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. 09-30441

Summary Calendar

JOHN JONES,

Plaintiff–Appellant,

v.

COOPER T. SMITH STEVEDORING CO., INC.,

Defendant–Appellee.

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:08-CV-3879

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

John Jones appeals the district court’s dismissal of his claim under

§ 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA).

We affirm.

I

This lawsuit arises out of injuries Jones sustained while working for

Cooper T. Stevedoring Co., Inc. (Cooper) as a longshoreman in the hold of a cargo

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2009

Charles R. Fulbruge III

Clerk
No. 09-30441

Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). 1

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). 2

 33 U.S.C. §§ 904-05; Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir. 1991). 3

2

barge in the Mississippi River. The cargo barge was moored to a crane barge,

the DENISE M, owned by Cooper. Cooper was responsible for using the crane

on the DENISE M to transfer cargo loads from the hold of another vessel, the

M/V MASS ENTERPRISE, to the cargo barge. Jones’s duty was to unhook cargo

as it was lowered onto the cargo barge by the crane. Jones was injured when a

load of cargo struck him and pinned him against the wall of the barge. 

Jones initially sued Cooper under the Jones Act and general maritime law

but later amended his suit to include an alternative claim of vessel negligence

under § 905(b) of the LHWCA. The district court first granted summary

judgment for Cooper on Jones’s claims under the Jones Act, holding that Jones

did not qualify as a seaman. The court later granted summary judgment for

Cooper on Jones’s LHWCA claim on the ground that Jones’s injuries were not

caused by vessel negligence, but rather by the negligence of persons providing

stevedoring services to the vessel. Jones appeals only his LHWCA claim. 

II

We review the grant of a motion for summary judgment de novo, applying

the same standard as the district court. Summary judgment is appropriate 1

when the competent summary judgment evidence demonstrates that there are

no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law.

2

The LHWCA creates a compensation scheme for injured longshoremen,

similar to state workers’ compensation laws, that generally replaces negligence

causes of action against employers. Section 905(b), however, permits a 3
No. 09-30441

 33 U.S.C. § 905(b). 

4

Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 365 (5th Cir. 2007) (quoting

5

Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992)).

Id. (quoting Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 6

1996)). 

 33 U.S.C. § 905(b). 7

Levene, 943 F.2d at 531. 8

See id. 9

3

longshoreman to sue for injuries resulting from the negligence of a vessel. A 4

vessel owner may be liable to a longshoreman injured during stevedoring

operations under three circumstances: 

1) if the vessel owner fails to warn on turning over the ship of

hidden defects of which he should have known.

2) for injury caused by hazards under the control of the ship. 

3) if the vessel owner fails to intervene in the stevedore’s operations

when he has actual knowledge both of the hazard and that the

stevedore, in the exercise of obviously improvident judgment, means

to work on in the face of it and therefore cannot be relied on to

remedy it.

5

But “the primary responsibility for the safety of the longshoremen rests on the

stevedore.” A longshoreman cannot sue the vessel for injuries caused by the 6

negligence of persons engaged in stevedoring services.7

Here, the vessel owner was conducting its own stevedoring operations.

When a longshoreman’s employer acts in such a dual capacity, the employer is

liable for acts of vessel negligence but still “retains its immunity for acts taken

in its capacity as an employer [of the stevedore].” Accordingly, determining in 8

which capacity Cooper and its employees acted is critical.9
No. 09-30441

Durr v. Global Marine, Inc., 673 F.2d 740, 741 (5th Cir. 1982). 10

4

Jones contends that there are issues of material fact as to whether the

employees he alleges were negligent were acting in their capacities as

stevedores or as agents for the vessel owner. He alleges that two Cooper

employees were negligent: Casey Curtis, the job superintendent who was

overseeing the cargo operation, and Stephen Taylor, the crane operator who was

overseeing a trainee operating the crane when the incident occurred. Jones

asserts that Curtis was negligent in conducting the safety meeting before the

stevedoring operation by failing to hold the meeting with both the longshoremen

and the crane operators. Jones alleges that Taylor was negligent in his

supervision of the trainee, who Jones claims operated the crane in a method

different from the method the longshoremen expected. He argues that both of

these acts of supervisory negligence were related to the “corporate concern and

interests” of Cooper, and that, as such, the actions were at least partly in the

employees’ capacities as the agents of the vessel owner. 

We think it clear that these alleged acts of negligence were in the Cooper

employees’ capacities as stevedores. Loading and unloading cargo are classic

stevedoring activities. Thus allegations of employee negligence with regard 10

to loading and unloading cargo are generally allegations of negligence in the

employee’s stevedore capacity. Here, Jones alleges that Curtis negligently

failed to hold a joint safety meeting with regard to the loading and unloading

of cargo and that Taylor was negligent in his supervision of a trainee loading

and unloading cargo. Both of these allegations relate to traditional stevedoring

activities and have no ascertainable tie to vessel negligence. 

Jones argues that the alleged acts of negligence were performed at least

partly in the employees’ capacities as agents of the vessel owner since they

involve “corporate concerns and interests.” He cites Pichoff v. Bisso Towboat
No. 09-30441

 748 F.2d 300 (5th Cir. 1984). 11

Id. at 303. 12

Id. 

13

Id. 

14

5

Co., Inc. in support of his argument. There, the court held that a supervisor’s 11

comment to “hurry up” with a repair so that the vessel could be taken to a

customer the next day was an action in his capacity as agent of the shipowner.12

The court reasoned that the order was “guided by [] corporate concern” since the

owner would lose money if the vessel was not provided to the customer. Jones 13

contends that this case is like Pichoff since safety meetings and training are

corporate concerns. 

Jones misapprehends the point of Pichoff. The court held that the “hurry

up” comment was motivated in part by the company’s corporate interests as a

vessel owner. But here, there is no indication that the relevant training and 14

safety meetings relate to Cooper’s interest as a vessel owner. The alleged

negligence does not relate to vessel conditions or a vessel mission. It relates

solely to stevedoring operations and thus provides no basis for a tort action

under § 905(b). The district court correctly granted summary judgment on this

issue. 

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.