     Case: 10-30002     Document: 00511182184          Page: 1    Date Filed: 07/22/2010




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

                                                  FILED
                                                                            July 22, 2010

                                     No. 10-30002                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



THERESA DOW,

                                                   Plaintiff - Appellant
v.

OLDENDORFF CARRIERS GMBH & CO., KG; SINCERE INDUSTRIAL
CORPORATION; EVERMORE MARINE CORPORATION,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                No. 2:07-CV-09356


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Theresa Dow sued Oldendorff Carriers GMBH & Co., KG; Sincere
Industrial Corp.; and Evermore Marine Corp. (collectively, “Defendants”) under
§ 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. §§ 901 et seq., alleging vessel negligence for personal injuries sustained
while employed by Coastal Cargo Co., Inc. (“Coastal Cargo”). After a bench trial



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-30002

on liability, the district court found the Defendants did not breach any duty owed
to Dow under § 905(b) and dismissed the case with prejudice. We AFFIRM.
      Dow was injured while working as a stevedore in a cargo hold of the M/V
IRENE OLDENDORFF.1 Dow injured her leg when she jumped approximately
five or six feet from the top of the steel cargo to the floor of the cargo hold (the
“tank top”). At the time of the accident, Dow contends that it was dark in the
cargo hold and difficult to see. The hold had two access ladders that extended
from the hatch on deck to the tank top. Dow alleges that one of the ladders was
not operational and was roped off. She used the other ladder to access the top
of the cargo, but additional cargo blocked the ladder from reaching the tank top.
When Dow jumped, a loose metal band from the steel cargo caught her right foot.
She landed on her left leg, sustaining permanent injuries.
      Dow sued the Defendants alleging a breach of duty under the LHWCA,
arguing that her injury was caused by the vessel owner’s negligence. We review
the district court’s findings of fact for clear error and consider all question of law
de novo. Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 (5th Cir. 1997)
(citation omitted). Under § 905(b), a vessel owner owes three narrow duties to
a longshoreman: (1) a turnover duty; (2) a duty to exercise reasonable care in
areas of the vessel under active control of the vessel once stevedoring activities
have begun; and (3) a duty to intervene. Kirksey v. Tonghai Mar., 535 F.3d 388,
391 (5th Cir. 2008) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98
(1994)).
      Dow contends the Defendants breached the turnover duty by failing to
repair the broken hatch cover that allegedly precluded use of the second access
ladder, failing to warn her of the loose metal bands among the steel cargo, failing
to provide adequate lighting, and hazardously stacking the cargo against the

      1
       Oldendorff Carriers GMBH & Co., KG chartered the vessel, Evermore Marine Corp.
owned the vessel, and Sincere Industrial Corp. managed the vessel.

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ladders. Under the turnover duty, a vessel owner has two responsibilities: (1)
a duty to exercise ordinary care under the circumstances to turn over the vessel
and its equipment in such a condition that an expert stevedore can carry on
stevedoring operations with reasonable safety, and (2) a duty to warn the
stevedore of latent or hidden dangers which are known or should have been
known to the vessel owner.      Kirksey, 535 F.3d at 392 (citing Fed. Marine
Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416–17 & n.18 (1969)).
The duty to warn “does not include dangers which are either: (1) open and
obvious or (2) dangers a reasonably competent stevedore should anticipate
encountering.” Id. (citing Howlett, 512 U.S. at 105). The open and obvious
defense also applies to the duty to turn over a reasonably safe vessel. Kirksey,
535 F.3d at 394. However, “if a longshoreman’s only alternatives when facing
an open and obvious hazard are unduly impracticable or time consuming, then
the vessel owner may still be held liable.” Pimental v. LTD Can. Pac. Bulk Ship
Servs., 965 F.2d 13, 16 (5th Cir. 1992) (citing Treadaway v. Societe Anonyme
Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir. 1990)).
      Any problems with the hatch cover that rendered the second ladder
inoperable were open and obvious to Dow. Furthermore, Dow should have had
knowledge of the broken binding straps within the cargo because the bill of
lading advised her employer, Costal Cargo, of the broken straps prior to Dow’s
injury. Additionally, a stevedore generally expects to encounter broken binding
straps when discharging this type of cargo, and Dow herself testified to
knowledge of the broken straps within the cargo hold. With regard to the
lighting, the vessel’s crew rigged lights in the cargo hold on the day prior to the
accident. Dow’s accident occurred an half-hour before sunset. Even if the
lighting were insufficient to continue work at that time of day, maintaining
adequate lighting during cargo operations is the responsibility of the stevedore.
See Landsem v. Isuzu Motors, Ltd., 534 F. Supp. 448, 451 (D. Ore. 1982) (citing

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Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 176 (1981)); see
also Wright v. Gulf Coast Dockside, Inc., No. 97-2745, 1998 U.S. Dist. LEXIS
9519, at *9–*10 (E.D. La. June 23, 1998).
      Finally, there was no breach in the Defendants’ turnover duty by stacking
cargo against the bulkhead. Both parties’ expert witnesses testified that it was
customary to stack the cargo against the bulkhead in order to prevent the cargo
from shifting. Thus, the manner in which the cargo was stowed was not a latent
danger and did not give rise to a duty to warn. Moreover, twenty-foot portable
ladders were available for use in the cargo hold, an alternative to jumping down
to the tank top that was neither unduly impracticable nor time consuming. See
Pimental, 965 F.2d at 16. Accordingly, the district court properly found that the
Defendants did not breach their turnover duty to Dow.
      Dow next contends the Defendants maintained active control over the
stevedoring operations but breached their duty to exercise reasonable care over
that area. 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. Fontenot v. McCall’s Boat Rentals, Inc., 227 F.
App’x 397, 403 (5th Cir. 2007); Pledger v. Phil Guilbeau Offshore, 88 F. App’x
690, 692 (5th Cir. 2004) (per curiam). Dow testified that none of the vessel crew
were in the hold area when the accident took place, and no crew member was
involved with the cargo operations. The vessel crew controlled none of the
methods or operative details of Costal Cargo’s work. Thus, the cargo area had
been turned over to Costal Cargo and did not remain under Defendants’ active
control.
      Dow argues that the vessel’s captain testified that he observed cargo
operations from the vessel’s bridge, but the fact that any member of the vessel

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crew watched over the cargo operations does not establish active control. A
vessel owner does not trigger a duty by having its employees check on the
progress of the contractor’s work. See Fontenot v. United States, 89 F.3d 205,
208 (5th Cir. 1996) (citing Futo v. Lykes Bros. Steamship Co., 724 F.2d 209 (5th
Cir. 1984)). Dow also contends the Defendants were in active control of the
lighting in the hold area because the vessel crew originally erected the lighting
prior to cargo operations. However, absent some agreement to the contrary, the
vessel generally has no duty to provide adequate lighting for longshoremen.
Bias v. Hanjin Shipping Co., No. 07-0338, 2009 U.S. Dist. LEXIS 21930, at *17
(S.D. Tex. Mar. 18, 2009). But see Masinter v. Tenneco Oil Co., 867 F.2d 892,
896–97 (5th Cir. 1989) (suggesting that the vessel owner may have a duty to
provide adequate lighting when it is contractually bound to do so). Dow offers
no evidence of a contractual obligation between the vessel and Coastal Cargo to
provide lighting in the hold.   Accordingly, the district court did not err in
concluding that the Defendants did not retain active control over the stevedoring
operations.
      Dow argues the Defendants breached their duty to intervene by allowing
the longshoremen to jump five or six feet off the cargo to the tank top. A vessel
owner has a duty to intervene when he has actual knowledge of a dangerous
condition and knows that the stevedore, in the exercise of “obviously improvident
judgment,” intends to continue working in the face of the danger. Pimental, 965
F.2d at 17 (internal quotation marks and citation omitted).        This duty is
“narrow” and requires a showing that the condition “is so hazardous that anyone
can tell that its continued use creates an unreasonable risk of harm))even when
the stevedore’s expertise is taken into account.” Greenwood v. Societe Francaise
De, 111 F.3d 1239, 1249 (5th Cir. 1997) (citations omitted).
      Dow presented no evidence in support of her contention that the
Defendants had actual knowledge that the stevedores were accessing the tank

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                                  No. 10-30002

top of the hold by jumping from the cargo. Neither the port captain present on
the vessel when Dow was injured nor the vessel’s captain testified to knowledge
of Costal Cargo employees jumping from the cargo to the tank top. Dow stated
she did not look to see if any member of the vessel crew was watching her before
she jumped, and she only spotted crew members observing her from outside the
vessel’s hold after she lay injured on the tank top.
      Furthermore, the stevedores’ judgment was not obviously imprudent in
determining that jumping from the cargo to the tank top, though dangerous, was
safe enough to attempt. See Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir.
1990). Dow testified that stevedores routinely jump from cargo, and that she
herself had jumped before, though not from that height. Given that the duty to
intervene is narrow, Dow’s five-to-six-foot jump to the tank top represented
judgment that is poor but not obviously imprudent. Accordingly, the district
court did not err in finding the Defendants did not breach their duty to
intervene.
      Finally, Dow argues the district court abused its discretion by admitting
the testimony of David Tantrum because he was not qualified as an expert
witness. “The admission or exclusion of expert testimony is a matter left to the
discretion of the trial judge, and his or her decision will not be disturbed unless
it is manifestly erroneous.” Perkins v. Volkswagen of Am., Inc., 596 F.2d 681,
682 (5th Cir. 1979) (citing Salem v. U.S. Lines Co., 370 U.S. 31, 34 (1962)). The
record reveals Tantrum is qualified to provide expert testimony on the basis of
his extensive experience as a marine surveyor, which included boarding vessels
and conducting investigations of injuries to stevedores and longshoremen.
Accordingly, the district court did not abuse its discretion in finding Tantrum
qualified to testify as an expert marine surveyor.
      For the foregoing reasons, we AFFIRM the district court’s judgment.



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