United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 141]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTION PRESENTED
At
docket 141 Defendant Arctia (“Arctia”) moves for
summary judgment in its favor as to the claims brought
against it by Plaintiff Blane Barry
(“Plaintiff”). Plaintiff responds at docket 152.
Arctia replies at docket 153. Oral argument was not requested
and would not assist the court.
II.
BACKGROUND
This
matter arises out of a claim for personal injuries sustained
by Plaintiff in August of 2012 while he was working aboard
the M/V NORDICA for EPS Cargo Handlers or EPS Logistics
(collectively “EPS”) as a lead rigger. The
NORDICA was owned by Arctia, and Arctia supplied the vessel
via a Master Time Charter with Defendant Shell Offshore, Inc.
(“Shell”) to aid Shell with marine oil field
support and transportation services. Plaintiff alleges in his
complaint that he seriously injured his back and neck while
lifting a heavy cable at the request of another crew member
on board the vessel. He seeks damages for lost earnings, lost
earning capacity, past and future medical expenses, and
“physical and emotional pain and suffering and loss of
enjoyment of life.”[1] Arctia contends that it cannot be held
liable for the actions of crew members that did not work for
Arctia and were not otherwise controlled by Arctia.
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[2] The materiality requirement
ensures that “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary
judgment.”[3] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[4] However, summary judgment is mandated
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.”[5]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[6] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[7] Once the moving party has met this burden,
the nonmoving party must set forth evidence of specific facts
showing the existence of a genuine issue for
trial.[8] All evidence presented by the non-movant
must be believed for purposes of summary judgment, and all
justifiable inferences must be drawn in favor of the
non-movant.[9] However, the non-moving party may not rest
upon mere allegations or denials but must show that there is
sufficient evidence supporting the claimed factual dispute to
require a fact-finder to resolve the parties' differing
versions of the truth at trial.[10]
IV.
DISCUSSION
Plaintiff
alleges that his spinal injuries on board the NORDICA
occurred as a result of helping another crew member, Jens
Boel Fischer, lift a crane cable spool on deck. Fischer was
one of the crane technicians aboard the vessel. During his
deposition, Plaintiff testified that he was approached by
Fischer to help secure and clean up items on NORDICA's
deck in advance of impending adverse weather. There were
miscellaneous items to pick up or secure and a large spool of
crane cable that needed to be moved below deck. He admitted
at his deposition that only Fischer asked him to help and
that he did not know whether anyone had asked Fischer to
complete such a task.[11] He admitted that no officers,
captains, or members of the navigational team were involved
in the deck clean up or directed him to engage in such
efforts.[12]Plaintiff agreed to help Fischer clean
up, believing that Fischer was an employee of Arctia and that
he had to comply with Fischer's directions because
Fischer was one of the crane operators while he was a
rigger.[13] Plaintiff admitted that Fischer did not
indicate that he was Plaintiff's superior.[14] Given these
undisputed facts, Plaintiff's alleged injuries stem from
moving heavy cable as requested and supervised solely by
Fischer.
Plaintiff
seeks to impute liability to Arctia based on its employment
relationship with Fischer. Arctia argues that it cannot be
held liable for the actions of Fischer because-based on the
testimony of its corporate representative whose position with
Arctia gave him knowledge concerning the various companies
and personnel stationed and participating in the operations
aboard the vessel-Fischer was not one of its
employees.[15] Rather, Fischer worked for its
subcontractor, FANØ KRAN (“FANØ”),
which was the subcontractor responsible for crane operations
on the vessel, and over which Arctia did not exercise
control.[16] Arctia argues that there is no
contradictory evidence to show that it controlled or
supervised the work of FANØ's crane operators, or
Fischer specifically, and therefore it cannot be vicariously
liable for their negligence. Indeed, “it is recognized
doctrine under the general maritime law that a principal
cannot be held liable for the independent negligence of an
independent contractor.”[17] Under Alaska law, “an
owner or employer does not normally incur liability for
physical harm stemming from the negligence of an independent
contractor.”[18] In some instances, however, liability
can be imposed on the employer of an independent contractor:
if the entity who entrusts work to an independent contractor
retains control over any part of the work it can be liable
for harm to others caused by a failure to exercise such
control with reasonable care.[19] That is to say, a contractor
is not liable for harm caused by the negligence of its
subcontractor unless that contractor retained or exercised
control over the subcontractor's work.
Plaintiff
argues that there is a disputed issue of fact surrounding
both Fischer's employment and the amount of control
retained and exercised by Arctia over Fischer's work. He
points to his own deposition where he testified that he
believed Fischer was an Arctia employee. He also relies on
deposition testimony of Joshua Wyatt, an employee of Safety
Management Systems who was working aboard the vessel at the
time of the incident as a safety professional. Wyatt
testified that Arctia employed the captain who had
“ultimate work authority” over the
vessel.[20] He testified that Arctia ran the
day-to-day operations on the ship and that its employees
consisted of the deck crew, maintenance crew, and crane
crew.[21] He also testified that these crew
members wore Arctia uniforms and spoke Finnish.[22] He cites a
provision in Arctia's contract with Shell, which he
believes requires Arctia to retain control and supervision
over all subcontractors.[23]
Plaintiff's
and Wyatt's testimony does not suffice to create an issue
of fact for the jury as to which corporate entity was
Fischer's employer. While Wyatt testified that Arctia was
in control of the crane crew, he also testified that there
were crane operators on the vessel working for other
companies.[24] His testimony about crew members wearing
Arctia uniforms was followed up by an admission that wearing
an Arctia uniform did not mean that they were employed by
Arctia.[25] Therefore, his testimony does not
contradict Arctia's corporate representative's
testimony that Fischer was not on Arctia's payroll or
Arctia's evidence that lists all crew members and their
employers and which identifies Fischer as a FANØ
employee.
Moreover,
Wyatt's testimony in full shows that he does not have
personal knowledge regarding employment matters on the
vessel. He testified that he did not know names of people who
worked for Arctia because their names were Finnish and hard
to remember.[26] He did not have knowledge about the
various subcontracts at play on the vessel.[27] His knowledge
was simply that “[the contractors] all work for Shell,
but there are a lot of different depths to the
contracts.”[28] He admitted that it was not part of his
job duties to know which company was supervising which crew
member.[29] He only knew that the captain, an Arctia
employee, had “ultimate work authority, ” but did
not know whether the captain had to sign off on every single
task that occurred on the ship or otherwise explain what
ultimate work authority meant.[30] He did not know who employed
the personnel working in the various sectors.[31] He testified
that he no longer remembered which contractor was tasked with
which responsibility.[32] Given his lack of personal knowledge
on the subject of employment aboard the vessel, Wyatt's
testimony does not constitute sufficient admissible evidence
to create an issue of fact as to Fischer's employment
status.
Plaintiff's
testimony similarly does not constitute sufficient evidence
from which a reasonable jury could find in his favor on the
matter of employment. His testimony that he thought that
Fischer was an Arctia employee is based on inadmissible
hearsay-an alleged conversation he had with Fischer where
Fischer said he worked for Arctia.[33]
Plaintiff
has also failed to present sufficient evidence from which a
reasonable jury could find in his favor on the matter of
Arctia's control over Fischer's work. Again,
Wyatt's testimony only generally states that the captain,
an Arctia employee, had “ultimate authority”
without providing any specific examples of the captain or any
other Arctia employee directing or inspecting the clean up
work of the cable crew or making any determinations as to
whether they were performing their duties safely or
correctly. He also admitted that various subcontrators were
responsible for different job duties on the vessel, and he
could not say whether the captain had to sign off on all
tasks on board. The testimony Wyatt gave about crew members
wearing Arctia uniforms does not provide evidence from which
a jury could decide in Plaintiff's favor on the issue of
Arctia's retained control because his testimony is far
too general-it does not address whether Fischer wore such a
uniform or whether the crew members were required by Arctia
to wear such a uniform regardless of who was their actual
employer. Plaintiff also cites testimony of Arctia's
corporate representative who stated that cleaning the
vessel's deck would be something an Arctia employee would
do as part of his job duties, but he also stated that crew
members working for other employees were resposible for their
own safety and equipment when completing their
duties.[34] Indeed, his testimony stated that a
non-Arctia employee might be approached to clean up
non-Arctia equipment.[35] That is to say, the testimony does
not provide evidence that Arctia retained control or directed
how all crew members cleaned up their equipment on deck, nor
does it show that Arctia had any involvement or supervision
over Fischer's decision to move and secure the crane
cable.
Plaintiff
relies on a contract provision between Arctia and Shell that
he believes places responsibility on Arctia to oversee and
supervise safety procedures of its subcontractors and their
employees. The provision reads as follows:
OWNER [Arctia] shall comply and shall ensure that all of its
SUBCONTRACTORS and any persons employed by or under contract
to OWNER or its SUBCONTRACTORS comply with the regulations
regarding health (including drugs, alcohol and substance
abuse), safety, security and environmental (including
pollution), as specified by CHARTERER [Shell] and which may
be amended or updated during the period of the CHARTER PARTY.
Specific obligations are detailed in Annex B
hereto.[36]
Annex B
...