     Case: 11-20826     Document: 00512029134         Page: 1     Date Filed: 10/23/2012




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

                                                                            FILED
                                                                         October 23, 2012

                                       No. 11-20826                        Lyle W. Cayce
                                                                                Clerk

JUNIOR A. SOBRINO-BARRERA,

                                                  Plaintiff-Appellant
v.

ANDERSON SHIPPING COMPANY, LIMITED; SOCOGEM SAM;
OLDENDORFF CARRIERS GMBH & COMPANY, K.G.,


                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3642


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Junior A. Sobrino-Barrera sustained serious injuries while supervising the
unloading of steel pipes from a cargo ship. He filed suit under the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”). The ship’s owner, operator,
and charterer moved for summary judgment and to strike an affidavit from
Sobrino-Barrera’s liability expert. The district court struck the affidavit because


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20826

it was untimely and contained new opinions that had not been disclosed in
discovery. Additionally, the district court granted summary judgment, finding
that the defendants had not breached any duties owed to Sobrino-Barrera under
the LHWCA. We AFFIRM.
                    FACTS AND PROCEDURAL BACKGROUND
      Sobrino-Barrera worked as a longshoreman for Gulf Stream Marine, Inc.
On the day of the accident, Sobrino-Barrera was supervising his team as they
unloaded steel pipes from the M/V Greta. The team lifted bundles of pipe out of
the ship using a crane. The team lifted two bundles of pipes without incident.
When the team lowered the third bundle onto an existing pile of bundled pipe,
the lower bundle shifted and began to roll toward Sobrino-Barrera.                         He
unsuccessfully attempted to jump over the bundle. The rolling bundle pinned
Sobrino-Barrera’s left leg against a wall, crushing it.                 His leg later was
amputated below the knee.
      Sobrino-Barrera filed suit against the ship’s owner, Anderson Shipping
Company, Ltd.; the ship’s operator, SoCoGEM Sam; and the ship’s charterer,
Oldendorff Carriers GmbH & Company, K.G., alleging negligence under Section
905(b) of the LHWCA.1 Sobrino-Barrera designated Captain Joe Grace as his
liability expert. Captain Grace was to offer opinions regarding the stowage and
unloading of pipe. In his expert report, Captain Grace expressed his opinion



      1
          33 U.S.C. § 905(b) provides, in pertinent part:

      In the event of injury to a person covered under this chapter caused by the
      negligence of a vessel, then such person, or anyone otherwise entitled to recover
      damages by reason thereof, may bring an action against such vessel as a third
      party in accordance with the provisions of section 933 of this title, and the
      employer shall not be liable to the vessel for such damages directly or indirectly
      and any agreements or warranties to the contrary shall be void. If such person
      was employed by the vessel to provide stevedoring services, no such action shall
      be permitted if the injury was caused by the negligence of persons engaged in
      providing stevedoring services to the vessel.

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                                        No. 11-20826

that Sobrino-Barrera’s injury was caused by improper stowage of the pipes. The
specific problem was that the pipes were stowed “hard aft to [the] bulkhead” and
without sufficient dunnage, which are loose wooden separators.
       Anderson, SoCoGEM, and Oldendorff moved for summary judgment,
arguing that Sobrino-Barrera failed to prove they had breached any duty owed
to him. In his response, Sobrino-Barrera attached an affidavit from Captain
Grace.2 Anderson, SoCoGEM, and Oldendorff moved to strike the affidavit,
arguing that it contained new opinions not disclosed in discovery and was
untimely. The district court agreed and struck the affidavit in accordance with
Rule 37(c)(1) of the Federal Rules of Civil Procedure except to the extent that it
“proved up” Captain Grace’s original expert report. The court also granted
summary judgment because there was no evidence that the defendants had
breached any of the legal duties owed to Sobrino-Barrera under Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).
                                       DISCUSSION
I. Expert Affidavit
       Sobrino-Barrera contends that Captain Grace’s affidavit contained no new
opinions and simply supported the original expert report. We review a district
court’s decision to exclude evidence pursuant to Rule 37(c) for abuse of
discretion. Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563 (5th
Cir. 2004).
       Under Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure, an expert
report must contain “a complete statement of all opinions the witness will
express and the basis and reasons for them.” Opinions not properly disclosed in


       2
        Sobrina-Barrera filed two expert affidavits. The first was filed following Anderson
and SoCoGEM’s motion for summary judgment. The second affidavit was filed as part of
Sobrino-Barrera’s response to Oldendorff’s slightly later motion for summary judgment. The
second affidavit adopts verbatim the information set forth in the first affidavit. It includes an
additional section with opinions about the appropriateness of the wooden dunnage.

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accordance with that rule may be excluded “unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The district court excluded
Captain Grace’s affidavit based on its determination that it contained new
opinions not contained in the original expert report.
      For example, Captain Grace stated for the first time in his affidavit that
stowing pipe hard aft to the bulkhead is an “abnormal and unsafe” practice of
stowing pipe. He further stated that stowing pipe in this manner “makes it
much more likely, almost certain, the pipe will shift diagonally during the
unloading process.” Additionally, Captain Grace claimed for the first time that
his opinions were “the product of reliable principles and standards generally
accepted and utilized by experts in the field of proper stowage[,] inspection of
stowage[,] and stevedoring principles.” As the district court noted, though, he
provided no details regarding these principles and standards.
      We conclude that because these opinions were not included in Captain
Grace’s expert report and went beyond “proving up” the opinions contained in
that report, the district court did not abuse its discretion in excluding the
affidavit under Rule 37(c)(1).


II. Summary Judgment
      Sobrino-Barrera also argues that the district court erred in granting
summary judgment.      We review the district court’s ruling on a summary
judgment motion de novo. Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th
Cir. 2007). Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Id. “The evidence
and inferences from the summary judgment record are viewed in the light most
favorable to the nonmovant.” McLaurin v. Noble Drilling (U.S.), Inc., 529 F.3d

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285, 288 (5th Cir. 2008). “But where the non-moving party fails to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial, no genuine issue of material fact can exist.”
Id. (quotation marks omitted).
      Under Section 905(b), a longshoreman may recover damages for injuries
“caused by the negligence of a vessel.”3 The duties owed to longshoremen under
Section 905(b) are these: “(1) a turnover duty, (2) a duty to exercise reasonable
care in the areas of the ship under the active control of the vessel, and (3) a duty
to intervene.” Kirksey v. Tonghai Maritime, 535 F.3d 388, 391 (5th Cir. 2008).
Liability under Section 905(b) requires proof that the shipowner breached one
of these narrowly defined duties. See id. 391-92.
      A. Turnover Duty
      The turnover duty “relates to the condition of the ship upon the
commencement of stevedoring operations.” Howlett v. Birkdale Shipping, Co.,
S.A., 512 U.S. 92, 98 (1994). This duty can be separated into (1) “a duty to
exercise ordinary care under the circumstances to turn over the ship and its
equipment in such condition that an expert stevedore can carry on stevedoring
operations with reasonable safety,” and (2) “a duty to warn the stevedore of
latent or hidden dangers which are known to the vessel owner or should have
been known to it.” Kirksey, 535 F.3d at 392. Thus, the duty to warn is a narrow
one; it does not include dangers that are “open and obvious” dangers or those
that “a reasonably competent stevedore should anticipate encountering.” Id.
      Sobrino-Barrera argues that the stowage of pipes against the bulkhead




      3
         Under the LHWCA, “vessel” is defined as including the vessel’s owners, operators,
and charterers. 33 U.S.C. § 902(21). Consequently, Anderson, SoCoGEM Sam, and Oldendorff
are subject to Section 905(b). We will refer to them collectively as “the vessel” in our
discussion of the Scindia duties unless the context requires otherwise.

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                                       No. 11-20826

with inadequate dunnage constituted an unreasonably dangerous condition.4
The district court disagreed because these alleged defects were open and obvious
to Sobrino-Barrera.
       Sobrino-Barrera stated in his deposition that as supervisor, it was his
responsibility to assess the cargo before formulating a plan for its removal from
the ship. On the day of the accident, he indicated that he checked to see how the
cargo was stowed before his crew began unloading the pipes. The photographs
of the cargo taken before unloading began, show the pipes stowed against the
bulkhead. The configuration of the pipe would have necessarily been open and
obvious to Sobrino-Barrera.
       Sobrino-Barrera also testified that when his crew started unloading, he
noticed the lack of dunnage between the pipes. One of his crew members
testified regarding the lack of dunnage. The district court therefore properly
concluded that the lack of dunnage was an open and obvious condition. See, e.g.,
Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992) (concluding
that oil and grease on passageway was open and obvious because two workers
had testified to noticing it).
       The alleged defects in the cargo were open and obvious to Sobrino-Barrera,
which means the vessel had no turnover duty to warn against them.
       B. Active Control Duty
       A vessel also has a duty to “exercise reasonable care to prevent injuries to
longshoremen in areas that remain under the ‘active control of the vessel.’”
Howlett, 512 U.S. at 98. Sobrino-Barrera contends that the vessel’s cargo plan
called for the pipes to be stowed “against the aft bulkhead,” a requirement that



       4
         Before the district court, Sobrino-Barrera also argued that the uneven stowage of the
pipes, which created a “hill” in the cargo, also constituted a dangerous condition. He has not
raised this contention on appeal and, therefore, has abandoned it. Audler v. CBC Innovis Inc.,
519 F.3d 239, 255 (5th Cir. 2008).

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                                  No. 11-20826

he says meant the vessel was controlling the details of his work. He makes too
much of the cargo plan. “Most vessels take responsibility . . . for preparing a
stowage plan, which governs where each cargo will be stowed on the ship.” Id.
at 103. Involvement in the cargo plan does not constitute active control. See id.
      Sobrino-Barrera testified in his deposition that no one from the M/V Greta
directed the manner in which he and his crew unloaded the pipes or participated
in the unloading process. See Manuel v. Cameron Offshore Boats, Inc., 103 F.3d
31, 34 (5th Cir. 1997) (explaining that active control requires some evidence that
the vessel’s crew retained “operational control” over the area). Accordingly,
Sobrino-Barrera’s claim of liability under the active control duty must fail.
      C. Duty to Intervene
      “[A] vessel has a duty to intervene when it has actual knowledge of a
dangerous condition and actual knowledge that the stevedore, in the exercise of
‘obviously improvident’ judgment, has failed to remedy it.” Greenwood v. Societe
Francaise De, 111 F.3d 1239, 1248 (5th Cir. 1997). The obligation to intervene
under this duty “is narrow and requires something more than mere shipowner
knowledge of a dangerous condition.” Id. at 1249 (quotations omitted).
      In the present case, there is no evidence that the vessel’s crew knew that
the manner in which the pipes were stowed created a dangerous condition.
Further, according to Sobrino-Barrera’s deposition testimony, he and his crew
unloaded the pipes using their normal and customary procedure. Therefore,
there is no evidence that the unloading process undertaken by Sobrino-Barrera
and his crew was so hazardous that the vessel had a duty to intervene.
Consequently, the district court correctly found that Sobrino-Barrera had failed
to present evidence that the vessel had a duty to intervene.
      D. Contractual Duty
      Sobrino-Barrera also argues that Oldendorff, the ship’s charterer,
breached its contractual duties. Specifically, Sobrino-Barrera points to the

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charter party agreement, which required the charterer to “load, stow, trim,
discharge, lash, secure, dunnage and unlash the cargo.”          Sobrino-Barrera
contends that under this contractual provision, Oldendorff had a duty to
properly stow the cargo. As the district court noted, however, the agreement was
between Cosco Bulk Carrier Co., Ltd., the owner of the M/V Greta, and Armada
(Singapore) Pte., Ltd., Oldendorff’s subcharterer. Oldendorff is not a party to the
contract. In addition, this court has held that this type of contractual provision
“acts as an indemnification clause between the owner and the time charterer and
does not affect the duties owed to longshoremen.” Robinson, 505 F.3d at 366.
Accordingly, this argument is without merit.
      AFFIRMED.




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