Patil v. Amber Lagoon Shipping GmbH & Co. et al
Filing
38
ORDER AND REASONS - IT IS ORDERED that Defendants' 29 Motion for Summary Judgment is GRANTED and the plaintiff's claims are DISMISSED WITH PREJUDICE, as set forth herein. Signed by Judge Martin L.C. Feldman on 12/9/2020. (sa)
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 1 of 15
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRADEEP PATIL
CIVIL ACTION
v.
NO. 18-6167
AMBER LAGOON SHIPPING GmbH
& CO., ET AL.
SECTION “F”
ORDER AND REASONS
The plaintiff Pradeep Patil sues for personal injuries he
sustained in a slip-and-fall accident aboard the M/V AMBER LAGOON,
a vessel owned and operated by the defendants.
Before the Court
is the defendants’ motion for summary judgment and a corresponding
dismissal of all of Patil’s claims.
For the reasons that follow,
the motion is GRANTED.
Background
The record in this case contains the following uncontroverted
facts.
On March 17, 2016, Pradeep Patil – a seasoned 1 marine engineer
employed as a surveyor by Maritech Commercial, Inc., which in turn
Patil has forty-five years’ experience in the maritime
industry.
A 1976 graduate of an Indian maritime engineering
college, Patil sailed for roughly sixteen years before achieving
the title of “Chief Engineer.” In 1992, he left the high seas to
1
1
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 2 of 15
was independently contracted to run tests on the M/V AMBER LAGOON
- came aboard the AMBER LAGOON to assess the watertightness of the
ship’s
hatch
covers
ultrasonic testing.
(or
“holds”)
through
a
process
known
as
In general terms, ultrasonic testing requires
a tester – in this case, Patil – to point a testing wand at a
vessel’s hatch covers so that ultrasonic sound waves can enable
the tester to detect deficiencies in the hatch cover’s seal.
After successfully testing the AMBER LAGOON’s other holds,
Patil came to the vessel’s “Hold Number 4” around 6:00 PM.
With
the port access ladder he would have preferably used to return to
the ship’s main deck blocked by cargo containers, Patil decided to
cross from the port side of the hold to the starboard side of the
hold.
This crossing would require Patil to scale an approximately
36-inch gap from one ledge to another.
In order to traverse the
gap, Patil sat down on the one side and attempted to place his
foot onto the other.
At some point in his attempted negotiation
of such maneuver, Patil’s plant foot slipped and he fell roughly
six feet to the main deck.
The blow from Patil’s fall was
sufficiently severe to knock his hard hat off his head – which
become the “Marine Superintendent” of Barber Ship Management, and
has since been employed in a variety of senior roles in the
industry.
2
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 3 of 15
caused him to suffer a small forehead laceration – and fracture
his left heel.
Bystanders rushed to Patil’s assistance, rendering him prompt
first
aid
and
summoning
emergency
admittedly non-negligent manner.
medical
personnel
in
an
Subsequent tests revealed the
aforementioned forehead cut and heel fracture to be Patil’s only
injuries as a result of the accident, but the fracture sidelined
Patil from work for three months and required a November 2016
surgery.
Patil filed this personal injury action some two years later.
At primary issue is the cause of Patil’s slip, which presumably
caused his fall and injury.
Patil alleges that a slippery foreign
substance on the negligently maintained “Hold Number 4” caused his
right foot to slip and sent him crashing to the main deck.
As his
primary evidence on this point, Patil testifies that in the days
following the accident, he observed an admittedly unpronounced
spot of lubricant on the steel-toe boots he wore that day.
The defendants see matters differently.
For one, they doubt
that any such substance was in fact present on “Hold Number 4”
when
the
incident
occurred:
indeed,
as
they
insist,
(1)
the
“contemporaneous and ‘close-in-time’ Harris County EMS records and
[the] incident report [of Patil’s employer] . . . make no mention
3
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 4 of 15
of any slip hazard or foreign substance,” (2) Patil continues to
admit that he did not actually see any such substance on or around
the hatch that day, (3) Sebastian Kedziora, Patil’s admittedly
younger
and
more
sprightly
suffered
no
such
mishap
and
inspection
could
not
companion
attest
to
(or
“mate”)
seeing
any
hazardous foreign substance either, (4) Patil admitted it was still
daylight
when
his
fall
occurred,
and
(5)
Patil’s
“diverse
experience in the oceangoing marine industry” would surely have
allowed him to “learn[] very early on in his career . . . how to
identify, address and/or avoid the presence of any alleged oil or
grease in his work area or path.”
See Mot. at 1–7.
In any event, the defendants argue that whatever the merits
of Patil’s theory of the incident as a factual matter, Patil’s
claim nevertheless fails as a legal matter because Patil cannot
show that the defendants breached any of the narrowly circumscribed
duties of care imposed on vessel owners by 33 U.S.C. § 905(b).
The defendants’ correctness or incorrectness in that argument is
the ultimate subject of this motion for summary judgment.
I.
Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate where the record reveals no genuine dispute
as to any material fact such that the moving party is entitled to
4
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 5 of 15
judgment as a matter of law.
No genuine dispute of fact exists
where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 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 nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Supreme Court has emphasized that the mere assertion of
a factual dispute does not defeat an otherwise properly supported
motion.
See id.
Therefore, where contradictory “evidence is
merely colorable, or is not significantly probative,” summary
judgment remains appropriate.
Id. at 249–50 (citation omitted).
Likewise, summary judgment is appropriate where the party opposing
the motion fails to establish an essential element of his case.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
In
this regard, the nonmoving party must do more than simply deny the
allegations raised by the moving party.
See Donaghey v. Ocean
Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992).
Instead,
it must come forward with competent evidence, such as affidavits
or depositions, to buttress its competing claim.
Id.
Hearsay
evidence and unsworn documents that cannot be presented in a form
that would be admissible at trial do not qualify as competent
5
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 6 of 15
opposing evidence.
FED. R. CIV. P. 56(c)(2); Martin v. John W.
Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per
curiam).
Finally, in evaluating a summary judgment motion, the Court
must read the facts in the light most favorable to the nonmoving
party.
Anderson, 477 U.S. at 255.
II.
Rule
56
“mandates
the
entry
of
summary
judgment,
after
adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing to establish the existence of
an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at
322. Urged at this later stage in the proceedings, the defendants’
motion
for
summary
judgment
reads
and
functions
like
a
Rule
12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted.
In essence, the defendants assert that the
undisputed facts in the record, even when read in the light most
favorable to Patil, do not establish that Patil has a plausible
claim for relief against the defendants.
If the defendants are
correct, then the Court must indeed grant summary judgment in their
favor and dismiss Patil’s claims as legally baseless.
6
See id.
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 7 of 15
The Court thus proceeds to evaluate Patil’s ability to state
a valid legal claim on the developed factual record at hand.
A.
The Longshore and Harbor Workers’ Compensation Act (LHWCA) is
a
federal
statute
which
“establishes
a
workers’
compensation
program for longshoremen and other maritime workers injured or
killed in work-related accidents.”
3d 768, 779 (E.D. La. 2016).
Tauzier v. East, 183 F. Supp.
Notably, the LHWCA supplies the
“exclusive remedy” for employees seeking work accident–related
compensation
“However,
from
although
their
the
employers.
LHWCA
Id.
provides
the
(emphasis
exclusive
added).
remedies
against employers and generally leaves them immune from suits in
tort, it also provides a cause of action against a vessel owner
for vessel negligence under [33 U.S.C.] § 905(b).”
Id.
Here, it is undisputed that Patil worked aboard the AMBER
LAGOON as an independent contractor rather than an employee.
It
is also undisputed that Patil was a covered worker under the LHWCA
because he was a “person engaged in maritime employment” at the
time
of
the
accident
at
issue.
See
33
U.S.C.
§ 902(3).
Accordingly, as both sides acknowledge, Patil’s “exclusive remedy
against
[the]
§ 905(b).
defendants . . .
is
See, e.g., Opp. at 5.
7
a
negligence
action”
under
As interpreted by the Supreme
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 8 of 15
Court and the Fifth Circuit, § 905(b) sharply narrows the theories
of liability that injured workers like Patil may pursue against
vessel owners. Indeed, as another section of this court has noted,
“[t]he scope of vessel negligence under § 905(b) is limited to the
breach of specific duties described by the U.S. Supreme Court in
Scindia Steam Navigation Co. v. De Los Santos,” 451 U.S. 156
(1981).
Tauzier, 183 F. Supp. 3d at 779.
Those “specific duties” are narrow and threefold.
First, a
vessel owner has a “turnover duty” to (1) “turn over the vessel
and its equipment in such a condition that an expert stevedore can
perform
stevedoring
operations
with
reasonable
safety,”
and
(2) “warn the stevedore of hidden or latent dangers that are known
or should be known to the vessel owner.” 2
Id. at 780.
Second, a
vessel owner has a “duty to exercise reasonable care in the areas
of the ship under the active control of the vessel.”
Id.
And
third, a vessel owner has a “duty to intervene,” which “is narrow
and requires ‘something more’ than mere shipowner knowledge of a
dangerous condition.”
See id. at 780–81 (quoting Singleton v.
Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996)).
“However, a vessel owner is not liable if a danger is (1) open
and obvious or (2) such that a reasonably competent stevedore
should anticipate encountering it.” Tauzier, 183 F. Supp. 3d at
780.
2
8
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 9 of 15
B.
The defendants argue that summary judgment must be granted in
their favor because Patil cannot state a plausible claim for
violations of any of the foregoing vessel-owner duties on the
developed factual record at hand.
Cf. Celotex, 477 U.S. at 322.
The Court agrees.
As the defendants observe, the only § 905(b) duty that Patil’s
complaint realistically implicates is the turnover duty. 3
This
Court has summarized the law on the turnover duty as follows:
The “active control” duty and the “duty to intervene” do not
supply Patil plausible theories of recovery in this case.
3
For one, there is no evidence that the defendants exerted active
control “over the actual methods and operative details” of Patil’s
ultrasonic testing on the AMBER LAGOON, which is “a prerequisite
to vessel liability” under the “active control” Scindia duty. See
Clay v. Daiichi Shipping, 74 F. Supp. 2d 665, 673 (E.D. La. 1999).
Rather, the uncontroverted evidence establishes that the defendant
reasonably left Patil – an experienced and knowledgeable
independent contractor – to his own devices and expertise. Indeed,
Patil chose to conduct his testing and move about the vessel in
the manner in which he saw fit, and the defendants are correct
that Patil had every right to ask his employer or the defendants
for equipment or assistance that would better enable his safe
performance of the testing duties his employer assigned him. As
a general rule, a contractor in the defendants’ position is “under
no duty to protect [contract workers] from risks that were inherent
in” carrying out the contract.
See West v. United States, 361
U.S. 118, 123 (1959).
Patil concedes his inability to state a claim under the “active
control” duty, but instead points to the related “active
involvement” duty referenced in the same breath in Scindia. On
that point, Patil cites the Scindia Court’s observation “that a
9
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 10 of 15
The turnover duty has two parts. First, a vessel owner
has a duty to exercise “ordinary care under the
circumstances and 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
vessel owner ‘may be liable if it actively involves itself in the
cargo operations and negligently injures a longshoreman.’”
See
Opp. at 18 (quoting Scindia, 451 U.S. at 167).
While that is
surely a fair quotation and binding rule of law, it is inapposite
here.
Patil argues that the defendants “actively involve[d]”
themselves in his performance of his duties by obstructing the
access ladder he would have ordinarily (and ideally) used for
ingress and egress from “Hold Number 4.”
However, even if the
crew’s unrelated activities aboard the ship that day tended to
make Patil’s job more challenging, it cannot be said that such
activities amount to the defendants “actively involving” or
inserting themselves into Patil’s activities.
Likewise, Patil cannot successfully invoke the even narrower “duty
to intervene.”
Even if Patil could meet his burden of proving
that the presence of a slippery substance on “Hold Number 4” did
in fact cause his fall – which is questionable – that is only half
of the bargain.
Indeed, this district court has applied Fifth
Circuit precedent to require that a plaintiff in Patil’s position
show that, among other things, the vessel “had ‘actual knowledge
that it could not rely on the [contractor] to protect its employees
and that if unremedied the [hazardous condition at issue] posed a
substantial risk of danger.”
Tauzier, 183 F. Supp. 3d at 784
(quoting Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 17 (5th
Cir. 1992)).
Here, there is little evidence that any foreign
substance was indeed present on “Hold Number 4” – let alone that
the defendants knew or should have known about it, or further still
that the defendants had actual knowledge that they could not rely
on Patil or his employer to take their own precautions or steer
clear of the hazardous condition. See Pimental, 965 F.2d at 17;
cf. Wilson v. Alexander’s Power Shipping Co., 1993 WL 664472, at
*2 (S.D. Ga. Nov. 15, 1993) (granting summary judgment to similarly
situated defendant because, among other reasons, “oil and grease
are commonly present on a vessel’s weather deck, and . . . an
experienced
and
expert
stevedore
would
anticipate
their
presence”).
10
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 11 of 15
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 anticipate encountering.” Kirksey v.
Tonghai Mar., 535 F.3d 388, 392 (5th Cir. 2008) (citing
[Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98
(1994)]).
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 [own] statutory
duty under 33 U.S.C. § 941 to provide a reasonably safe
work environment for the longshoremen.
Scindia, 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. Id. at 167, 175.
Duvall v. Bopco, L.P., 2015 WL 7458608, at *3 (E.D. La. Nov. 24,
2015).
Patil’s turnover-duty claim fails under these standards.
For
starters, any lurking substance on “Hold Number 4” was not only
unknown to the defendants through exercise of reasonable diligence
– recall that neither Patil nor Kedziora saw any such foreign agent
on the hold before the accident – but, more importantly, clearly
not of such a nature that “an expert and experienced” actor like
Patil would not have “be[en] able by the exercise of reasonable
care to carry on [his] operations with reasonable safety.”
11
See
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 12 of 15
Scindia, 451 U.S. at 167 (emphasis added).
Reasonableness is the
metric by which the defendants are to be judged, not perfection,
and this fact narrows Patil’s path to recovery substantially.
Furthermore, even when viewed in the light most favorable to
Patil – which is to say, even assuming that a slick foreign
substance
did
indeed
present
an
unreasonable
hazard
to
any
individual stepping foot on “Hold Number 4” at the moment of
Patil’s accident – the record simply does not support a finding
that the defendants failed “to exercise ‘ordinary care under the
circumstances’”
by
keeping
the
ship
and
“Hold
Number
4”
in
sufficiently reasonable repair that an experienced worker like
Patil could safely perform his tests and move about the ship.
id.
See
Indeed, as Patil admitted at his deposition, he did not
actually see any hazardous substance on “Hold Number 4,” and
although such may be the nature of any latent danger, it bears
noting that Kedziora too noticed no such hazard.
Thus, as an
initial matter, it is doubtful that Patil could meet his burden of
demonstrating both the existence of a hazardous slippery substance
and the defendants’ negligence in failing to perceive and correct
it when Patil – an expert contractor charged with exercising his
own degree of reasonable care – failed to do so himself.
12
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 13 of 15
Assume, however, that Patil could prevail on that issue.
Would not the nature of Patil’s task aboard the AMBER LAGOON and
Patil’s relationship with the defendants render his turnover-duty
claim equally unviable?
Indeed, the law of this circuit provides
that once a vessel has been turned over to a covered worker, the
vessel owner may rely on the worker’s employer to take its own
statutorily required precautions.
See, e.g., id.
In this case,
Patil came aboard the AMBER LAGOON to perform specific tests on
the vessel’s hatch coverings, and the defendants reasonably left
him to do so in his own expert way.
The defendants had every right
to do so and had no general or overriding duty to ensure Patil’s
safety from an unknown hazard – which, if it even existed, was
hardly unreasonable and easily anticipatable on a ship.
This discussion may shroud an even more fundamental point,
however: the record contains precious little evidence that any
foreign agent in fact caused Patil’s slip in the first place.
As
the defendants note, the narrow nature of the turnover duty led
the Fifth Circuit to affirm a district court’s summary rejection
of largely indistinguishable claims in Kitchens v. Stolt Tankers
B.V., 657 F. App’x 248 (5th Cir. 2016) (per curiam).
There, the
court held that “[i]n light of his failure to produce any evidence
of a hazard on the walkway” in which he slipped and fell, the
13
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 14 of 15
plaintiff’s “conclusion that he slipped ‘because of accumulation
of veg oil or other foreign substances on the walkway . . .’ is
nothing
more
than
unsupported
speculation
and
therefore
insufficient to defeat a motion for summary judgment.”
Id. at 252
(citing Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003)
(“Unsubstantiated
assertions,
improbable
inferences,
and
unsupported speculation are not sufficient to defeat a motion for
summary judgment.”)).
Patil’s remaining arguments – namely, that there is a material
factual question as to whether the defendants were negligent in
blocking an access ladder to “Hold Number 4,” or in Kedziora’s
failure to alert Patil to an agent of which he had no knowledge,
or somehow direct or assist Patil – are unavailing under the
particularized legal regime Congress has created under the LHWCA.
*
*
*
Patil’s inability to state a plausible claim for relief on
the developed factual record at hand compels the Court’s dismissal
of his claims.
Accordingly, IT IS ORDERED: that the defendants’ motion for
summary
judgment
is
GRANTED
and
DISMISSED WITH PREJUDICE.
14
the
plaintiff’s
claims
are
Case 2:18-cv-06167-MLCF-DMD Document 38 Filed 12/09/20 Page 15 of 15
New Orleans, Louisiana, December 9, 2020
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
15
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