Pledger v. Phil Guilbeau Offshore, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS February 10, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk

No. 03-30514

KENNETH PLEDGER, individually and on behalf of his minor children
Darnell Pledger, Rachel Robinson, Keira Johnson, Ivan Pledger,
Storn Pledger and Jilasea Henry; TRIXINE PLEDGER,

Plaintiffs-Appellants,

VERSUS

PHIL GUILBEAU OFFSHORE, INC., ET AL,

Defendants,

PHIL GUILBEAU OFFSHORE, INC.,

Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Louisiana
(02-CV-1796-L)

Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:1

Plaintiff, Kenneth Pledger, appeals the dismissal on summary

judgment of his suit brought under 33 U.S.C. § 905(b) against the

owner of the supply boat on which he was injured while loading

cargo. The district court found no material facts in dispute and

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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this opinion should not be published and is not precedent except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.
held that none of the duties imposed on shipowners by Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68

L.Ed.2d 1 (1981), were breached. Plaintiff appeals the decision

only as to the second (active control) and third (duty to

intervene) duties. After careful de novo review of the record and

full consideration of the written and oral argument of the parties

we affirm, essentially for the reasons given by the district court.

Plaintiff was a member of a three-man Halliburton crew which

had completed work on a well from a stationary lift boat. The crew

was in the process of loading Halliburton’s equipment from the

lift boat to the deck of the Defendant’s supply boat. In the

process of so doing, Plaintiff slipped in algae growing on the

wooden deck of the supply boat, and was injured. Before beginning

the loading each member of the Halliburton crew was aware of the

algae on parts of the deck, discussed it, and determined that it

did not present a hazard to them in the loading operation. During

the loading the seas were somewhat rough requiring the Captain of

the supply boat to remain at the stern controls and constantly

maneuver the boat to keep it in position next to the lift boat so

that the Halliburton equipment could be lowered to the deck by the

lift boat crane. The evidence varied as to whether the Captain

directed the location at which only the largest and heaviest piece

of equipment was placed, or directed the location of each piece of

equipment. The district court accepted Plaintiff’s version of

those facts. There is no evidence that the Captain was aware of

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any algae on the deck during this operation, although he did know

that at other times algae had appeared on the wet parts of the

deck.

Plaintiff’s primary contention on appeal is that the shipowner

remained in active control of the vessel and the loading operation

because the Captain directed the location at which each load was to

be stowed and operated the vessel to keep it in position next to

the lift boat. However, as the district court pointed out,

determining placement of the cargo does not constitute active

control. Clay v. Daiichi Shipping, 237 F.3d 631 (5th Cir. 2000).

Neither does simply maintaining the position of the ship while the

stevedore and lift boat personnel perform all other duties in

connection with the loading. For the shipowner to be liable under

the second Scindia duty the vessel must exercise active control

over the actual methods and operative details of the longshoreman’s

work. Breaux v. United States, 1996 WL 626328 at *4 (E.D. La.

1996). This record reflects no evidence of such control.

With respect to the third Scindia duty (to intervene) the

vessel owner can rely on the stevedore’s expert knowledge,

including the stevedore’s judgment that a condition, although

dangerous, is safe enough to permit work to continue. Greenwood v.

Societe Francaise De, 111 F.3d 1239, 1249 (5th Cir. 1997). The

vessel owner has a duty to intervene only when it has actual

knowledge that the stevedore is using an unsafe practice which is

creating a hazard because the stevedore intends to work in the face

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of the hazard and cannot be relied on to remedy it. See Pimental

v. LTD Canadian Pacific Bulk, 965 F.2d 13, 15 (5th Cir. 1992). The

owner’s responsibility is “narrow and requires something more than

mere shipowner knowledge of a dangerous condition.” Singleton v.

Guangzhow Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996).

Plaintiff’s evidence does not create an issue of the Captain’s

actual knowledge, but only that he should have known of the

presence of the algae. As the district court also held, however,

even if knowledge was established the evidence shows that the

stevedore did not consider the algae dangerous, or that it created

an unreasonable risk of harm to them or their operation. There is

no evidence that the shipowner should have thought otherwise.

The judgment granting summary judgment in favor of the

shipowner is AFFIRMED.

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