HAMILTON v. TARGA TRANSPORT LLC et al

Filing 47

MEMORANDUM AND ORDER Defendants Targa Transport LLC and Targa ResourcesLLCs Motion for Summary Judgment on all of Plaintiffs Claims [Doc. # 41] isGRANTED. All claims asserted by Plaintiff in this case against Targa TransportLLC and Targa Resources L LC are DISMISSED WITH PREJUDICE. It isfurtherORDERED that Defendants Targa Transport LLC and Targa ResourcesLLCs Motion to Exclude the Opinions of Henry Woods, Plaintiffs PurportedMarine Expert [Doc. # 45] is GRANTED. It is further ORDERED that Defen dants Targa Transport LLC and Targa ResourcesLLC shall a file a motion for final judgment and attorneys fees, which shallinclude the amount of attorneys fees for which it is seeking indemnification fromDefendant TPC Group Inc., with documentary support, on or before May 21, 2018.Defendant TPC Group Inc. must file any opposition to the motion for finaljudgment within 21 days of the motion for final judgment being filed.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES HAMILTON,
Plaintiff,
v.
TARGA TRANSPORT LLC,
TARA RESOURCES LLCA, and
TPC GROUP INC.,
Defendants.

§
§
§
§
§
§
§
§
§

April 30, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-2614

MEMORANDUM AND ORDER
Currently pending before the Court in this vessel negligence case is
Defendants Targa Transport LLC and Targa Resources LLC’s (collectively,
“Targa”) Motion for Summary Judgment on all of Plaintiff’s Claims (the “SJ
Motion”) [Doc. # 41]. Plaintiff Charles Hamilton filed a timely response, to which
Defendant replied. See Plaintiff’s Opposition to Targa’s Motion for Summary
Judgment (the “Response”) [Doc. # 43] and Targa’s Reply to Plaintiff’s
Opposition to the SJ Motion (the “Reply”) [Doc. # 44]. Also pending before the
Court is Targa’s Motion to Exclude the Opinions of Henry Woods, Plaintiff’s
Purported Marine Expert (the “Exclusion Motion,” and, together with the SJ

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

Motion, the “Motions”) [Doc. # 45].1 The Motions are now ripe for decision.
Having considered the parties’ briefing, the applicable legal authorities, and all
appropriate matters of record, the Court concludes that both the SJ Motion and the
Exclusion Motion should be granted.
I.

BACKGROUND
Unless otherwise indicated, the following facts are not in genuine dispute for

purposes of Targa’s Motions.
Defendant Targa Transport LLC is the owner of the barge CHEROKEE.
Subsequent references in this Memorandum and Order to “Targa” refer only to
Defendant Targa Transport LLC.2 On January 23 and 24, 2015, the CHEROKEE
was docked at a facility owned and operated by Defendant TPC Group Inc.
(“TPC”) 3 near Houston, Texas.

1

Plaintiff filed a response to the Exclusion Motion. See Plaintiff’s Response to
Targa’s Motion to Exclude Opinions of Henry Woods [Doc. # 46]. Targa did not
file a reply and the deadline to do so has expired.

2

Plaintiff’s negligence claims against Targa are premised on ownership of the
CHEROKEE. The parties do not dispute that Motion should be granted with
respect to all claims against Defendant Targa Resources LLC, which does not own
the vessel. See Response [Doc. # 43], p.1 (“Defendants’ Motion admits Targa
Transport is the Owner. Plaintiff does not oppose this Court granting summary
judgment as to Targa Resources.” (emphasis in original omitted)). Accordingly,
the SJ Motion is granted with respect to all of Plaintiffs claims against Defendant
Targa Resources LLC. All such claims are dismissed with prejudice.

3

In his original complaint, Plaintiff asserted claims for negligence and gross
negligence against TPC. By Memorandum and Order [Doc. # 10], dated January
(continued…)
2

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

Plaintiff is a tankerman with responsibility for loading and unloading cargo
onto barges such as the CHEROKEE. Prior to January 2015, Plaintiff had been
working as a tankerman for 15 years. During his tenure as a tankerman, Plaintiff
had experience loading and unloading various types of cargo, including oils,
chemicals and water. Plaintiff also had experience working as a tankerman in
different climates and in different geographies, including cold weather ports and
the Gulf of Mexico. In January 2015, Plaintiff was an employee of non-party SGS.
On January 23, 2015, Plaintiff arrived at the CHEROKEE between 8:00 and
9:00 p.m. to begin his tankerman duties. When Plaintiff arrived, he relieved
another tankerman, who had supervised the loading of approximately half of the
cargo that the CHEROKEE was scheduled to take on. Plaintiff began his job by
conducting a walk-around inspection of the barge. He has no recollection of
seeing frost on the deck of the barge or writing down any hazardous conditions
during his inspection.

(continued…)
19, 2017, the Court dismissed all claims against TPC with prejudice on the basis
that TPC owed no duties to Plaintiff, who was injured on the CHEROKEE, and
not on dock owned by TPC. TPC remains a party to this case by virtue its
contractual obligation to indemnify Targa against Plaintiff’s claims in this case.
See Memorandum and Order [Doc. # 28], dated October 12, 2017 (granting
Targa’s motion for summary judgment on the question of whether the time charter
agreement between TPC and Targa required TPC to indemnify and defend Targa
against the claims Plaintiff asserts in his amended complaint in this case).

3
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

At approximately 2:00 a.m. on January 24, 2015, Plaintiff slipped and fell on
the deck of the CHEROKEE after climbing down stairs he had accessed for the
purpose of checking the barge’s cargo level. Prior to his accident, Plaintiff had
gone up and down those same stairs at least three separate times without incident.
According to Plaintiff, the temperature, which had decreased gradually from the
time he arrived at work, was in the “low 30s” at the time of his accident.
After his fall, Plaintiff stood up and looked down at the deck with his SGSissued flashlight. Plaintiff contends he saw frost on the deck, but did not see any
non-skid coating or material on the deck’s surface.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of

summary judgment against a party who fails to make a sufficient showing of the
existence of an element essential to the party’s case, and on which that party will
bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton
Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th
Cir. 2002). Summary judgment “should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter

4
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

of law.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322–23; Weaver v. CCA
Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify
areas essential to the non-movant’s claim in which there is an “absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349
(5th Cir. 2005). The moving party, however, need not negate the elements of the
non-movant’s case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th
Cir. 2005). The moving party may meet its burden by pointing out “‘the absence
of evidence supporting the nonmoving party’s case.’” Duffy v. Leading Edge
Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 913 (5th Cir. 1992)). If the moving party meets its initial
burden, the non-movant must go beyond the pleadings and designate specific facts
showing that there is a genuine issue of material fact for trial.
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for
the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s
5
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

burden is not met by mere reliance on the allegations or denials in the nonmovant’s pleadings. See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d
531, 545 n.13 (5th Cir. 2002), overruled in part on other grounds by Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009). Likewise,
“conclusory allegations” or “unsubstantiated assertions” do not meet the nonmovant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530
F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific
facts that show “the existence of a genuine issue concerning every essential
component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343
F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In
the absence of any proof, the court will not assume that the non-movant could or
would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence.
See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing
Reaves Brokerage Co., 336 F.3d at 412–413). The Court is not required to accept
the nonmovant’s conclusory allegations, speculation, and unsubstantiated
assertions which are either entirely unsupported, or supported by a mere scintilla of
evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413).

6
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

Affidavits cannot preclude summary judgment unless they contain
competent and otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4) (“An
affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated”); Love v.
Nat’l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000); Hunter–Reed v. City of
Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003). A party’s self-serving and
unsupported statement in an affidavit will not defeat summary judgment where the
evidence in the record is to the contrary. See In re Hinsely, 201 F.3d 638, 643 (5th
Cir. 2000).
Finally, although the Court may consider all materials in the record when
deciding a summary judgment motion, “the court need consider only the cited
materials.” FED. R. CIV. P. 56(c)(3). “When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to the
motion for summary judgment, that evidence is not properly before the district
court. 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.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal
citations and quotation marks omitted).
III.

ANALYSIS
7

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

Plaintiff asserts a single cause of action against Targa in his complaint:
vessel negligence pursuant to Section 905(b) of the Longshore and Harbor
Workers Compensation Act (“LHWCA”).4

“It is now well accepted that

shipowners owe three narrow duties to longshoremen: (1) a turnover duty, (2) a
duty to exercise reasonable care in the areas of the ship under the active control of
the vessel, and (3) a duty to intervene.” Kirksey v. Tonghai Mar., 535 F.3d 388,
391 (5th Cir. 2008) (citing Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98
(1994)). These three duties, which trace their origins to the seminal case of
Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981), collectively are
known as the Scindia duties. The Court addresses the merits of Plaintiff’s claims
with respect to each duty in turn.
A.

Turnover Duty

The first Scindia duty, the turnover duty, applies to the shipowner’s
obligation before or at the commencement of the stevedore’s activities. Kirksey v.
Tonghai Mar., 535 F.3d 388, 392 (5th Cir. 2008). It consists of two distinct, but
related obligations. First, the owner owes a duty to exercise ordinary care under
the circumstances to turn over the ship and its equipment in such condition that an
expert and experienced stevedore can carry on stevedoring operations with

4

Plaintiff’s First Amended Complaint [Doc. # 12], ¶ 15.

8
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

reasonable safety. Id.

Second, the owner owes a duty to warn the stevedore of

latent or hidden dangers that are known to the vessel owner or should have been
known to it. The duty to warn of hidden dangers, however, is a narrow one. It
does not include dangers which are either: (1) open and obvious or (2) dangers a
reasonably competent stevedore should anticipate encountering. Id.5
In his deposition and pleadings, Plaintiff identifies three potential sources of
a turnover duty breach by Targa: the presence of frost on the deck where Plaintiff
fell, insufficient lighting on the CHEROKEE, and the absence of non-skid material
in the area where Plaintiff suffered his accident.

The Court considers these

assertions seriatim.
1.

Frost on the CHEROKEE’s Deck

Plaintiff testified at his deposition that after slipping and falling, he stood up,
looked down, and saw frost on the deck.6 A necessary predicate to establishing a
breach of the turnover duty is evidence that the alleged danger or harmful
condition existed “before or at the commencement of the stevedore’s activities.”

5

The defense that a danger was “open and obvious” also applies with respect to the
first turnover duty. See Kirksey, 535 F.3d at 395 (“Given the Howlett Court’s
clear language strictly limiting the vessel’s turnover duty to warn to latent defects
and dangers, it makes no sense to say that the vessel is nevertheless liable to the
longshoremen for breach of the duty to turnover a safe ship based on an obvious
defect against which it had no duty to warn.”).

6

Hamilton Dep. [Doc. # 41-2], 92:24-93:03.

9
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

Assuming arguendo the presence of frost on the deck of a barge in winter time is a
hazard or danger, Plaintiff cites no evidence from which a reasonable fact finder
could conclude that there was any frost on the CHEROKEE before or at the
commencement of the stevedore’s, i.e., SGS’s, activities. Before his accident,
Plaintiff conducted a walk-around of the barge to look for “trash or tripping
hazards,”7 and traversed the area where he had his accident at least three times.8
However, Plaintiff had no recollection of seeing any frost on the CHEROKEE
before he slipped and injured himself. Plaintiff’s accident occurred 5 to 6 hours
after he started his shift and at least that number of hours after the barge was turned
over to SGS for stevedoring activities. Absent evidence that frost was present at
the time the CHEROKEE was turned over for cargo operations, Plaintiff cannot
establish that the vessel and its equipment were not in such condition that an expert
and experienced stevedore could carry on stevedoring operations with reasonable
safety or that there was a latent or hidden danger of which Targa was required to
warn Plaintiff.9 Therefore, the SJ Motion is granted regarding Plaintiff’s turnover
7

Id. at 100:13-101:08.

8

Id. at 65:25-67:20.

9

To the extent Plaintiff argues that Targa had a duty to warn Plaintiff that frost
could form on the barge at certain temperatures, the Court rejects this theory. A
reasonably competent stevedore should anticipate that frost will form on a vessel,
which is in the water, at night in near freezing temperatures during the month of
January. Indeed, in his deposition, Plaintiff acknowledged he had previously seen
(continued…)
10

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

duty claim based on the presence of frost on the deck at the time of Plaintiff’s
accident.
2.

Inadequate Lighting

In the SJ Motion, Targa argues that it is entitled to summary judgment on
this issue because, as a matter of law, maintaining adequate lighting during cargo
operations is the responsibility of the stevedore, not the vessel owner. Motion
[Doc. # 41], at ECF 11. Plaintiff did not address Targa’s arguments on this issue in
his Response. In doing so, he has abandoned his turnover duty claim premised on
inadequate lighting. Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir.
2006); Criner v. Texas--New Mexico Power Co., 470 F. App’x 364, 367 (5th Cir.
2012).
Plaintiff’s inadequate lighting claim also fails on the merits. As an initial
matter, Plaintiff acknowledged in his deposition that his SGS–issued flashlight
provided him with “adequate light” to see what he was doing while working.10 In
addition, there is no evidence in the record that stevedoring operations on the
CHEROKEE commenced during daylight hours. Indeed, all of the potentially

(continued…)
frost on barges while working in the Gulf of Mexico and agreed that, other than
during the summertime, it is not unusual for barges in the Gulf of Mexico to have
frost on them. Hamilton Dep. [Doc. # 41-2], 97:22-99:08.
10

Hamilton Dep. [Doc. # 41-2], 82:23-83:01.

11
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

relevant stevedoring activities reflected in the record, including those undertaken
by Plaintiff,11 took place at night. Plaintiff’s accident occurred on an open deck.12
Any absence or lack of lighting on the CHEROKEE’s open deck at night
undoubtedly is an open and obvious condition. Therefore, it cannot serve as a
basis for a breach of the turnover duty.
Moreover, the Fifth Circuit has held that “maintaining adequate lighting
during cargo operations is the responsibility of the stevedore.” Dow v. Oldendorff
Carriers GMBH & Co., 387 F. App’x 504, 506–07 (5th Cir. 2010); see also Burton
v. Safmarine Container Lines N.V., No. CV H-12-3277, 2014 WL 12531516, at *2
(S.D. Tex. Jan. 13, 2014) (“A vessel owner has no duty to provide adequate
lighting for longshoremen unless the vessel owner has contractually agreed to do
so.”); Bias v. Hanjin Shipping Co., No. CIV.A. G-07-0338, 2009 WL 746051, at
*5 (S.D. Tex. Mar. 18, 2009) (“courts have consistently held that a vessel owner
has no duty to provide adequate lighting for longshoremen.”).

In this case,

Plaintiff was injured during the course of cargo operations in an area of the ship
that had been turned over to the stevedore. It was the stevedore’s, not the vessel
owner’s, responsibility to provide Plaintiff with adequate lighting. A failure by the

11

Id. at 48:01-48:12.

12

Photograph of Accident Site [Doc. # 41-3].

12
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

stevedore to fulfill its obligations to its employee longshoreman is not a cognizable
basis for a turnover duty claim against a vessel owner. Plaintiff cites no contrary
authority. Accordingly, the SJ Motion is granted regarding Plaintiff’s turnover
duty claim based on inadequate lighting.
3.

Non-Skid Material

Plaintiff’s final argument regarding Targa’s alleged turnover duty breach
pertains to the lack of non-skid material on the CHEROKEE’s deck. For purposes
of the SJ Motion, the parties do not dispute Plaintiff’s assertion that the part of the
CHEROKEE deck where he slipped and fell was not coated with a non-skid
material. There also is no dispute that the CHEROKEE lacked this non-skid
material at the time the vessel was turned over to SGS for stevedoring operations.
Courts in this circuit have recognized “there is no legal basis under Fifth
Circuit jurisprudence for Plaintiff’s proposition that the absence of a non-ski[d]
surface on a vessel deck constitutes an unreasonably dangerous working condition.
In fact, district courts in the Fifth Circuit have held that ‘it would be ludicrous to
suggest that the vessel owner had a duty to resurface the portions of the vessel
which it turned over to the stevedore.’” Kitchens v. Tankers, No. 4:14-CV-2088,
2016 WL 5171411, at *4 (S.D. Tex. Jan. 13, 2016), aff’d sub nom. Kitchens v. Stolt
Tankers B.V., 657 F. App’x 248 (5th Cir. 2016) (quoting Thompson v. Cargill,
Inc., 585 F. Supp. 1332 (E.D. La. 1984)); see also Verret v. Dean Boats, Inc., No.
13
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

CIV. A. 87-1237, 1989 WL 81274, at *9 (E.D. La. July 20, 1989) (“As the
Thompson court so succinctly and logically explained, experienced and expert
longshoremen frequently perform their work on the decks of vessels which may be
devoid of nonskid surfaces. To allow longshoremen to bring a negligence action
against a vessel without non-skid surfaces would be paramount to allowing them to
proceed on a theory of unseaworthiness, a right which was abrogated by the 1972
amendments to the LHWCA.”) (internal quotation marks and citations omitted).
Similarly, “Plaintiff offers no case law to support its position that the
absence of non-skid coating on the [CHEOKEE]’s deck constitutes a latent or
hidden danger when coupled with dim lighting. In fact, district courts in the Fifth
and other Circuits frequently hold that the absence of a non-skid coating on vessel
surfaces does not give rise to a vessel owner’s turnover duty to warn.” Id. (citing
Thompson v. Cargill, Inc., 585 F. Supp. 1332; Anastasiou v. M/T World Trust, 338
F.Supp.2d 406 (E.D.N.Y 2005); Giganti v. Polsteam Shipping Co., 997 F.Supp.2d
182, 193 (E.D.N.Y. 2013)); see also Dias v. TMS Seacod GmbH & Co. KG, 84 F.
Supp. 3d 107, 111 (D.R.I. 2015) (“The absence of a non-skid surface . . . has
generally not been found to violate the vessel owner’s duty of care to the
stevedore. Nor does it constitute a hidden hazard giving rise to a duty to warn the
stevedore.”); Davis v. Pan Ocean Shipping Co., No. CIV.A.96-6103, 1999 WL
144095, at *5 (E.D. Pa. Mar. 15, 1999) (“This court similarly rejects the argument
14
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

that the non-skid surface by itself is a non-obvious hazard that warrants liability,
absent some evidence that the defendant should have known that such a non-skid
surface created the risk of accidents and that an experienced stevedore never would
have worked on such a non-skid surface. No such evidence has been offered. To do
otherwise would permit a plaintiff to proceed improperly on an unseaworthiness
theory.”)13
Precedent is clear that Plaintiff’s claim for breach of the turnover duty due to
a lack of non-skid material lacks merit. Plaintiff cites no authority in support of his
claim. Nor does he attempt to distinguish the significant body of case law that
forecloses his non-skid material turnover duty claim as a matter of law.
4.

Henry S. Woods III’s Putative Expert Opinions

Plaintiff tries to persuade the Court that the absence of non-skid material and
other alleged deficiencies constitutes vessel negligence based on the report and
affidavit of his expert, Henry S. Woods III. According to Plaintiff, Mr. Woods’s
opinions, at a minimum, create a genuine fact dispute for trial. Plaintiff’s reliance
on the opinions of Mr. Woods in this regard is unavailing.

13

Even in the “active control” duty context, where the vessel owner actually
exercises control over the area of the barge where the stevedore is operating, the
Fifth Circuit “has not held that the lack of a non-skid surface alone is sufficient to
give rise to a finding of liability under the active control duty exception.”
Kitchens, 657 F. App’x at 251.

15
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

The gravamen of Mr. Woods’s conclusions in his affidavit and report are
that Targa had an obligation to put non-skid coating on all of its deck surfaces and
warn Plaintiff about the lack of non-skid material on the CHEROKEE.14 Affidavit
of Henry S. Woods, III [Doc. # 43-1]; Expert Report of Henry S. Woods, III [Doc.
# 43-2]. By the Exclusion Motion, Targa has moved to exclude Mr. Woods’s
“testimony, report, and opinions” in their entirety on the basis that Mr. Woods’s
opinions are irrelevant. Targa contends his opinions and conclusions are irrelevant
because they speak to Targa’s alleged failures to do things that it had no duty to do
as a matter of law, such as provide non-skid treated decks and adequate lighting.
The Court concludes Targa’s argument is persuasive and that Mr. Woods’s
“testimony, report, and opinions” should be excluded.
As discussed supra, district courts in the Fifth Circuit (and in other Circuits)
repeatedly have held that the presence of decks on a vessel without non-skid
coating, and the failure to warn of such exposed decks, does not constitute a
violation of the turnover duty as matter of law. See, e.g., Thompson, 585 F. Supp.
at 1334 (“The lack of a non-skid surface on the deck of the vessel is a condition

14

Mr. Woods offers no opinions as to whether any of the alleged hazards he
identifies, considered individually or collectively, either would preclude an expert
and experienced stevedore from carrying on stevedoring operations with
reasonable safety or is a danger that a reasonably competent stevedore should
anticipate encountering.

16
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

which existed prior to the commencement of the stevedoring operations. As such,
the vessel owner’s only duty of care towards the stevedore was to exercise ordinary
care in making the area safe for the expert and experienced stevedore, and to warn
the stevedore of any hidden unsafe condition. The lack of a non-skid surface was
not a hidden condition which would give rise to the vessel owner's duty to warn.
Furthermore, it would be ludicrous to suggest that the vessel owner had a duty to
resurface the portions of the vessel which it turned over to the stevedore. The Court
takes judicial notice of the fact that experienced and expert stevedores have
frequent occasion to perform their work on the decks of vessels which may not
have non-skid surfaces.”); Dias v. TMS Seacod GmbH & Co. KG, 84 F. Supp. 3d
107, 111 (D.R.I. 2015); Giganti v. Polsteam Shipping Co., 997 F.Supp.2d 182, 193
(E.D.N.Y. 2013); Davis v. Pan Ocean Shipping Co., No. CIV.A.96-6103, 1999
WL 144095, at *5 (E.D. Pa. Mar. 15, 1999). Mr. Woods’s conclusions and
averments that Targa should have ensured all of its decks were covered with nonskid material and warned Plaintiff that such material was absent from at least
certain parts of the barge, is in direct contravention of nearly thirty years of
consistent contrary jurisprudence on the subject.

Accordingly, Mr. Woods’s

opinions are irrelevant to the question of whether the lack of non-skid material on
the CHEROKEE gives rise a turnover duty breach in this case.15
15

The other

See In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010)
(continued…)
17

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

opinions he expresses in his affidavit and report are similarly irrelevant to the
question of whether Targa breached its turnover duty, or any other duty, in this
case.16 Plaintiff has failed to raise a genuine dispute as to whether Targa breached

(continued…)
(“Determination of the tortfeasor’s duty is a question of law and thus a function of
the court that we review de novo.”).
16

Mr. Wood’s opinions that the CHEROKEE was not seaworthy are plainly
irrelevant to Plaintiff’s claims, which he has brought pursuant to Section 905 of
the LHWCA. See Scindia, 451 U.S. at 164 (“Prior to 1972, a longshoreman
injured while loading or unloading a ship could receive compensation payments
and also have judgment against the shipowner if the injury was caused by the
ship’s unseaworthiness or negligence.. . . The 1972 Amendments, particularly by
adding § 905(b), radically changed this scheme of things. . . . the longshoreman’s
right to recover for unseaworthiness was abolished”). So too is his opinion that
Targa failed to provide sufficient lighting for nighttime work on exposed deck
areas. That is because a lack of lighting at night is an open and obvious condition
of the vessel and because “maintaining adequate lighting during cargo operations
is the responsibility of the stevedore.” Dow, 387 F. App’x at 506–07.
Regarding Mr. Woods’s opinions that Targa failed to provide supervision or
oversight, or ensure there was supervision, of vessel maintenance or vessel safety,
the turnover duty applies to the shipowner’s obligation before or at the
commencement of the stevedore’s activities. To the extent Mr. Woods opines
Targa had an obligation to supervise or ensure supervision of ongoing cargo
operations on the CHEROKEE, any failure to meet that obligation would not
implicate the turnover duty. To the extent Mr. Woods opines that the failure to
monitor or supervise occurred prior to the commencement of the stevedore’s
activities, the only “hazards” that Mr. Woods or Plaintiff has identified as resulting
from that failure are the lack of non-skid coating and insufficient lighting. For
reasons discussed above, neither of those “hazards” can serve as the basis of a
turnover duty breach in this case. Kitchens, 2016 WL 5171411 at *4; Dow, 387 F.
App’x at 506–07.
Finally, Mr. Woods’s opinion that Targa failed to properly evaluate the “known
hazards of working in exposed locations during full darkness conditions and
various weather conditions,” is not evidence of a turnover duty breach by Targa.
The amount of light and weather in an exposed location are both open and
(continued…)
18

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

its turnover duty because of a lack of non-skid material on the deck of the
CHEROKEE.

Accordingly, the SJ Motion is granted regarding Plaintiff’s

turnover duty claim premised on the lack of non-skid surfaces on the barge.
B.

“Active Control” Duty

The second Scindia duty is the “active control” duty, which is applicable
once stevedoring operations have begun. This duty requires that the vessel owner
“exercise due care to avoid exposing longshoremen to harm from hazards that they
may encounter in areas, or from equipment, under the active control of the vessel
during the stevedoring operation.” Manson Gulf, L.L.C v. Modern Am. Recycling
Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017) (quoting Scindia Steam Nav. Co. v.
De Los Santos, 451 U.S. 156, 167 (1981)); Howlett v. Birkdale Shipping Co., S.A.,
512 U.S. 92, 98 (1994). In the “active control” context, “[t]he key issue is whether
the work area in question has been ‘turned over’ to the contractor.” Romero v.
Cajun Stabilizing Boats Inc., 307 F. App’x 849, 851 (5th Cir. 2009). For example,

(continued…)
obvious. Moreover, neither Mr. Woods nor Plaintiff offers any evidence, or cites
any authority, to support their implied argument that a reasonably competent
stevedore should not anticipate those same “known” hazards of working on an
exposed deck, at night, in near-freezing temperatures.
In sum, Mr. Woods’s opinions and conclusions conflict with settled law or are
irrelevant to the question of Targa’s liability. In both cases, they are more
prejudicial than they are probative of any wrongdoing by Targa in this case. See
FED. R. EVID. 403. Accordingly, the Court grants the Exclusion Motion.

19
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

the Fifth Circuit has held that for an “active control” duty to arise, “the vessel must
exercise active control over the actual methods and operative details of the
longshoreman’s work.” Pledger v. Phil Guilbeau Offshore, Inc., 88 F. App’x 690,
692 (5th Cir. 2004). The Circuit also recently has held that the complete absence
of vessel employees during stevedore operations evidences a lack of “active
control” by the vessel owner. See Manson Gulf, 878 F.3d at 135 (“Though the
mere presence of vessel employees is not necessarily indicative of active control,
we have twice cited the complete absence of such personnel as evidence of the
opposite—a lack of vessel control.”)
The summary judgment record in this case conclusively establishes that the
CHEROKEE was not under Targa’s “active control” at any time during the
stevedoring activities that resulted in Plaintiff’s injuries. In support of its assertion
that it did not exercise “active control” over CHEROKEE, Targa submitted the
unrebutted affidavit of Michael Grace, its Commercial Transport Compliance
Specialist. In his affidavit, Mr. Grace avers that no “Targa employees or agents
were present on the Cherokee, at the TPC facility or about the tug on January 23
and 24, 2014. Moreover, no Targa employees or agents were present during the
loading or unloading activities on January 23, 2015 and January 24, 2015, the date

20
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

of the incident.”17 Mr. Grace’s averments are consistent with Plaintiff’s deposition
testimony that he did not encounter any Targa personnel while working on the
CHEROKEE.18
In his Response, Plaintiff correctly acknowledges that “there were no known
Targa individuals on the vessel at the time of the incident.” Response [Doc. # 43],
p. 4. However, Plaintiff contends that summary judgment in Targa’s favor on this
issue is not appropriate because he “has yet to depose a corporate representative of
Targa to identify whether a Targa employee should have been on the vessel, or
whether Targa maintained some control over the vessel.” Id. This argument has
no merit. Plaintiff filed his Response on March 15, 2018, one day before the
discovery deadline in this case.19 Plaintiff offers no explanation for his failure to
depose a purportedly critical witness during the allotted discovery period. Nor has
he moved to extend either the discovery deadline in this case or his deadline to
respond to the SJ Motion so that he could take such a deposition. Indeed, the only

17

Affidavit of Michael Grace [Doc. # 41-4], at ECF 1.

18

See Hamilton Dep. [Doc. # 41-2], 45:14-45:16 (“Q: You didn’t interact with any
Targa employee on the date of this incident, did you? A: As far as I know, no.”);
id. at 138:23-138:25 (“Q: Did Targa have someone on the boat to monitor
conditions while you were on there? A: No, sir.”); id. at 139:04-139:07 (“Q: Did
Targa have someone on the dock to monitor conditions on the barge? . . . A: No.”).

19

See Docket Control Order [Doc. # 32], at ECF 1 (imposing March 16, 2018
discovery deadline).

21
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

evidence submitted by any party on the matter shows that Plaintiff chose not to
depose any Targa employee.20 The Court rejects Plaintiff’s attempt to defeat
summary judgment on the basis of speculation or hypotheticals. See Little, 37 F.3d
at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)) (“We do
not, however, in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts.”).21
20

See Affidavit of Michael D. Murphy [Doc. # 44-1], ECF 1 (“The only two
depositions which have been taken in this matter were secured by Targa; they are
the deposition of Plaintiff and of Plaintiff’s original orthopedic surgeon . . . I
confirm that as of Monday, March 19, 2018, there have been no requests from
Plaintiff’s counsel for any depositions.”).

21

To the extent Plaintiff argues that Mr. Woods’s opinions are evidence of an
“active control” duty breach by Targa, that argument is unavailing. First, neither
Plaintiff nor Mr. Woods cites any evidence that Targa exercised any control over
any portion of the CHEROKEE after the barge was fully turned over to SGS for
stevedoring operations. Second, the Supreme Court has squarely rejected the
notion that a vessel owner has a duty to supervise cargo operations. See Scindia,
451 U.S. at 168–69 (“we cannot agree that the vessel’s duty to the longshoreman
requires the shipowner to inspect or supervise the stevedoring operation. Congress
intended to make the vessel answerable for its own negligence and to terminate its
automatic, faultless responsibility for conditions caused by the negligence or other
defaults of the stevedore. Cases holding the vessel liable on the ground that it
owed nondelegable duties to protect the longshoremen from injury were rejected.
It would be inconsistent with the [LHWCA] to hold, nevertheless, that the
shipowner has a continuing duty to take reasonable steps to discover and correct
dangerous conditions that develop during the loading or unloading process.”)
(internal citations omitted); see also Duplantis v. Zigler Shipyards, Inc., 692 F.2d
372, 374 (5th Cir. 1982) (“once the stevedore begins its operations, the vessel
owner has no duty to supervise its work or to inspect the area assigned to the
stevedore, unless contract provision, positive law, or custom impose such a duty.
In short, the vessel owner has no general duty to monitor the stevedore’s
operations, but is entitled to rely on the stevedore’s expertise and
reasonableness.”).
22

P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

In summary, Targa has demonstrated that it had no employees present on the
CHEROKEE at the time of the incident in issue in this case. Plaintiff cites no
evidence that creates a genuine dispute regarding the presence of Targa personnel
on or around the CHEROKEE when Plaintiff suffered his injuries. Plaintiff also
cites no evidence that creates a genuine dispute whether Targa otherwise exercised
control over the CHEROKEE at that time. Instead, Plaintiff opposes summary
judgment solely on the basis of potential evidence that he has not even attempted
to obtain. Such conjecture does not create a genuine dispute with respect to the
level of control, if any, Targa exercised over the CHEROKEE at the time of
Plaintiff’s accident. Accordingly, the SJ Motion is granted regarding Plaintiff’s
“active control” duty claim against Targa.
C.

Duty to Intervene

The third and final Scindia duty, the duty to intervene, “concerns the
vessel’s obligations with regard to cargo operations in areas under the principal
control of the independent stevedore.” Howlett, 512 U.S. at 98. Specifically, “the
duty to intervene imposes liability ‘if the vessel owner fails to intervene in the
stevedore’s operations when he has actual knowledge both of the hazards and that
the stevedore, in the exercise of obviously improvident judgment means to work on
in the face of it and therefore cannot be relied on to remedy it.” Manson Gulf, 878

23
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

F.3d at 134 (quoting Burchett v. Cargill, Inc., 48 F.3d 173, 178 (5th Cir. 1995))
(internal quotation marks omitted).
Targa asserts that it is entitled to summary judgment on this claim for the
same reason it is entitled to summary judgment on Plaintiff’s “active control” duty
claim: the complete absence of Targa personnel on the CHEROKEE at the time of
Plaintiff’s accident. Plaintiff does not address Targa’s argument or any other
potential theory of a duty to intervene claim in his Response. Therefore, Plaintiff
has abandoned any claim against Targa premised on a duty to intervene. Black,
461 F.3d at 588 n.1; Criner, 470 F. App’x at 367.
To the extent Plaintiff has not abandoned this claim, it also fails on the
merits. Given the complete absence of Targa personnel on the CHEROKEE while
Plaintiff was performing his duties, there is no evidence that Targa had actual
knowledge of any “obviously improvident judgment” on the part of Plaintiff or his
longshoreman colleagues. This omission is fatal to Plaintiff’s duty to intervene
claim as a matter of law. Manson Gulf, 878 F.3d at 135; see also Burchett v.
Cargill, Inc., 48 F.3d 173, 179 (5th Cir. 1995) (affirming summary judgment on
the duty-to-intervene issue because the vessel owner “had no personnel present at
the job site who could have had knowledge of any peculiar dangers related to [the
stevedore’s] operations”).

Consequently, the SJ Motion is granted regarding

Plaintiff’s duty to intervene claim against Targa.
24
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525

IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendants Targa Transport LLC and Targa Resources

LLC’s Motion for Summary Judgment on all of Plaintiff’s Claims [Doc. # 41] is
GRANTED. All claims asserted by Plaintiff in this case against Targa Transport
LLC and Targa Resources LLC are DISMISSED WITH PREJUDICE. It is
further
ORDERED that Defendants Targa Transport LLC and Targa Resources
LLC’s Motion to Exclude the Opinions of Henry Woods, Plaintiff’s Purported
Marine Expert [Doc. # 45] is GRANTED. It is further
ORDERED that Defendants Targa Transport LLC and Targa Resources
LLC shall a file a motion for final judgment and attorneys’ fees, which shall
include the amount of attorneys’ fees for which it is seeking indemnification from
Defendant TPC Group Inc., with documentary support, on or before May 21, 2018.
Defendant TPC Group Inc. must file any opposition to the motion for final
judgment within 21 days of the motion for final judgment being filed.
SIGNED at Houston, Texas, this 30th day of April, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
25
P:\ORDERS\11-2016\2614MSJ_Liab.docx 180430.1525