Florida Fuels, Inc. v. Citgo Petroleum Corp.

• Decision Date: 09 November 1993
• Docket Number: No. 92-4661,92-4661
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: FLORIDA FUELS, INC., et al., Plaintiffs, Florida Fuels, Inc., Plaintiff-Appellant, v. CITGO PETROLEUM CORP., et al., Defendants, Citgo Petroleum Corp., Defendant-Appellee. Elaine Trosclair AUTHEMENT, Individually and as Administratrix & Legal Tutrix o/b/o Honey L. Authement, etc. and Carl J. Authement, Sr., Plaintiffs-Appellants, v. FLORIDA FUELS, INC., Defendant-Appellant, v. CITGO PETROLEUM CORP., Defendant-Appellee.

Page 330

6 F.3d 330

1994 A.M.C. 752

FLORIDA FUELS, INC., et al., Plaintiffs, Florida Fuels, Inc., Plaintiff-Appellant, v. CITGO PETROLEUM CORP., et al., Defendants, Citgo Petroleum Corp., Defendant-Appellee.

Elaine Trosclair AUTHEMENT, Individually and as

Administratrix & Legal Tutrix o/b/o Honey L.

Authement, etc. and Carl J. Authement, Sr., Plaintiffs-Appellants, v. FLORIDA FUELS, INC., Defendant-Appellant, v. CITGO PETROLEUM CORP., Defendant-Appellee.

No. 92-4661.

United States Court of Appeals, Fifth Circuit.

Nov. 9, 1993.

James A. Cobb, Jr., John F. Emmett, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Florida Fuels.

Robert A. Chaffin, Paul R. Miller, Houston, TX, for Authement, et al.

Samuel B. LaVergne, Gregory P. Massey, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, LA, for appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY and DAVIS, Circuit Judges, and BRAMLETTE, ¹ District Judge.

BRAMLETTE, District Judge:

Plaintiffs-Appellants, deceased crew member's family and vessel owner, appeal the lower court's grant of summary judgment in favor of dock owner. The lower court found that the dock owner owed no duty to the vessel crew member to provide a means of access between the dock and the vessel, and owed no duty to aid in the mooring of the vessel. We affirm.

On April 10, 1990, the barge OSPREY, assisted by the tugboat TODD RICK, both owned and operated by Florida Fuels, Inc. (Florida Fuels), berthed at a dock owned and operated by Citgo Petroleum Corp. (Citgo), in order to pick up fuel. On board the TODD RICK was Carl Authement, Jr. (Authement), employed by Florida Fuels as a deckhand. The Citgo facility consisted of four docks: "A," "B," "C," and "D." After the OSPREY arrived at Dock D, Citgo requested that the barge be brought to Dock A for loading the fuel.

Dock D was equipped with a walkway ingress/egress system. Dock A had no such system. There were aluminum ladders attached to Dock A on a pivot, but these were too short to serve as a means of ingress and egress between the dock and the OSPREY. The OSPREY had its own aluminum extension ladder, which was used by the TODD RICK crew members as they moored the barge to the dock.

After the OSPREY moved to Dock A, another barge arrived at the facility, and Citgo asked that the OSPREY be moved to the north end of Dock A. After this was done, Citgo again requested the OSPREY to move, this time some fifty feet further down Dock A. At this point, Authement left the deck of the OSPREY, using the aluminum extension ladder, and proceeded to the dock to help secure the barge to the dock. After the barge was secured, Authement was ascending the ladder to return to the deck of the barge when he fell, struck his head on the pier, and drowned.

Authement's parents and his five minor children filed a maritime tort action against Florida Fuels, and later amended their petition to add Citgo as a defendant. Citgo removed the action to federal court. Florida Fuels and the Authements then reached a settlement, but the settlement did not include damages for loss of society sustained by family members. The Authements and Florida Fuels agreed to pursue Citgo jointly for the recovery of the remainder of damages sustained, and agreed to share equally any recovery made. Florida Fuels filed a separate suit against Citgo for indemnity/contribution, and on motion of Citgo the actions were consolidated.

Citgo filed a motion for summary judgment on January 24, 1992. The magistrate judge recommended that summary judgment be granted. After objections were filed, the district court reviewed the matter de novo and reached the same conclusion. On June 9, 1992, summary judgment was granted in favor of Citgo, adopting the magistrate judge's report and recommendation. Florida Fuels and the Authements appeal. The issues on appeal are the same that were before the lower court on the motion for summary judgment: (1) Did Citgo owe a duty to Authement to provide a means of access between the dock and the vessel; and (2) Did Citgo owe a duty to aid in the mooring of the vessel?

"We review a district court's grant of summary judgment de novo, resolving any disputed issues in favor of the non-movant, to determine whether the record, as it exists, shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Palmer v. Fayard Moving & Transp. Corp., 930 F.2d 437, 438 (5th Cir.1991). We also independently review the district court's conclusions of law. Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir.1991).

1.

This case involves an intersection between state and federal law. In Victory Carriers, Inc. v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 422, 30 L.Ed.2d 383 (1971), the Supreme Court observed that, traditionally, "[t]he gangplank has served as a rough dividing line between the state and maritime regimes." Piers and docks are deemed extensions of land, id., 404 U.S. at 206-07, 92 S.Ct. at 422, while the means of access between a dock and a vessel is considered an "appurtenance" of the vessel. Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866 (1st Cir.1974).

It is well-established that maritime law encompasses the gangway. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935); Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Tullis v. Fidelity & Cas. Co., 397 F.2d 22 (5th Cir.1968); O'Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48 (5th Cir.1965).

It is also well-established that a vessel owner has a "fundamental duty" to provide its crew members with a reasonably safe means of boarding and departing from the vessel. Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir.1969), cert. denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970); Superior Oil Co. v. Trahan, 322 F.2d 234, 235 (5th Cir.1963). The question posed in the present case is whether a dock owner has a similar duty to crew members of a vessel using its facility.

The vessel owner's duty to provide a reasonably safe means of access arises from the doctrine of "seaworthiness." Under general maritime law, a vessel owner has "an absolute nondelegable duty to provide a seaworthy vessel" to crew members. Brister v. A.W.I. Inc., 946 F.2d 350, 355 (5th Cir.1991). Unseaworthiness is "predicated without regard to fault or the use of due care." Id., quoting Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir.1977). It is well-settled, however, that the doctrine of "seaworthiness" is not applicable to a dock owner who does not occupy the position of owner or operator of the vessel. Daniels v. Florida Power & Light Company, 317 F.2d 41, 44 (5th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 78, 11 L.Ed.2d 63 (1963); Baker v. Raymond International, Inc., 656 F.2d 173, 181 (5th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2256, 72 L.Ed.2d 861 (1982).

Absent a maritime status between the parties, a dock owner's duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law. Wiper v. Great Lakes Engineering Works, 340 F.2d 727, 730 (6th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965). In the present case there was no maritime status between Citgo and Authement. Louisiana law defines the duty Citgo owes an invitee such as Authement as the duty to provide a wharf or dock which is reasonably safe. Sons v. New Amsterdam Casualty Company, 186 So.2d 375, 376 (La.Ct.App. 4th Cir.1966). In addition, La.Civ.Code Ann. art. 2317 (West 1979), provides, in relevant part, that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." See Gauthier v. Crosby Marine Service, Inc., 752 F.2d 1085, 1088 (5th Cir.1985).

The appellants do not contend that the accident was caused by some substance on the surface of the dock, or by some defect in the dock itself; nor do they contend that the accident was caused by a person for whom Citgo was answerable or that the ladder was in Citgo's custody. Instead, they urge this Court to find that Citgo had a legal duty to provide Authement with a reasonably safe means of boarding and departing from the OSPREY.

The question of whether such a duty exists is to be decided by maritime tort law. In this circuit, the proper standard to be applied in maritime tort cases is "legal cause." Spinks v. Chevron Oil Co., 507 F.2d 216, 222-23 (5th Cir.1975). The elements of legal cause are negligence, a causal connection between the negligence and the injury, the invasion of a legally protected interest, and lack of a countervailing legally protected interest as a defense to liability. Restatement 2d Torts Sec. 9. "Legally protected interest" encompasses the concept of duty. Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir.1978).

"The doctrine of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), that an actor is not answerable in tort to a person to whom he owed no duty, was adopted in admiralty in Sinram v. Pennsylvania R. Co., 61 F.2d 767, 770 (2d Cir.1932)." Spinks, 507 F.2d at 222, n. 8. "Whether a defendant owes a plaintiff a legal duty is a question of law. Whether a defendant has breached a duty owed is a question of fact." Chavez, 567 F.2d at 289.

The appellants ask us to apply the general duty to exercise "reasonable care under the circumstances," citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Kermarec involved an injury to a guest of a member of a ship's crew, which occurred when the guest was descending a stairway in order to leave the ship. The Supreme Court applied the "settled principle of maritime law that a shipowner owes...