United States Court of Appeals,
Fifth Circuit.
No. 91-3526.
In re RIVER TRANSPORTATION ASSOCIATES, etc., et al. and Marine Equipment
Management, etc., et al., Appellees,
v.
Susan WALL, individually and as administratrix, of the estate of Harold Wall, Mary Joan Wall,
Conticarriers and Terminals, Inc., and Dorothy Martin Stewart, tutrix for Sandra Lynn Wall and
Crystal Ann Wall, Wanda Cheramie, etc., et al., Appellants.
In re CONTICARRIERS AND TERMINALS, INC., and Susan Wall, individually and as
Administratrix of the estate of Harold Wall and Mary Joan Wall and Dorothy Martin Stewart, tutrix
for Sandra Lynn Wall and Crystal Ann Wall, Wanda Cheramie, etc., et al., Appellants,
v.
RIVER TRANSPORTATION ASSOCIATES and Marine Equipment Management Corporation,
Appellees.
In re PROGRESSIVE BARGE LINE, INC., as owner of the M/V GAZOO in a cause of
exoneration from or limitation of liability, Appellant,
v.
RIVER TRANSPORTATION ASSOCIATES and Marine Equipment Management Corporation,
Appellees,
v.
Susan WALL, individually and as administratrix of the estate of Harold Wall and Mary Joan Wall,
Dorothy Martin Stewart, Tutrix for Sandra Lynn Wall and Crystal Ann Wall and Conticarriers and
Terminals, Inc., Wanda Cheramie, etc., et al., Appellants.
Oct. 21, 1993.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, REYNALDO G. GARZA, and JONES, Circuit Judges.
WISDOM, Circuit Judge.
I.
Harold Wall, captain of the M/V Gazoo, disappeared at about 10:15 on the night of
September 12, 1989, making his way to shore across barges moored together in the Mississippi River
at New Orleans. The M/V Gazoo, owned and operated by Progressive Barge Lines, Inc.
("Progressive"), was tied up outside a fleet of barges being repaired by the ContiCarriers Fleet
("ContiCarriers"), a repair facility. One of the barges, the RTA-9, was owned by River
Transportation Associates ("RTA") and operated by the Marine Equipment Management Corporation
("MEMCO") under a bare boat charter. The RTA-9 had on its deck and sides a residue of fertilizer
from its previous cargo, making it very slippery to traverse, even for the crewmen wearing the
required oil resistant, steel-toed deck shoes. There was a gap of about 18 inches between that barge
and the Barge CCT-401, owned by ContiCarriers. No one saw Captain Wall fall. Two days later,
his body was found floating in the river. The cause of his death was asphyxiation by drowning.
It is common knowledge that harbor workers and others customarily cross from one barge
to another to reach the dock where barges are moored. The custody of the RTA-9 was relinquished
to ContiCarriers to make limited repairs. 1 We do not know if the spilled fertilizer actually caused
Captain Wall's fall, but the district court concluded that "the weight of evidence and opinion in this
case.... is that Captain Wall slipped when stepping across Barge CCT-401 onto Barge RTA-9 ...".
The court's opinion granting the RTA-MEMCO's motion to dismiss appears to have been based on
the premise that RTA and MEMCO were relieved of any liability for an existing hazard when they
turned over the custody of the Barge RTA-9 to ContiCarriers—even to make limited repairs
irrelevant to the accident.
The M/V Gazoo was moored on the outboard side of Barge CCT-401, which was moored
outboard of Barge RTA-9. The RTA-9 was outboard of a ContiCarriers' work barge.2 There was
a gap of approximately 18 inches between the CCT-401 and the RTA-9. At the time Captain Wall
was last seen he was walking from the port bow (outboard side) of the CCT-401 to about the midline
on the bow. Captain Wall was wearing cowboy boots, not the required oil-resistant, steel-toed deck
shoes, and he was not wearing a work vest nor carrying a flashlight.
It is uncontested that MEMCO routinely inspected barges at ContiCarriers during the course
1
The RTA-9 had sustained minor damage to its starboard stern knuckle when it was struck by
another fleet boat.
2
The general configuration of the barges and M/V Gazoo at the time of the accident is as
shown below:
of repairs using surveyors or other agents. It is uncontested that none of the parties gave instructions
to ContiCarriers to clean the RTA barge although ContiCarriers routinely offered such services. The
principal issue before this Court is whether the RTA and MEMCO, the owner and the operator of
Barge RTA-9, can disclaim liability for a hazardous condition upon transferring custody of the vessel
to a repair facility for repairs unrelated to the hazard.
II
RTA and MEMCO filed a complaint seeking exoneration from or limitation of liability. 46
U.S.C. § 182, et seq. ContiCarriers and Progressive each filed a separate complaint seeking
exoneration from or limitation of liability. The district court consolidated these actions. The
survivors of Captain Wall filed answers and claims in the three limitation actions. 3 Some of the
parties filed various state court suits which the district court stayed by orders issued in the limitation
proceedings.
RTA and MEMCO filed a motion for summary judgment seeking exoneration from all claims
asserted against them arising out of Captain Wall's death. ContiCarriers and Progressive also filed
motions for summary judgment. On February 4, 1991, the district court issued a minute entry ruling
on the motions for summary judgment, exonerating RTA and MEMCO from all liability, but denying
the motions of ContiCarriers and Progressive. RTA and MEMCO then filed a motion for entry of
judgment under Fed.R.Civ.P. 54(b), allowing a judgment upon multiple claims or involving multiple
parties. The court denied this motion and a motion for reconsideration. Later, however, the district
court directed that a Rule 54(b) judgment be entered in favor of RTA and MEMCO dismissing the
claims against them. This appeal followed.
III
A. With respect to the motion for a summary judgment filed by Progressive, Captain Wall's
Jones Act employer, the district court found that there was "not a complete absence of proof of the
essential elements of the claimants' causes of action herein and Progressive's assertions that this
3
The decedent's widow, his mother, two acknowledged illegitimate children (both minors), and
three children of an earlier marriage, filed answers and claims in the limitation actions. The
widow was appointed administratrix of the decedent's succession.
matter is ripe for summary judgment are erroneous".4 We agree.
B. The district court also dismissed the motion of ContiCarriers for summary judgment
because there were material questions of fact in dispute. As the court stated, "a finder of fact can
draw reasonable inferences from the witnesses' testimony and physical evidence at the scene to draw
a reasonable legal inference as to how, where, and why this accident took place on the night of
September 12, 1989."5 We agree.
C. The district court granted summary judgment of dismissal in favor of RTA and MEMCO.
We have difficulty with this portion of the court's decision.
The district court explained this portion of its decision as follows:
As regards the motion for summary judgment of RTA and Memco, a barge owner and/or
operator who turns his barge over to a repair facility is not liable for injuries allegedly
caused by cargo on the decks of the barge. See, e.g., Stass v. American Commercial Lines,
Inc., 720 F.2d 879 (5th Cir.1983); Meserole v. M/V FINA BELGIQUE, 736 F.2d 147 (5th
Cir.1984). [Emphasis added] It is the repair facility itself that is obliged and responsible for
erecting safeguards and remedying unsafe conditions on a barge delivered for such services.
See 29 C.F.R. §§ 1915.73, 1915.91, 1915.92. In addition, as Captain Wall was a Jones Act
seaman within the scope of his employment at the time of this casualty, he possesses the full
range o f seaman's remedies against his own employer and cannot maintain a Sieracki-type
unseaworthiness action against a vessel on which he was not a crew member. See Smith v.
Harbor Towing & Fleeting, Inc., 910 F.2d 312, reh. and reh. en banc denied, 917 F.2d 559
(5th Cir.1990); Bridges v. Penrod Drilling Co., 740 F.2d 361 (5th Cir.1984). Summary
judgment in favor of RTA and Memco is appropriate under the facts of this case.
ContiCarriers clearly had primary control and custody of Barge RTA-9 for several days prior
to this accident.6
The trial court granted summary judgment in favor of RTA and MEMCO based on two
LHWCA cases: Stass and Meserole. Because the Walls have no unseaworthiness claim against RTA
and MEMCO (Wall was not a member of the crew of the RTA-9 and not a longshoreman) they
brought their claims not under the Jones Act or the LHWCA but under general maritime law, which
imposes a general burden of reasonable care on a vessel owner toward those who come aboard the
4
A Jones Act employer is liable for even the slightest possible negligence. Moreover, the
plaintiff's burdens of proving causation is "featherweight". See authorities cited in the
memorandum decision of the district court.
5
As the district court stated in its memorandum decision "ContiCarriers had a statutory duty to
erect safeguards and remedy unsafe conditions if allowing anyone to enter upon Barge RTA-9."
6
Minute Entry at 6-7.
vessel. This standard is similar to that imposed by LHWCA, which may be why the district court
applied Stass and Meserole. These cases are superficially analogous but the rule they express does
not cover this case. The difficulty with the district court's decision is that it produces a new rule that
would have to be stated in these unacceptable terms: Under federal maritime law a vessel owner may
remain legally liable for certain dangerous conditions on the vessel even two years after it has
relinquished control over that vessel to a third party; but a vessel owner is not liable in any
circumstances for dangerous conditions it may have created or tolerated that may have caused an
injury five days after it relinquished control of the vessel to a fleet operator for repairs, even though
the dangerous condition is outside the area to be repaired. Such a rule is incompatible with such
established precedents as Kermarec7 and Verdin8 and disregards the inapplicability (on many counts)
of Stass9 and Meserole.10
In Kermarec, erasing the distinction between licensees and invitees, the Supreme Court held
that "the owner of a ship in navigable waters owes to all who are on board for purposes not inimical
to his legitimate interests the duty of exercising reasonable care under the circumstances of each
case".11 In footnote 10 supporting this sentence the Court cited five cases decided by courts of
appeals involving "a seaman crossing another vessel to reach the pier".12
Stass and Meserole were cases in which repair workers were injured on vessels that were
being repaired. (Wall was not a repair worker). Their injuries were either caused by the condition
that was to be repaired or occurred in the vicinity of the repairs. These cases hold that a vessel owner
does not bear the duty of keeping his ship hazard-free "when the requested repairs would remedy the
7
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d
550 (1959).
8
Verdin v. C & B Boat Co., Inc., 860 F.2d 150, reh. denied, 862 F.2d 874 (5th Cir.1988).
9
Stass v. American Commercial Lines, Inc., 720 F.2d 879 (5th Cir.1983), reh. denied, 724
F.2d 976 (5th Cir.1984).
10
Meserole v. M/V FINA BELGIQUE, 736 F.2d 147 (5th Cir.1984).
11
358 U.S. at 632, 79 S.Ct. at 411.
12
Id.
hazards which cause the injury".13 In Stass the Court found that "cleaning the areas to be repaired
... was ... a necessary first step in the work" and that the slippery footing caused by the cargo was a
risk" inherent in carrying out the contract for repairs".14 In other words, one cannot be found to have
acted unreasonably in not preventing a worker's exposure to a condition that he was hired to repair.
This holding and the logic supporting it do not reach cases involving dangerous conditions outside
the areas of repair. The fertilizer that Captain Wall may have slipped on was not located near the
damage to the vessel that ContiCarriers was in the process of repairing.
Stass and Meserole also contained findings that the repair contractor was either contractually
or customarily obligated to clean the vessel. This case contains no such findings. Further,
ContiCarriers notes that RTA-MEMCO declined to accept the contractual offer to clean the RTA-9;
RTA and MEMCO routinely used its own agents to inspect its barges undergoing repairs. Thus, even
if LHWCA jurisprudence did apply generally, Stass and Meserole did not mandate the summary
judgment awarded below. We would have to find that, as a matter of law, a repairer who has had
control of a vessel for five days is in a better position to prevent accidents, such as t he one in this
case, than the vessel owner—so much a better position that the vessel owner is entirely absolved of
its duties to keep its vessel free of hazards to life and limb. This rule would represent a real change
in the law.
We cannot rely on LHWCA cases (Stass and Meserole, e.g.) to hold that the repairer's duty
under the OSHA regulations erases the vessel owner's duty under Kermarec. There is a contractual
element to a LHWCA case that is not applicable here. The Court tried to strike a balance between
the vessel owner's duty of reasonable care over his vessel and the stevedore's duty of workmanlike
performance on the vessel. This case is not about the conflict between the vessel owner and the
fleeter, or about balancing their duties against each other. The district court did not hold that RTA-
MEMCO could not be liable because ContiCarriers would be liable. The court held only that RTA-
MEMCO could not be liable to Captain Wall because it owed him no duty at all. Stass and Meserole
13
Stass, 720 F.2d at 882.
14
Id. at 884.
do not offer sufficient support for this holding.
As noted, the rule flowing from the district court decision conflicts with another Fifth Circuit
opinion, Verdin v. C & B Boat Co., Inc.15 In Verdin, this Court held that a vessel owner's duty to
exercise reasonable care is not eliminated when it relinquishes custody of its vessel to a third-party
contractor. The Court held that a barge owner could be liable for negligence in failing to repair a
dangerous condition that caused the death of a tugboat captain. Verdin may be distinguished in that
it involved a condition that had been left unrepaired for over two years; in contrast, in this case,
although it concerned a common problem—cargo residue remaining on a barge deck—the hazard had
existed for only a few days. Verdin, however, is the only relevant case that arose under general
maritime law and not under the LHWCA. It requires us to acknowledge that the liability of a vessel
owner may survive the lengthy control over its vessel by a third party.
In Subingsubing v. Reardon Smith Line, Ltd.,16 the Court of Appeals for the Ninth Circuit
held that a vessel owner owes a duty of "reasonable care to keep the deck clear of dangerous and
non-obvious tripping hazards at the time that the longshoreworker comes on board".17 (Like Stass
and Meserole, Subingsubing arose under the LHWCA and not under general maritime law.) The
Court reversed a summary judgment holding that the vessel owner owed a duty to the stevedore to
inspect for or remove a small piece of wood on the deck wit hin the confines of cargo operations
assigned to the stevedore.
In the instant case RTA-9 had a dangerously unsafe hazard on a walkway known to be used
by Captain Wall and others.
IV
We have considered all of the arguments of the parties, including those not discussed in this
opinion. We affirm the judgment of the district court, except with respect to its summary judgment
in favor of RTA and MEMCO. We reverse t hat judgment and remand the case for proceedings
15
860 F.2d at 155-56.
16
682 F.2d 779 (9th Cir.1982).
17
Id. at 782.
consistent with this opinion.
EDITH H. JONES, Circuit Judge, dissenting:
Although my esteemed colleagues have persuasively stated their reasons for sending this case
to the jury on the liability of MEMCO as the owner of barge RTA-9, I cannot agree that MEMCO
had a duty to remove fertilizer from the deck of its barge under the facts before us. The barge owner
was not responsible for its barge's being in the ContiCarriers fleet on the date of the accident, and
under these circumstances, MEMCO had no duty to clean its deck of grain residue. I respectfully
dissent.
Preliminarily, I agree that Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625,
79 S.Ct. 406, 3 L.Ed.2d 550 (1959), is generally applicable to govern MEMCO's liability; therefore,
a barge owner is not relieved of its duty of care as a matter of law anytime it turns over a barge to
a repair facility. I also agree that the Stass and Meserole cases, being founded on § 905(b) liability,
are distinguishable. But, read fairly, the district court decision does not suggest that Kermarec is not
applicable. Rather, the district court indicated the narrowness of its holding by stating that summary
judgment was "appropriate under the facts of this case." Thus, instead of holding that barge owners
may never be liable for injuries that occur while a barge is in the custody of the repair facility, the
district court held only that under the particular circumstances of this case, the barge owner cannot
be held liable for this accident. Kermarec likewise establishes a shipowner's duty to exercise
reasonable care "under the circumstances" of a case.
When barge RTA-9 was originally placed in the Carrolton Fleet on August 8, 1989, to await
offloading, it was loaded with fertilizer. ContiCarriers offered barge cleaning services at its facility
for a fee. MEMCO did not request ContiCarriers to clean the RTA-9 while it was in the Fleet,
however, because it normally made its own arrangements for cleaning, if needed, after offloading.
When the RTA-9 was placed in the Fleet, MEMCO had no intention of returning the barge to the
Fleet after offloading, and MEMCO apparently saw no reason to have the barge cleaned before it
discharged its cargo.
While the RTA-9 was still in the Fleet, Progressive damaged the barge during handling such
that repairs would be required once the barge was offloaded. It was for this reason alone that the
RTA-9 was returned to the fleet on September 7, 1989, after its cargo had been discharged. Unlike
the previous month, the RTA-9 was not placed in the fleet on MEMCO's account. The damages to
the barge had been caused by ContiCarriers' agent, and ContiCarriers was undertaking for its own
account to repair the RTA-9 and return it to MEMCO in seaworthy condition. Under these unusual
circumstances, it is surprising to me that this court would impose on MEMCO a duty to clean the
barge when the necessity to clean the barge, if any existed, was brought about entirely by the
wrongful conduct of ContiCarriers or its agent which caused the damage.1
The majority rely on Verdin v. C & B Boat Co., 860 F.2d 150 (5th Cir.1988), for the
proposition that a barge owner may be held liable for a hazardous condition on a barge it has turned
over to another company. I do not disagree with that general rule, although Verdin did not squarely
address the point. Verdin's facts are distinguishable, however, because the owner had failed for some
time to remedy obvious hazards on its barge covers while knowing the barge was in use.
Even if MEMCO had a duty to remove fertilizer residue from the decks of the barge before
it went back to ContiCarriers in September, I think the evidence of causal connection between the
existence of the residue and Captain Wall's injury is probably too speculative to support a verdict for
his relatives. This is not a Jones Act case as to MEMCO, and more than mere speculation over the
cause of death should be necessary to justify a verdict for general marit ime negligence. See In re
Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir.1991). I respectfully dissent.
CA (93) 5537, SIZE-19 PICAS,TYPE-PDI
1
ContiCarriers was apparently unwilling to clean the barge at its own expense. The district
court also relied on OSHA regulations requiring ContiCarriers to erect safeguards and remedy
unsafe conditions on barge walkways and work areas, 29 C.F.R. §§ 1915.73, 1915.91, 1915,92
(1992). I think the regulations significantly recognized that ContiCarriers, not MEMCO, was best
able to determine whether any barge placed in its fleet would be used as a crosswalk for visitors
or workers and could expose them to obviously hazardous conditions such as slipperiness. Yet
ContiCarriers' incentive to maintain a safe workplace may be diminished if liability for injury
caused by an obvious crosswalk-type hazard, created by its decision to place the barges in a
particular array, can be shunted onto an owner like MEMCO. It is unnecessary to rely solely on
the OSHA regulations here, however, so I note their pertinence but would affirm the district court
on the narrower basis stated in the text above.