Fifth Circuit Addresses Dual Capacity Employers and the “Something More” Factors

Plaintiff was employed as a crane operator by Defendant, which was both the vessel owner and the contractor of a crane.  The crane developed an open and obvious hydraulic fluid leak, and Plaintiff complained to supervisors about the leak, which covered areas of the vessel that were within the crane’s swing radius.   Later, Plaintiff slipped on the crane’s tracks, injuring his back.  He blamed the injury on a black spot of hydraulic fluid.   Defendants paid Longshore and Harbor Workers’ Compensation Act (“LHWCA”) benefits, and Plaintiff then sued Defendant (in its capacity as the vessel owner) for negligence.  The federal district court granted Defendant’s motion for summary judgment, finding that Defendant had not breached its duties under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).  Plaintiff appealed.

A dual-capacity employer acts as both employer and vessel owner.  This presents a problem because if the “employer” is negligent, then LHWCA compensation payments are the employee’s exclusive form of recovery; but if the “vessel owner” is negligent, then the employee can pursue workers compensation while also pursuing tort remedies.  This problem becomes even more difficult when the employer’s workers act as both stevedores and vessel crew.

In analyzing the purported negligence, the court focused on the Duty to Intervene and the Active-Control Duty.  The court determined that Plaintiff could not prove an abrogation of the Duty to Intervene because he could not satisfy the “something more” test.  A vessel owner may not have the Duty to Intervene even if they know of a dangerous condition and an unreasonable response.  A plaintiff must show “something more” when a contractor’s employees create open and obvious hazards in an area or with equipment under their exclusive control.  The something more test has been distilled into six non-exhaustive factors:

(1) whether the danger was open and obvious, (2) whether the danger was located in the ship or ship’s gear; (3) which party created the danger or used the defective item and was therefore in a better position to correct it; (4) which party owned and controlled the defective item; (5) whether an affirmative act of negligence or acquiescence in the use of a dangerous item occurred; and (6) whether the shipowner assumed any duty with regard to the dangerous item.

Here, Plaintiff could not satisfy the “something more” showing, and his Duty to Intervene argument failed.

Plaintiff’s Active-Control Duty argument failed, too.  Plaintiff alleged that Defendant exercised active control over the vessel and “its gear and equipment” in its capacity as vessel owner.  The Fifth Circuit disagreed.  A vessel owner “does not violate the Active-Control Duty simply because a hazard develops during stevedoring operations or because that hazard must be remedied in areas of the ship that might at other times be under the vessel owner’s control.”  Here, the evidence demonstrated that Defendant, acting as vessel owner, turned over the vessel to Defendant, acting as a contractor:

Indeed, the record shows that G.C. as vessel owner handed the unmanned Barge over to G.C. as contractor; that Landry and other [sic] construction workers effectively assumed control of the barges as employees of G.C. as contractor; and that Landry was injured on equipment provided by and under the control of G.C. as contractor.

Landry v.  G.C. Constructors, No. 12-60104 (5th Cir. Feb. 20, 2013).