Fifth Circuit: Who “Invited” Plaintiff on the Vessel?

The U.S. Fifth Circuit Court of Appeals recently addressed competing indemnification provisions in a maritime contract.  A pipeline operator, W&T Offshore, hired a diving contractor, Triton Diving Services, for an offshore pipeline decommissioning project.  Triton provided their own vessel and personnel, but operated under W&T’s instruction pursuant to a Master Service Contract.  W&T also hired a safety contractor, Tiger Safety, to assist with filtration of pipeline fluids.  An employee of Tiger was working on Triton’s vessel under supervision of W&T when he fell and injured himself. 

The Tiger employee sued both W&T and Triton in U.S. District Court.  W&T and Triton filed cross-claims against one another seeking defense and indemnity based on their Master Service Contract.  W&T had agreed to indemnify Triton for personal injury claims brought by members of the “W&T Group”.  Likewise Triton had agreed to indemnify W&T for personal injury claims brought by members of the “contractor group”.  The contract defined the “contractor group” to include Triton’s “invitees on the work sites” and “W&T Group” included W&T’s “invitees on the work sites”.  The indemnification question therefore boiled down to whether the Tiger employee was an “invitee” of W&T or Triton.  At the time of the accident, the Tiger employee was working on Triton’s vessel under the direction of Triton personnel, but he was hired by W&T and was being monitored by a W&T employee also on the vessel. 

The District Court sided with Triton, finding that the plaintiff was W&T’s invitee and W&T appealed to the Fifth Circuit.  On appeal, the Court confirmed that the Master Service Contract was a maritime contract and turned to Fifth Circuit precedent that defined “invitee” as “a person who goes onto premises with the expressed or implied invitation of the occupant, on business of the occupant or for their mutual advantage”.  The Court concluded that even though the plaintiff was injured on Triton’s vessel, he was a W&T invitee because he was hired by W&T and was working under the supervision of W&T.  The Fifth Circuit affirmed the District Court’s finding that W&T owed Triton defense and indemnity. 

Grogan v. W&T Offshore   

High Water and Duties of Barge Owners and Fleeters

High water is here, and it’s going to get higher before it starts dropping.  In response the U.S. Coast Guard has issued a number of river closures, restrictions and advisories.  With the Carrollton Gauge showing a stage of close to 16 feet and rising, the Captain of the Port has ordered that vessel-to-vessel transfers are prohibited unless specifically approved in advance by his office.  Further, unless moored to a shoreside facility or mooring buoys all deep draft vessels must have three means to hold position.  An example would be two fully functional operational anchors and the propulsion system in standby.  Also, vessels are prohibited from entering South Pass from the Gulf of Mexico if it has a speed of less than 10 miles per hour.  Safety zones and traffic control measures and high water safety advisories are in place.  Concurrently, high water regulations found at 33 CFR 165.803(m), which apply to fleet operations, are in effect once the Carrollton Gauge stands at 12 feet or more.  Depending on its size the fleet may be required to deploy additional standby boats in the fleet, additional surveillance, and doubling up on rigging.

 

Given these circumstances it’s a good time to review of the duties of barge owners and fleeters.

 

A barge owner has a duty to deliver a sound and seaworthy barge to its fleeter.  A fleeter is entitled to assume that a fixture on a barge delivered into its custody can withstand reasonable stresses.

 

These principles were discussed in Conagra, Inc. v. Weber Marine, 2000 WL 943198.  In that case, Conagra’s PV 5989 barge was delivered to Weber Marine, a fleet operator, during high water.  Weber inserted the barge into a group of barges and moored the group to the Mississippi River bank with a wire rope, or “shorewire”, attached to a deck fitting on the PV 5989 barge.  Subsequently, a Weber fleet boat repositioned the shorewire on the center bow kevel of the PV 5989.  Approximately 45 minutes later, the kevel failed.  The issue at trial was whether the resulting breakaway and damages were caused by the negligence of the fleeter, by a defect in the barge, or a combination of both.

 

In analyzing the liability of the respective parties, the Court noted the duty of a barge owner to supply a seaworthy barge.  The Court found that the PV 5989 had a latent defect in the kevel in that it was improperly and weakly welded at one point, which eventually caused it to fail.  The Court found that Conagra had breached its duty to provide a seaworthy barge.  At the same time, the Court found Weber Marine partially to blame due to its failure to comply with a Coast Guard regulation which requires a harbor tug to always remain within 500 yards of the barges in fleets.  In the end, the Court held Conagra to be 70% at fault and Weber to be 30% at fault.

 

On the other hand, the towing company’s responsibility for its tow ceases upon the proper mooring of the tow at the final destination of the tow pursuant to the towage agreement.  A fleeter is thereafter responsible for the care of barges in its custody, and that includes a duty to ensure that the barges are adequately moored.  Owners and operators of barges who leave their vessels with a fleeter can reasonably rely on the fleeter’s expertise.

 

Fleeters have a continuing obligation to exercise reasonable care in conducting their operations.  The fleet operator is legally responsible for ensuring proper mooring.  A fleeter who fails to take adequate precautions and to implement policies designed to prevent barges from breaking out of fleets, or from sinking within fleets, faces liability for such failures.

 

Courts have held that the law presumes a fleet breakaway results from the negligence of the fleeter.  Thus, the fleeter must be ready to prove that it at all times exercised reasonable care, acted in accord with the regulations and exercised due diligence.  This can often be a heavy burden.

 

The fleet owner or owner of mid-stream mooring systems utilizing multiple buoys has a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel.  This includes the duty to ascertain the condition of the berth, to make it safe or warn the ship of any hidden hazard or deficiency known to him or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the shipowner.  No such warning is required where the alleged condition is open and obvious to those in charge of the vessel’s management or where those in charge of the vessel’s management have actual knowledge.

 

In the M/V BELO HORIZONTE case, 2010 WL 936292, in which I represented the owner of a mid-stream ship mooring system, the ship arrived at the system at a time of high water.  It entered the berth with the assistance of three helper tugs.  Several hours after it was secure a severe weather front bringing high winds arrived.  The ship began to swing on its anchors and mooring lines.  Lines started to part.  The Master of the ship called for helper tugs to return to stabilize the ship.  The tugs arrived and began to assist.  Lines continued to part.  Tragically, one of those lines recoiled and struck the wheelhouse of one of the tugs.  A crew member stationed in the wheelhouse was killed.  His family filed suit claiming that the owner of the mooring system directed and/or allowed the ship to berth during dangerous flood stage river conditions, failed to provide assist tugs to hold her in place, and failed to properly advise the ship’s Master and its owners of the dangers presented by mooring the ship in the buoy system at such high river stage.

 

I moved to dismiss the owner of the mooring system.  The Court granted the motion and found that although the owner operated the system and provided the helper tugs, there was no evidence that it was responsible for the navigation and mooring of the ship.  The Court found that there was no evidence that the ship’s Master was not competent, incapable of obtaining and understanding weather forecasts, not aware of the river’s high water conditions and strong currents and would not realize that mooring a ship at a mid-stream buoy facility would bear some differences from docking at a stationary dock on the river’s bank.  The Court found that there was simply no evidence that the owner should have intervened or was legally obligated as a matter of law to call on behalf of the ship for a river pilot be summoned on an expedited basis or that additional helper tugs be called earlier.

 

In sum, even in less stressful conditions, barge fleeters and owners and operators of mooring facilities bear significant responsibilities and corresponding liabilities.  In severe high water conditions such as we are now experiencing, these burdens indeed weigh heavily on those who attend to the vessels that frequent our ports.

Sloppy Pleading of Injured Worker Leads to Dismissal of Lawsuit

Plaintiff was working in the hold of a refrigerated cargo vessel that was berthed at the Port of Gloucester, NJ.  He injured his leg when it was crushed under machinery.  He filed suit in U.S. District Court in New Jersey and named eight companies as defendants.  The Complaint did not allege the specific roles of each defendant and instead generally plead that each company “owned, leased, operated, managed, possessed and/or controlled” the vessel.  Plaintiff lodged similar allegations regarding the defendants’ ownership and operation of the port.  Plaintiff cited three causes of action including negligence for violation of twenty-four duties, Section 905(b) of the LHWCA, and loss of consortium on behalf of Plaintiff’s spouse.

 

One Defendant filed a 12(b)(6) Motion to Dismiss, arguing the Complaint failed to provide notice of which particular claims were being lodged against it.  The Complaint merely lumped all defendants together and accused them of the same general negligent conduct.  The Defendant also argued the Complaint failed to include any factual basis that it owned the vessel, as required for a Section 905(b) claim.

 

After thoroughly reviewing the Complaint, the Court found that it failed to separate out the liability of each defendant.  The Court noted that if the Complaint had merely described the nature of each defendant company and what they were responsible for, it might have been possible to at least infer a theory of liability.  Instead,  Plaintiff had merely lumped all defendants together and asserted general allegations against broadly against the group.  The Court granted Defendant’s motion and dismissed the Complaint without prejudice.

 

Sheeran v. Blyth Shipholding

Alleged Seaman’s Claims Dismissed for Lack of Negligence

Plaintiff was injured when he allegedly fell from a defective rope ladder while working on a barge.  He filed a lawsuit against his employer, Weber Marine, alleging negligence under the Jones Act, unseaworthiness of the barge, and seeking maintenance and cure.  In the alternative, he sought damages under Section 905(b) of the LHWCA.  Weber Marine filed two Motions for Summary Judgment.  The first motion argued that plaintiff would be unable to support his claims for Jones Act negligence, unseaworthiness, or 905(b) vessel negligence at trial.  In support of the motion, Weber Marine asserted that the ladder was in good working order, the accident was unwitnessed, and that it did not own the barge in question.  In its second motion, Weber Marine argued the plaintiff was not a Jones Act seaman and was instead a maritime worker covered by the LHWCA.

 

The district court judge for the U.S. District Court for the Middle District of Louisiana granted both of Weber Marine’s motions.  In holding plaintiff was not a Jones Act seaman, the Court determined his claims for Jones Act negligence, unseaworthiness, and maintenance and cure were moot.  Furthermore, the Court recognized that while a maritime worker has a tort-based cause of action against his employer by virtue of Section 905(b), the plaintiff had failed to raise any facts supporting his claim for negligence.  The Court dismissed the plaintiff’s claims with prejudice and instructed him to pursue any claim he may have under the LHWCA before the U.S. Department of Labor.

 

Bourgeois v. Weber Marine