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Overton v. M/V Altro Donna, LLC

United States District Court, E.D. Louisiana

May 2, 2019

DERRICK OVERTON
v.
M/V ALTRO DONNA, LLC ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is defendants and third-party defendants', the M/V TOMORROW, Hawk Marine Corporation S.A., Marine Ace Co., Ltd., and Japan Ship Owners' Mutual Protection and Indemnity Association (together, “the TOMORROW entities”), motion[1] for summary judgment. Plaintiff Derrick Overton (“Overton”) filed an opposition[2] to the motion, to which the TOMORROW entities filed a reply.[3] For the following reasons, the motion is granted.

         I.

         The undisputed facts are as follows: Overton was a longshoreman working for Ports America, LLC (“Ports America”).[4] Ports America was the stevedore handling the discharge of the TOMORROW's cargo from June 28, 2017 through June 30, 2017.[5]

         On or about June 27, 2017, the M/V TOMORROW (the “TOMORROW”) docked at the Nashville Avenue Wharf for the unloading of its cargo of steel plates and coils.[6]Discharge operations as to the TOMORROW began at 0700 hours on June 28, 2017.[7]

         On or about June 29, 2017, Barge IN096065 (the “barge”) was moored alongside the TOMORROW to further Ports America's discharge operation.[8] The Ports America foreman decided where the barge would be moored alongside the TOMORROW and where the cables and lines would run.[9] A tugboat crew, unidentified by the parties, tied one end of the mooring lines to the barge, and the Ports America crew tied the other end of the mooring lines to the TOMORROW.[10] All lines, cables, and shackles used by the Ports America longshoremen to tie the barge to the TOMORROW belonged to Ports America.[11] Furthermore, the barge was tied to the TOMORROW by the tugboat's crew and Ports America's longshoremen; the TOMORROW's crew was not involved in securing the barge to the TOMORROW.[12]

         Overton was responsible for the “vessel end” of the barge mooring line; the line was secured to two cables that were shackled together and such cables ran transversely on the deck from the port side edge of the TOMORROW to a stanchion next to the port coaming of one of the cargo holds.[13] The Ports America longshoremen assembled the lines and cables, laid them on the deck of the TOMORROW, and placed yellow caution tape on the deck along the cables from the TOMORROW's port side edge to the cargo hold area.[14] The cables and lines were clearly visible on the TOMORROW's deck, and Ports America longshoremen had utilized this line-and-cable setup on other vessels for prior jobs.[15]

         The TOMORROW's crew had no involvement in assembling the lines or cables or laying them on the deck.[16] Furthermore, the TOMORROW's crew was not involved in monitoring the cargo as it was discharged; Overton's instructions came from his foreman.[17]

         The alleged incident occurred on June 30, 2017.[18] That morning, Overton operated the forklift on the barge until cargo operations were complete. He then returned to the deck of the TOMORROW to wait for the M/V ALTRO DONNA (the “ALTRO DONNA”), a tugboat, to arrive and remove the barge.[19] Before they began the discharge operations on the TOMORROW, Ports America Superintendent Connor Graham (the “superintendent”) led a safety meeting for the Ports America longshoremen.[20] During the safety meeting, the superintendent discussed being careful with the lines across the deck and other trip hazards.[21]

         When the ALTRO DONNA arrived, and before the alleged accident, Overton was standing at the rail on the deck of the TOMORROW with the cable laying along the deck to his left.[22] Overton was aware of the cable.[23] Overton alleges that the ALTRO DONNA pushed the barge upriver, causing the cable next to Overton on the TOMORROW's deck to also move upriver.[24] The cable then struck the outside of Overton's left ankle, knocking him down; Overton suffered a fracture of both ankles.[25]The cable that struck Overton belonged to Ports America, and the cable which struck Overton's ankle was the only thing that caused his fall.[26]

         The alleged dangerous condition-the lines and cables across the deck-was created by the longshoremen after the TOMORROW entities turned the vessel over for discharge.[27] During cargo operations, Overton did not communicate with TOMORROW crewmembers, ask for anything from TOMORROW crewmembers, or notify TOMORROW crewmembers of his accident.[28]

         II.

         Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the Court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of a material fact; it need only point out the absence of evidence supporting the other party's case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

         Once the party seeking summary judgment carries its burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts,' by ‘conclusory allegations,' by ‘unsubstantiated assertions,' or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).

         A genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . ., the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted). The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party's evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

         “[A] district court has somewhat greater discretion to consider what weight it will accord the evidence in a bench trial than in a jury trial.” Matter of Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991). “[W]here ‘the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions.'” Id. (quoting Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978)); see also Manson Gulf, L.L.C. v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017).

         III.

         Overton has asserted a claim of vessel negligence against the TOMORROW entities.[29] Pursuant to the Longshore Harbor Workers Compensation Act, 33 U.S.C. § 905(b), a “worker may pursue a tort action against the owner of a vessel for acts of negligence.” Wilcox v. Max Welders, LLC, No. 12-2389, 2014 WL 585603, at *2 (E.D. La. Feb. 13, 2014) (Africk, J.) (quoting Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir. 1991)). However, “Section 905(b) makes clear that the vessel owner may not be sued when the injury was caused by the negligence of those performing stevedoring services.” Id. (citing 33 U.S.C. § 905(b); Levene, 943 F.2d at 532).[30] “[T]he primary responsibility for longshoremen's safety rests with the stevedore.” Id. (citing Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007)).

         A vessel owner may be held liable to longshoremen injured during stevedoring operations in only three circumstances:

1) if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known;
2) for injury caused by hazards under the control of the ship; and
3) if the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge both of the hazard 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.

Robinson, 505 F.3d at 365 (citing Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th Cir. 1992)). The above-mentioned duties, known as Scindia duties, were defined by the United States Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The only Scindia duty at issue here is the third duty-the duty to intervene.[31]

         “The duty to intervene is narrowly construed and requires more than mere knowledge of a dangerous condition.” Blanchard v. Weeks Marine, Inc., No. 13-5089, 2014 WL 1414640, at *7 (E.D. La. Apr. 11, 2014) (Africk, J.) (citing Greenwood v. Societe Francaise De, 111 F.3d 1239, 1249 (5th Cir. 1997); Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996)).

To impose a duty to intervene on the shipowner, respecting dangers not created by it which are obvious to the stevedore's employees and arise during and in the area of the stevedore's operations, something more is required than the mere shipboard location of the dangerous situation and the shipowner's knowledge of it.

Blanchard, 2014 WL 1414640, at *7 (quoting Singleton, 79 F.3d at 28 (quoting Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 215 (5th Cir. 1984))).

         The Fifth Circuit in Williams v. M/V Sonora noted that “cases are unanimous in stating that knowledge alone is not enough, ” and “[t]he ‘something more' requirement provides a useful and helpful threshold ...


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