United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
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 for summary judgment. Plaintiff Derrick
Overton (“Overton”) filed an
opposition to the motion, to which the TOMORROW
entities filed a reply. For the following reasons, the motion
undisputed facts are as follows: Overton was a longshoreman
working for Ports America, LLC (“Ports
America”). Ports America was the stevedore handling
the discharge of the TOMORROW's cargo from June 28, 2017
through June 30, 2017.
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.Discharge operations as to the TOMORROW
began at 0700 hours on June 28, 2017.
about June 29, 2017, Barge IN096065 (the “barge”)
was moored alongside the TOMORROW to further Ports
America's discharge operation. The Ports America foreman
decided where the barge would be moored alongside the
TOMORROW and where the cables and lines would
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. All lines, cables, and shackles used by
the Ports America longshoremen to tie the barge to the
TOMORROW belonged to Ports America. 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.
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. 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. 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.
TOMORROW's crew had no involvement in assembling the
lines or cables or laying them on the deck. Furthermore,
the TOMORROW's crew was not involved in monitoring the
cargo as it was discharged; Overton's instructions came
from his foreman.
alleged incident occurred on June 30, 2017. 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. 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. During the
safety meeting, the superintendent discussed being careful
with the lines across the deck and other trip
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. Overton was aware of the
cable. 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. The cable then struck the outside of
Overton's left ankle, knocking him down; Overton suffered
a fracture of both ankles.The cable that struck Overton
belonged to Ports America, and the cable which struck
Overton's ankle was the only thing that caused his
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. During cargo
operations, Overton did not communicate with TOMORROW
crewmembers, ask for anything from TOMORROW crewmembers, or
notify TOMORROW crewmembers of his accident.
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).
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).
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).
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).
has asserted a claim of vessel negligence against the
TOMORROW entities. 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). “[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)).
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
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
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
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