Patil v. Amber Lagoon Shipping

Case: 21-30004 Document: 00515999893 Page: 1 Date Filed: 08/31/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2021
No. 21-30004
Lyle W. Cayce
Clerk
Pradeep Patil,
Plaintiff—Appellant,
versus
Amber Lagoon Shipping GmbH & Company; Macs
Maritime Carrier Shipping GmbH & Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-6167
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Per Curiam:*
In this case arising under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), the district court granted summary
judgment in favor of Defendants-Appellees Amber Lagoon Shipping GmbH
& Company and Macs Maritime Carrier Shipping GmbH & Company
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-30004
(collectively “Defendants”) and dismissed Plaintiff-Appellant Pradeep
Patil’s claims in their entirety. We AFFIRM.
I.
Patil is a surveyor with 45 years of experience in the maritime industry.
He is employed by Maritech Commercial, Inc. (“Maritech”), a company
that independently contracts to perform ultrasonic testing of the hatch covers
situated atop the holds of the M/V Amber Lagoon, a vessel owned and
operated by Defendants. Ultrasonic testing is a procedure whereby a vessel’s
hatch covers are battened down, and a tester sets up an ultrasonic transmitter
inside the hold, walks around the belly of the hatch cover while pointing an
ultrasonic signal detector at the hatch cover’s seal, and takes decibel readings
to identify any leakage in the seal.
On March 17, 2016, Maritech sent Patil to perform ultrasonic testing
on the hatch covers of Holds One, Two, and Three of the Amber Lagoon,
while the vessel was docked in Houston, Texas. On the day of testing, the
captain of the Amber Lagoon requested that Patil test the hatch covers on
Hold Four as well. The holds on the Amber Lagoon rise six feet above the main
deck, and each hold is split into port-side and starboard-side sections, with a
three-foot-wide gap between those two sections. There are port-side and
starboard-side hatch covers on top of each hold. Each hold contains port-side
and starboard-side access ladders, which allow individuals to ascend and
descend between the main deck and the hatch covers.
Patil conducted the ultrasonic testing from the tops of the hatch
covers rather than from the main deck, because the ultrasonic signal detector
works more effectively at the higher level. Sebastian Kedziora, the Amber
Lagoon’s second officer, accompanied Patil throughout the testing period and
marked areas of potential leakage identified by Patil with a permanent
marker. Patil used the access ladders to ascend and descend both sides of
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Holds One through Three and the starboard side of Hold Four without issue.
Patil also used the access ladder to ascend the port side of Hold Four without
issue.
Around 6:00 p.m., Patil finished his work for the day by completing
his testing of the port-side hatch cover of Hold Four. Patil noticed that the
port-side access ladder he had previously used to reach the top of the hold
had become blocked by cargo containers and was no longer a viable method
of descending to the main deck. Patil asked Kedziora to retrieve the
ultrasonic transmitter that Patil had set up inside Hold Four and bring it back
to the main deck. Kedziora jumped across the three-foot gap between the
port and starboard sides, descended the starboard-side access ladder to the
main deck, and began climbing through a manhole in the deck to reach the
inside of Hold Four. Patil decided to cross the three-foot gap as well, but he
chose not to jump the gap, because he was older and less nimble than
Kedziora. Instead, Patil sat down on the port-side ledge and attempted to
swing his right leg over the gap and place his right foot onto the starboard-
side ledge; however, Patil’s right foot slipped, and he fell six feet to the main
deck, suffering a small forehead laceration and a left-heel fracture.
As Kedziora was climbing into the manhole, he saw Patil fall out of the
corner of his eye. Kedziora and other Amber Lagoon crewmembers rushed to
Patil’s assistance, rendered first aid, and called an ambulance to take Patil to
the emergency room. At the hospital, Patil received x-rays and a CT scan,
which revealed no problems beyond the forehead laceration and left-heel
fracture. Patil’s injured foot was placed in a pneumatic boot, and he was
released from the hospital on the same day of his accident. Patil took three
months of paid medical leave based on his heel injury and ultimately
underwent heel surgery.
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On June 22, 2018, Patil filed this lawsuit against Defendants, alleging
negligence claims under the LHWCA. See 33 U.S.C. § 905(b). Specifically,
Patil alleged that he sustained severe and disabling injuries when he slipped
and fell due to a “foreign substance” on or near the hatch covers of the Amber
Lagoon.
Patil testified in his deposition that he did not actually observe a
foreign substance in the area of his slip-and-fall, but assumed that he slipped
on “some grease,” because the cleats attached to vessel hatch covers are
typically greased so that they slide easily through ledge holes. Patil further
testified that at some point after the accident, he returned home, examined
his work boots worn on the date of the accident, and noticed “a little bit” of
grease on the tip of one boot. Patil further testified as to his surrounding
conditions at the time of the accident: (1) although the sun had begun to set,
there was still daylight in the area; (2) the Amber Lagoon’s lighting was not
yet on, but Patil indicated that he did not yet need lighting for visibility; and
(3) the Amber Lagoon was docked and stable in terms of movement.
Kedziora testified in his deposition that the cleats on the Amber
Lagoon’s hatch covers are usually greased with lubrication oil to prevent
corrosion and that the Amber Lagoon crew was responsible for ensuring that
Patil’s inspection areas were free of grease. Kedziora further stated that, in
preparation for Patil’s ultrasonic testing work, the chief officer of the Amber
Lagoon followed the vessel’s standard operating procedure by sending
multiple crewmembers to examine Patil’s testing areas for grease and clean
the surfaces of the hatch covers with rags and chemicals. Kedziora testified
that, before the accident, he did not observe any type of foreign substance in
the area of Patil’s slip-and-fall, nor did Patil advise Kedziora of the presence
of any foreign substance.
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Patil’s medical records from the date of the accident and an employee
injury report do not mention a foreign substance in the area of the slip-and-
fall.
Defendants moved for summary judgment. The district court granted
summary judgment in favor of Defendants and issued a final judgment
dismissing Patil’s claims with prejudice. In its written reasons, the district
court concluded that Patil failed to show that Defendants breached their
“turnover duty,” “active control duty,” or “duty to intervene” under §
905(b) of the LHWCA. See 33 U.S.C. § 905(b); see also Scindia Steam Nav.
Co. v. De Los Santos, 451 U.S. 156 (1981). This appeal followed.
II.
We conduct a de novo review of a district court’s grant of summary
judgment, applying the same standard as the district court. Robinson v. Orient
Marine Co. Ltd., 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted).
Summary judgment is appropriate if the record evidence shows that there is
no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a), (c). “Unsubstantiated
assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Brown v. City of
Houston, 337 F.3d 539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable
inferences are to be drawn in favor of the non-moving party.” Robinson, 505
F.3d at 366 (citation omitted).
III.
Section 905(b) permits a covered maritime employee to recover
damages for personal injuries caused by the negligence of a vessel. 33 U.S.C.
§ 905(b). The parties agree that Patil is a covered employee under the
LHWCA, because he was a “person engaged in maritime employment” at
the time of the accident at issue. See 33 U.S.C. § 902(3). The scope of vessel
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negligence under § 905(b) is limited to breach of the three narrow duties that
shipowners owe to maritime employees, as outlined by the Supreme Court in
Scindia Steam: (1) a “turnover duty,” (2) a duty to exercise reasonable care
to prevent injuries in the areas of the ship under the “active control of the
vessel,” and (3) a “duty to intervene” to prevent unsafe cargo operations.
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98–101 (1994) (quoting
Scindia Steam, 451 U.S. at 167–78).
On appeal, Patil argues that the district court erred in finding no
genuine dispute as to any material fact with respect to his claims that
Defendants breached their “turnover” and “active control” duties. 1
A. Turnover Duty
“The turnover duty applies to the shipowner’s obligation before or at
the commencement of the [maritime employee’s] activities[,]” and imposes
two responsibilities on the vessel owner. Kirksey v. Tonghai Mar., 535 F.3d
388, 392 (5th Cir. 2008). First, the vessel owner must “exercise ordinary care
under the circumstances to turn over the ship and its equipment in such
condition that an expert [maritime employee] can carry on [his] operations
with reasonable safety.” Id. (citing Fed. Marine Terminals, Inc. v. Burnside
Shipping Co., 394 U.S. 404, 416–17 & n. 18 (1969)). Second, the vessel owner
must “warn the [maritime employee] of latent or hidden dangers which are
known to the vessel owner or should have been known to it;” however, a
vessel owner has no duty to provide a warning for “open and obvious”
dangers or “dangers a reasonably competent [maritime employee] should
anticipate encountering.” Id. (citing Howlett, 512 U.S. at 99–101).
1
Patil does not appeal the district court’s finding of no genuine dispute as to any
material fact with respect to his “duty to intervene” claim.
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The record reflects that the Amber Lagoon was turned over to Patil for
ultrasonic testing in a reasonably safe condition based on Kedziora’s
testimony that crewmembers examined Patil’s inspection areas for grease
and cleaned the surfaces of the vessel’s hatch covers before Patil’s testing
commenced. The record further indicates that any latent or hidden slip
hazards were unknown to Defendants based on the crew’s preparation efforts
and Kedziora’s testimony that he did not see any foreign substances in the
area of the accident. Moreover, Patil, a surveyor with 45 years of experience
in the maritime industry, reasonably should have anticipated encountering
potential slip hazards in traversing the three-foot-wide, six-foot-tall gap
between the port and starboard sides of Hold Four. The need for caution was
particularly apparent in light of the fact that Patil was attempting this
maneuver for the first time after consistently using the traditional—and
safer—method of navigating between the two sides of each hold via the
access ladders.
Significantly, the record lacks non-speculative evidence that the
Amber Lagoon was turned over to Patil with any slip hazard—open, obvious,
or otherwise—in the area of his accident. Both Patil and Kedziora testified
that they did not actually observe a foreign substance at the site of the
accident. In addition, shortly before the accident, Kedziora successfully
jumped from the port side to the starboard side of Hold Four without
slipping.
Patil’s turnover duty claim is premised on an assumption that the
later-discovered spot of grease on his work shoes came from the site of his
accident and caused his slip-and-fall—despite the fact that neither Patil nor
Kedziora observed grease in that area. In an unpublished opinion, we
affirmed the district court’s grant of summary judgment in favor of a vessel
owner in a § 905(b) negligence action under similar allegations. Kitchens v.
Stolt Tankers B.V., 657 F. App’x 248, 249–52 (5th Cir. 2016) (per curiam).
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The plaintiff in Kitchens slipped and fell on a vessel walkway and assumed
that the accident was caused by an accumulation of vegetable oil or other
foreign substances, however, neither the plaintiff nor any eyewitness actually
observed a foreign substance on the walkway. Id. at 250–51. In light of the
plaintiff’s “failure to produce any evidence of a hazard on the walkway,” we
found that the plaintiff’s assumption was “nothing more than unsupported
speculation and therefore insufficient to defeat a motion for summary
judgment.” Id. at 252 (citing Brown, 337 F.3d at 541). Patil has similarly failed
to present evidence of a slip hazard at the site of his accident, and his turnover
claim rests on an unsupported assumption.
For these reasons, we find no genuine dispute as to any material fact
with respect to Patil’s turnover duty claim.
B. Active Control Duty
Under the active control duty, a vessel may be liable under § 905(b) if
it “actively involves itself in the cargo operations and negligently injures” a
maritime employee, or if the vessel “fails to exercise due care to avoid
exposing [the maritime employee] to harm from hazards [he] may encounter
in areas, or from equipment, under the active control of the vessel” during
his work operations. Scindia Steam, 451 U.S. at 167. Accordingly, “liability
under the active control duty is premised on the presence or existence of a
‘hazard’ under the active control of the vessel.” Kitchens, 657 F. App’x at
251 (quoting Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 16 (5th Cir.
1992)). Liability under the active control duty “is not relieved when the
hazard is open and obvious.” Pimental, 965 F.2d at 16 (citing Masinter v.
Tenneco Oil Co., 867 F.2d 892, 897 (5th Cir. 1989)).“If, however, a vessel has
relinquished control over an area to the [maritime employee], then it is the
primary responsibility of the [maritime employee] to remedy a hazard in that
area.” Id. (citation omitted).
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Patil argues that Defendants breached the active control duty when
(1) Defendants’ cargo operations caused the port-side access ladder on Hold
Four to become obstructed with cargo containers, thus forcing Patil to
attempt the dangerous crossing that led to his slip-and-fall; and (2) Kedziora,
Defendants’ employee, took an active role in Patil’s ultrasonic testing work
and failed to ensure Patil’s safe descent to the main deck.
Kedziora attested in a declaration that all cargo operations involving
the Amber Lagoon (including all bulk cargo and all container loading,
discharge, movement, placement and securing activities, as well as all crane
operation necessary to conduct all such activities) were directed, controlled,
and performed by an independent contractor stevedoring company and by
that company’s longshore crews. Kedziora further attested that the officers
and crewmembers of the Amber Lagoon did not conduct, direct, supervise or
control any such cargo, container, or crane activities and operations. Patil
presented no evidence to refute Kedziora’s attestations. Thus, the record
reflects that Defendants had no active involvement over the Amber Lagoon’s
cargo operations and did not exercise active control over the areas and
equipment involved in those operations. Scindia Steam, 451 U.S. at 167.
Further, the record reflects that Defendants did not maintain active
control over Patil’s work, because Patil maintained full autonomy over the
equipment used and areas examined during the testing period. There is no
evidence that Kedziora set up or operated the ultrasonic testing equipment,
directed Patil on how to use that equipment, or restricted Patil’s freedom to
move about the testing areas on the Amber Lagoon in the manner Patil saw fit.
Instead, Kedziora merely followed Patil around, marked areas of leakage
identified by Patil, and went to retrieve a piece of equipment from the inside
of Hold Four at Patil’s instruction after testing was complete. Indeed, the
very reason Kedziora was not available to help Patil descend to the main deck
was because Patil sent Kedziora ahead to retrieve the equipment. Thus, the
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assistance Kedziora provided to Patil does not rise to the level of Defendants
exercising active control over Patil’s ultrasonic testing work. Id.Even if Defendants had actively involved themselves in Patil’s
ultrasonic testing work, Patil’s active control claim would still fail, because
such a claim is premised on the existence of a hazard. Kitchens, 657 F. App’x
at 251. As discussed above, Patil’s “unsupported speculation” regarding the
presence of grease at the site of his accident is insufficient to defeat a motion
for summary judgment. Id. at 249–52.
For these reasons, we find no genuine dispute as to any material fact
with respect to Patil’s active control duty claim.
IV.
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.
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