     Case: 16-30205      Document: 00513725593         Page: 1    Date Filed: 10/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-30205                                FILED
                                  Summary Calendar                       October 19, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
WILLIAM PAUL CRACE,

              Plaintiff - Appellant

v.

HUNTINGTON INGALLS, INCORPORATED, formerly known as Northrop
Grumman Ship Systems, Inc.,

              Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1986


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       William Paul Crace appeals the district court’s grant of summary
judgment in favor of Huntington Ingalls, Incorporated, formerly known as
Northrop Grumman Ship Systems, Inc. We affirm.
                                             I.
       Huntington Ingalls contracted to build a ship for the United States Navy.
Crace worked for a subcontractor responsible for inspecting the ship prior to it


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30205
being commissioned and delivered to the Navy. While attempting to inspect a
lower compartment on the ship, Crace ducked under a chain, went down a
hatch, and began to descend a ladder. He fell from the ladder and was injured.
      Crace alleged that Huntington Ingalls defectively designed, constructed,
and installed the ladder. He further alleged that Huntington Ingalls
negligently installed a locked safety chain that restricted access to the hatch
and ladder. Crace claimed that the safety chain forced him to awkwardly duck
under the chain to climb down the hatch and ladder, contributing to his fall.
      Crace brought claims for negligence under the Longshore and Harbor
Workers Compensation Act, 33 U.S.C. § 905(b), general maritime law, and
state law. The district court held, first, that it lacked jurisdiction over Crace’s
federal maritime claims because the ship was not a completed vessel at the
time of the accident. Second, the district court held that government contractor
immunity shielded Huntington Ingalls from liability for Crace’s state-law
negligence claim for defective design, construction, and installation of the
ladder. Third, the district court held that Crace’s state-law claim for negligent
placement of a safety chain failed because the chain was an open and obvious
condition. Crace challenges each of these holdings on appeal.
                                        II.
      We review the district court’s grant of summary judgment de novo,
“applying the same standards as the district court.” Malin Int’l Ship Repair &
Drydock, Inc. v. Oceanografia, S.A. de C.V., 817 F.3d 241, 249 (5th Cir. 2016).
                                       III.
      Crace first argues that the district court erred in holding that the ship
on which he was injured was still under construction at the time of the
accident. To bring a maritime tort claim, the tort must occur on navigable
waters and the alleged wrong must “bear a significant relationship to
traditional maritime activity.” Richendollar v. Diamond M Drilling Co., 819
                                        2
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                                      No. 16-30205
F.2d 124, 127 (5th Cir. 1987) (en banc). There is no significant nexus to
maritime activity if a ship is under construction, because shipbuilding is not a
traditional maritime activity. Cain v. Transocean Offshore USA, Inc., 518 F.3d
295, 301-03 (5th Cir. 2008); Alfred v. MV Margaret Lykes, 398 F.2d 684, 685
(5th Cir. 1968).
       Crace argues that the ship was sufficiently complete at the time of his
accident such that it qualifies as a vessel. Although the ship had successfully
completed sea trials, it was still being outfitted and inspected prior to final
delivery. This court has held that “a structure under construction remains a
non-vessel until it is complete and ready for duty upon the sea.” Cain, 518 F.3d
at 301; see also Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1187 (5th Cir.
1984) (stating that “an injury to a ship construction worker on board a ship
under construction and lying in navigable waters is not a maritime tort” (citing
Hollister v. Luke Constr. Co., 517 F.2d 920, 921 (5th Cir. 1975)); Casas v. U.S.
Joiner, LLC, 372 F. App’x 440, 441 (5th Cir. 2010). We affirm the district
court’s holding that the incomplete ship was not a vessel under maritime law. 1
       Crace next argues that the district court erred in holding that
government contractor immunity shielded Huntington Ingalls from liability for
Crace’s state-law negligence claim for defective design, construction, and
installation of the ladder. The district court held that the ladder was designed,
built, and placed by Huntington Ingalls in compliance with reasonably precise
Navy specifications. See Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988)
(holding that liability for defects in military equipment cannot be imposed
under state law when, inter alia, “the United States approved reasonably


       1 Crace alternatively asks that this court hold that the Supreme Court’s decision in
Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), overruled prior Fifth Circuit
precedent holding that a ship under construction is not a vessel. As Crace acknowledges, this
argument is foreclosed. See Cain, 518 F.3d at 301 (“We do not read Stewart to change this
body of law . . . .”).
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                                 No. 16-30205
precise specifications” and “the equipment conformed to those specifications”).
While it was Huntington Ingalls that prepared drawings regarding the design
and installation of the ladder, it did so in accordance with reasonably precise
Navy parameters, and the Navy ultimately approved the drawings and actual
placement of the ladder. The district court correctly applied the government
contractor immunity defense.
      Finally, Crace argues that the district court erred in granting summary
judgment to Huntington Ingalls on his negligence claim as to the safety chain.
“Under Louisiana law, a defendant generally does not have a duty to protect
against that which is obvious and apparent.” Bufkin v. Felipe’s La., LLC, 2014-
0288, p. 7 (La. 10/15/14); 171 So. 3d 853, 856. The safety chain was in place so
that personnel would not fall through the open hatch in the deck. Crace’s
testimony demonstrates that to save time, he chose to climb under the locked
chain rather than opening it with a key. The risk created by climbing under a
chain meant to prevent individuals from falling into a hatch was open and
obvious. The district court properly held that Huntington Ingalls had no duty
to protect against this open and obvious risk.
                                      IV.
      AFFIRMED.




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