     Case: 10-30598 Document: 00511497744 Page: 1 Date Filed: 06/03/2011




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

                                                 FILED
                                                                            June 3, 2011

                                       No. 10-30598                         Lyle W. Cayce
                                                                                 Clerk

SUNETH WAAS,

                                                   Plaintiff-Appellant
v.

IKAN MEXICO MV; PACORINI HOLDING LLC,
as successor to Pacorini USA, Inc.; KK SHIPPING MARITIME S.A.,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CV-4334


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Suneth Waas appeals the District Court’s judgment for Appellees on his
negligence claims. While working for a third-party cargo interest as a marine
surveyor, Waas fell from a Jacob’s ladder rigged by the stevedore, Appellee
Pacorini Holding, LLC, between a river barge and the M/V IKAN MEXICO,
owned by Appellee KK Shipping Marine S.A. Waas filed suit against Pacorini
and KK Shipping, claiming negligence under the Longshore Harbor Worker’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30598 Document: 00511497744 Page: 2 Date Filed: 06/03/2011



                                 No. 10-30598

Compensation Act, 33 U.S.C. §§ 901 et seq. and general maritime law. Both
Pacorini and KK Shipping moved for summary judgment, and the District Court
granted their motions, dismissing Waas’s claims. Waas filed a Rule 59(e) post-
judgment motion to alter judgment, which the District Court denied. Waas
timely appealed. We review a district court’s grant of summary judgment de
novo, Williams v. Wynne, 533 F.3d 360, 365 (5th Cir. 2008), and denial of a
motion to alter judgment under Rule 59(e) for an abuse of discretion, Johnson
v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010). We affirm.
      The District Court held that Pacorini owed Waas a duty of ordinary care
and that Pacorini did not breach that duty. Waas argues that the District Court
improperly focused on the duty of care and failed to address Waas’s argument
that Pacorini breached its warranty of workmanlike performance. However, the
warranty of workmanlike performance is not applicable to this case because it
is a principle of contribution and indemnity between defendants. See generally
1 T HOMAS J. S CHOENBAUM, A DMIRALTY & M AR. L AW § 5-8 (4th ed. 2010)
(discussing the limited use of the warranty of workmanlike performance).
      Next, citing no authority for the proposition, Waas contends that by
allowing Waas to use its ladder, Pacorini’s duty of care became heightened.
Under maritime law, Pacorini’s duty is defined using general tort law. In re
Signal Int’l, LLC, 579 F.3d 478, 491 (5th Cir. 2009). “The determination of the
existence and scope of a duty involves a number of factors, including most
notably the foreseeability of the harm suffered by the complaining party.” In re
Great Lakes Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010) (internal
quotation omitted). Based on testimony in the record, the District Court found
that the use of a Jacob’s ladder was a standard practice in the industry. And,
there was no evidence that the ladder itself was defective. Pacorini acted with
reasonable care. Nor do 29 C.F.R. §§ 1915.74 and 1918.23(d) operate to increase
the duty Pacorini owed Waas, because they regulate the duty owed by an

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                                 No. 10-30598

employer to its employees, and Pacorini was not Waas’s employer. Pacorini
owed Waas a duty of ordinary care, which it did not breach.
      The District Court also held that the vessel’s owner, KK Shipping, did not
have a duty to intervene to prevent use of the Jacob’s ladder without fall
protection. Waas argues that a jury should have been allowed to determine
whether Pacorini’s judgment in using the Jacob’s ladder without fall protection
was “obviously improvident,” triggering the duty to intervene. However, because
as we explained above Pacorini’s employment of the Jacob’s ladder was standard
practice in the industry and the ladder itself was not defective, the duty to
intervene did not arise as a matter of law. Greenwood v. Societe Francaise De,
111 F.3d 1239, 1249 (5th Cir. 1997) (“[I]n order for the expert stevedore’s
judgment to appear ‘obviously improvident,’ that expert stevedore must use an
object with a defective condition that 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.”). KK Shipping had no duty to
intervene.
      Waas also argues that the District Court erred in denying his motion to
alter the judgment under Rule 59(e). The District Court concluded that even in
light of Waas’s other theories of negligence, Pacorini owed a duty of reasonable
care, which it did not breach. We cannot say that the District Court abused its
discretion when it denied Waas’s Rule 59(e) motion to alter the judgment.
      AFFIRMED.




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