### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20826

JUNIOR A. SOBRINO-BARRERA, Plaintiff-Appellant
v. ANDERSON SHIPPING COMPANY, LIMITED; SOCOGEM SAM; OLDENDORFF CARRIERS GMBH & COMPANY, K.G.,

Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CV-3642

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Junior A. Sobri no - B arr e r a s u s t ai n e d s e ri o u s i n j uri es while supervising the unloading o f s t e e l p ipes from a cargo ship. He filed suit under the Longshore and Harbor Workers’ Compensation Ac t (“L H W CA ”)

. Th e s hip ’ s o w n e r , o p e r ator, and chartere r moved for summary judgment and to strike an affidavit from Sobrino-Barrer a ’ s li ab ility expert. The district court struck the affidavit because U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 23 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20826 Document: 00512029134 Page: 1 Date Filed: 10/23/2012No. 11-20826

it was untimely and contained new opinions that had not been disclosed in discovery. Additionally, the district court granted summary judgment, finding that the defendants had not breached any duties owed to Sobrino-Barrera under the LHWCA. We AFFIRM.

FACTS AND PROCEDURAL BACKGROUND Sobrino-Barrera worked as a longshoreman for Gulf Stream Marine, Inc. On the day of the accident, Sobrino-Barrera was supervi s i n g his team as they unloaded steel pipes from the M/V Greta. The team lifted bundles of pipe out of the ship using a crane. The team lifted two bundles of pipes without incident. When the team lowered the third bundle onto an existing pile of bundled pipe, the lower bundle shifted and began to rol l t oward Sobrino-Barrera. He unsuccessfully attempted to jump o v er the bundle. The rolling bundle pinned Sobrino-Barrera’s left leg against a wall, crushing it. His leg later was amputated below the knee. Sobrino-Barrera filed suit against the ship’s o w ner, Anderson Shipping Company, L t d

. ; t h e ship’s operator, SoCoGEM Sam; and the ship’s charterer, Oldendorff Carriers GmbH & Company, K.G., alleging negligence under Section 905(b) of the LHWCA. Sobr ino-Barrera designated Captain Joe Grace as his 1 liability expert. Captain Grace was to offer opinions regarding the stowage and unloading of pipe. In his expert report, Captain Grace expressed his opinion

33 U. S. C. § 9 05(b ) pr ovide s, inp ert inentp art : 1

In the event of injury to a per so n cover ed unde r this chap ter caus ed by the negligenc e of a vess el, then suc h per so n, or anyone othe rw ise enti tle d to rec over dam ages by reas on ther eof, may bring an acti on agains t suc h vess el as a thir d par ty in acc ord ance wi th the pr ovis ions of se c t ion 933 of this tit le, and the em plo yer sha ll not be liable to the vess el for suc h dam ages dir ect ly or indi rec tly and any agree me nts or wa rra ntie s to the cont rar y sha ll be void. If suc h per so n wa s em plo yed by the vess el to pr ovide st eved orin g se rvice s, no suc h act ion sha ll be per mi tte d if the injury wa s caus ed by the negligenc e o f per so ns engagedin pr ovidi ng s teved orin g s ervic es t o t he vess el. 2 Case: 11-20826 Document: 00512029134 Page: 2 Date Filed: 10/23/2012No. 11-20826

that Sobrino-Barrera’s injury was caused by improper stowage of the pipes. The specific problem was that the pipes were stowed “hard aft to [the] bulkhead” and without sufficient dunnage, which are loose wooden separators. Anderson, SoCoGEM, and Oldendorff moved for summary judgment, arguing that Sobrino-Barrera failed to prove they had breached any duty owed to him. In h i s r e s p o nse, Sobrino-Barrera attached an affidavit from Captain Grace

. Anderson, SoCoGEM, and Oldendorff moved to strike the affidavit,

2 arguing that it contained new opinions not disclosed i n d iscovery and was untimely. The district court agreed and struck the affidavit in accordance with Rule 37(c)(1) of the Federal Rules of Civil Procedure except to the extent that it “proved up” Captain Grace’s original e x p ert report. The court also granted summary judgment because t h e r e was no evidence that the defendants had breached any of the legal duties owed to Sobrino-Barrera under Scindia Steam Navigation Co. v. De Los Santos , 451 U.S. 156 (1981). DISCUSSION I. Expert Affidavit Sobrino-Barrera contends that Capt ai n Gr ac e ’ s affidavit contained no new opinions and simply supported the original expert report. We review a district court’s decision to exclude evidence pursuant to Rule 37(c) f o r abuse of discretion. Primrose Operating Co. v. Nat’l Am. Ins. Co. , 382 F.3d 546, 563 (5th Cir. 2004). U n d e r Rul e 2 6 ( a)(2)(B)(i) of the Federal Rules of Civil Procedure, an expert report must contain “a complete statement of all opinions the witness will
express and the basis and reasons for them.” Opinions not properly disclosed in

Sobr ina- Barre ra fil ed tw o expe rt aff idavit s. The fir st wa s fil ed fol low ing Ander so n 2
a n d SoCoG EM’ s mo tio n for sum mar y judgm ent. The se cond aff idavit wa s fil ed a s p a r t o f Sobr ino- Barre ra’ s res pons e to Ol dend orf f’ s sli ghtly late r mo tio n for sum mar y judgm ent. The se cond aff

idavit ado pt s verbat im the info rm atio n se t for th in the fir st aff idavit

. It inclu des an add itio nal se cti on wi th opi nions abo ut the app rop riat enes s of the wo ode n d unnage. 3 Case: 11-20826 Document: 00512029134 Page: 3 Date Filed: 10/23/2012No. 11-20826

accordance with that rule may be excluded “unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 3 7 ( c )(1). The district court excluded Captain Grace’s affidavit based on its determination that it contained new opinions not contained in the original expert report. For example, Captain Grace stated for the first time in his affidavit that stowing pipe hard aft to the bulkhead is an “abnormal and un s a f e ” p ractice of stowing pipe

. He further stated that stowing pipe in this manner “makes it much more likely, almost certain, the pipe will shift d i a gonally during the unloading process.” Additionally, Captain Grace claimed for the first time that his opinions were “the product of reliable principles and standards generally accepted and utilized by experts in the field of proper stowa g e [ , ] inspection of stowage[,] and s t e vedoring principles.” As the district court noted, though, he provided no details regarding these principles and standards. We conclude that because these opinions were not included in Captain Grace’s e x p e r t report and went beyond “proving up” the opinions contained in that report, the district court did not abuse its discretion in exclud i ng the affidavit under Rule 37(c)(1).

II. Summary Judgment Sobrino-Barrera also argues that the d istrict court erred in granting summary judgment. We review the district court’s ruling on a summary judgment motion de novo . Robinson v. Orient Marine Co. , 505 F.3d 364, 365 (5th C ir . 2 007). Summary judgment is appropriate where “the p l e a di n g s , d e p o s iti o n s , answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movin g p a r t y is entitled to a judgment as a matter of law.” Id. “The evidence and inferences from the summary judgment record are viewed in the light most favorable to the nonmovant.” McLaurin v. Noble Drilling (U.S.), Inc. , 529 F.3d

4 Case: 11-20826 Document: 00512029134 Page: 4 Date Filed: 10/23/2012No. 11-20826

285, 288 (5th Cir. 2008). “But where the non-moving party fails to establish the existence of an el ement essential to that party’s case, and on which that party will bear the burden of proof at trial, no genuine issue of material fact can exist.” Id. (quotation marks omitted). Under Section 905(b), a longshoreman may recover damages for injuries “caused by the negligence of a vessel.” The duties owed to longshoremen under 3 Section 905(b) are these: “(1) a turnover duty, (2) a duty to exercise reasonable

care in the areas of the ship under the active control of the vessel, and (3) a duty to intervene.” Kirksey v. Tonghai Maritime , 535 F.3d 388, 391 (5th Cir. 200 8). Liability under Section 905(b) requires proof that the shipowner br e a c hed one of these narrowly defined duties. See id. 391-92. A. Turnover Duty The tu r n o v e r d uty “relates to the condition of the ship upon the commencement of stevedoring operations.” Howlett v. Birkdale Shipping, Co., S.A. , 512 U.S. 92, 98 (1994). This dut y c a n b e s e p a rated into (1) “a duty to exercise ordinary care under the circumstances to turn ov e r the ship and its equipment in such condition that an expert stevedore can carry on stevedoring operations with reasonable safety,” and (2) “a duty to warn the s tevedore of latent or hidden d a n g e r s w h i c h are known to the vessel owner or should have been known to it.” Kirksey , 535 F.3d at 392. Thus, the duty to warn is a narrow one; it does not include dangers that are “open a n d o b v i o u s” dangers or those that “a reasonably competent stevedore should anticipate encountering.” Id. Sobrino-Barrera argues that the stowage of pipes against the bulkhead

Und er the LHW CA, “ves se l” is def ined as inclu ding the vess el’ s ow ners , ope rat ors , 3
a n d ch arte rer s. 33 U. S. C. § 902( 21). Cons equent ly, Ander so n, SoCoG EM Sam , and Ol dend orf f are s u bj e c t t o S ect ion 905(b). We wi ll ref er to them coll ect ively as “th e vess el” in our dis cus sio n o f theSc indi a dut ies unl es s the cont ext requ ires ot herw ise

. 5 Case: 11-20826 Document: 00512029134 Page: 5 Date Filed: 10/23/2012No. 11-20826

with inadequ a t e dunnage constituted an unreasonably dangerous condition. 4 The district court disagreed because these alleged defects were open and obvious to Sobrino-Barrera. Sobrino-Barrera stated in his deposition that as supervisor, i t w a s his responsibility to assess the cargo before formulating a plan for its removal from the ship. On the day of the accident, he indicated that he checked to see how the cargo was stowed before his crew began unloading the pipes. The photographs of the cargo taken b e f o r e u nloading began, show the pipes stowed against the bulkhead. The configuration of the pipe would have necessarily been open and obvious to Sobrino-Barrera. Sobrino-Barrera also testified that when his crew started unloading, he noticed the lack of dunnage between the pipes. O n e o f his crew members testified rega r ding the lack of dunnage. The district court therefore properly concluded that the lack of dunnage was an open and obvious condition. See, e.g., Pimental v. LTD Canadian Pac. Bul , 965 F.2d 13, 16 (5th Cir. 1992) (concluding that oil and grease on passageway was open and obvious because two workers had testified to noticing it). The alleged defects in the car go w ere open and obvious to Sobrino-Barrera, which means the vessel had no turnover duty to warn against them. B. Active Control Duty A vessel also has a duty to “exercise reasonable care to prevent injuries to l o n g s h oremen in areas that remain under the ‘active control of the vessel. ’ ” Howlett , 512 U.S. at 98. Sobrino-Barrera contends that the vessel’s cargo plan called for the pipes to be stowed “against the aft bulkhead,” a requirement that

Befo re the dis tri ct cour t, Sobr ino- Barre ra als o argued that the uneven st ow age of the 4 pip es , wh ich cre ated a “hil l” in the car go, als o cons tit uted a danger ous cond itio n. He has not rais ed this cont enti on on app eal and, ther efo re, has aband oned it. Audl er v. CBC Innovi s Inc. , 519 F.3d239 , 255 (5t h Cir

. 2008)

. 6 Case: 11-20826 Document: 00512029134 Page: 6 Date Filed: 10/23/2012No. 11-20826

he says meant the vessel was controlling the details of his work. He makes too much of the cargo plan. “Most vessels take responsibility

. . . for preparing a stowage plan, which governs where each cargo will be stowed on the ship.” Id

. at 103. Involvement in the cargo plan does not constitute active control. See id. Sobrino-Barrera testified in his deposition that no one from the M/V Greta directed the manner in which he and his crew unloaded the pipes or participated in the unloading process. See Manuel v. Cameron Offshore Boats, Inc. , 103 F.3d 31, 34 (5th Cir. 1997) (explaining that active control requires some evidence that the vessel’s crew retained “operational control” over the area). Acco r dingly, Sobrino-Barrera’s claim of liability under the active control duty must fail. C. Duty to Intervene “[A] vesse l has a duty to intervene when it has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of ‘obviously improvident’ judgment, has failed to remedy it.” Greenwood v. Societe Francaise De , 111 F.3d 1239, 1248 (5th Cir. 1997). The obligation to intervene under this duty “is narrow and requires something more than mere shipowner knowledge of a dangerous condition.” Id. at 1249 (quotations omitted). In the present case, there is no evidence that the vessel’s crew knew that t h e manner in which the pipes were stowed created a dangerous condi t i o n . Further, a ccording to Sobrino-Barrera’s deposition testimony, he and his crew unloaded the pipes using their normal and customary procedure. Therefore, there is no evidence that the unloading process undertaken by Sobrino-Barrera

a nd his crew was so hazardous that the vessel had a duty to int e rv e n e . Consequently, the district court correctly found that Sobrino-Barrera had failed to present evidence that the vessel had a duty to intervene. D. Contractual Duty Sobrino-Barrera also argues that O l d e ndorff, the ship’s charterer, breached its cont r actual duties. Specifically, Sobrino-Barrera points to the

7 Case: 11-20826 Document: 00512029134 Page: 7 Date Filed: 10/23/2012No. 11-20826

charter party agreement, which required the charterer to “load, stow, trim, dischar g e , l a sh, secure, dunnage and unlash the cargo.” Sobrino-Barrera contends that under this contractual provision, Oldendorf f h ad a duty to properly stow the cargo. As the district court noted, however, the agreement was between Cosco Bulk Carrier Co., Ltd., the owner of the M/V Greta, and Armada (Singapore) Pte., Ltd., O l d e n do rff’s subcharterer. Oldendorff is not a party to the contract. In addition, this court has held that this type of contractual provision

“ acts as an indemnification clause between the owner and the time charter e r a n d does not affect the duties o w e d t o l ongshoremen.” Robinson , 505 F.3d at 366. Accordingly, this argument is without merit. AFFIRMED.

8 Case: 11-20826 Document: 00512029134 Page: 8 Date Filed: 10/23/2012