     Case: 18-31144      Document: 00515138492         Page: 1    Date Filed: 09/30/2019




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

                                      No. 18-31144                          FILED
                                                                    September 30, 2019
                                                                       Lyle W. Cayce
GEORGES F. PAYANO,                                                          Clerk

              Plaintiff - Appellant

v.

ENVIRONMENTAL SAFETY & HEALTH CONSULTING SERVICES,
INCORPORATED,

              Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CV-6425


Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Georges Payano sued his employer, defendant-
appellee Environmental Safety and Health Consulting Services, Inc.,
(“ES&H”), under § 905(b) of the Longshore and Harbor Workers’ Compensation
Act (“the Act”) after he injured his bicep while conducting oil spill cleanup
operations on a vessel. Though conceding that ES&H was immune from suit
in its capacity as his employer, Payano argued that ES&H was liable for vessel


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31144
negligence under § 905(b) because it assumed operational and navigational
control over the vessel. The district court granted summary judgment in favor
of ES&H, finding that ES&H did not exercise operational control over the
vessel and all the alleged negligent acts committed by ES&H occurred in its
capacity as Payano’s employer, immunizing ES&H from suit. We AFFIRM.
                                      I.
      ES&H was hired to retrieve damaged oil boom (a temporary barrier used
to contain oil spills) surrounding a leaking wellhead off the Louisiana coast.
ES&H time chartered a vessel, The Saint, owned by NOLA Boat Rentals, to
transport personnel to and from the work site and conduct the cleanup
operations.   Captain Brent Trauth of NOLA captained, operated, and
controlled The Saint during the cleanup operations, and was responsible for
determining whether the seas were too rough to complete the job. ES&H
supervisor Jack Scruggs instructed Capt. Trauth on what time to leave shore,
where to go, and what time to return to shore, and at the wellhead site, he
indicated to Capt. Trauth to pull the vessel back or forward to position the
vessel to retrieve the boom.
      According to the ES&H manual, to retrieve the damaged boom, hooked
pike poles are used to hold the boom line while the captain backs up the vessel
to snap the line and unanchor the boom. Payano claims that instead of this
standard procedure, Scruggs had him lie down on the vessel’s bow, reach over
the water, and manually pull up the damaged segments of the boom. Payano
struggled to lift the boom, heavy from its anchor, especially because the waves
moved the boat. Despite the difficulty in retrieving the boom, Scruggs never
told Payano to stop, instead urging him to continue. As Payano continued to
work, a wave jerked the bow of the vessel upward and caused Payano’s bicep
to tear. Payano also says that he did not receive any safety training, and


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                                        No. 18-31144
though he does not speak or read English, no interpreters were present at the
job site.
                                               II.
       An employer is immune from tort liability under the Act for any
negligent act committed in its capacity as employer. 33 U.S.C. § 905(a). The
exclusive remedy for a covered worker against his employer is compensation
benefits, to which the injured worker is entitled without regard to the
employer’s fault. 1 Id. § 904. A vessel owner, however, is not immune from suit.
Under § 905(b), a worker covered by the Act 2 “may pursue a tort action against
the owner of a vessel for acts of vessel negligence.” Levene v. Pintail Enters.,
943 F.2d 528, 531 (5th Cir. 1991).            Such a tort action may also be brought
against the vessel’s “owner pro hac vice, agent, operator, charter or bare boat
charterer, master, officer, or crew member.” 33 U.S.C. § 902(21). “When an
employer acts in a dual capacity as vessel owner, the entity retains its
immunity for acts taken in its capacity as an employer, but may still be sued
‘qua vessel’ for acts of vessel negligence.” Levene, 943 F.2d at 531.
       ES&H, as Payano’s employer, can only be held liable for negligent acts
committed in its capacity as vessel owner. 3 It is undisputed that NOLA Boat
Rentals, not ES&H, owned The Saint. Under our precedent, however, a vessel


       1  Payano received compensation benefits under the Act while recuperating from his
injury until he was cleared to return to work.
        2 Payano and ES&H stipulate that Payano was a longshoreman covered by the Act.
        3 ES&H can also be held liable for vessel negligence under § 905(b) of the Act for

negligence committed in its capacity as time-charterer, but its duties and therefore its
liability are circumscribed by the nature of its control over the vessel. See Kerr-McGee Corp.
v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1343 (5th Cir. 1987) (holding that “a time-
charterer is not liable under section 5(b) unless the cause of the harm is within the charterer’s
traditional sphere of control and responsibility or has been transferred thereto by the clear
language of the charter agreement”). Payano argues for the first time in his reply brief that
ES&H is liable for negligence committed in its capacity as time-charterer. This argument
was not raised in Payano’s initial brief and has therefore been waived. See United States v.
Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994).
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owner pro hac vice who has unrestricted use of a vessel can be held liable for
vessel negligence under § 905(b). 33 U.S.C. §§ 905(b), 902(21); Ducote v. Int’l
Operating Co. of La., 678 F.2d 543, 544 n.1 (5th Cir. 1982); Kerr-McGee Corp.
v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1342 n.11 (5th Cir. 1987) (“An
owner pro hac vice has unrestricted use of the vessel.”).
      Viewing the facts and drawing all reasonable inferences in the light most
favorable to Payano, he has failed to show that ES&H exerted sufficient control
over The Saint to be considered its owner pro hac vice. See Scott v. Harris, 550
U.S. 372, 378 (2007); Ducote, 678 F.2d at 545-46. Payano argues that ES&H
is liable as owner pro hac vice of The Saint because, once at the jobsite, Scruggs
exerted complete navigational and operational control over the vessel by
directing Capt. Trauth to pull vessel back or forward to position the boat to
retrieve the boom. We rejected a similar argument in Ducote, where a worker
who was injured while cleaning a barge argued that his employer was the
barge’s owner pro hac vice because the employer completely controlled the
barge’s movement during the cleaning operations. 678 F.2d at 545-46. We
explained that “all [employer]-controlled movements of the barge were simply
incidental to the cleaning and loading of the vessel” and the employer “did not
have the right to use the barge for its own purposes in maritime commerce.”
Id. at 546.    Therefore, the employer “did not have the ownership-like
relationship with the vessel required to establish ownership pro hac vice.” Id.
(quoting Hess v. Port Allen Marine Serv., Inc., 624 F.2d 673, 674 (5th Cir.
1980)).
      Though this case differs slightly from Ducote because ES&H time-
chartered The Saint for its own purposes in maritime commerce—to retrieve
the damaged boom—it still rebuts Payano’s argument that ES&H became the
owner pro hac vice of The Saint simply because ES&H controlled the vessel’s
movement for a temporary time and for a limited purpose. See id. ES&H’s
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directing The Saint’s movement to retrieve the damaged boom did not grant it
unrestricted use of the vessel—indeed, at all times, Capt. Trauth steered the
ship, had the unilateral right to cancel the voyage if the weather was too rough,
and swore that he “captained, operated, and maintained sole control over The
Saint.” If ES&H had the right to unrestricted use of The Saint, it would not
have submitted itself to Trauth’s “sole control.” Directing Capt. Trauth to pull
the vessel back or forward to retrieve the boom did not grant ES&H
unrestricted use of the vessel and therefore did not render ES&H liable as
owner pro hac vice of The Saint. 4 See id.; Kerr-McGee, 830 F.2d at 1342 n.11.
       Moreover, we agree with the district court that though Payano cited
“evidence in the summary judgment record indicating that ES&H may have
been negligent, there is no evidence in the summary judgment factual record
to support a finding that these alleged acts of negligence occurred in ES&H’s
capacity as time charterer, rather than as employer.” All the acts of negligence
that Payano alleges—from Scruggs’s instructing him to manually retrieve the
oil boom, to failing to instruct him to stop despite his difficulties, to failing to
adequately train him—“must be classified as potential acts of employer
negligence, not vessel negligence.” Levene, 943 F.2d at 535.
       For these reasons, the judgment of the district court is AFFIRMED.




       4 Scruggs’s other actions—instructing Capt. Trauth on what time to leave shore,
where to go, and what time to return to shore—are all traditional time-charterer duties and
do not subject ES&H to the liability of a vessel owner pro hac vice. See Kerr-McGee, 830 F.2d
at 1339-41.
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