Ingram Barge v. Ratcliff ( 2023 )

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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 19, 2023
No. 22-30577 Lyle W. Cayce
____________ Clerk
In the Matter of the Complaint of Ingram Barge
Company, L.L.C., as owner and operator of Barge IB976, doing business as
Ingram Barge Company, for Exoneration from or Limitation
of Liability
Ingram Barge Company, L.L.C., as owner and operator
of Barge IB976, doing business as Ingram Barge
Company; American Longshore Mutual Association,
Limited; T.T. Barge Cleaning Mile 183, L.L.C.; T.T. Barge
Services Mile 237, L.L.C.,
Petitioners—Appellees,
versus
Gregory Ratcliff,
Claimant—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:20-CV-313
______________________________
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No. 22-30577
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge. *
Per Curiam: †
Gregory Ratcliff worked as a barge cleaner for T.T. Barge Services,
which provides barge cleaning services to Ingram Barge Company. Ratcliff
asserted negligence claims against Ingram after Ratcliff was injured by caustic
soda that he was cleaning up on Ingram Barge 976, which was moored to one
of T.T.’s work barges at the time of his injury.
After Ingram filed a district court complaint to limit liability, Ratcliff
counterclaimed and asserted claims of negligence against Ingram. T.T. also
filed a claim for contribution and indemnity against Ingram. T.T. and Ingram
each moved for summary judgment regarding Ratcliff’s claims.
The district court granted summary judgment (1) as to Ratcliff’s lack
of seaman status under the Jones Act and (2) as to all of Ratcliff’s negligence
claims against Ingram. The district court then dismissed the case with
prejudice. Ratcliff challenges the district court’s orders granting summary
judgment. We affirm.
I.
T.T. provides barge services in and alongside the Mississippi River.
Ratcliff worked as a barge cleaner at T.T.’s Mile 183 facility, which includes
shoreside offices and parking. The facility also includes two work barges 1 that
float in the river: the Cleaning Barge and the Repair Barge. T.T.’s work
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Both of T.T.’s work barges are made up of three smaller barges.
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barges are decommissioned barges moored to land by steel cables attached to
sunken concrete blocks. Though decommissioned, T.T. work barges can still
move on water, although they are only moved for repairs or to accommodate
dredging. Readying the T.T. work barges for movement requires a crane to
remove a metal walkway, calls for utility lines to be disconnected, and
involves a days-long process that can take more than a week. Like many other
barges, T.T.’s work barges cannot propel themselves. A T.T. work barge was
once struck by a passing vessel.
Multiple customers, including Ingram, bring their barges to T.T.’s
facilities for cleaning or repair services. Customers park their barges
alongside T.T.’s work barges and moor their barges to T.T.’s work barges.
During cleaning or repair, customer barges remain moored and stationary
while T.T.’s barge cleaners and repairmen board and work on the customer
barges. The barge cleaners and repairmen are assigned to work on different
customer barges from various customers each day. T.T.’s barge cleaners and
repairmen do not leave T.T.’s facility on the customer barges. However,
even though company policy forbids it and T.T. denies that it occurs, Ratcliff
alleges that sometimes T.T.’s barge cleaners and repairmen ride customer
barges about 200–360 feet between the work barges (presumably to avoid a
longer walk over land).
Ratcliff was injured by caustic soda burns while cleaning Ingram Barge
976. Ingram hired T.T. to clean the caustic soda out of the barge. The caustic
soda was frozen and extended along the walls and the ceiling. Ratcliff and his
team were aware they would be cleaning caustic soda. Ratcliff’s foreman
informed Ratcliff that the caustic soda was frozen in Ingram Barge 976 while
explaining morning assignments before he entered the barge. Upon entering
the barge, Ratcliff saw that the frozen caustic soda extended to the ceiling but
alleged that he was surprised to see it on the ceiling. Ratcliff’s foreman and
work team also noticed the frozen caustic soda on the ceiling. Ratcliff’s
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foreman began spraying the caustic soda on the ceiling and warned Ratcliff to
back away. About an hour-and-a-half after Ratcliff entered the barge and saw
the caustic soda on the ceiling, Ratcliff was burned on one of his arms and
one of his legs by drops of caustic soda that had thawed and dripped down.
However, Ratcliff continued working after pausing to change into a new
“slicker suit” after the drops of caustic soda that injured him had burned his
original suit. Later, Ratcliff slipped and fell in a pool of caustic soda and
suffered more extensive and severe burns. Ratcliff alleges the caustic soda
pool that more severely injured him was created by the frozen caustic soda
on the ceiling thawing, dripping down, and pooling. At the time of his injury,
Ratcliff alleges he was new to cleaning caustic soda and was unfamiliar with
the proper personal protective equipment for cleaning caustic soda.
Ratcliff originally filed a state court petition against Ingram and T.T.
(among others) alleging that he was a Jones Act seaman. Ingram then filed a
complaint in the Middle District of Louisiana to limit liability regarding
Ratcliff’s state court claims. The district court enjoined prosecution of the
state court claims.
Before the district court, Ratcliff answered and counterclaimed,
asserting claims of negligence against Ingram. Among claims by other parties,
T.T. filed a claim for contribution and indemnity against Ingram under
general maritime law, including a claim for contribution should Ratcliff
qualify as a Jones Act seaman.
T.T. moved for summary judgment as to Ratcliff’s lack of seaman
status. Ingram separately moved for summary judgment as to all of Ratcliff’s
negligence claims against Ingram. The district court granted both motions for
summary judgment and dismissed the case with prejudice. Ratcliff appealed.
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II.
Ratcliff raises three issues on appeal. He argues that the district court
erred (A) in finding the T.T. Cleaning Barge lacked vessel status under the
Jones Act at summary judgment, (B) in granting summary judgment as to
Ratcliff’s lack of seaman status under the Jones Act, and (C) in granting
summary judgment as to all of Ratcliff’s negligence claims against Ingram.
Reviewing these arguments in turn, we determine that the district court
committed no error.
A.
Ratcliff first argues that the district court erred in finding that T.T.’s
Cleaning Barge lacked vessel status when it granted summary judgment as to
Ratcliff’s lack of seaman status under the Jones Act. We disagree.
Grants of summary judgment are reviewed de novo, including as to
Jones Act and Longshore Act claims. See, e.g., Sanchez v. Smart Fabricators of
Tex., L.L.C., 997 F.3d 564, 568 (5th Cir. 2021) (en banc). The de novo
standard of review applies here.
Ratcliff contests vessel and seaman status here because they affect
whether the Jones Act applies and consequently which remedies, if any, he
may seek. The remedies available under the Jones Act and the Longshore and
Harbor Worker’s Compensation Act (the “Longshore Act”) are “mutually
exclusive” of one another. Id. at 569. If a worker qualifies as a Jones Act
seaman, the worker may sue his employer for Jones Act negligence, the
owner of a vessel he works on for unseaworthiness, and a third party for
general maritime law negligence. See id. at 568–69; Becker v. Tidewater, Inc.,
335 F.3d 376, 386–87 (5th Cir. 2003). However, if the worker fails to qualify
as a Jones Act “seaman” and is instead classified as a longshoreman under
the Longshore Act, no negligence claims are available against the
longshoreman’s employer and he may sue a third-party vessel under a
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restrictive theory of negligence that only provides three specific duties of
care. 2 Becker, 335 F.3d at 386–87; see Kirksey v. Tonghai Mar., 535 F.3d 388,
391 (5th Cir. 2008); see also Scindia Steam Nav. Co. v. De Los Santos, 451 U.S.
156, 171–79 (1981) (explaining that the Longshore Act permits a restrictive
theory of negligence against a third-party vessel).
“The Jones Act does not define the term ‘vessel’, and this Court has
repeatedly held that the term is incapable of precise definition.” Ducote v. V.
Keeler & Co., 953 F.2d 1000, 1002 (5th Cir. 1992). Instead, the Rules of
Construction Act explains that the term “‘vessel’ includes every description
of watercraft or other artificial contrivance used, or capable of being used, as
a means of transportation on water.” 1 U.S.C. § 3. But the Supreme Court
rejects an “anything that floats” approach to defining the term. Lozman v.
City of Riviera Beach, 568 U.S. 115, 126 (2013).
The Supreme Court has explained that “a ‘vessel’ is any watercraft
practically capable of maritime transportation, regardless of its primary
purpose or state of transit at a particular moment.” Stewart v. Dutra Constr.
Co., 543 U.S. 481, 497 (2005). But the Court later clarified that a watercraft
does not fall within the definition of vessel “unless a reasonable observer,
looking to the [watercraft]’s physical characteristics and activities, would
consider it designed to a practical degree for carrying people or things over
water.” Lozman, 568 U.S. at 121. And a watercraft is not a vessel “if it has
been permanently moored or otherwise rendered practically incapable of
transportation or movement.” Stewart, 543 U.S. at 494.
T.T. and Ingram argue that T.T.’s barges, including T.T.’s Cleaning
Barge, are merely work platforms essentially functioning as docks that are
_____________________
2
And a longshoreman may “sue nonvessel third parties under general maritime
law tort principles.” Becker, 335 F.3d at 387.
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permanently moored and connected by steel cables to sunken concrete blocks
called “deadmen.” T.T. and Ingram point out that T.T.’s barges are rarely
moved and can only be moved after an intensive, days-long process that can
take over a week to ready the work barges for movement. And the barges are
only moved to make repairs or accommodate dredging operations. T.T. and
Ingram also point out that T.T.’s barges are not intended or allowed to be
moved under T.T.’s regular U.S. Coast Guard plan. 3
On the other hand, Ratcliff argues that T.T.’s Cleaning Barge is a
barge that can and does move on water. Ratcliff admits that T.T.’s work
barges are decommissioned barges that only move periodically. But Ratcliff
contends that means T.T.’s barges are only temporarily moored. Based on
the T.T. barges’ physical characteristics and activities, Ratcliff argues that
T.T.’s work barges satisfy Lozman’s test for vessel status because a
reasonable observer would consider T.T.’s work barges designed to a
practical degree for carrying people or things over water.
T.T. and Ingram cite older case law to suggest that the purpose of
T.T.’s Cleaning Barge should be considered here. Ducrepont v. Baton Rouge
Marine Enters., 877 F.2d 393, 395 (5th Cir. 1989); Daniel v. Ergon, Inc., 892
F.2d 403, 407–08 (5th Cir. 1990). Ducrepont and Ergon applied the Bernard
factors, the first of which considers whether “the structures involved were
constructed and used primarily as work platforms.” Bernard v. Binnings
Constr. Co., 741 F.2d 824, 831 (5th Cir. 1984). Ducrepont affirmed summary
judgment and determined that a floating barge used primarily as a work
platform for cleaning and repairing barges was not a vessel despite not being
_____________________
3
T.T. also argues its barges lack any means of self-propulsion. While that physical
characteristic may be relevant, it “is not dispositive.” Lozman, 568 U.S. at 122. And as
Ratcliff points out, it is undisputed that Ingram Barge 976 is a vessel although it lacks any
means of self-propulsion.
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constructed as a work platform. 877 F.2d at 395. Ergon similarly determined
that a floating barge cleaning and stripping platform moored to the shore by
wires was not a vessel for Jones Act purposes as a matter of law and stated
that the magistrate judge had erred in failing to grant summary judgment. 892
F.2d at 407–09. Ergon also determined that the barges used primarily as work
platforms in Ergon and Ducrepont were indistinguishable despite minor
differences like whether the barges were subject to Coast Guard inspection
or whether the barges had been tugged to different locations. Id. at 407–08.
Ratcliff cites subsequent case law that focuses on a watercraft’s
moving capabilities. See Ducote, 953 F.2d at 1002–04. In Ducote, we reversed
summary judgment because a jury could find that a movable spud barge
subject to “planned extensive movement” was a Jones Act vessel despite it
being moored at the time of a crane operator’s accident and having not been
moved any considerable distance during the course of the project during
which the crane operator was injured. Id. at 1004.
We decline to ultimately determine vessel status here based on
Ducrepont, Ergon, or Ducote because all those cases predate both Lozman’s
reasonable observer test and Stewart. Stewart suggests that the primary
purpose analysis used in Ducrepont and Ergon is no longer dispositive. See
Stewart, 543 U.S. at 497 (explaining that “a ‘vessel’ is any watercraft
practically capable of maritime transportation, regardless of its primary purpose
or state of transit at a particular moment”) (emphasis added). Moreover,
Ducote distinguishes itself on the facts from cases like the instant case where
“barges rendered immobile for extended periods of time and used as
construction platforms or dry docks are not vessels” because the spud barge
in Ducote “was moved at least a short distance every day.” Ducote, 953 F.2d
at 1004 n.18.
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We instead focus our analysis on Lozman and Stewart. In Lozman, the
Supreme Court clarified Stewart and explained that “the statutory definition
[of vessel] may (or may not) apply—not that it automatically must apply—
where a structure has some other primary purpose, where it is stationary at
relevant times, and where it is attached—but not permanently attached—to
land.” Lozman, 568 U.S. at 124. In clarifying Stewart, Lozman further
explains that the “basic difference” between a vessel’s purpose and a
nonvessel’s purpose is whether the watercraft in question “was regularly, but
not primarily, used (and designed in part to be used) to transport workers and
equipment over water.” Id. at 125. Lozman explains that the dredge in Stewart
was a vessel because it was regularly used to transport dredging personnel
and equipment over water despite being used primarily for dredging; but that
the wharfboat in Evansville, which was primarily used for cargo transfer while
being attached to or floating near a dock, was not a vessel because it was not
regularly used for, or designed to any practical degree to be used for,
transportation despite being annually towed away in the winter to avoid ice.
Id. at 124–25 (comparing Stewart, 543 U.S. at 493–95, with Evansville &
Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 (1926)).
Here, applying Lozman to the summary judgment record viewed in
the light most favorable to Ratcliff, T.T.’s Cleaning Barge is not regularly
used to transport workers or equipment over water. Instead, T.T.’s Cleaning
Barge is semi-permanently and indefinitely attached to land by steel cables,
except for rare moves during repairs or to accommodate nearby dredging
operations. See Stewart, 543 U.S. at 494 (explaining that a “floating casino
was no longer a vessel where it ‘was moored to the shore in a semi-permanent
or indefinite manner’” (quoting Pavone v. Mississippi Riverboat Amusement
Corp., 52 F.3d 560, 570 (5th Cir. 1995))). Preparing to move T.T.’s Cleaning
Barge can take over a week and requires removing a metal walkway and
disconnecting utility lines. And T.T.’s Cleaning Barge is stationary at all
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relevant times when Ratcliff and other barge cleaners work on it. Therefore,
a reasonable observer would not consider T.T.’s Cleaning Barge designed to
a practical degree for carrying people or things over water.
Additionally, Ratcliff argues that T.T. applies the incorrect standard
of review because whether T.T.’s barges qualify as vessels is a fact question
left to the jury and not subject to garden-variety summary judgment review.
However, both cases that Ratcliff cites for this proposition further explain
that summary judgment may be appropriate when deciding whether a
watercraft is a vessel under the Jones Act “where the facts and the law will
reasonably support only one conclusion.” Chandris, Inc. v. Latsis, 515 U.S.
347, 373 (1995); see Ducote, 953 F.2d at 1002–03 (“[S]ummary judgment may
be appropriate when there is no evidence from which reasonable persons
might draw conflicting inferences on any of the elements of the seaman
test.”). The uncontroverted facts and law here only support the conclusion
that T.T.’s Cleaning Barge does not qualify as a vessel under the Jones Act.
Therefore, the district court did not err in finding that T.T.’s Cleaning Barge
lacked vessel status at summary judgment. 4
B.
Ratcliff next argues that the district court erred in granting summary
judgment as to Ratcliff’s lack of seaman status under the Jones Act. We
disagree.
To qualify as a Jones Act seaman, a plaintiff must satisfy two
requirements. First, “an employee’s duties must ‘contribut[e] to the function
of the vessel or to the accomplishment of its mission.’” Chandris, 515 U.S. at
_____________________
4
This determination comports with a district court decision granting summary
judgment after finding T.T.’s work barges are not vessels under the Jones Act. See Young
v. T.T. Barge Servs. Mile 237, LLC, 290 F. Supp. 3d 562, 567 (E.D. La. 2017).
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368 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, (1991)
(emphasis added). Second, that employee “must have a connection to a
vessel in navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature.” Id. (emphasis added).
Chandris explained:
The fundamental purpose of this substantial connection
requirement is to give full effect to the remedial scheme created
by Congress and to separate the sea-based maritime employees
who are entitled to Jones Act protection from those land-based
workers who have only a transitory or sporadic connection to a
vessel in navigation, and therefore whose employment does not
regularly expose them to the perils of the sea.
Id. Sitting en banc, the court provided three factors to be considered in
determining whether the “substantial connection” requirement is met:
(1) Does the worker owe his allegiance to the vessel, rather than
simply to a shoreside employer?
(2) Is the work sea based or involve seagoing activity?
(3) (a) Is the worker’s assignment to a vessel limited to
performance of a discrete task after which the worker’s
connection to the vessel ends, or (b) Does the worker’s
assignment include sailing with the vessel from port to port or
location to location?
Sanchez, 997 F.3d at 574.
Because T.T.’s Cleaning Barge does not qualify as a vessel, the rest of
the analysis as to Ratcliff’s seaman status under the Jones Act focuses on
Ratcliff’s connection to Ingram’s barges (including Ingram Barge 976),
which the parties do not dispute are Jones Act vessels. Applying the Chandris
requirements and Sanchez factors, Ratcliff lacks a substantial connection to
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Ingram’s barges. Therefore, Ratcliff does not qualify as a seaman under the
Jones Act.
First, Ratcliff argues that he satisfies Chandris’s “very broad”
threshold function requirement that he “contribute to the function of the
vessel or to the accomplishment of its mission.” See Chandris, 515 U.S. at
368, 377. Second, Ratcliff argues that he satisfies Chandris’s duration prong
of the substantial connection requirement that is generally met if a worker
spends a minimum of 30 percent of his time aboard a vessel. See Chandris,
515 U.S. at 371. Third, however, even assuming these are met, Ratcliff fails
to satisfy Chandris’s nature prong of the substantial connection requirement
based on the three Sanchez factors.
The first Sanchez factor asks: “[d]oes the worker owe his allegiance to
the vessel, rather than simply to a shoreside employer?” Sanchez, 997 F.3d at
574. Ingram argues that Ratcliff owed his allegiance to a shoreside employer
because he reported to work and received assignments from T.T.’s shoreside
offices, not Ingram’s fleet. Ratcliff argues that he owed allegiance collectively
to both Ingram and T.T. Here, Ratcliff owed allegiance to his shoreside
employer, T.T., for which he directly worked—not one of T.T.’s multiple
customers for which he may have been assigned to clean one of their barges
on any given day. Therefore, the first Sanchez factor weighs against Ratcliff
satisfying Chandris’s substantial connection requirement.
The second Sanchez factor also does not weigh in favor of Ratcliff
satisfying Chandris’s substantial connection requirement. It asks: “[i]s the
work sea-based or involve seagoing activity?” Id. Ratcliff argues that his work
on Ingram’s barges was seagoing and he was exposed to the perils of the sea
because (a) Ingram’s barges were directly in the Mississippi River and at risk
of collision with mid-river watercraft that had previously struck T.T.’s
cleaning barge, (b) Ratcliff had previously slept at T.T.’s facility, and
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(c) Ratcliff had previously rode Ingram’s barges about 200 feet between
T.T.’s Repair Barge and Cleaning Barge despite T.T. company policy against
such rides. Denying the rides happened, T.T. argues that any such rides on
Ingram’s barges violated T.T. company policy and were taken merely as
passengers to avoid walking on land from one tier of the facility to another.
Ingram argues Ratcliff’s work cannot be seagoing because Ratcliff has
admitted that (1) Ingram’s barges were always moored during Ratcliff’s
cleaning duties, including during the time of the accident; and (2) Ratcliff had
no duties with respect to any moving barges or vessels.
Here, Ingram’s arguments show that Ratcliff’s barge cleaning work
was not sea-based and did not involve seagoing activity. And Ratcliff’s
arguments can be distinguished. That a T.T. work barge was once struck does
not make Ratcliff’s cleaning work aboard nearby Ingram barges any more
“seagoing” than an object can become “seagoing” just because a nearby dry
dock has been struck. And Ratcliff only claims that he slept at T.T.’s facility,
not aboard Ingram’s barges. Only the alleged 200-foot customer barge rides
against company policy suggest any sea-based work or seagoing activity—and
those hardly subject Ratcliff to the perils of the sea. Even viewing that fact in
the light most favorable to Ratcliff at summary judgment, the second Sanchez
factor is neutral at best and cannot help Ratcliff satisfy Chandris’s substantial
connection requirement.
The third Sanchez factor asks: “(a) [i]s the worker’s assignment to a
vessel limited to performance of a discrete task after which the worker’s
connection to the vessel ends, or (b) [d]oes the worker’s assignment include
sailing with the vessel from port to port or location to location?” Id. Here, as
Ingram points out, Ratcliff admits that his discrete task ends when he is
finished cleaning Ingram’s barges—in Ratcliff’s own words, he is then “done
with it.” And any 200-foot barge rides cannot constitute sailing from port to
port. Ratcliff provides little resistance against Ingram’s and T.T.’s
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arguments regarding this third factor. Therefore, the third Sanchez factor
weighs against Ratcliff satisfying Chandris’s substantial connection
requirement.
Based on the summary judgment evidence viewed in the light most
favorable to Ratcliff, the Sanchez factors weigh against Ratcliff satisfying
Chandris’s substantial connection requirement at least regarding the nature
of that connection. Therefore, Ratcliff does not qualify as a Jones Act
seaman. Accordingly, the district court did not err in granting summary
judgment as to the lack of Ratcliff’s seaman status under the Jones Act.
C.
Ratcliff argues that, even if the Longshore Act applies, the district
court erred in granting summary judgment and finding that Ingram owed no
duty under the Longshore Act. We disagree.
Section 905(b) of the Longshore Act applies here. 33 U.S.C. § 905(b).
Under § 905(b), vessel owners “owe three narrow duties to longshoremen:
(1) a turnover duty, (2) a duty to exercise reasonable care in the areas of the
ship under the active control of the vessel, and (3) a duty to intervene.”
Kirksey, 535 F.3d at 391. Only the turnover duty is at issue in this case:
The turnover duty encompasses two distinct-but-related
obligations. First, the vessel owner “owes a duty to exercise
ordinary care under the circumstances to turn over the ship and
its equipment in such condition that an expert stevedore can
carry on stevedoring operations with reasonable safety.”
[Kirksey, 535 F.3d at 392.] And second, the vessel owner “owes
a duty to warn the stevedore of latent or hidden dangers which
are known to the vessel owner or should have been known to
it.” Id. However, a vessel owner need not warn of “dangers
which are either: (1) open and obvious or (2) dangers a
reasonably competent stevedore should anticipate
encountering.” Id.14
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Manson Gulf, L.L.C. v. Mod. Am. Recycling Serv., Inc., 878 F.3d 130, 134 (5th
Cir. 2017).
While the district court addressed the turnover duty to warn as to the
frozen caustic soda generally, Ratcliff now emphasizes that the frozen caustic
soda on the ceiling of the barge created a hidden or latent danger. Though
Ingram warned T.T. about “2 inches per tank” of caustic soda buildup,
Ratcliff alleges the warning did not extend to frozen caustic soda on the
ceiling. Here, like Manson Gulf, claimant’s “turnover-duty claim hinges on
whether the [danger] was hidden or was instead (1) open and obvious or (2)
a danger ‘a reasonably competent stevedore’ should have anticipated.” Id. at
135 (citation omitted).
But here, unlike Manson Gulf, no summary judgment evidence viewed
in the light most favorable to Ratcliff can show that the danger of frozen
caustic soda on the ceiling was not open and obvious. Ratcliff himself 5
confirmed that he saw caustic soda on the ceiling of the barge and dripping
down as he entered the barge. According to Ratcliff’s own testimony, he first
saw the caustic soda on the ceiling an hour-and-a-half before he was initially
injured on his arm and leg by falling drops of caustic soda. 6 Ratcliff’s foreman
and work team also saw the caustic soda on the ceiling and dripping down.
Ratcliff’s foreman warned Ratcliff and his work team to stand back as he
sprayed the frozen caustic soda to clean it off the ceiling. All these facts
contrast with the obscured platform hole in Manson Gulf that played “tricks
_____________________
5
Ratcliff’s own testimony is prioritized here because “an open-and-obvious
inquiry should take place from the perspective of the injured longshoreman.” Manson Gulf,
878 F.3d at 136 n.2.
6
Ratcliff alleges that caustic soda lacks color and odor, at least in some form. But
Ratcliff nevertheless testified that he could see the frozen or dry caustic soda buildup on
the ceiling of the barge as it thawed and dripped down.
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No. 22-30577
on your eyes” and others did not see until the Manson Gulf claimant fell
through the hole. Id. at 136. Therefore, no genuine issue of material fact exists
as to the openness of and obviousness of the caustic soda on the ceiling that
dripped down. 7
Ratcliff’s surprise upon finding the danger of caustic soda on the
ceiling of the barge cannot change the fact that Ratcliff and others found the
danger open and obvious. 8 Ratcliff’s surprise might factor into the analysis of
whether the caustic soda on the ceiling was a danger a reasonably competent
stevedore should have anticipated encountering. But we need not proceed
with that analysis given that the danger here is open and obvious. See id. at
134 (explaining that “a vessel owner need not warn of dangers which are
either: (1) open and obvious or (2) dangers a reasonably competent stevedore
should anticipate encountering”) (emphasis added) (internal quotations
omitted).
That Ratcliff was new to and unfamiliar with cleaning caustic soda and
was not provided the proper personal protective equipment lacks relevance
_____________________
7
Moreover, no genuine issue of material fact exists as to the openness and
obviousness of the pool of caustic soda on the floor. By Ratcliff’s own account of the facts,
he saw the caustic soda dripping down and had already been injured by the falling drops of
caustic soda, which caused him to change his slicker suit. Therefore, the pool of caustic
soda on the floor, which Ratcliff alleges was created by the frozen caustic soda thawing and
dripping down, would have been open and obvious to Ratcliff.
8
Other evidence refutes Ratcliff’s alleged element of surprise. Ingram points to
evidence suggesting that T.T. received pictures of the barge’s condition before work began,
a T.T. representative performed a check of the barge before cleaning began, and that T.T.
determined a “Butterworth” spray of the ceiling was necessary before entering the barge.
However, Ratcliff’s testimony that he was surprised would at least create a factual dispute
as to whether it would have been surprising. Nevertheless, this factual dispute as to surprise
does not inform the open and obvious inquiry here—in other words, even if Ratcliff was
surprised to see the caustic soda on the ceiling as he entered the barge, such surprise does
not preclude the danger from being open and obvious.
16
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No. 22-30577
as to whether the frozen caustic soda on the ceiling was open and obvious.
Those facts would be relevant if we analyzed the need to warn under the
“reasonably competent stevedore” standard or if Ratcliff could assert
negligence claims against T.T., his employer. But those facts lack relevance
to the openness and obviousness inquiry here as it relates to whether to
impose the narrow turnover duty to warn of hidden or latent dangers against
Ingram.
At oral argument, Ratcliff clarified his argument to explain that
Ingram breached its turnover duty to warn the moment Ratcliff stepped foot
inside the barge and before Ratcliff was injured. But Ratcliff’s temporal
distinction is unpersuasive. The danger of caustic soda on the ceiling
remained open and obvious.
The openness and obviousness of the caustic soda on the ceiling
negated the turnover duty to warn. Accordingly, Ingram owed Ratcliff no
turnover duty to warn of the caustic soda on the ceiling. See Kirksey, 535 F.3d
at 397 (determining a “vessel had no turnover duty to warn against the defect
or to correct the unsafe condition” because it was open and obvious); Hess v.
Upper Mississippi Towing Corp., 559 F.2d 1030, 1036 (5th Cir. 1977)
(discerning “no basis for imposing a duty of care on the defendants” where
the danger “was well known to all concerned”).
Ratcliff fails to show that the alleged high degree of danger changes
the analysis here. Ratcliff presents his argument regarding the high degree of
danger in the context of the West exception. The West exception may excuse
a vessel owner from a duty to protect an independent contractor “from risks
that were inherent in the carrying out of the contract.” Hill v. Texaco, Inc.,
674 F.2d 447, 452 (5th Cir. 1982) (quoting West v. United States, 361 U.S. 118,
123 (1959)). Ratcliff attempts to distinguish cases where the West exception
applies by arguing the danger is far more dangerous here. By arguing the West
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No. 22-30577
exception does not apply to the frozen caustic soda on the ceiling, Ratcliff
essentially asks to limit the application of the West exception when a danger’s
quantity, condition, or location is unexpected. But we need not determine
whether the West exception applies, or whether it should be limited, because
Ingram owes Ratcliff no duty to warn in the first place given the openness and
obviousness of the danger. 9
Ratcliff also asserts that Ingram breached its duty to warn of hidden or
latent dangers by violating industry standards in a way that caused or
contributed to Ratcliff’s injuries. Ratcliff alleges that industry standards
obligated Ingram to send a representative to check the barge and conduct a
job safety analysis so that it could properly warn Ratcliff of hidden or latent
dangers. However, as already determined, Ingram owed Ratcliff no turnover
duty to warn of hidden or latent dangers based on the openness and
obviousness of the danger here. Therefore, these allegations cannot raise a
genuine issue of material fact.
Lastly, Ratcliff argues that Ingram breached its distinct-but-related
obligation to furnish a reasonably safe ship under the turnover duty by failing
to provide a first aid kit on its barge. Ratcliff alleges that Ingram had a duty to
provide the first aid kit because it was an industry standard. The district court
did not analyze Ingram’s separate turnover duty “to exercise ordinary care
under the circumstances to turn over the ship and its equipment in such
_____________________
9
At oral argument, Ratcliff further contended that the “distinction between
knowledge of a condition and knowledge of the dangerousness of that condition” prevented
the danger of caustic soda on the ceiling from being open and obvious. See Randolph v.
Laeisz, 896 F.2d 964, 971 (5th Cir. 1990). But Randolph applied that distinction while
analyzing a vessel owner’s duty to intervene, not a vessel owner’s turnover duty. Id. Ratcliff
fails to cite any authority for imposing a turnover duty on a vessel owner based on a high
degree of danger regardless of the openness and obviousness of that danger, and we decline
to create any such authority.
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No. 22-30577
condition that an expert stevedore can carry on stevedoring operations with
reasonable safety,” Manson Gulf, 878 F.3d at 134 (citation omitted), in its
order granting summary judgment as to Ingram. But that makes no difference
here. This Circuit has already determined that the openness and obviousness
of a danger may also negate the turnover duty to furnish a reasonably safe
ship. Kirksey, 535 F.3d at 397. Moreover, Ratcliff points to no summary
judgment evidence of any industry standard relating to first aid kits.10
Therefore, even if some factual dispute exists as to whether the lack of a first
aid kit contributed to Ratcliff’s injury, no genuine issue of material fact arises
because Ratcliff cannot connect any such failure to Ingram’s turnover duty
to furnish a reasonably safe ship based on the summary judgment evidence.
III.
For the reasons set forth above, Ratcliff’s arguments fail. Accordingly,
the district court’s orders granting summary judgment are
AFFIRMED.
_____________________
10
Instead, as Ingram points out, evidence shows that T.T. inspected Ingram Barge
976 upon arrival and before beginning any work on it and concluded that no conditions
existed that would prevent the cleanup work from safely occurring. And T.T. Barge’s
corporate representative further testified that T.T. Barge has no criticism of Ingram—or
the condition of its barge—related to Ratcliff’s alleged injuries.
19