Douglas v. Chem Carriers, L.L.C., No. 2:2018cv05529 - Document 74 (E.D. La. 2019)
Court Description: ORDER granting 21 Motion for Partial Summary Judgment as stated herein. Signed by Judge Sarah S. Vance on 8/23/2019. (mm)
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Douglas v. Chem Carriers, L.L.C. Doc. 74 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ANTHONY DOUGLAS CIVIL ACTION VERSUS NO. 18-5529 CHEM CARRIERS TOWING, LLC SECTION “R” (3) ORD ER AN D REASON S Before the Court is the m otion for partial sum m ary judgm ent from defendant Chem Carriers Towing, LLC (“Chem Carriers”), to dism iss plaintiff Anthony Douglas’s J ones Act negligence and general m aritim e unseaworthiness claim s. 1 Because the Court finds that no disputed issues of m aterial fact exist and the law supports the defendant’s position, the Court grants the m otion. I. BACKGROU N D This case arises from a slip and fall on a boat. 2 On Novem ber 1, 20 17, Douglas was serving, under the em ploy of Chem Carriers, as the captain and pilot of the M/ V MISS DANIELLE, an inland pushboat. 3 While on the ship, 1 2 3 R. Doc. 21. See R. Doc. 21-2 at 2 ¶ 10 , 4 ¶ 27. Id. at 1 ¶ 1, 2 ¶ 10 . Dockets.Justia.com Douglas suffered an injury exiting the shower. 4 Specifically, his right foot caught on the shower’s threshold as he was stepping over it. 5 The interior threshold is 9.5 inches high. 6 The shower has no grab bars, 7 and the tile floor is not covered by a m at. 8 The vessel was docked and tied up at the tim e of the accident. 9 Douglas brings claim s under the J ones Act, 46 U.S.C. § 30 10 4, general m aritim e law’s warranty of seaworthiness, and general m aritim e law’s doctrine of m aintenance and cure. 10 Specifically, he argues that his em ployer was negligent by providing a shower that am ounted to an unsafe condition, which caused his accident. 11 He also argues that his em ployer’s failure to allow him sufficient rest caused him to be fatigued, which contributed to his injury. 12 4 5 6 7 8 9 10 11 12 Id. 2 ¶ 10 . Id. at 4 ¶ 27. Id. at 2 ¶ 16. R. Doc. 44-2 at 3:1-3. Id. at 4:2-10 . R. Doc. 21-2 at 3 ¶ 25. R. Doc. 8 at 1 ¶ 1. See, e.g., R. Doc. 36 at 15-16. See, e.g., id. at 16. 2 Chem Carriers now m oves for partial sum m ary judgment on Douglas’s negligence claim under the J ones Act and unseaworthiness claim under general m aritime law. 13 Douglas opposes the m otion. 14 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994) (en banc) (per curiam ). “When assessing whether a dispute to any m aterial fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for summ ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 13 14 R. Doc. 21. R. Doc. 36. 3 10 A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonm oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the “existence of a genuine dispute of m aterial fact,” or by “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by 4 subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 ‘m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322 (em phasis added))). III. D ISCU SSION Chem Carriers m oves for sum m ary judgm ent in its favor on two of Douglas’s claim s: (a) his negligence claim under the J ones Act and (b) his unseaworthiness claim under general m aritim e law. 15 The Court grants sum m ary judgment on both claim s for Chem Carriers. Plaintiff first asserts a negligence claim under the J ones Act, 46 U.S.C. § 30 10 4. 16 The J ones Act affords a rem edy to a “seam an injured in the course of em ployment.” 46 U.S.C. § 30 10 4; see also Chandris, Inc. v. Latsis, 515 15 16 R. Doc. 21. R. Doc. 8 at 1 ¶ 1. 5 U.S. 347, 354 (1995). A J ones Act em ployer has a “duty to provide a safe place for the seam an to work.” Colburn v. Bunge Tow ing, Inc., 883 F.2d 372, 374 (5th Cir. 1989). Consequently, “[a] seaman is entitled to recovery under the J ones Act . . . if his em ployer’s negligence is the cause, in whole or in part, of his injury.” Gautreaux v. Scurlock Marine, Inc., 10 7 F.3d 331, 335 (5th Cir. 1997). But the J ones Act does not im pose upon “em ployers a higher duty of care than that required under ordinary negligence”; the standard of care is that of a reasonable person under the circum stances. Id. at 339. Additionally, “the em ployer m ust have notice and the opportunity to correct an unsafe condition before liability attaches.” Colburn, 883 F.2d at 374. And shipowners do not have a responsibility to warn seam en of “open and obvious” dangers. See Patterson v. Allseas USA, Inc., 137 F. App’x 633, 637 (5th Cir. 20 0 5). Nevertheless, a seam an’s burden to prove causation between his employer’s negligence and his injury is “very light.” O’N eill v. Seariver Mar., Inc., 246 F. App’x 278, 280 (5th Cir. 20 0 7) (quoting Martin v. John W . Stone Oil Distrib., Inc., 819 F.2d 547, 548 (5th Cir. 1987)). Plaintiff also asserts a cause of action for unseaworthiness under general m aritim e law. 17 “A shipowner has an absolute nondelegable duty to provide a seaworthy vessel.” Brister v. A.W .I., Inc., 946 F.2d 350 , 355 (5th 17 Id. 6 Cir. 1991). “For a vessel to be found unseaworthy, the injured seam an m ust prove that the owner has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purposes for which it is to be used.” Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 20 0 1). Additionally, to recover under a theory of unseaworthiness, “the plaintiff m ust establish a causal connection between his injury and the breach of duty that rendered the vessel unseaworthy.” Id. at 527. The standard of causation for an unseaworthiness claim is “m ore dem anding” than the J ones Act standard, “and requires proof of proxim ate cause.” Chisholm v. Sabine Tow ing & Transp. Co., Inc., 679 F.2d 60 , 62 (5th Cir. 1982). To show proxim ate cause, “a plaintiff m ust prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Brister, 946 F.2d at 355 (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988)). The plaintiff broadly contends that the defendant bears liability for two reasons: (1) the shower on the MISS DANIELLE was unsafe, and (2) the 7 plaintiff was suffering from fatigue attributable to the defendant’s actions. 18 The Court will address each argument in turn. A. Th e MISS D AN IELLE’s Sh o w e r The plaintiff contends that the MISS DANIELLE was not reasonably safe as a consequence of the shower’s threshold, lack of grab bars, and flooring. 19 The Court finds, though, that construing the facts in the plaintiff’s favor, no genuine issues of m aterial fact exist with regard to the shower’s safety that would support the plaintiff’s claim . The shower is reasonably safe for use by a seaman, and the plaintiff does not have a basis either for contending that the defendant was negligent or that the defendant provided an unseaworthy vessel. 20 The plaintiff presents no adm issible evidence to substantiate his conclusion that the design of the shower is unsafe. The Court has excluded the opinion of the plaintiff’s expert under a separate order. 21 Neither the plaintiff nor his excluded expert identified any applicable regulations or standards that apply to an uninspected towing vessel—or if so, that apply 18 See, e.g., R. Doc. 36 at 15-16. See id. 20 See, e.g., id. at 12 (sum m arizing the plaintiff’s argum ent as “Chem Carriers is liable under both the J ones Act and for the unseaworthiness of the MISS DANIELLE due to the unsafe conditions of the shower which caused Douglas’ injuries” (emphasis rem oved)). 21 See R. Doc. 73. 8 19 specifically to the design of a shower—which m ight substantiate the plaintiff’s claim . 22 For instance, the plaintiff’s expert contended that the defendant violated regulations established by the Am ericans with Disabilities Act (ADA). 23 But the Court has neither been furnished with nor independently discovered authority that the ADA applies to the design of this shower. Sim ilarly, the plaintiff’s expert contended that the defendant violated regulations established Adm inistration (OSHA). 24 by the Occupational Safety and Health Although OSHA regulations do apply to uninspected vessels in the absence of displacing Coast Guard regulations, see Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 243-45 (20 0 2), these regulations do not govern the shower features that the plaintiff points to as being unsafe—that is, the threshold height, tile floor, and absence of grab bars. 25 22 Specifically, OSHA regulations classify a “room used for . . . See id. at 8-12. See id. at 10 -11. The plaintiff also has not suggested that he had a disability before the incident. 24 See id. at 11-12. 25 See R. Doc. 36 at 15-16. The m ajority of the OSHA regulations that the plaintiff’s expert cites apply to “accident prevention signs.” See, e.g., R. Doc. 33-5 at 30 -32; see also 29 C.F.R. § 1910 .145. But the plaintiff agrees that the conditions of the shower were open and obvious. See R. Doc. 21-4 at 37:1322. And in the absence of evidence that the design of the shower was unsafe, regulations regarding accident preventions signs are irrelevant. 9 23 showering” as a “[p]ersonal service room ,”26 but do not provide relevant specifications for the design of a shower in such a personal service room . Regulations for “workroom[s]”27 and “[w]alking-working surfaces”28 – on which the plaintiff’s expert relies—are not applicable. Other expert evidence shows that the shower was not reasonably unsafe. Specifically, the defendant provides evidence from J oseph Rodriguez, a shipbuilder who constructed about 30 0 vessels, 29 including the MISS DANIELLE. 30 The MISS DANIELLE was newly constructed in 20 13. 31 Mr. Rodriguez attests that “[t]he shower on the M/ V MISS DANIELLE is a standard shower,”32 reflecting a design Mr. Rodriguez has replicated “on approximately 10 0 vessels, for 50 to 60 different custom ers.”33 Yet Mr. Rodriguez has “never received any complaints from anyone that this shower design is unsafe; defective; should be m odified; that the thresholds are too high; or that the flooring is unsafe.”34 Indeed, Mr. Rodriguez has “installed this same design on at least one (1) vessel which was inspected, certified and 26 27 28 29 30 31 32 33 34 See 29 C.F.R. § 1910 .141(a)(2); see also R. Doc. 33-5 at 30 See 29 C.F.R. § 1910 .141(a)(3)(ii); see also R. Doc. 33-5 at 30 . See 29 C.F.R. § 1910 .22(a)(3); see also, e.g., R. Doc. 33-5 at 30 . See R. Doc. 21-12 at 1 ¶ 4. See id. at 1 ¶ 6. See id. Id. at 2 ¶ 12. Id. at 2 ¶ 9. Id. at 2 ¶ 10 . 10 approved by both the Am erican Bureau of Shipping and the United States Coast Guard.”35 Even disregarding the defendant’s expert, the plaintiff’s lay testim ony has not raised a triable issue that the shower is hazardous. The plaintiff’s brief identifies three design characteristics that he argues m ake the shower unsafe: (1) the shower threshold was too high, (2) the shower lacked a grab bar, and (3) the flooring in the shower was slippery. 36 First, construing the facts in the light m ost favorable to the plaintiff, there is no triable issue as to whether the shower was reasonably a safety risk because the threshold was too high. The plaintiff acknowledged that if any risk existed, it was open and obvious, 37 which does not require a warning from a J ones Act em ployer. See Patterson, 137 F. App’x at 637. Furtherm ore, the evidence would not support a jury’s finding that a risk actually did exist. A threshold less than a foot in height is not so high that, in light of com m on experience, one would not expect to be able to step over it. Indeed, Douglas had previously used the shower on the MISS DANIELLE twice before without incident. 38 Others had also used the shower without a problem . 39 35 36 37 38 39 Id. at 2 ¶ 12. See, e.g., R. Doc. 36 at 15-16. See R. Doc. 21-4 at 37:13-22. See id. at 14:1-10 . See R. Doc. 21-9 at 4:4-6. 11 The plaintiff cited no system atically collected data or study on accidents due to vessel shower threshold heights that would support his argument. And while Douglas m ay have worked on ships with lower thresholds, 40 the existence of lower thresholds on some ships does not mean that the MISS DANIELLE’s 9.5-inch threshold was unsafe. 41 Additionally, even if these lower thresholds effectively held back water, as the plaintiff suggests, 42 there is no reason why the m aximum safe height m ust equate to the m inim um functional height. The plaintiff does not, for instance, provide a biom echanical or technical analysis to substantiate his claim that the MISS DANIELLE’s threshold proved hazardous to step over. To the contrary, the evidence suggests that no one had previously com plained to the defendant about the shower. 43 Indeed, the MISS DANIELLE’s shipbuilder has used the same design on about 10 0 boats across about fifty custom ers, without a single com plaint. 44 Indeed, he had installed the sam e shower on a boat “inspected, certified and approved by 40 See R. Doc. 36-4 at 2 ¶¶ 7-8. In fact, it does not even establish that the MISS DANIELLE’s threshold was an outlier compared to all the ships the plaintiff had encountered in his m ore than thirty years working on boats. See R. Doc. 21-4 at 3:25, 4:1-5. 42 See R. Doc. 36-1 at 1 ¶ 3. Mr. Rodriguez indicates that his shower thresholds norm ally are a m inim um of twelve inches high in order “to keep the water inside the shower.” See R. Doc. 56-1 at 20 :3-25. 43 See, e.g., R. Doc. 21-7 at 3:9-19. 44 See R. Doc. 21-12 at 2 ¶¶ 9-10 . 12 41 both the Am erican Bureau of Shipping and the United States Coast Guard.”45 Consequently, the plaintiff has provided no lim iting principle to explain at what height a threshold becom es unsafe—other than to state that since he tripped over the current threshold, it is too high. The occurrence of an unfortunate accident, though, does not alone create a triable issue of fact. Second, construing the facts in the light m ost favorable to the plaintiff, the evidence adduced does not support a finding that the shower was unsafe because it lacked a grab bar. The plaintiff cites no applicable regulations requiring grab bars for showers in vessels of this type. 46 And though the shower does not have grab bars, the sides of the shower them selves provide a surface that one can hold while entering or exiting the shower, 47 and others had used them for this purpose. 48 The plaintiff him self had previously used the side of the shower to “stabilize” him self. 49 Indeed, when the plaintiff tripped, he successfully “grabbed . . . the side of the shower to stop from falling.”50 The evidence also indicates that the boat was not in high seas or subject to waves from passing vessels at the tim e of the incident. 51 Rather it 45 46 47 48 49 50 51 See id. at 2 ¶ 12. See R. Doc. 73 at 8-12. See, e.g., R. Doc. 21-5. See R. Doc. 44-2 at 7:14-23. See R. Doc. 21-4 at 21:11-25, 22:1-7. R. Doc. 44-1 at 9:9-11. See R. Doc. 21-4 at 26:24-25, 27:1-3. 13 was tied up and docked. 52 Further, there have been no previous com plaints about the absence of a grab bar on this vessel53 or on any of the other vessels of the same design furnished by the sam e shipbuilder. 54 The record as a whole, therefore, reveals that no rational trier of fact would find a genuine dispute over whether the absence of grab bars caused the plaintiff’s incident. Third, the evidence adduced does not create a triable issue that the shower was unsafe because of the slipperiness of the floor. Even construing the facts in the light m ost favorable to the plaintiff, the plaintiff’s slip did not occur due to the shower’s tile. Indeed, the plaintiff explicitly stated that there were not any problem s with the shower’s tile. 55 Furtherm ore, the evidence suggests that such tile, although not om nipresent, is not uncom m on in boat showers. 56 The floor was covered in ceram ic tile squares that were sm aller in scale than the tile on the shower wall and the floor outside the shower. 57 The plaintiff cites no regulations or standard prohibiting vessels of this type from having tile floors or requiring m ats in showers. 52 53 54 55 56 57 See id. at 27:16-24. See R. Doc. 21-9 at 5:11-15. R. Doc. 21-12 at 2 ¶ 10 See R. Doc. 44-1 at 10 :19-25. See, e.g., R. Doc. 36-10 at 3:2-15; R. Doc. 36-12 at 5:1-4. See R. Doc. 21-5; R. Doc. 21-6. 14 The Court does note that the shipbuilder who constructed the MISS DANIELLE has previously used “paint chip flooring” on other ships, 58 whereas the MISS DANIELLE’s owner installed tiles in the shower. 59 But the shipbuilder attributed his use of paint-chip flooring to aesthetics, not because it created a nonslip surface. 60 And the defendant never received any com plaints about the tile it used in the bathroom of the MISS DANIELLE. 61 Taken in conjunction, this evidence does not establish a triable issue of fact about the shower’s flooring. Overall, therefore, the plaintiff has not presented a genuine issue of fact—other than the plaintiff’s unsupported contention that an accident occurred and unsafe circum stances caused this accident—that supports his claim . Given this factual m atrix, case law from the Fifth Circuit strongly supports the Court’s granting the m otion for sum m ary judgm ent. The m ost on-point authority is Jackson v. OMI Corp., 245 F.3d 525 (5th Cir. 20 0 1). In Jackson, the Fifth Circuit overturned a district court’s finding as clearly erroneous when the lower court concluded that a doorway’s lack of a handhold established negligence and an unseaworthy condition. See id. at 58 59 60 61 See R. Doc. 54-2 at 5:8-20 . See id. at 8:18-25, 9:1-11. See id. at 6:1-12. See R. Doc. 21-7 at 3:9-12. 15 528. Specifically, the Fifth Circuit found that a 17.75-inch coam ing in a doorway did not create liability—indeed, regulations required at least 15 inches. See id. Here, the threshold of the shower is even shorter—nearly half the height of that in Jackson. 62 Furtherm ore, in Jackson, the lack of a grab bar in the doorway also did not justify a finding for the plaintiff, because a person could use the side of the door as support. See id. Sim ilarly here, the sides of the shower provide steadying points. 63 Finally, the Jackson court found that “[a]ll the evidence, including [the plaintiff’s] own testim ony, points to the conclusion that [the plaintiff] sim ply tripped over the coam ing.” Id. Likewise here, the plaintiff him self acknowledges that the accident arose when his foot caught on the threshold. 64 Jackson indicates, therefore, that this Court should grant sum m ary judgm ent. The Court acknowledges that a handful of non-binding opinions have allowed a case to proceed past sum m ary judgm ent when an accident occurred in a vessel’s shower. In My ers v. Hercules Offshore Services, LLC, No. 13-4870 , 20 14 WL 20 460 72, at *3 (E.D. La. May 16, 20 14), for instance, J udge Lem m on found sum m ary judgment inappropriate when the plaintiff 62 See R. Doc. 21-2 at 2 ¶ 16. See R. Doc. 21-4 at 21:11-25, 22:1-7. 64 See, e.g., id. at 30 :14-16 (“[M]y foot hung up, and I went to fall out and I grabbed myself.”). 16 63 fell while showering. See id. at *1-3. Ultim ately, though, J udge Lem mon concluded that the vessel was “not unseaworthy for lacking handrails or m ats in the shower,” and that “[t]here are no regulations or other requirem ents that such a vessel have handrails in the shower.” My ers v. Hercules Offshore Servs., LLC, No. 13-4870 , 20 14 WL 5324974, at *3 (E.D. La. Oct. 17, 20 14), aff’d, 626 F. App’x 497 (5th Cir. 20 15). Likewise, the older cases W elch v. J. Ray McDerm ott & Co., 336 F. Supp. 383 (E.D. La. 1972), and Krey v. United States, 123 F.2d 10 0 8 (2d Cir. 1941), which “found that ocean-going vessels were unseaworthy for failing to have handrails or mats,” My ers, 20 14 WL 5324974, at *3, do not control this Court’s assessment of an inland pushboat, 65 tied and docked. 66 Overall, therefore, the plaintiff has not presented facts or law sufficient to establish a genuine issue of m aterial fact with regard to the shower’s safety. B. Th e Plain tiff’s Fatigu e In addition to his argum ents that the design of the shower contributed to the incident, the plaintiff also alleges that his fatigue—attributable to the defendant’s actions—caused the accident. 67 The Court finds, though, that 65 66 67 See R. Doc. 21-2 at 2 ¶ 10 . See R. Doc. 21-4 at 27:16-24. See, e.g., R. Doc. 36 at 16. 17 construing the facts in the plaintiff’s favor, no genuine issues of m aterial fact exist with regard to the plaintiff’s fatigue that would support his claim . As an initial m atter, the plaintiff him self has never suggested that he felt fatigued, or that any fatigue caused his accident. He did not note being fatigued when he reported the accident to Chem Carriers, 68 or when he visited a nurse after the accident. 69 Sim ilarly, the plaintiff points to no m edical record where he reported being fatigued. Indeed, he was deposed in the proceeding and did not cite being fatigued as contributing to his fall. 70 Although the plaintiff asserts that he was told to travel to the place of his next assignment following the end of his shift, 71 he also stated that he was not in a rush to leave the boat. 72 In combination, these statements do not equate to the plaintiff’s claim ing he suffered from fatigue. Rather, as the plaintiff him self explained during his deposition, the accident occurred because his “foot hung up” on a 9.5-inch shower threshold. 73 68 See R. Doc. 33-8. See, e.g., R. Doc. 21-11. 70 See, e.g., R. Doc. 33-2 at 8:3-13 (“Q. You claim an accident. I’m trying to find out what you claim Chem Carriers did to cause or contribute to your accident. You’ve stated the design of the boat and you said the threshold was too high. A. Yes. Q. Was there anything that you felt was wrong with the boat or that Chem Carriers did that caused or contributed to your alleged accident? A. No.”). 71 See, e.g., R. Doc. 36-4 at 1 ¶¶ 3-4. 72 See R. Doc. 44-1 at 5:7-9. 73 See R. Doc. 21-4 at 30 :14-15. 18 69 The plaintiff proffered an expert who claim s that the plaintiff worked longer than perm itted by the Coast Guard’s “twelve-hour rule,” see 46 U.S.C. § 810 4(h), and ergo was fatigued. 74 That opinion has been excluded. 75 The interpretation of the applicable statute is a m atter for the Court. The statute provides that “an individual licensed to operate a towing vessel m ay not work for m ore than 12 hours in a consecutive 24-hour period except in an em ergency.” Id. The Court does not read this rule, as a general m atter, to suggest that an em ployer cannot allow a seam an to shower following a twelve-hour shift without creating an unreasonably unsafe condition. And in the context of this specific case, no evidence exists that the plaintiff’s work caused him to suffer fatigue to such an extent that an able-bodied seaman would be im peded from lifting his foot 9.5 inches over an open and obvious shower threshold. Overall, therefore, no triable issue of fact exists with regard to the plaintiff’s fatigue. 74 75 See R. Doc. 73 at 12. See id. at 12-14. 19 IV. CON CLU SION For the foregoing reasons, the Court GRANTS the defendant’s partial m otion for sum m ary judgment. New Orleans, Louisiana, this _ _23rd _ _ _ day of August, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 20
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