Longshoreman James “J.J.” LaFleur fell 50 feet to his death after stepping through a hole in a decommissioned oil platform. The platform sat atop a barge chartered by Manson Gulf, L.L.C., who ordered the hole’s creation but did not cover the hole or warn J.J. of its existence.J.J.’s spouse alleged negligence on the part of Manson and sought damages. The district court, however, granted summary judgment for Manson, finding no liability under any of the three Scindia duties—the duties a vessel owner owes to a longshoreman. Because we conclude a fact issue precluded summary judgment with respect to the duty to warn of hidden dangers, we reverse.I. BACKGROUNDManson Gulf, L.L.C. is in the business of decommissioning oil-drilling platforms in the Gulf of Mexico. In 2015, Manson acquired one such platform, the BA A-23-A, from Freeport-McMoRan Oil & Gas. Manson extracted the 50- foot-tall, four-leg platform and placed the structure on a chartered barge. To lift the structure, Manson ordered four holes cut in the platform’s grating adjacent to each of the support legs. Rigging chains could then be passed through the holes and around the legs to take hold of the platform. Each hole was approximately two feet by two feet. Manson left the holes uncovered and unmarked.Modern American Recycling Service (MARS) is in the business of dismantling steel structures and selling the metal for scrap. MARS agreed to purchase and scrap the BA A-23-A platform, and Manson delivered the structure to MARS’s dock, located on Bayou Black, Louisiana.On the morning of June 16, 2015, a Manson project engineer, Dustin Clement, warned MARS of oil in the platform’s pipes but not of the unmarked holes. Afterwards, Clement left MARS’s dock and no Manson personnel remained. Jeff Smith, a MARS foreman in charge of riggers and cutters, then boarded the platform (still atop the barge) to locate the presence of oil. After Smith investigated for ten minutes, J.J. LaFleur joined Smith aboard the platform to lend a hand. J.J. was an independent contractor, employed by MARS to take inventories, do inspections, and perform other miscellaneous tasks.As Smith and J.J. walked across the platform, they discussed the oil dilemma and looked at the pipes that ran overhead. While turning, J.J. stepped through an unmarked hole. Smith, then eight feet behind, attempted to intervene, but it was too late—J.J. fell 50 feet to the barge’s deck and died from his injuries. Pictures of the structure and hole in the grating are attached. See Appendix, figs. 1-3.Following J.J.’s death, Manson filed a complaint seeking exoneration or limitation from liability. MARS answered the complaint and asserted various claims and defenses. And Angie LaFleur, J.J.’s surviving spouse, filed claims for damages against Manson and MARS, alleging negligence under both maritime and Louisiana law. Manson and MARS then moved for summary judgment, and the district court granted both parties’ motions, finding neither liable under § 905 of the Longshore and Harbor Workers’ Compensation Act (LHWCA). The LaFleur claimants appealed only from the summary judgment with respect to Manson.II. DISCUSSION Standard of Review We review a “district court’s grant of summary judgment de novo applying the same standards as the district court.” DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).The decision-making process is tweaked slightly when the case is to be tried before the court and not a jury. See Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978). In that circumstance, “the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though [the] decision may depend on inferences to be drawn from what has been incontrovertibly proved.” Id. However, the court may exercise this inference-drawing function only when “the evidentiary facts are not disputed” and “there are no issues of witness credibility.” Id. The Scindia Duties Section 905(b) of the LHWCA governs the present suit and supplies the relevant tort-based duties owed by vessel owners to longshoremen. 33 U.S.C. § 905(b); see also Kirksey v. Tonghai Mar., 535 F.3d 388, 391 (5th Cir. 2008). Decades ago, those duties were open-ended, premised in part on a nondelegable warranty of seaworthiness that required no proof of fault. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164 (1981). But following the 1972 amendment to § 905(b), the Supreme Court clarified in Scindia that vessel-owner liability sounds only in negligence. Id. at 165. To that end, Scindia articulated three “narrow duties” owed by the vessel owner: “(1) a turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under the active control of the vessel, and (3) a duty to intervene.” Kirksey, 535 F.3d at 391.The turnover duty encompasses two distinct-but-related obligations. First, the vessel owner “owes a duty to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert stevedore can carry on stevedoring operations with reasonable safety.” Id. at 392. And second, the vessel owner “owes a duty to warn the stevedore of latent or hidden dangers which are known to the vessel owner or should have been known to it.” Id. However, a vessel owner need not warn of “dangers which are either: (1) open and obvious or (2) dangers a reasonably competent stevedore should anticipate encountering.” Id.The active control duty requires that the vessel owner “exercise due care to avoid exposing longshoremen to harm from hazards that 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.Finally, the duty to intervene imposes liability “if the vessel owner fails to intervene in the stevedore’s operations when he has actual knowledge both of the hazards 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.” Burchett v. Cargill, Inc., 48 F.3d 173, 178 (5th Cir. 1995) (quoting Pimental v. LTD Canadian Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992)).C. The Active Control Duty and the Duty to InterveneAs a preliminary matter, we agree with the district court that neither the active control duty nor the duty to intervene apply to this case. Both liability theories fail for the same reason: it is undisputed that all Manson personnel departed the barge prior to J.J.’s fall.Though the mere presence of vessel employees is not necessarily indicative of active control, we have twice cited the complete absence of such5
personnel as evidence of the opposite—a lack of vessel control. See Fontenot v. United States, 89 F.3d 205, 208 (5th Cir. 1996); Burchett, 48 F.3d at 179. The LaFleur claimants point to testimony that Manson had not yet transferred ownership of the platform when J.J. fell. But our cases speak in terms of control, not legal ownership.[1] Without evidence that Manson continued to exercise control over the platform, liability cannot rest on the second Scindia duty.As for the duty to intervene, the absence of Manson personnel is similarly dispositive. Assuming Manson had actual knowledge of the hole, the LaFleur claimants still needed to prove Manson had actual knowledge of “obviously improvident judgment” on the part of MARS (the stevedore). Burchett, 48 F.3d at 178. Because no Manson personnel remained when Smith and J.J. boarded the platform, the LaFleur claimants offered no evidence that Manson observed MARS employees interacting with the hazard, let alone in an obviously improvident manner. See id. (affirming summary judgment on the duty-to-intervene issue because the vessel owner “had no personnel present at the job site who could have had knowledge of any peculiar dangers related to [the stevedore's] operations”). As a consequence, the duty to intervene is inapplicable.D. The Turnover DutyWe disagree, however, with the district court’s decision to grant summary judgment with respect to Manson’s turnover duty. The parties frame the turnover duty in terms of the duty-to-warn component, several elements of which are undisputed. First, the hole was, needless to say, a “danger”—it was
