                       IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                  __________________________

                                         No. 01-21276
                                  __________________________


JOSE NAVA,
                                                                                Plaintiff-Appellant,

versus

M/V LEONARDO LEMBO, her engines tackle apparel furniture etc
in rem; DEIULEMAR COMPAGNIA DI NAVIGAZIONE SPA,

                                                                             Defendants-Appellees.

                  ___________________________________________________

                          Appeal from the United States District Court
                          For the Southern District of Texas, Houston
                                       (No. H-99-4388)
                  ___________________________________________________
                                     September 17, 2002


Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

         Jose Nava appeals the district court’s grant of summary judgment on claims brought pursuant

to the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C § 905(b), for personal injuries

sustained while working on board the M/V LEONARDO LEMBO. We affirm for the following

reasons:

         1.     Nava claims he produced evidence raising an issue of material fact regarding whether

         *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     LEMBO breached the turnover duty.            While the primary responsibility for

     longshoremen safety rests with the stevedore, longshoremen may recover from a

     shipowner if the owner “fails to warn on turning over the ship of hidden defects he

     should have known.” Greenwood v. Societe Francaise de, 111 F.3d 1239, 1245 (5th

     Cir. 1997); Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).

     Nava acknowledges the alleged hazard that caused his injury was not a hidden defect.

     Turning over a vessel with open and obvious dangers may still breach the turnover

     duty if contractors, in order to avoid the danger, would be forced either to leave the

     job or to face penalties for causing delay. Tepley v. Mobil Oil Corp., 859 F.2d 375

     (5th Cir. 1988). Nava offered the affidavit of his supervisor, Jose Anaya, in which

     Anaya expressed fear he and his employer, Coastal Hydro Services, would be “forced

     to either leave the job or to face penalties for causing a delay” were Anaya to request

     the hatch covers be closed. The record indicates Anaya was neither penalized nor

     forced to leave on the single occasion he requested certain hatches closed. His stated

     concern is not sufficient to create an issue of material fact, and the district court

     properly granted summary judgment on this issue.

2.   Nava contends he raised an issue of fact concerning hazards under the control of the

     vessel. While the primary responsibility for longshoremen safety rests with the

     stevedore, longshoremen may recover “for injury caused by hazards under the control

     of the ship.” Greenwood, 111 F.3d at 1245. Nava provided Anaya’s deposition

     testimony stating that the only time Anaya asked the vessel to close the hatch covers,

     his request was granted. This is evidence the alleged hazard was not under the


                                       2
     exclusive control of the vessel. Nava also provided an affidavit signed by Anaya that

     flatly contradicted Anaya’s deposition testimony regarding control of the hatch

     covers. A party cannot defeat a motion for summary judgment by using an “affidavit

     which impeaches, without explanation, sworn testimony.” S.W.S. Erectors, 72 F.3d

     489, 495 (5th Cir. 1996).

3.   Nava argues he presented evidence giving rise to a genuine issue of fact regarding

     LEMBO’s breach of the duty to intervene. While the primary responsibility for

     longshoremen safety rests with the stevedore, longshoremen may recover from a

     shipowner if the “owner fails to intervene in the stevedore’s operations when he has

     actual knowledge both of the hazard and that the stevedore, in the exercise of

     obviously improvident’ judgment, means to work on in the face of it and therefore

     cannot be relied upon to remedy it.” Greenwood, 111 F.3d at 1245. Nava offered

     various proofs that LEMBO had actual knowledge of the alleged hazard, but did not

     offer any evidence that Anaya was obviously improvident in deciding the open

     hatches, though dangerous, were safe enough. Helaire v. Mobil Oil Co., 709 F.2d

     1031, 1039 n.12 (5th Cir. 1983).

4.   Finally, Nava claims he demonstrated an issue of material fact that the open hatches

     actually created a hazard. A vessel owner owes a stevedore and its longshoremen

     employees the duty to exercise due care under the circumstances, but the shipowner

     may rely on the stevedore to avoid exposing the longshoremen to unreasonable

     hazards. Randolph v. F. Laeisz, 896 F.2d 964, 970 (5th Cir. 1990). Nava proffered

     evidence that the open hatch and hoses strung along the main deck deprived him of


                                        3
              a reasonably safe and seaworthy vessel. Yet Nava failed to provide any evidence that

              the vessel could not rely upon Coastal, Nava’s employer, and Anaya, Coastal’s

              representative on board the vessel, t o ensure that Coastal employees were not

              exposed to unreasonable hazards. Instead, the record indicates Coastal’s employees

              wanted the light made possible from the open hatches. It further shows Anaya chose

              not to attempt to mitigate the alleged hazard until it was time to pack up the hoses

              and equipment. This is fatal under the circumstances because LEMBO was entitled

              to rely on Anaya’s expertise for the safety of the longshoremen. Summary judgment

              is proper on this ground alone.

The judgment of the district court is AFFIRMED.




                                                4
