*Circuit Judge of the Eighth Circuit, sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40390

 

HORACE FONTENOT, 

 Plaintiff-Appellee,

THE TRAVELERS INSURANCE COMPANY,

 Intervenor Plaintiff-Appellee

versus

UNITED STATES OF AMERICA,

 Intervenor Defendant-Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas

 

July 9, 1996

Before LAY*, HIGGINBOTHAM, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

I

This is a tort suit against the United States as vessel owner

brought by a welder employed by an independent contractor engaged

in its repair. The worker slipped on a hatch cover and was

severely injured. The district court found that the government

breached its second and third Scindia duties and awarded

substantial damages to the worker and the intervening workmen’s
 

2Scindia Steam Navigation Co. v. De los Santos, 451 U.S. 156

(1981).

2

compensation carrier.2 The trio of duties set forth in Scindia,

now a litany, include: (1) a “turnover duty” looking to the

condition of the vessel at the time the stevedore or repair company

takes over; (2) a duty to exercise reasonable care to prevent

injuries to longshoremen working in areas remaining under “the

active control of the vessel” or when the vessel owner “actively

involves itself in the cargo operations,” id. at 167; and (3) a

“duty to intervene” if the stevedore’s judgment “is obviously

improvident.” 451 U.S. at 175. The district court found that the

government retained control over the vessel and had actual

knowledge of the dangerous conditions on board. Accepting the

facts as found by the district court, we conclude that the

government breached no duty owed Fontenot, an employee of an

independent contractor engaged in the repair of the vessel. We

reverse and render.

II

The M/V DEL VIENTO is a public vessel of the United States.

This breakbulk general cargo vessel was not operational when

purchased by the United States and had never been operated by the

government at the time of the accident. On its purchase, the

government contracted with Apex Marine to act as its general agent

and ship manager. Apex Marine in turn engaged Horace Fontenot’s

employer, Coastal Marine, to work on the vessel. The United States
3

maintained no crew aboard the vessel while Coastal Marine did its

work. Coastal Marine supervised Fontenot’s welding work. Fontenot

was not subject to direction by others. 

One morning while walking on the vessel’s hatch covers to his

work area, Fontenot slipped and fell. It had rained the day

before, and the deck and hatch covers were wet. The workers on the

vessels used the hatch covers as walkways because the decks and

passageways were cluttered with machinery and tools. Although the

workers had no other practical means of moving about on the deck,

the hatch covers were not painted with nonskid paint, and they had

no matting, handrails, or toeboards. It is undisputed that these

conditions were obvious to all workers, including Fontenot, and

that the United States knew that the workers were using the hatch

covers as walkways.

The pretrial order recited a number of “admitted facts,”

including a description of the accident itself. The parties agreed

that: 

(22) When Mr. Fontenot reported to work aboard the M/V

DEL VIENTO at 7:00 a.m. on November 18, his supervisor at

Coastal Marine assigned him to continue welding rusted

and holed pipes, just as he had been doing on Friday,

November 15. 

(23) When Mr. Fontenot boarded the M/V DEL VIENTO on

November 18, 1991, he reported to a guard shack on the

forward, port hatch cover, crossed a “scaffold board” to

the forward, centerline hatch cover, and walked toward

the after end of that hatch cover, where he was to begin

welding for the day. His assistant was with him, but

stopped in a portable toilet on the forward, centerline

hatch cover. 

(24) As Mr. Fontenot approached the after end of the

forward, centerline hatch cover, he slipped in oil and

water on the hatch cover, lost his balance completely,
4

grabbed for a nearby cable but missed, and pitched head

first off the after end of the hatch cover, causing his

injuries. 

(25) The oil on the forward, centerline hatch cover in

which Mr. Fontenot slipped was left there earlier by

personnel who had disassembled valves there. 

(26) The water on the forward, centerline hatch cover in

which Mr. Fontenot slipped was rainwater that had

accumulated during the rainy night of November 17. 

(27) Mr. Fontenot’s slip and fall occurred at dusk and

there was no problem with lighting on the hatch cover.

(28) Mr. Fontenot knew that he was not walking on

nonskid paint as he crossed the forward, centerline hatch

cover. 

(29) On November 18, 1991 at the time of Plaintiff’s

accident, the hatch cover upon which Plaintiff was

walking was wet, and had hydraulic oil on it, left

earlier the week before by other personnel. 

III

 The government denies that it breached any duty owed as the

vessel’s owner. It does not attack the findings of fact by the

district court as clearly erroneous. Rather, accepting the facts

as found by the district court, the government argues that the

ultimate findings cannot be sustained under Scindia. 

A

First, the government urges that the district court erred in

concluding that it was “in control of the vessel” at the time of

the accident. There were four government men at the site working

from an office located on the shore. The government argues that

these men “did not supervise employees, direct the work, determine

where equipment was to be stored, or tell workers how they were to

get to and from their work stations.” In response, Fontenot points
5

to only three items of testimony relevant to the issue of control.

Fontenot’s son who also worked on the DEL VIENTO for the same

employer, testified that on one occasion a “government man”, in the

presence of the foreman, asked him to straighten a crooked steel

wheel. His son further testified that he might have once told a

government agent — “I think it was a government man” — about the

need for scaffolding. Finally, Fontenot points to the undisputed

fact that the government agents told Coastal Marine to improve its

housekeeping — to keep “paper goods, coffee cups, cigarette butts,

that sort of thing out of engine spaces.” 

As for the straighten-the-wheel request, the government urges

that this was little more than an inspection for conformity to

specifications and was made in the presence of the Coastal foreman

— not the type of control envisioned by Scindia. The testimony

regarding a request for scaffolding, the government replies, was

equivocal regarding the identity of the person to whom it was made,

and there is no evidence of any response to the request that might

signal control over the condition of the work site. Finally, the

government urges that an owner’s request that the workplace be kept

more tidy is no more than “the reasonable action of an owner

interested in protecting his property.” In short, the government

argues that accepting that these events occurred, they are not

singly or in combination a retention of control under Scindia. 

 This dispute over the presence of control is not resolvable

by accepting one version of fact over another version. Rather, the

answer lies in the meaning of Scindia, an issue of law. We have
 

3Futo v. Lykes Bros. Steamship Co.., 742 F.2d 20 (5th Cir.

1984). 

 

4Turner v. Costa Line Cargo Servs., Inc., 744 F.2d 505 (5th

Cir. 1984). 

 

5Pimental v. LTD Canadian Pacific Bul, 65 F.2d 13 (5th Cir.

1992).

 

6742 F.2d at 210. 

 

7744 F. 2d at 509.

6

interpreted the second Scindia test in the Futo,

3 Turner,4 and

Pimental5 cases. We made plain in Futo that a vessel owner will

not trigger a duty by having its employees board the vessel daily

“to ensure the security of the ship and to check on the progress of

the contractor’s work."6 In Turner we found a vessel owner liable

for a fall suffered when the worker was required to “venture

outside of the area of normal and routine cargo operations to areas

within the ship’s control and was forced to cross the oil slick in

a location outside of his work area.”7 In Pimental we found no

liability existed under the second Scindia test because the fall

occurred in an area turned over to the stevedore.

Here, the entire vessel had been turned over to the contractor

over a month before the accident. It was Coastal Marine that put

the gear in the passageways, forcing the workers to walk on the

hatch covers. The vessel had no crew, so the oil spill and its

attempted cleanup were all by Coastal workers. We are persuaded

that the vessel owner here had no liability under the second

Scindia duty. 
 

8451 U.S. at 175-176.

 

9742 F.2d at 220.

 

10Casaceli v. Martech Int'l, Inc., 774 F.2d 1322 (5th Cir.

1985), cert. denied, 475 U.S. 1108 (1986); see also Williams v. M\V

Sonora, 985 F.2d 808 (5th Cir. 1993)

7

B

Scindia requires a vessel owner to intervene if the vessel

owner has actual knowledge both of the hazard and that the

contractor, in the exercise of “obviously improvident” judgment

under “pertinent statutes, regulations, or custom,” means to

continue working in the face of it.8 There are no such statutes or

regulations and, as we will explain, there is no competent evidence

of custom. 

We have developed several implementing principles. In

Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir.

1996), we emphasized that the shipowner’s duty to intervene under

the third Scindia exception “is narrow and requires ‘something

more’ than mere shipowner knowledge of a dangerous condition.” We

held in Futo that this duty to intervene “does not...extend to an

open and obvious transitory condition” created by the contractor.

We insisted that the vessel owner must “have actual knowledge that

a dangerous condition exists and actual knowledge that the

stevedore is not acting to protect the longshoreman.”9 In

Casaceli10 we announced a six factor test to guide the determination

whether the vessel owner has a duty to intervene: (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
 

11774 F.2d at 1328 (citing Futo, 742 F.2d at 218, 221). 

8

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; and (6) whether the shipowner

assumed any duty with regard to the dangerous item.11

As the government points out, the danger of oil on the wet

hatch covers was open and obvious, and was not created by ship gear

controlled by the vessel owner. Nor was there a defect in the

vessel. Nonskid paint, toeboards, bridges, and handrails were not

essential to the operation of the vessel. To the contrary, the

crew of the vessel would not routinely walk on the hatchways. It

was in the repair of the vessel that the usual passageways were

blocked, sending the employees of the contractor over the

hatchways. This operation was under the exclusive control of the

contractor, Fontenot's employer. 

Finally, we find no value in the testimony of several expert

witnesses. The government's expert testified that marine custom

placed all responsibility for safety during repair of a vessel on

the repair contractor. The plaintiff offered the "expert" opinion

of a tugboat operator that the responsibility lay with the vessel

owner. The testimony of neither "expert" witness was competent.

An expert could be helpful in dealing with specific equipment or in

detailing a repair or stevedoring functions and the custom

attending those functions. Custom is relevant to the legal

standards, as Scindia explained, but custom itself is not law. At
 

12742 F.2d at 221 n.24

 

13451 U.S. at 168-69

9

the level of generality at which both witnesses cast their

opinions, they confused evidence of custom with the normative rules

of law. The judge doesn't need an expert to tell him the law,

directly or dressed as custom. We rejected similar testimony in

Futo.

12

Scindia read section 905(b) as placing the primary

responsibility for the safety of the longshoreman upon the

stevedore. It found that "[i]t would be inconsistent with the Act

to hold ... that the shipowner has a continuing duty to take

reasonable steps to discover and correct dangerous conditions that

develop during the loading and unloading process. Such an approach

would repeatedly result in holding the shipowner solely liable for

conditions that are attributable to the stevedore, rather than the

ship."13

IV

The United States is not liable to this severely injured

worker. Congress has allocated the duties, and we must follow. 

REVERSED and RENDERED.