Opinion
Civil Action No. 04-2243, Section "L" (5).
February 22, 2005
ORDER REASONS
Before the Court is the Motion of Defendant WT Offshore, Inc. ("WT") for summary Judgment and the Motion of Defendant General Marine Leasing, Inc. ("GML") for Summary Judgment, which came on for hearing before the Court with oral argument on February 16, 2005, at 9:00 a.m. For the following reasons, the Court hereby GRANTS the Motion of Defendant WT Offshore for Summary Judgment and GRANTS the Motion of Defendant GML for Summary Judgment in part.
I. Background
This case arises from injuries allegedly sustained by the Plaintiff on July 22, 2004, while working as a cook aboard the M/V HOS EXPLORER, a vessel owned and operated by Hornbeck Offshore Services, Inc. ("Hornbeck"). At all pertinent times, the Plaintiff was employed by General Marine Leasing ("GML"). WT Offshore, Inc. was the charterer of the vessel. On July 22, 2004, at approximately 3:45 a.m., the Plaintiff was awoken by a crew member of the vessel to begin his shift. The crew member was employed by Hornbeck. In his Complaint, the Plaintiff claims that he was injured when he slipped on a wet floor while walking down a hallway from his bedroom to the bathroom. He contends that he did not know that the floor had just been mopped and was wet.
On August 9, 2004, the Plaintiff filed suit in this Court against Hornbeck and WT for negligence and unseaworthiness, and against GML, under the Jones Act and for maintenance and cure.
II. Legal Standard
Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. If the party moving for summary judgment demonstrates the absence of a genuine issue of material fact "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986).
The burden of demonstrating the existence of a genuine issue is not met by "metaphysical doubt" or "unsubstantiated assertions." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)). The Court must "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contrary facts." Id. The Court does not, "in the absence of proof, assume that the nonmoving party could or would prove the necessary facts." Id. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita, 475 U.S. at 588. Finally, "the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material." Willis, 61 F.3d at 315. If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III. WT's Motion for Summary Judgment
In its Motion, W T asserts that it was a time charterer, as opposed to a demise or bareboat of the vessel and, as such, was under no duty to provide a seaworthy vessel as a demise or bareboat charterer would be. Thus, WT claims no responsibility concerning the conditions which purportedly caused and/or contributed to the plaintiff's accident, namely a wet hallway which had just been mopped by a crew member of the vessel.
WT claims that a Notice of Hire was executed between Hornbeck as vessel owner and WT as time charterer on July 17, 2004. The Notice of Hire confirms that the vessel was chartered in accordance with the terms and conditions of the Blanket Time Charter Agreement executed between WT and Tidex, Inc. Paragraph 5 of the Charter Agreement provides:
The OWNER [Hornbeck] shall deliver and maintain the vessel in a seaworthy condition and the OWNER shall man, operate and navigate the vessel. The vessel shall execute its trips and perform its services as requested by CHARTERER, but sole responsibility for management, navigation and operation of the vessel (and all decisions to whether the vessel can operate safely in various sea and weather conditions) shall remain at all times with the OWNER . . . Nothing herein contained shall be construed as making this a demise charter; CHARTERER shall have no right to control or direct the details of the work of OWNER as an independent contractor, and employees of OWNER as an independent contractor, and/or employees of OWNER under no circumstances shall be considered servants, employees, "borrowed servants," or agents of CHARTERER.
In addition to the above-language, WT maintains that it had no employees aboard the vessel and, in fact, exercised no control over the crew, including when and where to mop.
A time charter entitles a charterer to use the vessel for a specified time but does not give the charterer control over the details of the vessel's operation, and, thus does not vest the charterer with the degree of control necessary to hold the charterer responsible for the negligence of the crew or the unseaworthiness of the vessel. Forrester v. Ocean Marine Indem. Co., 11 F. 3d 1213, 1215 (5th Cir. 1993). Here, W T claims that the facts establish that they were a time charterer of the vessel and, as such, not liable for unseaworthiness. Furthermore, WT claims it neither knew nor had any reason to know that the floor was wet. Thus, it is not liable for negligence.
In opposition, the Plaintiff does not directly address WT's contention. Rather, in opposition, Plaintiff alleges that as time charterer W T owed him a "hybrid duty," to instruct the Captain of the vessel to maintain a safe work place, and keep the floors from being slippery and dangerous. To evaluate the Plaintiff's contention, it is necessary to review the origin and basis for the hybrid duty concept.
At least as early as 1969, the Fifth Circuit recognized that a master's control over matters relating to his vessel did not translate into an exclusive duty of reasonable care when common sense and economic reality suggested that a second entity also exercised control within certain portions of this same sphere of activity. See Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir. 1969). Massey involved a transfer between two ships, but subsequent cases, beginning with Brown v. Link Belt Division of FMC Corp., 666 F.2d 110 (5th Cir. 1982), extended this principle to the relationship between a charterer and a vessel, and the theory of the hybrid duty was created. This duty, arising from contract and tort, is owed by a time charterer "to persons with whom it has no contractual relationship, including vessel passengers, to avoid negligent actions within the sphere of activity over which it exercises at least partial control." Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1520 (5th Cir. 1996). The basis of this hybrid duty, however, is control. The "traditional spheres of activity in which a time charterer exercises control and thus owes a duty include choosing the vessel's cargo, route, and general missions, as well as the specific time in which the vessel will perform its assignment." Id. Parties "may vary the traditional assignment of control by contract or custom, but absent such variation of the traditional allocation of responsibility, a "time charterer owes no duty beyond these spheres." Id.
Plaintiff does no allege that WT was not a time charterer or that the traditional allocation of responsibility was varied. The alleged injuries in this case did not occur within the traditional spheres of activity over which a time charterer might exercise control. The Plaintiff does not dispute that there were no WT employees on the vessel or that WT had any responsibility for controlling tasks like mopping. Rather, Plaintiffs seem to suggest that the mere fact that WT was the time charterer imposes this hybrid duty upon WT. The law does not support this position, and the Court shall not extend the law in the manner advanced by the Plaintiff. To do so would render meaningless the difference between a time charterer and a demise charterer.
Plaintiff cites a number of cases from this Court in which the hybrid duty was recognized. However, as the Fifth Circuit has indicated, cases wherein a hybrid duty was found involved a time charterer exercising some control, for example sending a vessel into perilous weather conditions. Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 496 (5th Cir. 2002). The Fifth Circuit has declined to extend the duty beyond such circumstances, and this Court similarly declines to do so. Id.
The Court finds that there are no genuine issues of material fact regarding WT's liability in this case. Accordingly, the Court hereby GRANTS WT's Motion for Summary Judgment.
IV. GML's Motion for Summary Judgment
GML also moves the Court for Summary Judgment. GML claims that it did not breach any duty owed the Plaintiff and, more importantly, did not have notice, actual or constructive, of the alleged dangerous condition. GML claims that the Plaintiff was the only GML employee aboard the vessel and that mopping was the responsibility of the deckhands aboard the vessel, deckhands who were not in the employ of GML.
There is no dispute that GML is the Jones Act employer in this case. As such, GML had a duty to provide the Plaintiff with a reasonably safe place to work. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989). While this duty is broad and non-delegable, it is not absolute or a species of strict liability. The employer must have notice and an opportunity to correct the unsafe condition before liability attaches. Id. The standard of care is not "what the employer subjectively knew, but rather, what it objectively knew or should have known." Id. ( citing Turner v. Inland Tugs, Co., 689 F.Supp. 612, 619 (E.D.La. 1988).
For purposes of this motion, GML assumes arguendo, but does not admit, that Plaintiff is a seaman.
GML contends that it is undisputed that it had neither notice nor an opportunity to correct the allegedly unsafe condition. As the Plaintiff was the only GML employee aboard the vessel, GML maintains that they could not have known that the floor had been mopped. Moreover, GML cites the deposition testimony of the Plaintiff wherein he states that he does not believe GML was at fault because it had no reason to know that the floor was wet.
In opposition, Plaintiff does not address the issue of notice. Rather, Plaintiff merely states that GML has not satisfied its burden because it "relies upon its question in deposition which are clearly legal conclusions and not factual questions." This argument is without merit. The Plaintiff testified that he was the only GML employee aboard the vessel and that GML had no way of knowing that the floor was wet at the time of the accident and, therefore, that GML could not have prevented the accident.
The evidence before the Court establishes that GML did not have notice and an opportunity to correct the allegedly unsafe condition. The Plaintiff has provided neither evidence nor argument to rebut this evidence. Accordingly, the Court finds that summary judgment is appropriate as to liability. However, the Plaintiff also has a maintenance and cure claim against GML. Thus, the Motion of GML for Summary Judgment is GRANTED in part in regards to liability. The Motion is DENIED in regards to the Plaintiff's maintenance and cure claim.
V. Conclusion
For the foregoing reasons the Court hereby GRANTS the Motion of WT for Summary Judgment. Accordingly, the Plaintiff's claims against WT are hereby dismissed with prejudice. The Court GRANTS the Motion of GML for Summary Judgment as to liability. Thus, the Plaintiff's Jones Act claim against GML is dismissed with prejudice. The Plaintiff's claim against GML for maintenance and cure remains viable as does the Plaintiff's claims against Defendant Hornbeck.