     Case: 09-30503   Document: 00511709240   Page: 1   Date Filed: 12/29/2011




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

                                                                   FILED
                                                             December 29, 2011

                                 No. 09-30503                     Lyle W. Cayce
                                                                       Clerk

CHRISTOPHER S. CALLAHAN

                                          Plaintiff - Appellant

v.

GULF LOGISTICS, L.L.C.; DIAMOND OFFSHORE DRILLING, INC.;
DIAMOND OFFSHORE SERVICES CO.;
DIAMOND OFFSHORE MANAGEMENT CO.;
LLOG EXPLORATION COMPANY, L.L.C.;
LLOG EXPLORATION OFFSHORE, INC.;
GULF LOGISTICS OPERATING, INC.;
DIAMOND OFFSHORE CO.;
LLOG EXPLORATION & PRODUCTION CO.;
LLOG EXPLORATION TEXAS, L.P.,

                                          Defendants - Appellees

                               Consolidated with
                                 No. 10-30019

CHRISTOPHER S. CALLAHAN,

                                          Plaintiff - Appellant

v.

EAGLE CONSULTING, L.L.C.,

                                          Defendant - Appellee
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                                      No. 09-30503
                                      No. 10-30019



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:06-CV-561


Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.

EDITH H. JONES, Chief Judge:*
       Christopher Callahan (“Callahan”) sustained injuries while preparing for
a personnel basket transfer between a crew boat and a mobile drilling unit
located in the Gulf of Mexico. Callahan filed suit against a number of entities
related to the drilling operations, alleging claims under § 905(b) of the Longshore
and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. The
district court granted summary judgment in favor of defendants, finding that
they acted reasonably as a matter of law. Callahan timely appealed. We reverse
and remand for further proceedings against Gulf Logistics but affirm summary
judgment for the other defendants.
                                     I. Background
       Callahan was employed as a field service technician by Cooper Cameron
Corporation (“Cooper Cameron”), a service provider involved in the installation,
repair, and replacement of equipment on offshore oil wells. On April 10, 2005,
Callahan was dispatched to a well site located in the Gulf of Mexico to install
wellhead equipment. Callahan was instructed to board the MS. NANCY, a crew
boat, and depart for the Ocean Spartan, a mobile drilling unit that was
conducting workover and completion operations at the well.

       *
         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. 10-30019

      Around midnight, the MS. NANCY arrived at the Ocean Spartan. A
deckhand woke Callahan, who had been sleeping during the voyage, and told
him, “we’re here, we’re ready to off-load.” In response, Callahan placed his bags
on the rear deck outside the door, but continued to wait inside the passenger
compartment. Callahan later asked the deckhand whether they were ready for
him, to which the deckhand responded “no”, and indicated that they would first
offload equipment from the boat to the Ocean Spartan before transferring
Callahan. Callahan continued to wait inside the passenger cabin watching the
equipment transfer. During this time, Callahan observed that the sea conditions
were rough, with waves reaching heights of fifteen to eighteen feet in his
estimation. At some point during the equipment transfer, Callahan concluded
that he would be transferred shortly and thus left the cabin in order to move his
bag closer to where he believed the personnel basket transfer would take place.
When he attempted to lift his bag, however, the vessel lunged and Callahan
heard his back pop and felt a sharp pain shoot through it. Callahan dropped his
bag and grabbed the wall outside the cabin door to keep himself from falling.
Callahan returned to his cabin inside, but eventually executed a successful
personnel basket transfer to the Ocean Spartan. Callahan reported his injury
to a medic once he arrived on the barge.
      On March 31, 2006, Callahan filed suit against a number of entities,
alleging claims under the LHWCA. The defendants included LLOG Exploration
Offshore, Inc. (“LLOG”),1 which owned and operated the well, and was the time
charterer of the MS. NANCY2; Gulf Logistics, LLC, the operator of the crew boat

      1
        The district court granted summary judgment in favor of related entities LLOG
Exploration Company, LLC; LLOG Exploration & Production Co.; and LLOG Exploration
Texas LP, a holding Callahan does not challenge on appeal.
      2
       In order to transport personnel and equipment from shore to the drilling barge,
LLOG executed a time charter agreement with C&G Boats, Inc., which had a sub-charter with

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                                         No. 09-30503
                                         No. 10-30019

(MS. NANCY); and Diamond Offshore Drilling, Inc., Diamond Offshore Services
Co., and Diamond Offshore Management Co., the owners and operators of the
Ocean Spartan. He later added related defendants Diamond Offshore Co.
(collectively “Diamond”) and Gulf Logistics Operations, Inc. (collectively “Gulf
Logistics”), as well as Eagle Consulting, LLC (“Eagle Consulting”), which LLOG
had hired to oversee drilling operations and to provide “company man” services.
       Against these parties Callahan asserted various claims of negligence based
on the decision to transfer him in unreasonably dangerous conditions. In
response, Gulf Logistics and Diamond moved for summary judgment, arguing
that they owed no duty to Callahan under Scindia Steam Navigation Co. v. De
los Santos, 451 U.S. 156, 101 S. Ct. 1614 (1981). The district court rejected this
standard and instead applied the reasonable care standard articulated in
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S. Ct. 406
(1959).3 Nevertheless, the district court granted summary judgment in favor of
Diamond and Gulf Logistics, holding as a matter of law that these entities acted
reasonably under the circumstances. According to the district court, since no one
directed Callahan to leave his cabin, these entities could not be held liable. The
district court also noted that:
       Mr. Callahan has made “thousands” of personnel basket transfers
       in the course of his career. Mr. Callahan’s employer, Cooper
       Cameron, has a “stop work” policy that permits employees to cease
       working if they find the conditions to be unsafe. Mr. Callahan has
       used this policy before, and he was neither fired nor demoted for


Gulf Logistics, operator of MS. NANCY. For this reason, C&G Boats and Gulf Logistics are
interchangeable in this context.
       3
          In the district court, the parties disagreed as to the standard of care applicable in this
case. The district court ultimately concluded that Gulf Logistics and Diamond were subject
to the “reasonable care under the circumstances” standard articulated in Kermarec. Since the
parties do not challenge this ruling on appeal, we assume, without deciding, that Kermarec’s
standard governs this case.

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                                 No. 09-30503
                                 No. 10-30019

      doing so. Mr. Callahan never discussed with anyone whether it was
      safe to execute a personnel basket transfer, and that he himself
      believed it was “safe enough” to execute such a transfer. Following
      his injury, he completed a successful personnel basket transfer.

Callahan v. Gulf Logistics, LLC, No. 2:06 CV 0561, slip op. at 7 (W.D. La.
Mar. 31, 2009) (citations omitted). For the same reasons, the district court
concluded that summary judgment was appropriate on Callahan’s claims against
LLOG, which had moved for summary judgment on the theory that, as a time
charterer of the MS. NANCY, it had transferred all control over personnel
transfers to the vessel master. The district court did not reach this issue, but
reasoned that even if LLOG owed a duty to Callahan, the decision to transfer
him was not unreasonable. Thus, the court concluded, there was no breach.
      After the district court granted summary judgment in favor of Gulf
Logistics, Diamond, and LLOG, Eagle Consulting moved for summary judgment,
similarly arguing that there was no negligence in the decision to transfer
Callahan and, alternatively, that Eagle Consulting had no involvement in the
transfer decision. The district court granted the motion, finding that Callahan
failed to demonstrate that Eagle Consulting was responsible, in whole or in part,
for his injuries.
      On appeal, Callahan argues that the district court erred in finding that the
conduct of Diamond, Gulf Logistics, and LLOG was reasonable as a matter of
law. With respect to Eagle Consulting, Callahan argues that his proffered
evidence established a genuine issue of fact regarding Eagle Consulting’s control
over the events in question. Thus, he argues, Eagle Consulting was not entitled
to summary judgment.
      After reviewing the record, we affirm in part, reverse in part, and remand
for proceedings consistent with this opinion.



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                                  No. 09-30503
                                  No. 10-30019

                            II. Standard of Review
        This is an appeal of the district court’s summary judgment in favor of the
owners, operators, and charterers of a crew boat and mobile drilling unit. We
review the district court’s grant of summary judgment de novo. Holt v. State
Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Summary judgment is
appropriate “if the movant shows that 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). In reviewing summary judgment, “[w]e 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) (citation and internal quotation marks
omitted).
                                 III. Discussion
        To prevail on his maritime tort claim against the appellees, Callahan was
required to prove duty, breach, causation, and damages. Canal Barge Co., Inc.
v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000); 1 THOMAS J. SCHOENBAUM,
ADMIRALTY & MAR. LAW § 5-2, at 252 (5th ed. 2011); see also Withhart v. Otto
Candies, LLC, 431 F.3d 840, 842 (5th Cir. 2005) (“The elements of a maritime
negligence cause of action are essentially the same as land-based negligence
under the common law.”). The relevant evidence regarding each defendant will
be treated in turn.
A.      LLOG Exploration Offshore, Inc.
        The district court granted LLOG’s motion for summary judgment for lack
of evidence of negligent conduct. While Callahan challenges this ruling on
appeal, we affirm the summary judgment on an alternate basis that was
presented to but not decided by the district court. Callahan sued LLOG in its
capacity as a time charterer, and was accordingly required to prove, inter alia,
that LLOG owed him a legal duty of care. See Hodgen v. Forest Oil Corp.,

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                                  No. 09-30503
                                  No. 10-30019

87 F.3d 1512, 1520 (5th Cir. 1996) superseded on other grounds by the Outer
Continental Shelf Lands Act, 43 U.S.C. § 1333(a)(2), as recognized in Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009) (en banc).
Since Callahan has failed to offer evidence creating a material factual dispute
on this issue, LLOG’s motion for summary judgment was appropriately granted.
        As has been noted, LLOG owned and operated the offshore well to which
Callahan was transferred. To facilitate operations at the well, LLOG entered
into a blanket time charter agreement with C&G Boats, which furnished the
crew boat MS. NANCY to LLOG pursuant to a master time charter agreement
between C&G Boats and Gulf Logistics. Callahan argues that LLOG “had
authority to decide when he was transferred” and thus owed him a legal duty of
care.
        From our decision in Hodgen, 87 F.3d at 1520, the operative principles are
clear. A time charterer owes a hybrid duty arising from contract and tort to
persons including vessel passengers, to avoid negligent activity within “the
sphere of activity over which it exercises at least partial control.” Id. Those
traditional spheres of activity include, inter alia, choosing the vessel’s general
mission and the specific time in which it will perform the mission. Id. The
vessel owner and time charterer may, however, by contract vary the traditional
assignment of control.     Id.   Finally, absent special circumstances, a time
charterer’s traditional sphere of control does not extend to providing a safe
means of ingress and egress from the vessel. Id. (citing Moore v. Phillips Petrol
Co., 912 F.2d 789 (5th Cir. 1990); Forrester v. Ocean Marine Indem. Co., 11 F.3d
1213 (5th Cir. 1993)). Applied in this case, the Hodgen principles compel
summary judgment for LLOG based on its charter agreement with C&G Boats
and the absence of any evidence that LLOG created “special circumstances” by
involving itself in the timing or means of Callahan’s transfer.

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                                 No. 09-30503
                                 No. 10-30019

      Both parties rely on the charter agreement between LLOG and C&G Boats
to support their respective positions. Callahan asserts that the agreement “gave
the vessel owner the authority to choose how to operate the crew boat,” but that
“LLOG Offshore retained the authority to choose where and when.” LLOG, in
contrast, contends that the charter agreement allowed LLOG to “categorically
relinquish[]” whatever traditional responsibility it may have had over the vessel.
The resolution of this issue turns on the relevant portion of the charter
agreement:
      [T]he entire operation, navigation, management, control,
      performance, and use of each vessel shall be under the sole and
      exclusive command of, and be actually accomplished by, [C&G
      Boats] as an independent contractor, [LLOG] being interested only
      in the results obtained. [LLOG] shall, however, have the right to
      designate the voyages to be undertaken and the services each vessel
      is to perform, subject always to the sole right of [C&G Boats] or the
      captain of each vessel to determine whether the movement may be
      safely undertaken, with the captain always being in charge.

Callahan asserts that LLOG’s right “to designate the voyages to be undertaken”
included a right to control the timing of operations. As a result, LLOG owed
Callahan a duty to make this decision reasonably. This argument, however, is
contradicted by the plain meaning of the above paragraph, the first sentence of
which removes from LLOG any control over the means by which its desired
results were obtained. LLOG maintained an interest in the “results obtained,”
but the timing of Callahan’s transfer to the Ocean Spartan falls squarely in the
realm of means, over which LLOG disavowed all control. In fact, LLOG ratified
the vessel captain’s exclusive right to determine the safety of a voyage. That
LLOG reserved a “right to designate the voyages to be undertaken,” refers, in
context, only to its designation of the general mission of the vessel but not to
operational matters such as the timing of personnel transfers.


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        Not only did LLOG contractually disclaim its right to override the vessel
captain’s safety decisions, but Callahan adduced no evidence that LLOG’s
conduct as a charterer was more broadly exercised or inconsistent with the
terms of the charter agreement. Unlike Hodgen, there is no evidence that LLOG
interfered with or involved itself at all in the timing or means of Callahan’s
transfer.4
B.      Gulf Logistics Entities
        Callahan alleged that Gulf Logistics, the vessel operator/owner, acted
negligently when it was decided to transfer him from the MS. NANCY to the
Ocean Spartan in unreasonably dangerous conditions.
        In general, the question whether an alleged tortfeasor exercised
reasonable care under the circumstances is appropriately left for the jury to
decide. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 482 (5th
Cir. 2006) (citation omitted); Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir.
1990). In this case, however, the district court concluded that, as a matter of
law, Gulf Logistics did not breach its duty of reasonable care. The court relied
on evidence that no one directed Callahan to leave his cabin; that Callahan
himself “did not believe the seas were too dangerous for work or to make the
personnel basket transfer”; and that he in fact “safely completed a personnel
basket transfer after his injury.” Moreover, the court reasoned that since wave


       4
          Callahan also implies that this court should not affirm on the issue of control,
because LLOG failed to offer evidence of its absence of control before summary judgment was
granted. When LLOG moved for summary judgment, it informed the court that “there is no
evidence to demonstrate that LLOG Offshore retained or exercised any control over the
dispatching of the M/V MS. NANCY or the transfer of plaintiff from the M/V MS. NANCY and
to the OCEAN SPARTAN.” LLOG bore no burden to prove the absence of control. After LLOG
identified the absence of evidence, the burden shifted to Callahan to “go beyond the pleadings
and designate specific facts showing that there is a genuine issue for trial.” Stults v. Conoco,
Inc., 76 F.3d 651, 656 (5th Cir. 1996) (internal quotation marks and citations omitted).
Callahan failed to carry his burden.

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height alone could not alone establish Gulf Logistics’ liability, there was no issue
of material fact for the jury to decide.
      As an initial matter, there is considerable dispute over what evidence this
court may consider in reviewing the district court’s summary judgment ruling.
The district court’s ruling as to Gulf Logistics was handed down on March 31,
2009. Accordingly, we do not consider the affidavits of Callahan’s proffered
expert witness John Manders or Callahan’s supplemental affidavit dated June
15, 2009. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988) (“[o]ur review is confined to an examination of materials before the lower
court at the time the ruling was made ; subsequent materials are irrelevant.”).
The parties also dispute whether we may consider Callahan’s affidavit dated
October 30, 2008. Gulf Logistics contends it should be disregarded. It is correct
that a “nonmoving party cannot defeat a summary judgment motion by
attempting to create a disputed material fact through the introduction of an
affidavit that directly conflicts with his prior deposition testimony,” Albertson
v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 233 n.9 (5th Cir. 1984).
Nevertheless, a subsequent affidavit that supplements or explains, rather than
contradicts, prior deposition testimony does not offend this rule. See Clark v.
Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988); Kennett-Murray Corp. v. Bone,
622 F.2d 887, 894 (5th Cir. 1980). Callahan’s subsequent affidavit does not in
all respects clearly contradict his deposition testimony. We will consider the
affidavit’s relevant portions only to the extent that they supplement Callahan’s
deposition testimony.
      Gulf Logistics asserts that the district court’s decision is supported by
ample evidence confirming the court’s reasoning. Gulf Logistics does not deny
that it owed Callahan a duty of reasonable care. The only question before us,



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                                 No. 09-30503
                                 No. 10-30019

then, is whether there is sufficient evidence to create a genuine fact issue that
this duty was breached.
      Gulf Logistics first argues that no one directed Callahan to go onto the
back deck and move his equipment. His action alone harmed him, and it was
unilateral and voluntary. Appellee relies upon Callahan’s deposition testimony:
      Q: Did anybody instruct you to go out onto the back deck of the boat and
      you did so?
      A: No, sir.
      Q: That was your choice?
      A: Yes, sir.

The district court accepted this testimony as conclusive against Gulf Logistics’
negligence.
      A more complete rendition of Callahan’s deposition supports the following:
when the boat arrived at the rig, the deckhand awakened Callahan and said,
“we’re here, we’re ready to off-load.” Callahan testified that nobody instructed
him to go out onto the back deck, but he also stated that he believed he “was
obligated to do [the transfer].” Callahan’s subsequent affidavit clarified that
even though “nothing more was said” after the deckhand indicated they had
arrived, “nothing more needed to be said,” since Callahan understood the
deckhand to mean “that it was time for [him] to get ready for a personnel basket
transfer from the crew boat.” Callahan then used the restroom and placed his
bags on the back deck, right outside the door. Callahan asked the deckhand
whether they were ready for him, to which the deckhand responded “no, they’re
going to off-load the equipment, then they’re going to come get you.” Callahan
watched the process from inside his cabin and independently gauged that the
crew would be ready for him shortly.        Callahan explained that from his
experiences with personnel basket transfers, he knew that he needed to “be
prepared and ready” to reach the basket “as quickly as possible” to load his bags


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and mount the basket.5 With this understanding, Callahan left the cabin in
order to move his bags closer to the place where he would enter the basket. It
was at this time, when Callahan attempted to move his bags, that his injury
occurred.
       While the district court correctly noted that no one directed Callahan to
leave the cabin of the ship, this does not necessarily absolve Gulf Logistics of
liability. Callahan’s affidavit suggests that custom and experience surrounding
basket transfers involves certain expectations to which he conformed his conduct
by moving his bags and preparing for the transfer. A jury could disbelieve this
explanation if it credited instead Callahan’s admission that according to his
employer’s “stop work” policy, he could refuse to make a personnel basket
transfer and had done so in the past without adverse consequences.
Alternatively, a reasonable jury could find that Gulf Logistics implicitly directed
him to prepare for a transfer, and he was required to prepare his bags and
position himself appropriately on the deck.
       Next, Gulf Logistics defends the district court’s summary judgment on the
basis that because Callahan himself did not believe it was unsafe to make a
personnel basket transfer. The principal evidence cited for this proposition is
the following portion of Callahan’s deposition testimony:
       Q: [D]id you think you could safely perform the personnel basket transfer
       in the conditions that you saw?
       A: Yes, sir. I felt I was obligated to do it, so yes, I felt it was safe enough
       to do it.
       Q: Okay. Now, you eventually made that personnel basket transfer
       safely, correct?
       A: Yes, sir.

       5
         In fact, at his deposition, Callahan testified that nobody from Gulf Logistics gave him
any instructions on how he was supposed to make the personnel basket transfer, which means
the transfer was executed without much communication. This arguably lends support to
Callahan’s subsequent assertion regarding expectations of the industry.

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      First, Callahan’s subjective belief concerning the safety of a personnel
basket transfer may be probative, but it is not dispositive of whether Gulf
Logistics breached its duty of care by setting up the transfer. The measure of
danger in the situation is an objective, not subjective, question.
      Second, the record is not as simple as Gulf Logistics asserts. Elsewhere
in his deposition testimony, Callahan testified that, at the time of the transfer,
he considered the conditions “real rough,” “bad,” and “unsafe” to “be working in.”
The accident report includes that Callahan reported to the medic that, at the
time of his injury, the seas had been “very rough.”        Taken together, this
testimony at the very least creates a fact issue regarding Callahan’s beliefs
concerning the conditions of the sea and the impact of the conditions on the
reasonableness of a decision to transfer.
      Finally, Gulf Logistics contends that because Callahan was ultimately able
to complete the personnel basket transfer without further incident, the decision
to transfer him could not have been unreasonable. But the relevant events in
determining breach are not limited solely to the moment of transfer, and
necessarily include the events immediately leading up to it as well. Callahan’s
movement toward the personnel basket was part of the single transfer event.
That Callahan was injured only at an earlier step in the process provides scant
support, much less support as a matter of law, for the claim that the decision to
transfer him was reasonable.
      Callahan’s deposition testimony and the accident report furnish some
evidence that the conditions in which the transfer was made were hazardous.
The accident report from April 11, 2005, contains Callahan’s statements that the
seas were “very rough” at the time of his injury. Callahan repeatedly testified
that he believed the waves reached heights of fifteen to eighteen feet and that,



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under such conditions, the seas were unsafe to be working in.6 While the district
court correctly noted that Callahan’s testimony regarding wave height does not
conclusively establish Gulf Logistics’ liability at this stage, it is not irrelevant to
the reasonableness of the transfer decision.7 Callahan’s evidence is thin but
sufficient to create a fact issue as to breach.8 The district court thus erred in
granting summary judgment to Gulf Logistics.
C.      Diamond Offshore Entities.
        Diamond was the owner and operator of the Ocean Spartan, the mobile
drilling unit to which Callahan was ultimately transferred. The district court
granted summary judgment in favor of Diamond largely for the reasons given in
resolving Gulf Logistics’ motion for summary judgment. Diamond’s principal
argument in the district court was that it had no duty to Callahan under
Scindia. Diamond has, however, abandoned that contention on appeal. Instead,
Diamond now argues that it never directed Callahan at any stage of the transfer,


        6
          Callahan testified as follows:
        Q.     Okay. When did you come to the conclusion that the seas were unsafe?
        A.     When I woke up, awoken.
        Q.     And how did you come to that conclusion?
        A.     We were being – when I looked outside and saw on the lake how rough
               the seas were.
        Q.     And what conclusion did you come to then?
        A.     It was 15-foot seas.
        Q.     Did you consider 15-foot seas to be unsafe?
        A.     Yes.
        Q.     You considered 15-foot seas to be unsafe to do what?
        A.     To be working in.
        7
          There is conflicting evidence in the record as to the height of the waves. Callahan
testified that the waves reached heights of fifteen and eighteen feet. The accident report, on
the other hand, stated that the waves were at ten feet. Callahan explained that this
discrepancy arose when the medic who helped create the accident report concluded that the
waves were ten feet. Callahan objected to this conclusion, but was allegedly told not to “worry
about it,” since ten feet was “close enough.”
        8
            We of course do not opine on issues not before us such as comparative negligence.

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and, alternatively, that Callahan failed to demonstrate that Diamond had a duty
to control the operation of a vessel it neither owned, operated, nor chartered.
Callahan responds that this court should not address these arguments, but
instead remand, since Diamond did not raise them in the district court.
      Without doubt, the focus of Diamond’s motion for summary judgment was
on the Scindia standard, but Diamond made a number of factual arguments that
implicitly challenged the issues Callahan raises on appeal. In the district court,
Diamond underscored the absence of evidence showing any communication
between Diamond and Callahan during the transfer. Moreover, Diamond argued
that Callahan alone made the decision to walk onto the rear deck; that none of
Diamond’s equipment was in the vicinity when his injury occurred; that
Diamond had no duty to prevent Callahan from entering the rear deck before the
personnel basket was lowered; and that Diamond never assumed a supervisory
role over the operations. These fact-based arguments asserted that Diamond
played no role in directing Callahan to leave the cabin of the MS. NANCY for the
deck. In fact, in response to Diamond’s motion for summary judgment, Callahan
argued that the Ocean Spartan was a “full and essential partner[] to the decision
to direct and carry out the personnel basket transfer.” Callahan thus understood
Diamond’s argument to include a challenge to the element of control.
      In this court, Diamond contends that it neither exercised control over the
operations of the MS. NANCY nor directed Callahan to prepare for the transfer,
and thus cannot be liable for breach. This argument was “implicit . . . in the
issues or evidence tendered below,” FDIC v. Laguarta, 939 F.2d 1231, 1240 (5th
Cir. 1991). As Callahan had notice that Diamond denied any control over his
action, and he had nearly three years to develop the record before summary
judgment was granted, we will consider Diamond’s newly focused argument. See
FDIC v. Lee, 130 F.3d 1139, 1142 (5th Cir. 1997) (noting that the court need not

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                                  No. 09-30503
                                  No. 10-30019

follow the general rule counseling against our considering new grounds on
appeal “if the circumstances warrant to the contrary”).
      A review of the relevant evidence demonstrates that the district court
appropriately granted Diamond summary judgment. Callahan testified that
from the time he boarded the boat until his injury, he never spoke to anybody
but the deckhand. He admitted that no one from Diamond told him how or when
to make the personnel basket transfer.        Although Gulf Logistics arguably
directed Callahan to prepare for disembarking, Callahan provides no competent
evidence that Diamond issued a similar directive–either explicit or implied.
Nothing in the record shows that Diamond directed Callahan either to position
himself on the rear deck or to prepare for the transfer, or that Diamond had any
control over the transfer or the decision to initiate it. Callahan simply lumped
Diamond in with the rest of the defendants, without specifying the nature of
Diamond’s role in causing his injury.
      Callahan’s brief acknowledges as much with a noticeable dearth of
citations supporting its most salient assertions. For example, Callahan’s brief
baldly asserts that no transfer decision “could occur without Diamond’s
concurrence,” but it cites no evidence for this claim. Moreover, the oblique
reference in Callahan’s subsequent affidavit to “drilling rig personnel” indicating
that he should transfer is conjectural, conclusory, and belied by Callahan’s prior
testimony that his only contact on the ship was with the deckhand. Since
Callahan has failed to present any competent evidence of Diamond’s role in the
transfer, summary judgment was appropriately granted in favor of Diamond.
D.    Eagle Consulting, L.L.C.
      Finally, Callahan appeals the grant of summary judgment in favor of
Eagle Consulting. The district court found that Callahan failed to demonstrate
that Eagle Consulting was responsible, in whole or in part, for Callahan’s


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                                      No. 09-30503
                                      No. 10-30019

injuries.   On appeal, Callahan challenges this ruling, arguing that Eagle
Consulting exercised sufficient operational control over the events in question
that it may be liable for any negligence in the transfer decision.9
       Eagle Consulting contracted with LLOG to provide “company man”
services for the operations at LLOG’s offshore well. In accordance with their
agreement, Eagle Consulting supplied LLOG with two company men, including
Dale Munger, whose job duties included “day-to-day supervision” of the drilling
operations. Munger, who was aboard the Ocean Spartan when Callahan was
injured, had ordered the services of Cooper Cameron to assist in installing a new
wellhead. Cooper Cameron sent Callahan in response. The question is whether
Eagle Consulting exercised sufficient control over these events that it may be
liable for any negligence in the process of Callahan’s transfer.
       Callahan relies on an affidavit from John Manders, a marine operations
and safety expert, to explain the relationship between “company men” and
contracting parties like LLOG. Manders’s affidavit stated that the role of
LLOG’s “company man” was “to represent the interests of LLOG throughout the
program of well drilling and testing activities being conducted by the jack-up
drilling rig Ocean Spartan.” Further, the company man “had overall operational
control of both the Ocean Spartan and the crewboat MS. NANCY and all related
activities on the lease,” and was responsible for insuring “that those operations
subject to his control were conducted . . . free from recognized hazards.”10



       9
         Since Eagle Consulting moved for summary judgment after the district court granted
summary judgment in favor of the other defendants, the competent summary judgment record
relating to Eagle Consulting includes evidence subsequently offered on behalf of Callahan. We
thus consider evidence against Eagle that was properly not considered against the other
appellees.
       10
         Manders claims that Munger was “the man with the most authority over the
operation.”

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                                  No. 09-30503
                                  No. 10-30019

According to Manders’s affidavit, one particular duty of the company man was
to arrange for the transportation of LLOG’s contract workers to and from the
field, which allegedly included “the authority to direct the crew boat MS.
NANCY . . . as to the time the MS. NANCY’s passenger was to be transferred.”
While the time charter agreement allocated this control to Gulf Logistics,
Manders’s affidavit suggests LLOG’s company man may have exercised control
in fact. Cf. Hodgen, 87 F.3d at 1520 (stating that a time charterer may be liable
“if the plaintiff can establish that [an] accident resulted in part from a decision,
such as the timing of the ingress or egress, within the time charterer’s control
spheres”).
      We assume arguendo that Eagle Consulting’s scope of services for LLOG
in connection with the well’s operation could include services pertaining to the
separate time charter agreement between LLOG and Gulf Logistics. After
reviewing the record, however, we find that any control wielded by Munger was
purely theoretical and insufficient to create a fact issue concerning breach of
duty by Eagle Consulting.      Munger testified that, as a company man, he
“[p]rovided day-to-day supervision over the drilling or workover project”), and he
was the “head man on [the] job.” Further, he had “STOP work authority” to
terminate operations he deemed unsafe. He also explained that he did not have
a vantage point to observe crew boat operations, because people on the rig were
seventy-five feet above the water. In fact, Munger testified that he did not recall
looking at the seas around the time Callahan was injured, nor having any
conversations with the crane operator, the crew boat, or anyone from LLOG or
Eagle after ordering Cooper Cameron’s services.
      There is, in sum, no evidence that Munger exercised actual control over
the decision to transfer Callahan. Instead, it was Munger’s practice to leave the
determination of whether conditions were too rough for a personnel basket


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                                       No. 09-30503
                                       No. 10-30019

transfer to the “discretion of the crane operator and the boat captain”–and there
is no evidence that he had ever overridden their decisions.11 The record thus
suggests that even though Munger could theoretically terminate conduct he
believed unsafe, this alone is insufficient to create a material fact issue as to
Eagle Consulting’s liability for the actual decision to transfer Callahan. There
is simply no evidence that Munger was in fact aware of the sea conditions or
involved in the decision to transfer him. Eagle Consulting was entitled to
summary judgment.
                                     IV. Conclusion
       For these reasons, we AFFIRM the summary judgments in favor of the
LLOG entities, the Diamond entities, and Eagle Consulting, but REVERSE and
REMAND as to the Gulf Logistics entities for proceedings consistent herewith.
            AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




       11
            Munger stated: “I defer the operation of the boat to the boat captain, always
have. . . .” He also said that he could not “override a captain on his boat”: “If he doesn’t want
to run the boat we can’t tell him to.” While he would “probably have [the] right” to say no if
a captain wanted to run his boat in dangerous seas, he admitted that he had “never exercised
that right.”

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