Dahlen v. Gulf Crews, Inc.

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-31119

PETER J. DAHLEN; et al.,

Plaintiffs,

PETER J. DAHLEN,

Plaintiff - Appellant-Cross-Appellee,

VERSUS

GULF CREWS, INC.; GULF BOAT MARINE SERVICES, INC.;

Defendants - Cross-Defendants-Appellees,

UNIVERSAL OGDEN SERVICES,

Defendant - Appellee,

FOREST OIL CORP.,

Defendant - Cross-Claimant - Third Party Plaintiff -
Appellee-Cross-Appellant,

VERSUS

SECURITY INSURANCE COMPANY OF HARTFORD,

Third Party Defendant - Appellee.
 Appeals from the United States District Court
For the Western District of Louisiana
February 4, 2002

Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH,1 District
Judge.

DeMOSS, Circuit Judge:

On July 6, 1995, Peter Dahlen injured his back aboard an oil

platform while unloading groceries from an eight-foot square metal

grocery box. The platform is owned and operated by Forest Oil

Corporation (“Forest”). Dahlen sued Forest, as well as the grocery

supplier, Universal Ogden Services (“Universal”), and the chartered

ship owner, Gulf Crews, Inc. and Gulf Marine Services, Inc.

(“collectively, “Gulf”) for negligence. The district court granted

Universal’s and Gulf’s motions for summary judgment on the basis

that they owed no duty to Dahlen. At trial, a jury found that

Forest was not negligent and Dahlen now appeals. On appeal, Dahlen

claims: (1) the jury charge was erroneous as to the legal standard

of negligence it set forth; (2) the jury charge was erroneous as to

the duty that was owed by Forest as the time charterer; (3) the

jury’s findings were erroneous; and (4) it was error to grant

Universal’s motion for summary judgment.

1
District Judge of the Eastern District of Missouri,
sitting by designation.

2
 BACKGROUND

Forest Oil Company is the owner and operator of several

platforms producing oil and gas in the Gulf of Mexico, including,

for the purposes of this suit, West Cameron 44, High Island 116 and

High Island 820. All three of these artificial islands are located

approximately one and a half hours by boat from each other and are

on the Outer Continental Shelf adjacent to the State of Louisiana.

In July 1995, the plaintiff, Peter Dahlen, was an employee of

Island Operating, but was assigned to work for Forest on Forest’s

production platforms in the Gulf of Mexico. Dahlen was employed as

a barge operator. At the time of his employment, Dahlen had no

physical restrictions and was in good health.

Forest purchased groceries for their offshore platforms from

Universal Ogden Services. On July 5, 1995, Forest made a grocery

order for West Cameron 44, High Island 116 and High Island 820 from

Universal. Universal transported the groceries by truck to a dock

in Sabine Pass, Louisiana, and loaded them into an eight-foot

square metal blue cube or “grocery box.” The grocery box was

loaded via crane by Grasso Production Management onto the M/V BILLY

JAY, a supply boat owned by Gulf and time chartered by Forest, for

transport offshore.

On July 6, 1995, Forest operator, Greg Sweet, instructed

Dahlen to go by helicopter to the West Cameron 44 platform and

3
perform routine maintenance and take readings. Sweet also told

Dahlen that the M/V BILLY JAY would be arriving with groceries and

supplies, which Dahlen should unload. When the BILLY JAY arrived,

Dahlen offloaded the grocery box using a crane. When Dahlen opened

the box, he found that it had been loaded in such a manner that the

supplies for West Cameron 44 were in the back of the box. Because

the box only had a single door by which to access its contents, in

order to unload the supplies for West Cameron 44, Dahlen had to

take everything out of the box, set aside the supplies for his

platform, and then reload the other platforms’ supplies into the

box. This whole process took approximately one hour.

Dahlen claims this activity caused him to suffer a back injury

and he had to fly back to shore the next day due to the pain he was

experiencing. He had extensive conservative treatment, which

proved ineffective. Eventually, Dahlen had to undergo a

posterior/anterior two-level lumbar fusion surgery, using hardware

to stabilize his back. Dahlen claims that he has not worked since

the incident, and that he continues to suffer from pain and

depression and that his medications cost $509 per month.

On May 2, 1996, Dahlen filed suit for negligence in the 38th

Judicial District Court, for the Parish of Cameron, State of

Louisiana. Made defendants were: Gulf, Universal, and Forest.

Dahlen maintained that it was negligent, on the part of the

defendants, to load the groceries in the order that they did.

4
Dahlen asserted that there was a duty to load the groceries

according to a “first in, last out” rule so that he would not have

had to unload the groceries destined for the other platforms. On

May 28, 1996, the defendants timely removed the action to federal

court, invoking federal question jurisdiction via the Outer

Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq.

All three defendants filed motions for summary judgment. Universal

and Gulf were granted their motions on the grounds that they owed

no legal duty to Dahlen. Forest was granted its motion for summary

judgment as to liability as the platform owner because Dahlen did

not premise his claim on platform liability, but rather on Forest’s

duty as the time charterer of the BILLY JAY. Forest’s motion to

dismiss the claim against it as time charterer was denied and the

claim went to trial. A jury found that Forest was not negligent

and Dahlen appealed. Forest also appealed a refusal by the court

to grant Forest indemnity under the charter contract between it and

Gulf.

DISCUSSION

The district court’s application of the Admiralty Extension Act

Forest contends that the district court erred in its finding

that the Admiralty Extension Act applied, making maritime law also

applicable. Forest is under the misconception, however, that this

error would deprive the district court of jurisdiction. Forest

5
then goes on to state that the district court allowed liability

premised on 33 U.S.C. § 905(b) of the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), which was grounded in admiralty

jurisdiction. Forest therefore seems to argue that, had the

district court not used the Admiralty Extension Act, the court

would lack subject-matter jurisdiction. The plaintiff responds

simply by endorsing the district court’s application of the

Extension Act.

Neither party nor the district court thought about determining

whether jurisdiction could be premised in the OCSLA. The West

Cameron 44 platform is a fixed production platform, or artificial

island, located on the Outer Continental Shelf (OCS). As such,

injuries that occur on the platform are subject to Federal

jurisdiction. 43 U.S.C. §§ 1333(a)(1) and 1349(b).2 The district

court clearly found that the claim is governed by the OCSLA; the

apparent confusion over jurisdiction seems to arise from the

court’s statement that “when an event occurs on an OCSLA situs, and

2
43 U.S.C. § 1349(b) states, in relevant part:

[T]he district courts of the United States shall
have jurisdiction of cases and controversies
arising out of, or in connection with (A) any
operation conducted on the outer Continental Shelf
which involves exploration, development, or
production of the minerals, of the subsoil and
seabed of the outer Continental Shelf....
Proceedings with respect to any such case or
controversy may be instituted in the judicial
district in which any defendant resides or may be
found, or in the judicial district of the State
nearest the place the cause of action arose.

6
maritime law is also applicable, then maritime law controls.” What

the parties fail to notice is that the court used the word “also”

in referring to the applicability of maritime law and cited Smith

v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir. 1992). The

district court was premising its decision on Smith, which relied,

in part, on Union Texas Petroleum Corp. v. PLT Engineering, Inc.,

895 F.2d 1043 (5th Cir. 1990), to determine whether to apply state

law or federal maritime law to an action pursuant to §

1333(a)(2)(A) of the OCSLA. PLT stated that:

[F]or adjacent state law to apply as surrogate
federal law under OCSLA, three conditions are
significant. (1) The controversy must arise on a
situs covered by OCSLA (i.e. the subsoil, seabed,
or artificial structures permanently or temporarily
attached thereto). (2) Federal maritime law must
not apply of its own force. (3) The state law must
not be inconsistent with Federal law.

Id. at 1047. We assume the district court was focusing on the

second prong of PLT when it decided that the Admiralty Extension

Act was applicable and so maritime law applied of its own force.

The decision to apply maritime law, however, has nothing to do with

whether or not a federal court has jurisdiction. It clearly does.

See § 1349(b).

Satisfied that the district court had subject-matter

jurisdiction of this controversy and that the case was properly

removed from state court, we turn to the issue raised by Forest of

whether it was error to apply the Admiralty Extension Act to the

7
present case. We review the district court’s conclusions of law de

novo. Dow Chem. Co. v. M/V Roberta Tabor, 815 F.2d 1037, 1042 (5th

Cir. 1987). The district court found that maritime law controls

the instant case by way of 46 U.S.C. § 740, The Admiralty Extension

Act, which states, in relevant part:

The admiralty and maritime jurisdiction of the
United States shall extend to and include all cases
of damage or injury, to person or property, caused
by a vessel on navigable water, notwithstanding
that such damage or injury be done or consummated
on land.

In reaching this conclusion, we think the district court erred.

In order to invoke maritime jurisdiction under the Extension

Act, a plaintiff injured on shore must allege that the injury was

caused by “a defective appurtenance of a ship on navigable waters.”

Margin v. Sea-Land Services, Inc., 812 F.2d 973, 975 (5th Cir.

1987). The district court relied on Supreme Court cases that have

held that a defective cargo container is considered an appurtenance

of a ship to hold that the grocery box was also an appurtenance.

See Victory Carriers, Inc. v. Law, 404 U.S. 202, 210-211 (1971)

(endorsing the concept that an appurtenance of a ship falls under

the Extension Act); Gutierrez v. Waterman Steamship Corp., 373 U.S.

206 (1963) (applying maritime law when a longshoreman was injured

on a dock by defectively bagged beans). The district court felt

that Dahlen’s injury was due to an allegedly improperly loaded

and/or negligently transported cargo container and that this was

8
not significantly distinguishable from the loading of beans in

inadequate containers as alleged in Gutierrez. We disagree.

In Gutierrez, the Supreme Court applied the Extension Act to

provide compensation for a longshoreman who was injured on a dock

by defective cargo containers being unloaded from a ship located on

navigable waters. Gutierrez, 373 U.S. at 209-10. The Supreme

Court warned, however, in Victory Carriers, Inc. v. Law, that when

deciding to extend admiralty jurisdiction under the Act, the courts

should act with caution. 404 U.S. at 212; R.O. Bennett v. Faircape

Steamship Corp., 524 F.2d 979, 981 (5th Cir. 1975). In Victory,

the Court was faced with whether to extend admiralty jurisdiction

to a man who was injured on the dock while operating a forklift

machine to load cargo onto a ship. Victory, 404 U.S. at 203. The

Court declined to extend admiralty jurisdiction, reasoning that

state law traditionally governed accidents such as the one with

which they were faced. Id. at 211-212. The Victory Court also

specifically noted that State Industrial Commission v. Nordenholt

Corp., 259 U.S. 263 (1922), had not been overruled. Victory, 404

U.S. at 210. In Nordenholt, the Supreme Court held that

compensation for a longshoreman, who was injured when he slipped on

a dock while stacking bags of cement that had been unloaded from a

ship, was governed by local law, not federal maritime law.

Nordenholt, 259 U.S. at 275-76. Most recently, this Circuit

interpreted the two Supreme Court decisions in Victory and

9
Gutierrez stating that the Extension Act is meant to apply to the

vessel and her appurtenances “and does not include those performing

actions for the vessel.” Egorov, Puchinsky, Afanasiev & Juring v.

Terriberry, Carroll & Yancy, 183 F.3d 453, 456 (5th Cir. 1999).

This Circuit has also noted that, since the Gutierrez ruling, the

LHWCA has been amended “to cover employees working on those areas

of shore customarily used in loading, unloading, repairing, or

building a vessel.” R.O. Bennett, 524 F.2d at 980.

At least three factors, therefore, mitigate against the

application of Gutierrez. First, Gutierrez is factually

distinguishable. Gutierrez involved a plaintiff who was injured

when he slipped on some beans that spilled out of a defective bag

while it was being unloaded (not after it had been placed on the

dock). Also, at the time Gutierrez was decided, the LHWCA did not

contain the provisions it does today extending coverage to

activities of loading and unloading ships while on the the adjacent

dock or pier. Second, no case cited by either party or the court

deals with the use of the Extension Act in conjunction with the

OCSLA, which has its own provisions concerning the application of

state law. If the reasoning of Victory holds true, then state law

concerns should mitigate against application of the Extension Act.

Furthermore, the OCSLA specifically regards the artificial islands

on the OCS as areas where state law should apply unless there is a

conflict with federal law. See Rodrigue v. Aetna Cas. & Sur. Co.,

10
395 U.S. 352, 363 (1969) (stating that the application of maritime

law is inapposite to fixed structures on the OCS). Third, the

holding of this Circuit in Egorov makes it clear that for the

Extension Act to apply, the defect must be in the appurtenance and

not be due to the personnel performing services for the vessel.

Egorov, 183 F.3d at 456. What is alleged in the present case is

not a defect in the grocery box but in the manner in which

groceries were loaded into the box. Egorov clearly indicates that

the Extension Act should not apply to such a case. This Court,

therefore, holds that the Admiralty Extension Act was improperly

applied in the present case and that Louisiana state law, not

federal maritime law, should have applied to this negligence

action. As it turns out, however, whether Louisiana state

substantive law is applied or not does not affect the outcome of

the case.

The district court’s instructions to the jury as to the applicable
standard for negligence

This Court reviews challenges to jury instructions for abuse

of discretion and will reverse a judgment “only if the charge as a

whole creates a substantial doubt as to whether the jury has been

properly guided in its deliberations.” C.P. Interests, Inc. v.

California Pools, Inc., 238 F.3d 690, 700 (5th Cir. 2001) (quoting

FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994) (internal

11
citation omitted)). However, even if the jury instructions were

erroneous, “we will not reverse if we determine, based upon the

entire record, that the challenged instruction could not have

affected the outcome of the case.” Johnson v. Sawyer, 120 F.3d

1307, 1315 (5th Cir. 1997). Under Rule 51 of the Federal Rules of

Civil Procedure, “No party may assign as error the giving or

failure to give an instruction unless that party objects thereto

before the jury retires to consider its verdict, stating distinctly

the matter objected to and the grounds of the objection.” A

failure to object, however, will not act as a jurisdictional bar to

review and this court will entertain tardy objections to jury

instructions under the plain error standard of review. Tompkins v.

Cyr, 202 F.3d 770, 783 (5th Cir. 2000). “In reviewing jury

instructions for plain error, we are exceedingly deferential to the

trial court.” Id. at 784.

Prior to the jury’s deliberations, Dahlen requested the

following jury charge, which was given by the court:

A tortfeasor takes the victim as he finds him and
is responsible in damages for consequences of his
tort even though the damages are greater because of
the victim’s prior condition. When the defendant’s
negligent act aggravates a preexisting condition or
injury, the victim is entitled to compensation for
the full extent of the aggravation.

This charge was meant to inform the jury of the “eggshell skull”

doctrine. After deliberations began, the jury asked the district

judge to further define “an unreasonable risk of foreseeable

12
injury,” which appeared in one of the jury issues or instructions

regarding negligence. The district judge instructed the jury to

refer to Section V (entitled applicable law), of the jury charge in

its entirety. Dahlen contends that the district court should have

given the jury further instructions, informing the jury that the

defendants could be found negligent even if the injury that

resulted was unforeseeable. Dahlen now appeals this failure as

error. Dahlen admits that he did not object to the jury

instructions as to this aspect prior to deliberations, but contends

that this was only because it was not clear, until the jury

questioned the charge, that further instructions were needed.

The “eggshell skull” doctrine requires a defendant to

compensate a plaintiff for unforeseeable injuries flowing from some

pre-existing physical condition. Munn v. Algee, 924 F.2d 568, 576

(5th Cir. 1991) (citing REST. 2D OF TORTS § 461 (1977)). Section 461

of the Restatement Second of Torts defines the doctrine more

specifically as follows:

The negligent actor is subject to liability for
harm to another although a physical condition of
the other which is neither known nor should be
known to the actor makes the injury greater than
that which the actor as a reasonable man should
have foreseen as a probable result of his conduct.

§ 461 (emphasis added). This definition, therefore, requires that

the actor be negligent first, before the doctrine can come into

play. This is supported by the heading under which § 461 is

13
listed, i.e., “Causal Relation Affecting the Extent of Liability

But Not Its Existence.”

As stated above, under PLT, once we have determined that the

harm occurred on the OCS and that federal maritime law does not

apply of its own force, we must still determine whether substantive

state law is in conflict with existing federal law. PLT, 895 F.2d

at 1047. A review of Louisiana case law reveals that § 461 of the

Restatement Second is relied upon by their courts as well. See

Thames v. Zerangue, 411 So. 2d 17, 19 (La. 1982) (holding that a

tortfeasor is responsible for the consequences of his tort even if

the damages are increased due to a pre-existing condition); Reck v.

Stevens, 373 So. 2d 498, 502 (La. 1979) (quoting REST.2D OF TORTS

461); Burnaman v. Risk Mgmt., Inc., 97-250 (quoting Reck, 373 So.

2d at 502). Louisiana courts have consistently held that “[w]hen

the defendant’s tortious conduct aggravates a pre-existing

condition, the defendant must compensate the victim for the full

extent of the aggravation.” Lasha v. Olin Corp., 625 So. 2d 1002,

1006 (La. 1993) (emphasis added); see also Aisole v. Dean, 574 So.

2d 1248, 1253 (La. 1991); Bush v. Arrow Int’l, 94-373 (La. App. 3

Cir. 11/23/94), 646 So. 2d 1173, 1178 (La. Ct. App. 1994);

Thibodeaux v. Winn-Dixie of La., Inc., 608 So. 2d 673, 675 (La. Ct.

App. 1992) (“Where a defendant’s negligent action aggravates a

preexisting injury or condition, he must compensate the victim for

the full extent of the aggravation.”). Therefore, Louisiana law

14
requires that a defendant be negligent before the “eggshell skull”

doctrine can take effect and this is not in conflict with any

federal law.

Appellant Dahlen would have this Court believe that the

“eggshell skull” doctrine applies before liability is found, but

even the cases cited in support of this contention actually go to

damages and not liability. The rule, as applied to the present

case, merely states that if a further unforeseeable injury occurs

to a victim with a pre-existing condition due to a torteasor’s

negligence, that tortfeasor will still be held liable for the

increased damages. Perniciaro v. Brinch, 384 So. 2d 392, 396 (La.

1980) (“Where the defendant’s negligent action aggravates a pre-

existing injury, he must compensate the victim for the full extent

of this aggravation.”). The defendant must be negligent first,

however. We therefore conclude that the district court’s

instructions to the jury were not erroneous.

The district court’s instructions to the jury as to the duty owed
by Forest

In addition to the above claim, Dahlen also contends that the

district court erred in its instruction to the jury regarding the

duty owed by a time charterer. The jury charge complained of

states:

The vessel charterer has the legal duty to exercise
only reasonable care to have the vessel and cargo

15
 in such condition that the platform owner and its
employees and workers would be able by the exercise
of reasonable care to carry on the work of
unloading the cargo with reasonable safety to
persons and property.

The charterer has no duty to supervise or inspect
the loading or unloading of the cargo or to warn of
open and obvious conditions.

Dahlen claims that this charge was based erroneously on Scindia

Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). Dahlen

contends that the standard that should apply was enunciated in

Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th Cir. 1996). Forest

contends that Scindia and Howlett v. Birkdale Shipping Co., 512

U.S. 92 (1994) enunciate the appropriate standard because Hodgen

only applies when a vessel charterer sends a boat into perilous

weather conditions. In the alternative, Forest argues that the

district court’s instruction is harmonious with the Hodgen court’s

standard.3

Hodgen states that “a time charterer owes a hybrid duty

arising from tort law to exercise the control the charter affords

it4 over the timing, route, and cargo of a vessel’s journey in a

3
There is no need to examine separately Louisiana law as
Louisiana courts’ have relied on Fifth Circuit precedent to
determine the liability of a time charterer. Wall v. Progressive
Barge Line, Inc., 97-0665 (La.App. 4 Cir. 10/29/97), 703 So.2d 681,
685-688 (La.App. 1997) (finding that federal substantive maritime
law often applies to such issues).
4
The charter agreement states, in relevant part:

The vessel shall prosecute its trips and perform

16
reasonably prudent manner.” Hodgen, 87 F.3d at 1517. Dahlen

relies on this statement in his contention that this imposes a duty

on the time charterer to order that the groceries be loaded into

the box in accordance with the “first in-last out” principle. The

Hodgen court went on to state the duty owed in more specificity

later on in the opinion, stating that case law “establish[es] that

the traditional spheres of activity in which a time charterer

exercises control and thus owes a duty include choosing a vessel’s

cargo, route, and general mission, as well as the specific time in

which the vessel will perform its assignment.” Id. at 1520.

Hodgen, and the cases it relied on, however, all involved

situations where a plaintiff was hurt while transferring from a

vessel to a platform, or vice versa, and almost always involved

perilous weather conditions or rough seas. Dahlen wishes to extend

the reasoning of Hodgen to a set of circumstances wholly unforeseen

by the Hodgen court. We are unwilling to do so in the present

situation.5

its services as requested by CHARTERER, but sole
responsibility for management, navigation and
operation of the vessel (and all decisions as to
whether the vessel can operate safely in various
sea and weather conditions) shall remain at all
times with the OWNER, same as when trading for the
OWNER’s account.
5
Even if we accept Dahlen’s contention that Hodgen should
apply, the standard charged by the court in the present case does
not vary significantly from the standard stated in Hodgen and
certainly doesn’t rise to the level of demonstrating that “the
charge as a whole create[ed] substantial and eradicable doubt” that

17
 Though we do not accept Dahlen’s contention that Hodgen

applies, we also note that the standard articulated in Scindia and

Howlett does not explicitly apply to time-charterers. Kerr-McGee

Corp. v. MA-JU Marine Servs., Inc., 830 F.2d 1332, 1340 n.8 (5th

Cir. 1987) (suggesting that the duties prescribed in Scindia only

apply to true owners or other parties with similar dominion over

the boat); but see Woods v. Sammisa Co., 873 F.2d 842, 847 n.6 (5th

Cir. 1989) (recognizing Kerr-McGee but applying Scindia nonetheless

because the time-charterer may have similar duties under the time-

charter agreement and the time-charterer before the Court assessed

its own liability under the Scindia standard). Howlett, a case

based on the reasoning in Scindia, involved the duty owed by a

shipowner to a longshoreman who was injured while discharging bags

of cocoa beans from the cargo hold of a vessel. Howlett, 512 U.S.

at 94. The Supreme Court in Howlett stated that a vessel’s duty to

warn of latent defects in the cargo stow and area is a narrow one,

and that the duty only attaches to “hazards that are not known to

the stevedore and that would be neither obvious to nor anticipated

by a skilled stevedore in the competent performance of its work.”

Id. at 105. The Court also stated that the duty would only

the jury had been properly guided in its deliberations as the
standard of review requires. Johnson, 120 F.3d at 1315. The
Hodgen standard includes a duty in choosing the cargo, but not in
how groceries should be loaded into a box that will become cargo.
Therefore the district court’s charge was not erroneous even under
Hodgen.

18
encompass hazards that are known, or should be known to the vessel

through the exercise of reasonable care. Id. (citing Scindia

Steam, 451 U.S. at 167). Under the standard enunciated in Howlett,

the jury instructions would not be erroneous. Though Howlett deals

with the relationship between a longshoreman and a vessel owner,

the circumstances involved in Howlett are more akin to the present

situation than the circumstances involved in Hodgen.6 As we can

find no other case articulating the duty owed by a time-charterer

in such a situation, we hold that the district court did not abuse

its discretion by issuing the jury instructions that it did, and

that the instructions given by the district court did not create a

substantial doubt as to whether the jury was properly guided in its

deliberations as required by the standard of review.

The jury’s findings

Dahlen further alleges that the jury and district court erred

in finding no liability on the part of Forest in its capacity as

time charterer, and that the district court improperly denied his

motion for a new trial. This Court grants great deference to a

jury’s verdict and will reverse only if, when viewing the evidence

in the light most favorable to the verdict, the evidence points so

6
We do not intend, however, to indicate that Dahlen is a
longshoreman or stevedore or that Forest is the vessel owner. We
only hold that the situation involved is more compatible with the
duty enunciated in Howlett.

19
strongly and overwhelmingly in favor of one party that the court

believes that reasonable jurors could not arrive at any contrary

conclusion. Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998).

A motion for a new trial should not be granted unless the verdict

is against the great weight of the evidence, not merely against the

preponderance of the evidence. Carter v. Fenner, 136 F.3d 1000,

1010 (5th Cir. 1998).

Dahlen contends that the jury could not have found against him

because the evidence clearly established a duty to load the

groceries in a “first in-last out” manner or to direct the route in

accordance with how the groceries were loaded. Many of Dahlen’s

arguments simply rely on the fact that the jury instructions were

erroneous and ignores the many factors that come into play when a

jury is deliberating over the existence of negligence, such as

proximate cause. Dahlen’s conclusory allegations do not overcome

the extremely high burden placed on him and so the jury’s findings

are affirmed. See Vadie v. Mississippi State Univ., 218 F.3d 365,

372 (5th Cir. 2000) (quoting FED.R.CIV.P. 50(a)(1), stating that

“[a] jury verdict must be upheld unless ‘there is no legally

sufficient evidentiary basis for a reasonable jury to find’ as it

did.”).

The district court’s granting of Universal’s motion for summary
judgment

20
 Dahlen’s final issue on appeal is that the district court

erred in granting Universal’s motion for summary judgment. The

district court granted Universal’s second motion after initially

denying a first motion for summary judgment. In granting the

motion, the district court cited to Chavez v. Noble Drilling Corp.,

567 F.2d 287 (5th Cir. 1978), to support its conclusion that

Universal owed no duty.

This Court reviews a grant of summary judgment in the trial

court de novo, applying the same standard used by the trial court

in ruling on the motion under Rule 56 of the Federal Rules of Civil

Procedure. Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399

(5th Cir. 1996). Dahlen contends that the district court erred in

applying Chavez in the manner it did and, in the alternative, that

it should have applied Couch v. Cro-Marine Transport, Inc., 44 F.3d

319 (5th Cir. 1995). Universal contends that the district court

was correct in its application of Chavez and that it also owes no

duty under Louisiana law. We find the Chavez opinion to be

controlling.

In Chavez, the plaintiff, Anthony Chavez, suffered a back

injury on an oil platform located on the OCS. Chavez injured his

back when he lifted an unlabeled box of groceries weighing over one

hundred pounds. Chavez, 567 F.2d at 288. Chavez sued the platform

owner for failing to provide him with assistance and the grocery

supplier for failing to label the box as to weight. Id. The

21
grocer was granted its motion for summary judgment and Chavez

appealed. This Court stated that it was faced with choosing

between Louisiana law and federal maritime law as to what standard

of negligence to apply. Id. The court stated that under the

Louisiana law, the courts were to apply a “duty/risk” analysis to

determine whether a defendant’s conduct was the legal cause of the

plaintiff’s injury. Id. (citing Hill v. Lundin & Assoc., Inc., 256

So.2d 620 (La. 1972). Under this analysis, the court decided that

the grocer owed no duty to Chavez to label the boxes as to weight,

stating that the only duty owed was to properly pack the groceries.

Id. at 289. The court did not end its analysis there, however, as

it went on to determine whether the grocer would have been

negligent under federal maritime law. The court noted that in

federal maritime law, the courts have adopted the Restatement

Second of Torts approach of “legal cause.” Id. at 289. The court

thus concluded that this standard involves a concept of duty or a

legally-protected interest. Id. Having already found no duty to

exist, the court therefore found that the grocer was not negligent

under either standard.

Dahlen contends that because the Chavez court stated that

there was a duty to properly pack the groceries, the district court

should have found that there was a similar duty to pack them in the

order of the deliveries. This is an incorrect application of the

“duty/risk” analysis, however, which avoids the realities of the

22
situation and imposes artificial and unrealistic standards.

Chavez, 567 F.2d at 289. The record does not establish that

Universal had any affirmative duty to find out what order the

deliveries were to be made in. Also, the record fails to establish

that the “first in-last out” rule that Dahlen cites to is anything

more than a rule of convenience rather than one of safety. As the

district court pointed out, any duty that would be owed did not

encompass the harm in this situation. Summary judgment was

therefore properly granted to Universal.7

The district court’s dismissal of Forest’s cross-claim for
indemnity

The final issue on appeal is a cross-appeal brought by Forest

arguing that it was error for the district court to deny its

indemnity claim. The interpretation of indemnity clauses is a

matter of law that is reviewable de novo on appeal. Smith v.

Tenneco Oil Co., 803 F.2d 1386, 1388 (5th Cir. 1986) (citing Kemp

7
Even under the language that Dahlen contends should
control in this case, i.e., the Couch standard, no duty is owed by
Universal. In Couch, the court stated:

We hold that a loading stevedore must load the
cargo so that an expert and experienced stevedore
will be able to discharge the cargo with reasonable
safety by exercising reasonable care.

Couch, 44 F.3d at 327. Even if this standard is used, Universal
met its duty. Nothing in the record indicates that the way the
groceries were loaded made it so that an experienced stevedore
could not unload the cargo with reasonable safety.

23
v. Gulf Oil Corp., 745 F.2d 921, 924 (5th Cir. 1984)). District

court interpretations of insurance policies are also reviewed de

novo. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th

Cir. 1993).

Security contends that in order for Forest to prevail, it must

overcome two obstacles. First, Forest must prove that the injury

to Dahlen arose out of or was related to the performance of the

vessel charter. Second, Forest must prove that Dahlen, already

deemed a borrowed servant of Forest, was not a Forest employee for

the purposes of the insurance clause in the vessel time charter.

Forest contends that because it was sued in its capacity as the

time charterer of the vessel, they are entitled to coverage under

the Gulf charter agreement. Forest also contends that, though it

was found to be the borrowing employer for the purposes of

liability to Dahlen, it is not his employer under the insurance

policy, citing Johnson v. Amoco Prod. Co., 5 F.3d 949 (5th Cir.

1993) and Melancon v. Amoco Prod. Co., 834 F.2d 1238 (5th Cir.

1988) as support.

Security’s first argument that Forest cannot claim indemnity

because the injury did not relate to the performance of the vessel

is correct. Gulf’s charter agreement states, in clear and

unambiguous language, that indemnification under Gulf’s insurance

policy is triggered when an injury arises out of or is related to

24
the performance of the vessel during the charter. The agreement

states, in part:

Owner agrees to indemnify, defend and save harmless
Forest Group . . . from and against any and all
claims, demands, judgments, defense costs, or suits
. . . by any vessel, entity or person (other than
the employees of the CHARTERER) in any way arising
out of or related to the performance of this
contract . . ..

The district court found that the present case did not arise out of

or relate to the performance of the vessel during the charter and

that Forest, therefore, had no claim. We agree. The present

injury in no way related to the performance of the charter

contract. The grocery box was not loaded by Gulf but rather by

Universal. The box was not put on board the BILLY JAY by Gulf but

was loaded via a crane located at the Sabine Pass dock by a third

party, Grasso Production Management. Also, the box was not

unloaded from the BILLY JAY by Gulf but rather by Dahlen himself

using a crane located on the Forest platform. Dahlen never boarded

the BILLY JAY and no crew members of the BILLY JAY ever went on the

platform to assist Dahlen in taking the groceries out of the

grocery box. Therefore, under the terms of the charter agreement

itself, Forest is not entitled to indemnification.

Security’s second argument equally justifies a finding in its

favor. The insurance policy states, in relevant part:

The Assurer hereby undertakes to make good to the
Assured [Forest] . . . all such loss and/or damage
and/or expense as the Assured shall as owners of
the vessel named herein have become liable to pay

25
 and shall pay on account of the liabilities, risks,
events and/or happenings herein set forth:

(1) Liability for loss of life of, or personal
injury to . . . any person, excluding however,
unless otherwise agreed by endorsement hereon,
liability under any Compensation Act to any
employee of the Assured.

As Forest is being sued under the LHWCA, the only question becomes

whether Dahlen was its employee for purposes of the indemnity

provision.8 Forest tries to distinguish the finding that it is

Dahlen’s borrowing employer on the grounds that Johnson and

Melancon both allowed the platform owner to be considered the

borrowing employee for the purposes of the LHWCA but not for the

purposes of indemnity between the borrower and the borrowee, i.e.,

the entity that lent the employee to Forest. As Security points

out, however, Forest is not seeking indemnity from the company that

it borrowed Dahlen from (in this case Island), but is instead

seeking indemnity from a third party that for all accounts is

unrelated in any way to Dahlen.9 The reasoning of the district

court that Forest was the borrowing employer should therefore be

upheld.

8
As stated above, the charter agreement also contains a
similar provision providing indemnity to any employee other than
employees of the charterer.
9
Dahlen was never employed by Gulf and was never even
aboard a ship at any time during the relevant events. He unloaded
the grocery box with a crane and was not injured until the box was
on the platform.

26
 CONCLUSION

Having heard the oral arguments of the parties, and having

carefully reviewed the record of this case and the parties’

respective briefs and for the reasons set forth above, we conclude

that the district court’s jury instructions were not erroneous and

that the jury’s verdict should remain undisturbed. We also

conclude that the district court did not err in granting

Universal’s motion for summary judgment or in dismissing Forest’s

cross-claim for indemnity. We therefore AFFIRM the district

court’s decision.

AFFIRMED.

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