Opinion
Civil Action No. 00-2459.
January 2, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Seacor Marine, Inc. For the reasons that follow, the motion is DENIED.
A. BACKGROUND
On September 3, 1999, plaintiff, Sidney Bourda, was struck in the leg by a four-inch hose, pressurized with water, while working aboard the M/V Gerard Jordan as part of a tank cleaning crew employed by Production Management Industries ("PMI"). The incident occurred during a part of the cleaning operations known as "blowing" the lines. After the PMI crew had removed the mud from the vessel's tanks, the vessel's engineer connected a hose between two fixed hard pipe connections on the deck (so that water from the vessel's ballast tank could be pumped into the vessel's mud tank system) and then went below deck and activated the water pump. See Seacor's Memo at pp. 1, 3-4. The hose kinked and the metal coupling attaching the hose to the pipe connection cracked in halt causing the hose to swing about the deck.
On August 18, 2000, plaintiff brought this action against Seacor, the vessel operator, alleging negligence under the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. § 905(b), and seeking damages for alleged back and knee injuries. PMI intervened, seeking to recover $1,761.15 in medical expenses paid on behalf of the plaintiff.
B. LAW AND ANALYSIS
The Supreme Court laid out the scope of the shipowner's duty under § 905(b) in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The duty has three basic aspects: (1) a "turnover" duty, which is a duty "`to turn over the ship and its equipment . . . in such condition that an expert and experienced . . . contractor . . . will be able by the exercise of ordinary care to carry on . . . operations with reasonable safety;'" (2) an "active control" duty, which is the "duty to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation;" and (3) "a duty to intervene" where the shipowner "knows of a serious hazard and the stevedore improvidently decides to ignore that risk." Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 (5th Cir. 1997).
Neither party disagrees that Scindia governs here. Although the instant case does not arise out of a traditional stevedoring operation, the Fifth Circuit applies Scindia whenever a longshoreman sues a vessel owner under § 905(b). Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 n. 6 (5th Cir. 1997).
Manuel, 103 F.3d at 33 (quoting Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (1994)).
Burchett v. Cargill, Inc., 48 F.3d 173, 179 (5th Cir. 1995) (quoting Scindia, 451 U.S. at 167); see also Pimental v. Ltd. Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992); England v. Reinauer Transp. Cos., L.P., 194 F.2d 265, 270 (1St Cir. 1999) (A "vessel is liable for a breach of its `active control duty' if it `actively involves itself in the cargo operations and negligently injures a longshoreman' or `if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.'") (quoting Scindia, 451 U.S. at 167)).
Plaintiff argues that a genuine issue exists as to whether Seacor breached its "active control" duty. The Court agrees. The "active control" duty "recognizes that although a vessel owner no longer retains the primary responsibility for safety in a work area turned over to an independent contractor, no such cession results as relates to . . . equipment over which the vessel's crew retains operational control." Manuel, 103 F.3d at 34. On the contrary, the shipowner owes a duty to "exercise due care to avoid exposing longshoremen to harm from hazards they may encounter . . . from [such] equipment." Pimental v. Ltd. Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992). This duty to exercise due care likewise applies whenever the vessel crew actively "participates in the cargo [or, in this case, cleaning] operations." Hartford Accident Indemnity Co. v. Oceancarrier Shipholding of Belgium N.V., 799 F.2d 1093, 1098-99 (5th Cir. 1986); Scindia, 451 U.S. at 167 (vessel is liable if it "actively involves itself in the cargo operations and negligently injures a longshoreman"); Daniel v. Ergon, Inc., 892 F.2d 403, 410 (5th Cir. 1990) ("`the vessel may be liable if it actively involves itself in the . . . operations and negligently [causes harm]'") (quoting Scindia) (emphasis in original). From the deposition testimony submitted by Seacor and the plaintiff, a reasonable jury could find (1) that the vessel had operational control of the hose and related couplings at the time of the incident and/or actively involved itself in the line blowing operation and (2) that the vessel engineer failed to exercise due care in connecting the hose, in inspecting the connections, or otherwise in actively participating in the line blowing procedure. Thus, Seacor has failed to establish the absence of factual issues regarding the question of its negligence.
Liability based on breach of the "active control" duty "is not relieved when the hazard is open and obvious." Pimenthal, 965 F.2d at 16.
Seacor's alternative argument fails also. Relying on Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996). Seacor argues that, even if it was negligent, plaintiff is precluded from recovering because PMI's negligence (in failing to clear its crew from the hose's vicinity) and plaintiffs own negligence (in failing to leave the area) amount to superceding causes. However, an intervening act is regarded as a "superceding cause" only if it "`was not foreseeable.'" Exxon, 517 U.S. 837 (quoting 1 T. Schoenbaum, ADMIRALTY AND MARITIME LAW § 5-3, pp. 165-66 (2d ed. 1994); see also Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 652 (5th Cir. 1992) (intervening act of third person is not a superceding cause if the original actor "should have realized that a third person might so act" or if a reasonable person knowing the situation would not regard the third person's act as "highly extraordinary"). Seacor has failed to establish the absence of a factual issue with respect to foreseeability. Indeed, Seacor itself points to the deposition testimony of several witnesses who testified that the hazards presented by pressurized hoses were well known. Scott Patrick Goulas previously had seen vessel fittings crack. Seacor Exh. E at p. 131. Charles Trahan previously had seen a hose break loose. Seacor Exh. F at p. 35. Plaintiff himself previously had been hit in the mouth by a hose that had come loose from its coupling. Seacor Exh. H at pp. 58-59. Although this testimony helps support a case for comparative negligence on the part of PMI and the plaintiff, it also suggests that the risk of a person being struck by the pressurized hose was not unforeseeable.
Accordingly, for the foregoing reasons, IT IS ORDERED that Seacor's Motion for Summary is hereby DENIED.