IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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. Sobrino-Barrera sustained serious injuries while supervising the

unloading of steel pipes from a cargo ship. He filed suit under the Longshore

and Harbor Workers’ Compensation Act(“LHWCA”). The ship’s owner, operator,

and charterer moved for summary judgment and to strike an affidavit from

Sobrino-Barrera’s liability expert. The district court struck the affidavit because

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2012

Lyle W. Cayce

Clerk

 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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No. 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 supervising 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 roll toward Sobrino-Barrera. He

unsuccessfully attempted to jump over 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 owner, Anderson Shipping

Company, Ltd.; the 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. Sobrino-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. § 905(b) provides, in pertinent part: 1

In the event of injury to a person covered under this chapter caused by the

negligence of a vessel, then such person, or anyone otherwise entitled to recover

damages by reason thereof, may bring an action against such vessel as a third

party in accordance with the provisions of section 933 of this title, and the

employer shall not be liable to the vessel for such damages directly or indirectly

and any agreements or warranties to the contrary shall be void. If such person

was employed by the vessel to provide stevedoring services, no such action shall

be permitted if the injury was caused by the negligence of persons engaged in

providing stevedoring services to the vessel.

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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 his response, 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 in discovery 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 expert report. The court also granted

summary judgment because there 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 Captain Grace’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) for abuse of

discretion. Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563 (5th

Cir. 2004).

Under Rule 26(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

Sobrina-Barrera filed two expert affidavits. The first was filed following Anderson

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and SoCoGEM’s motion for summary judgment. The second affidavit was filed as part of

Sobrino-Barrera’s response to Oldendorff’s slightly later motion for summary judgment. The

second affidavit adopts verbatim the information set forth in the first affidavit. It includes an

additional section with opinions about the appropriateness of the wooden dunnage.

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accordance with that rule may be excluded “unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(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 unsafe” practice of

stowing pipe. He further stated that stowing pipe in this manner “makes it

much more likely, almost certain, the pipe will shift diagonally 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 stowage[,] inspection of

stowage[,] and stevedoring 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 expert report and went beyond “proving up” the opinions contained in

that report, the district court did not abuse its discretion in excluding the

affidavit under Rule 37(c)(1).

II. Summary Judgment

Sobrino-Barrera also argues that the district 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

Cir. 2007). Summary judgment is appropriate where “the pleadings, depositions,

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

moving party 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

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285, 288 (5th Cir. 2008). “But where the non-moving party fails to establish the

existence of an element 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. 2008). 

Liability under Section 905(b) requires proof that the shipowner breached one

of these narrowly defined duties. See id. 391-92. 

A. Turnover Duty

The turnover duty “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 duty can be separated into (1) “a duty to

exercise ordinary care under the circumstances to turn over 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 stevedore of

latent or hidden dangers which 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 and obvious” dangers or those

that “a reasonably competent stevedore should anticipate encountering.” Id.

Sobrino-Barrera argues that the stowage of pipes against the bulkhead

Under the LHWCA, “vessel” is defined as including the vessel’s owners, operators,

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and charterers. 33 U.S.C. § 902(21). Consequently, Anderson, SoCoGEM Sam, and Oldendorff

are subject to Section 905(b). We will refer to them collectively as “the vessel” in our

discussion of the Scindia duties unless the context requires otherwise.

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with inadequate 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, it was 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 before unloading 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. One of his crew members

testified regarding 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 cargo were 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

longshoremen 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

Before the district court, Sobrino-Barrera also argued that the uneven stowage of the 4

pipes, which created a “hill” in the cargo, also constituted a dangerous condition. He has not

raised this contention on appeal and, therefore, has abandoned it. Audler v. CBC Innovis Inc.,

519 F.3d 239, 255 (5th Cir. 2008).

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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). Accordingly,

Sobrino-Barrera’s claim of liability under the active control duty must fail.

C. Duty to Intervene

“[A] vessel 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

the manner in which the pipes were stowed created a dangerous condition. 

Further, according 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

and his crew was so hazardous that the vessel had a duty to intervene. 

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 Oldendorff, the ship’s charterer,

breached its contractual duties. Specifically, Sobrino-Barrera points to the

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charter party agreement, which required the charterer to “load, stow, trim,

discharge, lash, secure, dunnage and unlash the cargo.” Sobrino-Barrera

contends that under this contractual provision, Oldendorff had 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., Oldendorff’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 charterer and

does not affect the duties owed to longshoremen.” Robinson, 505 F.3d at 366. 

Accordingly, this argument is without merit.

AFFIRMED.

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