GREEN

v.

UNITED STATES

and pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA),³³ U.S.C. §§ 901-950.

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NFSI, Plaintiffs employer, and American Longshore Mutual Association, Ltd. (ALMA), NFSI’s LHWCA workers compensation carrier, joined the action as intervening parties pursuant to Rule 24, Federal Rules of Civil Procedure (Rule(s)).

The Court conducted a six-day bench trial in May 2009,

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and thereafter, the parties submitted their proposed findings of fact and conclusions of law.

See

United States’ Findings of Fact and Conclusions of Law (Doc. No. 101; Defendant’s Proposed Findings and Conclusions); Plaintiffs Proposed Findings of Fact and Conclusions of Law (Doc. No. 102; Plaintiffs Proposed Findings and Conclusions). Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel as well as the remainder of the record, the Court makes the following findings of fact and conclusions of law as required by Rule 52(a).

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I. Finding’s of Fact

A. Background

The United States, through the Maritime Administration (MARAD), an agency within the Department of Transportation, owns the Cape Edmont, which is a public vessel. Marine Transport Lines (MTL) holds a long-term contract with MARAD to manage six vessels, including the Cape Edmont. In managing the Cape Edmont, MTL arranges for repairs and maintenance as necessary. At all times material to this suit MTL acted as an agent of the United States.

The Cape Edmont, a Ready Reserve Vessel, is berthed in Charleston, South Carolina. At the time of the incidents relevant to this action, it was on Reduced Operating Status (ROS) awaiting activation. While on ROS, the vessel’s crew was reduced from twenty-eight members to ten, with chief engineer Frederick Mac-Neil serving as the highest ranking officer. As a MARAD Ready Reserve Vessel, the Cape Edmont is documented and inspected by the United States Coast Guard.

B. Steel Renewal Project

While the Cape Edmont was docked at Detyens Shipyard in South Carolina, a surveyor determined that the steel in the vessel’s ballast tanks did not meet the American Bureau of Shipping (ABS) specifications. This deficiency required the Cape Edmont to undergo a steel renewal project in order to maintain its certification with the Coast Guard. At the time of the discovery of the steel deficiency, the Cape Edmont was undergoing several other repair operations. MTL’s crew was involved in, and to some extent preoccupied with, these other projects. Additionally, MTL’s normal port engineer was unavailable due to personal matters. The steel renewal project, which represented a substantial undertaking, involved sensitive work. Its late discovery put MTL “behind the eight ball” with respect to the Cape Edmont’s Coast Guard certification, making timely completion of the steel renewal project important.

The steel renewal project was beyond the scope of Detyens contract, thus MTL put the project out for bid, eventually awarding it to NFSI. Additionally, because of both the substantial nature of the project and because of MTL’s internal personnel conflicts, MTL elected to retain Clyde “Robbie” Roberts to act as port engineer for the steel renewal project. In contrast to NFSI, Roberts did not win the project by bid. Rather, MTL specifically chose him for the task because of his experience with steel and his prior work with MTL. Even if MTL’s full roster of regularly employed port engineers had been available for the job, MTL still would have brought in Roberts, an outside specialist, due to the specialized and sensitive nature of the work.

C. MTL’s Contract with NFSI

After NFSI won the steel renewal contract by lowest bid, MTL retained NFSI to complete the necessary repair work. The contract between NFSI and MTL provided that NFSI was to furnish the labor, materials, and equipment necessary for its repair work, including ventilation equipment. The contract also called for NFSI to obtain marine chemist certification

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that the work areas were gas free and safe for “hot work,”

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requiring NFSI to obtain certification prior to commencing hot work

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in the ballast tanks undergoing the repair operations and to maintain the certification throughout work on the project.

D. MTL’s Contract with Roberts

Rather than put the port engineer job for the steel renewal project to bid, MTL specifically chose and retained Roberts for the job because of his experience working with steel and with MTL. Roberts testified that he works as a “private contractor, basically a consultant, in the marine industry.”

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Roberts dealt directly with MTL, and was retained, paid, and supervised by MTL,

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not MARAD.

Both Roberts and MTL understood Roberts to be an independent contractor, and not an MTL employee. In contrast to MTL’s employees, Roberts did not receive employment benefits. He was not paid a regular salary; rather, he sent invoices to MTL for his work. MTL retained Roberts for the specific purpose of supervising the steel renewal project and two additional minor projects.

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The contract between Roberts and MTL was oral and was not reduced to writing.

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The terms of the contract provided for Roberts to ensure that NFSI timely and satisfactorily completed the steel renewal project to the correct technical specifications. Ernie Otterspoor, MTL’s president and CEO, supervised Roberts’s performance of his contract. Otterspoor retained Roberts and was familiar with the terms of his agreement. Based upon Otterspoor’s understanding of the agreement, Roberts had no specific safety responsibility, but he was supposed to bring any safety hazards he noticed to NFSI’s attention. Otterspoor understood Roberts to have the obligation to bring to NFSI’s attention anything he noticed that, safety wise, was hazardous or inappropriate. Roberts also understood part of his job to be to ensure that NFSI followed appropriate safety procedures. For example, although Roberts did not view it as his job to ensure that ventilation for hot work aboard the Cape Edmont was adequate, he did view it as his responsibility to monitor ventilation and get any deficiencies he noticed corrected. Roberts had authority to shut down the project, if necessary, to rectify unsafe working conditions.

E. MARAD Involvement

1. Roberts Contact with MARAD

Roberts had no direct contact with any government agency, including MARAD. He dealt exclusively with MTL. MARAD did not reimburse MTL for Roberts’s sala

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ry. Roberts did not report to MARAD and was not supervised by MARAD. Indeed, throughout his work on the Cape Edmont, Roberts never dealt with MAR-AD.

2. MTL Contact with MARAD

As MARAD’s ship manager and agent, MTL’s interaction with MARAD was generally through MARAD’s contracting officer’s technical representative (COTR), Jesse Whittaker. As the COTR, Whittaker made sure that MTL performed its ship management duties in accordance with its contract with MARAD. This job required Whittaker to-periodically visit the MTL-managed vessels, including the Cape Edmont, to document repair work and ensure appropriate funding. As part of his general oversight, Whittaker, usually accompanied by Otterspoor, generally spent “a minimum amount of time, no more than a few minutes on each ship.”

F. Ship Structure

The Cape Edmont is a RO/RO, or roll-on/roll-off, vessel, meaning it is specifically designed to have cargo vehicles drive on and off the ship. The vessel has a retractable stern ramp that provides access to the “B deck” of the vessel. Workers aboard the Cape Edmont used this ramp to board and exit the ship. Below B deck, toward the aft end of the ship, the vessel has starboard and port ballast tanks, separated in the center by the steering gear flat and steering equipment.

G. Beginning Work on the Project

NFSI began work on the steel renewal project on January¹⁶ or¹⁷, 2006. NFSI used approximately¹⁰ to¹² employees, most of whom began work on the first day but some of whom filtered in later. On the first day of the project, NFSI workers primarily unloaded equipment and set up for the job. The second day, they were assigned to their work spaces. Jim Burgess, who supervised the project on behalf of NFSI, acted as Plaintiffs second-line supervisor and passed out the work assignments. Giau Tran acted as Plaintiffs first-line supervisor. On January¹⁷, NFSI began hot work on the Cape Edmont, and on January²⁰ or²¹, NFSI specifically began hot work within the starboard aft peak tank of the Cape Edmont. Plaintiffs accident occurred in connection with hot work within the starboard aft peak tank on January²⁶, 2006.

H.Marine Chemist Certification

Prior to beginning hot work, OSHA regulations require certification by a marine chemist that the workspace is safe for hot work. Burgess brought in David Miller of Marine Environmental Testing, Inc. (MET) to perform the necessary inspections. When Miller arrived on the morning of January¹⁷, hot work had not yet begun. Miller, a National Fire Protection Association (NFPA) certified marine chemist since 1990, inspected the port aft peak tank, the center aft peak tank, the starboard aft peak tank, and the aft steering gear room. Under OSHA requirements at the time, to certify a space as safe for work, Miller was required to determine: (a) that oxygen content of the atmosphere was at least 19.5% and below 22% by volume; (b) that the concentration of flammable vapors was below 10% of the lower explosive limit (LEL);

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(c) that the carbon monoxide level in the atmosphere did not exceed thirty-five parts per million; (d) that any toxic materials in the atmosphere were within the permissible exposure limits; and (e) that any residues or materials associated with the authorized work would not be hazardous.

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Miller conducted the tests using a four-gas meter. He calibrated the instrument prior to using it by testing a known gas concentration. Miller checked the gas levels at the entrance to each space and throughout the entire space to be tested, recording his results. Miller’s instruments gave a real-time reading of the gas levels, enabling him to continuously test throughout a given space. He did not need to stop to test a given area. Specifically with respect to the starboard aft peak tank, on January¹⁷, Miller measured an oxygen level of 20.9%, a carbon monoxide level of zero parts per million, and an LEL of zero percent. In addition to the gas readings, Miller also performed a visual inspection of the tested areas. Miller spent about two to three minutes each in the port and starboard tanks, about ten to fifteen minutes in the center tank, and a couple of minutes in the steering room. His total inspection lasted approximately thirty minutes. Following his inspection, Miller certified each of the four areas as safe for workers and safe for hot work, instructing NFSI to maintain fire watch. The certification was posted on each of the inspected areas.

I. Competent Person Inspection

For hot work to continue in an area after it has been certified as safe by a marine chemist, OSHA regulations require testing and inspection by a competent person “as often as necessary to ensure that atmospheric conditions within that space are maintained within the conditions established by the certificate after the certificate has been issued.” The industry standard under normal working conditions calls for daily inspection by a competent person. As with the marine chemist certification, the daily competent person inspection was posted on each of the inspected areas with copies provided each morning to Burgess, Roberts and Mac-Neil. Typically, the working company, in this case NFSI, performs the daily checks using its own competent person. In this particular project, however, MET, performed the daily competent person checks for January 18-21, until NFSI took over the task on January 22. On January 18-19, an MET employee other than Miller performed the competent person inspections. Each of the four inspected areas passed, with instructions left to maintain ventilation and maintain fire watch. On January 20-21, Miller personally performed the competent person inspections. At the time Miller performed the competent person checks, the workers were in the spaces working. Miller saw no indication that ventilation was inadequate, and his instruments did not indicate inadequate ventilation. He generally recalls seeing ventilation equipment, and no one ever suggested to him that ventilation was inadequate. He never observed inadequate ventilation or concluded that ventilation was inadequate. Miller gave passing marks to each of the four inspected areas, leaving instructions to maintain ventilation.

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On January²², NFSI took over the competent person duties. NFSI’s competent person forms show that on January 24-26,

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an NFSI competent person in

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spected and approved the port aft peak tank, starboard aft peak tank, center aft peak tank, and aft steering gear room as safe for hot work and safe for workers.

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Specifically, on January²⁶, 2006, the date of Plaintiffs accident, an NFSI competent person approved the starboard aft peak tank, the location of Plaintiffs accident, as safe for hot work and safe for workers.

J. Plaintiffs Work in the Starboard Aft Peak Tank Preceding the Accident

At the time of the steel renewal project, NFSI employed Plaintiff as a first-class ship-fitter.¹⁴

Plaintiff had approximately twenty-six or twenty-seven years experience as a ship fitter and welder. Plaintiff had worked on and off for NFSI, and, at the time of the steel renewal project, he had worked for NFSI continuously since he was most recently rehired, in December of 2005. NFSI initially assigned Plaintiff to work in the starboard aft peak tank with Paul Degrove, another experienced ship fitter and welder.

The starboard aft peak tank is a confined space. To access the starboard aft peak tank, the workers first had to go through a hole that had been cut in the B deck. From this area that was accessed through the hole in the B deck, the workers would then need to climb through one of two or three holes in a longitudinal

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bulkhead to enter the starboard aft peak tank. Within the starboard aft peak tank, a transverse swash bulkhead runs port to starboard along frame zero of the ship.

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Although there was conflicting testimony as to the number of holes in this particular swash bulkhead that the workers used as man-way holes to move throughout the ship, the Court determines that the swash bulkhead running along frame zero of the ship contained two such holes. Plaintiffs particular workspace within the starboard aft peak tank was aft of the frame-zero swash bulkhead.

The bottom of the starboard aft peak tank is not flat. Rather, the hull of the boat forms the shape of a shallow “v,” narrowing towards the keel (or inboard of the starboard aft peak tank) and then rising. Additionally, transverse structural frames run across the floor of the tank. These frames are approximately three feet tall, and movement within the tank requires a worker to either climb or crawl over these frames.

Plaintiff and Degrove began hot work within the starboard aft peak tank on January 20th or 21st. At this time, MET had already performed the initial marine chemist certification permitting hot work within

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the starboard aft peak tank and was still performing the competent person checks. Because the starboard aft peak tank was a confined space, OSHA regulations required hot work in the tank to be accompanied by appropriate ventilation. There are two different types of ventilation. Positive ventilation, or “blowing,” involves moving air inside a space. Negative ventilation, or “sucking,” involves pulling air out of a space.

NFSI provided ventilation to its workers aboard the Cape Edmont in the form of air socks attached to mechanical fans. The mechanical fans were located on B deck, and the attached air socks ran through access slots cut in the deck to the ship’s lower level. The open end of the air socks were lightweight, portable, and easily moved by the workers below deck. Two different color socks were in use on the Cape Edmont. Red socks, sometimes referred to as pink, were used to provide positive ventilation.

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The red socks were incapable of providing negative ventilation. When operative, the red socks inflated, but when inoperative, they collapsed. Yellow socks were primarily used to provide negative ventilation. In contrast to the red socks, however, the yellow socks were capable of providing either positive or negative ventilation. To prevent the yellow socks from collapsing or contracting when providing negative ventilation, they were lined with a coil metal framing. Thus, unlike the red socks, the yellow socks remained in the same expanded position regardless of whether they were being used.

Requiring ventilation for hot work within a confined space serves multiple safety purposes. It ensures that workers can see properly, it ensures that workers can breathe properly, and it reduces the risk of hazard from fire or explosion. The parties agree that OSHA regulations dictated the necessary level of ventilation for hot work aboard the Cape Edmont in conjunction with NFSI’s performance of the steel renewal project. Nonetheless, there was some dispute as to the industry standard for adequate ventilation. Plaintiffs expert witness, Robert Harshman, suggested that adequate ventilation required a specific and measurable frequency of complete air exchanges. However, not only was Harsh-man’s testimony as to the necessary frequency of air exchanges inconsistent,

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it was also based on Navy regulations that both parties agreed were inapplicable to the Cape Edmont. Harshman, as well as all other witnesses who testified as to the requisite ventilation, agreed that OSHA regulations do not require any specific number of air changes over a specific period of time. Rather, OSHA regulations require ventilation sufficient to remove smoke and welding fumes so as to maintain the working atmosphere in safe condition.

It is undisputed that the starboard aft peak tank was a confined space. However, Plaintiff contends that his particular workspace within the starboard aft peak tank — the area aft of the transverse swash bulkhead running along frame zero of this ship — was a “confined space within a confined space,” and thus, any measure of compliance with the standard of care governing ventilation he was provided must account specifically for ventilation air socks within his particular portion of the

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starboard aft peak tank rather than it as a whole. The Court finds credible testimony to the contrary and concludes that there is no such industry practice or requirement to sub-compartmentalize a confined space for the purpose of measuring or providing ventilation. Miller, the certified marine chemist and witness to whom the Court ascribes the greatest understanding and familiarity with OSHA requirements for hot work within confined spaces, testified that, despite the framing within the starboard aft peak tank, “the tank is the tank” and for purposes of OSHA requirements “there [are] no sub-compartments in the starboard aft peak tank.” He further testified that, with respect to the marine industry standard for testing and certifying tanks as safe for hot work, he has neither heard of, nor himself performed, separate reports for spaces in between swash bulkheads within a single tank.

The testimony as to the timing and level of ventilation provided in the starboard aft peak tank during the days preceding the accident was in conflict. As to the initial period, when Plaintiff was partnered with Degrove, Degrove testified that when hot work began in the starboard aft peak tank, there was no ventilation whatsoever as the supply truck with materials had not yet arrived. However, Plaintiff testified that NFSI workers spent the first day of work unloading materials from the supply truck. Both Plaintiff and Degrove testified that ventilation was to some extent inadequate when they began hot work in the starboard aft peak tank, but that they eventually received proper ventilation equipment. At some point after Degrove left, Plaintiff was assigned to work with Mary Chamberlain, a tacker.¹⁹

Plaintiff worked with Chamberlain as his assigned helper for approximately four days prior to the accident. Plaintiff testified that when Degrove left the starboard aft peak tank, he took the ventilation with him. He also testified that air socks that were either inoperative or not attached to mechanical fans were led down the access slot below B deck to give a marine chemist, competent person, or other inspector the false impression that the starboard aft peak tank was ventilated when it was, in fact not.

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Plaintiff testified that on one day preceding the accident he was so concerned regarding the lack of ventilation that he refused to work, but later returned to work upon being provided some ventilation equipment.

In sum, Plaintiff, supported somewhat by the testimony of Degrove, testified that his ventilation on dates preceding the accident was inconsistent and generally inadequate. Plaintiff testified that he complained to various individuals about the lack of ventilation. Most of these complaints, he testified, were lodged to his NFSI supervisors, Tran and Burgess. However, he testified that he complained to anyone he could find, including an unidentified person he knew not to be an NFSI employee who was wearing white overalls and who was responsible for posting daily certification outside the tank to allow hot work. In contrast to Plaintiffs accounts regarding ventilation prior to the day of the accident, Chamberlain testified that throughout her work in the starboard aft peak tank she observed ventilation. Similarly, NFSI supervisors Tran and Burgess, port engineer Roberts, and marine chemist and competent person Miller

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all testified that in the numerous times they passed by or actually entered the starboard aft peak tank they observed what appeared to be adequate ventilation.

The Court need not resolve all of the conflicting testimony regarding ventilation prior to the date of the accident because the ventilation adequacy at that time is not dispositive. What is potentially dispositive, however, is the extent to which any MTL or government representative either knew or should have known of any ventilation inadequacies. To the extent such inadequacies may, from time to time, have existed, no complaints thereof or notice was given to any MTL crew member, or even to Roberts. Roberts and MacNeil each testified that they neither knew, nor were advised of, any ventilation inadequacies.

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Indeed, Plaintiff did not recall seeing Roberts during his work on the project, referring to Roberts as “a ghost.”

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Likewise, testimony or stipulated expected testimony of all MTL crew members aboard the Cape Edmont was that none were advised of ventilation inadequacies. Assuming, as Plaintiff testified, that he did complain to a person in white overalls about inadequate ventilation, the Court concludes that such person was not an MTL crew member. Based on Plaintiffs description of the individual’s clothing and job description, the Court finds that he was either an ABS inspector or a marine chemist or competent person, but he was not an MTL crew member.²³

At pertinent times during his work in the starboard aft peak tank Plaintiff used his own personal cutting torch. It is not uncommon for workers in the industry to use their own tools. Plaintiff had owned the particular torch for about three years prior to the accident. When he first purchased it, the torch had recently been re-serviced, but during the three years he owned the torch Plaintiff never had it serviced.

Although torch leaks are preventable with proper maintenance, it is not uncommon in the industry for torches to leak from time to time. Industry standard safety procedures call for workers to test their torch at the beginning of each shift to ensure it is not leaking. NFSI policy allowed workers — even those using personal torches — to turn in a leaky torch and have proper maintenance performed at NFSI’s expense.

A few days prior to his accident, Plaintiff realized that his torch was leaking. Specifically, in response to a random spark, Plaintiff observed his torch light and hold a small flame, similar to that of a

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match, while it was turned off. Plaintiff was worried about his torch and knew that it required attention, however he did not attempt to service or fix his torch, and he did not trade his torch with NFSI for a temporary replacement to allow NFSI to have his torch serviced. Rather, he attempted to solve the problem by turning the gas knob off tighter. The only other person who knew of Plaintiffs leaky torch prior to the time of the accident was Chamberlain. On one occasion, Chamberlain saw Plaintiffs torch light while the gas knob was off. This led to an argument between Plaintiff and Chamberlain. Chamberlain pointed the leak out to Plaintiff, who told her not to worry about it. Additionally, Plaintiff grew aggravated when he felt that Chamberlain has exacerbating the hazard through placement of her tools in proximity to the leaking torch. Despite Chamberlain’s concern, however, she did not bring Plaintiffs leaky torch to the attention of her supervisor or anyone else because she did not want to be a “rat.”

K. Roberts’s Role in the Project

When Roberts arrived as port engineer for the steel renewal project on January¹⁸ or¹⁹, 2006, NFSI had already commenced work on the project. Although he also worked on two other small projects for MTL, Roberts spent about 95% of his time on the steel renewal project. Roberts acted as the ship’s representative in his capacity as port engineer. Although he did not have authority to bind MTL to payment, he did, under authority from MTL, sign documents on behalf of MTL. He also negotiated change orders and fielded bids on MTL’s behalf. From NFSI’s perspective, Roberts was the vessel’s quality assurance representative and NFSI’s chief contact person with MTL.

Roberts involved himself in safety protocol for the project. Dissatisfied with the extent of the fire watch stations, he questioned Burgess and eventually coordinated with MacNeil to improve the quality and quantity of the fire watch stations.

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When Roberts arrived on January 18th or 19th, he met with Burgess to discuss safety procedures and Roberts’s overall requirements for the project. Roberts gave Burgess a card of safety procedures with which he and MTL expected NFSI to abide. He discussed requiring workers to wear proper dress and equipment, including hard hats and safety goggles. Although Roberts emphasized the need to maintain ventilation, he saw no need to harp on the issue because his observations were that NFSI was providing adequate ventilation. Roberts also testified that he emphasized, and Burgess acquiesced to, a specific rule of his — whenever workers left their work spaces below the decks, not only should the gas lines be disconnected from the gas source and the gas source turned off, but the torches and gas lines had to be “rolled up” and removed from the work spaces below deck. Burgess testified that he did not recall discussing Roberts’s policy as to rolling up torches whenever workers left the work area. He testified that NFSI’s policy, and the procedure utilized throughout the project, was not to completely roll up torches whenever workers left the work space. Rather, the policy NFSI followed throughout the project was to roll up the torches only at the end of the work shift. At other breaks, such as lunch time, the tanks were supposed to be turned off and the gas hoses disconnected, but the torches were not rolled up above deck. In resolving this

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conflict the Court finds Burgess’s testimony to be credible and consistent with the other evidence presented at trial.

Roberts utilized an MTL office on a dock within¹,000 feet of the vessel, and he worked aboard the vessel — where he spent most of his time — daily. Insofar as the Court heard no evidence of set hours or directives from MTL, Roberts appears to have exercised independent discretion as to when and how long to work. While working aboard the vessel, Roberts physically crawled into the various work spaces, visiting each work space on average between six to fifteen times per day. Specifically, prior to Plaintiffs accident, Roberts was physically within the starboard aft peak tank “maybe hundreds of times” throughout the course of the project. Each time, he saw ventilation in the starboard aft peak tank, testifying that he had to move the air socks out of his way to get into the tank. In fact, Roberts thought the level of ventilation NFSI provided was to some extent “overkill.” In addition to monitoring safety and progress, Roberts, using spray paint, marked for identification the steel to be removed, and was required to inspect and approve the placement of all renewed steel prior to its installation.

L. Day of the Accident

Plaintiff arrived at work on January²⁶, 2006, the day of the accident, at approximately⁶:00 a.m. When he arrived, he relieved the night shift workers and began work along with Chamberlain. Most of the work that morning was being performed on the port side of the ship. In fact, while other NFSI workers, including Herbert Amons, were working on the port side of the vessel that morning, Plaintiff and Chamberlain were the only two individuals working in the starboard aft peak tank. On that day, there was both positive and negative ventilation — a red and a yellow ventilation air sock — within the starboard aft peak tank, although the placement of the air socks may not have been optimal considering the location of Plaintiffs specific workspace within the starboard aft peak tank.

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Nevertheless, the ventilation air socks were readily portable, and the workers were free to, and often did, move them as necessary. That morning, Roberts cheeked the competent person form to ensure that the starboard aft peak tank remained certified safe for hot work. He relied entirely on the combination of the original marine chemist certification and the daily competent person form to assure him that the ventilation visible to him was adequate.

At some time the morning of the accident, Otterspoor boarded the vessel to gauge the status of the ongoing repair work on the aft peak tanks. While in the center steering gear flat between the starboard and port aft peak tanks, he generally observed ventilation, both red and yellow air socks. Otterspoor testified that he observed various air socks operating, but he did not specifically pay attention to or recall the specific location of the air socks. At the time of the accident, Otterspoor was

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back at the office, no longer aboard the vessel. By the time Otterspoor returned to the vessel, emergency personnel had already arrived. Not wanting to interfere with the emergency personnel, Otterspoor, accompanied by Whittaker, who was also in town, stayed on the ship’s ramp.

The day of the accident was also a pay day. At some point that afternoon, Burgess distributed paychecks and allowed the workers to leave the vessel to cash their checks. Burgess alone made the decision to release the workers, and Roberts was neither present when the checks were distributed nor when the workers were released to cash them, When the workers left to cash their checks they did not do so in unison.

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Some took their own vehicles individually, while others carpooled in a company van. NFSI did not restrict the workers as to where they could cash their checks. Some took their checks to a bank, while others went to a check-cashing location. The check cashing location was closer to the vessel, and while it usually took workers who went to the check-cashing location approximately twenty or thirty minutes to cash their checks and return to the vessel, it generally took workers who went to the bank about twice that long.

When Plaintiff left the Cape Edmont to cash his check, he turned his torch off, but left it unattended in his workspace in the starboard aft peak tank. He did not roll up his torch from the confined space nor did he disconnect his torch hose from the gas source at the manifold. He also failed to positively turn off the gas supply at the manifold. The testimony as to why Plaintiff failed to disconnect his torch or turn off the gas supply prior to leaving to cash his check was in conflict. Although testimony was unanimous that safety responsibility as to an unattended torch rests primarily with the individual worker, Plaintiff testified that when he was heading to turn off his gas supply and comply with proper safety procedures he was hurried away by Burgess, who urged him to go cash his check. He testified that he accordingly assumed Burgess would turn off his gas supply for him. Burgess testified that he did not rush the workers off the ship, offer to turn off Plaintiffs gas supply, or offer to disconnect Plaintiffs torch.

The Court finds that Plaintiffs account of the events lacks credibility. The basic safety protocol for unattended torches is not intricate. It takes mere seconds to disconnect one’s torch or turn off one’s gas supply at the manifold. Industry standard makes such safety compliance the responsibility of the individual worker. Acknowledging that he hurt himself and “broke the Golden Rule” by not taking safety responsibility for his own unattended torch, Plaintiff testified that when he left the ship at Burgess’s urging it was the only time in his twenty-seven years in the industry that he relied on someone else to turn off his gas supply or disconnect his hose for him. He conceded that he did so not in reliance on any affirmative statement by Burgess that he would turn off or disconnect Plaintiffs gas supply, but rather, on an assumption. He testified that he made this assumption knowing the danger of leaving a gas-supplied torch unattended in a confined space and knowing that his torch was leaking. The Court finds the credibility of Plaintiffs description of the events further strained by his testimony concerning his behavior upon returning from cashing his check. When Plaintiff returned from cashing his check, he did not go to reconnect his hose to the gas supply. Instead, he found that his torch was connected to the gas supply, which was turned on. Rather than consider that Burgess might not have acted on Plaintiffs assumption,

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Plaintiff layered his assumptions, concluding that someone else must have reconnected his gas supply just prior to his arrival. Although the Court gives credence to Burgess’s, rather than Plaintiffs, account of Plaintiffs failure to disconnect his hose or turn of his gas supply upon leaving to cash his check, the interplay between Burgess and Plaintiff when Plaintiff left the ship is ultimately of little consequence.

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Roberts was not present when Burgess distributed checks or when the workers left to cash their checks. However, approximately fifteen to twenty minutes before Plaintiffs return to the ship, Roberts arrived on B deck. There, standing near the access slot to the below-deck tanks and within sight range of the gas manifold, Roberts had a conversation with Burgess. During the course of their conversation, Roberts and Burgess at one point roamed to within approximately ten to fifteen feet of the gas manifold. The two spoke generally about progress on the project and the various work being done in different spaces. Although Roberts testified that he was unaware the workers had left the ship, the Court credits Burgess’s testimony that Burgess told Roberts that the workers had left the shift to cash their checks. The Court also credits Burgess’s testimony that when he and Roberts first started talking none of the workers had returned.

As mentioned, the workers did not cash their checks in unison. Their return to the ship was likewise staggered. A group of workers began to return about five to ten minutes after Burgess’s conversation with Roberts began. Plaintiff returned a little more than one hour after leaving to cash his check. During that time frame, his leaking torch remained connected to its gas supply, unattended, in Plaintiffs workspace within the confined starboard aft peak tank. The torch uses two gases, oxygen and chemolene. Chemolene is highly flammable, and oxygen vigorously accelerates combustion. Both oxygen and chemolene are heavier than normal atmospheric conditions. For the time it was left unattended, Plaintiffs torch leaked both oxygen and chemolene into the starboard aft peak tank. Because of their heavy densities, both the oxygen and chemolene sank to the bottom of the ship, where they pooled in the area along the bottom of one of the three-foot-tall structural frames running across the floor of the tank. The pooled gas was, as events would unfold, incredibly hazardous, and, unfortunately, whatever the ventilation within the starboard aft peak tank, it did not remove the pooled gas.

Plaintiff returned to the ship before his helper, Chamberlain, had returned from cashing her check. Nevertheless, contrary to established safety policy, Plaintiff, without a helper, entered the starboard aft peak tank to commence work alone. His bulky protective gloves made it difficult to adjust the valves on his torch, so he attempted to light his torch prior to putting on the gloves. Plaintiff opened the gas valve on his torch and attempted to light it using his striker. The striker inadvertent

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ly ignited the gas that had pooled in Plaintiffs workspace, causing an explosion or flash fire. Amons, who was working in the port aft peak tank, witnessed the event. He saw a large fireball stretch across the steering gear room separating the two tanks before withdrawing. Roberts, who was still standing up on B deck, described the sound as similar to a shuttle going off. On fire, Plaintiff threw his torch and made his way out of the starboard aft peak tank to the center of the ship.

28

Within a matter of moments, Amons, who had been working on the port aft peak tank at the time of the incident, reached Plaintiff to offer his assistance. An unidentified person above deck sprayed Plaintiff with water and was able to extinguish the fire. Amons assisted Plaintiff up to B deck, where co-workers provided assistance until emergency personnel arrived. Plaintiff suffered severe burns as a result of the accident.

After the accident, prior to engaging in additional hot work, NFSI summoned Miller to re-test and certify the port aft peak tank, center aft peak tank, starboard aft peak tank, and aft steering gear room. At approximately⁶:50 p.m., on January²⁶, 2006, Miller, in his capacity as a certified marine chemist, re-certified all four locations, finding the atmosphere safe for workers and safe for hot work and leaving instructions to maintain a fire watch and ventilation.

II. Conclusions of Law

A. LHWCA

The parties agree that at the time of the accident, Plaintiff was a ship fitter engaged in repair work aboard the Cape Edmont and that he is covered under the LHWCA. “Prior to 1972, a [harbor worker] injured in the course of his employment could receive compensation payment from his employer ... or bring an action against the owner of the vessel and recover if he could prove that the owner’s negligence caused his injuries or that the vessel was unseaworthy.”

Clark v. Bothelho Shipping Corp.,

784 F. 2d 1563, 1565 (11th Cir.1986). With respect to an unseaworthiness claim, “[n]o showing of fault on the part of the owner was necessary” and “[t]he shipowner could be held liable for the [harbor workerj’s injuries even if the [employer] created the unsafe condition.”

Id.

However, Congress amended the LHWCA in 1972 “to shield shipowners from strict liability” and provide “for liability against the owner only in the event of the owner’s negligence or the negligence of the vessel’s crew.”

See id.

The amendments “impose[d] a negligence standard rather than a standard of liability without fault,” but the specifics of the standard were left to be resolved.

See id.

In

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

451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court “outlined the three general duties shipowners owe” harbor workers under the amended LHWCA. See Howlett v. Birkdale Shipping Co., S.A.,

512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994). Although articulated in terms of stevedor-ing operations,

29

“[t]he

Scindia

standard is applicable to the employment of independent harbor contractors and their maritime employees!.]”

See Roach v. M/V

*1297

Aqua Grace, 857

F. 2d 1575, 1581-82 (11th Cir.1988) (citing

Hill v. Texaco, Inc.,

674 F. 2d 447, 450-51 (5th Cir.1982)). Accordingly, the three

Scindia

duties control whether Defendant, as owner of the Cape Edmont, is liable to Plaintiff for his injuries.

B.

Scindia

Duties

The first

Scindia

duty, known as the “turnover duty,” and its&#x²⁷; corollary, known as the “turnover duty to warn,” concern “the condition of the ship upon the commencement of [repair] operations.”

Howlett,

512 U.S. at 98-99, 114 S.Ct. 2057. Stated succinctly, the twin turnover duties dictate that “[b]efore a [harbor contractor] begins work, a shipowner must turn over the ship and its equipment in a condition that permits a [harbor contractor] to do its work with reasonable safety, and must warn the [harbor contractor] of any hidden dangers of which it knows or should know.”

Roach,

857 F. 2d at 1581:

see also Howlett,

512 U.S. at 98-99, 114 S.Ct. 2057.

The second and third

Scindia

duties apply once repair operations are underway and impose differing standards of liability depending on whether the shipowner is actively involved in the operations, drawing a distinction “between an area controlled by the [harbor contractor] and one that is concurrently controlled by the [harbor contractor] and the shipowner[.]”

See Lampkin v. Liberia Athene Transport Co., Ltd.,

823 F. 2d 1497, 1501 (11th Cir.1987);

see also Howlett,

512 U.S. at 98, 114 S.Ct. 2057. The second

Scindia

duty, the “active operations duty,” provides that, after commencement of repair operations, a shipowner may be held liable if it “ ‘actively involves itself in the [repair] operations and negligently injures a [harbor worker] or if it fails to exercise due care to avoid exposing [harbor workers] to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the [repair] operation.’ ”

Lampkin,

823 F. 2d at 1501 (quoting

Scindia,

451 U.S. at 168, 101 S.Ct. 1614). However, “once [repair] operations have commenced, and absent contractual, legal or customary provisions to the contrary, the shipowner has no duty ‘to exercise reasonable care to discover dangerous conditions that develop within the confines of the [repair] operations that are assigned to the [harbor contractor].’ ”

Id.

(quoting

Scindia,

451 U.S. at 173, 101 S.Ct. 1614). Rather, “once an owner has relinquished complete control of the vessel to the [harbor contractor], primary responsibility for the safety of the [harbor workers] lies with the [harbor contractor,]” and the third

Scindia

duty, the “duty to intervene,” merely requires that “if the shipowner learns of an apparently dangerous condition that presents an unreasonable risk or harm to the [harbor workers], it has a duty to intervene and remove the hazard.”

Id.

(citing

Scindia,

451 U.S. at 173, 101 S.Ct. 1614). In other words, “although ... the determination of whether problems with the ship’s gear pose an unreasonable risk of harm to the [harbor workers] is ‘a matter of judgment committed to the [harbor contractor] in the first instance,’ ” where “the shipowner is aware that the ship’s gear is malfunctioning, that the [harbor contractor] is nonetheless continuing to use it, and that the [harbor contractor]^ continued use of the gear is ‘obviously improvident,’ then the shipowner has a duty to intervene and repair the ship’s gear.”

Hunter v. Reardon Smith Lines, Ltd.,

719 F. 2d 1108, 1111 (11th Cir. 1983) (quoting

Scindia,

451 U.S. at 175-76, 101 S.Ct. 1614). This duty to intervené is narrow, however — “[t]he shipowner must intervene only when it becomes aware that the ship, its equipment or gear poses a danger ...

and

is also aware that the [harbor contractor] is acting unreasonably to protect the [harbor worker].”

Roach,

*1298

857 F. 2d at 1581;

see also Reardon Smith Lines, Ltd.,

719 F. 2d at 1112 (describing the duty to intervene as a

“very limited

duty”).

Accordingly, a shipowner’s liability “depends upon whether [repair] operations had begun, and whether the shipowner was actively involved in the operations.”

Lampkin,

823 F. 2d at 1501. When repair operations have begun, a shipowner that does not trigger the active operations duty may be held liable only if it has actual knowledge of a hazard and a harbor contractor’s unreasonable failure to protect its employees,

Id.

Indeed, “[i]n such a case, the shipowner has a duty to intervene to protect the [harbor workers] only if it becomes aware that the ship or its gear poses a danger to the [harbor workers] and that the [harbor contractor] is failing, unreasonably, to protect the [harbor workers]

Id.

(quoting

Clark,

784 F. 2d at 1565). On the other hand, if the shipowner triggers the active operations duty, then the shipowner may be held liable if it has “constructive knowledge” of a hazard.

See

id The differing standards of liability contingent upon the degree of control exercised by the shipowner reflect sound policy — “[otherwise, a shipowner would be free to ignore hazardous conditions that develop within areas under its exclusive or concurrent control, pending notification by the [harbor contractor].”

See id.

at 1502.

To trigger the broader active operations duty, the shipowner “must have substantially controlled or been in charge of (i) the area in which the hazard existed, (ii) the instrumentality which caused the injury, or (iii) the specific activities the [harbor contractor] undertook.”

Davis v. Portline Transportes Maritime Int’l,

16 F. 3d 532, 540 (3d Cir.1994) (citations omitted). A shipowner may exercise the requisite control over an area “either because it never turned exclusive control of the area over to the [harbor contractor] but retained substantial control, or because the vessel substantially interfered, by invitation or otherwise, with the [harbor contractor]^ exercise of exclusive control, such as by actively intervening in the area.”

id.

at 541. In contrast, a “vessel’s mere reservation of the right to intervene to protect the ship’s and its crew’s interests, or to eject the [harbor contractor] at any time, does not amount to the substantial control necessary to trigger the vessel’s active operations duty as long as the vessel does not exercise those reserved rights.”

Id.

Thus, “a vessel owner will not trigger [the active operations] duty by having its employees board the vessel daily ‘to ensure the security of the ship and to check on the progress of the contractor’s work.’ ”

See Fontenot v. United States,

89 F. 3d 205, 208 (5th Cir.1996) (quoting

Futo v. Lykes Bros. Steamship Co.,

742 F. 2d 209, 210 (5th Cir.1984));

see also Gonzalez v. United States,

588 F. Supp. 2d 747, 761 (S.D.Tex.2008) (“[T]he mere presence of a Government representative aboard a ship is insufficient to establish active control.]”).

C. Conduct of Roberts

Prior to determining the duty owed Plaintiff and considering whether that duty was breached, the Court must address as a threshold issue whether conduct of Roberts is attributable to the United States.

30

Although all parties concede that MTL acted as an agent of the United States, Defendant argues that Roberts acted as a non-agent independent contractor

*1299

whose conduct cannot be attributed the United States. The argument is well taken.

Preliminarily, the Court notes that Plaintiffs theory of the case is not entirely clear. Specifically, it is unclear whether Plaintiff contends (a) that based upon the extent of control that MTL exercised over Roberts, he was tantamount to an employee of MTL such that his actions should be attributable to MTL, or (b) that irrespective of whether Roberts was an independent contractor, the extent of MTL’s control over his actions makes him an agent of MTL. Nevertheless, regardless of which approach Plaintiff pursues, neither supports a finding that Roberts was an agent of the United States, the vessel owner.

The Court first considers Plaintiffs contention that Roberts was really an employee of MTL.

31

Under general common law, in determining whether a hired party is an employee or an independent contractor, a court considers “the hiring party’s right to control the manner and means by which the product is accomplished.”

See Cmty. for Creative NonViolence v. Reid,

490 U.S. 730, 751, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989).

32

The Supreme Court has articulated several non-exclusive factors relevant to this inquiry:

the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id.

at 751-52, 109 S.Ct. 2166 (citations omitted).

33

Under this analysis, “how the employment relationship is described by the parties and the employment documents is considered but is not dispositive.”

See Wolf v. Coca-Cola Co.,

200 F. 3d 1337, 1340 (11th Cir.2000). Weighing the various factors, the Court concludes that Roberts was an independent contractor, not an employee, of MTL Certain factors are irrelevant to the instant case. For example, there was no evidence that Roberts used any tools or had any assistants, and, while Roberts agreed to supervise two other small projects in addition to the steel renewal project, the Court has insufficient evidence to determine whether MTL had the right to assign him additional work or whether he had the option of accepting or declining additional tasks.

34

Although the

*1300

location of the work — Roberts utilized MTL office space — and the fact that port engineer work was part of MTL’s regular business weigh toward finding the existence of an employment relationship, the bulk of the factors weigh toward a finding of an independent contractor relationship. The port engineer job required a high level of skill. Indeed, MTL specifically chose Roberts because of his experience working with steel. Even if MTL’s full roster of regularly employed port engineers had been available for the job, MTL still would have brought in Roberts, an outside specialist. The short duration of the parties’ relationship on this occasion— the span of the specific project Roberts was overseeing — also weighs toward his status as an independent contractor. Roberts appears to have exercised independent discretion as to when and how long to work. In contrast to MTL’s regular employees, Roberts did not receive employment benefits. His method of payment — • he sent invoices on letterhead from his company, Independent Marine Consultants, Inc., to MTL based on his work — ■ also suggests he was an independent contractor. While the Court did not hear evidence regarding Roberts’s tax treatment, given that both Roberts and MTL considered him to be an independent contractor, it is likely he was treated as such for tax purposes. Also relevant, Roberts testified that he was “a private contractor, basically a consultant, in the marine industry.” Viewing the totality of the relationship between Roberts and MTL, the Court concludes that MTL lacked control over the manner and means by which Roberts performed his port engineering services. Roberts was an independent contractor and not an employee of MTL.

The finding that Roberts was an independent contractor of MTL does not foreclose a finding that his conduct is attributable to the United States on a theory that he acted on its behalf as an agent. This case does not warrant such a finding, however, and the Court rejects Plaintiffs alternative theory of liability. The Court finds

Servis v. Hiller Sys., Inc.,

54 F. 3d 203 (4th Cir.1995) to be instructive. In

Servís,

the Fourth Circuit Court of Appeals considered whether “several contractors and subcontractors engaged to perform maintenance and repair tasks aboard a United States vessel” were “agents” of the United States for purposes of the SAA. See id.

at 205. As in the instant case,

Servís

involved a vessel owned by the United States and managed by MTL as an agent of the United States.

See id.

In that case, MTL retained multiple contractors, who in turn commissioned subcontractors, to perform repair work on the vessel.

See id.

Applying basic principles of agency law, the Fourth Circuit held that neither the contractors nor the subcontractors could be considered agents of the United States because they were not subject to operational control by the government.

See id.

at 207-09 (“[T]he term ‘agent’ [must] be read to exclude governmental liability for the negligence of independent contractors who are engaged to perform limited tasks aboard government vessels and who are not subject to the United States’ operational control.”). The

Servís

court noted that none of the contractors or subcontractors at issue were “ ‘engaged by’ the United States ‘to manage and conduct the business of a government vessel[,]’ ” and to view them as government agents would “raise[ ] the specter of governmental liability for every act of negligence by a painter or plumber engaged to perform some limited task aboard a United States vessel[.]”

Id.

at 209.

Plaintiff attempts to distinguish

Servís

by arguing that

MTL

exercised sufficient operational control over Roberts to make him an agent. This misses the point, however, because the pertinent question is whether Roberts can be considered an agent of the United States, not whether he

*1301

may have been an agent of MTL. For this reason, Plaintiffs reliance on

LeBlanc v. United States,

732 F.Supp. 709 (E.D.Tex. 1990), a Texas district court case, is similarly misplaced. In

LeBlanc,

a repair worker injured aboard a government-owned vessel sued the United States for his injuries.

See id.

at 711-12. There, pursuant to a general agency agreement with the United States, Connecticut Trans: port, Inc. (Connecticut), managed the vessel.

See id.

at 712-13. The plaintiff, a repair worker employed by Coastal Marine, premised his case on the acts and omissions of two individuals, Captain Cheney and Engineer Kraljevic.

See id.

at 713. Cheney, the vessel’s port captain, and Kraljevic, stationed as port engineer to supervise the repair work, each worked for Connecticut.

See id.

at 712. In determining whether Cheney and Kraljevic were agents of the United States for purposes of the SAA, the

LeBlanc

court noted that “the proper focus is on their

relationship with the United States[,]”

that is, “whether they were acting as fiduciaries for the

United States,

with the

United States’

consent and subject to the

United States’

general control and direction.”

See id.

at 714 (emphasis added) (citations omitted). The court held that they were properly considered agents of the United States because “they were on the vessel pursuant to a contract of employment with Connecticut Transport, the general agent for the United States”; “[tjheir selection was approved by the United States, and they were supervising repair work on a United States vessel and on its behalf’; and “[t]he United States maintained the right to control generally their activities.”

See id.

at 714-15. The

LeBlanc

court found that although Connecticut hired Cheney and Kraljevic, the United States had to approve their selection and directly reimbursed Connecticut for their wages.

See id.

at 714. Moreover, the court found that Kraljevic reported to both Connecticut and the United States, that “[a]ny repairs other than those planned prior to the vessel entering the shipyard” had to be proposed to Connecticut and then relayed to and approved by the United States, that United States employees inspected the work on the vessel, and that Kraljevic helped the United States negotiate the final bill with Coastal Marine.

See id.

Thus, the court in

LeBlanc

— consistent with the court in

Servís

— appropriately focused on direct operational control and consent by the United States, not by its agent, Connecticut.

See id.

at 714-15.

In the instant case, Plaintiff has tried to establish that Roberts acted as an agent of MTL.

See

Restatement (Third) Agency § 1.01 (“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”). However, Plaintiff — focusing on the relationship between Roberts and MTL — has failed to offer any evidence of a direct agency relationship between Roberts and the United States. Plaintiff presented no evidence that Roberts had any interaction or contact with the United States, through MARAD or otherwise — MARAD did not hire, pay, approve of, or supervise Roberts, and Roberts did not report to MAR-AD or deal with MARAD at all. The Court concludes that there was no direct agency relationship between Roberts and the United States.

35

*1302

Accordingly, the Court concludes that Roberts’s conduct is not attributable to the United States.

Cf. Servis,

54 F. 3d at 207-09. Thus, addressing the merits of Plaintiffs claim, the Court will not impose liability (or a heightened duty) on Defendant for any conduct by Roberts.

36

D. Turnover Duties

The Court concludes that Defendant did not violate either the turnover duty or the turnover duty to warn. Plaintiff does not contend otherwise. Plaintiffs theory of this case would impose liability on Defendant for breach of a duty with respect to one of two alleged hazards within the starboard aft peak tank of the Cape Edmont— leaked gas and inadequate ventilation. Because these alleged hazards arose, if at all, after commencement of the repair operation, the turnover duties are inapplicable to the instant case.

See Howlett,

512 U.S. at 98, 114 S.Ct. 2057 (“[T]he ‘turnover duty[ ]’ relates to the condition of the ship upon the commencement of [repair] operations.”). Having heard no evidence or argument to the contrary, the Court concludes that Defendant turned over the Cape Edmont and its equipment to NFSI in a condition permitting NFSI to do its

*1303

work with reasonable safety and did not fail to warn NFSI of any hidden dangers of which it knew or should have known.

See Roach,

857 F. 2d at 1581:

see also Howlett,

512 U.S. at 98-99, 114 S.Ct. 2057. Accordingly, Defendant has not violated the twin turnover duties.

See Roach,

857 F. 2d at 1581;

see also Howlett,

512 U.S. at 98-99, 114 S.Ct. 2057.

E. Level of Shipowner’s Involvement

Because the alleged hazards in this case arose, if at all, after the commencement of repair operations, the Court must analyze the extent of Defendant’s involvement in and control over the repair operations, locations, and equipment, to determine whether Defendant owed Plaintiff the narrow duty to intervene, or the broader active operations duty.

See Lampkin,

823 F. 2d at 1501-02;

see also Davis,

16 F. 3d at 540. To trigger the active operations duty, Defendant “must have substantially controlled or been in charge of (i) the area in which the hazard existed, (ii) the instrumentality which caused the injury, or (iii) the specific activities the [harbor contractor] undertook.”

Davis,

16 F. 3d at 540 (citations omitted). The active operations duty does not require Defendant’s exclusive control; concurrent control is sufficient to invoke the broader duty of care.

See Lampkin,

823 F. 2d at 1502.

Not surprisingly, Defendant argues that it merely owed the limited duty to intervene (which it argues it did not breach), while Plaintiff argues that Defendant owed him the broader active operations duty (arguing that regardless of which duty applied, Defendant breached). However, the parties divergent arguments regarding the applicable duty flow from their differing views as to whether Roberts’s conduct is attributable to the United States (and if so, whether his involvement in the steel renewal was sufficient to trigger the active operations duty). Plaintiffs argument for imposing the active operations duty is premised entirely on Roberts’s conduct. As previously indicated, however, Roberts did not act as an agent of the United States, and his conduct is not attributable to Defendant. Discounting any conduct by Roberts, Plaintiff has shown no basis for imposing the active operations duty on Defendant. Neither chief engineer MacNeil nor any of the members of the Cape Edmont’s crew were involved in the steel renewal project.

37

Moreover, their mere presence aboard the vessel, or periodic progress checks by government representatives, are insufficient to trigger the active operations duty.

See Fontenot,

89 F. 3d at 208 (quoting

Futo,

742 F. 2d at 210);

see also Gonzalez,

588 F. Supp. 2d at 761. Although NFSI used MTL’s fire hoses and occasionally borrowed MTL’s forklift, this equipment in no way malfunctioned or contributed to Plaintiffs accident.

38

There is no indication that any agent or employee of the United States exercised the requisite control to trigger the active operations duty. Accordingly, the Court concludes that the sole duty potentially applicable to Plaintiffs claim is the limited duty to intervene.

F. Duty to Intervene

The duty to intervene is narrow — “the shipowner has a duty to intervene to protect the [harbor workers] only if ‘it becomes aware that the ship or its gear poses a danger to the [harbor workers] and that the [harbor contractor] is failing,

*1304

unreasonably, to protect the [harbor workers]

Lampkin,

823 F. 2d at 1501 (quoting

Clark,

784 F. 2d at 1565);

see also Roach,

857 F. 2d at 1581 (“The shipowner must intervene only when it becomes aware that the ship, its equipment or gear poses a danger ...

and

is also aware that the [harbor contractor] is acting unreasonably to protect the [harbor worker].”). Thus, “constructive knowledge” is insufficient; and Defendant may be held liable only if it had actual knowledge of a hazard and actual knowledge that NFSI was failing, unreasonably, to protect its workers.

See Roach,

857 F. 2d at 1581;

Lampkin,

823 F. 2d at 1501:

see also Casaceli v. Martech Int’l, Inc.,

774 F. 2d 1322, 1328 (5th Cir.1985)

(“Scindia ...

requires the existence of two basic conditions for the imposition of the shipowner’s duty to intervene — the shipowner’s actual knowledge of a danger to a [harbor worker], and the shipowner’s knowledge that the [harbor worker’s employer is not acting reasonably to protect its employees from that danger.”).

In the instant case, the Court concludes Plaintiff has failed to satisfy the basic conditions required for imposing a duty to intervene on Defendant. Although MTL and government representatives boarded the ship and occasionally even entered the starboard aft peak tank, there is no indication that they had actual knowledge of any hazards in the tank.

39

Indeed, the mere presence of a vessel’s crew on the ship is insufficient to prove even constructive knowledge — let alone actual knowledge — of a hazard.

See Stockstill v. Gypsum Transp.,

607 F. 2d 1112, 1117 (5th Cir.1979)

40

(“Mere presence of the vessel’s crew on the ship ... does not prove knowledge of the hazardous condition.”);

see also Marcell v. Sea-Land Serv., Inc.,

883 F. 2d 20, 22 (5th Cir.1989) (“[T]he mere presence of the vessel’s crew on the ship does not prove even constructive knowledge of a hazardous condition.”) (citations omitted).

The Court concludes that no employee or agent of the United States had actual knowledge of any hazard in the starboard aft peak tank. Indeed, the crew members’ denials that they were advised of any such pre-accident hazardous conditions remained uncontroverted at trial. Because Plaintiff failed to produce any evidence of Defendant’s actual knowledge of a hazardous condition — let alone actual knowledge of an unreasonable failure by NFSI to protect Plaintiff from such hazard — the Court concludes that Defendant did not violate a duty to intervene.

See Roach,

857 F. 2d at 1581:

Lampkin,

823 F. 2d at 1501;

Reardon Smith Lines, Ltd,.,

719 F. 2d at 1111-12.

Moreover, even if the Court were to assume that Plaintiff had actual knowledge of a hazardous condition within the

*1305

starboard aft peak tank of the Cape Edmont, Plaintiffs claim would nonetheless be barred by a more fundamental flaw. As the Fifth Circuit Court of Appeals has explained, a court should consider several factors in determining whether a shipowner incurred a duty to intervene, including:

whether the danger was open and obvious; whether the danger was located within the ship or ship’s gear; which party created the danger or used the defective item and was therefore in a better position to correct it; which party owned and controlled the defective item; whether an affirmative act of negligence or acquiescence in the use of the dangerous item occurred; and whether the shipowner assumed any duty with regard to the dangerous item.

Casaceli,

774 F. 2d at 1328 (citing

Futo,

742 F. 2d at 210).

41

Applying these factors, the Fifth Circuit has held that even assuming actual knowledge of a hazard, “absent some relevant assumption of duty by the shipowner,” the duty to intervene does not “extend to an open and obvious transitory condition ... that is created entirely by the independent contractor, is under its control, and relates wholly to its own gear and operations.”

Futo,

742 F. 2d at 216— 18;

see also Fontenot,

89 F. 3d at 209;

Casaceli

774 F. 2d at 1327-28, 1331. Thus, for example, in

Hunter v. Intreprinderea de Explore Flott Maritime Navrom,

868 F. 2d 1386 (5th Cir.1989) (per curiam), the Fifth Circuit affirmed summary judgment that the shipowner violated no duty to intervene even where it assumed “[fjirst, ... that the stevedore operation which injured [plaintiff] ... was a dangerous practice”; “[s]econd, ... that the vessel owner had actual and complete knowledge of these practices and their dangerous character”; and “[t]hird, ... that [the plaintiff] could not avoid the danger.”

See id.

at 1387-88. The court held that the shipowner defendant was entitled to summary judgment because “the dangerous condition had nothing to do with the vessel’s gear; ... the vessel did not own the defective item; ... there was no allegation of an affirmative act of negligence by the vessel; and ... the shipowner had not assumed any duty with regard to the dangerous condition.”

See id.

at 1388.

Although as a “new” Fifth Circuit opinion,

Futo

is not binding precedent in this Circuit, the Court notes that the

Futo

court arrived at its holding by addressing the continuing vitality of two

pre-Scindia

decisions of the former Fifth Circuit—

Brown v. Mitsubishi Shintaku Ginko,

550 F. 2d 331 (5th Cir.1977), and

Gay v. Ocean Transport & Trading, Ltd.,

546 F. 2d 1233 (5th Cir.1977).

See Futo,

742 F. 2d at 211-218. While recognizing that the standards articulated in

Broum

and

Gay

did not “remain entirely intact after

Scindia[.]”

the

Futo

court held that

Broum

and

Gay

nonetheless remained consistent with

Scindia

for the propositions relevant to that case, noting that to the extent of inconsistency,

“Scindia narrowed

the scope of liability allowed under [prior Fifth Circuit] cases.”

See id.

at 216;

Casaceli

774 F. 2d at 1327 (recognizing that

“pre-Scindia

cases in the Fifth Circuit concerning a vessel owner’s duty to intervene” were based on “an analogy to the duties and exceptions to those duties of landowners toward employees of independent contractors under the Restatement (Second) of Torts, §§ 343, 343A” and that

“Scindia

reduced the scope of liability that those cases allowed, but did not negate the basic rationale underlying those decisions”);

see also Scindia,

451

*1306

U.S. at 168 n. 14, 101 S.Ct. 1614 (acknowledging that §§ 343 and 343A of the Restatement, while not providing “sure guidance” as to the duty to intervene, were also “not irrelevant”);

id.

at 180

&

n. 1, 101 S.Ct. 1614 (Powell, J., concurring) (“[T]he Restatement standard adopted by the Second, Fourth, and Fifth Circuits ... is consistent with the plain intent of Congress to impose the primary responsibility on the stevedore. Although it is unnecessary in this case for the Court to adopt this standard fully, I do not understand our opinion to be inconsistent with it.”). Because

Brown

and

Gay

remain binding precedent in this Circuit to the extent they have not been overruled or abrogated,

see Bonner,

661 F. 2d at 1209, this Court reads the

Futo

decision as an accurate discussion — albeit not binding — of the law in this Circuit.

42

In the instant case, to the extent there existed any dangerous condition, lack of ventilation, or appropriate safety protocol to prevent gas leaks, such hazards were not born of the ship or its appurtenances. Rather, any hazardous conditions were created entirely by NFSI and its employees and did not relate to the Cape Edmont’s gear or equipment. Moreover, any hazardous conditions (the leaking torch and pooled gas) were transitory, and actually known to Plaintiff. Accordingly, even if the Court were to assume that there was a hazardous lack of ventilation within the starboard aft peak tank and that Defendant had actual knowledge of that hazard or of the hazardous gas condition within tive starboard aft peak tank, such hazards would not give rise to a duty to intervene in this case.

See Futo,

742 F. 2d at 216-18;

see also Fontenot,

89 F. 3d at 209;

Intreprinderea,

868 F. 2d at 1387-88;

Casaceli,

774 F. 2d at 1327-28.

III. Conclusion

In accordance with the foregoing and based on these findings of fact and conclusions of law, the undersigned concludes that Plaintiff has failed to prove by a preponderance of the evidence that Defendant is liable for the injuries he sustained in the January²⁶, 2006 accident aboard the Cape Edmont. The Clerk of the Court is hereby directed to enter judgment in favor of Defendant and against Plaintiff and Intervenors, and close the file.