                                                      [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                FILED
                                                     U.S. COURT OF APPEALS
                             No. 10-11833              ELEVENTH CIRCUIT
                                                          MARCH 22, 2011
                         Non-Argument Calendar
                                                            JOHN LEY
                       ________________________              CLERK

                 D.C. Docket No. 3:07-cv-00638-MMH-MCR

JOEL W. GREEN,

                                                  Plaintiff - Appellant,

                                versus


UNITED STATES OF AMERICA,

                                                  Defendant - Appellee.

                       ________________________

                             No. 10-11975
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:07-cv-00638-MMH-MCR

JOEL W. GREEN,

                                                  Plaintiff,


NORTH FLORIDA SHIPYARD, INC.,
AMERICAN LONGSHORE MUTUAL ASSOCIATION, LTD.,

                                                          Intervenor-Appellants,
                                   versus

UNITED STATES OF AMERICA,

                                                          Defendant - Appellee.

                          ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                 (March 22, 2011)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Joel Green, North Florida Shipyard, Inc., and American Longshore Mutual

Association, Ltd., (collectively “Green”), appeal the judgment against Green’s

complaint under the Longshore and Harbor Workers’ Compensation Act. 33

U.S.C. § 905(b). Green, an employee of North Florida Shipyard, Inc., was burned

when a spark used to light his cutting torch ignited gas that had accumulated in the

starboard aft peak ballast tank of the M/V Cape Edmont, a ship owned by the

United States. Green complained that the United States, acting through Clyde

Roberts, had failed to ventilate Green’s work space adequately to dispel gas that



                                         2
had leaked from his cutting torch. Following a bench trial, the district court found

that Roberts was not an agent or a subagent of the United States and concluded

that the United States, as a shipowner, did not owe any duty to protect Green. We

conclude that the findings of the district court are not clearly erroneous, and we

agree that the United States owed no duty to Green. We affirm the judgment in

favor of the United States.

                                I. BACKGROUND

       The United States Maritime Administration owned the Cape Edmont, but

the Administration contracted with Marine Transport Lines, Inc., to manage,

maintain, and repair the ship. While the Cape Edmont was undergoing repairs at

the Dentyens Shipyard, the United States Coast Guard inspected the ship and

discovered that the steel in its starboard and port aft peak ballast tanks were below

the minimal allowable thickness required by the American Bureau of Shipping.

Marine Transport was required to replace the steel for the Cape Edmont to retain

its class certification.

       Marine Transport requested bids for the steel renewal project and awarded

the contract to North Florida Shipyard. North Florida Shipyard agreed to furnish

the labor, materials, and equipment necessary to repair the ballast tanks, including

the equipment required to ventilate the areas where steel cutters and welders

                                          3
would be performing “hot work” with fire- or spark-producing tools. The project

required that North Florida Shipyard provide mechanical fans and air socks that,

using a combination of positive and negative ventilation, removed smoke, welding

fumes, and other noxious gases from the work areas. North Florida Shipyard also

agreed to retain both a marine chemist to certify that all areas involving hot work

had safe levels of gases and a “competent person” to daily test and inspect the

work areas.

      Marine Transport did not use any of its personnel to supervise the steel

renewal project. Instead, Marine Transport hired Clyde Roberts, a ship repair

expert, as the Special Port Engineer to oversee the project. Marine Transport

agreed to pay Roberts according to invoices he submitted from his company,

Independent Marine Consultants, Inc. The Maritime Administration did not

reimburse Marine Transport for Roberts’s expenses, nor did the Administration

have any contact with Roberts. Instead, Roberts reported to the president and

CEO of Marine Transport, Ernie Otterspoor. Marine Transport and Roberts

agreed orally that Roberts could not bind Marine Transport to payment, but that

Roberts could negotiate change orders and field bids for the project.

      Roberts inspected daily the work performed by North Florida Shipyard.

Roberts “physically crawled into the various work spaces, visiting each work

                                          4
space on average between six to fifteen times per day.” Roberts ensured that

North Florida Shipyard met its deadlines and complied with technical

specifications. Roberts signed, as “ship personnel,” one certificate stating that

North Florida Shipyard had completed forty percent of the necessary repairs to the

aft peak tank. Roberts also signed, as “owner’s representative,” several inspection

reports approving specific welding tasks and one handwritten document approving

painting performed by North Florida Shipyard.

      Marine Transport did not require that Roberts manage the safety procedures

of the steel renewal project, but Marine Transport expected Roberts to report to

North Florida Shipyard any safety hazards that he noticed. Marine Transport gave

Roberts the authority to stop work on the project if he noticed that working

conditions were unsafe, and Roberts involved himself in safety protocol for the

project. He met with the chief engineer of Marine Transport to improve the

quality and quantity of fire watch stations, and Roberts gave the supervisor of

North Florida Shipyard a card about specific safety procedures. Roberts requested

that North Florida Shipyard follow a safety protocol in which its cutters and

welders, at every break and the end of work shifts, would turn off the gas source at

the manifold, disconnect gas lines from the gas source, and remove gas lines and

torches from the work spaces below deck. A supervisor of North Florida Shipyard

                                          5
testified that it did not require its employees to comply with Roberts’s suggested

protocol. Employees of North Florida Shipyard were required at breaks to turn off

the gas source and disconnect gas lines, but employees did not remove their

torches from work spaces until the end of their shift.

      North Florida Shipyard hired David Miller, a marine chemist, to inspect the

areas of the Cape Edmont where hot work would be conducted. The morning of

January 17, 2006, Miller certified that the atmospheric conditions below deck

complied with federal regulations and were safe for hot work and, later that day,

North Florida Shipyard began hot work inside the ship. Beginning on January 18,

2006, a “competent person” from either Miller’s company or North Florida

Shipyard inspected the atmospheric conditions inside the ship daily while the steel

cutters and welders were working.

      North Florida Shipyard assigned Green, a first class shipfitter, to remove

wasted steel in the starboard aft peak ballast tank. Around January 20, 2006,

Green and Paul Degrove began cutting the metal, and the undertaking took several

days. The testimonies of Green and Degrove differed about when North Florida

Shipyard installed a ventilation system and the level of ventilation in the tank, but

both men testified that they received proper ventilation equipment eventually.

When the men completed the cutting process, Degrove was replaced by Mary

                                          6
Chamberlain, who tacked to the ballast tank pieces of replacement steel.

      Green gave conflicting statements about the ventilation during the tacking

process, and his statements were inconsistent with the testimonies of Chamberlain

and people who inspected the starboard aft peak tank. Green first testified that

Degrove removed the ventilation system when he left the tank, but Green later

testified that, after Degrove left, air socks that were inoperative or not attached to

a fan were placed in the tank to mislead inspectors about ventilation in the tank.

Chamberlain testified that she observed proper ventilation in the tank during the

tacking process. Roberts, Green’s supervisors at North Florida Shipyard, and

Miller all testified that they observed what they believed to be adequate ventilation

in the tank.

      Green testified that he complained to various persons about the lack of

ventilation, but Green did not complain to Roberts or to any representative of

Marine Transport. Green referred to Roberts as a “ghost” during the steel renewal

project, and employees and crew members of Cape Edmont who remained on

board the ship during the repairs testified that Green did not complain to them

about the ventilation of the starboard aft peak tank. Green testified that he

complained to two of his supervisors at North Florida Shipyard and to an

individual wearing a white uniform who was not an employee of North Florida

                                           7
Shipyard but who was responsible for certifying the tank for hot work. Green did

not dispute evidence that employees of Marine Transport did not wear white

uniforms.

      Green used his own cutting torch while working in the starboard aft peak

tank. Over time, cutting torches are known to leak flammable gases, which can

cause the torch to ignite although the torch is turned off. Green knew his torch

had a leak, and Chamberlain and Green observed his torch light while it was

turned off. Green addressed the problem by tightening the gas knob on his torch

when he could, but failed to have the torch repaired or obtain a temporary torch

from North Florida Shipyard. Chamberlain testified that she did not report the

safety hazard to her supervisors.

      On January 26, 2006, the “competent person” for North Florida Shipyard

inspected the starboard aft peak tank and certified that the area was safe for “hot

work.” Green testified that there was no ventilation in the tank, but his testimony

conflicted with that of his expert, who testified there was ventilation, albeit

inadequate, in the tank. Green’s testimony also conflicted with testimony from

Chamberlain and employees of North Florida Shipyard, who testified that the tank

had both positive and negative ventilation, and with evidence that burnt remnants

of positive and negative air socks were found in the tank.

                                           8
      That afternoon, North Florida Shipyard allowed their employees to leave the

Cape Edmont to cash their paychecks. When Green left, he turned off his cutting

torch, but he did not disconnect his torch from the gas source or turn off the gas

source at the manifold. While Green was away, his torch leaked both oxygen and

chemolene into the starboard aft peak tank, and the dense gases pooled along the

floor of the tank. During the break, Roberts spoke with a supervisor of North

Florida Shipyard and the two men walked within ten or fifteen feet of the gas

manifold.

      Green returned to Cape Edmont and, contrary to established safety policy,

entered the starboard aft peak tank to work alone. Before he donned his protective

gloves, Green opened the gas valve on his torch and attempted to light the torch

with his striker. The spark ignited the gas that had pooled in the floor of the tank

and caused a flash fire. Green escaped the tank, but he incurred severe burns.

      A few hours later, North Florida Shipyard summoned Miller to inspect the

ship. Miller examined all the areas involving hot work. Around 6:50 p.m., Miller

certified that the atmospheric conditions in the starboard aft peak tank were safe to

resume hot work.

      After a trial without a jury, the district court entered judgment in favor of

the United States and issued a thorough opinion containing its findings of fact and

                                          9
conclusions of law. Before it addressed what duty, if any, the United States owed

Green, the district court found that “Roberts was an independent contractor, not an

employee,” of Marine Transport. The district court found that Green, who was

“focusing on the relationship between Roberts and [Marine Transport],” had

“failed to offer any evidence of a direct agency relationship between Roberts and

the United States” or that Marine Transport had “actual or apparent” authority to

appoint Roberts as a subagent of the United States. The district court ruled, after

“[d]iscounting any conduct by Roberts,” that Green failed to establish any “basis

for imposing the active operations duty on” the United States because North

Florida Shipyard controlled the starboard aft peak tank, Green’s work, and the

ventilation system. The district court also ruled that Green “failed to satisfy the

basic conditions required for imposing a duty to intervene on” the United States in

the absence of “actual knowledge of any hazards in the tank” and the fact that “any

hazardous conditions were created entirely by [North Florida Shipyard] and its

employees” and the “leaking torch and pooled gas[] were transitory[] and actually

known by” Green.

                         II. STANDARDS OF REVIEW

      This appeal is governed by two standards of review. “[T]he existence of an

agency relationship is a question of fact,” and related findings are “binding unless

                                          10
clearly erroneous.” Archer v. Trans/Am. Servs., Ltd., 834 F.2d 1570, 1572–73

(11th Cir. 1988). “Under clear error review, the district court’s determination

must be affirmed ‘so long as it is plausible in light of the record viewed in its

entirety.’” Commodity Futures Trading Comm’n v. Gibraltar Monetary Corp., 575

F.3d 1180, 1186 (11th Cir. 2009) (quoting Merrill Stevens Dry Dock Co. v. M/V

YEOCOMICO II, 329 F.3d 809, 816 (11th Cir. 2003)). We review de novo the

conclusion that the United States did not owe a duty to Green under the Longshore

and Harbor Workers’ Compensation Act. See Sea Byte, Inc. v. Hudson Marine

Mgmt. Servs., Inc., 565 F.3d 1293, 1298 (11th Cir. 2009).

                                 III. DISCUSSION

      Green blames his injuries on the negligence of the United States. Green

argues that Roberts’s role in the steel renewal project establishes that he was an

agent or subagent of the United States. Green attributes to the United States

Roberts’s involvement in the project and argues that the starboard aft peak tank

was under the active control of the United States. In the alternative, Green argues

that the United States had a duty to intervene to protect him.

      The record supports the finding of the district court that Green failed to

prove that Roberts was an agent of the United States. To create an agency

relationship, both the principal and agent must consent to the agency and the

                                          11
principal must control the agent. Restatement (Third) of Agency § 1 (2005); e.g.,

Commodity Futures Trading Comm’n, 575 F.3d at 1189. Green failed to introduce

any evidence that the United States either knew that Marine Transport had hired

Roberts or consented for Roberts to act on behalf of the United States. See

Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1077 (11th Cir. 2003)

(holding there was “no agency relationship” between two companies absent a

“lack of acknowledgment” that one acted on behalf of another). Marine Transport

retained Roberts for specific tasks, and Marine Transport was billed for Roberts’s

services. Roberts had significant discretion in the performance of his job,

including when and how long he worked and the frequency with which he

inspected the work performed by North Florida Shipyard. See Restatement

(Second) of Agency § 14 cmt. b (1957) (“If the existence of an agency relation is

not otherwise clearly shown, as where the issue is whether . . . an agency has been

created, the fact that it is understood that the person acting is not to be subject to

the control of the other as to the manner of performance determines that the

relation is not that of agency.”); see Commodity Futures Trading Comm’n, 575

F.3d at 1190 (relevant to control in agency relationship is authority to supervise

and discipline the agent). Roberts could not bind the United States through its

agent, Marine Transport. Although Marine Transport referred to Roberts as a

                                           12
“Special Port Engineer,” provided Roberts an office, and permitted him to sign

inspection reports, Roberts could not contract on behalf of or obligate Marine

Transport to pay for work performed on the Cape Edmont. Employees of North

Florida Shipyard apparently recognized that Roberts had limited authority and

disregarded his suggestions about changes to safety protocol. The United States

had an agency relationship with Marine Transport, not Roberts.

      The record also supports the finding that Green failed to prove that Roberts

was a subagent of the United States. “A subagent is a person appointed by an

agent to perform functions that the agent has consented to perform on behalf of the

agent’s principal and for whose conduct the appointing agent is responsible to the

principal.” Restatement (Third) of Agency § 3.15(1). An agent must have “actual

or apparent authority” to appoint a subagent, id. § 3.15(2), and Green submitted no

evidence that Marine Transport could appoint subagents. Moreover, “[w]hen an

agent is itself a corporation or other legal person, its officers, employees, partners,

or members who are designated to work on the principal’s account are subagents.”

Id. § 3.15 cmt. b. The district court found that Roberts was not an employee of

Marine Transport, and Green does not challenge that finding.

      After repair operations commence, a shipowner can be liable to the

employee of a harbor contractor in one of two situations. First, an employee of a

                                          13
harbor contractor can recover from the United States if it “actively involves itself

in the [repair] operations and negligently injures [the employee] or . . . fail[s] to

exercise due care to avoid exposing [the employee] to harm from hazards . . .

encounter[ed] in areas, or from equipment, under the active control of the vessel

during the [repair] operation.” Scindia Steam Nav. Co. v. De Los Santos, 451 U.S.

156, 167, 101 S. Ct. 1614, 1622 (1981). Second, an employee of a harbor

contractor can recover from the United States under a “very limited duty” to

intervene, Hunter v. Reardon Smith Lines, Ltd., 719 F.2d 1108, 1112 (11th Cir.

1983), if it had become “aware that the ship, its equipment or gear poses a danger”

and that the harbor contractor had “act[ed] unreasonably to protect [its

employee].” Roach v. M/V Aqua Grace, 857 F.2d 1575, 1581 (11th Cir. 1988);

see e.g., Lampkin v. Liberia Athene Transp. Co., 823 F.2d 1497, 1501 (11th Cir.

1987).

      We agree with the district court that Green cannot recover from the United

States under the Longshore and Harbor Workers’ Compensation Act because the

United States did not breach a duty owed to Green. The United States was not

involved actively in the steel replacement project such that it could be liable for

allegedly inadequate ventilation. Green argues that the United States, by virtue of

Roberts’s regular inspections, was in active control of the starboard aft peak tank

                                           14
and the equipment used to ventilate the tank, but the district court did not clearly

err when it found that Roberts was not an agent of the United States. Green failed

to prove that any agent or employee of the United States had constructive

knowledge of hazardous conditions in the tank. Even if the United States had

been involved actively, there was no evidence that it acted negligently. Roberts

and employees of North Florida Shipyard observed what appeared to be adequate

ventilation in the tank and could rely on the opinion of the competent person who

daily certified the tank that the work space was safe for hot work. See Lampkin,

823 F.2d at 1502–03. The United States also did not owe Green a duty to

intervene. Green failed to prove that the United States knew of a hazardous

condition. Green did not communicate his concerns about the ventilation system

to an employee or agent of the United States. See Futo v. Lykes Bros. Steamship

Co., 742 F.2d 209, 218–20 (5th Cir. 1984) (mentioned in Roach, 857 F.2d at

1582). Green argues that it was “open and obvious” from the deck of the ship that

employees of North Florida Shipyard did not, during breaks, disconnect gas lines

from the gas source, but Green did not prove that the failure to disconnect gas

lines alone created a hazardous condition. “[K]nowledge that a condition . . .

exists[] does not imply knowledge that the condition is dangerous.” Casaceli v.

Martech Intern., Inc., 774 F.2d 1322, 1331 (5th Cir. 1985) (discussed in Roach,

                                          15
857 F.2d at 1582). Moreover, the record supports the finding of the district court

that Green knew that his cutting torch was leaking dangerous gases, yet he failed

to have his torch repaired. Green was in the best, if not the only, “position to

appreciate fully the risk and avoid the danger” created by his cutting torch.

Stockstill v. Gypsum Transp., 607 F.2d 1112, 1117 (5th Cir. 1979).

                                IV. CONCLUSION

      The judgment in favor of the United States is AFFIRMED.




                                         16
