Sobrino-Barrera v. Anderson Shipping Co., Ltd. et al
Filing
79
AMENDED MEMORANDUM AND ORDER.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JUNIOR A. SOBRINO-BARRERA,
Plaintiff,
v.
ANDERSON SHIPPING CO., LTD.,
SOCOGEM SAM, and OLDENDORFF
CARRIERS GMBH & CO. KG,
Defendants.
5
§
§
§
§
§
§
CIVIL ACTION NO. H-09-3642
5
5
5
5
5
pending are Defendants Anderson Shipping Co., Ltd. Is and
SoCoGEM SAM'S Motion for Summary Judgment (Document No. 55) and
Motion to Strike Affidavit of Captain Joe Grace (Document No. 61),
and Defendant Oldendorff Carriers GmbH
&
Co. KG'S Motion for
Summary Judgment (Document No. 56) and Motion to Strike Affidavits
of Captain Joe Grace (Document No. 63). After having reviewed the
motions,
responses, replies, and
applicable
law,
the
Court
concludes for the reasons that follow that Defendants' motions for
summary judgment should be granted.
This Amended Memorandum and Order is to clarify that the
Court strikes both the June 10th and the June 16th Affidavits of
Captain Joe Grace, which, except for some new and expanded opinions
about dunnage in the June 16th Affidavit, are identical. Both
Affidavits constitute impermissible, untimely filed supplemental
reports not disclosed by Plaintiff until after expiration not only
of the cut-off date for submission of expert reports but also after
the cut-off date for completion of all pre-trial discovery. The
Final Judgment signed October 20, 2011, is unchanged.
I. Backsround
Plaintiff Junior A. Sobrino-Barrera ("Plaintiff") brings this
longshoreman's personal injury claim under section 905 (b) of the
Longshore Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C.
§
905 (b).
Plaintiff was employed by stevedoring company Gulf
Stream Marine and served as the gang supervisor on March 27, 2008,
when he and his gang, which included Jose Segura ("Segura") Daniel
,
Santa Cruz La Rosa ("La Rosa") , and two others, began unloading
bundled steel pipes from the M/V GRETA, which had docked at the
Greensport Terminal in Houston the day b e f ~ r e . ~
The pipes were
stowed fore and aft in the aft section of the hold, near the
bulkhead, and spanned the width of the hold.3 Plaintiff observed
that the pipes had been loaded into the hold in an uneven manner,
such that there was a "peak" or "hill" in the cargo.4
The
uncontroverted evidence is that Plaintiff had seen pipes stacked
Document No. 1 at 4 (Orig. Complt . ) . The cargo of steel
pipes and coils had been stowed on the M/V GRETA by a stevedoring
company at the port of Mumbai, India. See Document No. 55 at 4.
The pipes were approximately forty feet long and 4" to 7" in
diameter and were bundled in sets with seven to eight pipes in each
bundle, although there were also some loose pipes. Document No.
59, ex. A at 168: 20-21; id., ex. E-2 at 2. A load may consist of
4 or 5 bundles of pipe at a time. I . ex. E-2 at 3.
d,
Document No. 55, ex. K at App. 000266 (SeaTech Surveyor
Report) ("The Casing Seamless Steel Pipes bundles and Loose Pipes
for discharge at Houston were stowed fore & aft longitudinally in
a single row from side to side.").
Document No. 59, ex. A at 153:9-14 (Sobrino-BarreraDepo.).
like this before, and Plaintiff as gang supervisor formulated the
plan for their discharge without assistance from anyone else.
Plaintiff decided to begin the discharge process by leveling out
the highest part of the 'hill"
of pipes by first lifting those
highest on the stack, and he and his gang, according to La Rosa and
Segura, successfully discharged two or three loads of pipe.=
On each load, Plaintiff and his gang would secure a wire sling
under the forward end of the bundles of pipe, signal the crane
operator to lift it in order for the gang to place bands under the
forward end, and signal the crane to lower the b ~ n d l e . This same
~
procedure was used to attach the aft part of the bundle, which then
enabled the crane to lift the load out of the hold.7 According to
Plaintiff, when the crane lowered the second or third load onto the
existing hill of pipe after the forward section was secured with
the wire sling, one bundle rolled out from under the load and
rolled toward Plaintiff, who was standing near the forward port
corner of the stack.'
Plaintiff attempted to jump out of the way
of the oncoming pipe, but was able to get only his right leg free
before the rolling bundle pinned his left leg against the wall of
Document No. 59, ex. C at 10; ex. B at 15.
a, A
ex.
at 87:9-20; i . ex. E-2 at 2.
d,
I . ex. A at 87:9-20; id., ex. E-2 at 2.
d,
'
Depo . )
.
Document No. 59, ex. A at 154:l-20, 175:5-25 (Plaintiff
the hold, crushing it.' Plaintiff's left leg ultimately had to be
amputated below the knee.l o
11.
Summary Judqment Standard
Rule 56(a) provides that summary judgment should be rendered
'f
i
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."
FED. R. CIV. P. 56 (a).
The moving party must "demonstrate
the absence of a genuine issue of material fact ." Celotex Corp. v.
Catrett, 106 S. Ct. 2548, 2553 (1986).
Once the movant carries this burden, the burden shifts to the
nonmovant to show that summary j udgment should not be granted.
Morris v. Covan World Wide Movinq, Inc., 144 F.3d 377, 380 (5th
Cir. 1998).
A party opposing a properly supported motion for
summary judgment may not rest upon mere allegations or denials in
a pleading, and unsubstantiated assertions that a fact issue exists
will not suffice.
specific
facts
I . "[Tlhe nonmoving party must set forth
d
showing
the
existence
of
a
'genuine'
issue
concerning every essential component of its case." - "A party
Id.
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
materials in the record
' I . ex. A
d,
(A) citing to particular parts of
. . .;
at 154:ll-14.
Document No. 1 at 4.
or (B) showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party
evidence to support that fact."
cannot produce admissible
FED. R. CIV. P. 56(c) (1).
"The
court need consider only the cited materials, but it may consider
other materials in the record." - 56(c) (3).
Id.
In considering a motion for summary judgment, the district
court must view the evidence "through the prism of the substantive
evidentiary burden."
Anderson v. Liberty Lobby, Inc., 106 S. Ct.
2505, 2513 (1986). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986).
'f
I
the record, viewed in
this light, could not lead a rational trier of fact to findN for
the nonmovant, then summary judgment is proper.
Kelley v. Price-
Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) .
On the other
hand, if "the factfinder could reasonably find in [the nonmovant's]
favor, then summary judgment is improper."
Id.
Even if the
standards of Rule 56 are met, a court has discretion to deny a
motion for summary judgment if it believes that "the better course
would be to proceed to a full trial . "
2513.
Anderson, 106 S. Ct. at
111. Discussion
A.
Plaintiff's Late-Produced Sumlemental Expert R ~ D o ~ ~ s
Defendants move to strike the June 10, 2011 and the June 16,
2011 affidavits of
expert .I1
Captain Joe Grace
("Grace"), Plaintiff's
They assert that each affidavit either is an untimely
supplemental report
26 (a)(2)(B).
or
is
irrelevant.
See
FED.
R. CIV. P .
The enlarged cut-off date for Plaintiff to submit
expert reports (other than economists) was February 25, 2011, and
the cut-off date for all discovery was April 22, 2011.
Plaintiff
replies that the June 10th and June 16th affidavits are not
supplemental reports but rather are submitted to authenticate its
expert's timely-filed original report, dated February 15, 2011.
Rule 37(c) (1) provides that a party who fails to disclose
documents in accordance with Rule 26 "is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless." FED. R. CIV. P. 37(c) (1); see also Tex.
A&M Research Found. v. Maqna Transp., Inc., 338 F . 3d 394, 402 (5th
Cir. 2003) (noting four factors in determining whether a violation
of Rule 26 was harmless, including the importance of the evidence,
the prejudice to the opposing party, and the explanation given by
the party seeking to introduce the evidence).
l1
See Document No. 61 at 2-5; Document No. 63 at 1-4.
6
Courts
routinely
reject
untimely
"supplemental"
expert
testimony where the opinions are based upon information available
prior to the deadline for expert disclosures.
See Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572-73
(5th Cir. 1996) (disallowing expert testimony where party disclosed
the information late and did not give a persuasive reason for its
failure to comply with discovery order); Avance v. Kerr-McGee
Chem., LLC, No. 5:04CV209, 2006 WL 3484246, at *7 (E.D. Tex.
Nov. 30, 2006) (striking an expert affidavit which was submitted to
rebut a summary judgment motion when affidavit contained new
opinions that were different from the earlier Rule 26 report and
plaintiffs did not demonstrate "substantial justification" for
failing to file the opinions timely); Cleave v. Renal Care Grg.,
I
.
Inc
No. Civ. A. 2:04CV161-P-A,2005 WL 1629750, at *1 (N.D.Miss.
'
A
July 11, 2005) (
new expert affidavit which is submitted to rebut
a summary judgment motion should be stricken if the new opinions
differ from the earlier Rule 26 report." (citation omitted)).
A comparison of Grace's affidavits to his February 15, 2011
report discloses that he departs from and expands upon his original
report in numerous material respects.
For example, Grace for the
first time renders an opinion that stowing pipe 'hard
aft to the
bulkhead" is an abnormal practice, from which he further opines
that a stevedore in Houston would not expect or recognize such as
an abnormal and unsafe practice.''
Also, Grace opines that the
position of the pipe that injured Plaintiff relative to the aft
bulkhead was not "open and obvious" to Plaintiff because it was
underneath another pipe, which is a new conclusion.''
Grace newly
opines that pipe stowed "hard aft" to the bulkhead is "much more
likely, almost certain," to shift diagonally during the unloading
process, a putative quantification of risk not contained in his
original report.14 Additionally, for the first time he claims that
his report, evidently referring to his original report as well, is
the
"product of
reliable principles and
standards generally
accepted and utilized by experts," which he recites under the subtitle of "methodology," but without detailing any methodology,
principles, or standards.
As these and other assertions and
opinions are new, and Plaintiff has given no explanation for his
failure to comply with Rule 26(a) or shown that their addition
would be "justified and harmless," the Affidavits are both STRICKEN
and will not be considered by the Court, except for what Plaintiff
describes as their primary purpose, namely, to "prove[] up the
[original] expert report of Captain Grace."
Cleave, 2005 WL
1629750, at *l.
Cf. Document No. 59, ex. E at 5 and Document No. 60, ex. E
at 5 with Document No. 59, ex. E-2.
l3
See Document No. 59, ex. E at 4, 5; Document No. 60, ex. E
at 4-5.
l4
- at
Id.
5.
B. Vessel Liability under Section 905(b)
Plaintiff seeks recovery from ~efendantsAnderson Shipping
Co., Ltd. , SoCoGEM SAM
Carriers GmbH
&
(together, 'Anderson") , and Oldendorf f
Co. ("Oldendorf ) ,l5 alleging that they breached
f"
the duties owed to him under section 905(b) of the LHWCA.16
See
Scindia Steam Nav. Co., Ltd. v. De Los Santos, 101 S. Ct. 1614
(1981).
Section 905(b) gives a longshore worker the right to
recover damages
from
a
negligence of a vessel."
vessel
for
injuries
See 33 U.S.C.
§
"caused by
905 (b).
the
The potential
negligence of a vessel under section 905(b) of the LHWCA has been
defined in terms of the breach of any of three duties, commonly
called the "Scindia" duties : (1) the "turnover duty," which applies
if the vessel fails to turn over a reasonably safe ship or, on
turning over the ship, fails to warn of hidden defects of which it
knew or should have known; (2) the "active control duty," which
applies if the vessel fails to remedy hazards under the active
control of the vessel; and (3) the 'duty
to interveneIN which
l5 Anderson Shipping Co., Ltd. is the owner of the M/V GRETA,
and SoCoGEM Sam is the vessel's technical manager or operator. See
Document No. 55 at 1 n.1; Document No. 56 at 1. Oldendorf f Carriers
GmbH & Co. K.G. was the vessel sub-charterer. See Document No. 56
at 1. Section 902(21) of the LHWCA defines the term "vessel" to
include vessel owners, operators, and charterers.
33 U.S.C.
§ 902 (21). Accordingly, all of the named defendants are subject to
section 905 (b). For simplicity, the term 'vessel" will be used to
refer to all Defendants when discussing the duties owed to a
longshoreman under section 905(b).
l6
Document No. 1 at 5-6.
applies if the vessel
fails to intervene in the stevedore's
operations when it has actual knowledge of the hazard and when the
stevedore, in the exercise of obviously improvident judgment, means
to work on in the face of the hazard and therefore cannot be relied
on to remedy it.
Howlett v. Birkdale Shippins Co., S.A., 114 S.
Ct. 2057, 2063 (1994) (citing Scindia, 101 S. Ct. at 1622-23).
Turnover Duty
The "turnover duty" implicates two responsibilities of the
vessel: (1) to exercise ordinary care under the circumstances to
turn over the ship and its equipment in such a condition that an
expert stevedore can carry on cargo operations with reasonable
safety; and (2) to warn the stevedore of latent defects known (or
that should have been known) to the vessel.
I . at
d
turnover duty does not include dangers that are
2064.
The
(1) open and
obvious; or (2) something a reasonably competent stevedore should
anticipate encountering.
I.
d
The plaintiff bears the burden of
proving that the hazard could not have been anticipated by the
stevedore.
the
I .at 2067
d
alleged
hazard
("
[Plaintiff1 must further demonstrate that
would
have
been
neither
obvious
to
nor
anticipated by a skilled and competent stevedore at the discharge
port." )
.
If the defect in the cargo stow is open and obvious to
the stevedore, the vessel has no liability for breach of either the
turnover duty to warn or to furnish a reasonably safe ship.
Kirksev v. Tonshai Maritime, 535 F.3d 388, 397 (5th Cir. 2008);
10
Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246-47 (5th ~ i r .
1997) (reversing judgment for stevedore and holding that the defect
in the slewing brake of the crane was open and obvious because the
crane operator testified that
he
could
tell
that there was
something wrong with the braking mechanism "as soon as he began
operating the crane"); Pimental v. LTD Canadian Pac. Bul, 965 F.2d
13, 16 (5th Cir. 1992) (holding that the greasy passageway was open
and obvious to a stevedore because two crane operators testified
that the oil and grease were open and obvious to them).
The facts on summary judgment in this case bear a striking
similarity to those upon which summary judgment was granted for the
defendants in Clav v. Daiichi S h i ~ ~ i n q74 F. Supp. 2d 665 (E.D.
.
La. 1999), affirmed by the Fifth Circuit in an unpublished opinion
"for essentially the reasons stated by the district court in its
Order and Reasons." Clav v. Daiichi Chhuo Shiwwincr (America) Inc..
2000 WL 1701761 (5th Cir. 2000).
In Clav, the plaintiff was a
longshoreman removing loose steel pipes from the No. 1 Hold in a
vessel at the Port of New Orleans. 74 F. Supp. 2d at 667. Some or
all of the pipes were stowed against the shiprs bulkhead and had to
be "broken out" to be discharged.
While lifting a loose pipe in
order to place a pipe hook in the lower end, the pipe hook slipped
out of
the pipe end, allowing the pipe to roll toward the
plaintiff, amputating his left leg. The plaintiff maintained that
the stowage of the steel pipes against the bulkhead constituted an
unreasonably dangerous condition preventing discharge of the pipe
with reasonable safety, and sought to hold the vessel and its owner
responsible based on breach of the turnover duty, the active
control duty, and the duty to intervene.
The trial court found
that the position of the pipes against the bulkhead "was an open
and obvious condition and defendants did not breach their turnover
duty." Clay, 74 F. Supp. 2d at 673. Indeed, up until the time of
the accident-- just as in the instant case--there was no evidence
that the longshoreman had made any complaint about the stowage of
the cargo.
Moreover, the plaintiff in Clay, as here, failed to
produce evidence that the conditions that caused the harm "were any
less obvious to the vessel than to the longshoremen, or that the
conditions were otherwise hidden or latent."
Id.
- at 673. Judge
Eldon E. Fallon carefully reviewed the United States Supreme Court
decisions in Howlett and Riqqs, and reached a conclusion that the
Fifth Circuit recently quoted with approval Kirksey v. ~onshai
Maritime, as follows:
A fair reading of these opinions compels the conclusion
that the open and obvious defense is applicable to the
turnover duty to provide a safe vessel and that a vessel
owner has no legal duty to prevent or alleviate an unsafe
condition in the cargo hold resulting from an improper
stow when the condition is open and obvious to the
longshore workers. While this result seems harsh, it is
motivated by the conviction that a contrary result would
put all costs on the party who is least able to avoid the
accident: the vessel. More importantly, it is believed
that imposing liability on the vessel owner would
completely remove the incentive to act with caution from
the party who is in the best position to avoid accidents:
the stevedore.
535 F.3d 388, 395 (5th Cir. 2008)(quoting Clay, 74 F. Supp. 2d at
671).
The Fifth Circuit's decision in Kirksev is also close in
In Kirksey, the district court at trial had found that the
point.
"overwhelming proximate cause" of the stevedore's loss of a leg and
other
serious
injuries was
"the dangerous
condition of
the
stow--the leaning coils, the inadequate dunnage, the lack of
uniformity in the stow," and adjudged liability against the vessel
owner/operator and the charterer of the vessel. Kirksey, 535 F.3d
at 391.
The Fifth Circuit found that the record supported the
district court's version of the accident, but reversed and rendered
judgment in favor of the defendants, holding that because "the
defect in the cargo stow found by the district court was open and
obvious to the stevedore, the vessel had no turnover duty to warn
against the defect or to correct the unsafe condition."
Sd. at
397.
So it is here. Plaintiff contends that there were defects in
the
stow that
constituted unreasonably dangerous conditions:
(1) drop stowage of the pipes that created unevenness and a 'hill"
in the cargo; (2) inadequate dunnage; and ( 3 ) stowage of the steel
pipes against the bulkhead.
Because Plaintiff fails to raise a
fact issue that any of these defects in the stowage was not "an
open and obvious condition and one that a reasonable longshoreman
should have seen," the Court finds no liability under the turnover
duty.
Greenwood, 111 F.3d at 1246.
First, the drop stowage of the pipes that created the hill in
the
cargo was
open
and
obvious.
Plaintiff
and
two other
longshoremen who were in the hold on the day of the accident all
testified that the uneven stowage of the pipes was readily apparent
to all of them before they started working.17 Defendants owed no
duty to Plaintiff regarding this open and obvious condition.
See
Greenwood, 111 F.3d at 1246; Kirksey, 535 F.3d 392.
Likewise, the summary judgment record reveals that Plaintiff
was aware of the lack of dunnage, or wood, in the stowage.
Plaintiff testified that from the start he noticed that there was
no dunnage and no cables lashing the pipes together: "[Wlhen I
started at the hold, there was nothing, neither wood or anything
tied."I8
La Rosa likewise testified that there was no dunnage
separating the pipe before they lifted it . I 9
The lack of dunnage
separating the pipes was an open and obvious condition.
See
Greenwood, 111 F.3d 1246; Clay, 74 F. Supp. 2d at 672.
See Document No. 59, ex. A at 97:6-99:7 (Plaintiff Depo.);
id., ex. B at 24:18-25:9 (Segura Depo.); id., ex. C at 15:9-15 (La
Rosa Depo.) .
l7
See i . ex. A at 119:17-19; see also id., ex. A at 123:7d,
11, 125:6-7.
l9
I . ex. C at 15:16-20.
d,
Third, the stowage of the pipes against the bulkhead was also
open and obvious.
Plaintiff saw the configuration of the pipes
from above the cargo hold before entering it.20 Indeed, Plaintiff
testified that, as the gang supervisor, it was his job to assess
the situation with the stowage of the pipes in order to formulate
a plan for the safe discharge of the bundles from the vessel, and
that he indeed did so.21 He testified that the first thing he did
was to "check the cargo and see how it is."22 Moreover, the
photographs taken from above the hold before unloading show that
the pipes were stowed in the aft section of the hold in proximity
to the bulkhead.23 See, e.g., Kirksey, 535 F.3d at 391 (referring
to photographs taken before the unloading operations began as
indication that the stowage was improper).
When Plaintiff and
others in his gang descended into the hold and were standing on the
pipes, and when they began placing wire slings/breakout wires under
the forward and the aft ends of the bundles first to be removed,
they necessarily saw the proximity of the pipe to the bulkhead. In
fact, they used the bulkhead to their advantage.
Longshoreman
Segura, working under Plaintiff's supervision, testified that they
20 See Document No. 59, ex. A at 120:23-24 ("We take a look at
the hold. From the top we look down, and then we start coming down
the stairs.") .
id., ex. A at 98:2-99:18.
21
See
22
See id., ex. A at 130:lO.
23
See id., ex. E-3 at OLD-00319.
15
first lifted the forward end of the pipes because the bulkhead
would provide a backstop to prevent pipes from sliding.24 On this
summary judgment record, the Court finds, as did Judge Fallon in
Clay, "the position of the pipes against the bulkhead was an open
and obvious condition and defendants did not breach their turnover
duty."
Clay, 74 F. Supp. 2d at 673.
In sum, there is no summary judgment evidence that the
ascribed defects in the stow, the "hill" or "peak" in the stow of
the pipes, the absence or inadequacy of dunnage, or the proximity
of the pipes against the bulkhead, were not open and obvious
conditions.2 5
Moreover, there is no summary judgment evidence that
the hazards associated with the claimed defects in the stow should
24
See Document No. 59, ex. B at 34:8-12.
25 Plaintiff Is expert Captain Grace in his Report described
these defects in stowage as the pipes being 'peaked up," improper
dunnage, and stowage "hard to aft in bulkhead." Document No. 59,
ex. E-2 at 3-4. His conclusion, however, is that such "improper
stowage . . . is the responsibility of the Master of the vessel
and/or charterers and therefore negligence on the part of
defendants ." I . As observed above, given that these alleged
d
defects in the stowage were open and obvious, as a matter of law
there is no breach of the vessel's turnover duty, and no negligence
on the part of Defendants for which they can be held liable under
section 905 (b). "We have repeatedly held that [Rule 704 (a)1 does
not allow an expert to render conclusions of law." Sna~-Drape,
Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); see also, Goodman
v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009) ("[Aln expert
may never render conclusions of law."); Owen v. Kerr-McGee Corp.,
698 F.2d 236, 240 (5th Cir. 1983) ('\ [A]
llowing an expert to give
his opinion on legal conclusions to be drawn from the evidence both
invades the court's province and is irrelevant."). Captain Grace's
opinion that the vessel was negligent raises no genuine issue of
material fact.
not have been anticipated by a skilled and competent stevedore, or
that the vessel had any superior knowledge to that of a skilled and
competent stevedore about the stow or its hazards.
Accordingly,
"the vessel had no turnover duty to warn against the defect or to
correct the unsafe condition."
2.
Kirksev, 535 F.3d at 397.
Active Control Duty
The second Scindia duty requires that a vessel exercise
reasonable care over the areas of the vessel that remain under its
active control.
101 S. Ct. at 1622.
control'
an
over
area
of
the
"A vessel owner has 'active
ship
and
retains
primary
responsibility for the safety of workers in that area if: (1) the
vessel's
crew retained substantial control over the area; or
(2) the vessel's crew substantially interfered, by invitation or
otherwise, with the contractor's exercise of exclusive control by
actively intervening in the area." Gonzalez v. United States, 588
F. Supp. 2d 747, 754 (S.D. Tex. 2008) (Hanen, J.) (citing Davis v.
Portline Transportes Mar. Internacional, 16 F.3d 532, 541 (3d Cir.
1994)); see also Manuel v. Cameron Offshore Boats, Inc., 103 F.3d
31, 34
(5th Cir. 1997) (no active control where there was no
evidence that the vessel crew was active in the area where the
stevedores were working).
Plaintiff maintains that Defendants breached this duty because
the Master wanted the pipes stowed against the bulkhead, relying
upon a "Final Cargo Plan," which bears the inscription, "Master
wanted to load pipes against the aft bulkhead."26 As observed in
Clay, however,
"
[tlhe vessel's role in dictating where the cargo
will be stowed does not in itself justify imposing liability on the
74
vessel owner." C l a ~ , F. Supp. 2d at 673 (citing Howlett, 114 S.
Ct . at 2057) .
Howlett expressly recognized that
"
[m]
ost vessels
take responsibility, for instance, for preparing a stowage plan,
which governs where each cargo will be stowed on the ship."
Howlett, 114 S. Ct. at 2066. The Court continued:
But it is the stevedore, an independent contractor hired
for its expertise in the stowage and handling of cargo,
that is charged with actual implementation of the plan.
To impose a duty upon vessels to exercise scrutiny over
a cargo loading operation to discover defects that may
become hidden when the stow is complete would require
vessels to inject themselves into matters beyond their
ordinary province. . . . The proposed rule would
undermine Congress' intent in § 5 (b) to eliminate the
vessel's nondelegable duty to protect longshoremen from
the negligence of others. See Scindia Steam, 451 U.S.,
at 168-169, 101 S. Ct., at 1622-1623.
I . (internal citations omitted) ; see also Breaux v. United States,
d
No. 95-2924, 1996 WL 626328, at *4 (E.D. La. Oct. 23, 1996) (a
prerequisite to vessel liability under the second ~cindiaduty is
Defendants curiously challenge the authenticity of this
document, but it is included in what Anderson's attorney Richard L.
Gorman authenticates in his Declaration as a "true and correct copy
of the Loading Tally and Stowage Supervision Survey Report (Bates
numbered OLD-00247-278)conducted on behalf of Charterer Oldendorff
Carriers GmbH & Co."
Anderson's Motion for Summary Judgment
(Document No. 53, ex. L) .
26
active control by the vessel over the actual methods and operative
details of the longshoreman's work) .
Here, there is no summary
judgment evidence that the Master took active control of the
onloading process in Mumbai and directed the stevedore's actual
implementation of the stowage plan.
Not only is there no summary judgment evidence that the Master
took operational control of the loading of the vessel, the summary
judgment evidence is uncontroverted that the Master did not do so
in offloading at the Port of Houston.
Plaintiff and longshoreman
La Rosa both testified that the only people directing the discharge
of the pipes that day were employees or representatives of Gulf
Stream.27 Plaintiff further admitted in his deposition that "no one
in the crew told [him] that [he] had to do this or thatIuz8
and
"[nlo one was telling [him] what [he] had to do1/ from the ship.29
On this record, the vessel did not have an active control duty to
Plaintiff .
See Manuel, 103 F.3d at 34 (vessel owner had no duty to
remedy hazards arising from an area where the crew was not active
and where it did not "retain[] operational control").
27
Document No. 59, ex. A at 99:17, 113:17; id., ex.
26:15-28:22.
28
See id., ex. A at 99:17.
29
See i . ex. A at 113 :17.
d,
19
C
at
3.
Duty to Intervene
Plaintiff contends that Defendants had a duty to intervene to
prevent Plaintiff and the other longshoremen from engaging in an
unreasonably dangerous job.
The Scindia "duty to intervene"
imposes liability upon a vessel owner if the owner has 'actual
knowledge both of a hazardous condition and that the stevedore, in
the exercise of
'obviously improvident' judgment, intends to
continue work in spite of that condition." Gay v. Barqe 266, 915
F.2d 1007, 1012 (5th Cir. 1990) (emphasis in original) .
"is narrow and requires 'something more'
This duty
than mere shipowner
knowledge of a dangerous condition." Sinsleton v. Guanqzhou Ocean
Shippinq Co., 79 F.3d 26, 28 (5th Cir. 1996) (quoting Futo v. Lykes
Bros. Steamship Co., 742 F.2d 209, 215 (5th Cir. 1984))
.
[I]n
‘
order for the expert stevedore's judgment to appear 'obviously
improvident,' that expert stevedore must use an object with a
defective condition that 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." Greenwood, 111
F.3d at 1249 (citations omitted) ; see also Clay, 74 F. Supp. 2d at
674. Further, '[tlhe shipowner, within limits, is entitled to rely
on the stevedore, and owes no duty to the longshoreman to inspect
or supervise the cargo operations." Scindia, 101 S. Ct. at 1624-25
(emphasis in original); Greenwood, 111 F.3d at 1249.
In Scindia, both the vessel and the stevedore knew that a
winch used in the loading operations had malfunctioned on and off
for two days prior to the longshoreman's injury.
101 S. Ct. at
1618. The vessel further knew that the stevedore intended to use,
and did use, the defective winch even though its braking mechanism
was faulty.
I . at 1626. The vessel did not intervene to stop
d
operations or to fix the winch.
I .at 1618. On one of the loads,
d
the winch failed, causing sacks of wheat to fall on and injure the
longshoreman.
I . The Supreme Court held that if the stevedore's
d
judgment was obviously improvident to the vessel, and the vessel,
if it knew of the defect, should have realized that the condition
presented an unreasonable risk, then the vessel had a duty to
intervene to stop the loading operations and to fix the winch.
I.
d
at 1626.
Unlike Scindia, there is simply no evidence in this case that
any of the vessel's crew knew that the stowage of the pipes created
such an unreasonable risk to Plaintiff and his gang that the
stevedores1 commencement of offloading operations was "obviously
improvident" in the face of danger.
See Clay, 74 F. Supp. 2d at
674 (finding that pipes stowed hard aft to the bulkhead did not
present a condition that was so hazardous as to be "obviously
improvident" such that the vessel had a duty to intervene); see
also Greenwood, 111 F.3d at 1248-49.
Therefore, Defendants are
entitled to summary judgment that they did not have a duty to
intervene in this case.
21
C.
Contractual Duty
In addition to a breach of the duties under Scindia, Plaintiff
alleges that Defendant Oldendorff breached its contractual duties
to Plaintiff "properly [to] stow and place dunnage in the M / V
GRETA."30 Plaintiff points to the charter party agreement between
Cosco Bulk Carrier Co., Ltd., owners of the M / V GRETA, and Armada
(Singapore) Pte., Ltd., whom Oldendorff asserts and Plaintiff does
not dispute is a subcharterer of ~ldendorf . 31
f
It is true, as
Plaintiff points out, that the Supreme Court in Scindia noted that
it "may also be that the contract between the stevedore and the
shipowner will
dispute."
have
provisions
specifically bearing
101 S. Ct. at 1626 n.23.
on
the
However, as noted, the
contract upon which Plaintiff relies is a Time Charter between the
owners of the M / v
Greta and Oldendorf f' s subcharterer, not between
Oldendorff and the stevedore.32Three circuit courts, including the
Fifth Circuit, have held that a clause in a charter party agreement
nearly identical to the one relied on by Plaintiff "acts as an
indemnification clause between the owner and the time charterer and
does not affect the duties owed to longshoremen."
30
See
Robinson v.
Document 60 at 11.
31
See Document No. 55, ex. N at OLD-00517 (Time Charter
between Cosco Bulk Carrier Co., Ltd., owners of the M / V GRETA, and
Armada (Singapore) Pte., Ltd.).
32
See
id., ex.
N
at OLD-00517.
Orient Marine Co., Ltd., 505 F.3d 364, 366 (5th Cir. 2007) (clause
in time charter agreement did not create a new duty for charterer
to protect stevedore from harm from improperly stowed cargo); see
S.A., 924 F.2d 1539,
also Car~enterv. Universal Star S h i ~ ~ i n q ,
1545 (9th Cir. 1991) (same); Fernandez v. Chios Shippins Co., 542
F.2d 145, 152-53 (2d Cir. 1976) .
Accordingly, Plaintiff's claim
that Oldendorff owes it a contractual duty properly to stow cargo
in the M/V GRETA fails as a matter of law.
IV. Order
Accordingly, it is
ORDERED that Defendantsr Motions to Strike Affidavits of
Captain Joe Grace (Documents No. 61 and 63) are both GRANTED,
except only for the limited purpose of authenticating Captain
Grace's original report; and it is further
ORDERED
that
Defendants'
Motions
for
Summary
Judgment
(Documents No. 55 and 56) are both GRANTED, and Plaintiff's claims
are DISMISSED on the merits.
The Clerk will enter this Order and send a copy to all counsel
of record.
SIGNED at Houston, Texas on this
day of October, 2011.
WERLEIN, JR .
ES DISTRICT JUDGE
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