     Case: 11-30076     Document: 00511687308         Page: 1     Date Filed: 12/06/2011




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

                                                                            FILED
                                                                         December 6, 2011
                                       No. 11-30076
                                                                           Lyle W. Cayce
                                                                                Clerk
MARK HUDSON,

                                                  Plaintiff - Appellant
v.

SCHLUMBERGER TECHNOLOGY CORPORATION, ALPHA MARINE
SERVICES, INC., and BP EXPLORATION AND PRODUCTION, INC.,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-4754


Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Mark Hudson (“Hudson”) appeals from a motion for
summary judgment granted by the district court in favor of Defendants-
Appellees.     Hudson filed suit on October 28, 2008, against his employer
Schlumberger Technology Corporation (“STC”), Alpha Marine Services, Inc.
(“Alpha”), and BP Exploration and Production, Inc. (“BP”) for injuries he
sustained while aboard the M/V C-Commander (the “vessel”). The vessel was
owned and operated by Alpha, though a BP representative was aboard the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30076       Document: 00511687308           Page: 2     Date Filed: 12/06/2011




vessel. BP time chartered the vessel from Alpha and contracted with STC1 to
provide seismic services aboard the vessel.
       The district court ultimately granted summary judgment to Alpha and BP,
and Hudson timely appealed. He argues that the district court applied the
wrong negligence standard and that even under the standard adopted by the
district court, summary judgment is not appropriate because there is a material
issue of disputed fact. For the following reasons, we AFFIRM.
                                   I. BACKGROUND
       In the early morning of May 1, 2008, Hudson was spooling seismic lines
from the aft deck of the vessel when he allegedly stepped in an uncovered “pad-
eye” hole and injured his knee. Though Hudson admits that he knew some of the
vessel’s pad-eye holes were uncovered, he alleges that poor lighting and a film
of sea water covering the deck contributed to his accident because it made
identification of the holes difficult in the early morning light. At the time of the
incident, the deck light had been turned off by the boat’s captain because the sun
was coming up. Hudson and his fellow worker, Mark Boatwright (also employed
by STC) were the only workers on deck at the time of Hudson’s injury. The only
BP representative aboard the vessel was asleep below deck, and no Alpha
employees were on deck because STC had requested they not be in the area
while seismic operations were underway.
       The vessel was equipped with many pad-eyes to be used to tie down heavy
equipment when necessary. These pad-eyes have covers, which may be used to
cap otherwise exposed holes. Hudson contends that Alpha was in complete


       1
         Though STC is a party to this appeal, Hudson’s brief only seeks relief from the district
court’s ruling related to Alpha and BP. Hudson has thus waived—and we do not address—any
issue as it relates to STC. See, e.g., Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th
Cir. 2009) (citing Mullins v. TestAmerica, Inc., 564 F.3d 386, 407 n.9 (5th Cir. 2009)).

                                              -2-
   Case: 11-30076    Document: 00511687308      Page: 3    Date Filed: 12/06/2011




charge of the vessel, supervised everyone on board, and, despite Hudson’s prior
inquiries, insisted the covers remain off the pad-eye holes to prevent them from
washing overboard. Moreover, Hudson avers that Willy Davis (“Davis”), BP’s
representative, directed the outfitting and inspection of the vessel, as well as the
work being done, to assure that working conditions were safe. As a result of the
investigation that followed Hudson’s accident, Davis recommended covering the
pad-eye holes in the future.
                         II. STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court.” Noble Energy, Inc. v. Bituminous Cas.
Co., 529 F.3d 642, 645 (5th Cir. 2008). As such, summary judgment is proper
when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). This standard is
based not solely on “whether there is a sufficient factual dispute to permit the
case to go forward, but whether a rational trier of fact could find for the non-
moving party based upon the record evidence before the court.” James v. Sadler,
909 F.2d 834, 837 (5th Cir. 1990) (citation omitted). In addition, we must
“construe all facts and inferences in the light most favorable to the nonmoving
party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Ultimately, however,
“[w]here the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
                               III. DISCUSSION
      In his appeal, Hudson contends that Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625 (1959), not Scindia Steam Navigation Co. v. De
Los Santos, 451 U.S. 156 (1981), should serve as the proper standard to judge


                                        -3-
   Case: 11-30076      Document: 00511687308           Page: 4     Date Filed: 12/06/2011




the conduct underlying his claim under § 905(b) of the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”).2 In this respect, Hudson avers that the
district court applied the wrong standard to his claim by applying Scindia’s
three vessel-owner duties, rather than Kermarec’s “reasonable care” approach.
Hudson then argues that even if Scindia is the appropriate standard under the
LHWCA, the district court erred in applying Scindia. Because we apply a
different standard to Alpha than to BP, we address Hudson’s claim against each
defendant in turn.
A. Hudson’s Claim Against Alpha
      1. The Proper Negligence Standard for a Vessel Owner Under LHWCA
      Hudson argues on appeal that the limited duties imposed in Scindia do not
apply to longshoremen who are not performing stevedoring services on the
vessel. In his view, the policy behind Scindia is not furthered by application to
claimants who obtain LHWCA status only by virtue of working on the Outer
Continental Shelf (“OCS”).          He thus likens himself to a passenger under
Kermarec, who is owed the duty of exercising reasonable care under the
circumstances. See 358 U.S. at 632.
      We conclude that Hudson’s argument is unavailing. Scindia is not limited
to the stevedoring context: “It clearly applies to any independent contractor and

      2
       33 U.S.C. § 905(b) provides in relevant part:
             In the event of injury to a person covered under this chapter caused by
      the negligence of the 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 Act, 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. . . . The liability of the
      vessel under this subsection shall not be based upon the warranty of
      seaworthiness or a breach thereof at the time the injury occurred. . . .

                                             -4-
   Case: 11-30076       Document: 00511687308           Page: 5     Date Filed: 12/06/2011




its harborworker employees covered by the LHWCA and working aboard ship.”
See, e.g., Casaceli v. Martech Int’l, Inc., 774 F.2d 1322, 1326-27 (5th Cir. 1985)
(quoting Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) (applying Scindia
to an independent contractor employed to determine the effect of rust on the
thickness of vessel tank walls)).3 Relevant here, longshoremen covered by the
Act include anyone “engaged in maritime employment,” 33 U.S.C. § 902(3), and
recovery is conditioned explicitly on injury occurring while the vessel is “upon
the navigable waters of the United States.” Id. at § 903(a).
       Furthermore, Hudson has not directed us to any support for his
proposition that he is a longshoreman under the LHWCA solely by virtue of the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1333(b). Section
1333(b) of the OCSLA extends the recovery provisions of the LHWCA to injuries
suffered by “an employee resulting from any injury occurring as the result of
operations conducted on the outer Continental Shelf for the purpose of exploring
for, developing, removing . . . the natural resources . . . of the subsoil and seabed
of the outer Continental Shelf.” We have held that this provision only applies
if the employee meets both the status and situs requirements of § 1333. Demette
v. Falcon Drilling Co., 280 F.3d 492, 498 (5th Cir. 2002), overruled on other
grounds by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787
(5th Cir. 2009) (en banc). Hudson’s employment would not satisfy the situs test

       3
         Several other cases in this Circuit have reaffirmed that Scindia is not limited to
longshoremen acting in stevedoring capacities. See, e.g., Fontenot v. McCall’s Boat Rentals,
Inc., 227 F. App’x 397, 403 n.2 (5th Cir. 2007) (unpublished) (“This court has held that the
principles of Scindia, though formulated in the context of the respective duties of vessel
owners and stevedores, apply equally to any suit by an LHWCA-covered employee working for
an independent contractor aboard a vessel.”); see also Teply v. Mobil Oil Corp, 859 F.2d 375
(5th Cir. 1988) (“The Supreme Court interpreted § 905(b) as it applies to stevedores, but in
principle as [sic] it applies to other harborworkers who work on board vessels as well . . . .”);
Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 210 (5th Cir. 1984) (applying Scindia to injury
suffered by independent contractor hired by a shipowner to perform vessel repairs).

                                              -5-
   Case: 11-30076   Document: 00511687308      Page: 6   Date Filed: 12/06/2011




because he was not located at “(1) the subsoil and seabed of the OCS; [or] (2) any
artificial island, installation, or other device” permanently or temporarily
attached to, and erected on, the seabed. Id. at 497; see also Alleman v. Omni
Energy Servs. Corp., 580 F.3d 280, 283 (5th Cir. 2009) (“The controversy must
arise on a situs covered by OCSLA (i.e., the subsoil, seabed, or artificial
structures permanently or temporarily attached thereto).”); Grand Isle Shipyard,
589 F.3d at 784 (“In a tort action, if the tort occurs on navigable water instead
of a fixed platform (or other structure attached to the seabed), the OCSLA situs
requirement is not met.”).
      It is undisputed that Hudson was engaged in maritime employment,
Boudreaux v. Am. Workover, Inc., 680 F.2d 1034, 1038-39 (5th Cir. 1982) (finding
that “an employee injured on the waters in the course of his employment
satisfies the 1972 revision’s ‘maritime employment’ test”), and that the injury
occurred over covered navigable waters, see Reynolds v. Ingalls Shipbuilding
Div., Litton Sys., Inc., 788 F.2d 264 (5th Cir. 1986), overruled on other grounds
by Steward v. Dutra Construction Co., 543 U.S. 481, 496 (2005) (navigable
waters of the United States may include the high seas); see also Ex parte Easton,
95 U.S. 68, 72 (1877) (“Public navigable waters, where inter-state or foreign
commerce may be carried on, of course include the high seas . . . .”). Because
Hudson is a longshoreman under the LHWCA by virtue of his maritime
employment and was injured while working in the scope of his employment over
navigable waters, his potential recovery under § 905(b) is subject to the Scindia,
not Kermarec, standard.
      2. Applying Scindia to Hudson’s Claim Against Alpha
      The Supreme Court in Scindia defined a vessel’s duty to longshoremen
under the 1972 amendments to the Act. The Court held that a vessel owner


                                       -6-
  Case: 11-30076    Document: 00511687308       Page: 7   Date Filed: 12/06/2011




must provide work space, equipment, and tools in a condition that allows a
stevedore, acting with reasonable care, to carry on his operations with
reasonable safety. 451 U.S. at 166-67. The owner must warn the stevedore of
hidden dangers that the owner knows, or should know, about in the exercise of
reasonable care. Id. Importantly, the owner need not supervise, inspect, or
monitor the stevedoring operations for dangerous conditions that develop during
the work relationship. Id. at 169-72. Scindia provided a pertinent exception to
this limitation, however, if the vessel owner becomes aware of a dangerous
condition that constitutes the danger. Id. at 172-76.
      Based on these principles and the fact that “the primary responsibility for
the safety of the longshoremen rests upon the stevedore,” Randolph v. Laeisz,
896 F.2d 964, 970 (5th Cir. 1990), we have outlined three instances where vessel
owner liability may still be established in favor of the longshoreman:
      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.

E.g., Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997)
(internal quotations and citations omitted).
      We hold that Hudson has not raised a material issue of disputed fact that
Alpha breached one of the three Scindia duties. First, Alpha did not violate its
turnover duty by failing to warn Hudson of hidden defects. “The ‘turnover duty’
relates to the condition that an expert and experienced stevedoring contractor,


                                        -7-
   Case: 11-30076    Document: 00511687308      Page: 8    Date Filed: 12/06/2011




mindful of the dangers he should reasonably expect to encounter will be able by
the exercise of ordinary care to carry on cargo operations with reasonable safety
to persons and property.” Moore v. Angela MV, 353 F.3d 376, 380 (5th Cir.
2008). However, “merely proving that an unsafe condition existed at the time
of the accident is insufficient to establish liability.”    Treadaway v. Societe
Anonyme Louis-Dreyfus, 894 F.2d 161, 166 (5th Cir. 1990). More importantly,
“[t]he defendant has not breached its duty to turn over a safe vessel if the defect
causing injury is open and obvious and one that the longshoreman should have
seen.”     E.g., Greenwood, 111 F.3d at 1246 (citations omitted).           “If the
longshoreman knew of the defect, then it is considered open and obvious.” Id.;
see also Scindia, 451 U.S. at 167 (a vessel’s duty to warn extends to defects
unknown to “the stevedore and which would not be obvious to or anticipated by
him if reasonably competent in the performance of his work”). That being said,
even if a hazard is “open and obvious,” a vessel owner may still be liable where
the employee has no alternative but to work in the unsafe condition or leave the
job. Kirksey v. Tonghai Maritime, 535 F.3d 388, 396 (5th Cir. 2008); see Morris
v. Compagnie Maritime des Chargeurs Reunis, 832 F.2d 67, 71 (5th Cir. 1987)
(a longshoreman faced with such a hazard “need show only that the
circumstances made safer alternatives unduly impractical or time-consuming”).
         Hudson conceded here that he was aware of the hazard and that any
employee facing an unsafe condition could stop the job. Though Hudson alleges
the pad-eye problem was pointed out to Alpha and BP, he does not contend that
anyone prevented him from covering the pad-eyes while he was working or that
he had no alternative but to work with the hazard or leave the job. The district
court was also correct in concluding that Hudson knew “of the numerous,
uncovered pad-eye holes, which were marked with orange paint.” We agree with


                                        -8-
   Case: 11-30076       Document: 00511687308          Page: 9     Date Filed: 12/06/2011




the district court that Hudson has not raised a material issue based on the first
Scindia duty.
       As to the second Scindia duty—for injury caused by hazards under the
control of the ship—Hudson has not established an issue of disputed material
fact. The district court relied on our unpublished opinion in Fontenot, 227 F.
App’x at 403-04, for the proposition that “a vessel captain’s undisputed general
authority regarding the entirety of the vessel does not equate to the ‘active or
operational’ control contemplated by the second Scindia duty.” Accord Pimental
v. LTD Canadian Pac. BUL, 965 F.2d 13, 16-17 (5th Cir. 1992) (finding vessel
owner lacked active control where crane that caused injury was necessary to the
stevedore’s work and was being operated by the stevedore); Manuel v. Cameron
Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir. 1997); Turner v. Costa Line Cargo
Servs., 744 F.2d 505, 508-09 (5th Cir. 1984) (finding vessel owner had active
control where hazard was outside the longshoreman’s work area). To determine
whether a vessel owner retains active control over the contractor’s work, we
generally consider “whether the area in question is within the contractor’s work
area, whether the work area has been turned over to the contractor, and whether
the vessel owner controls the methods and operative details of the stevedore’s
work.” Dow v. Oldendorff Carriers GMBH & Co., 387 F. App’x 504, 507 (5th Cir.
2010) (unpublished); see Fontenot v. United States, 89 F.3d 205, 208 (5th Cir.
1996).4


       4
          We stated in Fontenot: “We have interpreted the second Scindia test in the Futo,
Turner, and Pimental cases. We made plain in Futo that a vessel owner will not trigger a duty
by having its employees board the vessel daily ‘to ensure the security of the ship and to check
on the progress of the contractor’s work.’ [742 F.2d at 210.] In Turner we found a vessel owner
liable for a fall suffered when the worker was required to ‘venture outside of the area of
normal and routine cargo operations to areas within the ship’s control and was forced to cross
the oil slick in a location outside of his work area.’ [744 F.2d 505.] In Pimental we found no
liability existed under the second Scindia test because the fall occurred in an area turned over

                                              -9-
  Case: 11-30076       Document: 00511687308        Page: 10     Date Filed: 12/06/2011




       These factors all support Alpha’s position. Indeed, the record shows that
Alpha was actually restricted to some extent from accessing the area in which
Hudson was working while he was performing his seismic duties. Though the
lighting was controlled by Alpha, the record shows the pad-eyes were plainly
visible. Ultimately, we are unwilling to extend the second Scindia duty to a
vessel owner for the condition of a part of the ship that was turned over to the
contractor and from which the ship’s crew was discouraged from entering.
       The third Scindia duty, the duty to intervene when the vessel owner has
actual knowledge of the hazard and that the worker imprudently means to work
through the hazard, is equally unavailing for Hudson. As the district court
correctly ruled, the defendant must not only know that the hazard creates an
unreasonable risk of harm, but that the stevedore was exercising “obviously
improvident judgment” in response to that risk.                While the district court
accepted as true that all of Alpha’s personnel were aware that some pad-eye
holes were usually uncovered and that the captain could have overseen Hudson’s
work from his vantage point in the wheelhouse, Hudson did not provide any
evidence showing that Alpha’s employees knew Hudson and his fellow STC
employee were exercising “obviously improvident judgment.” To make such a
showing, the “expert stevedore must use an object with a defective condition that
is so hazardous that anyone can tell that its continued use creates an
unreasonable risk of harm—even when the stevedore’s expertise is taken into
account.” Greenwood, 111 F.3d at 1249 (citations omitted).
       Hudson nonetheless argues that the district court improperly added an
additional factor to Scindia’s third duty, requiring not only that the vessel owner
know of the hazard, but that the vessel owner knows that the


to the stevedore. [965 F.2d 13.]” 89 F.3d at 208.

                                            -10-
  Case: 11-30076    Document: 00511687308      Page: 11   Date Filed: 12/06/2011




longshoreman—utilizing “obviously improvident judgment”—continues to work
on in the face of the hazard. In fact, our precedent makes clear that this is
exactly what is required; “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.” Id. at
1248 (quoting Pimental, 965 F.2d at 17); see, e.g., Laeisz, 896 F.2d at 971 (“Under
Scindia the vessel only had a duty to intervene if 1) it had actual knowledge that
the damaged gangway posed an unreasonable risk of harm and 2) actual
knowledge that it could not rely on the stevedore to protect its employees and
that if unremedied the condition posed a substantial risk of injury.”); see also
Woods v. Sammisa Co., 873 F.2d 842, 853 (5th Cir. 1989) (finding a jury
instruction on the third Scindia factor improper where even though the
defendants knew of a certain cargo condition, there was no evidence that the
defendants knew it created an unreasonable risk of harm).
      Notably, the record here is absent of any indication that Alpha knew
Hudson and Boatwright’s work around the uncovered pad-eyes created an
unreasonable risk of harm and that STC could not be relied on to address the
potential hazard.    Even Boatwright conceded that he had worked around
uncovered pad-eyes many times and “didn’t feel it was a big deal.” Further, a
maritime expert noted that Hudson was not unreasonable in working around the
pad-eyes at the time of the incident. Given the narrowness of Scindia’s duty to
intervene, even if we were to assume Alpha had knowledge of a potential hazard,
Hudson has not shown a genuine issue of material fact either that STC’s work
was done with obvious imprudence, or that Alpha had any knowledge if it was.
B. Hudson’s Claim Against BP




                                       -11-
   Case: 11-30076       Document: 00511687308           Page: 12      Date Filed: 12/06/2011




       BP’s role as a time charterer, rather than traditional vessel owner,5
further cabins its obligations with respect to liability under § 905(b). To be
clear, § 905(b) claims are limited to suits for negligence against a “vessel.” The
LHWCA § 2(21) defines “vessel” as the vessel upon which a covered employee is
injured, “and said vessel’s owner, owner pro hac vice, agent, operator, charter or
bare boat charterer, master, officer, or crew member.” Given this designation,
BP, as the vessel’s time charterer, can be subject to liability under § 905(b). See,
e.g., Kerr-McGee v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1338-39, 1343 (5th
Cir. 1987); see also Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1519-20 (5th Cir.
1996), overruled on other grounds by Grand Isle Shipyard, 589 F.3d at 786.
However, a time charterer like BP, which is a vessel under § 5(b) solely because
it is a charterer, “is subject to liability under section 5(b) only for negligence in
its ‘time-charterer’ capacity.” Kerr-McGee, 830 F.2d at 1339. This means that
“the duties and responsibilities against which the claim of the defendant’s
negligence must be measured are necessarily limited to those which arise out of
and are founded on the relationship which the time-charter establishes between
the defendant and the vessel.” Id.; see Hodgen, 87 F.3d at 1517 (“[O]ur cases . . .
suggest that a time charterer owes a hybrid duty arising from tort and contract
law to exercise the control the charter affords it over the timing, route, and cargo
of a vessel’s journey in a reasonably prudent manner.”).
       We addressed the liability of time charterers under § 905(b) in Kerr-
McGee. 830 F.2d at 1340. There we held that the responsibility of the time
charterer is generally determined by its charter agreement with the vessel


       5
         Nor is BP a bare boat charterer or owner pro hac vice, both types of charter that
require the chartering company to man the vessel and provide the charterer unrestricted use
of the vessel. Trussell v. Litton Sys., Inc., 753 F.2d 366, 368 (5th Cir. 1984), overruled on other
grounds by Richendollar v. Diamond M Drilling Co., 819 F.2d 124 (5th Cir. 1987).

                                               -12-
  Case: 11-30076    Document: 00511687308     Page: 13    Date Filed: 12/06/2011




owner. Id.; see also Hodgen, 87 F.3d at 1520 (“[U]nless the parties have . . .
varied the traditional allocation of responsibility, a time charterer owes no duty
beyond these spheres.”); Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d
236, 242 n.5 (5th Cir. 1981); Migut v. Hyman-Michaels Co., 571 F.2d 352, 355
(6th Cir. 1978) (holding that the time charterer was not liable for damages
suffered by a longshoreman who fell through an uncovered deck hatch). This
means that, apart from the charter agreement, a time charterer will only be
liable for its responsibilities in relation to its sphere of control over the
commercial activities of the vessel—e.g. designating cargo placement, travel
destination, subjecting the vessel to treacherous conditions, and the time frame
in which the vessel will perform its assignment—rather than the condition of the
vessel under control of the vessel owner. See, e.g., Hodgen, 87 F.3d at 1520;
Kerr-McGee, 830 F.2d at 1341; Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 496 (5th
Cir. 2002).
      Given our conclusion above concerning Alpha’s responsibility, Hudson has
not shown that BP is accountable in its traditional sphere as time charterer and
must point to something different that obligates BP to Hudson. Hudson argues,
without citation to any authority, that BP’s “obligations and responsibilities to
[him] are governed not only by the charter contract, but also by the practical
relationship and activities actually performed by the charterer.” He also argues
that Section 4.03 of the charter contract, giving BP the right to inspect Alpha’s
work and stop work “not performed to a satisfactory standard” requires BP to
ensure Hudson’s safety. Finally, he points to the presence of BP’s “safety man,”




                                      -13-
  Case: 11-30076       Document: 00511687308         Page: 14     Date Filed: 12/06/2011




Davis, as supporting his argument that BP was actively overseeing the vessel
premises.6
       The contract, however, specifically contemplates the vessel owner
maintaining “proper superintendence and performance of the Work and . . .
resolv[ing] all problems which may arise in the normal day-to-day performance
of the Work.” Moreover, it states that “[t]he operation, management, and
navigation of the Vessel shall be under the exclusive control and command of
Owner and its [crew] during the time of th[e] Contract. Owner shall remain
responsible at all times for the safe operation and navigation of the Vessel, its
management and crew, and all other matters as if the Vessel were operating for
Owner’s sole account.”
       Nor was BP responsible for inspecting the vessel for safety purposes.
Indeed, the contract provides that the “Owner’s inspections of Owner’s Property
shall be performed as often as may be necessary to discover any and all defects,
potential sources of injury or dangerous or defective conditions and operations.”
Though BP had the right to witness those inspections, its role was strictly
“limited to certification that Owner . . . performed the inspections. The general
quality of the inspections themselves is the sole duty and responsibility of



       6
         In a case involving general maritime negligence duties outside of the LHWCA, we
found that a time charterer that gave general safety instruction to subcontractors and
participated in disembarkment procedures traditionally within the scope of the vessel owner’s
duties did not alter the traditional time charterer role or the duty it owed to the vessel’s
passengers. See Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213, 1216-17 (5th Cir. 1993)
(“[W]e find [these facts] insufficient as a matter of law to show that Arco usurped the
traditional control that is retained by the vessel’s crew in a time charter situation. Smith’s
gesture to the passengers is at best minimal participation in disembarkment. Moreover,
Arco’s general safety instructions to its employees – instructions presumably given by most
employers – does not by themselves [sic] prove that Arco exceeded its traditional role of time
charterer. Consequently, Arco assumed no safe access duty to the vessel’s passengers. It
could not, therefore, be responsible for their injury in the process of disembarking.”).

                                            -14-
  Case: 11-30076     Document: 00511687308        Page: 15    Date Filed: 12/06/2011




Owner. In addition, Charterer shall have the right, but not the obligation, to
witness any maintenance performed by Owner.”
      Ultimately, the contract does not alter BP’s traditional sphere of control
over the commercial activities of the vessel. Moreover, as the district court
pointed out, Hudson “does not cite to any evidence . . . demonstrating that Mr.
Davis, or any other BP employee, . . . directed STC’s operations aboard the vessel
such that BP maintained [active control]” over the vessel. Rather, Davis only
oversaw STC’s initial setup of the seismic equipment aboard the vessel and was
asleep below deck at the time of the injury in question.7
      We thus conclude that Hudson has failed to raise a material fact issue
about BP’s liability under § 905(b). Hudson’s burden of demonstrating a genuine
issue of fact is not satisfied merely by creating “some metaphysical doubt as to
the material facts” or by “conclusory allegations.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). Thus, it cannot be said that BP was responsible
for maintaining the safety of the M/V C-Commander’s aft deck, either by custom
or agreement, and Hudson has no § 905(b) claim against BP as a matter of law.
                                IV. CONCLUSION
      For the above-mentioned reasons we AFFIRM the ruling of the district
court, granting summary judgment in favor of Defendants-Appellees.




      7
         Insofar as the charter agreement requires contractors to meet company safety
requirements and to establish a behavior-based safety program, it is not clear that this
provision imposes a duty on BP. Moreover, Hudson has not briefed this argument so it is
waived. See, e.g., Ackerson, 589 F.3d at 208.

                                         -15-
