                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                           F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                           October 7, 2005
                            FOR THE FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                              Clerk


                                  No. 05-30365
                                Summary Calendar



      EDWIN PRESTENBACH,

                                                   Plaintiff-Appellant,

                                      versus

      CHIOS CHALLENGE SHIPPING & TRADING S.A.;
      HARBOR SHIPPING AND TRADING S.A.; CHIOS
      CHALLENGE MV,

                                                   Defendants-Appellees.


                   Appeal from the United States District Court for
                          the Eastern District of Louisiana
                             (USDC No. 2:03-CV-3636)
          _________________________________________________________


Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

      We affirm the district court’s summary judgment in favor of defendants for

the following reasons:


      *
        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should not be published and is not precedent except under the limited circumstances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.
1.   Prestenbach failed to produce evidence that the floor of the cargo hold,

     as it existed when defendants turned the vessel over to Total Logistics

     Company (“TLC”) for cargo operations, was in a condition such that

     an experienced stevedore could not perform cargo operations with

     reasonable safety. Scindia Steam Navigation Co. v. De Los Santos,

     451 U.S. 156, 166-67 (1981). In addition, the condition of the floor

     was open and obvious to Prestenbach, who knew that it was rusty and

     lacked non-skid covering. Greenwood v. Societe Francaise de

     Transportes Maritime, 111 F.3d 1239, 1246 (5th Cir. 1997).

     Prestenbach did not submit evidence that his only alternatives to

     working on the rusty floor that lacked non-skid covering were unduly

     impracticable or time-consuming or would have forced him to leave the

     job. Moore v. Angela MV, 353 F.3d 376, 381 (5th Cir. 2003).

     Prestenbach also failed to submit evidence showing that a hidden

     defect (rust) caused the bands around the rebar to break, and thus

     cannot show that defendants breached their turnover duty by failing to

     warn him of such a defect. Scindia Steam, 451 U.S. at 167.

2.   The “duty to intervene,” as described in Scindia Steam, is an exception

     to the general rule that a vessel owner does not owe a duty to discover

                                  2
dangerous conditions that develop within the confines of cargo

operations assigned to a stevedore. Futo v. Lykes Bros. Steamship

Co., 742 F.2d 209, 213-14 (5th Cir. 1984). The exception does not

apply where the hazard is not created by the shipowner, is obvious to

the longshoremen, and arises during and in the area of the stevedore’s

operations, as here. Id. at 214; see also Casaceli v. Martech Int’l Inc.,

774 F.2d 1322, 1327 (5th Cir. 1985). Instead, “something more is

required beyond the mere presence of the danger on board and the

shipowner’s knowledge of it” to impose a duty to intervene on the

shipowner where the stevedore creates a hazard in the course of cargo

operations. Futo, 742 F.2d at 215; see also Casaceli, 774 F.2d at

1327-28 (5th Cir. 1985). To determine whether the shipowner owes a

duty to intervene in that situation, this court considers: (1) whether the

hazard was open and obvious, (2) whether the hazard was located

within the ship or ship’s gear, (3) which party created the hazard, (4)

which party was in a better position to correct the hazard, (5) which

party owned and controlled the defective item, (6) whether an

affirmative act of negligence or acquiescence in the use of the

dangerous item occurred, and (7) whether the shipowner assumed any

                              3
             duty with respect to the hazard. Casaceli, 774 F.2d at 1328 (citing

             Futo, 742 F.2d at 218, 221). The district court correctly determined,

             based on the summary judgment evidence, that those factors weighed

             against imposing a duty on defendants on the facts of this case.

Because the summary judgment evidence, viewed in the light most favorable to

Prestenbach, does not establish that defendants owed a duty to intervene to clean up

the fluid spill or breached their turnover duty, summary judgment in favor of

defendants is affirmed.

AFFIRMED.




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