SECTION I

ORDER AND REASONS

LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

Robert Hicks ("Hicks") alleges that he was injured during a personnel basket transfer on March 20, 2016 between the MAD DOG, an offshore platform on the Outer Continental Shelf ("OCS") that is owned and operated by BP Exploration and Production Inc. ("BP Exploration"), and the OCSV SIEM STINGRAY ("STINGRAY"), a vessel time chartered by BP Exploration that was being used at the time as living quarters for some of the MAD DOG's workers.1 Among the defendants that plaintiffs seek to hold accountable for Hicks' alleged injuries are BP Exploration and BP America Production Company ("BP America") (collectively, "the BP defendants").

Before the Court is the BP defendants' motion for summary judgment.2 The BP defendants contend that plaintiffs' claims against them should not proceed to trial, because (1) "the plaintiff[s] ha[ve] failed to come forward with any evidence that any alleged act of negligence by [ ] workers involved in the transfer breached a standard of care or actually caused his injury"; (2) "the claims against BP based on any alleged negligence from the platform should be dismissed on the basis of the independent contractor defense"; and (3) "BP did not breach any duties of a time charterer in regard[s] [to] the [ ] STINGRAY."3 Plaintiffs oppose the motion.4

I.

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its initial burden, the non-moving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The showing of a genuine issue of material fact is not satisfied by creating "`some metaphysical doubt as to the material facts,' by `conclusory allegations,' by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. However, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor." Id. at 255, 106 S.Ct. 2505; see also Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

Moreover, "[a]lthough the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible ..., the material may be presented in a form that would not, in itself, be admissible at trial." Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11 Moore's Federal Practice-Civil ¶ 56.91 (2017)). "This flexibility allows the court to consider the evidence that would likely be admitted at trial ... without imposing on parties the time and expense it takes to authenticate everything in the record." Maurer v. Independence Town, 870 F.3d 380, 384 (5th Cir. 2017).

II.

After reviewing the parties' submissions and the applicable law, the Court concludes that summary judgment in the BP defendants' favor is not appropriate.

A.

The first ground for summary judgment raised by the BP defendants is that "the plaintiff[s] ha[ve] failed to come forward with any evidence that any alleged act of negligence by [ ] workers involved in the transfer breached a standard of care or actually caused his injury."5 The Court previously concluded that Louisiana law governs plaintiffs' non-time charterer claims against BP.6

"In an action [under Louisiana law] to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence."7 Hanks v. Entergy Corp., 944 So.2d 564, 578 (La. 2006).

Id. at 579.

"Duty varies depending on the facts, circumstances, and context of each case and is limited by the particular risk, harm, and plaintiff involved." Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) (discussing Louisiana law). That being said, "[t]here is an almost universal duty on the part of the defendant in negligence cases to use reasonable care so as to avoid injury to another." Boykin v. Louisiana Transit Co., 707 So.2d 1225, 1231 (La. 1998); cf. Dupre, 20 F.3d at 157 ("As a general rule [under Louisiana law], the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm." (internal quotation marks omitted)). "Whether the defendant breached [a] duty and whether that breach was a cause in fact of plaintiff's injuries are factual questions to be determined by the factfinder." Hanks, 944 So.2d at 580.

Having reviewed the materials submitted by the parties in connection with the present motion, the Court concludes that a reasonable jury could find that workers should not have proceeded with Hicks' personnel basket transfer in light of weather conditions, and that the decision to proceed with the transfer was both the cause-in-fact and legal cause of injury to Hicks.9 Therefore, the Court will deny the BP defendants' request for summary judgment on breach and causation grounds.

B.

The next ground for summary judgment raised by the BP defendants is that "the claims against BP based on any alleged negligence from the platform should be dismissed on the basis of the independent contractor defense."10 The BP defendants contend that platform workers involved in the personnel basket transfer that allegedly injured Hicks — including, inter alia, Freddie Greer ("Greer"),11 the site lifting coordinator — were independent contractors. Based on this contention, the BP defendants argue that Louisiana's independent contractor defense shields them from liability for those workers' actions.

"The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis." McLeod v. Moore, 7 So.3d 190, 192 (La. Ct. App. 2d Cir. 2009). For an independent contractor relationship to exist between two parties under Louisiana law, the following five factors must be satisfied:

Ledent v. Guar. Nat. Ins. Co., 723 So.2d 531, 537-38 (La. Ct. App. 2d Cir. 1998); see also Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385, 390-91 (1972); Bourquard v. L.O. Ausauma Enterprises, Inc., 52 So.3d 248, 253 (La. Ct. App. 4th Cir. 2010).

As relevant to the present motion, it is well-established that "[a] principal generally is not liable for the offenses committed by an independent contractor while performing its contractual duties." Ledent, 723 So.2d at 537. However, "[t]wo exceptions to this general rule exist: (1) where the work is ultra hazardous; and (2) if the principal reserves the right to supervise or control the work of the independent contractor."12 Id.

In their memorandum in support of its motion for summary judgment, as well as in their reply, the BP defendants do not attempt to establish that the prerequisites for the existence of an independent contractor relationship are satisfied with respect to some or all of the workers involved the personnel basket transfer at the center of this case.13 Rather, the BP defendants appear to assume that the use of the words "independent contractor" in a contract, accompanied by boilerplate language about "control" and "supervision," is sufficient under Louisiana law to establish the existence of such a relationship.14 It is not.15 See, e.g., Hickman, 262 So.2d at 390-91 (opining that "[t]he legal relationship between [one party] and [another party] is to be determined from the contract between and from their intentions in establishing and carrying out that relationship as manifested in its performance and the surrounding circumstances" and then explaining the indicators that an independent contractor relationship exists); Arroyo v. E. Jefferson Gen. Hosp., 956 So.2d 661, 664 (La. Ct. App. 5th Cir. 2007) ("The existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital. The courts will inquire as to the real nature of the relationship and the degree of control exercised or ability of control by the hospital over the doctor's activities."); Ledent, 723 So.2d at 537-38 (articulating the factors that guide a court's determination of whether an independent contractor relationship exists).

The Court concludes that the BP defendants have not established, for purposes of summary judgment, that the platform workers involved in the personnel basket transfer that allegedly injured Hicks were independent contractors. As such, the BP defendants have failed to demonstrate as a threshold matter that the independent contractor defense is even applicable, and summary judgment in the BP defendants' favor based on this defense is unwarranted.16

C.

The final ground for summary judgment raised by the BP defendants is that they "did not breach any duties of a time charterer in regard[s] [to] the [ ] STINGRAY."17 Worded differently, the BP defendants contend that BP Exploration's status as time charterer of the STINGRAY does not provide a viable path for plaintiffs to recover from them.18

"[T]he law of th[e] [Fifth] Circuit is clear that `a time-charterer is not liable [for injuries caused by a vessel's negligence]... unless the cause of the harm is within the charterer's traditional sphere of control and responsibility or has been transferred thereto by the clear language of the charter agreement.'" Moore v. Phillips Petroleum Co., 912 F.2d 789, 791 (5th Cir. 1990) (quoting Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1343 (5th Cir. 1987)).

Id. at 791-92 (internal citations omitted); see also Kerr-McGee, 830 F.2d at 1341 (5th Cir. 1987) (explaining the traditional responsibilities of a time charterer).

In this case, neither the BP defendants nor plaintiffs have demonstrated that the time charter agreement at issue placed non-traditional duties on the BP defendants. Cf. Moore, 912 F.2d at 791 ("The parties in this case have not demonstrated that their agreement altered the time charterer's traditional duties. We therefore examine ODECO's traditional time-charterer duties."). Moreover, the undisputed "cause of the [alleged] harm" — a personnel basket transfer between the MAD DOG and the STINGRAY — falls outside a time charterer's "traditional sphere of control and responsibility." Kerr-McGee, 830 F.2d at 1343; see Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213, 1216 (5th Cir. 1993) ("(In Moore [v. Phillips Petroleum Co., 912 F.2d 789 (5th Cir. 1990)], we explained that the `traditional time-charterer duties' are limited to the vessel's commercial activities, such as designating the cargo and the routes and destinations, specifically noting that the vessel owner retains responsibility for providing `a reasonably safe means of access for those boarding or leaving the vessel.'); cf. Moore, 912 F.2d at 792 ("As the vessel owner, Co-Mar was responsible for access to and from its boat. The rope swing is an artificial means of ingress and egress to and from the fixed platform. The responsibility for the hazards it presents falls ... outside of the traditional duties of a time charterer.").

However, the Court must also consider whether, "under the instant circumstances," the undisputed facts demonstrate that the BP defendants "altered the traditional allocation of duties and assumed control of (and thus responsibility for) the [personnel basket transfer] proceedings" from the STINGRAY. Forrester, 11 F.3d at 1216. This inquiry ventures beyond the terms of the time charter agreement itself and examines the actual division of responsibility on the ground — or, more accurately, on the sea.

In this case, and at the time of the alleged incident involving Hicks, the BP defendants had in place a detailed "lifting assurance plan" ("plan") governing personnel basket transfers to and from the MAD DOG.19 The plan "outline[d] the roles, responsibilities and procedures for ongoing personnel transportation by personnel basket (Billy Pugh X-904) during the Flotel operations in support of the Mad Dog construction activities."20 More specifically, the plan delineated the responsibilities of various persons, including the STINGRAY's captain, during personnel basket transfers;21 prescribed a personnel basket transfer training protocol applicable to "all personnel";22 defined the preparations required to initiate a personnel basket transfer;23 and provided a procedure to follow during personnel basket transfers.24

According to the plan, the MAD DOG's Offshore Installation Manager ("OIM"), the highest ranking individual on the MAD DOG25 and a BP employee,26 had "the overall responsibility [for] the coordination and operation of personnel transfer operations."27 While the OIM could "delegate some or all of these responsibilities to competent members of his team," he nevertheless retained a duty to "ensure that all such operations [were] carried out in accordance with [the plan] and in accordance with BP policy."28

Further, the plan directed the BP defendants' "Regional Lifting Authority or designee" to make recurring site visits "to ensure full compliance with [the] procedure" outlined in the plan. When asked at his deposition whether he would "on his own decide to conduct transfers differently than BP had specified in their plan, unless [he] had gotten BP's approval," the captain of the STINGRAY testified that he would not.29

Based on the record before it, the Court concludes that genuine disputes of material fact exist concerning whether the BP defendants "usurped the traditional control that is retained by the vessel's crew in a time charter situation." Forrester, 11 F.3d at 1217. Therefore, the Court will not grant summary judgment to the BP defendants on time charterer liability.

III.

For the foregoing reasons,

IT IS ORDERED that the BP defendants' motion is DENIED. New Orleans, Louisiana, April 19, 2018.