UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-31280

Summary Calendar

IN RE: In the Matter of NATIONAL MARINE, INC., as owner

of the DM-1311, for exoneration from or limitation of liability.

NATIONAL MARINE, INC., as owner of the DM-1311, for exoneration

from or limitation of liability,

Petitioner-Appellee,

versus

ZEPHYRAIN VICKNAIR,

Claimant-Appellant.

* * * * *

_________________________________

No. 98-30189

Summary Calendar

_________________________________

IN RE: In the Matter of NATIONAL MARINE, INC., as owner

Of the DM-1311, for exoneration from or limitation of liability.

NATIONAL MARINE, INC., as owner of the DM-1311, for

exoneration from or limitation of liability,

Plaintiff-Appellee,

versus

SOURS GRAIN COMPANY,

Defendant-Appellee,

versus

ZEPHYRAIN VICKNAIR,

Claimant-Cross-Claimant Appellant.

* * * * *

ZEPHYRAIN VICKNAIR,

Plaintiff-Appellant,* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4.

2 versus

SOURS GRAIN COMPANY, INC.,

Def e ndant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(96-CV-3144-D)

December 11, 1998

Before POLITZ, Chief Judge, KING and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge: *

Zephyrain Vicknair appeals an adverse summary judgment in favor of

defendant National Marine, Inc. and Bunge Corporation, and the grant of a motion

to dismiss based on lack of in personam jurisdiction over defendant Sours Grain Co.

For the reasons assigned , we affirm the rulings in favor of National Marine, Inc.

and Sours Grain Co., and we dismiss Vicknair’s appeal against Bunge Corporation.

BACKGROUND

Vickna ir worked as a laborer and bargeman for Bunge Corporation at its

facility in Destrehan, Louisiana. According to Vicknair’s allegations he slipped on

rotten grain or other material on the deck of a barge while engaged in unloading

operations. Vicknair alleged that the barge on which he slipped was owned by

National Marine and that the grain that had caused the accident had been sold to

National Marine and loaded on the barge by Sours Grain. Vicknair sued Bunge1 Fed. R Civ.P. 56(c); City of Arlington v. FDIC , 963 F.2d 79 (5 th Cir. 1992). under the Jones Act and general maritime law, later amending his petition to name

National Marine as an additional defendant. Bunge filed a cross claim against

National Marine for contribution and indemnification. National Marine then filed

a limitation co mplaint. Thereafter Vicknair made Sours Grain an additional

defendant.

The district co urt dismissed Sours Grain from the limitation proceeding

without prejudice, and Vicknair promptly sued Sours Grain. This action was

consolidated with the limitation proceeding. The district court then granted

Bunge’s motion for summary judgment, holding that Vicknair was not a Jones Act

seaman. In due course the district court granted National Marine’s motion for

summary judgment and dismissed the action against Sour s Grain, finding no i n

personam jurisdiction. The instant appeal followed.

ANALYSIS

On appeal, Vicknair contends that the district court erred in granting a

motion for summary judgment in favor of Nation al Marine because there were

sign ificant issues of material fact in dispute, and erred in dismissing his action

against Sours Grain for lack of in personam jurisdiction.

National Marine’s Motion for Summary Judgment

Summary judgment is appropriate when the record discloses that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law. 1 In determining whether summary judgment was appropriate, we

conduct a de novo review, judging the facts in the light most favorable to the non-2 Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc. , 55 F.3d 181 (5 th Cir. 1995).

3 Vicknair was employed by Bunge as both a laborer and a bargeman and often worked

unloading barges at Bunge’s facility. The district court appropriately found that Vicknair

was not a seaman under Chandris, Inc. v. Latsis

, 515 U.S. 347 (1995), because he neither

contributed to the function of the vessel nor had a substantial connection to a vessel or fleet

of vessels in navigation.

4 451 U.S. 156 (1981).

5 Id. ; Pimental v. LTD Canadian Pacific Bul , 965 F.2d 13 (5 th Cir. 1992).

4 movant. 2

In earlier dismissing Vicknair’s claim against his employer Bunge, the court

had found that Vicknair was not a seaman for purp oses of the Jones Act. We

agree. 3 Because Vicknair is not a seaman, his only claim against National Marine

is for vessel negligence under 33 U.S.C. § 905(b), the L ongshore and Harbor

Worker’s Compensation Act. The Supreme Court in S cindia Steam Navi gation Co.

v. De Los Santos 4 held that a vessel owner will be liable under this section only

when one of th e following occurs: 1) on turning over the ship, the vessel owner

fails to warn of hidden defects of which he should have known (the “turnover

duty”); 2) the hazards are under the control of the vessel owner (the “active

operations duty”), or 3) the vessel owner fails to intervene in the stevedore’s

operations when he has actual knowledge of both the hazard and that the stevedore,

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

of the hazard and thus cannot be relied on to remedy it (the “duty to intervene”). 5

Vicknair contends that the spilled grain was a latent hidden defect, and thus

National Marine breached its duty to warn of it when it turned over the vessel to the6 Pimental.

7 Howlett v. Birkdale Shipping Co., S.A. 512 U.S. 92 (1994).

8 Greenwood v. Societe Francaise De , 111 F.3d 1239 (5 th Cir.), cert. denied , 118 S.Ct.

558 (1997); Burchett v. Cargill, Inc. , 48 F.3d 173 (5 th Cir. 1995).

9 Burchett (holding that dew and soybean dust present on hatch covers was not hidden

defect); P imental (holding that oil and grease on crane holding was an open and ob vious

defect).

5 stevedore. The turnover duty is not breached, however, when the defect is both

open and obvious and one which the longshoreman should have seen. 6 Vicknair

contends that the lighting at the wharf at the Bunge facility was inadequate and thus

he could not see the spilled grain. This contention, even if true, does not implicate

a breach of the turnover duty by National Marine because that duty extends only

to those hazards known or which should have been known to the vessel in the

exercise of reasonable car e. 7 In the instant case, it was Bunge’s duty to provide

lighting on the wharf and a safe workplace for its stevedoring operations. 8 Because

of this duty, and because of ou r holdings that spills or slippery conditions of a

similar nature to that of spilled grain are not hidden defects giving rise to liability

under § 905(b), 9 we agree with the district court that the spilled grain was an open

and obvious condition of which National Marine had no duty to warn.

Vicknair also contends that National Marine br eached the second S cindia

duty, the active operations duty, as it failed to exercise reasonable c are in

prev enting injuries in an area under its control. Specifically, Vicknair contends that

National Mar ine retained control of its vessels, which it charters via bareboat

charter to independent operators, thro ugh its dispatchers who communicate directly10 Manuel v. Cameron Offshore Boats, Inc. , 103 F.3d 31 (5 th Cir. 1997); Burchett.

11 Fontenot v. United States, 89 F.3d 205 (5 th Cir. 1996); Pimental

.

12 International Shoe Co. v. Washington , 326 U.S. 310, 316 (1945).

6 with the captain or pilot. Vicknair has presented no evidence, however, that the

vessel’s captain or crew retained control over the area in which the grain was

spilled, or that there was any personnel present from the vessel in the area of the

accident at the time of the accident. We have held that absent any proof of actual

control or presence of capta in or crew, a vessel owner has no general duty to

remedy any hazards that may arise in an area. 10 The stevedore, and not the vessel

owner, is responsible for hazards arising after the vessel owner has turned over an

area for stevedoring operations. 11

Finally, Vicknair does not contend, nor does the record support the finding

that the third Scindia duty, the duty to intervene, was breached. Persuaded that

Vicknair has failed to establish liability under 33 U.S.C. § 905(b), we conclude and

hold that the district court did not err in finding that Vicknair is n ot entitled to

recover from National Marine as a matter of law.

Sours Grain’s Dismissal for Lack of in personam Jurisdiction

Vic knair challenges the trial court’s holding that Sours Grain lacked the

requisite minimum contacts with the forum state, and therefore maintenance of a

suit against it offended “traditional notions of fair play and substantial justice.” 12

He contends that because Sours Grain regularly sells grain to National Marine, a

Louisiana company, and the controversy arose out of such a sale, Sours Grain has13 444 U.S. 286 (1980).

1 4 Allred v. Moore & Peterson

, 117 F.3d 278 (5 th Cir. 1997), cert. denied, 118 S.Ct. 691

(1998).

1 5 La.R.S. 13:320 1(B); D eReyes v. Marine Management & Consulting, LTD.

, 586

So.2d 103 (La. 1991).

1 6 Asahi Metal Indus. v. Superior Court

, 480 U.S. 102, 113 (1987); International Shoe

, 326 U.S. at 316.

17 Burger King Corp. v. Rudzewicz , 471 U.S. 462 (1985); World-Wide Volkswagen

.

7 availed itself of the benefits and protections of Louisiana law. Relying on

Worldwide Volkswagen Corp. v. Woodson

, 13 Vicknair further asserts that Sou r s

Grain’s placing of its product in the stream of commerce with knowledge that it

would be used in Louisiana satisfied the minimum contacts requirement.

We review de novo the dist rict court’s dismissal for lack of i n personam

jurisdiction. 14 Because the Louisiana Long Arm Statute reaches as far as

constitutionally permitted, our inquiry is one of due process only. 15 Due process

requires that the defendant have established minimum contacts with the forum state

such that the exercise of personal jurisdiction does not offend “traditional notions

of fair play and substantial justice.” 16 A defendant has minimum contacts required

by due process when he has purposely directed his activities at the forum state and

has invoked the benefits of its laws, so that he could reasonably anticipate being

haled into court in that state. 17

A review of the record and the briefs, however, reveals no evi dence that

Sours Grain purposely directed its activities at Louis iana. It did not solicit

business, transact business, or contract to supply service s or things in Louisiana.18 World-Wide Volkswagen

.

1 9 In Re Tex. Mortgage Servs. Corp.

, 761 F.2d 1068 (5 th Cir. 1985); Martin v. Atlantic

Coast Line R.R. , 289 F.2d 414 (5 th Cir. 1961).

8 Further, Sours Grain had no interest in the destination of the grain after it was

loaded on the barges. Sours Grain merely loaded grain onto a barge from its own

facility in Illinois. Apart from this and other fortuitous contacts with a Louisiana

company, Vicknair has failed to present any connection between Sours Grain and

the forum that would justify haling Sours Grain into court there.

Nor do we find merit in Vicknair ’s contention that Sours Grain created

sufficient contacts with the forum when it pla ced the grain in the stream of

commerce. W or ld-Wide Volkswagen teaches that mere foreseeability that a

p roduct will arrive in a forum, absent some purposeful activity direc ted at the

forum, is not a sufficient benchmark for jurisdiction under the due process clause. 18

Having found that Sours Grain did not direct its activ ities at Louisiana, we

conclude that Vicknair’s stream of commerce analysis must also fail. Accordingly,

we affirm the district court’s dismissal of Sours Grain for lack of i n personam

jurisdiction.

The Appeal against Bunge

Vicknair raises no issue in his brief against Bunge and that part of his appeal

is dismissed. 19

Conclusion

The judgments in favor of Nation a l Marine and Sours Grain are AFFIRMED.

The appeal against Bunge is DISMISSED.