Fontenot v. McCall's Boat Rentals, Inc. ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 14, 2007
______________________
No. 05-31055 Charles R. Fulbruge III
Clerk
______________________
JOHN FONTENOT,
Plaintiff-Appellant,
versus
McCALL’S BOAT RENTALS, INC.; SEACOR MARINE, LLC,
Defendants-Appellees.
________________________________________________
On Appeal from the United States District Court for the
Eastern District of Louisiana,
Civil Action No. 03-2831
________________________________________________
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
DENNIS, Circuit Judge:*
Appellant John Fontenot (“Fontenot”) brought this action
against McCall’s Boat Rentals, Inc. (“McCall’s”) and SEACOR
Marine, LLC (“SEACOR”), seeking recovery under section 5(b) of
the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. § 905(b). After a bench trial before a United States
Magistrate Judge, the magistrate judge entered judgment in
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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favor of the defendants-appellees, and Fontenot now appeals.
For the reasons set forth below, we AFFIRM.
I.
After considering the evidence presented at trial, the
magistrate judge made the following findings of fact relevant
to this appeal:
On August 26, 2002, Fontenot was employed as a roustabout
by Nabors Offshore Corporation and was working on a Chevron
U.S.A. platform. Fontenot and his brother, Prosper Fontenot
(“Prosper”), were assigned to perform rigging work aboard the
vessel M/V DEANNE McCALL, owned by McCall’s and SEACOR, in
connection with the backloading of cargo and equipment from the
platform to the vessel. The backloading work was performed by
Fontenot and Prosper, as well as crane operator Robert
Willingham (“Willingham”), also a Nabors employee. Prosper
served as the lead roustabout for the backloading operation.
Prosper and Willingham each had two-way radios, which permitted
them to communicate with each other and with the captain during
the operation.
Aboard the vessel with Fontenot and Prosper were the
captain of the vessel, Kevin Primeaux (“Primeaux”), and the
deckhand, Randall Smith (“Smith”). Although the seas were only
2
2-4 feet, Primeaux needed to maneuver the vessel throughout the
backloading process to position it under the crane and away
from the platform. Primeaux gave the crane operator and
roustabouts general instructions for the backloading operation,
telling them to load the tallest and heaviest items toward the
front of the deck and to keep the load balanced.
Notwithstanding Primeaux’s general instructions, Willingham,
the crane operator, not Primeaux, was in charge of the
backloading operation.
The cargo that was backloaded to the vessel included an
18,000-pound “wireline unit,” a number of full cutting boxes,
a tool pallet, a “gun rack” — a metal rack used to hold 20-foot
lengths of pipe, know as “guns” — and three full, heavy,
reusable nylon trash bags. Throughout the backloading
operation, Fontenot and Prosper attempted to maintain a clear,
unobstructed walkway from the wheelhouse to the stern of the
vessel. Maintenance of a clear walkway was one of the items
listed on the Job Safety Analysis (“JSA”) for the operation.
The JSA is a SEACOR document that is prepared by the captain
of the vessel before any loading operation and is intended to
identify any potential safety hazards that might arise during
the course of the operation. Fontenot, Prosper, Primeaux and
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Smith all signed the JSA.
The three nylon trash bags were lowered onto the vessel
near the end of the backloading operation. After the bags were
loaded, however, the crane operator loaded an additional
cutting box onto the deck of the vessel. As the cutting box
was being lowered, part of the box caught one of the trash
bags, and the bag fell over onto the deck, blocking the
walkway. Although Fontenot and Prosper knew that the trash bag
had fallen and blocked the walkway, Primeaux and Smith were not
aware of that fact,1 and the fallen bag was never moved. After
a time, the captain instructed Fontenot and Prosper to chain
and bind the cargo to the deck, which they did. The fallen bag
remained in the walkway for approximately 15-20 minutes as
Fontenot and Prosper chained down the load.
As Fontenot finished binding the load, Smith and Prosper
proceeded to the vessel’s stern in order to reach the crane’s
personnel basket. Because there was not a clear walkway to the
stern, Smith walked along the top of the gun rack. The gun
rack was positioned along the starboard edge of the deck, with
1
The magistrate judge found that Primeaux was never aware that
the trash bag was blocking the walkway. Smith eventually became
aware that the bag was blocking the walkway, as he was forced to
walk along the gun rack to land the crane’s personnel basket at the
stern of the vessel.
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the pipes running parallel to the rail. The rack was not full,
and there were several gaps between the pipes. Smith and
Prosper both successfully negotiated the gun rack and reached
the personnel basket. Fontenot followed, but as he walked over
the gun rack, his foot slipped into a gap between the pipes and
he fell, injuring himself.
The magistrate judge analyzed Fontenot’s claims under the
framework set out by the Supreme Court in Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), and
concluded that the defendants did not breach any duty of care
to Fontenot. Specifically, the magistrate judge found that
Fontenot’s injury was not caused by a hazard under the active
control of the defendants, and that the defendants had no duty
to intervene to remedy the unsafe condition because Primeaux
did not know about the condition before the accident and
Fontenot did not show that the condition was unreasonably
dangerous.
In making those findings, the magistrate judge expressly
accepted the testimony of Primeaux, Smith, and Willingham as
credible. The magistrate judge rejected, as lacking
credibility, the testimony of both Fontenot and Prosper. The
magistrate judge determined that the testimony of Fontenot and
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Prosper was internally inconsistent, and that many parts of
their testimony conflicted with the testimony of other,
credible witnesses. The magistrate judge specifically rejected
Prosper’s testimony that: (1) after the trash bag fell, he
asked Smith to have Primeaux notify the crane operator that the
crane was needed to move the fallen bag; and (2) he could not
contact the crane operator himself because the battery on his
radio had died and the crane operator would not have been able
to see hand signals.
Based on these findings of fact and conclusions of law,
the magistrate judge held that Fontenot had not established
that the defendants breached any duty to him, and, accordingly,
the magistrate judge entered judgment in favor of the
defendants.
II.
On appeal after a bench trial, this court reviews the
district court’s resolution of questions of law and mixed
questions of law and fact de novo. See Luhr Bros., Inc. v.
Crystal Shipowning, Pte. Ltd. (In re Luhr Bros. Inc.), 325 F.3d
681, 684 (5th Cir. 2003). Questions about the existence or
scope of a vessel owner’s duties to an independent contractor
are questions of law. See Manuel v. Cameron Offshore Boats,
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Inc., 103 F.3d 31, 33 (5th Cir. 1997); Fontenot v. Travelers
Ins. Co., 89 F.3d 205, 208 (5th Cir. 1996). The district
court’s findings of fact are reviewed for clear error. See
Moore v. ANGELA MV, 353 F.3d 376, 380 (5th Cir. 2003); Turner
v. Costa Line Cargo Servs., Inc., 744 F.2d 505, 507-08 (5th
Cir. 1984). In an admiralty case, determinations about the
existence of negligence are considered as findings of fact and
are subject to clear error review. See Luhr Bros., 325 F.3d
at 684; Manuel, 103 F.3d at 33; Theriot v. Bay Drilling Corp.,
783 F.2d 527, 535 n.6 (5th Cir. 1986).
III.
Fontenot makes three arguments on appeal. First, he
claims that the magistrate judge erred by rejecting Prosper’s
uncontradicted testimony that he asked Smith, the deckhand, to
have the captain call the crane operator to tell him that the
roustabouts needed the crane in order to move the fallen trash
bag. Second, Fontenot argues that the magistrate judge erred
when he found that the defendants did not maintain “active
control” over the deck at the time of the accident. Third,
Fontenot asserts that the defendants had a duty to intervene
because they were aware that the fallen trash bag created an
unreasonably dangerous condition.
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A.
Fontenot’s first argument — that the magistrate judge
erred by not accepting Prosper’s testimony that he asked Smith
to tell the captain that the roustabouts needed the crane in
order to move the fallen trash bag — merits little discussion.
Fontenot asserts that the magistrate judge was required to
accept Prosper’s testimony on that point because no other
witness specifically testified about whether or not Prosper
spoke to Smith.
Regardless of whether Prosper’s testimony conflicted with
other evidence on this specific point, however, the magistrate
judge did not clearly err by refusing to credit that testimony.
It is well-established that credibility determinations are
reserved for the trial judge or the jury, and this court
“cannot second guess the district court’s decision to believe
one witness’ testimony over another’s or to discount a
witness’ testimony.” Canal Barge Co. v. Torco Oil Co., 220
F.3d 370, 375 (5th Cir. 2000). Moreover, the finder of fact
is not necessarily obliged to accept a witness’s testimony,
even if some parts of it are not directly contradicted by other
testimony in the record. See Lujan v. United States, 431 F.2d
871, 872 (5th Cir. 1970). In this case, the magistrate judge
8
explained in detail why he did not believe that Prosper’s
testimony was credible — he found that the testimony was
internally inconsistent and conflicted with the testimony of
other witnesses who the magistrate judge found credible.
Fontenot has not, and cannot, show that those credibility
determinations were unsupported by the record. Under these
circumstances, we cannot say that the magistrate judge clearly
erred by rejecting Prosper’s testimony.
B.
Fontenot’s remaining arguments are that the magistrate
judge erred when he held that the defendants did not breach any
duties that they owed to Fontenot under Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). In
Scindia, the Supreme Court held that a vessel owner owes three
duties to workers covered under section 5(b) of the LHWCA, 33
U.S.C. § 905(b): (1) the “turnover duty,” which requires the
vessel owner to have the vessel in such a condition that an
experienced stevedore could safely conduct cargo operations and
to warn the stevedore of any hazards that the stevedore would
likely encounter during its cargo operations, id. at 166-67;
(2) the “active control duty,” under which the owner may be
liable for injuries if it “actively involves itself in the
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cargo operations and negligently injures a longshoreman,” or
fails to exercise due care to protect longshoremen “from
hazards they may encounter in areas, or from equipment, under
the active control of the vessel during the stevedoring
operation,” id. at 167; and (3) the “duty to intervene,” which
provides that a vessel owner can be liable if it fails to
intervene when it knows of an unreasonably dangerous condition
that has developed during the course of the stevedoring
operations and it knows that the stevedore, in the exercise of
obviously improvident judgment, intends to continue working in
the face of the danger and cannot be relied upon to protect its
workers. Id. at 175-76.2 Only the second and third Scindia
duties — the active control duty and the duty to intervene —
are relevant to this appeal.
1. Active Control
As noted above, a vessel owner may be liable under
Scindia’s active control duty if it actively involves itself
in cargo operations or fails to protect contractors from
hazards in areas under the active control of the vessel. The
2
This court has held that the principles of Scindia, though
formulated in the context of the respective duties of vessel owners
and stevedores, apply equally to any suit by an LHWCA-covered
employee working for an independent contractor aboard a vessel.
See Manuel, 103 F.3d at 33 n.6; Masinter v. Tenneco Oil Co., 867
F.2d 892, 896 (5th Cir. 1989).
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magistrate judge held that the defendants did not breach
Scindia’s active control duty because Nabors employees, not the
vessel’s crew, maintained active control over the backloading
operation. Fontenot does not seriously challenge this
conclusion, but instead argues that although the defendants did
not actively control the backloading operation, they
nevertheless retained active control of the entire vessel,
including the deck, throughout the backloading operation, by
virtue of (1) the SEACOR-Chevron blanket time charter, (2) the
JSA, and (3) industry custom.
To determine whether an area is in the active control of
the vessel owner, this court generally considers whether the
area in question is within the contractor’s work area and
whether the work area has been “turned over” to the contractor.
See, e.g., Fontenot, 89 F.3d at 208 (discussing earlier cases
and finding no active control where entire vessel was turned
over to contractor); Pimental v. LTD Canadian Pac. Bul, 965
F.2d 13, 16-17 (5th Cir. 1992) (finding that vessel owner did
not have active control over crane where crane was necessary
to stevedore’s work and was being operated by stevedore);
Masinter, 867 F.2d at 897 (finding that vessel owner had active
control where owner did not turn over any area of vessel to
11
contractor and where owner admitted in interrogatories that its
crew was solely responsible for placement of stairwell where
injury occurred); Theriot, 783 F.2d at 535 (finding active
control based on district court’s finding that owner “continued
to control the work area [and] retain[ed] the obligation to
clean the keyway deck”); Turner, 744 F.2d at 508-09 (finding
active control where hazard was located “outside the area of
normal and routine cargo operations” and outside longshoreman’s
“work area”).
None of Fontenot’s arguments merit reversal of the
magistrate judge’s decision. Although, as the magistrate judge
recognized, the captain of the vessel retains the ultimate
authority to make decisions about the operation of the vessel
and the safety of those aboard, this overarching authority is
not the equivalent of “active control” for purposes of the
owner’s duties under Scindia. This court has described active
control within the meaning of Scindia as instead being akin to
operational control at the time of the activities in question:
This 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 areas
or equipment over which the vessel’s crew
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retains operational control.
Manuel, 103 F.3d at 34 (emphasis added); cf. Howlett v.
Birkdale Shipping Co., 512 U.S. 92, 104-05 (1994) (“The
vessel’s responsibilities . . . are commensurate with its
access and control . . . . Because the vessel does not
exercise the same degree of operational control over, and does
not have the same access to, the cargo stow, its duties with
respect to the stow are limited by comparison.”). Thus, even
accepting Fontenot’s arguments that the captain retained
ultimate control over all areas of the vessel under the blanket
time charter and industry custom, neither the time charter nor
custom establishes that the captain had active control over the
deck during the backloading operation. Nor does the JSA
establish active control. Although the JSA specified that a
clear walkway should be maintained and the captain testified
that it was his responsibility, Fontenot has not established
that the JSA, which was also signed by Fontenot and Prosper,
gave the captain active or operational control over the deck
during the operation, or otherwise created an independent duty
running from the vessel owners to the subcontractors working
on the deck.
The facts found by the magistrate judge make it clear that
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Nabors and its employees, not the defendants, maintained active
control over the deck throughout the backloading operation.
The deck was the roustabouts’ work area, Nabors exercised
operational control over the backloading operation itself and
over the deck during the operation, and Nabors employees
created the hazard that ultimately resulted in Fontenot’s
injury. Accordingly, we hold that the magistrate judge
correctly found that defendants did not breach Scindia’s active
control duty on these facts.
2. Duty to Intervene
Fontenot finally claims that the magistrate judge erred by
finding that the defendants did not have a duty to intervene
under Scindia to protect Fontenot from the hazard created by
the fallen trash bag.
The Scindia duty to intervene to protect longshoremen from
dangers that arise during the course of their work “is a narrow
one.” Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 216 (5th
Cir. 1984). To establish a duty to intervene, the plaintiff
must first show that the vessel owner was actually aware of the
dangerous condition. Helaire v. Mobil Oil Co., 709 F.2d 1031,
1039-40 (5th Cir. 1983) (“[A]ctual, not constructive, knowledge
is mandated by the Supreme Court’s Scindia requisites for
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liability under § 905(b) . . . .”). But this court has
repeatedly held that the duty to intervene requires that the
plaintiff show “something more” than that the vessel owner was
aware of a dangerous condition on the vessel. Futo, 742 F.2d
at 715; see Greenwood v. Societe Francaise De, 111 F.3d 1239,
1249 (5th Cir. 1997); Singleton v. Guangzhou Ocean Shipping
Co., 79 F.3d 26, 29 (5th Cir. 1996). This court has
characterized that “something more” as requiring that the
plaintiff
show not only that the shipowner had actual
knowledge of the defect and of the
stevedore’s continuing use of the defective
item, but also “(1) it had actual knowledge
that the [defect] posed an unreasonable
risk of harm and (2) actual knowledge that
it could not rely on the stevedore to
protect its employees and that if
unremedied the condition posed a
substantial risk of injury.”
Greenwood, 111 F.3d at 1248 (quoting Randolph v. Laeisz, 896
F.2d 964, 971 (5th Cir. 1990)) (alteration in original).
Moreover, a vessel owner is generally permitted to rely on
the contractor’s expert judgment as to the safety of its
working conditions. See id. at 1249. To trigger the owner’s
duty to intervene, a dangerous condition must be “so hazardous
that anyone can tell that its continued use creates an
unreasonable risk of harm.” Id. at 1249. Although this court
15
considers a number of relevant factors to determine whether a
vessel owner has a duty to intervene on a particular set of
facts,3 we have held that Scindia’s duty to intervene “does not
. . . extend to an open and obvious transitory condition . .
. that is created entirely by the independent contractor, is
under its control, and relates wholly to its own gear and
operations.” Futo, 742 F.2d at 216.
The magistrate judge found that the defendants had no duty
to intervene in this case because the captain was never aware
that the fallen trash bag was blocking the walkway, and, in any
event, neither the defendants nor the Nabors employees knew or
believed that the condition was unreasonably dangerous.
Fontenot asserts that the magistrate judge’s conclusion was
erroneous. He argues that the deckhand, Smith, was aware of
the fallen trash bag, and that Smith’s knowledge should be
imputed to the captain and to the defendants.
It is clear that Smith became aware at some point that the
trash bag was blocking the walkway, as Smith was the first to
3
See Fontenot, 89 F.3d at 209 (stating that court will
consider “(1) whether the danger was open and obvious, (2) whether
the danger was located in the ship or ship’s gear; (3) which party
created the danger or used the defective item and was therefore in
a better position to correct it; (4) which party owned and
controlled the defective item; (5) whether an affirmative act of
negligence or acquiescence in the use of a dangerous item occurred;
and (6) whether the shipowner assumed any duty with regard to the
dangerous item”).
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traverse the gun rack to reach the stern of the vessel. Even
assuming, however, that Smith’s knowledge can be imputed to the
captain and the defendants, Fontenot has not pointed to any
evidence in the record that would support finding a duty to
intervene in this case. First, the hazard that ultimately
caused Fontenot’s injury — the obstructed walkway — was wholly
created by Nabors personnel, was within the roustabouts’ work
area, was open and obvious to the roustabouts, and could have
been remedied by Nabors personnel if they believed it to be
unreasonably dangerous. Second, the evidence at trial did not
establish that the vessel’s crew believed that the obstruction
created an unreasonable risk of harm. Smith, the only crew
member who became aware of the obstruction, was the first
person to walk along the gun rack to reach the stern of the
vessel, which undermines any suggestion that he knew or
believed that the obstruction created an unreasonably dangerous
working condition. Accordingly, we find that the magistrate
judge did not err in concluding that defendants did not have
a duty to intervene under Scindia in this case.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of
the magistrate judge.
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AFFIRMED.
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