Levene v. Pintail Enterprises, Inc.

• Decision Date: 19 September 1991
• Docket Number: No. 90-4155,90-4155
• Citation: 943 F.2d 528
• Parties: Lester LEVENE, Sr. and Shirley Levene, Plaintiffs-Appellants, American Casualty Company of Reading, Pennsylvania, Intervenor-Appellant, v. PINTAIL ENTERPRISES, INC., Lloyds of London and Scottsdale Insurance Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 528

943 F.2d 528

1992 A.M.C. 2381

Lester LEVENE, Sr. and Shirley Levene, Plaintiffs-Appellants American Casualty Company of Reading, Pennsylvania Intervenor-Appellant, v. PINTAIL ENTERPRISES, INC., Lloyds of London and Scottsdale Insurance Company, Defendants-Appellees.

No. 90-4155.

United States Court of Appeals Fifth Circuit.

Sept. 19, 1991.

Rehearing and Rehearing En Banc

Denied Oct. 25, 1991.

John E. McElligott, Philip A. Fontenot, Davidson, Meaux, Sonnier, McElligott & Swift, Lafayette, La., for plaintiffs-appellants.

John R. Walker, Guglielmo, Lopez, Tuttle & Walker, Opelousas, La., for intervenor-appellant.

James R. Sutterfield, Campbell E. Wallace, Hoffman, Sutterfield, Ensenat & Bankston, New Orleans, La., Voories & Labbe, John Nickerson Chappuis, Lafayette, La., for defendants-appellees.

H. Evans Scobee, Durrett, Hardin Hunter, Baton Rouge, La., for Scottsdale Ins. Co.

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

Before WISDOM, KING and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

The principal question in this appeal is whether a vessel owner owes any duties other than those enumerated in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), to its non-stevedore employee conducting operations on a separate vessel. The district court, applying the Scindia standards, found that the vessel owner breached no duty to its employee, and dismissed the employee's claims. We agree with the district court's conclusion that Scindia provides the proper framework for analysis in this case, and accordingly affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

The district court found the following facts, which we accept as not clearly erroneous. Kendall v. Block, 821 F.2d 1142, 1146 (5th Cir.1987); O'Malley v. United States Fidelity & Guaranty Co., 776 F.2d 494, 497 (5th Cir.1985).

Lester Levene was employed by Pintail Enterprises primarily as a heavy equipment operator, but he occasionally performed other work for Pintail as needed. On the morning of February 7, 1986, Captain Preston Hebert, a Pintail employee, inspected the M/V SUTTON, a tugboat chartered and operated by Pintail, and determined that the SUTTON was fit for its intended voyage. Levene, Hebert and Kevin Warner, another Pintail employee, boarded the SUTTON and proceeded to a drilling site, where they performed their daily work. Hebert then was instructed to proceed to Broussard Bros., a barge facility in Intracoastal City, Louisiana, to pick up a barge for the next day's work. En route, night fell and rain began to fall. The crew was to pick up a barge, known as the BB-243, but they found another barge, the BB-242, blocking their access. ¹ It was thus necessary to untie the BB-242 and move it out of the way.

Captain Hebert positioned the SUTTON's bow against the side of the BB-242 and aimed the SUTTON's spotlight down the middle of the barge. He then sent Levene and Warner onto the BB-242 and instructed them to untie the lines from the mooring bits at opposite ends of the barge. By this time the rain was steady, wind was blowing, and there was thunder and lightning.

Because of the positions of the SUTTON and the BB-242, the spotlight provided adequate illumination down the middle of the barge, but the light tapered off and became dim at the ends of the barge where the mooring bits were located. Despite the rain and poor visibility, Levene and Warner proceeded to carry out Captain Hebert's instructions. They could see a variety of objects on the deck of the BB-242, including oilfield equipment and scrap material. Levene intended to go to the mooring bit at the far right corner, but the obstructions forced him to walk initially toward the near right corner. After finding a clear route, Levene changed his course and walked directly toward the far right bit. He did this despite the presence of scrap material and grease in his path. Halfway to the mooring bit, Levene slipped and injured his knee. He continued with the linehandling operation, and then returned to the SUTTON and told Hebert about the accident.

Levene filed suit against Pintail, Broussard Bros. (owner of the barge) and Lee Bernard (owner of the SUTTON) ² under the Jones Act, 46 U.S.C.App. § 688, and the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), alleging that Pintail, Bernard and Broussard negligently caused the injury he sustained on the BB-242. The district court granted the defendants summary judgment on the Jones Act claim and conducted a bench trial on the LHWCA claim against Pintail. ³ He amended his complaint to add certain of the defendants' insurers. ⁴ The court agreed with Pintail that Levene's allegations of negligence--including Pintail's failure properly to illuminate the work area on the BB-242, its failure to clear a path or warn Levene of hazards on the barge, and its insistence on working in bad weather--constituted the potential negligence of Levene's employer. The court held that Pintail's statutory immunity from tort suit for negligent acts taken in its capacity as Levene's employer barred recovery for these acts. The court further held that Pintail had not committed any acts of vessel negligence in its capacity as owner of the SUTTON. The court concluded that there were no unreasonably dangerous conditions aboard the SUTTON of which Levene was not warned, and that Pintail came under no duty to intervene to prevent any injury during the line-handling operation. The court entered judgment dismissing all of Levene's claims, and Levene filed this appeal.

II. ANALYSIS

To recover under the LHWCA, a worker must be engaged in maritime employment and be injured on a maritime situs. Northeast Marine Terminal v. Caputo, 432 U.S. 249, 255, 97 S.Ct. 2348, 2353, 53 L.Ed.2d 320 (1977). The LHWCA provides for two different types of liability. Under § 904, a covered worker may receive compensation benefits from his employer without regard to fault. Under § 905(b), the same worker may pursue a tort action against the owner of a vessel for acts of vessel negligence. Thus, for example, a longshoreman working for an independent stevedore may recover benefits from his employer and may pursue a separate action in tort against the owner of the vessel on which he was injured. He may not, however, sue his employer in tort. 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...."

Frequently, however, a longshoreman is injured on a vessel owned by his employer. When 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. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 532, 103 S.Ct. 2541, 2548, 76 L.Ed.2d 768 (1983); Kerr-McGee Corp. v. Ma-Ju Marine Serv., Inc., 830 F.2d 1332, 1339 (5th Cir.1987). The difference between the capacities in which an employer may act is extremely important. The availability of a tort remedy for vessel negligence is a limited exception to the general structure of the LHWCA, ⁵ which, like state workers compensation schemes, generally replaces negligence causes of action against employers with a system of predetermined, standardized benefits. Therefore, we have held that an employer that also functions as a vessel owner is liable for vessel negligence under the same negligence standards applicable to an independent vessel owner. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1033 (5th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985) ("duty is neither heightened nor diminished when the longshoreman is employed directly by the vessel"). The LHWCA absolutely bars suit for all other acts taken in the capacity as the employer of the injured worker.

This case is like Jones & Laughlin in that Pintail occupied a dual capacity as Levene's employer and vessel owner. Levene contends, however, that Pintail as employer is not immune from an action sounding in negligence because the principles of employer immunity under the LHWCA apply only to injured stevedores. We reject this argument as contrary to the plain language of the LHWCA and the consistent holdings of our cases. A better argument, and, we think the one that presents the important question in this appeal, is that Pintail had a duty broader than that set forth in Scindia to protect Levene from injury on a barge separate from the Pintail vessel.

A. Applicability of Employer Immunity

Levene first argues that Pintail has no immunity in its capacity as employer because Levene and Captain Hebert were not performing stevedoring operations. He contends that "Pintail does not enjoy statutory immunity if its negligence does not arise out of 'stevedoring services.' To enjoy the statutory immunity, Pintail must demonstrate that (1) the captain was performing stevedoring services and (2) Lester Levene was performing stevedoring services." (emphasis in original). Levene appears to derive this argument from the following sentence in § 905(b), the section which provides for an action against a vessel for vessel negligence:

If [an injured worker] was employed by the vessel to provide stevedoring services, no [negligence action against the vessel] shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.

33 U.S.C. § 905(b). Having concluded that Pintail is not immune from liability for acts of negligence in its capacity as employer, Levene contends that Captain Hebert's decision to continue working despite the weather, his failure to provide adequate illumination, and his failure to provide a safe place to work should result in a finding that Pintail is liable for his injury.

We think Levene misconstrues both §...