Prestenbach v. Chios Challenge, et al

*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should not be published and is not precedent except under the limited circumstances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
F I L E D
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:

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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

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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

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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.

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