* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30017

KEN ROMERO Plaintiff - Appellant v. CAJUN STABILIZING BOATS INC; MR COURT Defendants - Appellees

Appeal from the United States District Court for the

Western District of Louisiana
Before WIENER, GARZA, and DeMOSS, Circuit Judges. PER CURIAM: * A welder was injured while working on a lift boat. He challenges jurisdiction and the district court’s entry of summary judgment. We affirm in part and reverse in part. I. In June 2005, Ken Romero, a marine welder, worked aboard M/V MR COURT (“the COURT”), a jack-up service boat owned by Cajun Stabilizing Boats, Inc. (“Cajun”). Romero worked on the vessel’s rudders. He accessed the United States Court of Appeals

Fifth Circuit 

### F I L E D January 22, 2009 Charles R. Fulbruge III ClerkNo. 08-30017

1 Romero received no-fault worker’s compensation benefits under the Act from MIF. 2 job site through a manhole on the vessel’s deck. He then had to climb down five
or six iron supports welded into the hull. Romero had accessed the rudder room many times while working on the COURT. There was grease in the hull of the COURT, which theworkerstracked ontothe iron supportsand thedeck. Romero knew that the grease was everywhere, including his own boots. Romero’s employer, Marine Industrial Fabricators, Inc. (“MIF”), placed a steel barricade around the open manhole to prevent workers from falling in. The barricade was not welded to the deck. At some point, Romero asked Cajun’s owner, Thomas Kleinpeter (whom Romero referred to in his deposition as “Tommy Hebert”), for permission to weld the barricade to the deck. Kleinpeter refused. On June 6, 2005, Kleinpeter told Romero to stop working because of rain and lightning in the area. He told Romero to begin working again once the rain stopped. Kleinpeter then left, and Romero was alone on the COURT. When the rain stopped some time later, Romero returned to work. The vessel was still greasy, and wasalsowet from the rain. Romerotestified that Cajun’sdeckhands typically cleaned up the grease, but did not show up to work on the day of his accident. Romero sat at the edge of the manhole and placed his feet on the iron supports. He also used the barricade for support instead of the COURT’s permanent railing, contrary to his normal practice. As he descended, his boot slipped. Romeroheld ontothesteel barricade, but it gaveway. Romero let goand fell to the floor of the rudder room, injuring his knee. Romero sued Cajun for negligenc e under the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C. § 905(b). 1 The district court granted summary judgment for Cajun. Romero appeals.No. 08-30017

3 II. Romerofirst avers that thedistrict court did not havejurisdiction because the COURT was not a “vessel in navigation.” Before being repaired, the COURT
was “practically capable of maritime transportation.” See Stewart v. Dutra Constr. Co., 543 U.S. 481, 497 (2005 ). Kleinpeter said this in his deposition. Romero notes that the COURT was dry-docked for several weeks before his injury. This brief hiatus f rom service for routine repairs did not terminate “vessel in navigation” status. See Chandris Inc. v. Latsis, 515 U.S. 347, 374-75 (1995). Thedistrict court does not immediately losejurisdiction when there is no water under the vessel’s rudders. The cases relied upon by Romero are not on point. See Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 297-303 (5th Cir. 2008); Williams v. AvondaleShipyards, Inc., 452 F.2d 955, 957-58 (5th Cir. 1971). Both cases concern watercraft which had never entered active service. In contrast, the COURT was a working vessel before Romero’s injury. The district court had jurisdiction. III. We reviewa grant ofsummaryjudgment denovo, viewing evidence in the light most favorable tothe nonmoving party and drawing reasonable inferences in that party’s favor. SeeCrawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). Summary judgment is proper if the evidence shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” F ED
. R. C IV
. P. 56(c). A vessel owes narrowduties under § 905(b) to maritime workers. See Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 172 (1981). The district court held that Cajun was entitled to summaryjudgment on all duties. Romero nowargues that there is a genuine issuewhether Cajun breached the “turnover duty” and the “activecontrol” duty.No. 08-30017

2Analogousdutiesexist between a vessel and marineworkerssuch as Romero. SeeFuto v. Lykes Bros. S.S. Co., 742 F.2d 209, 213 n.7 (5th Cir. 1984). 4 A. When turning his vessel over to a stevedore or marine contractor, the owner has no duty to warn of, or remedy, an open and obvious hazard. Kirksey
v. Tonghai Mar., 535 F.3d 388, 392-96 (5th Cir. 2008). The hazard to Romero
was open and obvious. He knew that slippery anti-corrosive compounds are
common in the rudder rooms of lifts boats such as the COURT, and he was
aware that the vessel was wet from the rain. Therefore, there can be nogenuine issue ofmaterial fact that Cajun owed no turnover duty towarn MIF or Romero of the slippery condition, or to remedy that condition. B. The vessel may still be held liable “for injury caused by hazards under the control of the ship.” Pimental v. LTD Canadian Pac. Bul , 965 F.2d 13, 15 (5th Cir. 1992) (citation omitted). “Thevessel hasa duty to‘exercise due care toavoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.’” Id. (quoting Scindia, 451 U.S. at 167). 2 It is no defense that the hazard was open and obvious. Id. The daily presence of the vessel’s agents to apprise the progress of work or to ensure some degree of orderliness is not “active control.” F ontenot v. United States, 89 F.3d 205, 208 (5th Cir. 1996) (quoting Futo, 742 F.2d at 210). The key issue is whether the w ork area in question has been “turned over” to the contractor. I d. In a recent unpublished opinion, we said that for an “active control” duty to arise, “the vessel must exercise active control over the actual methods and operative details of the longshoreman’s work.” Pledger v. Phil Guilbeau Offshore, Inc., 88 F. App’x 690, 692 (5th Cir. 2004) (unpublished) (citation omitted); s ee also T HOMAS J. SCHOENBAUM, A DMIRALTY & MARITIME L AW § 7-10 (4th ed. 2004) (same).No. 08-30017

5 In Turner v. Costa LineCargo Services, Inc., 744 F.2d 505 (5th Cir. 1984),
a longshoreman slipped in an oil slick in the course ofobtaining gear necessary for his work. Id. at 506-07. The crew of the vessel had been informed of the hazard, yet it did not clean the area. Id. at 508. We affirmed the district court’s judgment, rendered after a bench trial, that thevessel breached an ac tive control duty tothe longshoreman. Id. at 509. The duty arose because the longshoreman had to “venture outside of the area of normal and routine cargo operations to
areas within the ship’s control and was forced to cross the oil slick in a location outside ofhiswork area.” Id. In Fontenot, a marine worker was injured when he slipped on a hatch covered in hydraulicoil and rainwater. 89 F.3d at 207-08. We held that the vessel owner (the federal government) did not have active control
over that area because the vessel was turned over to a contractor a month earlier. Id. at 208. The contractor created the hazard and later fixed it because the vessel had no crew of its own. Id. Government agents were present on occasion, but they made only minor requests, such as asking a foreman to straighten a crooked steel wheel, and asking the contractor to “improve its housekeeping” by not leaving garbage in engine spaces. I d. Likewise, in Pimental , we held that the vessel had no active control duty to remove oil and grease from a crane housing because the area had clearly been turned over to stevedore. 965 F.2d at 15-17. Romero testified that Kleinpeter closely supervised his work. Kleinpeter
once remained in the rudder room with Romerofor an entire day and instructed him on how to perform a weld. Hours before Romero was injured, Kleinpeter instructed him to stop working due to rain and lightning in the area, and to
resume working once the rain stopped. Romero complied. Romero also testified that while he knew the vessel was greasy and wet, he did not clean the area up before returning towork because Cajun’s deckhands normally cleaned the vessel, and it was not his “job title to do that.” Another time—Romero did not specifyNo. 08-30017

3 Romerowasasked by hisattorney: “I want to be real clear about something. This idea ofwelding down barricades, you talked to Tommy about that before the accident, didn’t you?” Romero answered: “Yeah.” 6 when—Romero mentioned the grease to Kleinpeter, and Kleinpeter said it was “no problem.” These assertions, which we must accept as true at this stage, suggest that Cajun retained “activecontrol” ofthework area. Kleinpeter was not merely an occasional presence on the COURT; he closely oversaw and directed “operative details” ofRomero’swork. See Pledger, 88 F. App’x at 292. Kleinpeter also made decisions affecting the safety of Romero’s work area. Cajun provided the deckhands who cleaned the vessel; there is no indication that MIF was ever put in charge ofkeeping thework areas clean. Cf. Fontenot, 89 F.3d at 208. And, like the longshoreman in Turner, Romero had to traverse greasy and wet areas which had not been turned over to MIF in order to reach his work site. See 744 F.2d at 509. These allegations create a genuine issue offact as towhether Cajun had active control of the vessel and Romero’s work area. Cajun’s counter-arguments are unpersuasive. Cajun notes that Romero was alone on the COURT when he was injured. Just as a duty is not triggered by the mere presence of the vessel’s agent, we do not believe that an active control duty switches off the minute the agent leaves. Cajun also suggests that Romero alone decided to return to work. This ignores Romero’s statement that Kleinpeter had previously instructed him toreturn towork after the rain ceased. Cajun also says that MIF erected and maintained the barricade. However, at
some point, Romero asked Kleinpeter ifhe could weld the barricade to the deck, and Kleinpeter refused. 3 The record, consisting chiefly of Romero’s deposition, is sparse. However, we believe that Romero has presented sufficient evidence to create a fact question as to whether Cajun owed him an active control duty under § 905(b) and breached such duty.No. 08-30017

7 IV. We hold that federal jurisdiction exists in this case, and that, as a matter of law, Cajun did not owe Romero a turnover duty to warn him of the slippery conditionson thevessel. However, Romero’sdeposition demonstrates that there is a genuine issue of material fact of whether Cajun retained active control of part or all of the COURT. AFFIRMED in part, REVERSED in part, and REMANDED.