Green v. U.S.A
| Decision Date | 23 March 2010 |
| Docket Number | Case No. 3:07-cv-638-J-34MCR. |
| Parties | Joel W. GREEN, Plaintiff,v.UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
COPYRIGHT MATERIAL OMITTED
Gary A. Bubb, Gary A. Bubb, PA, Ben J. Weaver, Harrell & Harrell, PA, Jacksonville, FL, Howard Thomas Sutter, Boyd & Sutter, PA, Jacksonville, FL, for Plaintiff.
Matthew J. Glomb, Sharon K. Shutler, U.S. Department of Justice, Washington, DC, Roberto H. Rodriguez, Jr., US Attorney's Office, Jacksonville, FL, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On January 26, 2006, Joel Green was injured while performing contract repair work aboard the M/V CAPE EDMONT (Cape Edmont) for his employer, North Florida Shipyards, Inc. (NFSI). Plaintiff filed suit against the United States of America, owner of the vessel, for negligence, pursuant to the waivers of sovereign immunity contained in the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918(SAA), and the Public Vessels Act, 46 U.S.C. §§ 31101-31113(PVA),1 and pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901- 950.2 NFSI, Plaintiff's employer, and American Longshore Mutual Association, Ltd. (ALMA), NFSI's LHWCA workers compensation carrier, joined the action as intervening parties pursuant to Rule 24, Federal Rules of Civil Procedure (Rule(s)).
The Court conducted a six-day bench trial in May 2009,3 and thereafter, the parties submitted their proposed findings of fact and conclusions of law. See United States' Findings of Fact and Conclusions of Law (Doc. No. 101; Defendant's Proposed Findings and Conclusions); Plaintiff's Proposed Findings of Fact and Conclusions of Law (Doc. No. 102; Plaintiff's Proposed Findings and Conclusions). Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel as well as the remainder of the record, the Court makes the following findings of fact and conclusions of law as required by Rule 52(a).I. Findings of FactA. Background
The United States, through the Maritime Administration (MARAD), an agency within the Department of Transportation, owns the Cape Edmont, which is a public vessel. Marine Transport Lines (MTL) holds a long-term contract with MARAD to manage six vessels, including the Cape Edmont. In managing the Cape Edmont, MTL arranges for repairs and maintenance as necessary. At all times material to this suit MTL acted as an agent of the United States.
The Cape Edmont, a Ready Reserve Vessel, is berthed in Charleston, South Carolina. At the time of the incidents relevant to this action, it was on Reduced Operating Status (ROS) awaiting activation. While on ROS, the vessel's crew was reduced from twenty-eight members to ten, with chief engineer Frederick MacNeil serving as the highest ranking officer. As a MARAD Ready Reserve Vessel, the Cape Edmont is documented and inspected by the United States Coast Guard.
B. Steel Renewal Project
While the Cape Edmont was docked at Detyens Shipyard in South Carolina, a surveyor determined that the steel in the vessel's ballast tanks did not meet the American Bureau of Shipping (ABS) specifications. This deficiency required the Cape Edmont to undergo a steel renewal project in order to maintain its certification with the Coast Guard. At the time of the discovery of the steel deficiency, the Cape Edmont was undergoing several other repair operations. MTL's crew was involved in, and to some extent preoccupied with, these other projects. Additionally, MTL's normal port engineer was unavailable due to personal matters. The steel renewal project, which represented a substantial undertaking, involved sensitive work. Its late discovery put MTL “behind the eight ball” with respect to the Cape Edmont's Coast Guard certification, making timely completion of the steel renewal project important.
The steel renewal project was beyond the scope of Detyens contract, thus MTL put the project out for bid, eventually awarding it to NFSI. Additionally, because of both the substantial nature of the project and because of MTL's internal personnel conflicts, MTL elected to retain Clyde “Robbie” Roberts to act as port engineer for the steel renewal project. In contrast to NFSI, Roberts did not win the project by bid. Rather, MTL specifically chose him for the task because of his experience with steel and his prior work with MTL. Even if MTL's full roster of regularly employed port engineers had been available for the job, MTL still would have brought in Roberts, an outside specialist, due to the specialized and sensitive nature of the work.
C. MTL's Contract with NFSI
After NFSI won the steel renewal contract by lowest bid, MTL retained NFSI to complete the necessary repair work. The contract between NFSI and MTL provided that NFSI was to furnish the labor, materials, and equipment necessary for its repair work, including ventilation equipment. The contract also called for NFSI to obtain marine chemist certification 4 that the work areas were gas free and safe for “hot work,” 5 requiring NFSI to obtain certification prior to commencing hot work in the ballast tanks undergoing the repair operations and to maintain the certification throughout work on the project.
D. MTL's Contract with Roberts
Rather than put the port engineer job for the steel renewal project to bid, MTL specifically chose and retained Roberts for the job because of his experience working with steel and with MTL. Roberts testified that he works as a “private contractor, basically a consultant, in the marine industry.” 6 Roberts dealt directly with MTL, and was retained, paid, and supervised by MTL,7 not MARAD.
Both Roberts and MTL understood Roberts to be an independent contractor, and not an MTL employee. In contrast to MTL's employees, Roberts did not receive employment benefits. He was not paid a regular salary; rather, he sent invoices to MTL for his work. MTL retained Roberts for the specific purpose of supervising the steel renewal project and two additional minor projects. 8
The contract between Roberts and MTL was oral and was not reduced to writing. 9 The terms of the contract provided for Roberts to ensure that NFSI timely and satisfactorily completed the steel renewal project to the correct technical specifications. Ernie Otterspoor, MTL's president and CEO, supervised Roberts's performance of his contract. Otterspoor retained Roberts and was familiar with the terms of his agreement. Based upon Otterspoor's understanding of the agreement, Roberts had no specific safety responsibility, but he was supposed to bring any safety hazards he noticed to NFSI's attention. Otterspoor understood Roberts to have the obligation to bring to NFSI's attention anything he noticed that, safety wise, was hazardous or inappropriate. Roberts also understood part of his job to be to ensure that NFSI followed appropriate safety procedures. For example, although Roberts did not view it as his job to ensure that ventilation for hot work aboard the Cape Edmont was adequate, he did view it as his responsibility to monitor ventilation and get any deficiencies he noticed corrected. Roberts had authority to shut down the project, if necessary, to rectify unsafe working conditions.
E. MARAD Involvement1. Roberts Contact with MARAD
Roberts had no direct contact with any government agency, including MARAD. He dealt exclusively with MTL. MARAD did not reimburse MTL for Roberts's salary.
Roberts did not report to MARAD and was not supervised by MARAD. Indeed, throughout his work on the Cape Edmont, Roberts never dealt with MARAD.
2. MTL Contact with MARAD
As MARAD's ship manager and agent, MTL's interaction with MARAD was generally through MARAD's contracting officer's technical representative (COTR), Jesse Whittaker. As the COTR, Whittaker made sure that MTL performed its ship management duties in accordance with its contract with MARAD. This job required Whittaker to periodically visit the MTL-managed vessels, including the Cape Edmont, to document repair work and ensure appropriate funding. As part of his general oversight, Whittaker, usually accompanied by Otterspoor, generally spent “a minimum amount of time, no more than a few minutes on each ship.”
F. Ship Structure
The Cape Edmont is a RO/RO, or roll-on/roll-off, vessel, meaning it is specifically designed to have cargo vehicles drive on and off the ship. The vessel has a retractable stern ramp that provides access to the “B deck” of the vessel. Workers aboard the Cape Edmont used this ramp to board and exit the ship. Below B deck, toward the aft end of the ship, the vessel has starboard and port ballast tanks, separated in the center by the steering gear flat and steering equipment.
G. Beginning Work on the Project
NFSI began work on the steel renewal project on January 16 or 17, 2006. NFSI used approximately 10 to 12 employees, most of whom began work on the first day but some of whom filtered in later. On the first day of the project, NFSI workers primarily unloaded equipment and set up for the job. The second day, they were assigned to their work spaces. Jim Burgess, who supervised the project on behalf of NFSI, acted as Plaintiff's second-line supervisor and passed out the work assignments. Giau Tran acted as Plaintiff's first-line supervisor. On January 17, NFSI began hot work on the Cape Edmont, and on January 20 or 21, NFSI specifically began hot work within the starboard aft peak tank of the Cape Edmont. Plaintiff's accident occurred in connection with hot work within the starboard aft peak tank on January 26, 2006.
H. Marine Chemist Certification
Prior to beginning hot work, OSHA regulations require certification by a marine chemist that the workspace is safe for hot work. Burgess brought in David Miller of Marine Environmental Testing, Inc. (MET) to perform the necessary inspections. When Miller arrived on the morning of January 17, hot work had...
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