Jones v. Cooper/T. Smith Stevedoring
| Decision Date | 30 April 2009 |
| Docket Number | Civil Action No. 08-3879. |
| Citation | 613 F.Supp.2d 815 |
| Parties | John JONES v. COOPER/T. SMITH STEVEDORING COMPANY, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
Randy Jay Ungar, George Warren Byrne, Jr., Hal D. Ungar, Ungar & Byrne, New Orleans, LA, for Plaintiff.
Jason P. Waguespack, David N. Loria, Frederick William Swaim, III, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant.
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by defendant, Cooper/T. Smith Stevedoring Company, Inc. ("Cooper"), seeking dismissal of the above-captioned matter on the ground that plaintiff cannot maintain his remaining claim against Cooper for vessel negligence under 33 U.S.C. § 905(b). For the following reasons, Cooper's motion for summary judgment is GRANTED.
In March, 2008, Cooper hired plaintiff, John Jones ("Jones"), from the Longshoreman Local Union "shapeup" yard in Darrow, Louisiana to assist in unloading cargo from an ocean-going ship, the M/V MASS ENTERPRISE, located offshore in the Mississippi River.1 The ship's cargo was transferred by the crane of a Cooper-owned derrick barge to an adjacent cargo barge, which was moored to Cooper's derrick barge.2 Jones was assigned to unhook cargo lifted by the derrick barge crane while he remained in the hold of the cargo barge.3 According to Cooper, neither the ship being discharged nor the barge where Jones was positioned were owned by Cooper.4
On March 15, 2008, Jones was allegedly injured when he was struck by cargo while working aboard the cargo barge.5 Jones filed this lawsuit against Cooper pursuant to the General Maritime Law and the Jones Act, alleging that the barge upon which he was working was unseaworthy and that Cooper was negligent in failing to provide a safe place to work, "[f]ailing to avoid striking plaintiff with the crane load," failing to properly supervise the task, "[f]ailing to operate the crane in a reasonably safe manner," "[f]ailing to warn plaintiff of the impending impact," and "[flailing to assign properly trained personnel to perform the task at issue."6 Following permission by the U.S. Magistrate Judge, Jones amended his complaint on February 6, 2009, adding an alternative claim for vessel negligence under 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA").7
On February 9, 2009, this Court granted Cooper's motion for summary judgment and dismissed his Jones Act claims on the ground that Jones could not qualify as a seaman. Cooper now moves to dismiss Jones' sole remaining claim, arguing that Jones cannot maintain a cause of action for vessel owner negligence under § 905(b) because Jones' alleged injury resulted from stevedoring services, i.e., the operation of a crane in unloading cargo, as opposed to any negligence of Cooper as a vessel owner. Jones responds that his injury resulted not just from the negligent operation of the crane, but also from the negligence of agents of the vessel owner.8
Summary judgment is proper when, after reviewing "the pleadings, the discovery and disclosure materials on file, and any affidavits," the court determines there is no genuine issue of material fact. Fed. R.Civ.P. 56(c). The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 274 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 274; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir.1986). If, on the other hand, the moving party bears the burden of proof on an issue, it "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot, 780 F.2d at 1194.
Once the party seeking summary judgment carries its burden pursuant to Rule 56(c), the other party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986). The showing of a genuine issue is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,' `unsubstantiated assertions,' or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations omitted). Instead, 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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-12 (1986). 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. Id. 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, 106 S.Ct. at 2513, 91 L.Ed.2d at 216; see Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 1551-52, 143 L.Ed.2d 731, 741 (1999).
Under the LHWCA, an employer must pay compensation benefits to a covered employee regardless of whether the employer was at fault. 33 U.S.C. § 904; Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir.1991). Such compensation is an employee's exclusive remedy against his employer. Levene, 943 F.2d at 531. "Section 905(a) affords employers full immunity from tort suits by providing that compensation benefits `shall be exclusive and in place of all other liability of such employer to the employee ...'" Id.
"Under 905(b), the same worker may pursue a tort action against the owner of a vessel for acts of negligence." Id. However, the language of 905(b) makes it clear that the vessel owner may not be sued when the injury was caused by the negligence of those performing stevedoring services. 33 U.S.C. 905(b); Id. at 532.9 The primary responsibility for the longshoremen's safety rests with the stevedore. Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir.2007) (quoting Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir.1996)). However, following the United States Supreme Court's decision in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the United States Court of Appeals for the Fifth Circuit recognized limited circumstances where a vessel owner may be liable to a longshoreman injured during stevedoring operations:
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.
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 v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir.2007) (citing Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th Cir.1992)).
A vessel owner who conducts its own stevedoring operations and employs longshoremen to conduct such operations is subject to the above-mentioned Scindia duties with respect to vessel negligence. Levene, 943 F.2d at 532-33; Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302 (5th Cir.1984). However, "[w]hen an employer acts in a dual capacity as vessel owner, the entity retains its immunity for acts taken in its capacity as an employer, but may still be sued `qua vessel' for acts of vessel negligence." Levene, 943 F.2d at 531 (citing Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 532 103 S.Ct. 2541, 2548, 76 L.Ed.2d 768 (1983)). "[A] vessel owner acting as its own stevedore is liable only for negligence in its `owner' capacity, not for negligence in its `stevedore' capacity.'" Castorina v. Lykes Bros. Steamship Co., 758 F.2d 1025, 1032 (5th Cir.1985) (quoting Pfeifer, 462 U.S. at 530, 103 S.Ct. 2541). "This means that the employer is not liable for negligence indiscriminately, but only for negligence specifically attributable to his `vessel owner' capacity." 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 7-10(4th ed.) As such, the capacity in which the employer/vessel owner acts is "extremely important" with respect to recovery under § 905(b). Levene, 943 F.2d at 531.
The fact that the vessel owner performs its own stevedoring operations and employs longshoremen does not impose a greater duty of care upon the vessel owner.' Castorina, 758 F.2d at 1033 (). Nor does the vessel owner's dual function as a stevedore subject it to liability for injuries caused by those performing stevedoring services. Id.; Durr v. Global Marine, Inc., 673 F.2d 740, 740 (5th Cir.1982); Cavalier v. T. Smith & Son, Inc., 668 F.2d 861, 862 (5th Cir.1982) ().
Instead, courts must "separate the negligence of the shipowner and that of the stevedore, even when the shipowner performs its own stevedoring activities." Castorina, 758 F.2d at 1033. The Fifth Circuit explained the danger of blurring the...
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