Payano v. Environmental, Safety & Health Consulting Services, Inc. et al
Filing
85
ORDER AND REASONS granting in part and denying in part 64 Motion for Summary Judgment as stated herein. FURTHERED ORDERED that the plaintiff's claims for unseaworthiness, maintenance and cure, and Jones Act negligence are DISMISSED with prejudice. The plaintiff's status as a longshoreman or a land-based worker, as well as his claim for negligence under the general maritime law, remain before the Court. Signed by Judge Martin L.C. Feldman on 10/2/18. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGES PAYANO
CIVIL ACTION
V.
NO. 17-6425
ENVIRONMENTAL, SAFETY & HEALTH
CONSULTING SERVICES, INC., ET AL.
SECTION “F”
ORDER AND REASONS
Before
the
Court
is
the
defendant’s
motion
for
summary
judgment that: (1) the plaintiff is covered under the Longshore
and Harbor Workers’ Compensation Act and thus only eligible to
recover under that Act and (2) the defendant is not liable for
vessel negligence under § 905(b) of the LHWCA.
For the following
reasons, the motion is DENIED in part, as to the plaintiff’s
coverage
under
the
LHWCA,
and
GRANTED
in
part,
as
to
the
defendant’s liability for vessel negligence under § 905(b).
In
addition, the plaintiff’s claims for unseaworthiness, maintenance
and cure, and Jones Act negligence are DISMISSED with prejudice,
in light of the plaintiff’s binding stipulation that he does not
have these claims.
The plaintiff’s status as a longshoreman or a
land-based worker, as well as his claim for negligence under the
general maritime law, remain before the Court.
1
Background
This maritime lawsuit arises out of a technician’s claim that
he sustained a tear of his right bicep while attempting to retrieve
an oil boom from the water while aboard a vessel.
Georges Payano is a 61-year-old resident alien from the
Dominican Republic.
He does not speak or read English and has
very limited formal education.
In April of 2016, Environmental,
Safety, & Health Services, Inc. hired Mr. Payano to work as a
technician.
Prior to the day of his accident, Mr. Payano had
performed land-based cleaning work in a warehouse located in
Louisiana and had never before performed cleanup work aboard a
vessel “at sea.”
On the morning of July 6, 2016, Mr. Payano and four other
ES&H employees, including his brother (Pascual Fermin) and an ES&H
supervisor
(Jack
Scruggs),
boarded
the
M/V
SAINT
and
were
transported to Breton Sound 32 to conduct oil spill cleanup work.
The SAINT, which was owned by NOLA Boat Rentals, LLC and operated
by Brent Trauth, an employee of NOLA, was time chartered by ES&H
pursuant to a Master Service Agreement and corresponding Work
Authorization Form with Deep Delta Airboats, LLC. 1
1
Deep Delta owns and operates air boats, while NOLA, its affiliate,
owns and operates deck boats. In September of 2012, ES&H and Deep
Delta executed a Master Service Agreement, under which Deep Delta
agreed to provide ES&H with airboat services, as well as deck boat
services through its affiliate and subcontractor, NOLA. On July 6,
2016, Deep Delta, through NOLA, provided a deck boat, the SAINT,
2
On that day, the ES&H crew was instructed to retrieve damaged
sections of a containment boom from the water and load it onto the
vessel. 2
The technicians performed this job manually under the
supervision and direction of Jack Scruggs, and with the assistance
of the SAINT.
The Work Authorization Form entered between ES&H
and Deep Delta provided that “ES&H supervisory personnel on site
shall instruct Subcontractor personnel on their specific duties
and responsibilities.”
As such, Mr. Scruggs allegedly instructed
Mr. Trauth, the captain of the SAINT, as to when, where, and how
to move the vessel during the boom retrieval process.
Otherwise,
Mr. Trauth had no involvement with the boom retrieval activity and
remained in the cabin for most of the workday.
Upon arriving at the worksite, Mr. Scruggs instructed Mr.
Payano and his brother to lie down on the vessel’s bow and reach
into
the
water
to
grasp
and
pull
the
damaged
segments
of
containment boom while the boom was still anchored to the sea
floor.
When Mr. Payano and his brother attempted to communicate
to
Scruggs
Mr.
difficult
to
that
retrieve
the
containment
manually,
boom
Scruggs
was
too
allegedly
heavy
and
yelled
and
ordered that they continue to retrieve and lift the damaged boom
and captain, Brent Trauth, to ES&H, pursuant to the Master Service
Agreement and a corresponding Work Authorization Form.
2 Mr. Payano alleges that he had never previously retrieved oil
boom from a vessel. He further submits that no other ES&H crew
member spoke Spanish, except for his brother, who exclusively spoke
Spanish.
3
onto the vessel.
As Mr. Payano was grasping a segment of the
still-anchored boom, the bow of the vessel jerked upwards due to
wave action, and he sustained a tear of his right bicep. 3
Mr.
Payano
experienced
immediate
pain
and
swelling;
he
reported the injury to Mr. Scruggs and was transported to receive
emergency medical care.
Mr. Payano’s initial orthopedic surgeon
performed an exploratory surgery but decided not to repair the
bicep tear.
After an unsuccessful course of physical therapy, Mr.
Payano sought a second opinion from another orthopedic surgeon,
who
determined
that
arthroscopy/debridement
he
and
was
in
need
sub-pectoral
of
bicep
a
right
tenodesis.
bicep
As
such, this surgeon submitted a 1010 form under the Louisiana
Workers’
surgery.
Compensation
Act
to
request
authorization
for
the
This request was denied by ES&H’s insurance carrier.
Mr. Payano did, however, receive compensation benefits under the
Longshore and Harbor Workers’ Compensation Act while recuperating
from his injury until he was cleared to return to work.
Upon returning to work, Mr. Payano was placed on light duty
status, for which he was allegedly harassed by his supervisors.
He submits that he ultimately resigned because of this harassment.
3
Captain Maurice Ryan, the plaintiff’s liability expert, has
opined that Mr. Payano’s injuries “were caused because the oil
boom retrieval operation was not conducted in accordance with
[ES&H’s] standard operating procedure.”
4
On July 1, 2017, Mr. Payano sued Environmental, Safety & Health
Services, Inc.; ES&H, Inc. d/b/a ES&H Consulting & Training Group;
and ES&H of Dallas, LLC, alleging claims under the Jones Act, the
LHWCA, and the general maritime law.
In particular, his complaint
states that he was employed by defendants as a seaman and/or
laborer working on board a vessel in the navigable waters of
Louisiana and that his injuries 4 were caused by the negligence of
the defendants as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
Failing to properly operate the vessel;
Failing
to
properly
train
and/or
supervise its employees;
Failing to warn Plaintiff of the vessel
and its movement;
Failing to maintain a proper lookout;
Failing to maintain the vessel and its
appurtenances;
Failing to do what they should have done
to have prevented the incident;
Failing to provide a seaworthy vessel;
Failing to provide adequate and safe
gear, equipment, and appurtenances on the
vessel;
Failing to comply with applicable rules
and regulations promulgated by OSHA, the
United States Coast Guard, and/or other
governmental and/or quasigovernmental
agencies;
Failing to provide Plaintiff with a safe
place to work;
Failing
to
provide
Plaintiff
with
reasonable working conditions;
Failing to do what they should have done;
and
4
Mr. Payano alleges in his complaint that he suffered “serious
physical and mental injuries, including but not limited to,
traumatic tear of his right bicep and other injuries to his upper
and lower extremities, body, and mental psyche.”
5
m.
All other acts of negligence and fault
that may be identified during discovery
and proven at trial.
Moreover, he alleges damages for physical pain and suffering,
mental
suffering,
disability,
compensation
lost
medical
wages,
scarring
and
maintenance
and
compensation
benefits
expenses,
benefits,
and/or
disfigurement,
cure,
workers’
under
the
Longshore and Harbor Workers’ Compensation Act.
On October 13, 2017, all of the plaintiff’s claims against
ES&H, Inc. d/b/a ES&H Consulting & Training Group and ES&H of
Dallas, LLC were dismissed without prejudice.
the
plaintiff
filed
his
first
amended
On that same day,
complaint,
naming
as
additional defendants Deep Delta Airboats, LLC (the owner of the
vessel on which he was allegedly injured) and Brent Trauth (the
operator
of
that
vessel).
Then,
on
December
11,
2017,
the
plaintiff again amended his complaint, substituting NOLA Boat
Rentals, LLC as the vessel owner and dismissing Deep Delta without
prejudice.
On April 21, 2018, the plaintiff moved to dismiss his claims
against NOLA and Trauth with prejudice.
In addition, on May 2,
2018, the plaintiff stipulated that he: (1) was not a seaman at
the time of the incident, (2) does not have a Jones Act negligence
claim, (3) does not have an unseaworthiness claim under the general
maritime
law,
and
(4)
does
not
maintenance and cure claim.
6
have
a
general
maritime
law
Now, Environmental, Safety, & Health Consulting Services,
Inc.; ES&H, Inc. d/b/a ES&H Consulting & Training Group; and ES&H
of Dallas, LLC (collectively “ES&H”) move for summary judgment.
Specifically, ES&H contends that it is entitled to judgment as a
matter of law that: (1) the plaintiff is covered under the LHWCA
such that his recovery is limited to compensation benefits from
ES&H and a possible vessel negligence claim under § 905(b) of that
Act and (2) ES&H is not liable for vessel negligence under §
905(b). 5
5
On September 18, 2018, the plaintiff was granted leave to file a
supplemental memorandum in opposition to ES&H’s motion for summary
judgment. In this paper, the plaintiff states that, after he filed
his initial opposition on August 14, 2018, ES&H produced over 450
pages of additional documents.
In particular, the plaintiff
relates that, on August 15, 2018, ES&H produced the following
documents: (a) ES&H “Standard Operating Procedure” for deployment
and retrieval of containment boom; (b) various training
certificates for Mr. Payano; (c) tailgate safety meeting records
for various jobs Mr. Payano appears to have worked at ES&H; and
(d) a complete copy of ES&H’s Safety and Health Policy Manual. In
light of this untimely production, plaintiff’s counsel withdraws
its allegation that ES&H did not provide Mr. Payano with HAZWOPER
training. However, he maintains his contention that the work Mr.
Payano was ordered to perform at the time of his injury directly
contravened ES&H’s “standard operating procedure” for oil boom
retrieval.
Then, on September 26, 2018, the plaintiff was granted leave to
file a second supplemental memorandum in opposition to this motion.
In this paper, the plaintiff relates that ES&H produced 60
additional pages of documents, which reveal that “Mr. Payano
appears to have worked a sufficient amount of time on or adjacent
to navigable waters to satisfy the requisites for coverage under
the Longshore and Harbor Workers Compensation Act. Mr. Payano,
therefore, stipulates that he is deemed a longshoreman for purposes
of his claim against ES&H.”
7
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute
of fact exists only “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.”
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
“[i]f
the
evidence
is
merely
colorable, or is not significantly probative,” summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
8
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat
summary
judgment
“[T]he nonmoving party cannot
with
conclusory
allegations,
unsubstantiated assertions, or only a scintilla of evidence.”
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).
In deciding whether a fact
issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Although the Court
must “resolve factual controversies in favor of the nonmoving
party,” it must do so “only where there is an actual controversy,
that is, when both parties have submitted evidence of contradictory
facts.”
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th
Cir. 2013)(internal quotation marks and citation omitted).
II.
ES&H first seeks summary judgment that the plaintiff is
covered under the Longshore and Harbor Workers’ Compensation Act
and thus only eligible to receive compensation payments from ES&H
and potentially assert a vessel negligence claim under § 905(b) of
that Act.
9
A.
Coverage under the Jones Act and the Longshore and Harbor
Workers’ Compensation Act is mutually exclusive.
The Jones Act
permits recovery for “[a]ny seaman who shall suffer personal injury
in the course of his employment,” whereas the LHWCA governs the
recovery of a maritime worker who is not a master or “a member of
a
crew
of
any
vessel.”
See
Buras
v.
Commercial
Testing
&
Engineering Co., 736 F.2d 307, 309 (5th Cir. 1984).
To be eligible for coverage under the LHWCA, a worker must
meet both a situs and a status test.
164 F.3d 901 (5th Cir. 1999).
See Bienvenu v. Texaco, Inc.,
The situs test focuses upon where
the injury occurs; it requires that the worker be injured on
navigable waters of the United States.
Id. at 904.
On the other
hand, the status test focuses upon where the employee works.
at 908.
Id.
“A worker injured in the course of his employment on
navigable waters is engaged in maritime employment and meets the
status test only if his presence on the water at the time of injury
was neither transient [n]or fortuitous.”
Id.
Although the Fifth
Circuit in Bienvenu declined to create a bright-line rule regarding
the “exact amount of work performance on navigable waters” required
to satisfy the status test, it instructed that “[t]he threshold
amount must be greater than a modicum of activity in order to
preclude coverage to those employees who are merely commuting from
shore to work by boat.”
Id.
Ultimately, the Bienvenu court
10
determined that a worker who spent 8.3% of his total working time
aboard a vessel on navigable waters satisfied the status test
because this was “not an insubstantial amount of [his] working
time.”
Id.
Once an injured worker meets the situs and status tests for
coverage, the LHWCA provides him with two exclusive remedies: (1)
compensation benefits from his employer under § 904; and (2)
recovery for vessel negligence under § 905(b).
33 U.S.C. §§ 904,
905(b).
On the other hand, when an injured worker is covered by the
Louisiana Workers’ Compensation Act (LWCA), rather than the LHWCA,
the exclusive remedy provision of the LWCA does not preclude him
from asserting against his employer a negligence claim under the
general maritime law.
See Green v. Vermillion Corp., 144 F.3d
332, 339 (5th Cir. 1998); Givens v. ES&H, 2012 WL 3780547, *7-8
(E.D. La. Aug. 31 2012).
B.
In this case, ES&H contends that because the plaintiff was
injured on navigable waters and in the course of his employment
with ES&H, he satisfies the situs and status elements of the LHWCA.
And because he qualifies as a covered worker under the LHWCA, his
remedy
is
limited
to
compensation
payments
from
potential § 905(b) action against the vessel owner.
11
ES&H,
and
a
The plaintiff counters that ES&H improperly conflates the
situs and status elements of the LHWCA.
He correctly notes that
the Fifth Circuit has clarified in Bienvenu v. Texaco, Inc. that
“a worker injured in the course of his employment on navigable
waters is engaged in maritime employment and meets the status
test only if his presence on the water at the time of injury was
neither transient [n]or fortuitous.” 164 F.3d 901, 908 (5th Cir.
1999).
The plaintiff further submits that he was employed as a
technician, worked inside of an ES&H warehouse, and had never
worked on a vessel until the day of his injury. 6
Because he was
an
injured
exclusively
“land-based
employee”
who
was
while
fortuitously working on navigable waters, the plaintiff avers that
he is covered by the Louisiana Workers’ Compensation Act, rather
than the Longshore and Harbor Workers’ Compensation Act.
6
To support his contention that he had never before worked on a
vessel for ES&H, Mr. Payano points to his own deposition testimony:
A. It was only that day that I work on the
boat, on those boats.
It was the first
time.
Q. So that was the only time during the job
where you injured your right arm that you were
working on the boat?
A. On that job site, it was also the first
time, my first time.
Q. On the boat, working on the boat?
A. And that same work too.
12
However, in his second supplemental memorandum in opposition
to the defendant’s motion for summary judgment, the plaintiff
changes his position.
He notes that ES&H recently produced 60
additional pages of documents, which reveal Mr. Payano had worked
on or adjacent to navigable waters before the day of his injury.
Specifically, he relates:
Mr. Payano appears to have worked a sufficient
amount of time on or adjacent to navigable
waters to satisfy the requisites for coverage
under the Longshore and Harbor Workers
Compensation Act.
Mr. Payano, therefore,
stipulates that he is deemed a longshoreman
for purposes of his claim against ES&H.
Although
Mr.
Payano
has
attempted
to
stipulate
in
his
supplemental opposition papers that he is a longshoreman and is
covered under the LHWCA, this informal, unilateral stipulation is
not binding.
by
competent
record.
Moreover, the plaintiff’s position is not supported
evidence
contained
within
the
summary
judgment
Because a factual dispute remains as to whether Mr.
Payano’s presence on navigable waters was more than fortuitous at
the time of his injury, summary judgment in favor of ES&H that the
plaintiff is covered under the LHWCA and only eligible to recover
under that Act is inappropriate. 7
7
In light of the Court’s determination that ES&H is not entitled
to judgment as a matter of law that Mr. Payano is only eligible to
recover under the LHWCA, it likewise is not entitled to judgment
as a matter of law that Mr. Payano has no claim for negligence
under the general maritime law against ES&H.
If it determined
that Mr. Payano is not covered by the LHWCA, he has standing to
13
On the other hand, Mr. Payano did enter a binding stipulation
on May 2, 2018 that he was not a seaman at the time of the incident
and does not have claims for unseaworthiness, maintenance and cure,
or Jones Act negligence.
And so, summary judgment in favor of
ES&H
to
is
appropriate
as
the
plaintiff’s
unseaworthiness,
maintenance and cure, and Jones Act negligence claims.
III.
ES&H next seeks summary judgment that it is not liable for
vessel negligence under § 905(b) of the Longshore and Harbor
Workers’ Compensation Act.
A.
Section 905(b) of the LHWCA vests a covered worker injured by
the negligence of a vessel with the right to bring an action
against the vessel.
33 U.S.C. § 905(b).
Pursuant to the Act, the
term “vessel” includes the “vessel’s owner, owner pro hac vice,
agent,
operator,
charterer
officer, or crew member.”
or
bare
boat
charterer,
33 U.S.C. § 902(21).
master,
Given this
definition, ES&H, as the time charterer of the SAINT, can be
subject to liability under § 905(b).
See Hudson v. Schlumberger
Tech. Corp., 452 Fed. Appx. 528, 536 (5th Cir. 2011).
Moreover,
it is possible for a longshoreman’s employer to act in a dual
bring a negligence claim under the general maritime law against
ES&H. See Green v. Vermillion Corp., 144 F.3d 332, 339 (5th Cir.
1998); Givens v. ES&H, 2012 WL 3780547, *7-8 (E.D. La. Aug. 31
2012).
14
capacity as a “vessel.”
When the employer acts in this dual
capacity, “the entity retains its immunity for acts taken in its
capacity as an employer, but may still be sued ‘qua vessel’ for
acts of vessel negligence.”
Levene v. Pintail Enters., Inc., 943
F.2d 528, 531 (5th Cir. 1991).
Accordingly, that ES&H is Mr.
Payano’s employer does not preclude him from asserting a § 905(b)
action against it in its capacity as time charterer.
Nonetheless,
the Fifth Circuit has emphasized that “[t]he difference between
the
capacities
important.”
in
which
an
employer
may
act
is
extremely
Id.
The scope of vessel negligence for a vessel owner under §
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 to longshoremen:
“(1) the ‘turnover duty,’ relating to the condition of the ship
upon the commencement of stevedoring 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)).
Once
the vessel has been turned over to the longshoremen’s employer,
the vessel owner has no general duty to supervise or inspect the
operations; instead, the vessel owner may rely on the employer to
15
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.
Scindia,
That means “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
longshoremen’s employer, only the duty to control and the duty to
intervene apply.
Id. at 167, 175. Under the active control duty,
“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. at 98.
The duty to intervene is
triggered when a vessel owner has actual knowledge of a hazard and
that the employer, 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
operations
words,
and
if
“if
a
the
hazard
develops
shipowner
during
should
the
longshoring
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.
The scope of vessel negligence for a time charterer under §
905(b) is even more limited than that for a vessel owner.
Hudson, 452 Fed. Appx. at 536.
See
The traditional control duties of
16
the time charterer extend merely to directing the commercial
activity of the vessel and determining the ship’s routes, the
timing of the mission, and the designation of the cargo.
Kerr-
McGee, 830 F.2d 1332, 1339 (5th Cir. 1987). Accordingly, the Fifth
Circuit has held that “a time-charterer is not liable under 905(b)
unless the cause of the harm is within the charterer’s traditional
sphere of control and responsibility or has been transferred
thereto by the clear language of the charter agreement.”
1343.
Id. at
In addition, this Court has noted that the traditional
allocation of responsibility may be altered by “custom.”
See
Hebert v. Specialized Envtl. Res. LLC, No. 12-0071, 2013 U.S. Dist.
LEXIS 41403, at *7 (E.D. La. Mar. 25, 2013) (Feldman, J.) (“In
sum, a time charterer can be liable for an accident that . . .
resulted from a decision within the time charterer’s control
spheres or if the time charterer and vessel owner altered the
traditional allocation of responsibility by custom or contract.”).
B.
In this case, it is undisputed that ES&H did not own the
vessel on which the plaintiff’s alleged injury occurred. 8 However,
the parties disagree as to whether ES&H is liable under § 905(b)
in its capacity as time charterer of the vessel.
8
ES&H contends
In responding to ES&H’s statement of uncontested facts, the
plaintiff admits that “[t]he Saint was owned by NOLA Boat Rentals,
LLC (“NOLA”), and captained/operated by Brent Trauth (“Trauth”),
a member and employee of NOLA.”
17
that there is “no allegation or evidence demonstrating that ES&H
owed and/or breached a duty by an act taken in its capacity as
time charterer.”
ES&H also emphasizes that the plaintiff concedes
in his Second Amended Complaint that “[a]t all material times
herein, the vessel was owned, operated, and/or controlled by
Defendants, NOLA Boat Rentals, LLC and/or Brent Trauth.”
The
plaintiff counters that ES&H assumed operational control of the
vessel as a matter of contract and fact, and that his injury arose
out of ES&H’s active negligence in exercising operational control
of the vessel.
To support his contention that ES&H altered the traditional
roles of control with the vessel owner by “contract,” the plaintiff
points to language in the “Work Authorization Form” entered between
ES&H and Deep Delta.
In particular, this Form provides:
ES&H supervisory personnel on site
instruct Subcontractor personnel on
specific duties and responsibilities.
shall
their
According to Mr. Payano, this contractual provision indicates that
ES&H “maintain[ed] control over all meaningful aspects of vessel
operations and movement involved in the boom retrieval process.”
Moreover, the plaintiff alleges that as a matter of “fact,” ES&H
supervisor,
Jack
Scruggs,
controlled
18
all
aspects
of
vessel
movement, operation, and boom retrieval activities at issue. 9
Mr.
Payano further submits that because Scruggs instructed him to
manually retrieve the anchored boom (instead of directing the
vessel operator to release the anchored boom with the vessel’s
power),
ES&H
control duty.”
(through
Scruggs)
violated
the
Scindia
“active
And by failing to instruct him to stop the manual
boom retrieval process, despite observing his struggles, Scruggs
violated the Scindia “duty to intervene.”
The plaintiff maintains
that Scruggs’ actions, and failure to act, caused his bicep injury.
To further support his contention that ES&H’s negligence caused
his injury, Mr. Payano points to the report of Captain Maurice
9
In support of his contention that ES&H exercised operational
control over the vessel, the plaintiff relies on his own affidavit
in which he attests:
The vessel operator did not participate in the
boom retrieval work, but I did observe Mr.
Scruggs give directions to the pilot regarding
movement of the boat during our work.
In addition, the plaintiff points to the deposition testimony of
Brett Trauth, the operator of the SAINT, in which he explains how
ES&H personnel instructed him to move the vessel during the boom
retrieval process:
The only thing they would need to do is if I
have to pull forward, backwards, or stop.
That[] would be the three signals I would get.
The plaintiff also points to Mr. Trauth’s testimony regarding how
Scruggs directed the ES&H crew members during the boom retrieval
process:
He’d tell them what to do, what the process he
wants done.
19
Ryan,
his
liability
expert,
who
opines
that
the
plaintiff’s
injuries “were caused because the oil boom retrieval operation was
not
conducted
in
accordance
with
[ES&H’s]
standard
operating
procedure.”
Although the plaintiff points to evidence in the summary
judgment record indicating that ES&H may have been negligent, there
is no evidence in the summary judgment factual record to support
a finding that these alleged acts of negligence occurred in ES&H’s
capacity as time charterer, rather than as employer.
First, the
language in the Work Authorization Form cited by the plaintiff
does
not
between
alter
the
the
time
traditional
charterer
and
allocation
vessel
of
responsibility
owner.
Although
this
provision permitted ES&H personnel to “instruct” the vessel’s crew
regarding their duties during the boom retrieval process, the
“clear
language”
of
the
contract
does
not
transfer
operational or navigational control of the vessel.
McGee, 830 F.2d at 1343.
to
ES&H
See Kerr-
Moreover, the testimony of Brent Trauth,
upon which plaintiff relies, does not establish that ES&H exercised
operational or navigational control of the vessel, or that Trauth
relinquished
control
retrieval operations.
was
the
ES&H
of
the
vessel
with
respect
to
the
boom
Rather, this testimony reveals that Scruggs
supervisor
on
board
and
that
Trauth
participate personally in the boom retrieval operations.
did
not
Finally,
the plaintiff does not allege that ES&H breached a duty owed within
20
its traditional role of time charterer, such as directing the
commercial activity of the vessel or determining the ship’s routes,
the timing of the mission, or the designation of the cargo.
See
Kerr-McGee, 830 F.2d at 1339.
Ultimately, that ES&H allegedly failed to comply with its
standard operating procedure for boom retrieval operations while
aboard a vessel does not translate into vessel negligence.
In
other words, all of the alleged acts of negligence that the
plaintiff raises -- from instructing the plaintiff to manually
retrieve the oil boom, to failing to instruct him to stop despite
his difficulties -- “must be classified as potential acts of
employer negligence, not vessel negligence.”
at 535.
See Levene, 943 F.2d
Because the plaintiff has failed to raise a genuine issue
of material fact regarding ES&H’s negligence in its capacity as
time charterer, summary judgment in favor of ES&H is appropriate
as to the plaintiff’s vessel negligence claim under § 905(b).
Accordingly, it is ORDERED: that the motion is DENIED in part,
as to the plaintiff’s coverage under the Longshore and Harbor
Workers’
Compensation
Act,
and
GRANTED
in
part,
as
to
the
defendant’s liability for vessel negligence under § 905(b) of that
Act.
It is FURTHERED ORDERED: that the plaintiff’s claims for
unseaworthiness, maintenance and cure, and Jones Act negligence
are DISMISSED with prejudice, in light of the plaintiff’s binding
stipulation
that
he
that
does
21
not
have
these
claims.
The
plaintiff’s status as a longshoreman or a land-based worker, as
well as his claim for negligence under the general maritime law,
remain before the Court.
New Orleans, Louisiana, October 2, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?