* 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.

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

Clerk
No. 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 the workers tracked onto the iron supports and the deck. 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 was also wetfrom the rain. Romero testified that Cajun’s deckhands

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. Romero held onto the steel barricade, butit gave way. Romero let go and

fell to the floor of the rudder room, injuring his knee.

Romero sued Cajun for negligence 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.

Romero first avers thatthe district court did not have jurisdiction 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 from service for routine repairs did not terminate

“vessel in navigation” status. See Chandris Inc. v. Latsis, 515 U.S. 347, 374-75

(1995). The district court does notimmediately lose jurisdiction 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. Avondale Shipyards, 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 review a grant of summary judgment de novo, viewing evidence in the

light most favorable to the nonmoving party and drawing reasonable inferences

in that party’s favor. See Crawford 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.” FED. R. CIV. P. 56(c). A vessel owes narrow duties

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 summary judgment on all duties. Romero now argues that there is a genuine

issue whether Cajun breached the “turnover duty” and the “active control” duty.
No. 08-30017

2 Analogous duties exist betweena vessel and marine workers such 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 no genuine

issue of material fact that Cajun owed no turnover duty to warn 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).“The vessel has a duty to ‘exercise due care to avoid

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).2It 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.” Fontenot v. United States, 89 F.3d 205, 208 (5th Cir. 1996)

(quoting Futo, 742 F.2d at 210). The key issue is whether the work area in

question has been “turned over” to the contractor. Id. 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); see also THOMAS J.

SCHOENBAUM, ADMIRALTY & MARITIME LAW § 7-10 (4th ed. 2004) (same).
No. 08-30017

5

In Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505 (5th Cir. 1984),

a longshoreman slipped in an oil slick in the course of obtaining 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,thatthe vessel breached an active control

duty to the 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 of his work area.” Id. In Fontenot, a marine worker was injured when he

slipped on a hatch covered in hydraulic oil 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. Id. 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 Romero for 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 to work because Cajun’s deckhands normally cleaned the vessel,

and it was not his “job title to do that.” Another time—Romero did not specify
No. 08-30017

3 Romero was asked by his attorney: “I want to be real clear about something. This idea

of welding 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,

suggestthat Cajun retained “active control” ofthe work area. Kleinpeter was not

merely an occasional presence on the COURT; he closely oversaw and directed

“operative details” of Romero’s work. 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 of keeping the work 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 of fact as to whether 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 to return to work after the rain ceased.

Cajun also says that MIF erected and maintained the barricade. However, at

some point, Romero asked Kleinpeter if he 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

conditions on the vessel. However, Romero’s deposition demonstrates thatthere

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.