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

                                                 FILED
                                                                         November 17, 2009

                                     No. 09-30441                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JOHN JONES,

                                                   Plaintiff–Appellant,
v.

COOPER T. SMITH STEVEDORING CO., INC.,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-3879


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       John Jones appeals the district court’s dismissal of his claim under
§ 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA).
We affirm.
                                              I
       This lawsuit arises out of injuries Jones sustained while working for
Cooper T. Stevedoring Co., Inc. (Cooper) as a longshoreman in the hold of a cargo


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                         No. 09-30441

barge in the Mississippi River. The cargo barge was moored to a crane barge,
the DENISE M, owned by Cooper. Cooper was responsible for using the crane
on the DENISE M to transfer cargo loads from the hold of another vessel, the
M/V MASS ENTERPRISE, to the cargo barge. Jones’s duty was to unhook cargo
as it was lowered onto the cargo barge by the crane. Jones was injured when a
load of cargo struck him and pinned him against the wall of the barge.
      Jones initially sued Cooper under the Jones Act and general maritime law
but later amended his suit to include an alternative claim of vessel negligence
under § 905(b) of the LHWCA.                The district court first granted summary
judgment for Cooper on Jones’s claims under the Jones Act, holding that Jones
did not qualify as a seaman. The court later granted summary judgment for
Cooper on Jones’s LHWCA claim on the ground that Jones’s injuries were not
caused by vessel negligence, but rather by the negligence of persons providing
stevedoring services to the vessel. Jones appeals only his LHWCA claim.
                                                II
      We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.1 Summary judgment is appropriate
when the competent summary judgment evidence demonstrates that there are
no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law.2
      The LHWCA creates a compensation scheme for injured longshoremen,
similar to state workers’ compensation laws, that generally replaces negligence
causes of action against employers.3                 Section 905(b), however, permits a




      1
          Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
      2
          Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
      3
          33 U.S.C. §§ 904-05; Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir. 1991).

                                                2
                                          No. 09-30441

longshoreman to sue for injuries resulting from the negligence of a vessel.4 A
vessel owner may be liable to a longshoreman injured during stevedoring
operations under three circumstances:

          1) if the vessel owner fails to warn on turning over the ship of
          hidden defects of which he should have known.

          2) for injury caused by hazards under the control of the ship.

          3) if the vessel 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 on to
          remedy it.5

But “the primary responsibility for the safety of the longshoremen rests on the
stevedore.”6 A longshoreman cannot sue the vessel for injuries caused by the
negligence of persons engaged in stevedoring services.7
              Here, the vessel owner was conducting its own stevedoring operations.
When a longshoreman’s employer acts in such a dual capacity, the employer is
liable for acts of vessel negligence but still “retains its immunity for acts taken
in its capacity as an employer [of the stevedore].”8 Accordingly, determining in
which capacity Cooper and its employees acted is critical.9




          4
              33 U.S.C. § 905(b).
          5
        Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 365 (5th Cir. 2007) (quoting
Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992)).
          6
              Id. (quoting Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir.
1996)).
          7
              33 U.S.C. § 905(b).
          8
              Levene, 943 F.2d at 531.
          9
              See id.

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                                       No. 09-30441

      Jones contends that there are issues of material fact as to whether the
employees he alleges were negligent were acting in their capacities as
stevedores or as agents for the vessel owner. He alleges that two Cooper
employees were negligent: Casey Curtis, the job superintendent who was
overseeing the cargo operation, and Stephen Taylor, the crane operator who was
overseeing a trainee operating the crane when the incident occurred. Jones
asserts that Curtis was negligent in conducting the safety meeting before the
stevedoring operation by failing to hold the meeting with both the longshoremen
and the crane operators.           Jones alleges that Taylor was negligent in his
supervision of the trainee, who Jones claims operated the crane in a method
different from the method the longshoremen expected. He argues that both of
these acts of supervisory negligence were related to the “corporate concern and
interests” of Cooper, and that, as such, the actions were at least partly in the
employees’ capacities as the agents of the vessel owner.
      We think it clear that these alleged acts of negligence were in the Cooper
employees’ capacities as stevedores. Loading and unloading cargo are classic
stevedoring activities.10 Thus allegations of employee negligence with regard
to loading and unloading cargo are generally allegations of negligence in the
employee’s stevedore capacity. Here, Jones alleges that Curtis negligently
failed to hold a joint safety meeting with regard to the loading and unloading
of cargo and that Taylor was negligent in his supervision of a trainee loading
and unloading cargo. Both of these allegations relate to traditional stevedoring
activities and have no ascertainable tie to vessel negligence.
      Jones argues that the alleged acts of negligence were performed at least
partly in the employees’ capacities as agents of the vessel owner since they
involve “corporate concerns and interests.” He cites Pichoff v. Bisso Towboat



     10
          Durr v. Global Marine, Inc., 673 F.2d 740, 741 (5th Cir. 1982).

                                              4
                                          No. 09-30441

Co., Inc.11 in support of his argument. There, the court held that a supervisor’s
comment to “hurry up” with a repair so that the vessel could be taken to a
customer the next day was an action in his capacity as agent of the shipowner.12
The court reasoned that the order was “guided by [] corporate concern” since the
owner would lose money if the vessel was not provided to the customer.13 Jones
contends that this case is like Pichoff since safety meetings and training are
corporate concerns.
         Jones misapprehends the point of Pichoff. The court held that the “hurry
up” comment was motivated in part by the company’s corporate interests as a
vessel owner.14 But here, there is no indication that the relevant training and
safety meetings relate to Cooper’s interest as a vessel owner. The alleged
negligence does not relate to vessel conditions or a vessel mission. It relates
solely to stevedoring operations and thus provides no basis for a tort action
under § 905(b). The district court correctly granted summary judgment on this
issue.


                                      *          *       *
         For the foregoing reasons, the district court’s judgment is AFFIRMED.




     11
          748 F.2d 300 (5th Cir. 1984).
     12
          Id. at 303.
     13
          Id.
     14
          Id.

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