Petition for Writ of Certiorari — Exxon Shipping Co. v. Cook

-_ SS eer eer ee

In the Supreme Mart

nf the United States

OCTOBER TERM, 1985

EXXON SHIPPING COMPANY,

a Delaware corporation, |

Petitioner,

v.

OLGA L. COOK,

Personal Representative of the Estate of

ROBERT C. COOK, Deceased,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH E. ROBERTS, Counsel of Record

MILDRED J, CARMACK

GuY C. STEPHENSON

SCHWABE, WILLIAMSON, WYATT, MOORE & ROBERTS

Suites 1600-1800, Pacwest Center

1211 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503) 222-9981

Attorneys for Petitioner

RR SER RE TE aE AE ES A TN TR RN SERS PS RS I SA «atm RRA

STEVENS-NESS LAW PUB.CO., PORTLAND, OR. 97204 661

ate

QUESTION PRESENTED

In 1972 Congress amended the Longshoremen’s

and Harbor Workers’ Compensation Act to relieve a

vessel owner of any liability to an injured harbor

worker when the cause of the injury was the

“.. negligence of persons engaged in provid-

ing ship building or repair services to the vessel.

The liability of the vessel . . . shall not be based

upon the warranty of seaworthiness or a breach

thereof at the time the injury occurred.” 33 U.S.C.

§ 905(b).

Thus Congress abolished the doctrine of unseaworthi-

ness for hazardous conditions created by shipyard

workers.

This Court, in Scindia Steam Nav. Co., Ltd. v.

De Los Santos, 451 U.S. 156 (1981), approved certain

principles to be applied when determining whether a

vessel may be held liable for injury to the employee of

an independent contractor' under the 1972 Amend-

ments to the Longshoremen’s and Harbor Workers’

Compensation Act. Among those principles are:

1. A vessel or shipowner has no general duty by

way of supervision or inspection to exercise reasonable

1The Scindia decision involved the vessel’s duties to a

stevedore and its employees. In the present case the District

Court and the Court of Appeals held the same principles

applicable to an action against the vessel! for injury to the

employee of a shipyard, also an independent contractor (App-

A-3, C-5, E-2); see Hill v. Texaco, Inc., 674 F.2d 447, 451,

reh’g. denied (5th Cir. 1982).

il

care to discover dangerous conditions that develop

within the confines of operations which have been

assigned to the independent contractor. 451 U.S. at

172. |

2. As a general matter, the shipowner may rely

on the independent contractor to perform its duty to

provide its employees with a safe place to work and

to take necessary safeguards against hazards of the

work. 451 U.S. at 169-70, 172.

8. The vessel may be liable if it actively involves

itself in the independent contractor’s operations and

negligently injures an employee of the independent

contractor. 451 U.S. at 167.

4. The vessel has a duty to warn the independent

contractor of hidden dangers. 451 U.S. at 167.

The issue presented in this case is whether, under

a proper application of the Scindia principles, a vessel

owner can be held liable for negligence within the

terms of the Act when the uncontroverted evidence

establishes that injury and death of a shipyard worker

is caused by the shipyard’s failure to follow its own

safety procedures after the work area has been released

to the shipyard by the vessel owner’s repair superin-

tendent under the following circums*ances:

1. The vessel owner’s representative, by written

specification, calls for the shipyard to make certain re-

pairs to the vessel, the specification includes a direction

to “crop out” or “burn out” a portion of the deck, and

that specification is later repeated orally;

ili

2. Injury results when the shipyard, in performing

that repair, fails to follow i*s usual safety procedures

for preparing and performing “hot work”;

3. The vessel justifiably relied on the shipyard to

follow its own safety procedures and there is no

evidence that the vessel knew or had any reason to

know that the shipyard would not follow them; and

4. It has been conclusively established that the

vessel performed its duty to warn the shipyard of the

vessel’s condition.

PARTIES

Petitioner Exxon Shipping Company, a Deleware

corporation, and respondent Olga L. Cook, Personal

Representative of the Estate of Robert C. Cook, De-

ceased, were the only parties to the proceedings in the

United States Court of Appeals for the Ninth Circuit.

Humble Oil & Refining Corporation, a Delaware corpo-

ration, was a co-defendant in the United States Dis-

trict Court for the District of Oregon, but the action

was dismissed as to that party and it.did not partici-

pate in the appeal (App. A-2, E-1).

Petitioner is a wholly-owned subsidiary of Exxon

Corporation, a New Jersey corporation, It has no corpo-

rate affiliates or subsidiaries,

TABLE OF CONTENTS

Question Presented

Parties

Decisions Below

Jurisdiction

Statutory Provisions Involved

Statement of the Case

1. Introduction

2. Statement of Facts

Basis for Federal Jurisdiction

Prayer

Reasons for Granting Certiorari

Argument

Conclusion

APPENDIX

Opinion of the United States Court of Appeals.

for the Ninth Circuit App A-1

Opinion of the United States Court of Appeals

for the Ninth Circuit on petition for

rehearing App B-1

Opinion of the United States District Court for

the District of Oregon App C-1

Order of the United States Court of Appeals for

the Ninth Circuit on petition for rehearing

and suggestion for rehearing en bane App D-1

Opinion of the United States Court of Appeals

for the Ninth Circuit as amended by opinion

on petition for rehearing App E-1

vii

TABLE OF AUTHORITIES

CASES CITED

Page

DuPlantis v. Zigler Shipyards, Inc., 692 F.2d

372 (5th Cir, 1982) 15

Hill v. Texaco, Inc., 674 F.2d 447, reh. denied

(5th Cir. 1982) i, 14, 15

Hurst v. Triad Shipping Co., 554 F.2d 1237

(3rd Cir. 1977) 17

Melanson vy. Caribou Reefers, Ltd., 667 F.2d 213

(ist Cir. 1981) 16

Scindia Steam Nav. Co. Ltd. v. De Los Santos,

451 U.S. 156 (1981) i and passim

Spence v. Mariehamms R/S, 766 F.2d 1504

(11th Cir. 1985) 16

Stass v. American Commercial Lines, Inc., 720

F.2d 879 (5th Cir. 1983), reh. denied

(1984) 15, 16

West v. United States, 361 U.S. 118 (1959) 15

STATUTORY PROVISIONS

28 U.S.C. § 1254 (1) 2

28 U.S.C. § 1831 10

28 U.S.C. § 1882 10

28 U.S.C. § 18838 10

33 U.S.C. § 905 10

33 U.S.C. § 905(b) i, 2, 3, 11

33 U.S.C. § 933 10

No.

In the Supreme Court

of the United States

OCTOBER TERM, 1985

EXXON SHIPPING COMPANY,

a Delaware corporation,

Petitioner,

v.

OLGA L, COOK,

Personal Representative of the Estate of

ROBERT C. COOK, Deceased,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DECISIONS BELOW

The decision of the United States Court of Appeals

for the Ninth Circuit is reported at 762 F.2d 750, as

amended by an opinion on rehearing reported at 773

F.2d 1001. Those opinions are reproduced as Appen-

dices A and B. For the Court’s convenience, the opinion

as amended is reproduced as Appendix E.

2

The decision of the United States District Court

for the District of Oregon was not reported. Its opinion

is reproduced as Appendix C.

JURISDICTION

The United States Court of Appeals for the Ninth

Circuit entered its decision on rehearing on October

10, 1985, which decision amended its prior decision of

June 3, 1985. This court has jurisdiction to review by

certiorari the decision of the Court of Appeals pur-

suant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case is governed by the provisions of 33 U.S.C.

§ 905(b), which provides:

“(b) In the event of injury to a person covered

under this chapter caused by the negligence of a

vessel, then such person, or anyone otherwise en-

titled to recover damages by reason thereof, may

bring an action against such vessel as a third

party in accordance with the provisions of section

933 of this title, and the employer shall not be

liable to the vessel for such damages directly or

indirectly and any agreements or warranties to

the contrary shall be void... . If such person was

employed by the vessel to provide ship building or

repair services, no such action shall be permitted

if the injury was caused by the negligence of per-

sons engaged in providing ship building or repair

services to the vessel. The liability of the vessel

3

under this subsection shall not be based upon the

warranty of seaworthiness or a breach thereof at

the time the injury occurred. The remedy provided

in this subsection shall be exclusive of all other

remedies against the vessel except remedies avail-

able under the chapter.”

STATEMENT OF THE CA"?

1. Introduction.

On August 12, 1982, Robert C. Cook was fatally

injured in an explosion while working aboard the

vessel EXXON NEW ORLEANS as an employee of

Northwest Marine Ironworks (“Northwest Marine’’),

a shipyard which had contracted to perform repairs

to the vessel. This is an action by his personal rep-

resentative (“plaintiff”) against the vessel owner

(‘Exxon’) for damages for wrongful death which re-

sulted when shipyard employees cut into a fuel tank

and, caused an explosion.

The United States District Court for the District

of Oregon granted summary judgment for Exxon,

holding that plaintiff had not produced evidence to

create a triable issue of fact on either of two alleged

violations of the vessel’s duties. Specifically, the dis-

trict court held there was no evidence that Exxon had

failed to warn Northwest Marine of a hidden danger

or defect (App. C-6) and there was no evidence that

Exxon’s representative had actively involved himself

in the ship repair operations (App. C-7).

7 4

The United States Court of Appeals for the Ninth

Circuit held that the evidence before the court on sum-

mary judgment conclusively established that Exxon

had performed its duty to warn Northwest Marine of

the condition of the vessel (App. B-2, E-4), but that

there was evidence from which a jury could find that

Exxon’s representative had actively involved himself

in the repair operations (App. B-3, E-5, 6).

2. Statement of Facts.

In 1982 the vessel EXXON NEW ORLEANS put

into Northwest Marine’s shipyard in Portland, Oregon,

for a regular biennial inspection and for repairs (CR

38, King Depo. 23). Northwest Marine had contracted

to perform work at a total price of approximately two |

million dollars (CR 38, King Depo. 31). It provided |

about three hundred workers on each of two shifts to

accomplish the work (CR 38, King Depo. 31, 34).

Northwest Marine provided its own general superin-

tendent (Mr. Sheridan), its own marine chemist and

safety inspector (Mr. Flynn), its own production fore-

man (Mr. Leggett), its own estimator and project

manager (Mr. Smith), and its own foremen and lead-

men.

Exxon’s representative was John H. King, Jr., a

“repair superintendent” or “‘owner’s representative.”

His job was to determine the repairs to be done, to

inspect the work to see that specifications had been

carried out, and to work with Northwest Marine’s

superintendent, Mr. Sheridan (CR 38, King Depo. 33-

SS

5

34; Smith Depo. 21-23; CR 30, Sheridan Depo. 9).

Mr. Sheridan himself coordinated the work of the ship-

yard’s employees; he testified that Mr. King worked

“through” him on matters involving work scope or

work items and that Mr. King’s primary job was that

of inspector (CR 30, Sheridan Depo. 9).

In preparation for turning the vessel over to North-

west Marine for repairs, Mr. King had prepared a list

of items for repair (CR 38, King Depo. 25-26). One

of those items was “Item No. 68” which had been

drawn up about a month before the ship was turned

over to Northwest Marine (CR 38, King Depo. 38).

Item No 68 reads:

“Deck Penetration fwd sim and exh Lines 626

HOLD UNTIL AUTHORIZED

Provide labor, material and equipment to crop out

and renew steel deck plating 3/4” by approx.

16 sq. ft. with 3 pipe penetrations. 1-10” main

stm. line, 1-14” exh line, 1-5” Fwd stm line.

Replace piping using new gaskets and bolting.”

(CR 38, King Ex. 2)

Shipyard employees understood the work order to

mean that a portion of the decking was to be burned

out and removed (CR 38, Hines Depo. 6).

Mr. King discussed this work item with employees

of Northwest Marine on several occasions. He pointed

2The shipyard understood that the owner’s decision to

have this work done was pending (CR 30, Sheridan Depo. 17,

37-39).

6

out to shipyard personnel, at their request, the general

area where the work was to be done (CR 30, Sheridan

Depo. 40-41; CR 32, Hines Depo. 8), he authorized

the shipyard to do some preliminary work so that the

area could be seen more clearly (CR 32, Hines Depo. 9;

CR 30, Sheridan Depo. 42), then examined it again

and decided that the pipes themselves would not have

to be replaced and that the doublers, or flanges sur-

rounding the pipes, should be saved (CR 30, Sheridan

Depo. 43-44; CR 35, Krause Depo. 31). Having made

those decisions, he authorized the shipyard to proceed

with the work (CR 38, King Depo. 47-48). Mr. Sheri-

dan then issued the shipyard’s “Release Work Order”

(id.).

Mr. Sheridan’s immediate subordinate with respect

to Work Item No. 68 was a foreman, Mr. Hines (CR

38, Hines Depo. 3-4). Mr. Krause, a doilermaker, was

the shipyard’s “lead man” working under Mr. Hines

(CR 35, Krause Depo. 4, 16).

Prior to Mr. King’s final authorization to proceed

with the work, Mr. Hines and Mr. Krause had dis-

cussed the job between themselves and Mr. Hines told

Mr. Krause to cut the pipes above and below deck and

remove the doublers with a “carbon arc” in order to

save the doublers (CR 35, Krause Depo. 26). Their

understanding was that by using a “carbon arc” they

could cut through the weld without cutting through the

deck itself (CR 35, Krause Depo. 17, 27). An alterna-

tive method is to cut with a torch which will penetrate

the deck (CR 35, Krause Depo. 17). There is no evi-

7

dence that Mr. King was aware of these discussions.

It was after those discussions, at which Mr. King

was not present, that Mr. King spoke once again to

shipyard personnel about Item No. 68. During a con-

versation among Mr. King, Mr. Sheridan, and Mr.

Krause, according to Mr. Krause:

“Q -Was a description of the work changed from

removing the pipe?

“A Yes, it was changed.

“ec

“Q How did it change?

“A How did it change? It changed from air

are the doubler out to burning it out, cutting it

out.

“Q And how did you become aware of that

change?

“A By Mr. King.

“Q What did he tell you?

“A He told me to burn the doubler out and save

the flange or save the doubler.

“Q All right. Did Mr. King say anything else

to you at that time?

“A No, just remove the doubler and cut around

the doubler and pointed with his finger and said,

‘The third one, crop it out the best way you

know how.’ ” (CR 35, Krause Depo. 31).

8

Mr. Sheridan testified that during that conversation

“it was decided that we would cut around the doubler”

on the two largest pipes (CR 30, Sheridan Depo. 43-44).

Northwest Marine had specific procedures to be

followed by its employees before any “hot work” such

as cutting through a deck with a torch was performed.

According to undisputed evidence, when hot work is

to be done on deck a pipefitter or a boilermaker must

determine from below deck where the hot work will

penetrate (CR 30, Sheridan Depo. 10-11, 18, 15). This

requires that measurements be taken and that draw-

ings be checked (?d.). Whether a hazard exists cannot

be determined until this is done.

If there is any suspicion of a hazard such as an

explosive condition, the responsible craft foreman or

leadman calls the marine chemist (7d, 12). Before hot

work is done the craft foreman must check the marine

cnemist’s certificates to be sure the area involved is

safe for hot work (id. 13-14). Before the hot work

actually begins, the leadman is to again check the area

for hazards; if none are found, he then issues a “Hot

Work Certificate” (7d. at 14).

The shipyard’s marine chemist, Mr. Flynn, testified

that he knew there was a fuel tank adjacent to or near

the pipe tunnel below deck (CR 30, Flynn Depo. 19-20)

and that if he had been informed that hot work was to

be performed in connection with Work Item No. 68:

se

. I would have gone down into the pipe

tunnel and after having measured from the pipe

9

out to the edge of the doubler, transferred that

from the inside, and I would have seen if that

would have fallen totally within the pipe tunnel.

“Tf it had fallen totally within the pipe tunnel,

I would have said that they could have done it and

issued a Certificate, and in this particular case it

did not obviously fall totally within the pipe tun-

nel and so I would have not have [sic] issued a

Certificate that they could have done that work

exactly as they did it.

“T may have told them how they could accom-

plish basically the same thing without cutting

directly into the bunker tank.” (CR 34, Flynn

Depo. 25-26)

The shipyard failed to follow its safety procedures

in this case. Mr. Hines, the foreman, intended to come

back before the hot work was done to take the necessary

measurements below deck because it was part of his

job to see that proposed hot work was laid out properly

(CR 82, Hines Depo. 25, 31-33). However, Mr. Krause

and other Northwest Marine employees proceeded with

the hot work before anyone had taken steps to lay the

job out from below deck and without taking such steps

themselves (CR 35, Krause Depo. 37-39). As a result,

there was an explosion when Mr. Stone, a Northwest

Marine employee, was using a torch to burn around the

doublers surrounding the pipes and, in the process,

penetrated a fuel tank * which was adjacent to the

3 Both of the courts below held that Exxon had conclusively

established that it performed any duty which it might have

had to warn Northwest Marine of the location of the fuel tank.

See App. B-2, C-6, E-4.

10

below-deck pipe tunnel (CR 38, Stone Depo. 30; CR 35,

Krause Depo. 50-51). Mr. Cook, who had been assigned

to “fire watch” in the pipe tunnel, died as a result of

injuries received in that explosion. .

Mr. King was not aboard the vessel at the time of

the explosion. He had not known the work on Item No.

68 was to be performed that day (CR 38, King Depo.

48, 53, 60-61). He did not know that the shipyard

intended to begin work on that item without first lay-

ing out the jeb properly and calling for the marine

chemist, if necessary; he had no reason to anticipate

that Northwest Marine employees would proceed with

that work without following their usual safety pro-

cedures.

BASIS FOR FEDERAL JURISDICTION

This is a case arising under a statute of the United

States, 33 U.S.C. § 905. The district court had juris-

diction pursuant to 28 U.S.C. § 1831 (federal question

jurisdiction) and 28 U.S.C. § 1333 (maritime juris-

diction) and 33 U.S.C. § 9383 (Longshoremen and

Harborworker’s Compensation Act). The district

court’s jurisdiction was also invoked under 28 U.S.C.

§ 1332 (diversity of citizenship; amount in controversy

exceeding $10,000).

PRAYER

Petitioner, Exxon Shipping Company, a Delaware

corporation, petitions this court to issue its writ of

11

certiorari to the United States Court of Appeals for

the Ninth Circuit and to review and reverse that

court’s decision holding that petitioner was not entitled

to summary judgment.

REASONS FOR GRANTING CERTIORARI

The United States Court of Appeals for the Ninth

Circuit has decided this case in a way which is in con-

flict with this Court’s analysis in Scindia Steam Nav.

Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981). In the

alternative, if the Court determines that the issue

presented in this case was not decided in petitioner’s

favor in Scindia, then the issue presented is one which

has not been, but ought to be, settled by this Court.

ARGUMENT

In Scindia Steam Nav. Co., Lid. v. De Los Santos,

451 U.S. 156 (1981) this court discussed the circum-

stanees under which a vessel may be lkeld liable for

injuries to a longshoreman despite the provision in 33

U.S.C. § 905(b) that the vessel shall not be liable except

for its own negligence, One of the circumstances de-

scribed, but not discussed in detail, in Scindia, was the

“accepted” principle that

“. . . the vessel may be liable if it actively in-

volves itself in the cargo operations and negligent-

ly injures a longshoreman .. .” 451 U.S. at 167.

The issue presented by this case is what can, as a mat-

12

ter of law, be considered to be active involvement by

the vessel in the work of an independent contractor.

In this case, the independent contractor’s work was

the performance of extensive repairs to the vessel. At

the time of the injury the vessel had been turned over

to the shipyard and was in dry-dock actually under-

going repairs. The vessel maintained an owner’s repre-

sentative on duty during these repairs. His job was

to be a liaison between the vessel and the shipyard’s

supervisor, to inspect the repairs, and to answer ques-

tions about the work to be done, The actual supervision

of the repair crew of approximately 600 persons was

done by shipyard personnel, not by the owner’s repre-

sentative. There is no evidence that the owner’s repre-

sentative engaged in supervision of shipyard personnel

as a matter of practice.

Nevertheless, the United States Court of Appeals

for the Ninth Circuit held, on review of summary

judgment for the vessel, that there was evidence from

which a finder of fact could determine that the vessel

had actively involved itself in the shipyard’s work and

negligently injured Mr. Cook. Its decision must neces-

sarily have been based on the actions of Mr. King with

respect to Work Item 68, described at pages 6-7,

supra. That evidence was not adequate to permit a

finding of active involvement in the shipyard’s work.

If it was, then this Court’s determination in Scindia

that the vessel is entitled to rely on the independent

contractor to carry out its work with proper provision

13

for the safety of its workers * is meaningless, The

Ninth Circuit’s holding permits liability without fault,

contrary to Congressional intent.

What the owner’s representative in this case did

with respect to Item No. 68 was simply to prepare the

original work order which called for a portion of the

deck to be “cropped out,” to point out to shipyard per-

sonnel, at their request, the actual portion of the deck

referred to in the work order where repairs were

necessary, and to tell the shipyard’s superintendent

and lead man to save the doubler.

There is, moreover, no evidence that the owner’s

representative played any other part in the events

leading up to the accident. He was not aboard the ship

at the time of the explosion, did not know that the work

on Item No. 68 was to be done on that day, did not urge

that it be done at any particular time, and had no part

in the shipyard’s failure to perform its normal safety

procedures.

Those safety procedures are among the things

which the vessel owner is entitled, under this court’s

analysis in Scindia, to assume that the independent

contractor will perform unless the vessel has reason to

believe otherwise:

4“The 1972 Amendments .. . rejected the notion of a

nondelegable duty on the shipowner to provide a safe place to

work and did not undermine the justifiable expectations of

the vessel that the stevedore would perform with reasonable

competence and see to the safety of the cargo operations.”

451 USS. at 172.

14

“As a general matter, the shipowner may rely

on the stevedore to avoid exposing the longshore-

men to unreasonable hazards... .”’ 451 U.S. at 170.

“ .. The shipowner, within limits, ts éntitled

to rely on the stevedore, and owes no duty to the

longshoremen to inspect or supervise the cargo

operations. . . .” 451 U.S. at 172. [Emphasis by

the Court. ]

“",. Only where the judgment of the stevedore

is ‘obviously improvident,’ . . ., and this poor

judgment either is known to the shipowner or

reasonably should be anticipated under the cir-

cumstances, does the shipowner have a duty to

intervene. ...”’ 451 U.S. at 180 (concurring opin-

ion of Mr. Justice Powell). And see footnote 4,

supra.

Decisions from other Courts of Appeals illustrate

the proper application of the Scindia principles. For

example, in Hill v. Tewaco, Inc., 674 F.2d 447, reh.

denied (5th Cir. 1982) the vessel had hired the ship-

yard to determine the effect of rust on the walls of

a gasoline storage tank aboard the vessel. A shipyard

worker fell and was injured when he slipped on the

loose rust in the tank while he was not wearing a

safety belt or safety lines. The district court found

the vessel negligent because it had not ensured that the

employee used proper safety equipment when climbing

the tank walls. The Fifth Circuit reversed. There was,

the court noted, no evidence that the ship’s crew par-

ticipated in or supervised the injured employee’s work,

and no evidence that the ship had asked the shipyard

15

what safety equipment was used. Under Scindia, the

court said, the vessel’s duty to protect the independent

contractor’s employees arises only if the vessel is aware

that the ship or its gear poses a danger to the employees

and if the vessel also learns that the independent con-

tractor is acting unreasonably in failing to protect its

employees against that danger. 674 F.2d at 451. Evi-

dence that three hours before the accident the ship’s

mate saw the shipyard’s employees on deck and did

not notice any safety equipment would not, the court

held, permit an inference that he knew none was being

used at the time of the injury. 674 F.2d at 449,

The Hili analysis has been followed by the Fifth

Cireuit in DuPlantis v. Zigler Shipyards, Inc., 692

F.2d 372 (Sth Cir. 1982) and Stass v. American Com-

mercial Lines, Inc., 720 F.2d 879 (Sth Cir. 1983) reh.

denied (1984). In Stass a shipyard worker was injured

when he slipped and fell on sprouted grain in the area

where he was working. The evidence established that

it was part of the shipyard’s normal procedures to

clean the ship before the repair procedures began.

There was, the court held, no basis upon which to find

the vessel negligent:

“In short, cleaning the areas to be repaired on

incoming barges was, as in Duplantis, 692 F.2d

at 375, simply ‘a necessary first step in doing the

work,’ and the slippery footing caused by the

sprouts Was a risk ‘inherent in the carrying out of

the contract for repairs, West [v. United States,

361 U.S. 118] at 128, 80 S. Ct. at 193; Hill, 674

16

F.2d at 452. In turning over Barge 920, ACL could

rely on Louisiana Dock to perform its repair job

properly, De Los Santos, 451 U.S. at 170, 101 S.

Ct. at 1623... . Louisiana Dock policy was always

to open doors on only one side of a barge, close

them after any inspection .. . and then open the

doors on the other side of the barge. Had Louisiana

Dock required its own policy to be followed, Stass

would not have been injured.” 720 F.2d at 884.

[ Emphasis added. ]

In this case, as in Stass, the shipyard failed to perform

what was a necessary first step in doing the work. In

this case, as in Stass, if the shipyard had required that

its own policies be followed, the injury would not have

occurred. See, also, Spence v. Mariehamns R/S, 766

F.2d 1504 (ilth Cir. 1985), clearly upholding the

vessel’s right to rely on the independent’s contractor’s

expertise and reasonableness in providing its employees

with safe working conditions.

None of these cases involved specific contentions

that the vessel had actively involved itself in the in-

dependent contracter’s work.° Nevertheless, they

5 Petitioner has found only one post-Scindia decision of a

United States Court of Appeals in which the plaintiff expressly

relied on the principle, stated in Scindia, that the vessel may

be liable if it actively involves itself in the cargo operations and

negligently injures a longshoreman. In Melanson v. Caribou

Reefers, Ltd., 667 F.2d 213 (1st Cir. 1981) the court affirmed

the district court’s summary judgment in favor of the vessel

but did so on the apparent ground that the vessel was not neg-

ligent. It is of no assistance in determining what is meant by

active involvement in the independent contractor’s operations.

(Footnote continued)

17

illustrate the importance of a proper application of the

Scindia principle that the vessel need not take steps to

ensure that the independent contractor follow its own

established safety procedures unless the vessel has

reason to believe that they will not be followed.

The evidence in this case establishes that it is com-

mon for the vessel to have available an “owner’s rep-

resentative” during major repair jobs. The effect of

the Ninth Circuit’s decision in this case is to read out

of the law the shipowner’s right to rely on the inde-

pendent contractor unless the shipowner is willing to

turn the job over to the independent contractor and to

maintain no relationship with the work — even in

liaison capacity — until the independent contractor

believes the job is done. If directing the shipyard to

accomplish a particuler result can be held to constitute

active involvement in the shipyard’s work, then the

vessel is put at risk of a jury’s verdict finding it negli-

gent simply because it maintains an on-board repre-

sentative. In short, the Ninth Circuit’s decision resur-

rects the doctrine of unseaworthiness by making a

vessel owner liable for hazards created by the shipyard.

(Footnote carried forward)

Prior to the Scindia decision, the Third Circuit had ob-

served:

“In the handful of opinions holding the shipowner

liable for injuries suffered as a result of improper steve-

doring operations, the shipowner’s participation in the

operations is clear, direct, and of significant proportions.

... Hurst v. Triad Shipping Co., 554 F.2d 1237, 1252, n.

38 (3rd Cir. 1977).

18

CONCLUSION

In its decision in Scindia, this Court made it clear

that the owner of a vessel may rely on an independent

contractor’s performance of its own duties to its em-

ployees, although the vessel may nevertheless be liable

if it actively involves itself in the independeiit contrac-

tor’s operations and negligently injures one of its

employees. The United States Court of Appeals has

incorrectly applied the second of those principles and,

in so doing, has seriously undermined the first. This

Court should grant the petition for certiorari and

should reverse the decision below.

Respectfully submitted,

SCHWABE, WILLIAMSON, WYATT,

MOORE & ROBERTS

KENNETH E. ROBERTS

Counsel of Record

MILDRED J. CARMACK

GUY C, STEPHENSON

MILDRED J. CARMACK

Of Attorneys for Petitioner

Guy C. STEPHENSON

Of Attorneys for Petitioner

App A-1

OLGA L. COOK, Personal Representative of the

Estate of ROBERT C. COOK, deceased,

Plaintif f-Appellant,

V.

EXXON SHIPPING COMPANY, a Delaware corpo-

ration, and HUMBLE OIL & REFINING CORPORATION,

a Delaware corporation,

Defendants-Appellees.

No. 84-3995

DC No. CV 82-1335 PA

UNITED STATES CoURT OF APPEALS, NINTH CIRcuIT

Argued and Submitted March 6, 1985

Decided June 8, 1985

SESE

Appeal from the United States District Court for

the District of Oregon.

Before KENNEDY and NORRIS, Circuit Judges,

and LYNCH,* District Judge.

NORRIS, Circuit Judge:

This is an action against Exxon Shipping Cc™-

pany (“Exxon”) for the wrongful death of Robert C.

* The Honorable Eugene F. Lynch, U.S. District Judge, North-

ern District of California, sitting by designation.

App A-2

Cook.' Ceok’s death resulted from injuries suffered

as a result of an explosion aboard a vessel owned by

Exxon. At the time of the explosion, the vessel was

being repaired at Northwest Marine and Ironworks

(“NWMI’), and Cook was doing repair work as an

employee of NWMI. Appellant Olga L. Cook, who

brought this action as personal representative of the

estate of her husband, appeals a summary judgment

in favor of Exxon.* The appeal requires us to con-

sider the duty of care owed by a shipowner to em-

ployees of an independent repair company aking

repairs on a ship.

I |

It is not disputed that at the time of the explosion,

Cook was covered by the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. §§ 901-950

(1982). In Sceindia Steam Navigation Co. v. De Los

Santos, 451 U.S. 156 (1981),° the Supreme Court

1 Appellants named Exxon and Humble Oil & Refining Corpo-

ration as parties to this appeal. The July 11, 1984 judgment of

the district court names only Exxon as a defendant but states

that the entire action is dismissed. Since we construe this

judgment as dismissing the entire action, it is an appealable

final order under 28 U.S.C. § 1291 (1982).

2 We review de novo an order granting summary judgment.

Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983).

3 In Scindia, a longshoreman was struck and injured by sacks

of wheat that fell from a pallet suspended by a defective ship’s

winch. The stevedore had been using the winch for two days

(footnote carried forward)

ae ee ee RE a 08 os

App A-8

defined the duty of care owed by a shipowner to a

stevedore and his longshoremen under the Act. The

court stated:

“The shipowner thus has a duty with respect

to the condition of the ship’s gear, equipment,

tools, and work space to be used in the stevedoring

operations; and if he fails at least to warn the

stevedore of hidden danger which would have been

known to him in the exercise of reasonable care,

he has breached his duty and is liable if his negle-

gence causes injury to a longshoreman.. . It is

also accepted that the vessel may be liable if it

actively involves itself in the cargo operations and

negligently injures a longshoreman or if it fails

to exercise due care to avoid exposing longshore-

men to harm from hazards they may encounter in

areas, or from equipment, under the active control

of the vessel during the stevedoring operation.”

Scindia, 451 U.S. at 167.

We hold that the duties of care delineated in Scin-

dia apply to employees of independent repair companies

who are working on a vessel as well as to iongshore-

men. In so holding, we follow the decision of the Fifth

Circuit in Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir.

1982), which applied the Scindia standards to “any

(Footnote continued)

prior to the accident despite its malfunction. The longshore-

man sued the shipowner under 33 U.S.C. § 905(b), which pro-

vides that a longshoreman injured “by the negligence of a

vessell . . . may bring an action against such vessel as a third

party” and that the vessel’s liability “shall not be based upon

the warranty of seaworthiness.”

App A-4

independent contractor and its harborworker em-

ployees coverea by the ... [Longshoremen’s and Har-

bor Workers’ Cencinininaton Act] and working aboard

ship.” Jd. at 451. We agree with the Fifth Circuit that

there is no reason to limit the Supreme Court’s holding

in Scindia to stevedores.

Il

Appellant argues that Exxon is not entitled to sum-

mary judgment because the evidence raises genuine

issues of material fact with respect to whether Exxon

breached its duty of care to Cook under the Scindia

standards. Specifically, appellant contends that there

are triable issues as to whether Exxon failed to warn

Cook of a hidden danger on the vessel and whether

Exxon actively involved itself in the repair operations,

and then negligently caused Cook to be injured.

The evidence presented to the district ceurt in

connection with Exxon’s motion for summary judg-

ment indicates that the explosion occurred when one

of Cook’s co-workers cut through the deck of the vessel

with a torch and ignited a bunker fuel tank located

immediately beneath the deck. There is also evidence

that John H. King, Jr., Exxon’s repair superintendent,

knew the location of the fuel tank. He admitted, more-

over, that there were no deck markings that indicated

the location of the fuel tanks closer than five or six

feet from the point where the pipes penetrated the deck

and that he did not tell the NWMI employees that the

bunker fuel tank was close to the pipes.

App A-5

Exxon contends that as a matter of law it satisfied

its duty to warn of hidden dangers because of three

undisputed facts: {1) it provided NW MI in 1979, three

years before the repair work in question, with blue

prints that showed the location of the fuel tanks; (2)

two people employed by NW MI in positions of responsi-

bility, NWMI’s general superintendent and its marine

chemist and safety inspector, both had worked on this

area of the ship before; and (8) NWMI’s general

superintendent knew of the location of the fuel tank.

In our view, the evidence cited by Exxon does not

establish as a matter of law that Exxon satisfied its

duty to warn the workers of a hidden danger. Rather,

a trier of fact could reasonably find on the basis of

this evidence that Exxon breached its duty to warn.

Appellant also argues that a trier of fact could

find on the evidence presented that the work on the

vessel was carried out under the direct supervision and

orders of King, and that King told the NWMI em-

ployees to do “hot work,” meaning use of a torch, on

the deck. We agree. There is evidence that King, who

knew where the fuel tank was located, not only author-

ized hot work to be performed inches from a bulkhead

separating the work area from the bunker fuel tank,

but also that he changed the work description from use

of an air are to het work. An air arc is a device which

permits workers to cut a weld without cutting through

the deck itself. A trier of fact could find that the

workers could have avoided an explosion if they had

used an air are rather than a torch.

App A-6

Ex.xon’s response to appellant’s contention that the

work was carried out under the direct supervision of

King is that the work was actually carried out under

the supervision of NWMI’s superintendent. * Exxon

argues that King merely acted as the representative of

the shipowner to ensure that his specifications were

earried out. We believe, however, that this does not

entitle Exxon to judgment as a matter of law on appel-

lant’s claim that Exxon actively involved itself in the

repair work in a manner that negligently caused the

injury. Sve Scindia. 451 U.S. at 167.

We conclude that based on the evidence before the

district court, there are triable issues of fact as to

whether the explosion was proximately caused by a

breach of duty by Exxon to warn the workers of a hid-

den danger or by King’s direct supervision of the repair

work in a negligent manner.

The summary judgment for Exxon is VACATED

and the case is REMANDED for further proceedings

consistent with this opinion.

App B-1

OLGA L, COOK, Personal Representative of the

Estate of RopourT C. Cook, deceased,

Plaintif f-Appellant,

EXXON SHIPPING COMPANY, a Delaware corpo-

ration, and HUMBLE OIL & REFINING CORPORATION,

a Delaware corporation,

Defendants-Appellees.

No. 84-8995

DC No. CV 82-1335 PA

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

Argued March 6, 1985

Decided June 8, 1985

Amended Qct. 10, 1985

Before KENNEDY and NORRIS, Cireuit Judges,

and LYNCH,* District Judge.

ORDER

We grant in part appellees’ petition for rehearing.

The previous opinion of this court, reported at 762

F.2d 750 (9th Cir. 1985), is hereby amended as

follows:

* The Honorable Eugene F. Lynch, U.S. District Judge, North-

ern District of California, sitting by designation.

App B-2

"7,

On page 752, column /, delete the period at the end

of the sentence beginning “Specifically, appellant con-

tends...” and add the following:

by failing to exercise due care to avoid exposing

the workers to hazards in the area,

On page 752, column 2, delete the paragraph be-

ginning “In our view, the evidence cited by Exxon...

and substitute the following:

The evidence is undisputed that Exxon had

previously provided the shipyard with plans of

the vessel, that the shipyard itself had checked

those plans for accuracy, and that the plans

showed the relationship between the pipe tun-

nel and the bunker fuel tank. The evidence is

also undisputed that the shipyard had retained

those plans, which were available for use by

shipyard personnel during the repairs at issue

in this case, and that the shipyard’s superin-

tendent in charge of this very job and also its

marine chemist and safety inspector knew that

the pipe tunnel was adjacent to or near the fuel

tank. That evidence conclusively established

that Exxon had performed its duty to warn the

shipyard of the condition of the vessel.

)

On page 752, column 2, delete the period at the end

of the sentence beginning “‘We believe, however, that

this does not entitle Exxon...” and add the following:

_ and then failed to exercise due care to avoid

exposing the workers to hazards in the area.

App B-3

On page 752, column 2, add the following sentence

at the end of the paragraph beginning “Exxon’s r

sponse to appellant’s contention .. .”

We conclude that the evidence before the dist-

rict court raises a triable issue of fact as to

whether the explosion was proximately caused

by King’s direct supervision of the repair work

in a negligent manner.

On page 753, cclunin /, delete the entire paragraph

beginning “We conclude that based on the evidence

‘?

before the district court...

App C-1

U.S. DISTRICT COURT

DISTRICT OF OREGON

FILED

JUL 10, 1984

ROBERT M. CHRIST, Clerk

By Deputy

In The United States

DISTRICT COURT

for the District of Oregon

OLGA L. COOK, )

Personal Representative of the )

Estate of ROBERT C. COOK, )

Deceased, ) Civil No.

Plaintiff, ) 82-13385-PA

)

v. ) OPINION

) and

EXXON SHIPPING COMPANY, ) ORDER

a Delaware corporation, and )

HUMBLE OIL & REFINING COR- _)

PORATION, a Deleware corporation _)

)

)

Defendants.

FRANK P0OZZI

RAYMOND J. CONBOY

JOHN S. STONE

POZZI, WILSON, ATCHISON, O’LEARY & CONBOY

910 Standard Plaza

1100 S.W. Sixth Avenue

Portland, Oregon 97204

Attorneys for Plaintiff

KENNETH E. ROBERTS

Guy C, STEPHENSON

SCHWABE, WILLIAMSON, WYATT, MOORE & ROBERTS

1200 Standard Plaza

1100 S.W. Sixth Avenue

Portland, Oregon 97204

Attorneys for Defendants

App C-2

PANNER, J.

Plaintiff brings this action against defendant

Exxon Shipping Company for injuries and wrongful

death suffered by decedent while decedent was em-

ployed as a firewatch aboard the defendant’s vessel

Exxon New Orleans. The parties agree that defendant

Humble Oil & Refining Corporation was neither owner

or operator of the vessel and that it can be dismissed

from the action. The ship was being repaired at

Northwest Marine and Iron Works (NWMI) pursuant

to a contract between NWMI and defendant. Plaintiff

was employed by NWMI. The decedent was killed

when a co-worker cut through the deck into a bunker

fuel tank, causing an explosion.

Plaintiff asserts that defendant was negligent in

failing to warn plaintiff that the hot work was to be

performed around and over a bunker fuel tank, in per-

mitting such work to be performed, and in permitting

such work to be performed in the area when the fuel

tank had not been certified as gas free. Plaintiff fur-

ther argues that defendant was negligent in failing

to outline the location of the fuel tanks with markings

on the exterior deck of vessel, in failing to require that

warnings be posted in the area, and in failing to pro-

vide blueprints, drawings or plans which clearly dis-

closed the location of the fuel tank. Plaintiff contends

that defendant was also negligent in failing to ade-

quately determine that the work to be performed lay

over a bunker fuel tank, in failing to allow the work

App C-3

to be performed by another method, and in directing

decedent’s co-worker as to where to make the cut.

Defendant’s motion for summary judgment is

GRANTED.

DISCUSSION

I. Legal Standards.

Summary judgment is appropriate if the court

finds: (1) there is no genuine issue of material fact,

and (2) the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). The moving party

has the burden of establishing the absence of a genuine

issue of material fact. Securities and Exchange Com-

mission v. Murphy, 626 F.2d 633, 640 (9th Cir. 1980).

All reasonable doubts as to the existence of a genuine

issue of material fact should be resolved against the

moving party. Hector v. Weins, 533 F.2d 429, 432 (9th

Cir. 1976). In addition, the inference to be drawn from

the underlying facts must be viewed in the light most

favorable to the party opposing the motion. United

States v. Diebold, 369 U.S. 654, 655 (1962).

If the moving party satisfies the initial burden, the

burden shifts to the opponent to come forward with

specific facts showing that a genuine issue of material

fact remains in the case. Fed. R. Civ. P. 56(e) ; Neely

v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341,

344 (9th Cir. 1978). An adverse party may not rest

upon the mere allegations in his pleadings; he must |

present the issues of fact in evidentiary form. Fed. R.

App C-4

Civ. P. 56(e). Legal memoranda and arguments of

counsel are not evidence and do not create issues of

fact capable of defeating an otherwise valid summary

judgment. Estrella v. Brant, 682 F.2d 814, 819-20 (9th

Cir 1982).

The Supreme Court has articulated three general

principles to govern the duties of a vessel towards the

employees of a stevedore or independent contractor.

Scindia Stean. Navigation Co. v. De Los Santos, 451

U.S. 156 (1981); Hill v. Texaco, Inc., 674 F.2d 447

(5th Cir. 1982).

(1) Before the stevedore begins his work, a ship-

owner must exercise ordinary care to make safe the

porticns of the ship that it turns over to the stevedore.

In discharging this duty, the ship may rely on tic

stevedore to perform its task with reasonable care.

The shipowner must warn the stevedore, however, of

hidden unsafe conditions on the ship of which the ship

is, or should be, aware. 451 U.S. at 166-67.

(2) Once the stevedore begins its operations, the

shipowner has no general duty to supervise work or to

inspect the area assigned to the stevedore, unless cus-

tom, contract or law imposes such a duty on the ship-

owner. The shipowner is entitled to rely on the steve-

dore’s expertise and reasonableness; it need not moni-

itor the stevedore’s operations. 451 U.S. at 171.

(3) There is one exception to the general absence

of a duty on the part of the shipowner to protect em-

ployees of the stevedore during cargo operations. The

App C-5

duty arises when two conditions are satisfied. If the

shipowner becomes aware during the stevedore’s work

that the ship or its gear poses a danger to the long-

shoremen, and if the shipowner also learns that the

stevedore is actiny unreasonably in failing to protect

the longshoremen against the danger, then the ship-

owner acquires a duty to intervene and protect the

longshoremen. The shipowner has knowledge of a de-

fect if the defect develops during the stevedore’s opera-

tions and the shipowner has actual knowledge, or if

the defect exists at the outset and therefore the ship is

deemed to have knowledge of it. 451 U.S. at 175-76.

Application of the Scindia standards is not limited

to situations involving stevedoring operations. The

standards apply to “‘any independent contractor and its

harborworking employees covered by the [Longshore-

men’s and Harbor Workers’ Compensation Act] and

working aboard ship.” Hill v. Texaco, 674 F.2d at 451.

Thus, I apply the Scindia standards to the facts of this

case, where NWMI contracted with defendent Exxon

to perform maintenance and repair work on board the

ship.

II. Analysis.

A. Existence of a Hidden Defect.

Plaintiff contends that the location of the bunker

fuel tanks constitute a hidden danger and that there-

fore defendant was obligated to warn plaintiff of their

location. The facts are undisputed, however, NWMI

had worked on the ship on at least two other occasions,

ae ee Te Pe

App C-6

and defendant had given NWMI blueprints of the ship

in 1979 that showed the fuel tanks. Both NWMI’s ship

superintendent and marine chemist had worked on this

area of the ship before. It is also undisputed that be-

fore performing hot work on a main deck, a worker

must determine, from below, precisely where the hot

work will penetrate the deck. No such determination

was made in this instance.

Plaintiff has offered no evidence of a genuine issue

of material fact on the question of defendant’s failure

to warn plaintiff of hidden defect. Plaintiff does not

contend that defendant violated the other duties out-

lined in Scindia. The evidence establishes that defend-

ant is entitled to summary judgment on this issue.

B. Defendant Actively Involved Itself In The Work.

Plaintiff argues that defendant’s representative

for the repair job, Jack King, actively participated in

NWMI’s work by deciding how to accomplish the spe-

cific task in question. Plaintiff contends that this active

interference constitutes actionable negligence.

This court has interpreted the Scindia decision to

place a duty upon the shipowner to exercise reasonable

care if he or she remains actively involved in the steve-

dore or repair operations. Landsen v. Isuzu Motors

Ltd., 5384 F. Supp. 448 (D. Or. 1982). But there is a

material difference between the owner telling the

repair yard a result to be accomplished by the repairs

and the owner outlining specifically the manner in

which the repairs are to be done.

App C-7

Even construing all inferences in favor of the

plaintiff, the statements made by Mr. King to the

NWMI employees simply that he wanted them to save

the doubler. This is particularly so where the repair

people were required to conform to certain normal

safety precautions prior to beginning the work.

Simply advising a worker of the result to be ac-

complished does not constitute active involvement with

the repair work. Plaintiff has raised no genuine issue

of material fact, and there is nothing more to indicate

defendant’s active involvement with the repair.

CONCLUSION

There is no genuine issue of material fact. Defend-

ant is entitled to summary judgment as a matter of

law. Fed. R. Civ. P. 56(c).

IT IS SO ORDERED.

DATED this 10 day of July, 1984.

/S/

OWEN M. PANNER

United States District Judge

App D-1

FILED

NOV 21 1985

CLERK, U.S. COURT OF APPEALS

United States

COURT OF APPEALS

for the Ninth Circuit

OLGA L. COOK, )

Personal Representative of the )

Estate of ROBERTT C. COOK, )

Deceased, )

Plaintiff-Appellant, ) No. 84-3995

) DC No.

v. ) CV 82-1335 PA

)

EXXON SHIPPING COMPANY, ) ORDER

a Delaware corporation, and )

HUMBLE OIL & REFINING COR- )

PORATION, a Deleware corporation )

)

)

Defendants-A ppellees.

Before: KENNEDY and NORRIS, Circuit Judges;

and LYNCH,* District Judge.

The appellees’ petition for rehearing is granted

in part and the suggestion for rehearing en banc is

denied. The petition has been circulated to the full

court and no judge has requested that the case be re-

heard en bane. Fed. R. App. P. 36(b).

* The Honorable Eugene F. Lynch, U.S. District Judge, North-

ern District of California, sitting by designation.

App E-1

Opinion Below, as Amended

NORRIS, Circuit Judge:

This is an action against Exxon Shipping Company

(‘Exxon’) for the wrongful death of Robert C. Cook. '

Cook’s death resulted from injuries suffered as a re-

sult of an explosion aboard a vessel owned by Exxon.

At the time of the explosion, the vessel was being

repaired at Northwest Marine and_ Ironworks

(“NWMI’), and Cook was doing repair work as an

employee of NWMI. Appellant Olga L. Cook, who

brought this action as personal representative of the

estate of her husband, appeals a summary judgment

in favor of Exxon.* The appeal requires us to consider

the duty of care owed by a shipowner to employees of

an independent repair company making repairs on a

ship.

I,

It is not disputed that at the time of the explosion,

Cook was covered by the Longshoremen’s and Harbor

Workers’ Compensation Act, 38 U.S.C. §§ 901-950

(1982). In Scindia Steam Navigation Co. v. De Los

1 Appellants named Exxon and Humble Oil & Refining Corpo-

ration as parties to this appeal. The July 11, 1984 judgment of

the district court names only Exxon as a defendant but states

that the entire action is dismissed. Since we construe this

judgment as dismissing the entire action, it is an appealable

final order under 28 U.S.C. § 1291 (1982).

2We review de novo an order granting summary judgment.

Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983).

App E-2

Santos, 451 U.S. 156 (1981),° the Supreme Court

defined the duty of care owed by a shipowner to a

stevedore and his longshoremen under the Act. The

court stated :

“The shipowner thus has a duty with respect

to the condition of the ship’s gear, equipment,

tools, and work space to be used in the stevedoring

operations; and if he fails at least to warn the

stevedore of hidden danger which would have been

known to him in the exercise of reasonable care,

he has breached his duty and is liable if his negli-

gence causes injury to a longshoreman .. . It is

also accepted that the vessel may be liable if it

actively involves itself in the cargs operations and

negligently injures a longshoreman or if it fails

to exercise due care to avoid exposing longshore-

men to harm from hazards they may encounter in

areas, or from equipment, under the active control

of the vessel during the stevedoring operation.”

Scindia, 451 U.S. at 167.

We hold that the duties of care delineated in Scindia

apply to employees of independent repair companies

who are working on a vessel as well as to longshoremen.

In so holding, we follow the decision of the Fifth Cir-

3 In Scindia, a longshoreman was struck and injured by sacks

of wheat that fell from a pallet suspended by a defective ship’s

winch. The stevedore had been using the winch for two days

prior to the accident despite its malfunction. The longshore-

man sued the shipowner under 33 U.S.C. § 905(b), which pro-

vides that a longshoreman injured “by the negligence of a

vessel .. . may bring an action against such vessel as a third

party” and that the vessel’s liability “shall not be based upon

the warranty of seaworthiness.”

App E-3

cuit in Hill v. Texaco, Inc., 674 F.2d 447 (Sth Cir.

1982), which applied the Scindia standards to “any

independent contractor and its harborworker eni-

ployees covered by the . . . [Longshoremen’s and Har-

bor Workers’ Compensation Act] and werking aboard

ship.” Jd, at 451. We agree with the Fifth Circuit that

there is no reason to limit the Supreme Court’s holding

in Scindia to stevedores.

II.

Appellant argues that Exxon is not entitled to sun.-

mary judgment because the evidence raises genuine

issues of materia] fact with respect to whether Exxon

breached its duty of care to Cook under the Scindia

standards. Specifically, appellant contends that there

are triable issues as to whether Exxon failed to warn

Cook of a hidden danger on the vessel and whether

Exxon actively involved itself in the repair operations,

and then negligently caused Cook to be injured by

failing to exercise due care to avoid exposing the

workers to the hazards in the area.

The evidence presented to the district court in

connection with Exxon’s motion for summary judg-

ment indicates that the explosion occurred when one

of Cook’s co-workers cut through the deck of the vessel

with a torch and ignited a bunker fuel tank located

immediately beneath the deck. There is also evidence

that John H. King, Jr., Exxon’s repair superintendent,

knew the location of the fuel tank. He adimitted, more-

over, that there were no deck markings that indicated

SS

App E-4

the location of the fuel tanks closer than five or six

feet from the point where the pipes penetrated the deck

and that he did not tell the NWMI employees that the

bunker fuel tank was close to the pipes. .

Exxon contends that as a matter of law it satisfied

its duty to warn of hidden dangers because of three

undisputed facts: (1) it provided NWMI in 1979,

three years before the repair work in question, with

blue prints that showed the location of the fuel tanks;

(2) two people employed by NWMI in positions of

responsibility, NWMI’s general superintendent and its

marine chemist and safety inspector, both had worked

on this area of the ship before; and (3) NWMI’s

general superintendent knew of the location of the

fuel tank.

The evidence is undisputed that Exxon had previ-

ously provided the shipyard with plans of the vessel,

that the shipyard itself had checked those plans for

accuracy, and that the plans of vessel showed the re-

lationship between the pipe tunnel and the bunker fuel

tank. The evidence is also undisputed that the shipyard

had retained those plans, which were available for use

by shipyard personnel during the repairs at issue in

this case, and that the shipyard’s superintendent in

charge of this very job and also its marine chemist and

safety inspector knew that the pipe tunnel was adja-

cent to or near the fuel tank. That evidence conclusively

established that Exxon had performed its duty to warn

the shipyard of the condition of the vessel.

App E-5

Appellant also argues that a trier of fact could find

on the evidence presented that the work on the vessel

was carried out under the direct supervision and orders

of King, and that King told the NWMI employees to

do “hot work,” meaning use of a torch, on the deck. We

agree. There is evidence that King, who knew where

the fuel tank was located, not only authorized hot work

to be performed inches from a bulkhead separating the

work area from the bunker fuel tank, but also that he

changed the work description from use of an air are

to hot work. An air arc is a device which permits work-

ers to cut a weld without cutting through the deck

itself. A trier of fact could find that the workers could

have avoided an explosion if they had used an air are

rather than a torch.

Exxon’s response to appellant’s contention that the

work was carried out under the direct supervision of

King is that the work was actually carried out under

the supervision of NWMI’s superintendent. Exxon

argues that King merely acted as the representative

of the shipowner to ensure that his specifications were

carried out. We believe, however, that this does not

entitle Exxon to judgment as a matter of law on

appellant’s claim that Exxon actively involved itself

in the repair work in a manner that negligently caused

the injury and then failed to exercise due care to avoid

exposing the workers to hazards in the area. See Scin-

dia. 451 U.S. at 167.

We conclude that the evidence before the district

court raises a triable issue of fact as to whether the

App E-6

explosion was proximately caused by King’s direct

supervision of the repair work in a negligent manner.

The summary judgment for Exxon is VACATED

and the case is REMANDED for further proceedings

consistent with this opinion.