1 District Judge of the Southern District of Mississippi, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-4661.

FLORIDA FUELS, INC., et al., Plaintiffs,

Florida Fuels, Inc., Plaintiff-Appellant,

v.

CITGO PETROLEUM CORP., et al., Defendants,

Citgo Petroleum Corp., Defendant-Appellee.

Elaine Trosclair AUTHEMENT, Individually and as Administratrix & Legal Tutrix o/b/o Honey

L. Authement, etc. and Carl J. Authement, Sr., Plaintiffs-Appellants,

v.

FLORIDA FUELS, INC., Defendant-Appellant

v.

CITGO PETROLEUM CORP., Defendant-Appellee.

Nov. 9, 1993.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY and DAVIS, Circuit Judges, and BRAMLETTE, 1 District Judge.

BRAMLETTE, District Judge:

Plaintiffs-Appellants, deceased crew member's family and vessel owner, appeal the lower

court's grant of summary judgment in favor of dock owner. The l ower court found that the dock

owner owed no duty to the vessel crew member to provide a means of access between the dock and

the vessel, and owed no duty to aid in the mooring of the vessel. We affirm.

On April 10, 1990, the barge OSPREY, assisted by the tugboat TODD RICK, both owned

and operated by Florida Fuels, Inc. (Florida Fuels), berthed at a dock owned and operated by Citgo

Petroleum Corp. (Citgo), in order to pick up fuel. On board the TODD RICK was Carl Authement,

Jr. (Authement), employed by Florida Fuels as a deckhand. The Citgo facility consisted of fourdocks: "A," "B," "C," and "D." After the OSPREY arri ved at Dock D, Ci

tgo requested that the

barge be brought to Dock A for loading the fuel.

Dock D was equipped with a walkway ingress/egress system. Dock A had no such system.

There were aluminum ladders attached to Dock A on a pivot, but these were too short to serve as

a me ans o f ingress and egress between the dock and the OSPREY. The OSPREY had its own

aluminum extension ladder, which was used by the TODD RICK crew members as they moored the

barge to the dock.

After the OSPREY moved to Dock A, another barge arrived at the facilit y, and Citgo asked

that the OSPREY be moved to the north end of Dock A. After this was done, Citgo again requested

the OSPREY to move, this time some fift y feet further down Dock A. At this point, Authement left

the deck of the OSPREY, using the aluminum extension ladder, and proceeded to the dock to help

secure the barge to the dock. After the barge was secured, Authement was ascending the ladder to

return to the deck of the barge when he fell, struck his head on the pier, and drowned.

Authement's parents and his five minor children filed a marit ime tort action against Florida

Fuels, and lat er amended their petition to add Citgo as a defendant. Citgo removed the action to

federal court. Florida Fuels and the Authements then reached a settlement, but the settlement did not

include damages for loss of society sustained by family members. The Authements and Florida Fuels

agreed to pursue Citgo jointly for the recovery of the remainder of damages sustained, and agreed

to sha r e equally any recovery made. Florida Fuels filed a separate suit against Citgo for

indemnity/contribution, and on motion of Citgo the actions were consolidated.

Citgo filed a motion for summary judgment on January 24, 1992. The magistrate judge

recommende d t hat summary judgment be granted. After objections were filed, the district court

reviewed the matter de novo and reached the same conclusion. On June 9, 1992, summary judgment

was granted in favor of Citgo, adopting the magistrate judge's report and recommendation. Florida

Fuels and the Authements appeal. The issues on appeal are the same that were before the lower court

on the motion for summary judgment: (1) Did Citgo owe a duty to Authement to provide a means

of access between the dock and the vessel; and (2) Did Citgo owe a duty to aid in the mooring ofthe vessel?

"We review a district court's grant of s ummary judgment d e novo, resolving any disputed

issues in favor of the non-movant, to determine whether the record, as it exists, shows that there is

no genuine issue of material fact and that the moving party is entitled to a judgment as a m atter of

law." P almer v. Fayard Moving & Transp. Corp.

, 930 F.2d 437, 438 (5th Ci r.1991). We al so

independently review the district court's conclusions of law. Brister v. A.W.I., Inc., 946 F.2d 350,

354 (5th Cir.1991).

1.

This case involves an intersection between state and federal law. In Victory Carriers, Inc.

v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 422, 30 L.Ed.2d 383 (1971), the Supreme Court observed

that, traditionally, "[t]he gangplank has served as a rough dividing line between the state and marit ime

regimes." Piers and docks are deemed extensions of land, i d., 404 U.S. at 206-07, 92 S.Ct. at 422,

while the means of access between a dock and a vessel is considered an "appurtenance" of the vessel.

Romero Reyes v. Marine Enterprises, Inc., 494 F.2d 866 (1st Cir.1974).

It is well-established that marit ime law encompasses the gangway. T he Admiral Peoples, 295

U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935); B rady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct.

425, 87 L.Ed. 471 (1943); S outhern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed.

1086 (1917); T

ullis v. Fidelity & Cas. Co., 397 F.2d 22 (5th Cir.1968); O 'Keef fe v. Atlantic

Stevedoring Co., 354 F.2d 48 (5th Cir.1965).

It is also well-established that a vessel owner has a "fundamental duty" to provide its crew

members with a reasonably safe means of boarding and departing from the vessel. M assey v.

Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir.1969), cert. denied, 396 U.S. 1037, 90 S.Ct.

682, 24 L.Ed.2d 681 (1970); Superior Oil Co. v. Trahan, 322 F.2d 234, 235 (5th Cir.1963). The

question posed in the present case is whether a dock owner has a similar duty to crew members of

a vessel using its facility.

The vessel owner's duty to provide a reasonably safe means of access arises from the doctrine

of "seaworthiness." Under general maritime law, a vessel owner has "an absolute nondelegable dutyto provide a seaworthy vessel" to crew members. B rister v. A.W.I. Inc., 946 F.2d 350, 355 (5th

Cir.1991). Unseaworthiness is "predicated without regard to fault or the use of due care." I d.,

quoting Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir .1977). It is well-settled,

however, that the doctrine of "seaworthiness" is not applicable to a dock owner who does not occupy

the position of owner or operator of the vessel. Daniels v. Florida Pow er & Light Company, 317

F.2d 41, 44 (5th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 78, 11 L.Ed.2d 63 ( 1963); B aker v.

Raymond Intern ational, Inc., 656 F.2d 173, 181 (5th Cir.1981), cert. denied, 456 U.S. 983, 102

S.Ct. 2256, 72 L.Ed.2d 861 (1982).

Absent a marit ime status between the parties, a dock owner's duty to crew members of a

vessel using the dock is defined by the application o f state law, not maritime law. W iper v. Great

Lakes Engineering Works, 340 F.2d 727, 730 (6th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15

L.Ed.2d 60 (1965). In the present case, there was no maritime status between Citgo and Authement.

Louisiana law defines the duty Citgo owes an invitee such as Authement as the duty to provide a

wharf or dock which is reasonably safe. S ons v. New Amsterdam Casualty Company, 186 So.2d 375,

376 (La.Ct.App. 4th Cir.1966). In addition, La.Civ.Code Ann. art. 2317 (West 1979), provides, in

relevant part, that "[w]e are responsible, not only for the damage occasioned by our own act, but for

that which is caused by the act of persons for whom we are answerable, or of the things which we

have in our custody." S ee Gauthier v. Crosby Marine Service, Inc., 752 F.2d 1085, 1088 (5th

Cir.1985).

The appellants do not contend that the accident was caused by some substance on the surface

of the dock, or by some defect in the dock itself; nor do they contend that the accident was caused

by a person for whom Citgo was answerable or that the ladder was in Citgo's custody. Instead, they

urge this Court to find that Citgo had a legal duty to provide Authement with a reasonably safe means

of boarding and departing from the OSPREY.

The question of whether such a d ut y exist s is t o be decided by maritime tort law. In this

circuit, the proper standard to be applied in maritime tort cases is "legal cause." S pinks v. Chevron

Oil Co., 507 F.2d 216, 222-23 (5th Cir.1975). The elements of legal cause are negligence, a causalconnection between the negligence and the injury, the invasion of a legally protected interest, and lack

of a countervailing legally protecte d int erest as a defense to liability. Restatement 2d Torts § 9.

"Legally protected interest" encompasses the concept of duty. C havez v. Noble Drilling Corp., 567

F.2d 287, 289 (5th Cir.1978).

"The doctrine of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), that an

actor is not answerable in tort to a person to whom he owed no duty, was adopted in admiralty in

S inram v. Pennsylvania R. Co., 61 F.2d 767, 770 (2d Cir.1932)." S pinks, 507 F.2d at 222, n. 8.

"Whether a defendant owes a plaint iff a legal duty is a question of law. Whether a defendant has

breached a duty owed is a question of fact." Chavez, 567 F.2d at 289.

The appellants ask us to apply the general duty to exercise "reasonable ca re under the

circumstances," citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct.

406, 3 L.Ed.2d 550 (1959). Kermarec involved an injury to a guest of a member of a ship's crew,

which occurred when the guest was descending a stairway in order to leave the ship. The Supreme

C ourt applied the "settled principle of marit ime law that a shipowner owes the duty of exerci sing

reasonable care towards those lawfully aboard the vessel who are not members of the crew."

However, Kermarec do es no t ext end, even by implication, such a duty to a dock owner toward a

vessel crew member aboard the vessel or an appurtenance thereto. Furthermore, K ermarec was the

law when this Court decided Daniels, supra, on the basis that "[t]here was no duty on [the dock

owner] to supply a ladder in the first place."

Other cases upon which the appellants rely are likewise inapposite. B ailey v. Texas Co., 47

F.2d 153 (2d Cir.1931); S ims v. Chesapeake & Ohio Railw ay Co., 520 F.2d 556 (6th Cir.1975); and

Oglebay Norton Co. v. CSX Corp., 788 F.2d 361 (6th Cir.), cert. denied, 479 U.S. 849, 107 S.Ct.

173, 93 L.Ed.2d 109 (1986), all involved unsafe conditions on the dock itself. In Purdy v. Belcher

Refining Co., 781 F.Supp. 1559 (S.D.Ala.1992), which did involve an accident on a ladder between

the dock and a vessel, the p laint iff was not a vessel crew member, but was instead a petroleum

inspector and employee of W.S. Seybolt and Company, an independent contractor. The district court

was careful to point out that "[t]his case does not involve the access to the oil dock by a member ofthe crew of a vessel or tugboat. Here, the presence of the Seybolt inspector to determine quantity

and specification of the oil was a matter in which Belcher [the dock owner] had a direct, significant

and commercial interest in the sale and transportation of its products." Id. at 1561.

The appellants also urge us to find t hat Cit go 's customary practice of providing means of

access at some of its docks creates a duty in this case. It i s undi sputed that many dock owners

provide gangways or other means of access for their own employees, as they are required to do by

the OSHA regulations for longshoring, 29 C.F.R. § 1918.1 et seq. (1992). Nonetheless, although

custom may be considered as evidence bearing on the question of negligence once a duty is found to

exist, custom itself does not create the duty. Custom may help define the standard of care a party

must exercise after it has undertaken a duty, but custom alone cannot create a legal relationship

between the parties. In this case, the fact that Citgo furnished means of access to vessels at some of

its dock s does not create a legal duty on the part of Citgo to provide a means of access for the

OSPREY's crew members.

Citgo is not without duties to the owner and crew members of a vessel using its dock, but its

dut ies do not include furnishing a means of access to a vessel for its crew members. In N ationa l

Marine Service, Inc. v. Gulf Oil Company, 433 F.Supp. 913 (E.D.La.1977), aff'd without op., 608

F.2d 522 (5th Cir.1979), a seaman was injured while going from his vessel to a dock using a ladder

furnished by the vessel owner. As in the present case, the vessel owner and the wharfinger were sued,

and the vessel owner filed a cross claim against the wharfinger for indemnification. The district court

cited Sims which holds that, for indemnification purposes, a vessel owner can look to the implied

warranty of workmanlike service which a wharfinger owes a shipowner:

The nature of the services performed by the whar finger determines the extent of this

warranty.... The implied warranties of a wharfinger relate to the conditions of berths and the

removal of dangerous obstructions or giving notice of their existence to vessels about to use

the berths.... A wharfinger also owes a duty to furnish a safe means of egress and ingress to

berthed ships.

Sims, 520 F.2d at 561, as quoted in National Marine, 433 F.Supp. at 918.

In National Marine, the vessel owner sought to recover damages for the dock owner's "failure

to provide a gangway or some safer means of access than the vessel itself supplied." I d. However,the district court, following Daniels, found that even under t he implied warranty of workmanlike

performance, a dock owner does not owe a vessel or its crew members a duty to provide a means of

access between the dock and the vessel. The court pointed out that the duty to furnish a safe means

of egress and ingress to berthed ships refers to passage over the dock itself, not the means of access

connecting the dock to the vessel. Id.

There is no duty imposed by marit ime law on a dock owner to provide a means of access to

a vessel for the vessel's crew members. D aniels, 317 F.2d at 42. The only duty, est ablished by

Louisiana law in this case, is to provide a dock which is reasonably safe. The appellants would have

us reverse the district court on the grounds that since there was a duty, the court should have let the

breach of duty issue go to the trier of fact. We find, however, that in this case there is no genuine

issue of material fact. The circumstances surrounding the accident are not in dispute. There was no

defect in or on the dock itself, nor was the ladder furnished by the dock owner or under its control.

These undisp ut ed facts allow us to find as a matter of law that Citgo did not breach its duty to

maintain a reasonably safe premises.

Despite arguments of the appellants to the contrary, we find that for purposes of this case the

relationship among dock owners, vessel owners and seamen is virtually the same as it was in 1963

when this court heard Daniels. That case still constitutes t he law of this circuit, and we are not

persuaded that it should be otherwise.

2.

The appellants contend that Citgo had a duty to assist Florida Fuels with the mooring of its

vessel, and that its failure to do so caused Authement's accident on the theory that he would not have

otherwise disembarked. Without addressing the second part of this argument, we find that Citgo

owed no such duty.

In Trade Banner Line, Inc. v. Caribbean S.S. Co., S.A., 521 F.2d 229, 230 (5th Cir.1975),

this Court discussed a wharfinger's "dut y t o exercise reasonable diligence to furnish a safe berth."

The Court found that it "includes the duty to ascertain the condition of the berth, to make it safe or

warn the ship of any hidden hazard or deficiency known to the wharfinger or which, in the exerciseof reasonable care and inspection, should be known to him and not reasonably known to the

shipowner." Id. The Court further found that "it is the master, when present and supervising, and

not a wharfinger—absent some type of contractual commitment not present here—who is responsible

for the mooring of a ship." I d. at 231. Similarly, "[t]he implied warranties of a wharfinger relate to

the conditions of berths and the removal of dangerous obstructions or giving notice of their existence

to vessels about to use the berths." Sims, 520 F.2d at 561.

There was no duty on the part of Citgo to assist in the mooring of the OSPREY. As a matter

of law, Citgo's failure to provide line handlers to assist in mooring cannot be a valid basis for liabilit y

under the facts of this case.

The judgment of the district court is AFFIRMED.

W. EUGENE DAVIS, Circuit Judge, dissenting.

Because I wo uld vacat e the district court's dismissal and remand this case for trial, I

respectfully dissent.

The majority, relying on Daniels v. Florida Power & Light Co., 317 F.2d 41 (5th Cir.1963)

and National Marine Service Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919 (E.D.La.1977), concludes

that regardless of the facts in any particular case a wharfowner never owes a duty to a crewmember

of a vessel to provide safe access from the vessel to the wharf. The majority reads t o o much into

those cases.

In Daniels, a deck engineer fell off a ladder while climbing from his barge to a dock; the

distance between the barge and the dock was three feet; the ladder led upward from the barge to the

dock at an angle of 15 to 20 degrees; the ladder was owned by the dock owner, but put in use by

barge employees. Following a trial on the merits, the trier of fact concluded that the wharfowner was

not negligent, and we affirmed, saying:

There was nothing inherently dangerous about the ladder. It was not put in use by

Florida Power. There was no duty o n Florida Power to supply a ladder in the first place.

Even if it be argued that customary use with knowledge of Florida Power imposed some duty,

our attention is not called to any theory whereunder a duty was imposed on Florida Power

under these facts to supply a ladder that would not slip or one with ha ndrails on it.

Furthermore, appellants had used the ladder many times before, and even on the night of theacc ident ; and such risk or danger, if any, as attached to the use of the ladder was so

reasonably apparent as to be a bar under the circumstances.

In National Marine, a tug crew member fell as he attempted to walk across his employer's

ladder to get from a barge to the defendant's wharf. The barge was level with the dock and the ladder

horizontal. Denying the vessel owner's claim for contribution or indemnity against the dock owner,

the trier of fact concluded that the dock owner was not negligent. N ational Marine, 433 F.Supp. at

920. In both D aniels and N ational Marine, judgment was rendered after a full trial and after the

district court found no negligence on the part of the dock owner.

Injuries occurring on gangplanks between a vessel and a wharf are considered marit ime torts

and are governed by the general maritime law. Brady v. Roosevelt S.S. Co., 317 U.S. 575, 577, 63

S.Ct. 425, 87 L.Ed. 471 (1943); Tullis v. Fidelity & Ca. Co., 397 F.2d 22 (5th Cir.1968). Thus a

wharfowner owes a seaman, like any other business invi t ee o n his property, the duty to "exercise

reasonable care in all the circumstances." Compagnie Generale Transatlantique v. Kermarec, 358

U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Casaceli v. Martech Intern., Inc., 774 F.2d 1322,

1328-29 (5th Cir.1985); B ubla v. Bradshaw

, 795 F.2d 349, 353 (4th Cir.1986); Quam v. Mobile

Oil, 496 F.Supp. 986, 988 (S.D.N.Y.1978), aff'd, 599 F.2d 42 (2d Cir.), cert. denied, 444 U.S. 950,

100 S.Ct. 423, 62 L.Ed.2d 321.

Whether, in the exercise of reasonable care, a wharfowner is responsible for furnishing a

gangplank or other means of access from the ve ssel t o t he wharf depends upon the facts and

circumstances of each case. Frequently, the wharfowner is purely passive and does nothing more than

provide a location for the vessel to land and ta ke o n or discharge cargo. In such a case, the

wharfowner does not undertake to provide a gangplank because everyone assumes the vessel will

provide its crew with adequate means of egress and ingress. In such a case, t he vessel is solely

responsible for providing an inadequate gangway.

But that does not mean the wharfowner, in the exercise of reasonable care, never is at fault

for failing to furnish a gangplank or other ac cess t o t he wharf. Based on the summary judgment

evidence presented in this case, plaintiff presented a genuine issue of material fact regarding the

wharfowner's negligence in failing to provide a gangplank.According to the summary judgment evidence, the barge OSPREY called regularly at the

Citgo refinery. At the dock where the barge was usually loaded (dock D), Citgo had a safe gangway

available for the crew t o use. Citgo knew that the barge OSPREY carried no gangway . Citgo

directed the barge OSPREY to Dock "A," which had no ingress/egress system. This was done for

Citgo's convenience, to better enable it to handle other ships. Because it had called to load fuel, the

barge OSPREY was riding high whe n it approached the dock; the distance from the dock to the

barge's deck exceeded twenty feet. A factfinder could conclude that by failing to provide a gangway

for the barge OSPREY, Citgo deviated from its es t ablished custom and practice of providing a

gangway to this vessel and similar vessels. Under these circumstances, a factfinder could conclude

that Citgo was negligent in directing this vessel to dock D where no gangway was provided when it

knew the barge in reliance on an established custom did not have a means of access to the dock.

For the reasons stated above, I would vacate the summary judgment and remand this case for

trial.