     Case: 10-30236 Document: 00511317273 Page: 1 Date Filed: 12/09/2010




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

                                                   FILED
                                                                          December 9, 2010

                                       No. 10-30236                         Lyle W. Cayce
                                                                                 Clerk

STEVE D. LANDERS,

                                                   Plaintiff-Appellant
v.

BOLLINGER AMELIA REPAIR, LIMITED LIABILITY CORPORATION,

                                                   Defendant-Appellee




             Appeal from the United States United States District Court
                        for the Eastern District of Louisiana
                          USDC No. 2:08-CV-1293-MVL-SS


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
         This admiralty case requires us to determine whether a maritime status
arose between Defendant-Appellee dock owner, Bollinger Amelia Repair, L.L.C.
(“BAR”), and Plaintiff-Appellant, Steve D. Landers, when Landers used BAR’s
gangway.        As no relevant facts or law support a finding that a maritime
relationship existed between this dock owner and the docked vessel’s crew
member, we find no admiralty status and affirm the judgment of the district
court.

         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30236

       The M/V ROSEANNA, an offshore supply boat owned and operated by
Kevin Gros Offshore, L.L.C. (“Kevin Gros”), arrived at a BAR dock on June 12,
2006, after its starboard stern hull next to its water tank was punctured by an
offshore platform.1 The gangway aboard the M/V ROSEANNA was unusable
because it was defective and blocked by cargo. In any case, BAR requires that
vessels tied to its dock use a BAR gangway. Landers, an unlicensed engineer
assigned to the M/V ROSEANNA, and Leonard Horne, another crew member,
then obtained a thirteen-foot aluminum gangway from the BAR dock and placed
it between the dock and the vessel.2 An employee of Kevin Gros inspected the
gangway before the crew used it and found it to be free of defects. Landers used
the gangway several times without a problem. Thereafter, the Kevin Gros port
captain determined that the M/V ROSEANNA crew could repair the damage
around the water tank without BAR’s assistance.                Thus Kevin Gros never
contracted with BAR for repair work. Later that day while Landers and Horne
were in the process of removing the gangway–Landers pushed the gangway
away from the vessel, and Horne pulled it onto the dock–the gangway stopped
and sprung back, injuring Landers’ back.             Afterwards, Landers observed a
broken metal cross bar on the underside of the gangway.
           Landers then filed suit against Kevin Gros, and later added BAR as a
defendant claiming BAR was negligent under maritime law for failing to provide
a safe gangway. Landers settled his claims against Kevin Gros. The district


       1
        We will assume that BAR did own this dock, viewing the facts in the light most
favorable to the non-moving party. See R. at 134-35.
       2
        Landers asserts that a BAR employee may have placed the gangway between the dock
and vessel, but this representation is contrary to the sworn testimony of Horne. R. at 863-64
(“[Landers and I] put it–if I remember right . . . I don’t remember nobody else helping us do
that”). The testimony of BAR’s 30(b)(6) representative, which Landers cites as evidence that
a BAR employee may have placed the gangway, in fact indicates that a BAR employee did not
personally place the gangway since “[a]s a rule [BAR] use[s] extended-boom forklifts and
cranes to move and set [its] gangways in place.” R. at 2647.

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                                   No. 10-30236

court granted BAR’s motion for summary judgment, holding that BAR did not
have a maritime relationship with Landers, and that any claim under Louisiana
law had expired under the one-year statute of limitations for tort claims. The
district court denied Plaintiff’s Motion to Re-Open Case and Motion for New
Trial.    Landers timely filed a Notice of Appeal of the district court’s order
denying his motion to re-open the case.
         Though Landers specifically appealed only the district court’s judgment
denying his motion to re-open the case in his Notice of Appeal, a denial which we
would review for abuse of discretion, Landers argues that he intended to appeal
the district court’s grant of BAR’s motion for summary judgment and consequent
dismissal of his complaint. A party must designate each judgment he appeals,
Fed. R. App. P. 3(c)(1)(B), but “[w]e will liberally construe such notices where the
intent to appeal an unmentioned or mislabeled ruling is apparent and there is
no prejudice to the adverse party.” Choate v. Potter, 349 F. App’x 927, 929 (5th
Cir. 2009) (citing C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d
1049, 1056 (5th Cir. July 1981)). “When the appellant clearly intends to appeal
from the underlying judgment and the appellee will not be prejudiced, we treat
an appeal from an order denying a motion for new trial as an appeal from the
adverse judgment itself.” United States v. Lopez-Escobar, 920 F.2d 1241, 1244
(5th Cir. 1991) (citations omitted). While Landers noticed only his appeal of the
district court’s denial of his motion for reconsideration, that judgment was
intertwined with the judgment granting BAR’s motion for summary judgment,
and the latter appeared in the title of his motion challenging the district court’s
refusal to reopen the case, which he included in the Notice of Appeal. Moreover,
both parties briefed the issues related to the judgment dismissing the complaint,
and BAR will not be prejudiced by our consideration of it. Accordingly, we will
consider the district court’s grant of BAR’s motion for summary judgment and
the issues involved therein.

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                                       No. 10-30236

       “We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th
Cir. 2009) (internal quotations omitted). Summary judgment should be rendered
if the record demonstrates that “there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). “An issue is material if its resolution could affect the outcome of the
action.” Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). “In
deciding whether a fact issue has been created, the court must view the facts and
the inferences to be drawn therefrom in the light most favorable to the
nonmoving party.” Id.
       Landers argues that by requiring docked ships to use BAR’s gangways,
BAR “stepped into the vessel owner’s shoes and, as a result, [] assumed a
maritime duty to provide a gangway free from hidden defects,” under “general
maritime negligence law.” Appellant’s Br. at 20, 22.3 Landers acknowledges
that “BAR, as a dock owner, had no duty to furnish plaintiff’s vessel with a
gangway,” id. at 22, and also concedes that BAR “did not owe the plaintiff a duty
of seaworthiness because [BAR] was not the vessel owner.” Id. at 25. Rather,
Landers asks the court to “establish a new legal precedent . . . [that] [w]hen a
ship repairer/dockowner assumes the vessel owner’s duty to provide equipment
to a vessel . . . then the ship repairer/dockowner should be [potentially] liable
under the general maritime law of negligence.” Id. at 26. As Landers has failed
to present any cogent basis for us to expand maritime jurisdiction in this way,
we decline to do so, and find that the district court properly refused to apply
maritime law to the facts of this case.



       3
         We reject BAR’s contention that Landers waived the argument that BAR acquired a
maritime status with Landers because he failed to present it to the district court. Rather, we
believe that Landers did make this argument before the district court as this argument was
one of the primary arguments that the district court addressed. See R. at 3038-40.

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                                  No. 10-30236

        “It is well-established that maritime law encompasses the gangway. It is
also well-established that a vessel owner has a ‘fundamental duty’ to provide its
crew members with a reasonably safe means of boarding and departing from the
vessel.” Florida Fuels v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir. 1993)
(internal citations omitted). “Under general maritime law, a vessel owner has ‘an
absolute nondelegable duty to provide a seaworthy vessel’ to crew members.” Id.
(quoting Brister v. A.W.I. Inc., 946 F.2d 350, 355 (5th Cir. 1991)). This duty is
irrespective of “‘fault or the use of due care.’” Id. (quoting Brister, 946 F.2d at
355).   “The idea of seaworthiness and the doctrine of implied warranty of
seaworthiness arises out of the vessel, and the critical consideration in applying
the doctrine is that the person sought to be held legally liable must be in the
relationship of an owner or operator of a vessel. The usual relationship for
recovery has been referred to as three-cornered: master, i.e., owner or operator,
vessel and shipworker.” Daniels v. Florida Power & Light Co., 317 F.2d 41, 43
(5th Cir. 1963). For these reasons, “[i]t is well-settled [] that the doctrine of
‘seaworthiness’ is not applicable to a dock owner who does not occupy the
position of owner or operator of the vessel.” Florida Fuels, 6 F.3d at 332.
Moreover, “[a]bsent a maritime status between the parties, a dock owner’s duty
to crew members of a vessel using the dock is defined by the application of state
law, not maritime law.” Id.
        We are unconvinced by Landers’ argument that BAR’s gangway policy
gives it a maritime relationship with Landers. As a prelim inary m atter, we
note that in this case there is no summary judgment evidence that BAR played
a role in the M/V ROSEANNA’s crew members’ use of BAR’s gangway. In fact,
it is undisputed that there was no useable and accessible gangway aboard the
M/V ROSEANNA, and thus Kevin Gros’s employees could not possibly have used
their own gangway. There is no evidence that anyone other than Landers and
Horne, both Kevin Gros employees, set up or removed the BAR gangway.

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                                     No. 10-30236

Additionally, a Kevin Gros employee inspected the gangway before its use.
      Next, Landers does not cite any cases that stand for his proposition that
a dock owner may step into the role of the shipowner and trigger maritime tort
liability by requiring use of one of its gangways. Instead, Landers asks us to
apply the “‘Good Samaritan’ rule,” Appellant’s Br. at 22, that “[o]ne who
undertakes . . . to render services to another . . . is subject to liability to the other
for physical harm resulting from his failure to exercise reasonable care to
perform his undertaking,” if certain conditions are met. Restatement (Second)
of Torts § 323. Landers fails to explain how this principle triggers maritime
liability rather than negligence liability under state law, however. This principle
provides no basis to apply maritime law in this case.
      In any case, because a shipowner’s duty to provide a gangway to his crew
members falls under his absolute duty to provide a seaworthy vessel to them, the
logical conclusion of Landers’ argument that by requiring use of its gangway
BAR has stepped into the role of shipowner, is that BAR has acquired the
absolute duty of providing a seaworthy gangway to Landers. But, the law is
clear that the seaworthiness doctrine is limited to vessel owners or operators,
and thus would not apply in this case. See Daniels, 317 F.2d at 43 (“The refusal
of the District Court to apply the doctrine to hold a husbanding agent, not the
employer of the seaman and who did not operate and control the vessel at the
time of the injury was affirmed in Romero v. International Terminal Operating
Company, 1959, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368.”). Landers’ attempt
to avoid this result by concluding that by having a policy requiring use of a BAR
gangway, BAR acquired the duty of providing a safe gangway under general
maritime negligence law, is not based in law or logic, and thus we reject it.
      Additionally, Landers’ argument would require us to ignore our
established precedent that a dock owner does not have a general maritime duty
to provide a crew member with a means of boarding and departing from the ship;

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                                  No. 10-30236

such a duty does not exist between a “dock owner toward a vessel crew member
aboard the vessel.” Florida Fuels, 6 F.3d at 333 (finding dock owner had no
maritime duty to a crew member of a docked vessel who fell off of a ladder that
he used when the dock owner failed to provide access to its dock). We also accept
BAR’s argument that in this case, where BAR employees played no role in the
placement or removal of the BAR gangway, BAR’s policy that docked ships must
use a BAR gangway is similar to the sort of custom that we have found
insufficient to create a duty. See id. at 334 (“Although custom may be considered
as evidence bearing on the question of negligence once a duty is found to exist,
custom itself does not create the duty . . . the fact that [the dock owner]
furnished means of access to vessels at some of its docks does not create a legal
duty on the part of [the dock owner] to provide a means of access for the [ship’s]
crew members.”)
      As we find that the district court properly granted summary judgment to
BAR, we also find that the district court properly denied Landers relief under
Federal Rule of Civil Procedure 59(e), as Landers did not present any newly
discovered evidence or demonstrate a manifest error of fact or law in his motion
to re-open the case.
      For the foregoing reasons, the opinion of the district court is AFFIRMED.




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