*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30190

Summary Calendar

MATT J. SANDERS, ET AL.,

Plaintiffs-Appellants,

VERSUS

CUDD PRESSURE CONTROL, INC., ET AL.,

 Defendants,

CUDD PRESSURE CONTROL, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

(95-CV-1023)

October 20, 1997

Before BENAVIDES, JOLLY and PARKER, Circuit Judges.

Per Curiam:*

Matt J. Sanders and his wife Rhonda H. Sanders, individually

and on behalf of their minor daughter Macie Michelle Sanders, sued

Cudd Pressure Control, Incorporated pursuant to the Longshore and
2

Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §905(b), and

general maritime law, seeking damages for injuries sustained by

Matt J. Sanders aboard the M/V INCA. Plaintiffs, Rhonda H. Sanders

and Macie Sanders, also sought damages for loss of consortium.

Sanders disputes the district court’s findings of fact and

conclusions of law. On appeal, the district court’s findings of

fact must be accepted unless they are clearly erroneous. Turner v.

Costa Line Cargo Services, Inc., 744 F.2d 505, 507 (5th Cir. 1984).

The Court of Appeals reviews the district court’s conclusions of

law de novo. Tamez v. City of San Marcos, Texas, 118 F.3d 1085,

1094 (5th Cir. 1997).

During the trial, the district court granted the defendant’s

motion for judgment as a matter of law as to Rhonda H. Sanders’

claims after the plaintiffs’ attorney voluntarily abandoned the

claims. The judgment issued by the district court did not name

Rhonda H. Sanders. Consequently, Rhonda H. Sanders cannot appeal

from the judgment of the district court. The Court of Appeals will

not consider matters on appeal that were not presented to the

district court. See Blanchard v. Forrest, 71 F.3d 1163, 1169 (5th

Cir. 1996). Because Rhonda H. Sanders’ claims were not presented

to the district court, the Court of Appeals has no jurisdiction to

consider her claims as an appeal from a final judgement. See 28

U.S.C. § 1291. 

The trial continued as to the remaining claims of Matt J.
3

Sanders. After the bench trial, the district court made the

following findings of fact: On December 31, 1994, the M/V INCA,

owned by defendant-appellee Cudd Pressure Control (“Cudd”), docked

at the Broussard Brothers dock to be refueled and have a tubing

reel replaced. After refueling, Kevin Broussard, the crane

operator at Broussard Brothers, boarded the M/V INCA to receive

instructions as to the loading and unloading of a tubing reel

aboard the vessel. Broussard noticed that the deck of the M/V INCA

was slippery, but concluded that the condition was not unusual and

that the operation could be conducted safely. The plaintiffappellant, Matt J. Sanders, was employed as a roustabout by

Broussard Brothers. Broussard instructed Sanders to assist in the

loading operation. Prior to Sanders boarding the M/V INCA to assist

with the loading operation, Kevin Broussard warned Sanders of the

slippery condition of the deck. Although two Cudd employees

observed the loading operation and helped guide the tubing reel

into position, the loading operation was conducted by Broussard

Brothers employees. The two Cudd employees were not actively

involved in the loading and unloading operation. After

successfully completing the loading operation, Sanders’ foot

slipped out from under him as he stepped over a jackup pump and he

fell, injuring his back and neck. The slippery condition of the

deck was open and obvious and the condition was not unreasonably

dangerous. Cudd had no duty to intervene in the loading operation

being conducted by Broussard Brothers. Thus, the district court
4

found that Cudd had not breached any duty and was not liable for

the injuries sustained by Sanders.

To prevail on a LHWCA claim, a longshoreman must prove by a

preponderance of the evidence that: (1) the vessel owner failed to

warn of hidden defects of which the owner knew or should have known

upon turning the vessel over to the stevedore; (2) the vessel owner

failed to protect the longshoreman from a hazardous condition in an

area under the active control of the owner; or (3) the vessel owner

failed to intervene in the stevedoring operations when the owner

had actual knowledge both of a hazard and that the stevedore, in

the exercise of obviously improvident judgment, means to work on in

the face of the hazard and therefore cannot be relied upon to

remedy it. See Scindia Steam Navigation Co. v. De Los Santos, 451

U.S. 156, 176 (1981); Greenwood v. Societe Francaise De, 111 F.3d

1239, 1245 (5th Cir. 1997). 

Sanders argues that Cudd breached its duty to turn over a safe

vessel because of the slippery condition of the deck. The duty to

turn over a safe vessel obligates the vessel owner to warn the

stevedore of any hidden dangers, of which the vessel owner knows or

should know, and to remedy any unreasonably dangerous conditions.

See Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246 (5th

Cir. 1997). In general, the defendant has not breached its duty to

turn over a safe vessel if the defect causing the injury to the

longshoreman is open and obvious and one that the longshoreman
5

should have seen. See Pimental v. LTD Canadian Pacific Bul, 965

F.2d 13, 15 (5th Cir. 1992). If the longshoreman knew of the

defect, then it is open and obvious. See Greenwood, 111 F.3d at

1246. A vessel owner, however, may still be liable for injuries

caused by an open and obvious defect if the longshoreman’s only

alternatives to avoiding the hazard are unduly impracticable or

time consuming. See Treadaway v. Societe Anonyme Louis-Drefus, 894

F.2d 161, 167 (5th Cir. 1990). Therefore, if Sanders had no

alternative but to confront a dangerous condition, then Cudd could

be held liable. 

Sanders contends that the district court erred by concluding

that Cudd was not liable due to the open and obvious nature of the

dangerous condition. The district court, however, did not absolve

the defendant of liability because the slippery deck was open and

obvious. Although the district court found that the condition of

the deck was open and obvious, it also found that the deck was not

unreasonably dangerous based on the testimony of Kevin Broussard,

who testified that the condition of the deck was not unusual.

Therefore, as the court concluded, Cudd did not breach its duty to

turn over a reasonably safe work environment because the slippery

condition of the deck was not unreasonably unsafe.

Additionally, the plaintiff argues that the injury occurred

while the defendant was in active control of the cargo operations.

A vessel owner may be liable for a longshoreman’s injuries when the
6

vessel is actively involved in cargo operations, or if the vessel

fails to exercise due care to avoid exposing the longshoreman to

hazards in areas under the active control of the vessel during the

stevedoring operation. Scindia, 451 U.S. at 167. The district

court found that Cudd employees were not actively involved in the

cargo operation.

We have reviewed the record and the briefs on appeal and

conclude that no clear error occurred. Furthermore, we conclude

that the correct legal standard was applied by the district court.

Accordingly, the judgment of the district court is

AFFIRMED.