Johnson v. Cargill, Inc. et al

Filing 84

ORDER AND REASONS - IT IS ORDERED that the 70 motion for summary judgment filed by Diamond Star Shipping, PTE LTD, is GRANTED IN PART. Defendant is entitled to judgment as a matter of law that it did not breach the turnover duty or the duty to intervene. IT IS FURTHER ORDERED that the 70 motion for summary judgment filed by Diamond Star Shipping, PTE LTD, is DENIED as to the claim of breach of the active control duty. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALBERT JOHNSON,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-16048

CARGILL, INC., ET AL.,
Defendants

SECTION: “E” (5)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendant Diamond
Star Shipping PTE LTD (“Diamond Star”). 1 Plaintiff Albert Johnson opposes the motion. 2
Diamond Star filed a reply. 3 For the reasons that follow, the motion for summary
judgment is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
This is a maritime personal-injury case. Plaintiff Albert Johnson alleges he was
injured when he slipped on spilled grain and fell on the deck of the M/V HERCULES
OCEAN, a foreign flagged, ocean-going, bulk cargo vessel owned by Diamond Star. 4 It is
undisputed that on or about September 24, 2015, the M/V HERCULES OCEAN arrived
at the Westwego facility of Cargill, Inc. (“Cargill”) and docked there for Cargill to load a
cargo of grain into the vessel’s holds. 5 The loading commenced on September 25, 2017
and ended on September 27 at 7:10 a.m. 6 It is undisputed that at some point in the
morning of September 27, 2017, before Cargill completed the loading at 7:10 a.m., grain

R. Doc. 70.
R. Doc. 73; R. Doc. 78 (Plaintiff’s Supplemental Opposition).
3 R. Doc. 81.
4 R. Doc. 1-3 at 3; R. Doc. 70-2 at 1; R. Doc. 73-2 at 1.
5 R. Doc. 70-2 at 2; R. Doc. 73-2 at 1.
6 R. Doc. 70-2 at 2; R. Doc. 73-2 at 1.
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spilled on the deck of the M/V HERCULES OCEAN because of a “plugging event” that
occurred on Cargill’s Buhler No. 2 loading device. 7 The parties do not dispute that Cargill
subcontracted with Plaintiff’s employer, Dockside Linemen, Inc. (“Dockside”), to rake the
cargo, once it was in the vessel’s holds, to even out the piles of grain. 8 It is undisputed that
the Dockside crew boarded the vessel to perform the rake job at 7:30 a.m. on September
27, 2017. 9 The parties do not dispute that the spilled grain was plainly visible on the deck
of the vessel on the morning of September 27, 2017. 10 Plaintiff alleges he slipped and fell
on the spilled grain, suffering severe and debilitating injuries. 11 Diamond Star moves for
summary judgment under Federal Rule of Civil Procedure 56 on the basis that there are
no material facts in dispute, it did not breach any legal duty owed to Plaintiff, and it is
entitled to judgment as a matter of law. 12
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 13 “An issue is material if its resolution could affect the outcome of the action.” 14
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.” 15 All reasonable inferences are drawn in favor of the non-moving party. 16

R. Doc. 70-2 at 2-3; R. Doc. 73-2 at 2-3.
R. Doc. 70-2 at 1-2; R. Doc. 73-2 at 1-2.
9 R. Doc. 70-2 at 2; R. Doc. 73-2 at 2.
10 R. Doc. 70-2 at 3; R. Doc. 73-2 at 3.
11 R. Doc. 1-3 at 3.
12 R. Doc. 70.
13 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
14 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
15 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
16 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 17
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
To satisfy Rule 56’s burden of production, the moving party must do one of two things:
“the moving party may submit affirmative evidence that negates an essential element of
the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must
be denied. If the moving party successfully carries this burden, the burden of production
then shifts to the non-moving party to direct the Court’s attention to something in the
pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 18
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim. 19 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary

17 Hibernia Nat. Bank

v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
18 Celotex, 477 U.S. at 322–24.
19 Id. at 331–32 (Brennan, J., dissenting).
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judgment must be denied. 20 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 21 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 22 Rule 56 allows a party to move for summary
judgment on all or part of a claim or defense. 23 Partial summary judgment serves the
purpose of “rooting out, narrowing, and focusing the issues for trial.” 24
LAW AND ANALYSIS
Plaintiff brings a claim against Diamond Star under the Longshore and Harbor
Workers’ Compensation Act, which permits a longshoreman to bring an action against a
vessel owner when his injury is the result of the negligence of the vessel. 25 For a vessel to
be negligent, the vessel must breach a duty it owes to the longshoreman. Generally, “the
primary responsibility for the safety of the longshoremen rests upon the stevedore.” 26
“Once stevedoring operations have begun, the owner has no duty to supervise or inspect

See id. at 332.
Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
22 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
23 FED. R. CIV. P. 56.
24 See Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir. 1993).
25 33 U.S.C. § 905(b).
26 Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir. 1990).
20
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the work and must only take care to prevent unreasonable hazards.” 27 The United States
Supreme Court’s decision in Scindia Steam Navigation Co. v. De Los Santos, outlines the
three narrow duties a vessel owner owes to a longshoreman once stevedoring operations
commence: (1) the turnover duty; (2) the active control duty; and (3) the duty to
intervene. 28
I.

Turnover Duty

The turnover duty establishes the owner’s obligation at the start of the stevedore’s
activities. The turnover duty requires the owner 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.” 29 At the turnover point, the owner also must warn the
stevedore of hidden dangers that could not be discovered by the exercise of ordinary
care. 30 However, the owner has no obligation to warn the stevedore of dangers “which are
either: (1) open and obvious or (2) dangers a reasonably competent stevedore should
anticipate encountering.” 31
It is undisputed that the grain on which Plaintiff slipped and fell was spilled on the
deck of the M/V HERCULES OCEAN at some point in the morning of September 27, 2015,
two days after the M/V HERCULES OCEAN was turned over to Cargill for loading
operations. 32 It also is undisputed that the condition at issue, the grain on the deck of the

27 Landry v. G.C. Constructors, 514 F. App’x 432, 435 (5th Cir. 2013) (quoting Levene v. Pintail Enters.,
943 F.2d 528, 533 (5th Cir.1991)).
28 See Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98-99 (1994); Scindia Steam Nav. Co. v. De Los
Santos, 451 U.S. 156, 166-79 (1981); Kirksey v. Tonghai Mar., 535 F.3d 388, 391 (5th Cir. 2008).
29 Scindia, 451 U.S. at 167.
30 Id.; Kirksey, 535 F.3d at 392; Levene, 943 F.2d at 533; Theriot v. Bay Drilling Corp., 783 F.2d 527, 535
(5th Cir.1986).
31 Kirksey, 535 F.3d at 392.
32 R. Doc. 70-2 at 2; R. Doc. 73-2 at 2.

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M/V HERCULES OCEAN, was open and obvious. 33 The Court finds there are no material
facts in dispute and Diamond Star is entitled to judgment as a matter of law that it did not
breach its turnover duty. The motion for summary judgment filed by Diamond Star is
granted with respect to this claim.
II.

Active Control Duty

A vessel owner may be liable under Scindia's active control duty if it actively
involves itself in cargo operations or fails to protect contractors from hazards in areas
under the active control of the vessel.” 34 To determine whether a vessel owner retains
active control, courts in the Fifth Circuit “generally consider ‘whether the area in question
is within the contractor's work area, whether the work area has been turned over to the
contractor, and whether the vessel owner controls the methods and operative details of
the stevedore's work.’” 35
The parties do not dispute that Cargill was the stevedore loading the vessel and the
entity giving instructions and directions to the Dockside employees during the rake job
on September 27, 2015. 36 No party presents any evidence that Diamond Star controlled
the methods and operative details of the stevedore’s work. The parties do dispute whether
the walkway was within Cargill’s work area and whether Diamond Star turned over
control of the walkway to Cargill. 37 Cargill employee Damien Robinson testified that
Diamond Star’s crew is not involved in the loading process at all. 38 Diamond Star presents
this testimony as evidence that Cargill had total control of the walkway and the grain

R. Doc. 70-2 at 3; R. Doc. 73-2 at 3-4.
Fontenot v. McCalls Boat Rentals, Inc., 227 F. App’x 397, 403 (5th Cir. 2007).
35 Hudson v. Schlumberger Tech. Corp., 452 F. App’x 528, 535 (5th Cir. 2011) (quoting Fontenot v. United
States, 89 F.3d 205, 208 (5th Cir. 1996)).
36 R. Doc. 70-2 at 2; R. Doc. 73-2 at 2.
37 R. Doc. 70-2 at 2; R. Doc. 73-2 at 1.
38 R. Doc. 70-7 at 6-7.
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spilled there as a result of Cargill’s loading operation. 39 Dockside employee Anthony
Welch testified that Cargill cautioned the Dockside employees about the grain on the deck
in its pre-job safety meeting on September 27, 2015. 40 Diamond star argues this shows
the walkway was part of Cargill’s work area and was controlled by Cargill. 41 Chief Officer
Malais, a Diamond Star employee, testified that he would have the deck watchmen and
junior officers perform a roving watch, which included checking the lines, inspecting the
gangways, and monitoring the spillage on the deck. 42 Chief Officer Malais testified that
the junior officers had the authority to order that the deck be cleaned. 43 Both Plaintiff and
Isaac Williams, another Dockside employee, testified that they witnessed crewmembers
of the M/V HERCULES OCEAN, owned by Diamond Star, attempting to clean the grain
spillage from the deck. 44 Cargill employee Damien Robinson likewise testified that the
Diamond Star crew would continuously clean up as the loading job took place 45 and that
the walkway was typically swept by a crewmember of the ship. 46 Plaintiff argues this
shows that Diamond Star retained some control of the deck and walkway. 47
The Court finds that material facts are in dispute as to whether Diamond Star
maintained active control of the walkway where Plaintiff slipped and fell. While it is
undisputed that Cargill was in control of the loading operation, the parties dispute who
was responsible for cleaning the walkway and whether Diamond Star maintained active
control of the walkway or completely turned the walkway over to Cargill. Because there

R. Doc. 70-1 at 12; R. Doc. 80 at 4-6.
R. Doc. 70-5 at 6-7.
41 R. Doc. 70-1 at 12.
42 R. Doc. 73-15.
43 R. Doc. 73-19.
44 R. Doc. 73-2 at 2 (citing R. Doc. 73-17 at 3; R. Doc. 73-18 at 1).
45 R. Doc. 70-7 at 21.
46 R. Doc. 73-20 at 1.
47 R. Doc. 73 at 4.
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are material facts in dispute, Diamond Star is not entitled to judgment as a matter of law
that it did not breach the active control duty. The motion for summary judgment filed by
Diamond Star is denied as to this claim.
III.

Duty to Intervene

The duty to intervene provides that a vessel owner can be liable if it fails to
intervene when (1) it has actual knowledge of an unreasonably dangerous condition that
has developed during the course of the stevedoring operations and (2) it knows that the
stevedore, in the exercise of obviously improvident judgment, intends to continue
working in the face of the danger and cannot be relied upon to protect its workers. 48 A
condition is unreasonably dangerous when it is “so hazardous that anyone can tell that its
continued use creates an unreasonable risk of harm even when the stevedore’s expertise
is taken into account.” 49 “There is a distinction between knowledge of a condition and
knowledge of the dangerousness of that condition.” 50 “Knowledge that a condition or even
a defect exists, does not imply knowledge that the condition is dangerous.” 51 A vessel
owner is generally permitted to rely on the stevedore’s expert judgment as to the safety of
its working conditions 52 and “is entitled to rely on the stevedore’s judgment that the
condition, though dangerous, was safe enough.” 53
Fontenot, 227 F. App'x at 402-03; see also Clay, 74 F.Supp.2d at 673.
Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir. 1990) (quoting Greenwood v Societe Francaise De, 111
F.3d 1239, 1249 (5th Cir. 1997)).
50 Id.
51 Casaceli v. Martech Intern. Inc., 774 F.2d 1322, 1330 (5th Cir. 1985); see Fontenot, 227 F. App’x 397 at
*6 (finding no duty to intervene when vessel owner did not know or believe that a trash bag blocking a
walkway created an unreasonable risk of harm, regardless of whether vessel owner was aware of the
obstruction); Woods v. Sammisa Co., 837 F.2d 842, 853 (5th Cir. 1989) (finding no duty to intervene when
vessel owners were aware that a condition existed but were unaware that the condition posed an
unreasonable risk of harm); Pledger v. Phil Guilbreau Offshore, Inc., 88 F. App’x 690, 692 (5th Cir. 2004)
(finding no duty to intervene when neither stevedore nor shipowner thought the algae on the deck created
an unreasonable risk of harm); see also Futo v. Lykes Bros. Steamship Co., 742 F.2d 209 (5th Cir. 1984).
52 Id. (citing Greenwood, 111 F.3d at 1249).
53 Randolph, 896 F.2d at 971 (citing Helaire v. Mobil Oil Co., 709 F.2d 1031, 1039 n 12 (5th Cir. 1983);
Scindia, 451 U.S. at 180).
48
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Diamond Star argues the grain spilled on the deck of the M/V HERCULES OCEAN
was not an unreasonably dangerous condition and thus it had no duty to intervene
because it had no actual knowledge of such a condition. 54 Plaintiff argues the grain spilled
in the walkway was an unreasonably dangerous condition, triggering Diamond Star’s
duty to intervene. 55 It is undisputed that no other workers slipped or fell because of the
grain on the deck of the M/V HERCULES OCEAN. 56 It is also undisputed that no one
from Cargill or Dockside spoke with any crewmember of the M/V HERCULES OCEAN
about cleaning up the grain spilled on the deck. 57 Cargill employee Damien Robinson 58
and Dockside employees Anthony Welch, 59 Isaac Williams, 60 Kevin Cole, 61 and Victor
Dorsey 62 testified that grain spillage was common and to be expected in this kind of
loading operation. 63 Chief Officer Malais testified that the spillage on the deck of the M/V
HERCULES OCEAN was a normal amount of spillage. 64 Damien Robinson testified that
he did not consider the spillage on the deck of the M/V HERCULES OCEAN excessive. 65
Isaac Williams testified that on previous occasions, he witnessed similar amounts of grain
spilled on the decks of other ships. 66 Plaintiff testified that on the morning of his accident,
he was not concerned about walking through the pile of grain and was not concerned
about slipping. 67 Diamond Star argues this shows that the grain on the deck of the M/V

R. Doc. 70-1; R. Doc. 81.
R. Doc. 73.
56 R. Doc. 70-2 at 3; R. Doc. 73-2 at 3.
57 R. Doc. 70-2 at 4; R. Doc. 73-2 at 3.
58 R. Doc. 70-7 at 3-4.
59 R. Doc. 70-5 at 10-12.
60 R. Doc. 70-6 at 12-13.
61 R. Doc. 70-8 at 7.
62 R. Doc. 70-9 at 2-3.
63 R. Doc. 70-1 at 15.
64 R. Doc. 70-13 at 2.
65 R. Doc. 81-1 at 2-3.
66 R. Doc. 70-5 at 23-24.
67 R. Doc. 73-30 at 1-2.
54
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HERCULES OCEAN was not an unreasonably dangerous condition, and thus it had no
actual knowledge of such a condition. 68 Plaintiff argues Diamond Star had actual
knowledge of an unreasonably dangerous condition because it was responsible for
cleaning the deck and maintaining the walkway 69 and because Dockside employee
Anthony Welch testified that although grain spillage was common, the amount of spillage
in the walkway where Plaintiff fell would not be found elsewhere. 70
Based on the undisputed facts, the Court finds as a matter of law that the spillage
did not create an unreasonably dangerous condition. The grain spilled on the deck of the
M/V HERCULES OCEAN was not “so hazardous that anyone [could] tell that its
continued use create[d] an unreasonable risk of harm.” 71 Rather, multiple witnesses
testified that this type of grain spillage was common. 72 Plaintiff himself testified that on
the morning of his accident, he was not concerned about slipping or walking through the
pile of grain. 73 Regardless of whether Diamond Star was aware of the grain spilled on the
deck and walkway, “[k]nowledge that a condition or even a defect exists, does not imply
knowledge that the condition is dangerous.” 74
Because an unreasonably dangerous condition did not exist, Diamond Star could
not have actual knowledge of an unreasonably dangerous condition, and it had no duty to
intervene. Diamond Star is entitled to judgment as a matter of law that it did not breach
the duty to intervene. The motion for summary judgment filed by Diamond Star is granted
as to this claim.

R. Doc. 70-1; R. Doc. 81.
R. Doc. 73 at 4-8.
70 R. Doc. 73-10 at 2 (“It don’t be like that everywhere.”).
71 Id. (quoting Greenwood, 111 F.3d at 1249).
72 R. Doc. 70-5 at 10-12; R. Doc. 70-6 at 12-13; R. Doc. 70-7 at 3-4; R. Doc. 70-8 at 7; R. Doc. 70-9 at 2-3.
73 R. Doc. 73-30 at 1-2.
74 Casaceli, 774 F.2d at 1330; see also Futo, 742 F.2d 209.
68
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CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for summary
judgment filed by Diamond Star Shipping, PTE LTD 75, is GRANTED IN PART.
Defendant is entitled to judgment as a matter of law that it did not breach the turnover
duty or the duty to intervene.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Diamond Star Shipping, PTE LTD 76, is DENIED as to the claim of breach of the active
control duty.
New Orleans, Louisiana, this 1st day of November, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

75
76

R. Doc. 70.
R. Doc. 70.
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