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Ybarra v. International Shipholding Corp.

United States District Court, E.D. Louisiana

March 18, 2019

OSCAR YBARRA
v.
INTERNATIONAL SHIPHOLDING CORP., ET AL.

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         Before 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.[1] 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.

         I. Background

         International 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.

         II. Legal Standard

         Summary 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)).

         III. Discussion

         Defendants 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.).

         33 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.

         A. Turnover Duty

         The 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 encountering. Id.

         Defendants 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).

         Ybarra 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.).

         In his 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. ...


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