*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should not be published and is not precedent except under the limited circumstances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.

United States Court of Appeals

Fifth Circuit

FILED

October 7, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-30365

Summary Calendar

 

EDWIN PRESTENBACH,

Plaintiff-Appellant,

versus

CHIOS CHALLENGE SHIPPING & TRADING S.A.;

HARBOR SHIPPING AND TRADING S.A.; CHIOS

CHALLENGE MV,

Defendants-Appellees.

 

Appeal from the United States District Court for

the Eastern District of Louisiana

(USDC No. 2:03-CV-3636)

_________________________________________________________

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

We affirm the district court’s summary judgment in favor of defendants for

the following reasons:
2

1. Prestenbach failed to produce evidence that the floor of the cargo hold,

as it existed when defendants turned the vessel over to Total Logistics

Company (“TLC”) for cargo operations, was in a condition such that

an experienced stevedore could not perform cargo operations with

reasonable safety. Scindia Steam Navigation Co. v. De Los Santos,

451 U.S. 156, 166-67 (1981). In addition, the condition of the floor

was open and obvious to Prestenbach, who knew that it was rusty and

lacked non-skid covering. Greenwood v. Societe Francaise de

Transportes Maritime, 111 F.3d 1239, 1246 (5th Cir. 1997). 

Prestenbach did not submit evidence that his only alternatives to

working on the rusty floor that lacked non-skid covering were unduly

impracticable or time-consuming or would have forced him to leave the

job. Moore v. Angela MV, 353 F.3d 376, 381 (5th Cir. 2003). 

Prestenbach also failed to submit evidence showing that a hidden

defect (rust) caused the bands around the rebar to break, and thus

cannot show that defendants breached their turnover duty by failing to

warn him of such a defect. Scindia Steam, 451 U.S. at 167.

2. The “duty to intervene,” as described in Scindia Steam, is an exception

to the general rule that a vessel owner does not owe a duty to discover
3

dangerous conditions that develop within the confines of cargo

operations assigned to a stevedore. Futo v. Lykes Bros. Steamship

Co., 742 F.2d 209, 213-14 (5th Cir. 1984). The exception does not

apply where the hazard is not created by the shipowner, is obvious to

the longshoremen, and arises during and in the area of the stevedore’s

operations, as here. Id. at 214; see also Casaceli v. Martech Int’l Inc.,

774 F.2d 1322, 1327 (5th Cir. 1985). Instead, “something more is

required beyond the mere presence of the danger on board and the

shipowner’s knowledge of it” to impose a duty to intervene on the

shipowner where the stevedore creates a hazard in the course of cargo

operations. Futo, 742 F.2d at 215; see also Casaceli, 774 F.2d at

1327-28 (5th Cir. 1985). To determine whether the shipowner owes a

duty to intervene in that situation, this court considers: (1) whether the

hazard was open and obvious, (2) whether the hazard was located

within the ship or ship’s gear, (3) which party created the hazard, (4)

which party was in a better position to correct the hazard, (5) which

party owned and controlled the defective item, (6) whether an

affirmative act of negligence or acquiescence in the use of the

dangerous item occurred, and (7) whether the shipowner assumed any
4

duty with respect to the hazard. Casaceli, 774 F.2d at 1328 (citing

Futo, 742 F.2d at 218, 221). The district court correctly determined,

based on the summary judgment evidence, that those factors weighed

against imposing a duty on defendants on the facts of this case. 

Because the summary judgment evidence, viewed in the light most favorable to

Prestenbach, does not establish that defendants owed a duty to intervene to clean up

the fluid spill or breached their turnover duty, summary judgment in favor of

defendants is affirmed.

AFFIRMED.