Romero v. Cajun Stabilizing Boats Inc.

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

FILED
January 22, 2009

No. 08-30017 Charles R. Fulbruge III
Clerk

KEN ROMERO

Plaintiff - Appellant
v.

CAJUN STABILIZING BOATS INC; MR COURT

Defendants - Appellees

Appeal from the United States District Court for the
Western District of Louisiana

Before WIENER, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
A welder was injured while working on a lift boat. He challenges
jurisdiction and the district court’s entry of summary judgment. We affirm in
part and reverse in part.
I.
In June 2005, Ken Romero, a marine welder, worked aboard M/V MR
COURT (“the COURT”), a jack-up service boat owned by Cajun Stabilizing
Boats, Inc. (“Cajun”). Romero worked on the vessel’s rudders. He accessed the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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job site through a manhole on the vessel’s deck. He then had to climb down five
or six iron supports welded into the hull. Romero had accessed the rudder room
many times while working on the COURT. There was grease in the hull of the
COURT, which the workers tracked onto the iron supports and the deck. Romero
knew that the grease was everywhere, including his own boots. Romero’s
employer, Marine Industrial Fabricators, Inc. (“MIF”), placed a steel barricade
around the open manhole to prevent workers from falling in. The barricade was
not welded to the deck. At some point, Romero asked Cajun’s owner, Thomas
Kleinpeter (whom Romero referred to in his deposition as “Tommy Hebert”), for
permission to weld the barricade to the deck. Kleinpeter refused.
On June 6, 2005, Kleinpeter told Romero to stop working because of rain
and lightning in the area. He told Romero to begin working again once the rain
stopped. Kleinpeter then left, and Romero was alone on the COURT. When the
rain stopped some time later, Romero returned to work. The vessel was still
greasy, and was also wet from the rain. Romero testified that Cajun’s deckhands
typically cleaned up the grease, but did not show up to work on the day of his
accident. Romero sat at the edge of the manhole and placed his feet on the iron
supports. He also used the barricade for support instead of the COURT’s
permanent railing, contrary to his normal practice. As he descended, his boot
slipped. Romero held onto the steel barricade, but it gave way. Romero let go and
fell to the floor of the rudder room, injuring his knee.
Romero sued Cajun for negligence under the Longshore and Harbor
Workers’ Compensation Act. See 33 U.S.C. § 905(b).1 The district court granted
summary judgment for Cajun. Romero appeals.

1
Romero received no-fault worker’s compensation benefits under the Act from MIF.

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II.
Romero first avers that the district court did not have jurisdiction because
the COURT was not a “vessel in navigation.” Before being repaired, the COURT
was “practically capable of maritime transportation.” See Stewart v. Dutra
Constr. Co., 543 U.S. 481, 497 (2005). Kleinpeter said this in his deposition.
Romero notes that the COURT was dry-docked for several weeks before his
injury. This brief hiatus from service for routine repairs did not terminate
“vessel in navigation” status. See Chandris Inc. v. Latsis, 515 U.S. 347, 374-75
(1995). The district court does not immediately lose jurisdiction when there is no
water under the vessel’s rudders. The cases relied upon by Romero are not on
point. See Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 297-303 (5th
Cir. 2008); Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 957-58 (5th Cir.
1971). Both cases concern watercraft which had never entered active service. In
contrast, the COURT was a working vessel before Romero’s injury. The district
court had jurisdiction.
III.
We review a grant of summary judgment de novo, viewing evidence in the
light most favorable to the nonmoving party and drawing reasonable inferences
in that party’s favor. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902
(5th Cir. 2000). Summary judgment is proper if the evidence shows “that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). A vessel owes narrow duties
under § 905(b) to maritime workers. See Scindia Steam Nav. Co. v. De Los
Santos, 451 U.S. 156, 172 (1981). The district court held that Cajun was entitled
to summary judgment on all duties. Romero now argues that there is a genuine
issue whether Cajun breached the “turnover duty” and the “active control” duty.

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A.
When turning his vessel over to a stevedore or marine contractor, the
owner has no duty to warn of, or remedy, an open and obvious hazard. Kirksey
v. Tonghai Mar., 535 F.3d 388, 392-96 (5th Cir. 2008). The hazard to Romero
was open and obvious. He knew that slippery anti-corrosive compounds are
common in the rudder rooms of lifts boats such as the COURT, and he was
aware that the vessel was wet from the rain. Therefore, there can be no genuine
issue of material fact that Cajun owed no turnover duty to warn MIF or Romero
of the slippery condition, or to remedy that condition.
B.
The vessel may still be held liable “for injury caused by hazards under the
control of the ship.” Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th
Cir. 1992) (citation omitted). “The vessel has a duty to ‘exercise due care to avoid
exposing longshoremen to harm from hazards they may encounter in areas, or
from equipment, under the active control of the vessel during the stevedoring
operation.’” Id. (quoting Scindia, 451 U.S. at 167).2 It is no defense that the
hazard was open and obvious. Id. The daily presence of the vessel’s agents to
apprise the progress of work or to ensure some degree of orderliness is not
“active control.” Fontenot v. United States, 89 F.3d 205, 208 (5th Cir. 1996)
(quoting Futo, 742 F.2d at 210). The key issue is whether the work area in
question has been “turned over” to the contractor. Id. In a recent unpublished
opinion, we said that for an “active control” duty to arise, “the vessel must
exercise active control over the actual methods and operative details of the
longshoreman’s work.” Pledger v. Phil Guilbeau Offshore, Inc., 88 F. App’x 690,
692 (5th Cir. 2004) (unpublished) (citation omitted); see also THOMAS J.
SCHOENBAUM, ADMIRALTY & MARITIME LAW § 7-10 (4th ed. 2004) (same).

2
Analogous duties exist between a vessel and marine workers such as Romero. See Futo
v. Lykes Bros. S.S. Co., 742 F.2d 209, 213 n.7 (5th Cir. 1984).

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In Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505 (5th Cir. 1984),
a longshoreman slipped in an oil slick in the course of obtaining gear necessary
for his work. Id. at 506-07. The crew of the vessel had been informed of the
hazard, yet it did not clean the area. Id. at 508. We affirmed the district court’s
judgment, rendered after a bench trial, that the vessel breached an active control
duty to the longshoreman. Id. at 509. The duty arose because the longshoreman
had to “venture outside of the area of normal and routine cargo operations to
areas within the ship’s control and was forced to cross the oil slick in a location
outside of his work area.” Id. In Fontenot, a marine worker was injured when he
slipped on a hatch covered in hydraulic oil and rainwater. 89 F.3d at 207-08. We
held that the vessel owner (the federal government) did not have active control
over that area because the vessel was turned over to a contractor a month
earlier. Id. at 208. The contractor created the hazard and later fixed it because
the vessel had no crew of its own. Id. Government agents were present on
occasion, but they made only minor requests, such as asking a foreman to
straighten a crooked steel wheel, and asking the contractor to “improve its
housekeeping” by not leaving garbage in engine spaces. Id. Likewise, in
Pimental, we held that the vessel had no active control duty to remove oil and
grease from a crane housing because the area had clearly been turned over to
stevedore. 965 F.2d at 15-17.
Romero testified that Kleinpeter closely supervised his work. Kleinpeter
once remained in the rudder room with Romero for an entire day and instructed
him on how to perform a weld. Hours before Romero was injured, Kleinpeter
instructed him to stop working due to rain and lightning in the area, and to
resume working once the rain stopped. Romero complied. Romero also testified
that while he knew the vessel was greasy and wet, he did not clean the area up
before returning to work because Cajun’s deckhands normally cleaned the vessel,
and it was not his “job title to do that.” Another time—Romero did not specify

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when—Romero mentioned the grease to Kleinpeter, and Kleinpeter said it was
“no problem.” These assertions, which we must accept as true at this stage,
suggest that Cajun retained “active control” of the work area. Kleinpeter was not
merely an occasional presence on the COURT; he closely oversaw and directed
“operative details” of Romero’s work. See Pledger, 88 F. App’x at 292. Kleinpeter
also made decisions affecting the safety of Romero’s work area. Cajun provided
the deckhands who cleaned the vessel; there is no indication that MIF was ever
put in charge of keeping the work areas clean. Cf. Fontenot, 89 F.3d at 208. And,
like the longshoreman in Turner, Romero had to traverse greasy and wet areas
which had not been turned over to MIF in order to reach his work site. See 744
F.2d at 509. These allegations create a genuine issue of fact as to whether Cajun
had active control of the vessel and Romero’s work area.
Cajun’s counter-arguments are unpersuasive. Cajun notes that Romero
was alone on the COURT when he was injured. Just as a duty is not triggered
by the mere presence of the vessel’s agent, we do not believe that an active
control duty switches off the minute the agent leaves. Cajun also suggests that
Romero alone decided to return to work. This ignores Romero’s statement that
Kleinpeter had previously instructed him to return to work after the rain ceased.
Cajun also says that MIF erected and maintained the barricade. However, at
some point, Romero asked Kleinpeter if he could weld the barricade to the deck,
and Kleinpeter refused.3 The record, consisting chiefly of Romero’s deposition,
is sparse. However, we believe that Romero has presented sufficient evidence to
create a fact question as to whether Cajun owed him an active control duty
under § 905(b) and breached such duty.

3
Romero was asked by his attorney: “I want to be real clear about something. This idea
of welding down barricades, you talked to Tommy about that before the accident, didn’t you?”
Romero answered: “Yeah.”

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IV.
We hold that federal jurisdiction exists in this case, and that, as a matter
of law, Cajun did not owe Romero a turnover duty to warn him of the slippery
conditions on the vessel. However, Romero’s deposition demonstrates that there
is a genuine issue of material fact of whether Cajun retained active control of
part or all of the COURT.
AFFIRMED in part, REVERSED in part, and REMANDED.

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