Manson Gulf, LLC v. Modern American Recycling Service, Inc. et al

Filing 146

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Based on the foregoing Findings of Fact and Conclusions of Law, Manson is liable to Claimants for $4,210,756.00 in damages. All costs other than attorneys' fees shall be borne by Manson in accordance with Federal Rule of Civil Procedure 54(d). Judgment will be entered accordingly. Signed by Judge Carl Barbier on 8/22/2018.(Reference: All cases)(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MANSON GULF, LLC

CIVIL ACTION NO. 15-3627
c/w 2:15-cv-06860

VERSUS

MODERN AMERICAN RECYCLING
SECTION: “J” (2)
SERVICE, INC., ET AL.
______________________________________________________________________________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This litigation arises from the death of longshoreman James “J.J.” LaFleur when
he fell 50 feet to his death after stepping through a hole on a decommissioned oil
platform. The platform sat atop a barge chartered by Manson Gulf, L.L.C. (“Manson”),
who ordered the hole’s creation but did not cover the hole or warn J.J. of its existence.
Following J.J.’s death, Manson filed a complaint seeking exoneration or limitation
from liability. Modern American Recycling Service (“MARS”), who had employed J.J.
as an independent contractor, answered the complaint and asserted various claims
and defenses. Shortly thereafter, Angie LaFleur, J.J.’s surviving spouse, filed claims
for damages against Manson and MARS, alleging negligence under both maritime
and Louisiana law. 1
This case was tried before the undersigned without a jury. At the conclusion of
the trial, the Court took the matter under advisement. Upon consideration of all of
the evidence and the arguments of counsel, the Court issues the following findings of
fact and conclusions of law in accordance with Federal Rule of Civil procedure 52(a).
To the extent any of the following findings of fact constitute conclusions of law, they

1

The Court dismissed MARS from the above-captioned matter on December 15, 2016.

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are adopted as such. To the extent any of the following conclusions of law constitute
findings of fact, they are adopted as such.
FINDINGS OF FACT
1.

Claimant, Angie LaFleur, the widow of James LaFleur, is a person of the age
of majority. She has brought claims individually, as executrix of J.J.’s estate,
and as natural tutrix of the children born of her marital union with J.J.: L.L.,
D.L., and B.L. (collectively, “Claimants”). D.L. is now 18 years old; B.L. and
L.L. are still minor children. All are residents of the state of Louisiana.

2.

Manson is in the business of decommissioning oil-drilling platforms in the Gulf
of Mexico.

3.

MARS is in the business of dismantling steel structures and selling the metal
for scrap.

4.

In 2015, Manson contracted with Freeport-McMoran Oil & Gas for the
purchase and removal of a 50-foot-tall platform, the BA A-23-A, from the Gulf
of Mexico. Manson, in turn, contracted with MARS to dispose of the platform
when brought to shore.

5.

Manson decided to remove the platform from the oil-field in two separate fourleg sections before bringing it to the MARS scrap facility located in Gibson,
Louisiana.

6.

To remove one of the four-leg sections, Manson cut four holes in the grating of
the platform, adjacent to each of the support legs. Rigging chains were then
passed through the holes and around the legs to take hold of the platform. The
platform was then lifted by crane, loaded onto the MARMAC 262, a barge
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which Manson chartered to transport the platform, and welded into knee
braces that had been specifically placed onto the barge to secure the platform.
7.

Manson removed the rigging chains once the platform was secured on the
barge, which, consequently, left four open holes in the grating.

8.

No Manson personnel were sent back up onto the platform to mark or cover
the holes in the grating—instead, the holes were left uncovered and unmarked.

9.

Manson delivered the structure to MARS’ dock in Gibson, Louisiana, before
sunrise on June 16, 2015.

10. On the morning of June 16, 2015, a Manson project engineer, Dustin Clement,
warned MARS personnel of the presence of excess oil in the pipes located on
the platform, but made no mention of the unmarked holes located on the
platform.
11. Afterwards, Dustin Clement left MARS’ dock and no Manson personnel
remained.
12. Jeff Smith, a MARS foreman in charge of riggers and cutters, then boarded the
platform (still secured to the barge) to locate the presence of oil.
13. After Smith investigated for approximately ten minutes, J.J. joined Smith
aboard the platform to lend a hand. J.J. was an independent contractor,
employed by MARS to take inventories, do inspections, and perform other
miscellaneous tasks.
14. Smith and J.J. walked across the platform for approximately ten to fifteen
minutes.
15. As Smith and J.J. walked across the platform, they discussed the oil dilemma
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and looked at the pipes that ran overhead. While turning, J.J. stepped through
an unmarked hole. Smith, then several feet behind, attempted to intervene,
but it was too late—J.J. fell 50 feet to the barge’s deck and subsequently died
from his injuries.
16. J.J. was initially unconscious after the fall but awoke and became combative
during resuscitative measures.

While conscious, J.J. screamed from pain

associated with his injuries caused by the fall.

J.J. was conscious for

approximately ten to fifteen minutes.
17. J.J. was transported via ambulance to the hospital where he was pronounced
dead. An autopsy performed by the Terrebonne Parish Coroner determined
the cause of death to be “Closed Head Injury, Rupture of the Ascending Aorta,
Tear in the Inferiour Vena Cava, Fall.”
18. It is undisputed that J.J. fell through one of the holes that had been cut in the
grating of the platform.
19. The hole clearly posed a “danger”—it was at such height to make death or
grievous injury a near certainty for anyone who fell through it.
20. Manson had actual knowledge of the hole because it cut the hole before it
delivered the platform to MARS.
21. Manson warned MARS only of the presence of excess oil onboard the platform.
Dwight Caton, the owner of MARS, testified that locating excess oil is the
“biggest concern of any decommission job,” because an explosion could occur if
a salvaging company, such as MARS, were to cut into a pipe filled with oil.
Caton further testified that J.J.’s primary purpose for being on the platform
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was to locate excess oil.
22. Manson did not warn MARS of the existence of uncovered and unmarked holes
in the grating of the platform, on which J.J. had to walk in order to locate any
excess oil.
23. Smith was the only witness to view the hole from J.J.’s vantage point. On the
visibility of the hole, Smith explained that the platform’s “grating can play
tricks on your eye,” and stated that the hole was not easily seen until one was
right on top of it. In fact, Smith testified that from four to eight feet away, the
hole in the platform looked like solid floor. Moreover, although Smith walked
on the grating for approximately twenty-five minutes, he testified that he did
not see the hole until J.J. fell through it.
24. Detective Charles Clark, who appeared on the scene shortly after the accident,
testified that he could not see the hole before Smith showed him exactly where
it was located. Detective Clark further explained that the hole was difficult to
see because “[the grating] all looks even.”
25. Regarding the size of the hole, Caton testified that the hole was approximately
the size of two legal pads and he “still [did not] know how a person fit through”
it.
26. The pictures of the hole taken from an angle—similar to the point of view of a
person approaching the hole—depict the way in which the platform’s grating,
in Smith’s words, can “play tricks on your eye” and make the opening difficult

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to see. 2
27. The pictures of the area surrounding the hole also depict how shadows on the
grating likely would have impacted J.J.’s ability to detect the hole.

The

accident occurred at approximately 9:08 a.m. At such time, the equipment on
top of the platform, including the skid and pipes, would have cast shadows on
the grating of the platform, particularly in the direction of the hole. These
shadows, juxtaposed against the grating, likely made the hole difficult to
discern when walking across the platform that morning.
28. Regarding the foreseeability of the hole, Smith clarified that, though he
expected some holes to be present, any holes are “typically covered” or marked.
More pointedly, Smith explained that an uncovered, unmarked hole—such as
the one that J.J. encountered—was “just not common at all.” Similarly, Caton
also testified that rigging holes are usually marked or covered. Furthermore,
Lewis Saylor, a former welding supervisor for MARS, testified that it is
common in the industry to mark holes.
29. Brandt Stagni, Manson’s corporate representative, testified about Manson’s
practices of marking and/or covering holes. According to Stagni, Manson’s
employees conduct a “hazard hunt” before any structure is lifted, during which
they identify dangerous conditions on the structure, such as holes or bad
grating. In the event that a Manson employee discovers a hole, it is Manson’s
policy to mark or barricade the hole if it is in an area where a Mason employee
2

As noted by the Fifth Circuit in Manson Gulf, L.L.C. v. Modern Am. Recycling Serv., Inc., 878 F.3d
130, 136 (5th Cir. 2017).

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is going to be actively performing work. Stagni testified that Manson’s work on
the top of the platform is complete once the structure is placed on the barge,
and the rigging chains, which pass through the holes in the grating of the
platform, are removed. Stagni testified that because Manson employees are
no longer working on the top of the platform, the company does not require its
employees to mark or close the holes that are left once the rigging chains are
removed from the structure. Stagni further testified that due to the risks
inherent in sending personnel back up to the platform to mark or cover such
holes, Manson does not typically do so. However, Stagni testified that in the
unusual event that a Manson employee must return to the platform, Manson
would “safe [the platform] out against just like [Manson] do[es] when [Manson]
first shows up . . . [s]o[,] if there[] is an open hole present in an area [where
Manson is] going to be working in, [Manson would] make sure it[] [is] covered
and marked.”
30. Although Manson did not mark the holes that were left once the rigging chains
were removed from the platform, Stagni testified that Manson did in fact mark
other holes that it discovered during the pre-lift “hazard hunt.” Evidently, the
markings remained on the platform when the platform was subsequently
delivered to MARS. In fact, Smith testified that while on the platform, he and
J.J. could clearly see an area that had been marked off in order to warn of the
presence of holes in the grating.
31. At all pertinent times, Manson was the bareboat charterer of the Barge
MARMAC 262, on which J.J. was working at the time of his death. The value
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of the Barge MARMAC 262 at the time of the incident was approximately
$4,400,000.
32. At the time of his death, J.J. was working for MARS earning $56,395.00 per
year. He has a work life expectancy of 20.7 years. His past and future loss of
earnings amount to approximately $810,756.00, discounted to present value.
33. J.J. has left behind a surviving spouse, Angie LaFleur, and three surviving
sons born of his marriage with Angie LaFleur, aged fourteen, fifteen, and
sixteen at the time of his death. J.J. was a loving father and husband and
maintained a close relationship with his wife and children. His wife and
children have been deeply affected by his death.
CONCLUSIONS OF LAW
1.

Claimants’ remedy against Manson is analyzed under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq.

2.

The right of ship repairers, longshoremen, and other persons covered by the
LHWCA to sue a vessel owner for negligence arises exclusively under 33 U.S.C.
§ 905(b). 3 The duty of a vessel owner to LHWCA-covered employees of
independent contractors working aboard a vessel is governed by the principles

3

33 U.S.C. § 905(b) provides in relevant part:
In the event of injury to a person covered under this chapter caused by the negligence
of a vessel, then such person ... may bring an action against such vessel as a third party
in accordance with the provisions of section 933 of this title, and the employer shall
not be liable to the vessel for such damages directly or indirectly and any agreements
or warranties to the contrary shall be void.... The liability of the vessel under this
subsection shall not be based upon the warranty of seaworthiness or a breach thereof
at the time the injury occurred. The remedy provided in this subsection shall be
exclusive of all other remedies against the vessel except remedies available under this
chapter.

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enunciated in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156,
101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981). See Lormand v. Superior Oil Co., 845
F.2d 536, 541-42 (5th Cir. 1987); see also Hill v. Texaco, Inc., 674 F.2d 447, 451
(5th Cir. 1982) (applying the LHWCA and Scindia to an independent
contractor working aboard a vessel). The parties agree that Scindia and its
progeny apply in this case.
3.

Under Scindia, a company such as Manson owes only three duties to workers
like J.J.: (1) the turnover duty, (2) the duty to exercise reasonable care in areas
under the active control of the vessel (the “active control duty”), and (3) the
duty to intervene in the event that the stevedore is acting in an obviously
improvident manner (the “duty to intervene”). Kirksey v. Tonghai Maritime,
535 F.3d 388, 391 (5th Cir. 2008); see also Moore v. M/V ANGELA, 353 F.3d
376, 380 (5th Cir. 2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92,
98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994)).

4.

This Court previously granted summary judgment in favor of Manson with
respect to the active control duty and the duty to intervene. Accordingly, the
only issue that remains is whether Manson breached its “turnover duty.”

5.

The turnover duty relates to the condition of the ship upon the commencement
of stevedoring operations, Moore, 353 F.3d at 380–81 (citing Scindia, 451 U.S.
at 167), and encompasses two distinct-but-related obligations. First, the vessel
owner “owes a duty to exercise ordinary care under the circumstances to turn
over the ship and its equipment in such condition that an expert stevedore can
carry on stevedoring operations with reasonable safety.” Kirksey, 535 F.3d at
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392 (citing Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S.
404, 416-17 n. 18 (1969)). And second, the vessel owner “owes a duty to warn
the stevedore of latent or hidden dangers which are known to the vessel owner
or should have been known to it.” Id. (citing Howlett, 512 U.S. at 99-100).
6.

Regarding the latter duty, a vessel owner need not warn of “dangers which are
either: (1) open and obvious or (2) dangers a reasonably competent stevedore
should anticipate encountering.” Id. (citation omitted). “If the longshoreman
knew of the defect, then it is considered open and obvious.” Greenwood v.
Societe Francaise De, 111 F.3d 1239, 1246 (5th Cir. 1997) (citations omitted);
see also Scindia, 451 U.S. at 167 (a vessel's duty to warn extends to defects
unknown to “the stevedore and which would not be obvious to or anticipated
by him if reasonably competent in the performance of his work”). That being
said, even if a hazard is open and obvious, a vessel owner may still be liable
where the employee has no alternative but to work in the unsafe condition or
leave the job. Kirksey, 535 F.3d at 396; see Morris v. Compagnie Maritime Des
Chargeurs Reunis, 832 F.2d 67, 71 (5th Cir. 1987) (a longshoreman faced with
such a hazard “need show only that the circumstances made safer alternatives
unduly impractical or time-consuming”).

7.

A court’s inquiry into whether a condition is “open and obvious” should take
place from the perspective of the injured longshoreman.” Manson Gulf, L.L.C.
v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 136 n. 2 (5th Cir. 2017).

8.

The hole in question was neither “open and obvious” nor a danger that a
reasonably competent stevedore would anticipate encountering.
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9.

As discussed supra, neither Smith nor J.J. noticed the hole in the grating prior
to the accident. Moreover, Smith, the only person to view the hole from J.J.’s
vantage point, testified that the hole in the grating looked like solid grating
floor. Detective Clark also testified that he was unable to see the hole before
Smith showed him exactly where it was located because “the grating all looks
even.”

10.

In addition, other factors, such as the shadows present on the surface of the
grating, along with Smith’s testimony that the grating can play tricks on one’s
eye, likely rendered the hole not obvious from J.J.’s perspective.

11. Further, although rigging holes are not necessarily uncommon on platforms
like the one at issue, testimony, which the Court finds credible, established
that such holes are typically covered or marked. In this case, Smith and J.J.
noticed an area of the platform which had been marked off, presumably by
Manson, to warn of the presence of holes. To the extent that Manson contends
that J.J., as a reasonably competent stevedore, should have anticipated for
holes to be present, the Court finds that such an expectation would naturally
be lessened if, as is the case here, it appears that such holes had already been
discovered and marked. Here, Manson warned J.J. of one overhead hazard—
the oil in the pipes—while ostensibly, yet inadequately, protecting him against
another—the hole in the grating. As such, the Court concludes that under the
particular circumstances in this case, the danger posed by the hole in the
grating was neither “obvious” nor one that a reasonably competent stevedore
would necessarily anticipate.
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12. Manson failed to exercise ordinary care under the circumstances when it
turned over the vessel to MARS and failed to warn of the hole, and failed to
cover or mark the hole.
13. Claimants demonstrated by a preponderance of the evidence that Manson’s
breach of its turnover duty was the sole proximate, legal, and factual cause of
this accident. 4
14. J.J.’s actions at the time of the accident were reasonable under the
circumstances and he is therefore free from fault.
15. The Court finds that Claimants are entitled to recover the following damages:
a. $400,000.00 for J.J.’s pre-death suffering,
b. $810,756.00 in economic loss,
c. $1,500,000.00 in general damages to Angie LaFleur,
d. $500,000.00 in general damages to B.L.,
e. $500,000.00 in general damages to L.L., and
f. $500,000.00 in general damages to D.L.

The Court also finds that Manson is not entitled to exoneration or limitation. The Limitation of
Liability Act generally limits a vessel owner’s liability to the value of the vessel, post casualty, plus
any pending freight. 46 U.S.C. § 30505. In the trial of a limitation proceeding, the burden of proof is
divided between the parties, and there is a two-step analysis. The claimants must prove that the
destruction or loss was caused by the negligence of the vessel. Trico Marine Assets Inc. v. Diamond B.
Marine Services Inc., 332 F.3d 779, 789 (5th Cir. 2003). The burden then shifts to the shipowner to
demonstrate that the negligence that caused the damage was not within its “privity or knowledge.”
Id. “‘Privity or knowledge’ implies some sort of ‘complicity in the fault that caused the accident.’”
Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991). As discussed supra, the Court finds that the
accident was caused by Manson’s breach of its turnover duty. Further, Manson acknowledges that it
cut the hole which caused J.J.’s death.

4

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CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, Manson is
liable to Claimants for $4,210,756.00 in damages. All costs other than attorneys’ fees
shall be borne by Manson in accordance with Federal Rule of Civil Procedure 54(d).
Judgment will be entered accordingly.
New Orleans, Louisiana, this 22nd day of August, 2018.

______________________________
CARL J. BARBIER
U.S. DISTRICT COURT JUDGE

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