Preview
CAUSE NO. 2017-41522
Vandaven Johnson IN THE DISTRICT COURT OF
Plaintiff,
v.
HARRIS COUNTY, TEXAS
Battleground Oil Specialty Terminal Company, §
LLC; Kinder Morgan Battleground Oil, LLC; §
Kinder Morgan, Inc.; Boone Towing, Inc.; and §
Atlantic Richfield Company
Defendants. 295th JUDICIAL DISTRICT
Plaintiff’s Supplement Response to ARTCO’s Motion for Summary
Judgment
The Court should deny Defendants’ motion even if ARTCO’s legal framework applies
since ARTCO would have breached Scindia turnover duty. Therefore, the Court should deny
the motion.
Background
Plaintiff Vandaven Johnson was a tankerman working at a Kinder Morgan terminal. His
job required him to go on board ARTCO’s barge that was docked at the terminal. The gangway
from the terminal’s dock to the barge was placed at a steep angle. Johnson started to fall as he
walked down the steep gangway. He reached out for the gangway’s handrail to steady himself,
but the handrail broke. Johnson fell to the ground and injured his back. The incident was caught
on video from the terminal’s security cameras.
ARTCO has filed a motion for summary judgment that provides evidence that the gangway
was unsafe, but argues that ARTCO had no responsibility for the gangway since the gangway was
1
owned, maintained, and controlled by the Kinder Morgan defendants. Plaintiff responded by
arguing that maritime law places a duty on the vessel owner to ensure that workers have a safe
means of ingress and egress to the vessel and that ARTCO breached this duty by failing to ensure
that the gangway was safe. ARTCO, on the other hand, contends that it owed no duty in this case
under 33 U.S.C. § 905(b) and the case law interpreting it (specifically Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156 (1981)). But, even under this legal framework, ARTCO
would have breached the “turnover duty” articulated in Scindia. Consequently, regardless of
which party is correct about the legal framework that governs, ARTCO’s motion lacks merit.
II.
The Court Should Deny Defendant’s Motion
Here, ARTCO contends its duties are defined by Scindia Steam Navigation Co. v. De
Los Santos, 451 U.S. 156 (1981). The basic Scindia duties include: (i) the “turnover duty,”
relating to the condition of the ship upon commencement of stevedoring operations; (ii) the
duty to prevent injuries to longshoremen in areas remaining under the “active control” of the
vessel; and (iii) the duty to intervene. Moore v. M/V ANGELA, 353 F.3d 376, 380 (5th Cir.
2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994)).
A vessel owner breaches its turnover duty “if the vessel owner fails to warn on turning
over the ship of hidden defects of which he should have known.” Greenwood v. Societe
Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997) (emphasis in original). The turnover duty
also requires a vessel owner to “turn over the ship and its equipment and its appliances” in a
reasonably safe condition. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994).
Importantly, “[i]f the condition existed at the outset [of cargo operations], the shipowner is
2
charged with actual knowledge of the dangerous condition[.]” Hernandez v. M/V Rajaan,
841 F.2d 582, 586 (5th Cir. 1988) (emphasis added). Further, even if the defect is “open and
obvious,” the injured longshoreman can still recover “if the longshoreman’s only alternatives
to facing the [open and obvious] hazard are unduly impractical or time-consuming or would
force him to leave the job.” Moore v. M/V ANGELA, 253 F.3d 376, 381 (5th Cir. 2003); Pluyer
v. Mitsui S.K. Lines, Ltd., 664 F.2d 1243, 1247 (5th Cir. 1982) (recognizing “that recovery for
personal injuries by longshoremen encountering open and obvious dangers is allowed where
the danger ‘must be faced notwithstanding knowledge.’”) (citing Gay v. Ocean Transport &
Trading, Ltd., 546 F.2d 1233, 1242 (5th Cir. 1977)).
Here, the gangway is obviously an appurtenance of the vessel. Admiral Peoples, 295
U.S. 649 (1935); See also Sarauw v. Oceanic Nav. Corp., 655 F.2d 526, 528 (3d 1981).
ARTCO’s motion acknowledges that there is evidence that the gangway was unsafe. Since
the hazard existed prior to Plaintiff boarding the vessel, ARTCO is charged with actual
knowledge of the hazard and owed a duty to remedy the hazard or warn of the hazard. See
Hernandez, 841 F.2d at 586. ARTCO acknowledges that it did neither, but incorrectly argues
that Scindia relieves it of this duty since ARTCO did not own or control the gangway.
ARTCO’s legal argument is wrong.
Sarauw is particularly instructive on this issue. In that case, a dock worker employed
by the terminal was injured when he fell while attempting to board the defendant’s vessel due
to the fact that the gangway was not properly secured. Sarauw, 655 F.2d at 527. The gangway
was not owned or supplied by the vessel owner. Instead, just like in the instant case, it was
supplied by the terminal and was solely used by the longshoremen to access the vessel. Id. at
3
528. There was also a contract between the vessel owner and the terminal that required the
terminal to “furnish, secure, maintain and monitor the gangway to be used on Oceanic’s
vessel.” Id. at 528-29. Like ATRCO, the vessel owner in Sarauw argued that Scindia relieved
it of its duties since the vessel owner did not own, supply, secure, maintain, or monitor the
gangway.
The court rejected the vessel owner’s argument, though. It specifically noted that:
Scindia does not require us to depart from our original conclusion, which we
reaffirm, that Oceanic had a duty of reasonable case with respect to the gangway
being properly secured to the vessel and maintained in safe condition for use.
From this duty of care it could not divest itself even though the gangway was
supplied by the stevedore, Hess, and at the time of the accident was being used
by no one by the injured longshoreman.
***
We are not convinced, however, that Scindia instructs that a shipowner may
contract away its duty of care with respect to such an essential appurtenance of
the ship as the gangway.
Id. at 528-29.
A vessel owner’s duty to provide a safe means of boarding the vessel has been
recognized by other federal appellate courts as well. See Scheuring v. Traylor Bros., Inc., 476
F.3d 781, 790 (9th Cir. 2007) (“Even if the ramp could not fairly be characterized as a
gangway, the turnover duty, at a minimum, requires a vessel to provide a safe means of
access.”); Gay v. Barge 266, 915 F.2d 1007, 1012 (5th Cir. 1990). Consequently, even under
ARTCO’s legal framework, the Court should deny the motion.
III.
Conclusion
The Court should deny Defendants’ motion.
4
Respectfully submitted,
ARNOLD & ITKIN LLP
/s/ Cory Itkin
Jason A. Itkin
State Bar No. 24032461
Cory D. Itkin
State Bar No. 24050808
Ryan S. Macleod
State Bar No. 24068346
Jacob M. Karam
State Bar No. 24105653
6009 Memorial Drive
Houston, Texas 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
e-service@arnolditkin.com
jitkin@arnolditkin.com
citkin@arnolditkin.com
rmacleod@arnolditkin.com
jkaram@arnolditkin.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that on May 29, 2019, a copy of the foregoing was served upon all counsel of
record in compliance with Texas Rules of Civil Procedure.
/s/ Cory Itkin_________________________
Cory Itkin
5
Preview
CAUSE NO. 2017-41522 Vandaven Johnson IN THE DISTRICT COURT OF Plaintiff, v. HARRIS COUNTY, TEXAS Battleground Oil Specialty Terminal Company, § LLC; Kinder Morgan Battleground Oil, LLC; § Kinder Morgan, Inc.; Boone Towing, Inc.; and § Atlantic Richfield Company Defendants. 295th JUDICIAL DISTRICT Plaintiff’s Supplement Response to ARTCO’s Motion for Summary Judgment The Court should deny Defendants’ motion even if ARTCO’s legal framework applies since ARTCO would have breached Scindia turnover duty. Therefore, the Court should deny the motion. Background Plaintiff Vandaven Johnson was a tankerman working at a Kinder Morgan terminal. His job required him to go on board ARTCO’s barge that was docked at the terminal. The gangway from the terminal’s dock to the barge was placed at a steep angle. Johnson started to fall as he walked down the steep gangway. He reached out for the gangway’s handrail to steady himself, but the handrail broke. Johnson fell to the ground and injured his back. The incident was caught on video from the terminal’s security cameras. ARTCO has filed a motion for summary judgment that provides evidence that the gangway was unsafe, but argues that ARTCO had no responsibility for the gangway since the gangway was 1 owned, maintained, and controlled by the Kinder Morgan defendants. Plaintiff responded by arguing that maritime law places a duty on the vessel owner to ensure that workers have a safe means of ingress and egress to the vessel and that ARTCO breached this duty by failing to ensure that the gangway was safe. ARTCO, on the other hand, contends that it owed no duty in this case under 33 U.S.C. § 905(b) and the case law interpreting it (specifically Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981)). But, even under this legal framework, ARTCO would have breached the “turnover duty” articulated in Scindia. Consequently, regardless of which party is correct about the legal framework that governs, ARTCO’s motion lacks merit. II. The Court Should Deny Defendant’s Motion Here, ARTCO contends its duties are defined by Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The basic Scindia duties include: (i) the “turnover duty,” relating to the condition of the ship upon commencement of stevedoring operations; (ii) the duty to prevent injuries to longshoremen in areas remaining under the “active control” of the vessel; and (iii) the duty to intervene. Moore v. M/V ANGELA, 353 F.3d 376, 380 (5th Cir. 2003) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994)). A vessel owner breaches its turnover duty “if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known.” Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir. 1997) (emphasis in original). The turnover duty also requires a vessel owner to “turn over the ship and its equipment and its appliances” in a reasonably safe condition. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994). Importantly, “[i]f the condition existed at the outset [of cargo operations], the shipowner is 2 charged with actual knowledge of the dangerous condition[.]” Hernandez v. M/V Rajaan, 841 F.2d 582, 586 (5th Cir. 1988) (emphasis added). Further, even if the defect is “open and obvious,” the injured longshoreman can still recover “if the longshoreman’s only alternatives to facing the [open and obvious] hazard are unduly impractical or time-consuming or would force him to leave the job.” Moore v. M/V ANGELA, 253 F.3d 376, 381 (5th Cir. 2003); Pluyer v. Mitsui S.K. Lines, Ltd., 664 F.2d 1243, 1247 (5th Cir. 1982) (recognizing “that recovery for personal injuries by longshoremen encountering open and obvious dangers is allowed where the danger ‘must be faced notwithstanding knowledge.’”) (citing Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1242 (5th Cir. 1977)). Here, the gangway is obviously an appurtenance of the vessel. Admiral Peoples, 295 U.S. 649 (1935); See also Sarauw v. Oceanic Nav. Corp., 655 F.2d 526, 528 (3d 1981). ARTCO’s motion acknowledges that there is evidence that the gangway was unsafe. Since the hazard existed prior to Plaintiff boarding the vessel, ARTCO is charged with actual knowledge of the hazard and owed a duty to remedy the hazard or warn of the hazard. See Hernandez, 841 F.2d at 586. ARTCO acknowledges that it did neither, but incorrectly argues that Scindia relieves it of this duty since ARTCO did not own or control the gangway. ARTCO’s legal argument is wrong. Sarauw is particularly instructive on this issue. In that case, a dock worker employed by the terminal was injured when he fell while attempting to board the defendant’s vessel due to the fact that the gangway was not properly secured. Sarauw, 655 F.2d at 527. The gangway was not owned or supplied by the vessel owner. Instead, just like in the instant case, it was supplied by the terminal and was solely used by the longshoremen to access the vessel. Id. at 3 528. There was also a contract between the vessel owner and the terminal that required the terminal to “furnish, secure, maintain and monitor the gangway to be used on Oceanic’s vessel.” Id. at 528-29. Like ATRCO, the vessel owner in Sarauw argued that Scindia relieved it of its duties since the vessel owner did not own, supply, secure, maintain, or monitor the gangway. The court rejected the vessel owner’s argument, though. It specifically noted that: Scindia does not require us to depart from our original conclusion, which we reaffirm, that Oceanic had a duty of reasonable case with respect to the gangway being properly secured to the vessel and maintained in safe condition for use. From this duty of care it could not divest itself even though the gangway was supplied by the stevedore, Hess, and at the time of the accident was being used by no one by the injured longshoreman. *** We are not convinced, however, that Scindia instructs that a shipowner may contract away its duty of care with respect to such an essential appurtenance of the ship as the gangway. Id. at 528-29. A vessel owner’s duty to provide a safe means of boarding the vessel has been recognized by other federal appellate courts as well. See Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 790 (9th Cir. 2007) (“Even if the ramp could not fairly be characterized as a gangway, the turnover duty, at a minimum, requires a vessel to provide a safe means of access.”); Gay v. Barge 266, 915 F.2d 1007, 1012 (5th Cir. 1990). Consequently, even under ARTCO’s legal framework, the Court should deny the motion. III. Conclusion The Court should deny Defendants’ motion. 4 Respectfully submitted, ARNOLD & ITKIN LLP /s/ Cory Itkin Jason A. Itkin State Bar No. 24032461 Cory D. Itkin State Bar No. 24050808 Ryan S. Macleod State Bar No. 24068346 Jacob M. Karam State Bar No. 24105653 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 222-3800 Facsimile: (713) 222-3850 e-service@arnolditkin.com jitkin@arnolditkin.com citkin@arnolditkin.com rmacleod@arnolditkin.com jkaram@arnolditkin.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that on May 29, 2019, a copy of the foregoing was served upon all counsel of record in compliance with Texas Rules of Civil Procedure. /s/ Cory Itkin_________________________ Cory Itkin 5