHWCA.
Id. at 178.
See Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 215–16 (5th Cir. 1984).
21 Id.
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CONCLUSION
For the foregoing reasons, the Motions for Summary Judgment are
GRANTED, and Plaintiffs’ LHWCA claims against Movants Shell Offshore
and Noble Drilling are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 5th day of May, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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