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Dukes v. Marine

United States District Court, E.D. Louisiana

April 27, 2017

JOSEPH DUKES
v.
ZAFIRO MARINE, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is BP Exploration & Production Inc.'s motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         This litigation arises from personal injuries allegedly suffered by the plaintiff when he rolled his ankle climbing down a three-rung ladder from his upper bunk located in living quarters on a vessel.

         In September 2014, Joseph Dukes was employed as an Instrumentation and Electrical (I&E) technician by MMR Contractors, Inc. (MMR) on BP Exploration & Production Inc.'s Thunder Horse, an offshore installation in the Gulf of Mexico, just south of Louisiana. I&E technicians worked 12-hour shifts on the Thunder Horse and spent the remaining 12 hours of the day on the M/V SAMPSON, a large quarters vessel located near the Thunder Horse. CVI Global Lux Oil and Gas 4 S.a.r.l. was or is the registered owner of the SAMPSON, which BP had time chartered from a company called Harkand Gulf Contracting, LTD.

         The SAMPSON was time chartered to BP pursuant to a contract between BP and Harkand entitled Contract for Accommodation Vessel for Global Projects Organization - Gulf of Mexico. The Contract provides that the operation, care, and maintenance of the vessel and the equipment on the vessel were the exclusive obligation of Harkand: “CONTRACTOR [Harkand] shall be wholly responsible for the proper navigation, operation, care and maintenance of all VESSELS and associated PLANT.” Harkand was also solely responsible for ensuring that the SAMPSON remained in class, was fully certified for services performed, that the vessel conformed to all relevant legislation, and that the vessel was manned in compliance with all regulations. Among other things, the Contract specifically provides that Harkand “shall ensure adequate provision and maintenance of PLANT, including: ...a) Accommodation.”

         Another contract entitled a Bridging Document also governed the BP-Harkand relationship. The Bridging Document specified transfer personnel procedures once the SAMPSON was within 500 meters of the Thunder Horse and the SAMPSON approach directives. The Bridging Document obliges BP to provide three SAMPSON-specific support positions to be present on the SAMPSON during overall project operations: (1) a BP Company Vessel Representative (CVR); (2) BP Flotel Personnel on Board Coordinator (POB); and (3) a BP Marine Representative. The BP CVR was the “single point-of-contact” for SAMPSON operations and one of the CVR's express duties was to “assist with room assignments” on the SAMPSON. One of the POB Coordinator's responsibilities was for “bunk allocation.”

         These contractual provisions were executed in accordance with the contracts. Dukes testified that a “BP Company Man” made the room assignments on the SAMPSON. Dukes's bunk -- the upper bunk with one bunk below it -- was one of over 200 bunks. It had a three-rung ladder attached to the frame of the top bunk by metal “L” shaped brackets. Dukes slept in this same upper bunk and used the same ladder for at least six days until the incident that forms the basis of this lawsuit occurred.

         On September 14, 2014, at approximately 4:30 a.m., [1] when Dukes was climbing down from his upper bunk, he placed his right foot on the top rung of the ladder, but the ladder slid “no more than two or three inches” along the upper bunk framing to which it was attached. This sliding[2] allegedly caused him to twist his right ankle, lose his balance, and fall to the floor. Dukes then “got up [and] walked it off, ” took a shower, “got my boots on, laced them up tight, [and] went to work” at 6:00 a.m.

         Dukes worked a full day aboard the Thunder Horse and returned to the SAMPSON that night. He says he advised the BP Company Man on the morning of his fall that he had twisted his ankle in his room, but he did not specifically tell him about having slipped on the ladder. Later that afternoon following his hitch, Dukes spoke with the BP Company Man, who offered Dukes the medic's room to sleep in that night, which had an available lower bunk. Dukes changed rooms.

         When he woke up the next morning, Dukes says his ankle was swollen and that he could not work. He was treated by the SAMPSON's medic, completed two incident reports, then at his request he was taken by helicopter for medical treatment. In one report, Dukes described what happened to his ankle: “climbing out of top bunk when right foot rolled.” In the other report, Dukes wrote:

On Saturday morning 9-14-14 @ 4:30 AM I was climbing down from my bunk in room 107 when my right foot rolled or twisted on me. I walked around the room for a minute then got dressed and went to work. After work I cleaned up and went to bed. On the morning of the 15th I could not put much pressure on my right foot, went to medic and he wrapped my foot with bandage.

         Dukes made no reference to any fall in either report. Nor did he suggest that the ladder had moved. He now says he fell and, as a consequence of his fall, he alleges that he injured not only his ankle, but has since suffered additional latent injuries to his left hip, lower back, and left shoulder.

         On October 2, 2015, Dukes sued Zafiro Marine, alleging that Zafiro's negligence and the unseaworthiness of the SAMPSON caused his ankle, leg, hip, and back injuries. Dukes later added BP Exploration & Production, Inc. as a defendant, alleging that BP controlled Zafiro Marine's work pursuant to a contract and that BP's negligence, in addition to Zafiro Marine's negligence and the SAMPSON's unseaworthiness, caused his injuries. Dukes has amended his complaint several times in an attempt to name the correct owner of the SAMPSON: Zafiro was replaced with ZM Industries Limited, which was later replaced with CVI Global Lux Oil and Gas, which is a non-existent entity. CVI Global Lux Oil and Gas 4 S.a.r.l. has since appeared as the registered owner of the SAMPSON; it allege in its answer that it has owned the vessel “at various times.” Finally, Zurich American Insurance Company intervened in this litigation, alleging that it issued to MMR a workers' compensation and employer liability policy, that it paid worker's compensation benefits to plaintiff pursuant to the policy and Louisiana law, and that it is entitled to recover all compensation and medical expenses paid or to be paid and is entitled to a credit for future medical benefits for compensation that may be paid to Dukes.

         Disclaiming responsibility for the SAMPSON's seaworthiness or the safety of its living quarters, BP now moves for summary judgment dismissing the plaintiff's claims against it.

         I.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative, " summary judgment is appropriate. Id. at 249 (citations omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted) (“[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of a claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must adduce competent evidence, including but not limited to sworn affidavits and depositions, to buttress his claims. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). However, affidavits or pleadings which contradict earlier deposition testimony cannot create a genuine issue of material fact sufficient to preclude an entry of summary judgment. ...


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