* 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that this opinion should not be published and is not precedent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

Fifth Circuit

FILED

February 6, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30657

Summary Calendar

 

DONALD IRVIN,

Plaintiff-Appellant,

versus

UNITED STATES MILITARY SEALIFT COMMAND; 

AMERICAN OVERSEAS MARINE CORPORATION,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 01-CV-2634-C

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Donald Irvin appeals the summary judgment dismissal of

his Longshore and Harbor Worker’s Compensation Act (LHWCA) and

Public Vessels Act (PVA) claims. Affording his arguments de novo

review, we affirm. E.g., Skotak v. Tenneco Resins, Inc.,

953 F.2d 909, 912 (5th Cir. 1992).

We reject Irvin’s contention that summary judgment was

improper because genuine issues of material fact exist regarding
No. 03-30657

-2-

whether the grease was an “open and obvious” hazard and,

therefore, whether the United States Military Sealift Command

(“United States”) breached its “turnover duty.” In general,

the defendant has not breached its turnover duty if the injurycausing defect was “open and obvious and one that the

longshoreman should have seen.” See Pimental v. LTD Canadian

Pac. Bulk, 965 F.2d 13, 16 (5th Cir. 1992). It is indisputable

from Irvin’s own testimony that the grease was distinguishable

from the hatch cover/ledge, despite the fact that both were

varying shades of grey. Moreover, although Irvin testified that

he did not see any grease on the hatch cover or ledge, he also

conceded that when he stepped onto the ledge, he was not looking

where he was going. Consequently, he has not shown that a

genuine issue of material fact exists regarding whether the

defect was “open and obvious.” 

Irvin’s argument that the United States breached its “active

control duty” fails to assign error to the district court’s

determination that even if the requisite area was under the

requisite control of the vessel owner, as a matter of law the

vessel owner did not breach its active control duty because it

exercised due care by providing Irvin with a safe, alternate

path via the portable steps. He therefore waived its review. 

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

Finally, the United States had no duty to intervene. 

See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156,
No. 03-30657

-3-

175-76 (1981). Even if it is assumed arguendo that the vessel’s

crew had actual knowledge that grease was emanating from the

vessel’s crane, Handlin Marine, Inc.’s, employees had routinely

removed the grease themselves without incident; consequently, it

cannot be said that the vessel owner had actual knowledge that

the defect posed an unreasonable risk of harm or that it could

not rely on Handlin Marine’s employees to remedy the defect. 

See Greenwood v. Societe Francaise De, 111 F.3d 1239, 1248

(5th Cir. 1997).

AFFIRMED.