      Case: 17-30007          Document: 00514276601              Page: 1      Date Filed: 12/18/2017




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

                                            No. 17-30007                                      FILED
                                                                                      December 18, 2017
                                                                                         Lyle W. Cayce
MANSON GULF, L.L.C,                                                                           Clerk

                 Plaintiff

v

MODERN AMERICAN RECYCLING SERVICE, INCORPORATED

                Defendant

--------------------------------------------------------------------------------


In re: In the Matter of Complaint of Manson Gulf, L.L.C., as Bareboat
Charterer of the Barge Marmac 262, for Exoneration from or Limitation of
Liability


MANSON GULF, L.L.C., as bareboat charterer of the barge Marmac 262,

                 Petitioner - Appellee

v.

JAMES LAFLEUR, Estate of; ANGIE LAFLEUR, Widow of James LaFleur
and on behalf of minor children L.L., D.L., and B.L.,

                 Claimants - Appellants
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                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
      Longshoreman James “J.J.” LaFleur fell 50 feet to his death after
stepping through a hole in a decommissioned oil platform. The platform sat
atop a barge chartered by Manson Gulf, L.L.C., who ordered the hole’s creation
but did not cover the hole or warn J.J. of its existence.
      J.J.’s spouse alleged negligence on the part of Manson and sought
damages. The district court, however, granted summary judgment for Manson,
finding no liability under any of the three Scindia duties—the duties a vessel
owner owes to a longshoreman. Because we conclude a fact issue precluded
summary judgment with respect to the duty to warn of hidden dangers, we
reverse.
                            I.     BACKGROUND
      Manson Gulf, L.L.C. is in the business of decommissioning oil-drilling
platforms in the Gulf of Mexico. In 2015, Manson acquired one such platform,
the BA A-23-A, from Freeport-McMoRan Oil & Gas. Manson extracted the 50-
foot-tall, four-leg platform and placed the structure on a chartered barge. To
lift the structure, Manson ordered four holes cut in the platform’s grating
adjacent to each of the support legs. Rigging chains could then be passed
through the holes and around the legs to take hold of the platform. Each hole
was approximately two feet by two feet. Manson left the holes uncovered and
unmarked.


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                                   No. 17-30007
         Modern American Recycling Service (MARS) is in the business of
dismantling steel structures and selling the metal for scrap. MARS agreed to
purchase and scrap the BA A-23-A platform, and Manson delivered the
structure to MARS’s dock, located on Bayou Black, Louisiana.
         On the morning of June 16, 2015, a Manson project engineer, Dustin
Clement, warned MARS of oil in the platform’s pipes but not of the unmarked
holes. Afterwards, Clement left MARS’s dock and no Manson personnel
remained. Jeff Smith, a MARS foreman in charge of riggers and cutters, then
boarded the platform (still atop the barge) to locate the presence of oil. After
Smith investigated for ten minutes, J.J. LaFleur joined Smith aboard the
platform to lend a hand. J.J. was an independent contractor, employed by
MARS to take inventories, do inspections, and perform other miscellaneous
tasks.
         As Smith and J.J. walked across the platform, they discussed the oil
dilemma and looked at the pipes that ran overhead. While turning, J.J. stepped
through an unmarked hole. Smith, then eight feet behind, attempted to
intervene, but it was too late—J.J. fell 50 feet to the barge’s deck and died from
his injuries. Pictures of the structure and hole in the grating are attached. See
Appendix, figs. 1–3.
         Following J.J.’s death, Manson filed a complaint seeking exoneration or
limitation from liability. MARS answered the complaint and asserted various
claims and defenses. And Angie LaFleur, J.J.’s surviving spouse, filed claims
for damages against Manson and MARS, alleging negligence under both
maritime and Louisiana law. Manson and MARS then moved for summary
judgment, and the district court granted both parties’ motions, finding neither
liable under § 905 of the Longshore and Harbor Workers’ Compensation Act
(LHWCA). The LaFleur claimants appealed only from the summary judgment
with respect to Manson.
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                                    No. 17-30007
                              II.    DISCUSSION
A. Standard of Review
      We review a “district court’s grant of summary judgment de novo
applying the same standards as the district court.” DePree v. Saunders, 588
F.3d 282, 286 (5th Cir. 2009). 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).
      The decision-making process is tweaked slightly when the case is to be
tried before the court and not a jury. See Nunez v. Superior Oil Co., 572 F.2d
1119, 1123–24 (5th Cir. 1978). In that circumstance, “the court may conclude
on the basis of the affidavits, depositions, and stipulations before it, that there
are no genuine issues of material fact, even though [the] decision may depend
on inferences to be drawn from what has been incontrovertibly proved.” Id.
However, the court may exercise this inference-drawing function only when
“the evidentiary facts are not disputed” and “there are no issues of witness
credibility.” Id.
B. The Scindia Duties
      Section 905(b) of the LHWCA governs the present suit and supplies the
relevant tort-based duties owed by vessel owners to longshoremen. 33 U.S.C.
§ 905(b); see also Kirksey v. Tonghai Mar., 535 F.3d 388, 391 (5th Cir. 2008).
Decades ago, those duties were open-ended, premised in part on a nondelegable
warranty of seaworthiness that required no proof of fault. Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 164 (1981). But following the
1972 amendment to § 905(b), the Supreme Court clarified in Scindia that
vessel-owner liability sounds only in negligence. Id. at 165. To that end,
Scindia articulated three “narrow duties” owed by the vessel owner: “(1) a
turnover duty, (2) a duty to exercise reasonable care in the areas of the ship


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                                  No. 17-30007
under the active control of the vessel, and (3) a duty to intervene.” Kirksey, 535
F.3d at 391.
      The turnover duty encompasses two distinct-but-related obligations.
First, the vessel owner “owes 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.” Id. at 392. And second, the vessel owner “owes 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.” Id. However, a vessel owner need not warn of
“dangers which are either: (1) open and obvious or (2) dangers a reasonably
competent stevedore should anticipate encountering.” Id.
      The active control duty requires that the vessel owner “exercise due care
to avoid exposing longshoremen to harm from hazards that they may encounter
in areas, or from equipment, under the active control of the vessel during the
stevedoring operation.” Scindia, 451 U.S. at 167.
      Finally, the duty to intervene imposes liability “if the vessel owner fails
to intervene in the stevedore’s operations when he has actual knowledge both
of the hazards 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.” Burchett v. Cargill, Inc., 48 F.3d 173, 178 (5th Cir. 1995) (quoting
Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992)).
C. The Active Control Duty and the Duty to Intervene
      As a preliminary matter, we agree with the district court that neither
the active control duty nor the duty to intervene apply to this case. Both
liability theories fail for the same reason: it is undisputed that all Manson
personnel departed the barge prior to J.J.’s fall.
      Though the mere presence of vessel employees is not necessarily
indicative of active control, we have twice cited the complete absence of such
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                                       No. 17-30007
personnel as evidence of the opposite—a lack of vessel control. See Fontenot v.
United States, 89 F.3d 205, 208 (5th Cir. 1996); Burchett, 48 F.3d at 179. The
LaFleur claimants point to testimony that Manson had not yet transferred
ownership of the platform when J.J. fell. But our cases speak in terms of
control, not legal ownership. 1 Without evidence that Manson continued to
exercise control over the platform, liability cannot rest on the second Scindia
duty.
        As for the duty to intervene, the absence of Manson personnel is
similarly dispositive. Assuming Manson had actual knowledge of the hole, the
LaFleur claimants still needed to prove Manson had actual knowledge of
“obviously improvident judgment” on the part of MARS (the stevedore).
Burchett, 48 F.3d at 178. Because no Manson personnel remained when Smith
and J.J. boarded the platform, the LaFleur claimants offered no evidence that
Manson observed MARS employees interacting with the hazard, let alone in
an obviously improvident manner. See id. (affirming summary judgment on
the duty-to-intervene issue because the vessel owner “had no personnel present
at the job site who could have had knowledge of any peculiar dangers related
to [the stevedore’s] operations”). As a consequence, the duty to intervene is
inapplicable.
D. The Turnover Duty
        We disagree, however, with the district court’s decision to grant
summary judgment with respect to Manson’s turnover duty. The parties frame
the turnover duty in terms of the duty-to-warn component, several elements of
which are undisputed. First, the hole was, needless to say, a “danger”—it was



        Indeed, if mere ownership of a hazardous condition was sufficient to create control,
        1

would not every vessel owner automatically control hazards appurtenant to its vessel? Our
cases say otherwise. See, e.g., Fontenot, 89 F.3d at 208 (a vessel’s hatch cover was not under
the vessel owner’s control).
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                                       No. 17-30007
at such a height to make death or grievous injury a near certainty for anyone
who fell through it. Second, Manson had actual knowledge of the hole, or is at
least charged with knowledge, because Manson orchestrated the cutting before
delivering the platform. See Hernandez v. M/V Rajaan, 841 F.2d 582, 586 (5th
Cir. 1988) (“If the condition existed from the outset, the shipowner is charged
with actual knowledge of the dangerous condition . . . .”). And finally, Manson
warned MARS only of explosive fluids, not holes.
       Therefore, the validity of the LaFleur claimants’ turnover-duty claim
hinges on whether the hole was hidden or was instead (1) open and obvious or
(2) a danger “a reasonably competent stevedore” should have anticipated.
Kirksey, 535 F.3d at 392. The district court concluded the hole was both open
and obvious and to be anticipated by a competent stevedore, and on that basis,
granted summary judgment for Manson. Sure enough, some evidence in the
record supports that finding. Jeff Smith testified that nothing would have
obstructed J.J.’s view of the hole. Smith testified also that if J.J. had looked at
the hole from four or eight feet away, he would have seen the hole. And Smith
opined that, were he in J.J.’s shoes, he would not have fallen because he
“double-check[s] were [he] go[es].” On the general foreseeability of holes, Smith
testified that he would expect a decommissioned structure (like the platform
at issue) to contain holes. Dwight Caton, the owner of MARS, likewise stated
that holes are a common occurrence on decommissioned platforms.
       But so too did record evidence provide a contrasting account, supporting
instead the notion that the hole was a hidden hazard, one a stevedore would
not anticipate. Smith, the only witness to view the hole from J.J.’s vantage
point, 2 provided the contradiction (indeed, a self-contradiction of the testimony


       2 A panel of this court once observed that an open-and-obvious inquiry should take
place from the perspective of the injured longshoreman. See McCuller v. Nautical Ventures,
L.L.C., 434 F. App’x 408, 412 (5th Cir. 2011) (per curiam) (explaining that a defective ladder’s
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                                     No. 17-30007
cited above). On the visibility of the hole, Smith explained that the platform’s
“grating can play tricks on your eyes,” the hole was not easily seen until one
was right on top of it, and the hole “look[ed] like a solid floor.” Moreover, Smith
did not see the hole until J.J. began to fall through it. The hole’s size (or lack
thereof) is also relevant; Caton testified the hole was approximately the size of
two legal pads and he “still [did not] know how a person fit through” it. Finally,
we have reviewed the pictures of the hole and its surroundings, and those
pictures cement further the conclusion that the hole’s obviousness is subject to
live dispute. True, the pictures taken directly over the hole, as one might
expect, depict a visible opening. See, e.g., Appendix, fig. 2. But the pictures
taken from an angle—similar to the point of view of a person approaching the
hole—depict the way in which the platform’s grating, in Smith’s words, can
“play tricks on your eyes” and make the opening difficult to see. See, e.g.,
Appendix, fig. 3. As for the hole’s foreseeability, Smith clarified that, though
he expected holes to be present, those holes are “typically covered” by replacing
the grating or marked by “cables going all the way around.” More pointedly,
Smith explained that an uncovered, unmarked hole—the very danger that
befell J.J.—was “just not common at all.” And Caton echoed that sentiment:
“usually everything is roped off.”
       The district court did not acknowledge this testimonial conflict in its
summary-judgment opinion. Instead, the court appeared to place great weight
on the procedural nuance we mentioned earlier—that of summary judgment in
a bench-trial case—when it remarked, “proceeding to trial would not enhance
the Court’s ability to draw inferences and conclusions.” The court was quite
right that the Nunez rule allows a judge to sometimes draw inferences in


obviousness should not be gauged by what would be revealed if “the ladder was laid out flat
and the rungs could be examined from several angles” but rather by what would be apparent
“to a longshoreman climbing up and down the ladder”). We agree.
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rendering summary judgment. See 572 F.2d at 1123–24. But neither Nunez
nor any other case permits the court to do so when a factual dispute exists. Id.
at 1124. Smith’s divergent testimony created such a dispute here, and on the
key issues no less. By adopting one side of Smith’s story as “[t]he most
convincing evidence” while neglecting Smith’s contrary account, the court, in
essence, found one version more credible than the other. And Nunez forbids
credibility determinations on a cold summary-judgment record. Id. at 1123.
      Judicial efficiency is a noble goal, to be sure. But when an evidentiary
record contains a material factual dispute (as this one does), we simply cannot
bypass the role of the fact-finder, whoever that may be. Summary judgment
was improper.
E. The West Caveat and Manson’s Alternative Basis for Affirmance
      We pause to consider Manson’s final ground for affirmance, one premised
on a little-explored exception to vessel-owner liability. In a pre-Scindia case,
West v. United States, 361 U.S. 118, 119 (1959), the United States hired a
contractor to overhaul a deactivated vessel. A shore-based employee of the
contractor suffered a repair-related injury. Id. at 120. The Supreme Court
denied recovery because, among other things, the defect was not hidden and
the vessel owner was “under no duty to protect [the employee] from risks that
were inherent in the carrying out of the contract.” Id. at 123. This circuit has
applied the West rationale under similar circumstances. See Hess v. Upper
Miss. Towing Corp., 559 F.2d 1030, 1035–36 (5th Cir. 1977) (no liability when
gasoline was obvious and “the danger inherent in removing gasoline . . . from
a barge was well known” to the independent contractor hired to do just that);
Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) (no liability when rust on
a tank’s walls—the precise condition an independent contractor was retained
to inspect—injured an employee of the contractor). Manson argues the West
rule should apply here because J.J.’s role (vis-à-vis his stevedore) was to check
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                                    No. 17-30007
the platform for hazards, including holes. The LaFleur claimants reply that
the record reveals J.J.’s responsibility was to investigate for oil, not holes.
      Setting aside whether the evidence actually supports Manson’s
characterization of J.J.’s role, we decline Manson’s request to affirm because
we find no authority for extending the West exception to situations beyond
(1) an open and obvious defect that (2) an independent contractor is retained
by the vessel owner to repair or inspect. West itself acknowledged the limits of
its holding. See 361 U.S. at 124 (“[T]here might be instances of hidden or
inherent defects, sometimes called ‘latent,’ that would make the owner guilty
of negligence, even though he had no control of the repairs . . . .”).
      This case is different. When control of the structure was turned over, a
warning was given about oil but not holes—and this is more than a hole in the
grating. Unseen is a hole in the platform underneath, and if a man slips or
steps over the edge of the hole, he will fall to a terribly painful death. Surely,
this danger could be found to constitute a latent hazard. And, moreover, this
case involves a stevedore retained by the vessel owner to remove a structure
for scrap, not to repair or inspect for particular known dangers. It is thus
outside West’s narrow liability bar.
                             III.    CONCLUSION
      The judgment is reversed and the case is remanded for proceedings
consistent with this opinion.




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                            Appendix




                               Fig. 1




                               Fig. 2




                               Fig. 3
