Duvall v. BOPCO, L.P. et al
ORDER & REASONS granting in part and denying in part 45 & 71 Motions to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 11/24/2015. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOPCO, L.P., ET AL.
ORDER AND REASONS
Before the Court are BOPCO, L.P.'s partial motions to dismiss
plaintiff’s second and third supplemental and amending complaints
under Rule 12(b)(6).
For the reasons that follow, the motions are
GRANTED in part and DENIED in part.
This is a personal injury case. In his work as a coil tubing
operator for Pioneer Coiled Tubing Services, LLC, Michael Duvall's
right hand was crushed as he was unloading a spud barge, the
T.T.I.-1, owned and operated by BOPCO, L.P. BOPCO contracted with
Pro-Tow Marine, L.L.C. to provide a tow boat and personnel to equip
and transport the barge for work on oil and gas production wells.
BOPCO also contracted with Eagle Consulting, L.L.C. to provide a
supervisor for the barge or well repair operations.
The mechanics of the February 10, 2015 accident are alleged in
the complaint as follows. Legs of the barge are raised and lowered
by two hydraulic lift motors and cables attached to the two legs of
the barge, which are all permanently affixed to the barge owned and
maintained by BOPCO. Legs are raised and locked by inserting a
large iron pin into a hole on each leg, with the pin resting on the
hydraulic lift motors are operated from a control panel centered
between the two legs of the barge, approximately 20 feet from each
While Duvall and two Pioneer co-workers were attaching hoses
to the split skid pump on the deck of the barge, Clifton Gaines, a
Pro-Tow Marine employee, asked Duvall to assist him with raising
and setting one leg of the barge by inserting the pin into the leg
once the operator of the lift motor raised the leg to set it into
place. Once Gaines raised the vessel leg to its desired height
through the use of the vessel's affixed hydraulic lift motor,
Duvall began to insert the iron pin into the hole of the leg when
the lift motor suddenly released, causing the vessel leg to drop in
a free-fall fashion. The sudden dropping of the vessel leg crushed
Duvall's right hand between the iron pin and the iron edge of the
leg's outer casing, crushing his right index finger and middle
finger, ultimately necessitating partial amputation of his index
finger and causing residual impairments and disabilities to his
index and middle finger.
On June 30, 2015, Mr. Duvall sued BOPCO, Pro-Tow Marine, and
Eagle Consulting, seeking to recover in excess of $500,000 for a
maritime law and Louisiana law. As against BOPCO, the vessel owner,
Mr. Duvall also seeks to recover under the Longshore and Harbor
Worker's Compensation Act, 33 U.S.C. § 905(b). Shortly after filing
his initial complaint, Duvall filed a first supplemental and
amending complaint against BOPCO. In response, BOPCO filed a
partial motion to dismiss 11 of Duvall’s claims under 12(b)(6) on
the ground that Duvall's exclusive remedy against BOPCO, the vessel
owner, is under Section 905(b) of the Longshore and Harbor Worker's
Compensation Act. While BOPCO’s original motion was before the
Court, Duvall filed a second and then a third supplemental and
amending complaint in which he withdrew some claims and reasserted
and re-styled others.
The Court thus denied BOPCO’s original
plaintiff) and in part without prejudice (as to the claims pursued
complaints). BOPCO now seeks to dismiss some of the plaintiff's
claims alleged in the plaintiff's second and third supplemental
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. Such a motion is rarely
granted because it is viewed with disfavor. See Lowrey v. Tex. A &
M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed factual
allegations,' but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
favorable to the plaintiff.’” See Martin K. Eby Constr. Co. v.
Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). Thus, the
Court “should not dismiss [a] claim unless the plaintiff would not
be entitled to relief under any set of facts or any possible theory
that [it] could prove consistent with the allegations in the
complaint.” Jones v. Greninger, 188 F.3d at 324. But, in deciding
conclusory allegations in the complaint as true. Kaiser, 677 F.2d
at 1050. Indeed, the Court must first identify allegations that are
conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary is that
legal conclusions “must be supported by factual allegations.”
allegations, the Court must then determine “whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal
quotation marks omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
footnote omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id.
at 678 (internal quotations omitted) (citing Twombly, 550 U.S. at
“[A] plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’”, thus, “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (alteration in
original) (citation omitted).
The Longshore and Harbor Worker's Compensation Act provides
maritime workers with a method of recovery for workplace injuries.
33 U.S.C. §§ 901-950; Ne. Marine Terminal Co., Inc. v. Caputo, 432
U.S. 249, 257-65 (1977). To be eligible for coverage under the Act,
a worker must meet both a situs and a status test. New Orleans
Depot Services, Inc. v. DOWCP, 718 F.3d 384, 388-89 (5th Cir. 2013)
(en banc) (citations omitted). Here, it is undisputed that, on the
pleadings, Duvall satisfies both the situs test (because his
alleged injury occurred on Back Levee Canal, a U.S. navigable
water) and the status test (because Duvall alleges that he was
loading equipment onto the T.T.I-1 at the time of his injury).
Thus, based on the allegations of his complaint, Duvall is eligible
to recover under the LHWCA.
Once an injured worker meets the situs and status tests for
coverage, the Act provides two types of coverage: (1) compensation
benefits from his employer under Section 904; and (2) recovery for
vessel negligence under Section 905(b). 33 U.S.C. §§ 904, 905(b).
For the purposes of BOPCO's motions, Duvall asserts only vessel
negligence against BOPCO.
Notably, the statute provides that
"[t]he remedy provided in this subsection shall be exclusive of all
other remedies against the vessel except remedies available under
this chapter." 33 U.S.C. § 905(b).
The scope of vessel negligence
under Section 905(b) is limited to the breach of specific duties
described by the U.S. Supreme Court in Scindia Steam Navigation
Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981). Courts have
construed Scindia to provide three general duties that vessels owe
operations; 2) the duty to prevent injuries to longshoremen in
areas remaining under the ‘active control’ of the vessel; and 3)
the ‘duty to intervene.’” Moore v. M/V ANGELA, 353 F.3d 376, 380
(5th Cir. 2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S.
92, 98 (1994)).
The turnover duty has two parts. First, a 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 stevedore will be able by the exercise of reasonable
care to carry on its cargo operations with reasonable safety.”
Scindia, 451 U.S. at 167. Second, a vessel owner has a duty to warn
“the stevedore 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 care.” Id.
This duty is narrow,
however, and does not “include dangers which are either: (1) open
and obvious or (2) dangers a reasonably competent stevedore should
Kirksey v. Tonghai Mar., 535 F.3d 388,
392 (5th Cir. 2008) (citing Howlett, 512 U.S. at 100-01).
Once the vessel has been turned over to the stevedore, the
vessel owner has no general duty to supervise or inspect the
operations; instead, the vessel owner may rely on the stevedore to
fulfill its statutory duty under 33 U.S.C. § 941 to provide a
reasonably safe work environment for the longshoremen.
451 U.S. at 168-69.
Hence, “the shipowner is not liable to the
longshoremen for injuries caused by dangers unknown to the owner
and about which he had no duty to inform himself.” Id. at 172.
Thus, once the vessel owner turns over the ship to the stevedore,
only the duty to control and the duty to intervene apply.
167, 175. Under the duty to control, “a shipowner must exercise
reasonable care to prevent injuries to longshoremen in areas that
remain under the active control of the vessel.”
Howlett, 512 U.S.
The duty to intervene arises when a vessel owner has actual
knowledge of a hazard and that the stevedore, in the exercise of
“obviously improvident” judgment, intends to continue operations
despite the hazard.
Pimental v. LTD Canadian Pac. Bul, 965 F.2d
13, 15 (5th Cir. 1992). In other words, if a hazard develops during
the stevedore’s operations and “if the shipowner should anticipate
that the stevedore will not or cannot correct the danger and that
the longshoremen cannot avoid it, then the shipowner's duty is
triggered to take steps, reasonable in the circumstances, to
eliminate or neutralize the hazard.”
Scindia, 451 U.S. at 175.
Scindia and its progeny involve the scenario of an injured
principles apply to cases like the instant action that involve
aboard a vessel. Levene v. Pintail EnterprisesBB, 943 F.2d 528 (5th
Cir. 1991); Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir.
1982); Aguilar v. Bollinger Shipyards, Inc., 833 F. Supp. 2d 582,
591 (E.D. La. 2011).
BOPCO seeks dismissal of the following claims on the ground
that they are outside the scope of the three Scindia duties under
Section 905(b): (1) failure to provide safe equipment for raising
and lowering of barge legs; (2) breach of legally imposed duty of
reasonable care in failing to warn plaintiff or employer of hidden
defect; (3) breach of the duty to provide a safe work place to
hazardous condition or defect.
Failure to Provide Safe Equipment
First, BOPCO seeks dismissal of plaintiff’s claim that BOPCO
failed to provide safe equipment for raising and lowering barge
legs, arguing that the turnover duty is a narrow duty that does not
include a generalized duty to provide safe equipment.
submits that its actual turnover duty is already encompassed within
causes of action asserted by Duvall, specifically the violation of
the turnover duty and the failure to exercise ordinary care to turn
over the ship and equipment; BOPCO does not dispute that Duvall has
stated a claim under these two duties.
BOPCO maintains that the limits of the turnover duty are
established in Kirksey v. Tonghai Mar., which provides that a
vessel owner “owes a duty to exercise ordinary care under the
circumstances to turn over the ship and its equipment in such
operations with reasonable safety.” 535 F.3d 388, 392 (5th Cir.
2008). The Fifth Circuit’s opinion in Kirksey, however, is not
inconsistent with a duty to provide safe equipment for raising and
lowering barge legs.
Insofar as the plaintiff alleges that BOPCO
breached its turnover duty in failing to turn over the ship and its
equipment in such condition that a stevedore or non-stevedore
contractor can carry on operations with reasonable safety, the
plaintiff has stated a claim consistent with Scindia.
In Scindia, the Court clearly established that the condition
of specific equipment on a vessel – like the alleged defects in the
raising and lowering barge legs here – may give rise to a claim
that the vessel owner breached its turnover duty. There, the Court
provided that a shipowner “has a duty with respect to the condition
of the ship's gear, equipment, tools, and work space to be used in
the stevedoring operations.” Scindia Steam Nav. Co., Ltd. v. De Los
Santos, 451 U.S. 156, 167 (1981)(emphasis added); see also Howlett
v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98-99 (1994) (citing
Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204 (9th
Cir. 1989) (claim for breach of turnover duty because of no
handhold on coaming ladder); Griffith v. Wheeling-Pittsburgh Steel
Corp., 610 F.2d 116 (3rd Cir. 1979) (claim for breach of turnover
duty because of defective hatch covers), remanded, 451 U.S. 965,
101, reinstated, 657 F.2d 25 (3rd Cir. 1981)); Scalafani v. Moore
McCormack Lines, Inc., 388 F. Supp. 897 (E.D. N.Y.) (claim for
breach of turnover duty because there was no handrail on platform
linking gangway and deck)).
Insofar as the plaintiff has alleged
that BOPCO breached its turnover duty in failing to turn over the
equipment in such a condition that an expert stevedore can carry on
the stevedoring operation with reasonable safety, he states a claim
for relief that is plausible on its face.
Failure to Warn of Hidden Defect
Next, BOPCO seeks dismissal of plaintiff’s claim “for breach
of a legally imposed duty to exercise reasonable care in failing to
warn plaintiff or his employer of a hidden defect.” BOPCO contends
that the duty of reasonable care is not to warn of hidden defects,
but instead it is the standard for determining defects of which the
vessel owner should have been aware. See Helaire v. Mobil Oil Co.,
709 F.2d 1031, 1036 (5th Cir. 1983)(“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”) (emphasis added).
The plaintiff agrees.
The plaintiff explains, however, that his
claim instead is that BOPCO failed to exercise reasonable care in
discovering the hidden defect. BOPCO is correct that the plaintiff
cannot amend his complaint by his arguments in opposition to a
motion to dismiss.
The plaintiff has had ample opportunities amend his complaint.
And it is conceded that the plaintiff has already stated general
claims for BOPCO's alleged breach of its Scindia duties, including
that BOPCO failed to warn the plaintiff of hidden dangers in the
equipment used for raising and lowering the barge legs.
finds that the plaintiff has already alleged that BOPCO breached
its Scindia duty to warn, and the plaintiff's poorly worded claim
that BOPCO "breach[ed] [its] legally imposed duty to exercise
reasonable care in failing to warn plaintiff or his employer of a
hidden defect, resulting in the incident and injuries referred to
herein" will be dismissed for failure to state a claim.
will apply the appropriate legal standard if the parties present
the Court with merits-based motion practice.1
Failure to Provide Safe Workplace
Third, BOPCO seeks to dismiss the plaintiff’s claim that BOPCO
failed to provide a reasonably safe place to work. BOPCO argues for
dismissal because Scindia does not anticipate that a vessel owner
has a duty to provide a longshoreman with a reasonably safe place
to work. In Scindia, the Supreme Court provided:
As a general matter, the shipowner may rely on the
stevedore to avoid exposing the longshoremen to
unreasonable hazards. Section 41 of the Act, 33 U.S.C. §
941, requires the stevedore, the longshoremen's employer,
If a shipowner “fails at least to warn the stevedore of hidden
danger which was known to the shipowner, or should have been known
to him in the exercise of reasonable care, he is liable if his
negligence causes injury to a longshoreman. Scindia, 451 U.S. at
157 (emphasis added).
to provide a “reasonably safe” place to work and to take
such safeguards with respect to equipment and working
conditions as the Secretary of Labor may determine to be
necessary to avoid injury to longshoremen. The ship is
not the common employer of the longshoremen and owes no
such statutory duty to them.
Scindia, 451 U.S. at 170 (emphasis added).
The plaintiff responds that, in the quote above, the Court
only qualified the vessel owner’s duties after turning over the
vessel, whereas, here, the workplace was allegedly unsafe at the
time the shipowner turned over the vessel.
But the plaintiff’s
reliance on the turnover duty is misplaced because the duty to
provide a “reasonably safe workplace” only arises once longshoremen
or non-stevedore harborworkers are on a ship – this is because,
conceptually, the vessel does not become a workplace until workers
are on the ship.
In other words, the jurisprudence only discusses
the duty to provide a reasonably safe workplace as it applies to
the employers of longshoremen and harborworkers once the ship has
already been turned over in the context where the vessel owner has
already turned over the vessel. See, e.g., Scindia, 451 U.S. at 170
(“Section 41 of the Act, 33 U.S.C. § 941, requires the stevedore,
the longshoremen's employer, to provide a ‘reasonably safe’ place
to work’”); McCuller v. Nautical Ventures, L.L.C., 434 Fed.App’x
408, 413 (5th Cir. 2011) (discussing “the stevedore's duty to
provide a reasonably safe workplace”); Adams v. S/S P.S. PALIOS,
No. 90-2679, 1990 WL 142022, at *1 (E.D. La. Sept. 25, 1990)
(emphasis added) (“[I]t is the employer's duty to provide the
longshoremen with a safe place to work . . . the vessel owes no
such duty to the longshoreman”); Bruley v. Daiichi Chuo Kisea
Kaisha, CIV.A. 86-48, 1986 WL 14423, at *1 (E.D. La. Dec. 11, 1986)
(“[T]he Court [in Scindia] rejected the contention that a shipowner
has a nondelegable duty to provide the longshoreman with a safe
place to work”); see also Randolph v. Laeisz, 896 F.2d 964, 970
(5th Cir. 1990) (“The basic principle which emerges from Scindia is
that the primary responsibility for the safety of the longshoremen
rests upon the stevedore”) (citing Masinter v. Tenneco Oil Company,
867 F.2d 892, 896 (5th Cir. 1989); Wild v. Lykes Bros. S.S. Corp.,
734 F.2d 1124, 1126 (5th Cir. 1984); Helaire v. Mobil Oil Co., 709
establishes that the duty to provide a reasonably safe workplace
applies not to vessel owners but to stevedores and non-stevedore
independent contractors who employ longshoremen and harborworkers
once vessel owner has turned over the ship.
The question of whether there was a reasonably safe workplace
does potentially implicate the vessel owner’s duty to intervene.
Since the vessel owner may rely on stevedores and non-stevedore
contractors to provide a reasonably safe work environment for their
employees, a vessel owner has no duty to supervise or inspect the
operations once the vessel has been turned over to the stevedore.
Scindia, 451 U.S. at 168-69.
The aptly-named duty to intervene,
however, arises when a vessel owner, after turning over the vessel,
obtains actual knowledge of a hazard or risk to the workers on the
vessel and that the stevedore or non-stevedore contractor, in the
exercise of “obviously improvident” judgment, intends to continue
operations despite the hazard. Pimental v. LTD Canadian Pac. Bul,
965 F.2d 13, 15 (5th Cir. 1992).
More specifically, to trigger
this duty, a two-prong test must be satisfied: (1) the vessel owner
must have actual knowledge of “an unreasonable risk of harm,” and
(2) the vessel owner must have “actual knowledge that it cannot
Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir. 1990) (citing Woods
v. Sammisa Co., Ltd., 873 F.2d 842, 847 (5th Cir. 1989); Lormand v.
Superior Oil Co., 845 F.2d 536, 542 (5th Cir. 1987)).
Here, however, the plaintiff alleges that BOPCO failed to
provide a reasonably safe workplace, and that is not a theory upon
which relief may be granted.
The plaintiff fails to allege facts
sufficient to support a finding that BOPCO violated its duty to
intervene, and, in fact, expressly avers that his argument here is
not that the vessel owner breached its duty to intervene.2
such, the plaintiff has failed to state a plausible claim for
relief, and BOPCO’s motion to dismiss the claim that BOPCO failed
to provide a reasonably safe workplace must be granted.
See Memorandum in Opposition to BOPCO’s Partial Motion to Dismiss,
10/02/15, p.8 (“[P]laintiff in pleading this cause of action is
referring again to the turnover duty . . . . However, BOPCO’s
argument is based on the duty to intervene”).
Breach of Duty to Correct Hazardous Condition or Defect
Finally, BOPCO seeks to dismiss the plaintiff’s claim that it
breached its legally imposed duty of reasonable care to correct a
hazardous condition or hidden defect. BOPCO maintains that none of
the Scindia duties impose a duty of reasonable care to correct
The plaintiff responds that the duty to
intervene requires shipowners to correct hazardous conditions and,
thus, maintains he has pled a plausible cause of action. The Court
The duty to intervene requires vessel owners to correct
hazardous conditions under certain circumstances, but there is no
so-called “legally imposed duty” to exercise reasonable care in
correcting hazardous conditions.
As noted above, a vessel owner
may rely on stevedores and non-stevedore contractors to provide a
reasonably safe work environment for their employees. Scindia, 451
U.S. at 168-69. Thus, a vessel owner has no general duty to
supervise or inspect the operations once the vessel has been turned
over to the stevedore. Id.
The duty to intervene, however, arises
when a vessel owner has actual knowledge of a hazard or risk to the
workers on the vessel and that the stevedore or non-stevedore
contractor, in the “exercise of improvident judgment,” intends to
continue operations despite the hazard.
Pimental v. LTD Canadian
Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992).
The Fifth Circuit has
established that a vessel owner has a duty to intervene only if:
(1) the vessel owner has actual knowledge of “an unreasonable risk
of harm,” and (2) the vessel owner has “actual knowledge that it
cannot rely on the stevedore to protect its employees and that if
Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir. 1990) (citing Woods
v. Sammisa Co., Ltd., 873 F.2d 842, 847 (5th Cir. 1989); Lormand v.
Superior Oil Co., 845 F.2d 536, 542 (5th Cir. 1987)).
The plaintiff offers no support for his assertion that a
reasonable care standard applies to the duty to intervene.
plaintiff's cause of action for "breach of a legally imposed duty
to exercise reasonable care in failing to correct a hazardous
condition or hidden defect in the vessel equipment" must be
Accordingly, BOPCO's partial motions to dismiss are hereby
GRANTED in part (the plaintiff’s claims for breach of legally
imposed duty of reasonable care in failing to warn plaintiff or
employer of hidden defect, breach of the duty to provide a safe
work place to work, and breach of duty of reasonable care to
correct hazardous condition or defect are hereby dismissed) and
DENIED in part (the plaintiff may pursue his claim for failure to
provide safe equipment for raising and lowering of barge legs
insofar as the plaintiff alleges that BOPCO breached its turnover
duty in failing to turn over the ship and its equipment in such
BOPCO notes that the plaintiff has already alleged a cause of
action under the duty to intervene and it does not challenge the
technical sufficiency of that claim.
condition that a stevedore or non-stevedore contractor can carry on
operations with reasonable safety).4
New Orleans, Louisiana, November __, 2015
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
The Court notes that the parties agree that the plaintiff's claims
against BOPCO are limited, and that the plaintiff has alleged
claims for breach of each of the Scindia duties. But the plaintiff
nevertheless insisted on styling its claims to appear to be beyond
the scope of Scindia, by stating claims in addition to the Scindia
duties, necessitating BOPCO's hyper-technical motions to dismiss.
Counsel should be mindful of 28 U.S.C. § 1927.
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