Dropping Anchor Does Not Trigger a Requirement to Provide Notice Under La. RS § 40:1749.11 for Dredge Owner

A dredge, seeking to secure position for anchoring, lowered its dredge ladder and cutter head into the seabed, striking a pipeline. The pipeline owner sued the owner of the dredge claiming, among other things, the dredge owner acted negligently in failing to discharge its notification responsibilities under the Louisiana Underground Utilities and Facilities Protection Law, La. Rev. Stat. Ann. § 40:1749.11 et seq. (referred to as “the One–Call Statute”), before engaging in the anchoring procedure.


The pipeline owner moved for partial summary judgment seeking a ruling that the dredge owner and operator had engaged in “excavation” and was therefore required to provide advance notice under the One-Call Statute. The district court denied the motion, and the pipeline owner appealed to the U.S. Fifth Circuit. Because it is “excavation” that triggers the notification requirement in the statute, the critical question is whether the dredge owner’s anchoring procedure constitutes “excavation.”

The pipeline owner argued that the dredge owner’s anchoring activity was an “operation for the purpose of movement … of earth,” and thus constitutes “excavation” under § 1749.12(6)’s general definition of the term. Specifically, the pipeline argued that the dredge owner’s activity had “the purpose of” moving earth because, “to accomplish” the objective of stopping the movement of the dredge, “the cutter head would have to dig into the seabed and displace the earth.”

The Court held that under the rule of lenity, Louisiana courts resolve ambiguities in the “penal” statute, such as the one at issue in this matter, in favor of the defendants. As such, the Court was required to adopt a narrow reading of “purpose”. The Court also distinguished between “knowledge” of the operation “moving the earth” and “purpose” of the operation “moving the earth.”

The Court found that anchoring did not have the “purpose” of moving the earth, and the district court’s ruling denying the pipeline company’s motion was affirmed.

Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co.

Rig Owner Not Liable for Failing to Search for Lost and Submerged Rig

A tanker vessel allided with an unmarked and submerged wreck of a jack-up drilling rig that was lost during Hurricane Ike. In the aftermath of the hurricane, the jack-up drilling rig owner discovered that the rig was no longer moored in the Gulf of Mexico. The rig owner timely searched for the rig using aerial searches of the Gulf of Mexico and subsea sonar searches within the estimated drift path of the rig. These search efforts proved unsuccessful, and the jack-up drilling rig owner concluded its search. Later evidence showed that within ten hours of Hurricane Ike’s passage, the jack-up drilling rig traveled 100.9 miles west-northwest, capsized, and came to rest in 115 feet of water in the South Sabine Point Lightering Area, approximately 65 miles south of Galveston, Texas. The tanker vessel allided with the wreck at this location approximately six months later, causing substantial damage.

The tanker owner asserted that the jack-up drilling rig owner was liable under 33 U.S.C. § 409 for failure to mark the wreck. The case proceeded to a bench trial. After all parties put on the majority of their evidence and the tanker owner rested its case, the district court granted the rig owner’s motion for judgment, finding it had conducted a full, diligent, and good-faith search for jack-up drilling rig, but was unable to find it. The tanker owner appealed to the U.S. Fifth Circuit.

The tanker owner’s primary argument was that the district court applied an incorrect legal standard in making its factual finding that the jack-up drilling rig owner conducted a full, good-faith search. The tanker owner argued that the district court should have placed greater weight on the fact that the drilling rig owner did not search in the area where jack-up drilling rig ultimately rested, because that was an area where the wrecked rig would constitute a hazard to navigation.

The Court found no reversible error based on the evidence presented at trial, that the search the jack-up drilling rig owner did conduct was full, diligent, and in good faith, even though the jack-up drilling rig owner did not search the area 100 miles away considered a hazard to navigation.

ENSCO Offshore Co v. M/V SATILLA

Rail Yard Worker Fails LHWCA Situs and Status Tests

Claimant worked for Employer for twenty years when he became aware that his exposure to workplace noise had caused hearing loss. He brought a claim under the Longshore Act. He argued that although he worked as a trackman operating switching engines, he sometimes worked on a track near a shipping channel and was a member of the longshoreman’s union, thus, he was a longshoreman under the Act. Employer controverted the claim on the grounds that Claimant never worked on, over, or adjacent to navigable waters. Employer further argued that switching cars was not integral or necessary to the loading or unloading of a vessel.

The claim was referred to the Office of Administrative Law Judges and the ALJ found that Claimant failed to meet both the situs and status tests. First, the judge cited the Fifth Circuit’s decision in New Orleans Depot in finding that the rail yard did not adjoin navigable waters because it was not bordering on such waters, and the rail yard was not used by Employer for the loading or unloading of a vessel. Further, the judge found that Claimant was not a ship repairman or ship builder, and his work was not an integral or essential part of the loading or unloading process, such that if he failed to perform his duties, the loading process would come to a halt. The claim was denied.

Watson v. Rail Switching Services, Inc.

Failure to Conduct JSA for Routine Task is Not a Breach of Duty

On August 5, 2015, the United States Fifth Circuit Court of Appeals issued its opinion in Glaze v. Higman Barge Lines Inc.  The court was asked to review the grant of summary judgment in favor of Higman on the Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.  The Plaintiff, who worked for Higman as a relief captain for approximately four years, alleged injury as a result of maintenance he performed on one of Higman’s vessels.  He claimed that he was instructed to perform a task in the absence of a job safety analysis and that these unsafe work methods rendered the vessel unseaworthy.  The district court granted summary judgment on all Plaintiffs’ claims and he appealed.


On appeal, The Fifth Circuit first analyzed the Plaintiff’s Jones Act claim and determined that is was without merit.  The Court ruled that the Captain’s alleged failure to conduct a job safety analysis did not establish a violation of the standard of care.  Further, although a company safety manual can inform what constitutes ordinary prudence, it does not itself create a legal duty.  The task that the Plaintiff was performing—grinding and stripping rust with a needle gun—was a routine task and the Fifth Circuit had previously held that failure to perform a job safety analysis on a routine task is not breach of duty.  The Plaintiff was an experienced seamen of forty years and admittedly knew how to use a needle gun and failed to controvert testimony that he himself trained at least one other crew member on how to use a needle gun to chip rust.


The Fifth Circuit also affirmed the grant of summary judgment as to Plaintiff’s unseaworthiness claim.  The basis of Plaintiff’s claim for unseaworthiness was the failure of the Captain to perform a job safety analysis, that the ship did not have safe housekeeping measures, and that the plaintiff was required to perform this task only one month before the vessel entered dry dock for maintenance.  The Fifth Circuit held that a Captain’s failure to conduct a job safety analysis, even if negligent, did not give rise to an unseaworthiness claim.  The Court further found that there was no support for the Plaintiff’s claim of unsafe work methods.  Plaintiff presented no evidence that the needle gun was working improperly or that its use or the vessel was unsafe.  Also, the fact that the vessel was set to undergo routine maintenance in dry dock failed to demonstrate that the vessel or any appurtenance thereto was unfit for its intended purpose or that the crew was inadequate, understaffed, or ill trained.


Addressing the Plaintiff’s maintenance and cure claim, the Court found that there was no evidence that the Plaintiff was injured while working on the vessel except for his lawsuit.  Further the Plaintiff did not report an injury to his employer until the suit was filed and he previously told his physicians from who he had sought treatment for his pain that he had not been injured.  The vessel logs did not reflect that any chipping work was done on the day the Plaintiff claimed that he was injured.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the defendant employer, Higman.

Glaze v. Higman Barge Lines, Inc.