United States District Court, E.D. Louisiana
MICHAEL T. VELASQUEZ, JR.
CRESCENT TOWING & SALVAGE CO., INC.
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that Crescent Towing & Salvage
Co., Inc.'s Motion for Summary Judgment (Doc. #20) is
GRANTED as to Michael T. Velasquez,
Jr.'s unseaworthiness claim.
IS FURTHER ORDERED that Crescent Towing &
Salvage Co., Inc.'s Motion for Summary Judgment (Doc.
#20) is DENIED as to Michael T. Velasquez,
Jr.'s negligence claim made under 33 U.S.C. §
matter is before the court on a motion for summary judgment
filed by defendant, Crescent Towing & Salvage Co., Inc.,
which owns the vessel the ANGUS R. COOPER. Crescent Towing
argues that it is entitled to summary judgment on
plaintiff's claim brought under § 905(b) of the
Longshore and Harbor Workers Compensation Act
(“LHWCA”), 33 U.S.C. § 905(b), because
plaintiff, Michael T. Velasquez, Jr., cannot prove that
Crescent Towing breached one of the duties owed by Crescent
Towing to Velasquez under Scindia Steam Navigation Co. v.
DeLosSantos, 101 S.Ct. 1614 (1981).
February 4, 2016, Velasquez, an employee of Jonny White's
C&W Air Repair, Inc. (“C&W”), was
performing maintenance work on the ANGUS R. COOPER, a towing
vessel owned by Crescent Towing. The crew of the ANGUS R.
COOPER consisted of a master, Daniel Caire; a wheelman; and,
an engineer, Mark Millican. C&W's workers aboard the
ANGUS R. COOPER on February 4, 2016, were the lead mechanic,
Daniel DeSoto; and, two helpers, Velasquez and Eugene Owens.
C&W's workers were on the ANGUS R. COOPER for
approximately four hours rebuilding the compressors in the
lower engine room. The lower engine room is accessed from the
upper engine room via a set of steep, ladder-like stairs.
and Velasquez disassembled one of the vessel's
compressors. The parts from that compressor were brought to
the upper engine room to be cleaned. After the residue and
gasket material was scraped off of the parts, Owens and
Velasquez carried them back to the lower engine room to be
reinstalled by DeSoto.
alleges that he sustained serious and disabling injuries when
he slipped and fell while he was traversing the stairs
leading from the upper engine room to the lower engine room.
Velasquez further alleges that the fall was caused by a
slippery substance, likely oil, left on the stairs by
Crescent Towing's employees, and an inadequate non-skid
surface. Velasquez filed this suit against Crescent Towing
alleging that its negligence and the unseaworthiness of the
ANGUS R. COOPER caused the accident.
Towing filed the instant motion for summary judgment arguing
that Velasquez cannot prevail on his negligence claim under
§ 905(b) of the LHWCA because he cannot prove that
Crescent Towing breached one of the duties enumerated in
Scindia. Specifically, Crescent Towing argues that
there is no evidence that Crescent Towing turned the vessel
over to C&W's employees without warning of any latent
defects, retained active control of the area in which the
C&W's employees were working, or failed to intervene
to protect C&W's employees from a hazard of which it
was aware. Crescent Towing also argues that a person covered
by the LHWCA is precluded from making an unseaworthiness
claim against the vessel.
argues that Crescent Towing breached the active control duty
outlined in Scindia. Velasquez contends that there
are genuine issues of material fact regarding whether
Crescent Towing maintained active control of the area in
which C&W's employees were working and that it failed
to act reasonably in either cleaning up the spilled slippery
substance or warning C&W's employees about it.
Summary Judgment Standard
of the Federal Rules of Civil Procedure provides that the
"court shall grant summary judgment if 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."
Granting a motion for summary judgment is proper if the
pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits filed in support of the
motion demonstrate that there is no genuine issue as to any
material fact that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). The
court must find "[a] factual dispute . . . [to be]
'genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party . . .
[and a] fact . . . [to be] ...