Pledger v. Phil Guilbeau Offshore, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS February 10, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-30514
KENNETH PLEDGER, individually and on behalf of his minor children
Darnell Pledger, Rachel Robinson, Keira Johnson, Ivan Pledger,
Storn Pledger and Jilasea Henry; TRIXINE PLEDGER,
Plaintiffs-Appellants,
VERSUS
PHIL GUILBEAU OFFSHORE, INC., ET AL,
Defendants,
PHIL GUILBEAU OFFSHORE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(02-CV-1796-L)
Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:1
Plaintiff, Kenneth Pledger, appeals the dismissal on summary
judgment of his suit brought under 33 U.S.C. § 905(b) against the
owner of the supply boat on which he was injured while loading
cargo. The district court found no material facts in dispute and
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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this opinion should not be published and is not precedent except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.
held that none of the duties imposed on shipowners by Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68
L. Ed. 2d 1 (1981), were breached. Plaintiff appeals the decision
only as to the second (active control) and third (duty to
intervene) duties. After careful de novo review of the record and
full consideration of the written and oral argument of the parties
we affirm, essentially for the reasons given by the district court.
Plaintiff was a member of a three-man Halliburton crew which
had completed work on a well from a stationary lift boat. The crew
was in the process of loading Halliburton’s equipment from the
lift boat to the deck of the Defendant’s supply boat. In the
process of so doing, Plaintiff slipped in algae growing on the
wooden deck of the supply boat, and was injured. Before beginning
the loading each member of the Halliburton crew was aware of the
algae on parts of the deck, discussed it, and determined that it
did not present a hazard to them in the loading operation. During
the loading the seas were somewhat rough requiring the Captain of
the supply boat to remain at the stern controls and constantly
maneuver the boat to keep it in position next to the lift boat so
that the Halliburton equipment could be lowered to the deck by the
lift boat crane. The evidence varied as to whether the Captain
directed the location at which only the largest and heaviest piece
of equipment was placed, or directed the location of each piece of
equipment. The district court accepted Plaintiff’s version of
those facts. There is no evidence that the Captain was aware of
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any algae on the deck during this operation, although he did know
that at other times algae had appeared on the wet parts of the
deck.
Plaintiff’s primary contention on appeal is that the shipowner
remained in active control of the vessel and the loading operation
because the Captain directed the location at which each load was to
be stowed and operated the vessel to keep it in position next to
the lift boat. However, as the district court pointed out,
determining placement of the cargo does not constitute active
control. Clay v. Daiichi Shipping, 237 F.3d 631 (5th Cir. 2000).
Neither does simply maintaining the position of the ship while the
stevedore and lift boat personnel perform all other duties in
connection with the loading. For the shipowner to be liable under
the second Scindia duty the vessel must exercise active control
over the actual methods and operative details of the longshoreman’s
work. Breaux v. United States, 1996 WL 626328 at *4 (E.D. La.
1996). This record reflects no evidence of such control.
With respect to the third Scindia duty (to intervene) the
vessel owner can rely on the stevedore’s expert knowledge,
including the stevedore’s judgment that a condition, although
dangerous, is safe enough to permit work to continue. Greenwood v.
Societe Francaise De, 111 F.3d 1239, 1249 (5th Cir. 1997). The
vessel owner has a duty to intervene only when it has actual
knowledge that the stevedore is using an unsafe practice which is
creating a hazard because the stevedore intends to work in the face
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of the hazard and cannot be relied on to remedy it. See Pimental
v. LTD Canadian Pacific Bulk, 965 F.2d 13, 15 (5th Cir. 1992). The
owner’s responsibility is “narrow and requires something more than
mere shipowner knowledge of a dangerous condition.” Singleton v.
Guangzhow Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996).
Plaintiff’s evidence does not create an issue of the Captain’s
actual knowledge, but only that he should have known of the
presence of the algae. As the district court also held, however,
even if knowledge was established the evidence shows that the
stevedore did not consider the algae dangerous, or that it created
an unreasonable risk of harm to them or their operation. There is
no evidence that the shipowner should have thought otherwise.
The judgment granting summary judgment in favor of the
shipowner is AFFIRMED.
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