Tauzier v. East

• Decision Date: 29 April 2016
• Docket Number: CIVIL ACTION CASE NO. 15-1634
• Citation: 183 F.Supp.3d 768
• Parties: Wayne A. Tauzier, Jr. v. Adfines East, et al.
• Court: U.S. District Court — Eastern District of Louisiana

183 F.Supp.3d 768

Wayne A. Tauzier, Jr.

v.Adfines East, et al.

CIVIL ACTION CASE NO. 15-1634

United States District Court, E.D. Louisiana.

Signed April 29, 2016

Lawrence Blake Jones, David Christopher Whitmore, Kristi Ann Post, Scheuermann & Jones, New Orleans, LA, for Wayne A. Tauzier, Jr.

Robert Hugh Murphy, Timothy David Depaula, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Adfines East, et al.

SECTION: "G"(5)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant Southtank Three Shipping Corp. Ltd. ("Southtank") "Motion for Summary Judgment."¹ Having considered the motion, the memoranda in support and in opposition, the applicable law, and the record, the Court will grant the motion.

I. Background

In this litigation, Plaintiff Wayne A. Tauzier, Jr. ("Tauzier"), a marine technician helper employed by Fire Protection Service, Inc. ("FPS") alleges that he was injured in a fall while he inspected and tested the CO₂fire suppression system aboard the M/V ADFINES EAST ("Vessel"), owned by Southtank.² On June 12, 2014, Tauzier, along with Kenneth McDonald ("McDonald"), another FPS marine technician, boarded the Vessel to inspect and test the vessel's fire equipment and were escorted to the vessel's CO₂room by a vessel crew member.³ The vessel crew, however, did not aid or assist the FPS personnel in performing the system inspection or testing.⁴

The Vessel's CO₂room consisted of a center walkway with three rows of cylinders running forward to aft on either side of the aisle.⁵ While attempting to reach the row of cylinders furthest from the center aisle—Row C—, Tauzier stepped on an L-shaped securing bracket, which was secured to a threaded rod running through the center of each securing bracket.⁶ The center rod was secured to the securing bracket by a nut.⁷ Each L-shaped angle iron was two to three feet long and fixed in a horizontal position.⁸

As part of the normal FPS procedure to test the Vessel's CO₂

system, the FPS employees inserted a safety pin into the valve at the top of each cylinder.⁹ On June 12, 2014, Tauzier was inserting safety pins into the CO₂cylinder valves on the right side of the aisle, while McDonald was doing the same work on the cylinders on the left side of the aisle.¹⁰ Although Plaintiff was able to insert safety pints into the cylinder valves of the tanks in the two rows closest to the aisle—Rows A and B—, he was unable to reach the valves on the Row C cylinders due to his height and the length of his arm.¹¹ Therefore, in order to reach the Row C cylinders, Tauzier stood on the lower angle iron securing brackets that held the cylinders in place.¹² Before stepping on each angle iron, Plaintiff checked the security of the securing bracket by pushing down on one end of the angle iron with one hand and pulling up the other end of the angle iron with the other hand.¹³ Plaintiff did so because he knew that the bracket might move and that one of the risks of stepping on the brackets was that it could move or shift under his weight.¹⁴

Just prior to his accident, Tauzier performed a check on the lower securing bracket from which he subsequently fell, and felt that the angle iron was tight and firmly in place, and did not move from its horizontal position.¹⁵ Before the accident, he stepped onto the angle iron securing bracket and straddled the center rod and nut with one foot on each end of the bracket, and did not feel the bracket move while he was straddling the center bolt.¹⁶ However, perhaps after Plaintiff shifted his feet by picking up one foot to move it, the securing bracket shifted from its horizontal position to vertical, although it did not break.¹⁷ Although Tauzier was holding onto piping above the cylinders

with his left hand to brace himself, once the securing bracket suddenly shifted, Plaintiff's feet fell to the deck and he injured his left shoulder.¹⁸

Plaintiff filed a complaint in this matter alleging that Southtank was negligent under 33 U.S.C. § 905(b) on May 14, 2015.¹⁹ On March 1, 2016, Southtank filed the instant motion for summary judgment.²⁰ Tauzier filed a memorandum in opposition on March 8, 2016,²¹ to which Southtank filed a reply on March 16, 2016.²²

II. Parties' Arguments

A. Defendant's Arguments in Support of Motion for Summary Judgment

In its motion, Southtank argues that the law is patently clear that a vessel owner is under no duty to protect a contractor's employee from risks that were inherent in carrying out the contractor's repairs, inspection, and testing aboard the vessel, and the contractor is responsible for making sure his employees perform those operations safely.²³ Southtank avers that Plaintiff has the burden of proving that Southtank was negligent pursuant to 33 U.S.C. § 905(b), and that the Fifth Circuit has repeatedly affirmed summary judgments dismissing claims like the ones in this case.²⁴ According to Southtank, the undisputed material facts in this case establish that Plaintiff cannot carry his burden of proof under § 905(b) because there is no evidence that the Vessel breached any of the very limited duties owed by a vessel under § 905(b).²⁵

Southtank contends that Tauzier was an employee subject to the Longshore & Harbor Workers Compensation Act ("LHWCA"), and in Scindia Steam Navigation Co. v. De Los Santos²⁶ and Howlett v. Birkdale Shipping Co. ,²⁷ the U.S. Supreme Court articulated the scope of a vessel's duties to longshoremen and harbor workers under § 905(b).²⁸ Southtank argues that, under Fifth Circuit precedent, a vessel's § 905(b) duties to LHWCA-covered workers aboard a vessel are "narrow."²⁹ Southtank avers that Scindia and Howlett established that the starting point for any discussion of a vessel's potential liability under § 905(b) is the recognition that the contractor has the overriding responsibility for the safety of its workers.³⁰

Southtank quotes the Supreme Court's decision in Scindia , which explained that a stevedore was required to provide "a reasonably safe" place to work and to take such safeguards with respect to equipment and working conditions as necessary to avoid injury to longshoremen, but the ship owes no such duty to them, and a vessel may rightfully expect that a stevedore would perform his task properly without supervision by the ship.³¹ Southtank also relies on Helaire v. Mobil Oil Co . , in which the Fifth Circuit stated that "[t]he most basic principle which emerges from Scindia is that the primary responsibility for the safety of the longshoremen rests upon the stevedore."³² Therefore, Southtank argues, although FPS is statutorily required by 33 U.S.C. § 941 to provide its employees with a reasonably safe place of employment and to furnish equipment reasonably necessary to protect the safety of its employees, the Supreme Court and the Fifth Circuit have consistently recognized that it is the duty of the employer, such as FPS, and not the vessel owner, to require an employee, such as Tauzier, to use safety equipment.³³

According to Southtank, Scindia and Howlett also made clear that a vessel owner need not monitor the independent contractor's operations, but rather can rely on the contractor to exercise reasonable care to carry out its work with reasonable safety.³⁴ Southtank asserts that Scindia further established that the vessel is entitled to assume that the independent contractor and its employees are "expert and experienced" and will themselves exercise reasonable care to carry on their work with reasonable safety.³⁵ Moreover, Southtank argues, the ship owner can rely on the contractor's judgment that a condition of the vessel and its equipment, though dangerous, is safe enough.³⁶ Therefore, Southtank asserts, although the employer has a broad, primary duty to ensure its employees' safety, a ship owner's duty to an independent contractor's employees is "narrow."³⁷ According to Southtank, a ship owner can be liable under § 905(b) only in three limited circumstances:

1. If the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known, but which a reasonably careful expert contractor would not be expected to discover—the "Turnover Duty";

2. For injury caused by hazards under the active control of the ship—the "Active Control Duty"; and

3. If the vessel owner fails to intervene in the contractor's operat[ions] when he has actual knowledge both of an unreasonable hazard and that the contractor, in the exercise of "obviously improvident" judgment, intends to work on in the face of it, and therefore cannot be relied on to remedy it—the "Duty to Intervene."³⁸

Here, Southtank argues, the only possible duty at issue is the Turnover Duty.³⁹ According to Southtank, the Active Control Duty is inapplicable because a prerequisite for application of the duty is "actual control by the vessel over the actual methods and operative details" of the repairman's work, and the undisputed evidence in this case establishes that the Vessel's CO₂room had been turned over to the FPS personnel and was not under the Vessel's actual control at the time of the incident.⁴⁰ In addition, Southtank contends, the Duty to Intervene is inapplicable because there is no evidence suggesting that any member of the vessel's crew actually knew that Plaintiff and McDonald were standing on securing brackets at the time of the incident, and Plaintiff testified that no vessel crewmember was present in the CO₂room at the time of his accident.⁴¹ Southtank argues that there is similarly no evidence that the Vessel's crew had actual knowledge that the activity of standing on a securing bracket presented an unreasonable risk of harm to an expert and experienced technician exercising reasonable care, or that FPS was acting "obviously improvident[ly]" in failing to protect Plaintiff from the potential hazard.⁴²

Therefore, Southtank avers, Plaintiff can only recover on his § 905(b) claim if he establishes that Southtank breached the Scindia Turnover Duty, which, although...