Gonzalez v. U.S., Civil Action No. B-06-196.

• Decision Date: 18 June 2008
• Docket Number: Civil Action No. B-06-196.
• Citation: 588 F.Supp.2d 747
• Parties: Gerardo GONZALEZ, Plaintiff, v. UNITED STATES of America and M/V SBX (Sea-Based X-Band Radar Platform), Defendants.
• Court: U.S. District Court — Southern District of Texas

588 F.Supp.2d 747

Gerardo GONZALEZ, Plaintiff, v. UNITED STATES of America and M/V SBX (Sea-Based X-Band Radar Platform), Defendants.

Civil Action No. B-06-196.

United States District Court, S.D. Texas, Brownsville Division.

June 18, 2008.

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Jason Aron Itkin, Micajah Boatright, Jeffrey Ragan Seely, Kurt Brynilde Arnold,

Arnold Itkin, LLP, Houston, TX, Stephen R. Foster, Attorney at Law, Beaumont, TX, for Plaintiff.

John H. DeYampert, Jr., United States Dept. of Justice, Washington, DC, for United States of America and M/V SBX (Sea Based X-Band Radar Platform).

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

I. APPLICABILITY OF THE LONSHOREMEN AND HARBOR WORKERS COMPENSATION ACT

Plaintiff Gerardo Gonzalez ("Gonzalez") filed negligence and seaworthiness claims against the Defendant United States pursuant to the Suits in Admiralty Act. (Docket No. 1). Gonzalez asserts that the United States, as owner of the vessel SBX-1, is liable for injuries incurred by Gonzalez while working aboard the SBX-1. (Id.) The Suits in Admiralty Act permits a worker injured on a Government-owned vessel to sue the United States based on the duties owed by a privately-owned vessel to workers. 46 U.S.C. § 30903(a). The Longshoremen and Harbor Workers Compensation Act ("LHWCA") provides protection for persons "engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker ..." 33 U.S.C. § 902(3). The LHWCA excludes from recovery any "master or member of any crew of any vessel." Id. at § 902(3)(g). These crewmen may instead only seek recovery under the Jones Act. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 553, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). The LHWCA and the Jones Act are mutually exclusive and permit different claims. Id. (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 355-56, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)).

Gonzalez's injuries occurred while the SBX-1 was at sea in March of 2005. (Docket No. 1). This created a scenario where Gonzalez, clearly otherwise considered an employee covered by the LHWCA, could possibly be considered a seaman subject to the Jones Act. For the reasons that follow, however, this Court finds that the LHWCA governs Gonzalez's claims. The Complaint sets out claims of negligence and seaworthiness, but makes no mention as to whether these claims are governed by the LHWCA or the Jones Act.¹ (Id.) The Government's Motion for Summary Judgment construed the Complaint as asserting claims under the LHWCA. (Docket No. 21, 22). The Government addressed Gonzalez's allegations based on the three duties owed by vessels to workers under the LHWCA. (Id.) The summary judgment motion also asserted that Gonzalez's claim of unseaworthiness was barred by the LHWCA. (Id.) A seaworthiness claim is available when suing under the Jones Act, but not when suing under the LHWCA. See 33 U.S.C. § 905(b) (barring a claim of seaworthiness under the LHWCA); Miles v. Apex Marine Corp., 498 U.S. 19, 28-30, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (permitting a claim of seaworthiness under the Jones Act).

Gonzalez's response to the Government's summary judgment motion only addressed the duties of a vessel under the LHWCA. (Docket No. 27). The response did not mention of the Jones Act. (Id.) Gonzalez made no defense of his seaworthiness claim. (Id.) This Court finds that Gonzalez has conceded that the LHWCA is applicable to this action and that the record on summary judgment does not otherwise support the application of the Jones Act to Gonzalez's claims. Thus the Court hereby renders judgment in the Government's favor with regard to Gonzalez's seaworthiness claim.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party must go beyond the pleadings and provide specific facts showing that there is a genuine issue for trial. Id. at 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material fact is genuine if "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

The court should not, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). The nonmoving party's burden is not satisfied simply by creating some metaphysical doubt as to the material facts or by providing only conclusory allegations, unsubstantiated assertions or a scintilla of evidence. Id. (citations omitted). A court will resolve factual controversies in favor of the nonmoving party "only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Id.

III. A VESSEL'S DUTIES AFTER SCINDIA STEAM NAVIGATION CO. v. DE LOS SANTOS

The Supreme Court set out a vessel's duties under the LHWCA in Scindia Steam Navigation Co. v. De Los Santos. See generally 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981); see also Hill v. Texaco, 674 F.2d 447, 451 (5th Cir.1982) (holding the Scindia duties applicable to all independent contractors and employees covered by the LHWCA). The primary responsibility for the safety of a ship repair worker or a shipbuilder rests with his employer, the independent contractor ("contractor") hired to perform the ship repair or shipbuilding task. See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th Cir.1992) (citing Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir.1990)); see Futo v. Lykes Bros. S.S. Co., Inc., 742 F.2d 209, 213 (5th Cir.1984). In this case, Gonzalez was employed by Isidoros Welding Service to provide pipefitting services aboard the SBX-1. During the sea trial, Gonzalez was employed to perform similar services as part of the AmFELS Engineering Department.

Contractors have the primary responsibility for their employees' safety, and as such, must avoid exposing their employees to unreasonable hazards. Moore v. M/V Angela, 353 F.3d 376, 380 (5th Cir.2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994)); see Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 170, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981); Futo, 742 F.2d at 213 (citing Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983)). The Fifth Circuit has recognized certain duties a vessel has under Scindia with regard to a contractor's employees, even though the contractor bears the primary responsibility for its employees' safety. Moore, 353 F.3d at 380 (citing Howlett, 512 U.S. at 98, 114 S.Ct. 2057); Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997). These include: (i) the turnover duty; (ii) the active control duty; and (iii) the duty to intervene. Moore, 353 F.3d at 380.

The turnover duty relates to the condition of the ship upon the commencement of the contractor's operations. Moore, 353 F.3d at 380. The vessel owner must exercise ordinary care to turn over the ship and its equipment in a condition such that an expert and experienced contractor can carry on its operations with reasonable safety. See Howlett, 512 U.S. at 98, 114 S.Ct. 2057 (quotations omitted). A vessel owner has "active control" over an area of the ship and retains primary responsibility for the safety of workers in that area if: (1) the vessel's crew retained substantial control over the area; or (2) the vessel's crew substantially interfered, by invitation or otherwise, with the contractor's exercise of exclusive control by actively intervening in the area. Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 541 (3d Cir.1994); see Scindia, 451 U.S. at 167, 101 S.Ct. 1614; Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir.1997) (holding vessels retain primary responsibility for safety in "areas and equipment over which the vessel's crew retains operational control"); Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir.1992) (citing Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505, 512-13 (5th Cir.1984)); Cook v. Exxon Shipping Co., 762 F.2d 750, 752 (9th Cir.1985) (finding a contractor who provided direct supervision and orders to a contractor and its employees demonstrated active control). The duty to intervene attaches only when the vessel owner has actual knowledge that a dangerous condition exists and that the contractor, in the exercise of obviously improvident judgment, cannot be relied upon to remedy the condition. Greenwood, 111 F.3d at 1248 (citing Scindia, 451 U.S. at 175, 101 S.Ct. 1614); Pimental, 965 F.2d at 17 (citing Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir.1990)).

IV. SUMMARY JUDGMENT EVDENCE

A. The SBX-1 Project

This action involves an injury sustained by Gonzalez during the March 2005 sea trial of the SBX-1. (Docket No. 1). The SBX-1 is a twin-hulled, semi-submersible vessel developed for the United States' Ground-Based Midcourse Defense ("GMD") program. (United States Motion for Summary Judgment, Exhibit 3, Declaration of Darren Harvey [hereinafter Harvey Decl.] at ¶ 2). The SBX-1 is a converted oil platform equipped with an Xband...