United States Court of Appeals

for the Fifth Circuit

No. 21-30004

Pradeep Patil, 

Plaintiff—Appellant,

versus

Amber Lagoon Shipping GmbH & Company; Macs 

Maritime Carrier Shipping GmbH & Company, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-6167

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Per Curiam:*

In this case arising under the Longshore and Harbor Workers’ 

Compensation Act (“LHWCA”), the district court granted summary 

judgment in favor of Defendants-Appellees Amber Lagoon Shipping GmbH 

& Company and Macs Maritime Carrier Shipping GmbH & Company 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 31, 2021

Lyle W. Cayce

Clerk

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(collectively “Defendants”) and dismissed Plaintiff-Appellant Pradeep 

Patil’s claims in their entirety. We AFFIRM.

I.

Patil is a surveyorwith 45 years of experience in the maritime industry. 

He is employed by Maritech Commercial, Inc. (“Maritech”), a company 

that independently contractsto perform ultrasonic testing of the hatch covers

situated atop the holds of the M/V Amber Lagoon, a vessel owned and 

operated by Defendants. Ultrasonic testing is a procedure whereby a vessel’s 

hatch covers are battened down, and a testersets up an ultrasonic transmitter 

inside the hold, walks around the belly of the hatch cover while pointing an 

ultrasonic signal detector at the hatch cover’s seal, and takes decibel readings 

to identify any leakage in the seal.

On March 17, 2016, Maritech sent Patil to perform ultrasonic testing 

on the hatch covers of Holds One, Two, and Three of the Amber Lagoon, 

while the vessel was docked in Houston, Texas. On the day of testing, the 

captain of the Amber Lagoon requested that Patil test the hatch covers on

Hold Four as well. The holds on the Amber Lagoon rise six feet above the main 

deck, and each hold is split into port-side and starboard-side sections, with a

three-foot-wide gap between those two sections. There are port-side and 

starboard-side hatch covers on top of each hold. Each hold contains port-side 

and starboard-side access ladders, which allow individuals to ascend and 

descend between the main deck and the hatch covers.

Patil conducted the ultrasonic testing from the tops of the hatch 

covers rather than from the main deck, because the ultrasonic signal detector 

works more effectively at the higher level. Sebastian Kedziora, the Amber 

Lagoon’s second officer, accompanied Patil throughout the testing period and 

marked areas of potential leakage identified by Patil with a permanent 

marker. Patil used the access ladders to ascend and descend both sides of 

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Holds One through Three and the starboard side of Hold Four without issue. 

Patil also used the access ladder to ascend the port side of Hold Four without 

issue.

Around 6:00 p.m., Patil finished his work for the day by completing

his testing of the port-side hatch cover of Hold Four. Patil noticed that the

port-side access ladder he had previously used to reach the top of the hold

had become blocked by cargo containers and was no longer a viable method 

of descending to the main deck. Patil asked Kedziora to retrieve the 

ultrasonic transmitter that Patil had set up inside Hold Four and bring it back 

to the main deck. Kedziora jumped across the three-foot gap between the 

port and starboard sides, descended the starboard-side access ladder to the 

main deck, and began climbing through a manhole in the deck to reach the 

inside of Hold Four. Patil decided to cross the three-foot gap as well, but he 

chose not to jump the gap, because he was older and less nimble than 

Kedziora. Instead, Patil sat down on the port-side ledge and attempted to

swing his right leg over the gap and place his right foot onto the starboardside ledge; however, Patil’s right foot slipped, and he fell six feet to the main 

deck, suffering a small forehead laceration and a left-heel fracture.

As Kedziora was climbing into the manhole, he saw Patil fall out of the 

corner of his eye. Kedziora and other Amber Lagoon crewmembers rushed to 

Patil’s assistance, rendered first aid, and called an ambulance to take Patil to 

the emergency room. At the hospital, Patil received x-rays and a CT scan, 

which revealed no problems beyond the forehead laceration and left-heel 

fracture. Patil’s injured foot was placed in a pneumatic boot, and he was 

released from the hospital on the same day of his accident. Patil took three 

months of paid medical leave based on his heel injury and ultimately 

underwent heel surgery.

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On June 22, 2018, Patil filed this lawsuit against Defendants, alleging 

negligence claims under the LHWCA. See 33 U.S.C. § 905(b). Specifically, 

Patil alleged that he sustained severe and disabling injuries when he slipped 

and fell due to a “foreign substance” on or near the hatch covers of the Amber 

Lagoon.

Patil testified in his deposition that he did not actually observe a 

foreign substance in the area of his slip-and-fall, but assumed that he slipped 

on “some grease,” because the cleats attached to vessel hatch covers are 

typically greased so that they slide easily through ledge holes. Patil further 

testified that at some point after the accident, he returned home, examined 

his work boots worn on the date of the accident, and noticed “a little bit” of 

grease on the tip of one boot. Patil further testified as to his surrounding

conditions at the time of the accident: (1) although the sun had begun to set, 

there was still daylight in the area; (2) the Amber Lagoon’s lighting was not 

yet on, but Patil indicated that he did not yet need lighting for visibility; and 

(3) the Amber Lagoon was docked and stable in terms of movement.

Kedziora testified in his deposition that the cleats on the Amber 

Lagoon’s hatch covers are usually greased with lubrication oil to prevent 

corrosion and that the Amber Lagoon crew was responsible for ensuring that 

Patil’s inspection areas were free of grease. Kedziora further stated that, in 

preparation for Patil’s ultrasonic testing work, the chief officer of the Amber 

Lagoon followed the vessel’s standard operating procedure by sending

multiple crewmembers to examine Patil’s testing areas for grease and clean 

the surfaces of the hatch covers with rags and chemicals. Kedziora testified 

that, before the accident, he did not observe any type of foreign substance in 

the area of Patil’s slip-and-fall, nor did Patil advise Kedziora of the presence 

of any foreign substance.

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Patil’s medical records from the date of the accident and an employee 

injury report do not mention a foreign substance in the area of the slip-andfall.

Defendants moved for summary judgment. The district court granted 

summary judgment in favor of Defendants and issued a final judgment 

dismissing Patil’s claims with prejudice. In its written reasons, the district 

court concluded that Patil failed to show that Defendants breached their 

“turnover duty,” “active control duty,” or “duty to intervene” under §

905(b) of the LHWCA. See 33 U.S.C. § 905(b); see also Scindia Steam Nav. 

Co. v. De Los Santos, 451 U.S. 156 (1981). This appeal followed.

II.

We conduct a de novo review of a district court’s grant of summary 

judgment, applying the same standard as the district court. Robinson v. Orient 

Marine Co. Ltd., 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). 

Summary judgment is appropriate if the record evidence shows that there is 

no genuine dispute as to any material fact and that the movant is entitled to 

judgment as a matter of law. FED. R. CIV. P. 56(a), (c). “Unsubstantiated 

assertions, improbable inferences, and unsupported speculation are not 

sufficient to defeat a motion for summary judgment.” Brown v. City of 

Houston, 337 F.3d 539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable 

inferences are to be drawn in favor of the non-moving party.” Robinson, 505 

F.3d at 366 (citation omitted).

III.

Section 905(b) permits a covered maritime employee to recover 

damages for personal injuries caused by the negligence of a vessel. 33 U.S.C. 

§ 905(b). The parties agree that Patil is a covered employee under the 

LHWCA, because he was a “person engaged in maritime employment” at 

the time of the accident at issue. See 33 U.S.C. § 902(3). The scope of vessel 

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negligence under § 905(b) is limited to breach of the three narrow duties that 

shipowners owe to maritime employees, as outlined by the Supreme Court in 

Scindia Steam: (1) a “turnover duty,” (2) a duty to exercise reasonable care 

to prevent injuries in the areas of the ship under the “active control of the 

vessel,” and (3) a “duty to intervene” to prevent unsafe cargo operations.

Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98–101 (1994) (quoting

Scindia Steam, 451 U.S. at 167–78).

On appeal, Patil argues that the district court erred in finding no 

genuine dispute as to any material fact with respect to his claims that 

Defendants breached their “turnover” and “active control” duties.

1

A. Turnover Duty

“The turnover duty applies to the shipowner’s obligation before or at 

the commencement of the [maritime employee’s] activities[,]” and imposes 

two responsibilities on the vessel owner. Kirksey v. Tonghai Mar., 535 F.3d 

388, 392 (5th Cir. 2008). First, the vessel owner must “exercise ordinary care 

under the circumstances to turn over the ship and its equipment in such 

condition that an expert [maritime employee] can carry on [his] operations 

with reasonable safety.” Id. (citing Fed. Marine Terminals, Inc. v. Burnside 

Shipping Co., 394 U.S. 404, 416–17 & n. 18 (1969)). Second, the vessel owner 

must “warn the [maritime employee] of latent or hidden dangers which are 

known to the vessel owner or should have been known to it;” however, a 

vessel owner has no duty to provide a warning for “open and obvious”

dangers or “dangers a reasonably competent [maritime employee] should 

anticipate encountering.” Id. (citing Howlett, 512 U.S. at 99–101).

1 Patil does not appeal the district court’s finding of no genuine dispute as to any 

material fact with respect to his “duty to intervene” claim.

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The record reflects that the Amber Lagoon was turned over to Patil for 

ultrasonic testing in a reasonably safe condition based on Kedziora’s 

testimony that crewmembers examined Patil’s inspection areas for grease

and cleaned the surfaces of the vessel’s hatch covers before Patil’s testing 

commenced. The record further indicates that any latent or hidden slip 

hazards were unknown to Defendants based on the crew’s preparation efforts 

and Kedziora’s testimony that he did not see any foreign substances in the 

area of the accident. Moreover, Patil, a surveyor with 45 years of experience 

in the maritime industry, reasonably should have anticipated encountering 

potential slip hazards in traversing the three-foot-wide, six-foot-tall gap 

between the port and starboard sides of Hold Four. The need for caution was 

particularly apparent in light of the fact that Patil was attempting this 

maneuver for the first time after consistently using the traditional—and 

safer—method of navigating between the two sides of each hold via the 

access ladders.

Significantly, the record lacks non-speculative evidence that the 

Amber Lagoon was turned over to Patil with any slip hazard—open, obvious, 

or otherwise—in the area of his accident. Both Patil and Kedziora testified 

that they did not actually observe a foreign substance at the site of the 

accident. In addition, shortly before the accident, Kedziora successfully 

jumped from the port side to the starboard side of Hold Four without 

slipping.

Patil’s turnover duty claim is premised on an assumption that the 

later-discovered spot of grease on his work shoes came from the site of his 

accident and caused his slip-and-fall—despite the fact that neither Patil nor 

Kedziora observed grease in that area. In an unpublished opinion, we 

affirmed the district court’s grant of summary judgment in favor of a vessel 

owner in a § 905(b) negligence action under similar allegations. Kitchens v. 

Stolt Tankers B.V., 657 F. App’x 248, 249–52 (5th Cir. 2016) (per curiam). 

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The plaintiff in Kitchens slipped and fell on a vessel walkway and assumed 

that the accident was caused by an accumulation of vegetable oil or other 

foreign substances, however, neither the plaintiff nor any eyewitness actually 

observed a foreign substance on the walkway. Id. at 250–51. In light of the 

plaintiff’s “failure to produce any evidence of a hazard on the walkway,” we 

found that the plaintiff’s assumption was “nothing more than unsupported 

speculation and therefore insufficient to defeat a motion for summary 

judgment.” Id. at 252 (citing Brown, 337 F.3d at 541). Patil hassimilarly failed 

to present evidence of a slip hazard at the site of his accident, and his turnover 

claim rests on an unsupported assumption.

For these reasons, we find no genuine dispute as to any material fact

with respect to Patil’s turnover duty claim.

B. Active Control Duty

Under the active control duty, a vessel may be liable under § 905(b) if 

it “actively involves itself in the cargo operations and negligently injures” a 

maritime employee, or if the vessel “fails to exercise due care to avoid 

exposing [the maritime employee] to harm from hazards [he] may encounter 

in areas, or from equipment, under the active control of the vessel” during 

his work operations. Scindia Steam, 451 U.S. at 167. Accordingly, “liability 

under the active control duty is premised on the presence or existence of a 

‘hazard’ under the active control of the vessel.” Kitchens, 657 F. App’x at 

251 (quoting Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 16 (5th Cir. 

1992)). Liability under the active control duty “is not relieved when the 

hazard is open and obvious.” Pimental, 965 F.2d at 16 (citing Masinter v. 

Tenneco Oil Co., 867 F.2d 892, 897 (5th Cir. 1989)).“If, however, a vessel has 

relinquished control over an area to the [maritime employee], then it is the 

primary responsibility of the [maritime employee] to remedy a hazard in that 

area.” Id. (citation omitted). 

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Patil argues that Defendants breached the active control duty when 

(1) Defendants’ cargo operations caused the port-side access ladder on Hold 

Four to become obstructed with cargo containers, thus forcing Patil to 

attempt the dangerous crossing that led to his slip-and-fall; and (2) Kedziora, 

Defendants’ employee, took an active role in Patil’s ultrasonic testing work

and failed to ensure Patil’s safe descent to the main deck.

Kedziora attested in a declaration that all cargo operations involving 

the Amber Lagoon (including all bulk cargo and all container loading, 

discharge, movement, placement and securing activities, as well as all crane 

operation necessary to conduct all such activities) were directed, controlled,

and performed by an independent contractor stevedoring company and by 

that company’s longshore crews. Kedziora further attested that the officers 

and crewmembers of the Amber Lagoon did not conduct, direct, supervise or 

control any such cargo, container, or crane activities and operations. Patil 

presented no evidence to refute Kedziora’s attestations. Thus, the record 

reflects that Defendants had no active involvement over the Amber Lagoon’s 

cargo operations and did not exercise active control over the areas and 

equipment involved in those operations. Scindia Steam, 451 U.S. at 167.

Further, the record reflects that Defendants did not maintain active 

control over Patil’s work, because Patil maintained full autonomy over the

equipment used and areas examined during the testing period. There is no 

evidence that Kedziora set up or operated the ultrasonic testing equipment, 

directed Patil on how to use that equipment, or restricted Patil’s freedom to 

move about the testing areas on the Amber Lagoon in the manner Patil saw fit.

Instead, Kedziora merely followed Patil around, marked areas of leakage 

identified by Patil, and went to retrieve a piece of equipment from the inside 

of Hold Four at Patil’s instruction after testing was complete. Indeed, the 

very reason Kedziora was not available to help Patil descend to the main deck 

was because Patil sent Kedziora ahead to retrieve the equipment. Thus, the

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assistance Kedziora provided to Patil does not rise to the level of Defendants 

exercising active control over Patil’s ultrasonic testing work. Id.

Even if Defendants had actively involved themselves in Patil’s 

ultrasonic testing work, Patil’s active control claim would still fail, because 

such a claim is premised on the existence of a hazard. Kitchens, 657 F. App’x 

at 251. As discussed above, Patil’s “unsupported speculation” regarding the 

presence of grease at the site of his accident is insufficient to defeat a motion 

for summary judgment. Id. at 249–52.

For these reasons, we find no genuine dispute as to any material fact 

with respect to Patil’s active control duty claim.

IV.

For the foregoing reasons, we AFFIRM the district court’s grant of 

summary judgment.

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