     Case: 15-41381      Document: 00513748017         Page: 1    Date Filed: 11/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 15-41381                             FILED
                                  Summary Calendar                    November 4, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
JOSEPH ABSTON,

              Plaintiff - Appellant

v.

JUNGERHAUS MARITIME SERVICES GMBH & COMPANY KG; JMS
SCHIFFAHRTSGESELLSCHAFT MBH & COMPANY KG MS “PAVO J”,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:13-CV-40


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: ∗
       Joseph Abston, a longshoreman working aboard Defendants’ ship, was
injured when he slipped and fell from a “flat rack” cargo shipping container
and brings this federal admiralty law action under 33 U.S.C. § 405(b) alleging
breaches of the duties of active control and intervention. Magistrate Judge



       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-41381     Document: 00513748017      Page: 2   Date Filed: 11/04/2016


                                  No. 15-41381

John R. Froeschner, proceeding with the consent of the parties, granted
summary judgment for Defendants. We AFFIRM.
                                        I.
      On February 18, 2012, Plaintiff Joseph Abston was working as a
longshoreman aboard Defendants’ ship, the Pavo J. It was a stormy day;
operations were suspended between 3:10 p.m. and 3:30 p.m. due to heavy
rainfall that obscured the longshoremen’s vision. At approximately 4:00 p.m.,
Abston and other crew members were loading flat racks onto the top deck of
bay nine, 1 placing one near the edge of the deck fifteen feet above deck thirteen.
While deck thirteen is usually surrounded by a “safety expansion,” a series of
two-and-a-half-foot-tall pipes linked together by rope, the expansion is
routinely removed during cargo operations and was not then in place. The
longshoremen did not object to the safety expansion’s absence.
      Abston worked as a lasher that day, requiring him to climb to the top of
the cargo containers and unhook them from the crane that loaded them onto
the deck. Rather than use a ladder, Abston “shimmied up the side of [the flat
rack]” by receiving a “boost” from another longshoreman and climbing up the
flat rack’s hinges. Abston did not request or wear fall-safety equipment. While
holding on to a hinge on the flat rack, Abston’s foot and hand slipped, and he
fell approximately ten feet to the top deck before falling a further fifteen feet
to the bottom of deck thirteen, suffering significant physical injuries.
      Following discovery, Defendants moved for summary judgment on all
claims. At the hearing, Abston informed the court that he would not call live
witnesses at trial but would instead rely solely on depositions. The court
granted summary judgment for Defendants, and Abston timely appealed.



      1Flat racks are shipping containers that are open on the sides in order to
accommodate oversized items.
                                        2
     Case: 15-41381       Document: 00513748017          Page: 3     Date Filed: 11/04/2016


                                       No. 15-41381

                                              II.
       Summary judgment is proper where “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 2
Ordinarily, on summary judgment, a court is to view the evidence in the light
most favorable to the non-movant and make all reasonable inferences in the
non-movant’s favor. 3 However, this Court has articulated a different standard
where, as here, the trial court sits as the trier of fact and the parties will be
relying on deposition testimony rather than live witness testimony:
       If decision is to be reached by the court, and there are no issues of
       witness credibility, the court may conclude on the basis of the
       affidavits, depositions, and stipulations before it, that there are no
       genuine issues of material fact, even though decision may depend
       on inferences to be drawn from what has been incontrovertibly
       proved. Under those circumstances, which may be rare, the judge
       who is also the trier of fact may be warranted in concluding that
       there was or was not negligence, or that someone acted reasonably
       or unreasonably, or, as is the case here, that delay under the
       circumstances proved is justified or unjustified, even if that
       conclusion is deemed “factual” or involves a “mixed question of fact
       and law.” A trial on the merits would reveal no additional data.
       Hearing and viewing the witnesses subject to cross-examination
       would not aid the determination if there are neither issues of
       credibility nor controversies with respect to the substance of the
       proposed testimony. The judge, as trier of fact, is in a position to
       and ought to draw his inferences without resort to the expense of
       trial. 4

       “We review a summary judgment de novo, applying the same standard
as did the district court.” 5


       2 FED. R. CIV. P. 56(a).
       3 United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
       4 Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978).
       5 United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Citing Philips Oil Co

v. OKC Corp., 812 F.2d 265, 273 n.15 (5th Cir. 1987), Defendants invite us to adopt a “clear
error” standard of review. We decline to do so for two reasons. First, Defendants cite to no
authority in support of a clear error standard. Philips certainly does not hold that clear error
                                               3
     Case: 15-41381       Document: 00513748017         Page: 4     Date Filed: 11/04/2016


                                       No. 15-41381

                                             III.
       Abston alleges breach of two of the three duties owed by vessel owners
to longshoremen under § 905(b). 6 First, that Defendants, while maintaining
“active control” over the relevant area, failed to replace the safety expansion
after cargo unloading operations ceased. Second, that Defendants failed to
intervene and replace the safety expansion, leaving a hazardous work
condition that the longshoremen and the stevedore-employer continued to
work around.
       The active control duty is the broader of the two duties here at issue; “a
shipowner must exercise reasonable care to prevent injuries to longshoremen
in areas that remain under the ‘active control of the vessel.’” 7 “If, however, a
vessel has relinquished control over an area to the stevedore, then it is the
primary responsibility of the stevedore to remedy a hazard in that area.” 8 “To
determine whether a vessel owner retains active control over an area, this
court generally considers whether the area in question is within the
contractor’s work area, whether the work area has been turned over to the
contractor, and whether the vessel owner controls the methods and operative
details of the stevedore’s work.” 9



is appropriate; in Philips, this Court merely noted that a more deferential standard of review
might exist without reaching the question. Second, as in Philips, here we need not reach the
question of whether a more deferential standard of review is appropriate because we affirm
under our usual de novo review.
        6 “The duties owed to longshoremen under Section 905(b) are these: ‘(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.’” Sobrino-Barrera v. Anderson Shipping Co., Ltd.,
495 F. App’x 430, 433 (5th Cir. 2012) (quoting Kirksey v. Tonghai Maritime, 535 F.3d 388,
391 (5th Cir. 2008)).
        7 Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994) (quoting Scindia

Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 167 (1981)).
        8 Piemental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992).
        9 Dow v. Oldendorff Carriers GMBH & Co., 387 F. App’x 504, 507 (5th Cir. 2010) (per

cuiram).
                                              4
     Case: 15-41381       Document: 00513748017          Page: 5     Date Filed: 11/04/2016


                                       No. 15-41381

       Abston argues that “the evidence unequivocally establishes that
Defendants exercised active control over the safety expansion,” citing Jeffrey
Williams’s deposition testimony that longshoremen were not allowed to replace
the safety expansion. Well and good, but, at the time of the accident, the
vessel’s crew had turned that area of the ship over to Ports America for cargo
operations. 10 Nothing in the record indicates that the ship’s crew controlled
“the methods and operative details of the stevedore’s work.” 11 We are pointed
to no competent summary judgment evidence that the top deck of bay nine was
an area under the active control of the vessel or her crew; disallowing
replacement of the safety expansion by the longshoremen is not enough to meet
the plaintiff’s burden. We turn to the duty to intervene claim.
       “[A] vessel has a duty to intervene when it has actual knowledge of a
dangerous condition and actual knowledge that the stevedore, in the exercise
of obviously improvident judgment, has failed to remedy it.” 12 To establish a
breach of the duty to intervene, the plaintiff must show: (1) the vessel owner
had actual knowledge of the defect; (2) the vessel owner had actual knowledge
that the defect posed an unreasonable risk of harm; and (3) the vessel owner



       10  Longshoremen were loading and unloading cargo from approximately 7:10 a.m.
until 4:45 p.m., with intermittent breaks due to heavy rainfall.
        11 Williams’ deposition actually indicates just the opposite:

         Q: Okay. None of the ship’s crew told Mr. Abston what to do or how to do his job or
anything like that to your knowledge?
        A: We – we interact with the crew of the ship. We have one basic job. It is to get the
ship unloaded and loaded back in a safe and timely manner.
        Q: That’s right. And the details of how you do that are up to you and your – the
longshoremen working on the cargo, right?
        A: Yes.
        The only involvement the vessel had with the stevedore’s operations appears to be in
regards to the placement of cargo on the ship. But this Court has held that “[i]nvolvement in
the cargo plan does not constitute active control.” Sobrino-Barrera, 495 F. App’x at 434 (citing
Howlett, 512 U.S. at 103).
        12 Greenwood v. Societe Francaise De, 111 F.3d 1239, 1248 (5th Cir. 1997) (citations

omitted) (internal quotation marks omitted).
                                               5
     Case: 15-41381       Document: 00513748017         Page: 6     Date Filed: 11/04/2016


                                       No. 15-41381

had “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.” 13
       That Abston exercised “obviously improvident judgment” by climbing
onto the flat rack without the use of either a safety harness or ladder is not
challenged. The record indicates that Defendants removed the safety
expansion as a matter of course during cargo operations and also suggests that
the longshoremen did not raise concerns about the missing expansion. And
there is no evidence in the record that Defendants could have reasonably
anticipated that Abston, after a driving rainstorm, would climb the side of a
flat rack near the missing safety expansion without the use of either a safety
harness or a ladder.
       Even where a risk exists, “[t]his Court has noted that in some situations
the vessel owner is entitled to rely on the stevedore’s judgment that the
condition, though dangerous, was safe enough. It is only where the stevedore’s
judgment in continuing to work in the face of danger is ‘obviously improvident’
that the vessel acquires a duty to intervene.” 14 Abston has not produced
competent summary judgment evidence that the Defendants had actual
knowledge that the missing safety expansion created an unreasonable risk of
harm or that the Defendants were aware that Plaintiff would attempt his climb
without a safety harness. 15 Without such evidence, Abston has failed to raise
a question for trial regarding the duty to intervene.



       13  Id. (quoting Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir. 1990)).
       14  Randolph, 896 F.2d at 971 (citations omitted).
        15 Nor can Plaintiff articulate a causal link between the missing safety expansion and

the concededly improvident conduct in which he engaged. Plaintiff would have fallen either
way, and while he speculates that he might have been able to grab the safety expansion on
the way down, the safety expansion was not designed nor intended for such purpose. Put
slightly differently, an experienced longshoreman climbing the side of a flat rack in rainy
                                              6
     Case: 15-41381       Document: 00513748017         Page: 7     Date Filed: 11/04/2016


                                       No. 15-41381

       We AFFIRM summary judgment for Defendants.




conditions and without any fall protection equipment was not a harm within the risk of failing
to replace the safety expansion.
                                              7
