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. 09-20122

Summary Calendar

N. MEZA

Plaintiff-Appellant

v.

MSC SHIP MANAGEMENT HK LTD.

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-cv-2096

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

This is a negligence suit stemming from injuries sustained by Narcisco

Meza while he was working as a longshoreman for James J. Flanagan Shipping

Corporation (“Flanagan”) on the deck of a cargo ship managed by MSC Ship

Management HK Limited (“MSC”). While Meza was securing loaded cargo

containers to the deck of the ship, he was struck by a metal piece of equipment

known as a “twist-lock” that detached and fell from a container that was being

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2009

Charles R. Fulbruge III

Clerk
No. 09-20122

2

loaded overhead by crane. Meza sued MSC for negligence under

33 U.S.C. § 905(b), a provision of the Longshore and Harbor Worker’s

Compensation Act. Meza alleges that MSC violated its “turnover duty,” which

essentially obligates a shipowner to: (1) turn over the ship and its equipment in

reasonably safe condition; and (2) warn the stevedore of any non-obvious defects.

See Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98–99 (1994). It is

undisputed that the twist-lock that struck Meza was provided by MSC to

Flanagan, and was thus equipment of the ship subject to the turnover duty. The

district court granted summary judgment in favor of MSC on the grounds that

there was insufficient evidence to determine whether it was more likely that the

twist-lock fell because it was defective, in which case MSC could be held liable,

or because it was incorrectly attached by a Flanagan employee, in which case

MSC could not be held liable. Meza appeals, arguing that the evidence is

sufficient to show that it was more likely that the twist lock fell because it was

defective, not because it was incorrectly attached by a Flanagan employee.

This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court. See XL Specialty Ins. Co. v.

Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir. 2008); Hirras v. Nat’l

R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary judgment is

proper if the record reflects “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).

Meza asserts that the testimony given by Will Phillips, the foreman of the

Flanagan stevedore crew at the time of the accident, demonstrates that the

twist-lock was not incorrectly attached. Meza specifically cites two parts of
No. 09-20122

3

Phillips’s testimony: (1) that the twist-lock that fell on Meza was attached by an

experienced longshoreman who should have known whether the twist-lock was

fastened correctly; and (2) that Phillips saw the twist-lock that fell on Meza

being attached to the container from which it fell, and did not see anything

indicating that the twist-lock was improperly attached. In addition to the

testimony cited by Meza, Phillips also testified that he was not close enough to

see for sure whether the twist-lock that struck Meza was properly attached, that

Phillips never examined the twist-lock, that Phillips could not say for certain

whether or not there was anything defective about the twist-lock, and that based

on his experience as a longshoreman and what he saw on the day of the injury

Phillips believed that the twist-lock most likely fell because it was not properly

attached. 

The testimony cited by Meza is not sufficient to raise a fact issue as to

whether it was more likely that the twist lock fell because it was defective, and

not because it was incorrectly attached by a Flanagan employee. In order to

survive summary judgment, Meza was required to present evidence showing not

only that it is possible that the twist lock fell because it was defective, but that

the twist-lock more likely than not fell because it was defective. The Phillips

testimony is evidence only that it is possible that the twist-lock fell because it

was defective; it is not evidence that the twist-lock more likely than not fell

because it was defective. We therefore hold that the district court did not err in

granting summary judgment in favor of MSC. See Little v. Liquid Air Corp., 37

F.3d 1069, 1078–79 (5th Cir. 1994) (holding that summary judgment was

appropriate because there was no evidence that any one of a number of
No. 09-20122

4

speculative theories of causation was most likely). The judgment of the district

court is AFFIRMED.