United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment (Rec. Doc.
42) filed by Defendants International Shipholding
Corporation, U.S. United Ocean Services, and The Standard
Club Europe, Ltd (herein after collectively referred to as
“Defendants”). Plaintiff Oscar Ybarra opposes the
motion (Rec. Doc. 58, 66) and Defendants replied (Rec. Doc.
69). This motion, noticed for submission on February 13,
2019, is before the Court on the briefs without oral
argument. Having considered the motion, memoranda of
counsel, the opposition, the reply, the record, and the
applicable law, the Court finds that Defendants' Motion
for Partial Summary Judgment (Rec. Doc. 42) is DENIED in part
and GRANTED in part for the reasons set forth below.
Shipholding Corp. contracted with Inmarsat U.S. Holdings,
Inc. (“Inmarsat”) to install a satellite
communications system aboard the M/V COASTAL 101. (Rec. Doc.
22 Amended Complaint, ¶ 4). As an Inmarsat employee,
Oscar Ybarra installed the system on the mast of the vessel
on May 9, 2015. (Id.). During his descent of the
mast, Ybarra fell and sustained injuries. (Id. at
11-12). Originally filed in state court, the case was removed
and amended for claims pursuant to General Maritime Law.
(Id. at 2). Defendants now move the Court to dismiss
the case on summary judgment. Defendants allege that there
exists no genuine issue of material fact that as the vessel
owner, Defendants did not owe nor breach a duty to Ybarra.
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” when
viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing
Anderson, 477 U.S. at 248). The court must draw all
justifiable inferences in favor of the non-moving party.
Id. (citing Anderson, 477 U.S. at 255).
Once the moving party has initially shown “that there
is an absence of evidence to support the non-moving
party's cause, ” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986), the non-movant must come forward
with “specific facts” showing a genuine factual
issue for trial. Id. (citing Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)). Conclusory allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial. Id. (citing SEC v. Recile, 10 F.3d
1093, 1097 (5th Cir.1993)).
argue that as a repairman, Ybarra is a longshore worker whose
claims fall under Section 905(b) of the Longshore and Harbor
Workers' Compensation Act (“LHWCA”), 33
U.S.C. § 905(b). (Rec. Doc. 42, p. 12). Defendants apply
the Supreme Court's holding in Scindia Steam Nav.
Co., Ltd. v. De Los Santos to argue that as the
third-party vessel owner, Defendants are not liable for
Ybarra as a longshoreman. (Id. at 13). Ybarra does
not oppose the classification of his claims as falling under
the LHWCA and the duties defined by the Court in
Scindia. (Rec. Doc. 58, p. 10). Ybarra opposes
summary judgment in how Scindia is applied to the
facts of his claim. (Id.).
U.S.C. § 905(b) provides, “If such person was
employed by the vessel to provide stevedoring services, no
such action shall be permitted if the injury was caused by
the negligence of persons engaged in providing stevedoring
services to the vessel.” In Scindia Steam Nav. Co.,
Ltd. v. De Los Santos, the Supreme Court limited the
duties that vessel owners owe pursuant to § 905(b). 451
U.S. 156, 165, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The Court
held that “the vessel owes to the stevedore and his
longshoremen employees the duty of exercising due care
‘under the circumstances.'” Id. at
167. The Fifth Circuit has well-established that “the
basic principle which emerges from Scindia is that
the primary responsibility for the safety of the longshoreman
rests upon the stevedore.” Kirksey v. Tonghai
Maritime, 535 F.3d 388, 391 (5th Cir. 2008) (quoting
Greenwood v. Societe Francaise De, 111 F.3d 1239,
1245 (5th Cir. 1997)). Vessel owners 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.
Id. The Court will now apply these three duties to
the facts of the instant case to determine whether there
exists a genuine issue of material fact.
turnover duty is a narrow duty on the shipowner before or at
the commencement of the stevedore's activities
encompassing the duties to (1) exercise ordinary care under
the circumstances to turn over the ship and its equipment in
such condition that an expert stevedore can carry on
stevedoring operations with reasonable safety and (2) warn
the stevedore of latent or hidden dangers which are known to
the vessel owner or should have been known to it.
Kirksey, 535 F.3d at 392. This duty is to the
exclusion of dangers that are open and obvious or dangers
that a reasonable competent stevedore should anticipate
argue there exists no genuine issue of fact regarding the
vessel owner's turnover duty. (Rec. Doc. 42, p. 17).
Defendants contend that the harness, ladder, and mast were
not only turned over in a reasonable and safe condition, but
Ybarra testified that he did not inspect the hook and
harness. (Id.). Defendants cite the deposition of
Ybarra and members of the vessel's crew to assert that
the ladder and harness did not possess any defects or unsafe
conditions. (Id. at 19). In furtherance of their
position, Defendants also argue that crew members testified
that no other individual has previously had an incident while
climbing the mast. (Id.). As there had never been
any incident in the past, Defendants assert that there is an
absence of evidence that Defendants knew or should have known
of a latent or hidden defect. (Rec. Doc. 69, p. 5).
concedes that the danger has nothing to do with the physical
integrity and condition of the mast, ladder, and harness.
(Rec. Doc. 58, p. 14). Ybarra argues that the vessel owner
breached the turnover duty because the ladder on the mast of
the M/V COASTAL 101 presented a unique hazard that required
an individual to stand on the yardarm, unclip the harness,
and transfer from the front of the mast to the back
navigating with the mast between his legs, and then reclip.
(Id. at 16). Ybarra argues that though the hazard of
this particular maneuver was known to the crew, Ybarra had
not received safety training, and the vessel only furnished
him with a single tether harness. (Rec. Doc. 66, p. 7).
Ybarra contends that the crew failed to disclose the extra
protection afforded by a dual leg harness which would have
harnessed Ybarra during the entire ascent and descent of the
mast, even during the hazardous cross-over. (Id.).
amended opposition, Ybarra cites the depositions of Ken
Strong and Mike Cameron. According to Ybarra, these men were
employed to provide ship management services, such as risk
management, on Defendant International Shipholding
Corporations' vessels, and they were involved in the
investigation of Ybarra's accident and the preparation of
OSHA reporting forms. (Rec. Doc. 66, p. 3). Ybarra uses these
depositions to assert that they could not explain why a
“Working Aloft Permit” or “Job Risk
Analysis” was not performed for Ybarra's job.