*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this opinion should not be published and is not precedent except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.

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United States Court of Appeals

Fifth Circuit

FILED

May 14, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 05-31055

______________________

JOHN FONTENOT,

Plaintiff-Appellant,

versus

McCALL’S BOAT RENTALS, INC.; SEACOR MARINE, LLC,

Defendants-Appellees.

________________________________________________

On Appeal from the United States District Court for the

Eastern District of Louisiana,

Civil Action No. 03-2831

________________________________________________

Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

DENNIS, Circuit Judge:*

Appellant John Fontenot (“Fontenot”) brought this action

against McCall’s Boat Rentals, Inc. (“McCall’s”) and SEACOR

Marine, LLC (“SEACOR”), seeking recovery under section 5(b) of

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),

33 U.S.C. § 905(b). After a bench trial before a United States

Magistrate Judge, the magistrate judge entered judgment in
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favor of the defendants-appellees, and Fontenot now appeals.

For the reasons set forth below, we AFFIRM.

I.

After considering the evidence presented at trial, the

magistrate judge made the following findings of fact relevant

to this appeal: 

On August 26, 2002, Fontenot was employed as a roustabout

by Nabors Offshore Corporation and was working on a Chevron

U.S.A. platform. Fontenot and his brother, Prosper Fontenot

(“Prosper”), were assigned to perform rigging work aboard the

vessel M/V DEANNE McCALL, owned by McCall’s and SEACOR, in

connection with the backloading of cargo and equipment from the

platform to the vessel. The backloading work was performed by

Fontenot and Prosper, as well as crane operator Robert

Willingham (“Willingham”), also a Nabors employee. Prosper

served as the lead roustabout for the backloading operation.

Prosper and Willingham each had two-way radios, which permitted

them to communicate with each other and with the captain during

the operation.

Aboard the vessel with Fontenot and Prosper were the

captain of the vessel, Kevin Primeaux (“Primeaux”), and the

deckhand, Randall Smith (“Smith”). Although the seas were only
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2-4 feet, Primeaux needed to maneuver the vessel throughout the

backloading process to position it under the crane and away

from the platform. Primeaux gave the crane operator and

roustabouts general instructions for the backloading operation,

telling them to load the tallest and heaviest items toward the

front of the deck and to keep the load balanced.

Notwithstanding Primeaux’s general instructions, Willingham,

the crane operator, not Primeaux, was in charge of the

backloading operation.

The cargo that was backloaded to the vessel included an

18,000-pound “wireline unit,” a number of full cutting boxes,

a tool pallet, a “gun rack” — a metal rack used to hold 20-foot

lengths of pipe, know as “guns” — and three full, heavy,

reusable nylon trash bags. Throughout the backloading

operation, Fontenot and Prosper attempted to maintain a clear,

unobstructed walkway from the wheelhouse to the stern of the

vessel. Maintenance of a clear walkway was one of the items

listed on the Job Safety Analysis (“JSA”) for the operation.

The JSA is a SEACOR document that is prepared by the captain

of the vessel before any loading operation and is intended to

identify any potential safety hazards that might arise during

the course of the operation. Fontenot, Prosper, Primeaux and
1The magistrate judge found that Primeaux was never aware that

the trash bag was blocking the walkway. Smith eventually became

aware that the bag was blocking the walkway, as he was forced to

walk along the gun rack to land the crane’s personnel basket at the

stern of the vessel.

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Smith all signed the JSA. 

The three nylon trash bags were lowered onto the vessel

near the end of the backloading operation. After the bags were

loaded, however, the crane operator loaded an additional

cutting box onto the deck of the vessel. As the cutting box

was being lowered, part of the box caught one of the trash

bags, and the bag fell over onto the deck, blocking the

walkway. Although Fontenot and Prosper knew that the trash bag

had fallen and blocked the walkway, Primeaux and Smith were not

aware of that fact,1 and the fallen bag was never moved. After

a time, the captain instructed Fontenot and Prosper to chain

and bind the cargo to the deck, which they did. The fallen bag

remained in the walkway for approximately 15-20 minutes as

Fontenot and Prosper chained down the load. 

As Fontenot finished binding the load, Smith and Prosper

proceeded to the vessel’s stern in order to reach the crane’s

personnel basket. Because there was not a clear walkway to the

stern, Smith walked along the top of the gun rack. The gun

rack was positioned along the starboard edge of the deck, with
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the pipes running parallel to the rail. The rack was not full,

and there were several gaps between the pipes. Smith and

Prosper both successfully negotiated the gun rack and reached

the personnel basket. Fontenot followed, but as he walked over

the gun rack, his foot slipped into a gap between the pipes and

he fell, injuring himself. 

The magistrate judge analyzed Fontenot’s claims under the

framework set out by the Supreme Court in Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), and

concluded that the defendants did not breach any duty of care

to Fontenot. Specifically, the magistrate judge found that

Fontenot’s injury was not caused by a hazard under the active

control of the defendants, and that the defendants had no duty

to intervene to remedy the unsafe condition because Primeaux

did not know about the condition before the accident and

Fontenot did not show that the condition was unreasonably

dangerous.

In making those findings, the magistrate judge expressly

accepted the testimony of Primeaux, Smith, and Willingham as

credible. The magistrate judge rejected, as lacking

credibility, the testimony of both Fontenot and Prosper. The

magistrate judge determined that the testimony of Fontenot and
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Prosper was internally inconsistent, and that many parts of

their testimony conflicted with the testimony of other,

credible witnesses. The magistrate judge specifically rejected

Prosper’s testimony that: (1) after the trash bag fell, he

asked Smith to have Primeaux notify the crane operator that the

crane was needed to move the fallen bag; and (2) he could not

contact the crane operator himself because the battery on his

radio had died and the crane operator would not have been able

to see hand signals. 

Based on these findings of fact and conclusions of law,

the magistrate judge held that Fontenot had not established

that the defendants breached any duty to him, and, accordingly,

the magistrate judge entered judgment in favor of the

defendants.

II.

On appeal after a bench trial, this court reviews the

district court’s resolution of questions of law and mixed

questions of law and fact de novo. See Luhr Bros., Inc. v.

Crystal Shipowning, Pte. Ltd. (In re Luhr Bros. Inc.), 325 F.3d

681, 684 (5th Cir. 2003). Questions about the existence or

scope of a vessel owner’s duties to an independent contractor

are questions of law. See Manuel v. Cameron Offshore Boats,
7

Inc., 103 F.3d 31, 33 (5th Cir. 1997); Fontenot v. Travelers

Ins. Co., 89 F.3d 205, 208 (5th Cir. 1996). The district

court’s findings of fact are reviewed for clear error. See

Moore v. ANGELA MV, 353 F.3d 376, 380 (5th Cir. 2003); Turner

v. Costa Line Cargo Servs., Inc., 744 F.2d 505, 507-08 (5th

Cir. 1984). In an admiralty case, determinations about the

existence of negligence are considered as findings of fact and

are subject to clear error review. See Luhr Bros., 325 F.3d

at 684; Manuel, 103 F.3d at 33; Theriot v. Bay Drilling Corp.,

783 F.2d 527, 535 n.6 (5th Cir. 1986). 

III.

Fontenot makes three arguments on appeal. First, he

claims that the magistrate judge erred by rejecting Prosper’s

uncontradicted testimony that he asked Smith, the deckhand, to

have the captain call the crane operator to tell him that the

roustabouts needed the crane in order to move the fallen trash

bag. Second, Fontenot argues that the magistrate judge erred

when he found that the defendants did not maintain “active

control” over the deck at the time of the accident. Third,

Fontenot asserts that the defendants had a duty to intervene

because they were aware that the fallen trash bag created an

unreasonably dangerous condition.
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A.

Fontenot’s first argument — that the magistrate judge

erred by not accepting Prosper’s testimony that he asked Smith

to tell the captain that the roustabouts needed the crane in

order to move the fallen trash bag — merits little discussion.

Fontenot asserts that the magistrate judge was required to

accept Prosper’s testimony on that point because no other

witness specifically testified about whether or not Prosper

spoke to Smith.

Regardless of whether Prosper’s testimony conflicted with

other evidence on this specific point, however, the magistrate

judge did not clearly err by refusing to credit that testimony.

It is well-established that credibility determinations are

reserved for the trial judge or the jury, and this court

“cannot second guess the district court’s decision to believe

one witness’ testimony over another’s or to discount a

witness’ testimony.” Canal Barge Co. v. Torco Oil Co., 220

F.3d 370, 375 (5th Cir. 2000). Moreover, the finder of fact

is not necessarily obliged to accept a witness’s testimony,

even if some parts of it are not directly contradicted by other

testimony in the record. See Lujan v. United States, 431 F.2d

871, 872 (5th Cir. 1970). In this case, the magistrate judge
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explained in detail why he did not believe that Prosper’s

testimony was credible — he found that the testimony was

internally inconsistent and conflicted with the testimony of

other witnesses who the magistrate judge found credible.

Fontenot has not, and cannot, show that those credibility

determinations were unsupported by the record. Under these

circumstances, we cannot say that the magistrate judge clearly

erred by rejecting Prosper’s testimony.

B.

Fontenot’s remaining arguments are that the magistrate

judge erred when he held that the defendants did not breach any

duties that they owed to Fontenot under Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). In

Scindia, the Supreme Court held that a vessel owner owes three

duties to workers covered under section 5(b) of the LHWCA, 33

U.S.C. § 905(b): (1) the “turnover duty,” which requires the

vessel owner to have the vessel in such a condition that an

experienced stevedore could safely conduct cargo operations and

to warn the stevedore of any hazards that the stevedore would

likely encounter during its cargo operations, id. at 166-67;

(2) the “active control duty,” under which the owner may be

liable for injuries if it “actively involves itself in the
2This court has held that the principles of Scindia, though

formulated in the context of the respective duties of vessel owners

and stevedores, apply equally to any suit by an LHWCA-covered

employee working for an independent contractor aboard a vessel.

See Manuel, 103 F.3d at 33 n.6; Masinter v. Tenneco Oil Co., 867

F.2d 892, 896 (5th Cir. 1989).

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cargo operations and negligently injures a longshoreman,” or

fails to exercise due care to protect longshoremen “from

hazards they may encounter in areas, or from equipment, under

the active control of the vessel during the stevedoring

operation,” id. at 167; and (3) the “duty to intervene,” which

provides that a vessel owner can be liable if it fails to

intervene when it knows of an unreasonably dangerous condition

that has developed during the course of the stevedoring

operations and it knows that the stevedore, in the exercise of

obviously improvident judgment, intends to continue working in

the face of the danger and cannot be relied upon to protect its

workers. Id. at 175-76.2 Only the second and third Scindia

duties — the active control duty and the duty to intervene —

are relevant to this appeal.

1. Active Control

As noted above, a vessel owner may be liable under

Scindia’s active control duty if it actively involves itself

in cargo operations or fails to protect contractors from

hazards in areas under the active control of the vessel. The
11

magistrate judge held that the defendants did not breach

Scindia’s active control duty because Nabors employees, not the

vessel’s crew, maintained active control over the backloading

operation. Fontenot does not seriously challenge this

conclusion, but instead argues that although the defendants did

not actively control the backloading operation, they

nevertheless retained active control of the entire vessel,

including the deck, throughout the backloading operation, by

virtue of (1) the SEACOR-Chevron blanket time charter, (2) the

JSA, and (3) industry custom.

To determine whether an area is in the active control of

the vessel owner, this court generally considers whether the

area in question is within the contractor’s work area and

whether the work area has been “turned over” to the contractor.

See, e.g., Fontenot, 89 F.3d at 208 (discussing earlier cases

and finding no active control where entire vessel was turned

over to contractor); Pimental v. LTD Canadian Pac. Bul, 965

F.2d 13, 16-17 (5th Cir. 1992) (finding that vessel owner did

not have active control over crane where crane was necessary

to stevedore’s work and was being operated by stevedore);

Masinter, 867 F.2d at 897 (finding that vessel owner had active

control where owner did not turn over any area of vessel to
12

contractor and where owner admitted in interrogatories that its

crew was solely responsible for placement of stairwell where

injury occurred); Theriot, 783 F.2d at 535 (finding active

control based on district court’s finding that owner “continued

to control the work area [and] retain[ed] the obligation to

clean the keyway deck”); Turner, 744 F.2d at 508-09 (finding

active control where hazard was located “outside the area of

normal and routine cargo operations” and outside longshoreman’s

“work area”).

None of Fontenot’s arguments merit reversal of the

magistrate judge’s decision. Although, as the magistrate judge

recognized, the captain of the vessel retains the ultimate

authority to make decisions about the operation of the vessel

and the safety of those aboard, this overarching authority is

not the equivalent of “active control” for purposes of the

owner’s duties under Scindia. This court has described active

control within the meaning of Scindia as instead being akin to

operational control at the time of the activities in question:

This duty recognizes that although a vessel

owner no longer retains the primary

responsibility for safety in a work area

turned over to an independent contractor,

no such cession results as relates to areas

or equipment over which the vessel’s crew
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retains operational control.

Manuel, 103 F.3d at 34 (emphasis added); cf. Howlett v.

Birkdale Shipping Co., 512 U.S. 92, 104-05 (1994) (“The

vessel’s responsibilities . . . are commensurate with its

access and control . . . . Because the vessel does not

exercise the same degree of operational control over, and does

not have the same access to, the cargo stow, its duties with

respect to the stow are limited by comparison.”). Thus, even

accepting Fontenot’s arguments that the captain retained

ultimate control over all areas of the vessel under the blanket

time charter and industry custom, neither the time charter nor

custom establishes that the captain had active control over the

deck during the backloading operation. Nor does the JSA

establish active control. Although the JSA specified that a

clear walkway should be maintained and the captain testified

that it was his responsibility, Fontenot has not established

that the JSA, which was also signed by Fontenot and Prosper,

gave the captain active or operational control over the deck

during the operation, or otherwise created an independent duty

running from the vessel owners to the subcontractors working

on the deck.

The facts found by the magistrate judge make it clear that
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Nabors and its employees, not the defendants, maintained active

control over the deck throughout the backloading operation.

The deck was the roustabouts’ work area, Nabors exercised

operational control over the backloading operation itself and

over the deck during the operation, and Nabors employees

created the hazard that ultimately resulted in Fontenot’s

injury. Accordingly, we hold that the magistrate judge

correctly found that defendants did not breach Scindia’s active

control duty on these facts.

2. Duty to Intervene

Fontenot finally claims that the magistrate judge erred by

finding that the defendants did not have a duty to intervene

under Scindia to protect Fontenot from the hazard created by

the fallen trash bag.

The Scindia duty to intervene to protect longshoremen from

dangers that arise during the course of their work “is a narrow

one.” Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 216 (5th

Cir. 1984). To establish a duty to intervene, the plaintiff

must first show that the vessel owner was actually aware of the

dangerous condition. Helaire v. Mobil Oil Co., 709 F.2d 1031,

1039-40 (5th Cir. 1983) (“[A]ctual, not constructive, knowledge

is mandated by the Supreme Court’s Scindia requisites for
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liability under § 905(b) . . . .”). But this court has

repeatedly held that the duty to intervene requires that the

plaintiff show “something more” than that the vessel owner was

aware of a dangerous condition on the vessel. Futo, 742 F.2d

at 715; see Greenwood v. Societe Francaise De, 111 F.3d 1239,

1249 (5th Cir. 1997); Singleton v. Guangzhou Ocean Shipping

Co., 79 F.3d 26, 29 (5th Cir. 1996). This court has

characterized that “something more” as requiring that the

plaintiff

show not only that the shipowner had actual

knowledge of the defect and of the

stevedore’s continuing use of the defective

item, but also “(1) it had actual knowledge

that the [defect] posed an unreasonable

risk of harm and (2) actual knowledge that

it could not rely on the stevedore to

protect its employees and that if

unremedied the condition posed a

substantial risk of injury.”

Greenwood, 111 F.3d at 1248 (quoting Randolph v. Laeisz, 896

F.2d 964, 971 (5th Cir. 1990)) (alteration in original).

Moreover, a vessel owner is generally permitted to rely on

the contractor’s expert judgment as to the safety of its

working conditions. See id. at 1249. To trigger the owner’s

duty to intervene, a dangerous condition must be “so hazardous

that anyone can tell that its continued use creates an

unreasonable risk of harm.” Id. at 1249. Although this court
3See Fontenot, 89 F.3d at 209 (stating that court will

consider “(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 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 occurred;

and (6) whether the shipowner assumed any duty with regard to the

dangerous item”).

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considers a number of relevant factors to determine whether a

vessel owner has a duty to intervene on a particular set of

facts,3 we have held that Scindia’s duty to intervene “does not

. . . extend to an open and obvious transitory condition . .

. that is created entirely by the independent contractor, is

under its control, and relates wholly to its own gear and

operations.” Futo, 742 F.2d at 216.

The magistrate judge found that the defendants had no duty

to intervene in this case because the captain was never aware

that the fallen trash bag was blocking the walkway, and, in any

event, neither the defendants nor the Nabors employees knew or

believed that the condition was unreasonably dangerous.

Fontenot asserts that the magistrate judge’s conclusion was

erroneous. He argues that the deckhand, Smith, was aware of

the fallen trash bag, and that Smith’s knowledge should be

imputed to the captain and to the defendants.

It is clear that Smith became aware at some point that the

trash bag was blocking the walkway, as Smith was the first to
17

traverse the gun rack to reach the stern of the vessel. Even

assuming, however, that Smith’s knowledge can be imputed to the

captain and the defendants, Fontenot has not pointed to any

evidence in the record that would support finding a duty to

intervene in this case. First, the hazard that ultimately

caused Fontenot’s injury — the obstructed walkway — was wholly

created by Nabors personnel, was within the roustabouts’ work

area, was open and obvious to the roustabouts, and could have

been remedied by Nabors personnel if they believed it to be

unreasonably dangerous. Second, the evidence at trial did not

establish that the vessel’s crew believed that the obstruction

created an unreasonable risk of harm. Smith, the only crew

member who became aware of the obstruction, was the first

person to walk along the gun rack to reach the stern of the

vessel, which undermines any suggestion that he knew or

believed that the obstruction created an unreasonably dangerous

working condition. Accordingly, we find that the magistrate

judge did not err in concluding that defendants did not have

a duty to intervene under Scindia in this case. 

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of

the magistrate judge.
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AFFIRMED.