Fontenot v. United States ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40390
HORACE FONTENOT,
Plaintiff-Appellee,
THE TRAVELERS INSURANCE COMPANY,
Intervenor Plaintiff-Appellee
versus
UNITED STATES OF AMERICA,
Intervenor Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
July 9, 1996
Before LAY*, HIGGINBOTHAM, and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
I
This is a tort suit against the United States as vessel owner
brought by a welder employed by an independent contractor engaged
in its repair. The worker slipped on a hatch cover and was
severely injured. The district court found that the government
breached its second and third Scindia duties and awarded
substantial damages to the worker and the intervening workmen’s
*
Circuit Judge of the Eighth Circuit, sitting by designation.
compensation carrier.2 The trio of duties set forth in Scindia,
now a litany, include: (1) a “turnover duty” looking to the
condition of the vessel at the time the stevedore or repair company
takes over; (2) a duty to exercise reasonable care to prevent
injuries to longshoremen working in areas remaining under “the
active control of the vessel” or when the vessel owner “actively
involves itself in the cargo operations,” id. at 167; and (3) a
“duty to intervene” if the stevedore’s judgment “is obviously
improvident.” 451 U.S. at 175. The district court found that the
government retained control over the vessel and had actual
knowledge of the dangerous conditions on board. Accepting the
facts as found by the district court, we conclude that the
government breached no duty owed Fontenot, an employee of an
independent contractor engaged in the repair of the vessel. We
reverse and render.
II
The M/V DEL VIENTO is a public vessel of the United States.
This breakbulk general cargo vessel was not operational when
purchased by the United States and had never been operated by the
government at the time of the accident. On its purchase, the
government contracted with Apex Marine to act as its general agent
and ship manager. Apex Marine in turn engaged Horace Fontenot’s
employer, Coastal Marine, to work on the vessel. The United States
2
Scindia Steam Navigation Co. v. De los Santos, 451 U.S. 156
(1981).
2
maintained no crew aboard the vessel while Coastal Marine did its
work. Coastal Marine supervised Fontenot’s welding work. Fontenot
was not subject to direction by others.
One morning while walking on the vessel’s hatch covers to his
work area, Fontenot slipped and fell. It had rained the day
before, and the deck and hatch covers were wet. The workers on the
vessels used the hatch covers as walkways because the decks and
passageways were cluttered with machinery and tools. Although the
workers had no other practical means of moving about on the deck,
the hatch covers were not painted with nonskid paint, and they had
no matting, handrails, or toeboards. It is undisputed that these
conditions were obvious to all workers, including Fontenot, and
that the United States knew that the workers were using the hatch
covers as walkways.
The pretrial order recited a number of “admitted facts,”
including a description of the accident itself. The parties agreed
that:
(22) When Mr. Fontenot reported to work aboard the M/V
DEL VIENTO at 7:00 a.m. on November 18, his supervisor at
Coastal Marine assigned him to continue welding rusted
and holed pipes, just as he had been doing on Friday,
November 15.
(23) When Mr. Fontenot boarded the M/V DEL VIENTO on
November 18, 1991, he reported to a guard shack on the
forward, port hatch cover, crossed a “scaffold board” to
the forward, centerline hatch cover, and walked toward
the after end of that hatch cover, where he was to begin
welding for the day. His assistant was with him, but
stopped in a portable toilet on the forward, centerline
hatch cover.
(24) As Mr. Fontenot approached the after end of the
forward, centerline hatch cover, he slipped in oil and
water on the hatch cover, lost his balance completely,
3
grabbed for a nearby cable but missed, and pitched head
first off the after end of the hatch cover, causing his
injuries.
(25) The oil on the forward, centerline hatch cover in
which Mr. Fontenot slipped was left there earlier by
personnel who had disassembled valves there.
(26) The water on the forward, centerline hatch cover in
which Mr. Fontenot slipped was rainwater that had
accumulated during the rainy night of November 17.
(27) Mr. Fontenot’s slip and fall occurred at dusk and
there was no problem with lighting on the hatch cover.
(28) Mr. Fontenot knew that he was not walking on
nonskid paint as he crossed the forward, centerline hatch
cover.
(29) On November 18, 1991 at the time of Plaintiff’s
accident, the hatch cover upon which Plaintiff was
walking was wet, and had hydraulic oil on it, left
earlier the week before by other personnel.
III
The government denies that it breached any duty owed as the
vessel’s owner. It does not attack the findings of fact by the
district court as clearly erroneous. Rather, accepting the facts
as found by the district court, the government argues that the
ultimate findings cannot be sustained under Scindia.
A
First, the government urges that the district court erred in
concluding that it was “in control of the vessel” at the time of
the accident. There were four government men at the site working
from an office located on the shore. The government argues that
these men “did not supervise employees, direct the work, determine
where equipment was to be stored, or tell workers how they were to
get to and from their work stations.” In response, Fontenot points
4
to only three items of testimony relevant to the issue of control.
Fontenot’s son who also worked on the DEL VIENTO for the same
employer, testified that on one occasion a “government man”, in the
presence of the foreman, asked him to straighten a crooked steel
wheel. His son further testified that he might have once told a
government agent — “I think it was a government man” — about the
need for scaffolding. Finally, Fontenot points to the undisputed
fact that the government agents told Coastal Marine to improve its
housekeeping — to keep “paper goods, coffee cups, cigarette butts,
that sort of thing out of engine spaces.”
As for the straighten-the-wheel request, the government urges
that this was little more than an inspection for conformity to
specifications and was made in the presence of the Coastal foreman
— not the type of control envisioned by Scindia. The testimony
regarding a request for scaffolding, the government replies, was
equivocal regarding the identity of the person to whom it was made,
and there is no evidence of any response to the request that might
signal control over the condition of the work site. Finally, the
government urges that an owner’s request that the workplace be kept
more tidy is no more than “the reasonable action of an owner
interested in protecting his property.” In short, the government
argues that accepting that these events occurred, they are not
singly or in combination a retention of control under Scindia.
This dispute over the presence of control is not resolvable
by accepting one version of fact over another version. Rather, the
answer lies in the meaning of Scindia, an issue of law. We have
5
interpreted the second Scindia test in the Futo,3 Turner,4 and
Pimental5 cases. We made plain in Futo that a vessel owner will
not trigger a duty by having its employees board the vessel daily
“to ensure the security of the ship and to check on the progress of
the contractor’s work."6 In Turner we found a vessel owner liable
for a fall suffered when the worker was required to “venture
outside of the area of normal and routine cargo operations to areas
within the ship’s control and was forced to cross the oil slick in
a location outside of his work area.”7 In Pimental we found no
liability existed under the second Scindia test because the fall
occurred in an area turned over to the stevedore.
Here, the entire vessel had been turned over to the contractor
over a month before the accident. It was Coastal Marine that put
the gear in the passageways, forcing the workers to walk on the
hatch covers. The vessel had no crew, so the oil spill and its
attempted cleanup were all by Coastal workers. We are persuaded
that the vessel owner here had no liability under the second
Scindia duty.
3
Futo v. Lykes Bros. Steamship Co.., 742 F.2d 20 (5th Cir.
1984).
4
Turner v. Costa Line Cargo Servs., Inc., 744 F.2d 505 (5th
Cir. 1984).
5
Pimental v. LTD Canadian Pacific Bul, 65 F.2d 13 (5th Cir.
1992).
6
742 F.2d at 210.
7
744 F.2d at 509.
6
B
Scindia requires a vessel owner to intervene if the vessel
owner has actual knowledge both of the hazard and that the
contractor, in the exercise of “obviously improvident” judgment
under “pertinent statutes, regulations, or custom,” means to
continue working in the face of it.8 There are no such statutes or
regulations and, as we will explain, there is no competent evidence
of custom.
We have developed several implementing principles. In
Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir.
1996), we emphasized that the shipowner’s duty to intervene under
the third Scindia exception “is narrow and requires ‘something
more’ than mere shipowner knowledge of a dangerous condition.” We
held in Futo that this duty to intervene “does not...extend to an
open and obvious transitory condition” created by the contractor.
We insisted that the vessel owner must “have actual knowledge that
a dangerous condition exists and actual knowledge that the
stevedore is not acting to protect the longshoreman.”9 In
Casaceli10 we announced a six factor test to guide the determination
whether the vessel owner has a duty to intervene: (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
8
451 U.S. at 175-176.
9
742 F.2d at 220.
10
Casaceli v. Martech Int'l, Inc., 774 F.2d 1322 (5th Cir.
1985), cert. denied, 475 U.S. 1108 (1986); see also Williams v. M\V
Sonora, 985 F.2d 808 (5th Cir. 1993)
7
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; and (6) whether the shipowner
assumed any duty with regard to the dangerous item.11
As the government points out, the danger of oil on the wet
hatch covers was open and obvious, and was not created by ship gear
controlled by the vessel owner. Nor was there a defect in the
vessel. Nonskid paint, toeboards, bridges, and handrails were not
essential to the operation of the vessel. To the contrary, the
crew of the vessel would not routinely walk on the hatchways. It
was in the repair of the vessel that the usual passageways were
blocked, sending the employees of the contractor over the
hatchways. This operation was under the exclusive control of the
contractor, Fontenot's employer.
Finally, we find no value in the testimony of several expert
witnesses. The government's expert testified that marine custom
placed all responsibility for safety during repair of a vessel on
the repair contractor. The plaintiff offered the "expert" opinion
of a tugboat operator that the responsibility lay with the vessel
owner. The testimony of neither "expert" witness was competent.
An expert could be helpful in dealing with specific equipment or in
detailing a repair or stevedoring functions and the custom
attending those functions. Custom is relevant to the legal
standards, as Scindia explained, but custom itself is not law. At
11
774 F.2d at 1328 (citing Futo, 742 F.2d at 218, 221).
8
the level of generality at which both witnesses cast their
opinions, they confused evidence of custom with the normative rules
of law. The judge doesn't need an expert to tell him the law,
directly or dressed as custom. We rejected similar testimony in
Futo.12
Scindia read section 905(b) as placing the primary
responsibility for the safety of the longshoreman upon the
stevedore. It found that "[i]t would be inconsistent with the Act
to hold ... that the shipowner has a continuing duty to take
reasonable steps to discover and correct dangerous conditions that
develop during the loading and unloading process. Such an approach
would repeatedly result in holding the shipowner solely liable for
conditions that are attributable to the stevedore, rather than the
ship."13
IV
The United States is not liable to this severely injured
worker. Congress has allocated the duties, and we must follow.
REVERSED and RENDERED.
12
742 F.2d at 221 n.24
13
451 U.S. at 168-69
9