Filed: Mar. 22, 2011
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-11833 ELEVENTH CIRCUIT MARCH 22, 2011 Non-Argument Calendar JOHN LEY _ CLERK D.C. Docket No. 3:07-cv-00638-MMH-MCR JOEL W. GREEN, Plaintiff - Appellant, versus UNITED STATES OF AMERICA, Defendant - Appellee. _ No. 10-11975 Non-Argument Calendar _ D.C. Docket No. 3:07-cv-00638-MMH-MCR JOEL W. GREEN, Plaintiff, NORTH FLORIDA SHIPYARD, INC., AMERICAN LONGSHORE MUTUAL ASSOCIATION, LT
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-11833 ELEVENTH CIRCUIT MARCH 22, 2011 Non-Argument Calendar JOHN LEY _ CLERK D.C. Docket No. 3:07-cv-00638-MMH-MCR JOEL W. GREEN, Plaintiff - Appellant, versus UNITED STATES OF AMERICA, Defendant - Appellee. _ No. 10-11975 Non-Argument Calendar _ D.C. Docket No. 3:07-cv-00638-MMH-MCR JOEL W. GREEN, Plaintiff, NORTH FLORIDA SHIPYARD, INC., AMERICAN LONGSHORE MUTUAL ASSOCIATION, LTD..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11833 ELEVENTH CIRCUIT
MARCH 22, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 3:07-cv-00638-MMH-MCR
JOEL W. GREEN,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
________________________
No. 10-11975
Non-Argument Calendar
________________________
D.C. Docket No. 3:07-cv-00638-MMH-MCR
JOEL W. GREEN,
Plaintiff,
NORTH FLORIDA SHIPYARD, INC.,
AMERICAN LONGSHORE MUTUAL ASSOCIATION, LTD.,
Intervenor-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(March 22, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Joel Green, North Florida Shipyard, Inc., and American Longshore Mutual
Association, Ltd., (collectively “Green”), appeal the judgment against Green’s
complaint under the Longshore and Harbor Workers’ Compensation Act. 33
U.S.C. § 905(b). Green, an employee of North Florida Shipyard, Inc., was burned
when a spark used to light his cutting torch ignited gas that had accumulated in the
starboard aft peak ballast tank of the M/V Cape Edmont, a ship owned by the
United States. Green complained that the United States, acting through Clyde
Roberts, had failed to ventilate Green’s work space adequately to dispel gas that
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had leaked from his cutting torch. Following a bench trial, the district court found
that Roberts was not an agent or a subagent of the United States and concluded
that the United States, as a shipowner, did not owe any duty to protect Green. We
conclude that the findings of the district court are not clearly erroneous, and we
agree that the United States owed no duty to Green. We affirm the judgment in
favor of the United States.
I. BACKGROUND
The United States Maritime Administration owned the Cape Edmont, but
the Administration contracted with Marine Transport Lines, Inc., to manage,
maintain, and repair the ship. While the Cape Edmont was undergoing repairs at
the Dentyens Shipyard, the United States Coast Guard inspected the ship and
discovered that the steel in its starboard and port aft peak ballast tanks were below
the minimal allowable thickness required by the American Bureau of Shipping.
Marine Transport was required to replace the steel for the Cape Edmont to retain
its class certification.
Marine Transport requested bids for the steel renewal project and awarded
the contract to North Florida Shipyard. North Florida Shipyard agreed to furnish
the labor, materials, and equipment necessary to repair the ballast tanks, including
the equipment required to ventilate the areas where steel cutters and welders
3
would be performing “hot work” with fire- or spark-producing tools. The project
required that North Florida Shipyard provide mechanical fans and air socks that,
using a combination of positive and negative ventilation, removed smoke, welding
fumes, and other noxious gases from the work areas. North Florida Shipyard also
agreed to retain both a marine chemist to certify that all areas involving hot work
had safe levels of gases and a “competent person” to daily test and inspect the
work areas.
Marine Transport did not use any of its personnel to supervise the steel
renewal project. Instead, Marine Transport hired Clyde Roberts, a ship repair
expert, as the Special Port Engineer to oversee the project. Marine Transport
agreed to pay Roberts according to invoices he submitted from his company,
Independent Marine Consultants, Inc. The Maritime Administration did not
reimburse Marine Transport for Roberts’s expenses, nor did the Administration
have any contact with Roberts. Instead, Roberts reported to the president and
CEO of Marine Transport, Ernie Otterspoor. Marine Transport and Roberts
agreed orally that Roberts could not bind Marine Transport to payment, but that
Roberts could negotiate change orders and field bids for the project.
Roberts inspected daily the work performed by North Florida Shipyard.
Roberts “physically crawled into the various work spaces, visiting each work
4
space on average between six to fifteen times per day.” Roberts ensured that
North Florida Shipyard met its deadlines and complied with technical
specifications. Roberts signed, as “ship personnel,” one certificate stating that
North Florida Shipyard had completed forty percent of the necessary repairs to the
aft peak tank. Roberts also signed, as “owner’s representative,” several inspection
reports approving specific welding tasks and one handwritten document approving
painting performed by North Florida Shipyard.
Marine Transport did not require that Roberts manage the safety procedures
of the steel renewal project, but Marine Transport expected Roberts to report to
North Florida Shipyard any safety hazards that he noticed. Marine Transport gave
Roberts the authority to stop work on the project if he noticed that working
conditions were unsafe, and Roberts involved himself in safety protocol for the
project. He met with the chief engineer of Marine Transport to improve the
quality and quantity of fire watch stations, and Roberts gave the supervisor of
North Florida Shipyard a card about specific safety procedures. Roberts requested
that North Florida Shipyard follow a safety protocol in which its cutters and
welders, at every break and the end of work shifts, would turn off the gas source at
the manifold, disconnect gas lines from the gas source, and remove gas lines and
torches from the work spaces below deck. A supervisor of North Florida Shipyard
5
testified that it did not require its employees to comply with Roberts’s suggested
protocol. Employees of North Florida Shipyard were required at breaks to turn off
the gas source and disconnect gas lines, but employees did not remove their
torches from work spaces until the end of their shift.
North Florida Shipyard hired David Miller, a marine chemist, to inspect the
areas of the Cape Edmont where hot work would be conducted. The morning of
January 17, 2006, Miller certified that the atmospheric conditions below deck
complied with federal regulations and were safe for hot work and, later that day,
North Florida Shipyard began hot work inside the ship. Beginning on January 18,
2006, a “competent person” from either Miller’s company or North Florida
Shipyard inspected the atmospheric conditions inside the ship daily while the steel
cutters and welders were working.
North Florida Shipyard assigned Green, a first class shipfitter, to remove
wasted steel in the starboard aft peak ballast tank. Around January 20, 2006,
Green and Paul Degrove began cutting the metal, and the undertaking took several
days. The testimonies of Green and Degrove differed about when North Florida
Shipyard installed a ventilation system and the level of ventilation in the tank, but
both men testified that they received proper ventilation equipment eventually.
When the men completed the cutting process, Degrove was replaced by Mary
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Chamberlain, who tacked to the ballast tank pieces of replacement steel.
Green gave conflicting statements about the ventilation during the tacking
process, and his statements were inconsistent with the testimonies of Chamberlain
and people who inspected the starboard aft peak tank. Green first testified that
Degrove removed the ventilation system when he left the tank, but Green later
testified that, after Degrove left, air socks that were inoperative or not attached to
a fan were placed in the tank to mislead inspectors about ventilation in the tank.
Chamberlain testified that she observed proper ventilation in the tank during the
tacking process. Roberts, Green’s supervisors at North Florida Shipyard, and
Miller all testified that they observed what they believed to be adequate ventilation
in the tank.
Green testified that he complained to various persons about the lack of
ventilation, but Green did not complain to Roberts or to any representative of
Marine Transport. Green referred to Roberts as a “ghost” during the steel renewal
project, and employees and crew members of Cape Edmont who remained on
board the ship during the repairs testified that Green did not complain to them
about the ventilation of the starboard aft peak tank. Green testified that he
complained to two of his supervisors at North Florida Shipyard and to an
individual wearing a white uniform who was not an employee of North Florida
7
Shipyard but who was responsible for certifying the tank for hot work. Green did
not dispute evidence that employees of Marine Transport did not wear white
uniforms.
Green used his own cutting torch while working in the starboard aft peak
tank. Over time, cutting torches are known to leak flammable gases, which can
cause the torch to ignite although the torch is turned off. Green knew his torch
had a leak, and Chamberlain and Green observed his torch light while it was
turned off. Green addressed the problem by tightening the gas knob on his torch
when he could, but failed to have the torch repaired or obtain a temporary torch
from North Florida Shipyard. Chamberlain testified that she did not report the
safety hazard to her supervisors.
On January 26, 2006, the “competent person” for North Florida Shipyard
inspected the starboard aft peak tank and certified that the area was safe for “hot
work.” Green testified that there was no ventilation in the tank, but his testimony
conflicted with that of his expert, who testified there was ventilation, albeit
inadequate, in the tank. Green’s testimony also conflicted with testimony from
Chamberlain and employees of North Florida Shipyard, who testified that the tank
had both positive and negative ventilation, and with evidence that burnt remnants
of positive and negative air socks were found in the tank.
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That afternoon, North Florida Shipyard allowed their employees to leave the
Cape Edmont to cash their paychecks. When Green left, he turned off his cutting
torch, but he did not disconnect his torch from the gas source or turn off the gas
source at the manifold. While Green was away, his torch leaked both oxygen and
chemolene into the starboard aft peak tank, and the dense gases pooled along the
floor of the tank. During the break, Roberts spoke with a supervisor of North
Florida Shipyard and the two men walked within ten or fifteen feet of the gas
manifold.
Green returned to Cape Edmont and, contrary to established safety policy,
entered the starboard aft peak tank to work alone. Before he donned his protective
gloves, Green opened the gas valve on his torch and attempted to light the torch
with his striker. The spark ignited the gas that had pooled in the floor of the tank
and caused a flash fire. Green escaped the tank, but he incurred severe burns.
A few hours later, North Florida Shipyard summoned Miller to inspect the
ship. Miller examined all the areas involving hot work. Around 6:50 p.m., Miller
certified that the atmospheric conditions in the starboard aft peak tank were safe to
resume hot work.
After a trial without a jury, the district court entered judgment in favor of
the United States and issued a thorough opinion containing its findings of fact and
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conclusions of law. Before it addressed what duty, if any, the United States owed
Green, the district court found that “Roberts was an independent contractor, not an
employee,” of Marine Transport. The district court found that Green, who was
“focusing on the relationship between Roberts and [Marine Transport],” had
“failed to offer any evidence of a direct agency relationship between Roberts and
the United States” or that Marine Transport had “actual or apparent” authority to
appoint Roberts as a subagent of the United States. The district court ruled, after
“[d]iscounting any conduct by Roberts,” that Green failed to establish any “basis
for imposing the active operations duty on” the United States because North
Florida Shipyard controlled the starboard aft peak tank, Green’s work, and the
ventilation system. The district court also ruled that Green “failed to satisfy the
basic conditions required for imposing a duty to intervene on” the United States in
the absence of “actual knowledge of any hazards in the tank” and the fact that “any
hazardous conditions were created entirely by [North Florida Shipyard] and its
employees” and the “leaking torch and pooled gas[] were transitory[] and actually
known by” Green.
II. STANDARDS OF REVIEW
This appeal is governed by two standards of review. “[T]he existence of an
agency relationship is a question of fact,” and related findings are “binding unless
10
clearly erroneous.” Archer v. Trans/Am. Servs., Ltd., 834 F.2d 1570, 1572–73
(11th Cir. 1988). “Under clear error review, the district court’s determination
must be affirmed ‘so long as it is plausible in light of the record viewed in its
entirety.’” Commodity Futures Trading Comm’n v. Gibraltar Monetary Corp.,
575
F.3d 1180, 1186 (11th Cir. 2009) (quoting Merrill Stevens Dry Dock Co. v. M/V
YEOCOMICO II,
329 F.3d 809, 816 (11th Cir. 2003)). We review de novo the
conclusion that the United States did not owe a duty to Green under the Longshore
and Harbor Workers’ Compensation Act. See Sea Byte, Inc. v. Hudson Marine
Mgmt. Servs., Inc.,
565 F.3d 1293, 1298 (11th Cir. 2009).
III. DISCUSSION
Green blames his injuries on the negligence of the United States. Green
argues that Roberts’s role in the steel renewal project establishes that he was an
agent or subagent of the United States. Green attributes to the United States
Roberts’s involvement in the project and argues that the starboard aft peak tank
was under the active control of the United States. In the alternative, Green argues
that the United States had a duty to intervene to protect him.
The record supports the finding of the district court that Green failed to
prove that Roberts was an agent of the United States. To create an agency
relationship, both the principal and agent must consent to the agency and the
11
principal must control the agent. Restatement (Third) of Agency § 1 (2005); e.g.,
Commodity Futures Trading Comm’n, 575 F.3d at 1189. Green failed to introduce
any evidence that the United States either knew that Marine Transport had hired
Roberts or consented for Roberts to act on behalf of the United States. See
Whetstone Candy Co. v. Kraft Foods, Inc.,
351 F.3d 1067, 1077 (11th Cir. 2003)
(holding there was “no agency relationship” between two companies absent a
“lack of acknowledgment” that one acted on behalf of another). Marine Transport
retained Roberts for specific tasks, and Marine Transport was billed for Roberts’s
services. Roberts had significant discretion in the performance of his job,
including when and how long he worked and the frequency with which he
inspected the work performed by North Florida Shipyard. See Restatement
(Second) of Agency § 14 cmt. b (1957) (“If the existence of an agency relation is
not otherwise clearly shown, as where the issue is whether . . . an agency has been
created, the fact that it is understood that the person acting is not to be subject to
the control of the other as to the manner of performance determines that the
relation is not that of agency.”); see Commodity Futures Trading
Comm’n, 575
F.3d at 1190 (relevant to control in agency relationship is authority to supervise
and discipline the agent). Roberts could not bind the United States through its
agent, Marine Transport. Although Marine Transport referred to Roberts as a
12
“Special Port Engineer,” provided Roberts an office, and permitted him to sign
inspection reports, Roberts could not contract on behalf of or obligate Marine
Transport to pay for work performed on the Cape Edmont. Employees of North
Florida Shipyard apparently recognized that Roberts had limited authority and
disregarded his suggestions about changes to safety protocol. The United States
had an agency relationship with Marine Transport, not Roberts.
The record also supports the finding that Green failed to prove that Roberts
was a subagent of the United States. “A subagent is a person appointed by an
agent to perform functions that the agent has consented to perform on behalf of the
agent’s principal and for whose conduct the appointing agent is responsible to the
principal.” Restatement (Third) of Agency § 3.15(1). An agent must have “actual
or apparent authority” to appoint a subagent, id. § 3.15(2), and Green submitted no
evidence that Marine Transport could appoint subagents. Moreover, “[w]hen an
agent is itself a corporation or other legal person, its officers, employees, partners,
or members who are designated to work on the principal’s account are subagents.”
Id. § 3.15 cmt. b. The district court found that Roberts was not an employee of
Marine Transport, and Green does not challenge that finding.
After repair operations commence, a shipowner can be liable to the
employee of a harbor contractor in one of two situations. First, an employee of a
13
harbor contractor can recover from the United States if it “actively involves itself
in the [repair] operations and negligently injures [the employee] or . . . fail[s] to
exercise due care to avoid exposing [the employee] to harm from hazards . . .
encounter[ed] in areas, or from equipment, under the active control of the vessel
during the [repair] operation.” Scindia Steam Nav. Co. v. De Los Santos, 451 U.S.
156, 167,
101 S. Ct. 1614, 1622 (1981). Second, an employee of a harbor
contractor can recover from the United States under a “very limited duty” to
intervene, Hunter v. Reardon Smith Lines, Ltd.,
719 F.2d 1108, 1112 (11th Cir.
1983), if it had become “aware that the ship, its equipment or gear poses a danger”
and that the harbor contractor had “act[ed] unreasonably to protect [its
employee].” Roach v. M/V Aqua Grace,
857 F.2d 1575, 1581 (11th Cir. 1988);
see e.g., Lampkin v. Liberia Athene Transp. Co.,
823 F.2d 1497, 1501 (11th Cir.
1987).
We agree with the district court that Green cannot recover from the United
States under the Longshore and Harbor Workers’ Compensation Act because the
United States did not breach a duty owed to Green. The United States was not
involved actively in the steel replacement project such that it could be liable for
allegedly inadequate ventilation. Green argues that the United States, by virtue of
Roberts’s regular inspections, was in active control of the starboard aft peak tank
14
and the equipment used to ventilate the tank, but the district court did not clearly
err when it found that Roberts was not an agent of the United States. Green failed
to prove that any agent or employee of the United States had constructive
knowledge of hazardous conditions in the tank. Even if the United States had
been involved actively, there was no evidence that it acted negligently. Roberts
and employees of North Florida Shipyard observed what appeared to be adequate
ventilation in the tank and could rely on the opinion of the competent person who
daily certified the tank that the work space was safe for hot work. See Lampkin,
823 F.2d at 1502–03. The United States also did not owe Green a duty to
intervene. Green failed to prove that the United States knew of a hazardous
condition. Green did not communicate his concerns about the ventilation system
to an employee or agent of the United States. See Futo v. Lykes Bros. Steamship
Co.,
742 F.2d 209, 218–20 (5th Cir. 1984) (mentioned in
Roach, 857 F.2d at
1582). Green argues that it was “open and obvious” from the deck of the ship that
employees of North Florida Shipyard did not, during breaks, disconnect gas lines
from the gas source, but Green did not prove that the failure to disconnect gas
lines alone created a hazardous condition. “[K]nowledge that a condition . . .
exists[] does not imply knowledge that the condition is dangerous.” Casaceli v.
Martech Intern., Inc.,
774 F.2d 1322, 1331 (5th Cir. 1985) (discussed in Roach,
15
857 F.2d at 1582). Moreover, the record supports the finding of the district court
that Green knew that his cutting torch was leaking dangerous gases, yet he failed
to have his torch repaired. Green was in the best, if not the only, “position to
appreciate fully the risk and avoid the danger” created by his cutting torch.
Stockstill v. Gypsum Transp.,
607 F.2d 1112, 1117 (5th Cir. 1979).
IV. CONCLUSION
The judgment in favor of the United States is AFFIRMED.
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