Thе issue in this case is whether a time charterer may be liable to a passenger under section 5(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 905(b), when (1) the time charterer has actual or constructive knowledge that its passenger’s likely means of debarkation may be hazardous due to a latent dangerous condition at the point of dеbarkation, (2) the time charterer has no control over the condition in its capacity as a time charterer, and (3) the condition injures the debarking passenger. The district court granted defendant’s motion for summary judgment and held that section 5(b) does not impose a duty of care on time charterers in this situation. We agree and affirm.
Appellant Maсk J. Moore (“Moore”) was a production worker employed by ODECO Oil and Gas Company (“ODECO”). ODE-CO and Phillips Petroleum Company owned an unmanned fixed platform, Well Jacket # 33, locatеd on the Outer Continental Shelf off the coast of Louisiana. ODECO entered into a time-charter agreement for a vessel, the M/V C-DICTATOR, with the vessel owner, Co-Mar Offshore Marine Corpоration (“Co-Mar”). ODECO was therefore both Moore’s employer and the time charterer. ODECO directed the M/V C-DICTATOR to transport Moore to Well Jacket # 33 so that Moore could сheck safety systems on the platform. In order to get from the vessel to the platform, Moore
ODECO paid Moore workers’ compensation under LHWCA. Moore sued ODECO under sectiоn 5(b) of the LHWCA and alleged that ODECO knew that the swing rope was rotten. Although ODECO was his employer, Moore claims that ODECO owed him a duty of care under section 5(b) as time charterer of the M/V C-DICTATOR and that ODECO breached its duty by directing the vessel to transport Moore to a platform with a rope swing that ODECO knew was dangerous.
Because Well Jacket # 33 lies on the Outer Continental Shelf, the LHWCA applies to appellant’s claim through the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331
et seq.
Section 5(b) of the LHWCA provides: "In the event of injury to a person covered under this chaptеr caused by the negligence of a vessel, then such person ... may bring an action against such vessel as a third party_” 33 U.S.C. § 905(b). This Circuit has held that an injured worker has standing to bring a section 5(b) aсtion against a time charterer who is also the worker’s employer.
Kerr-McGee Corp. v. Maju Marine Services, Inc.,
Standing, of course, is only the initial issue. In order to survive summary judgment, appellant must demonstrate that ODECO, as time chаrterer, owed him a duty of care under section 5(b). As we have previously noted, “a time-charterer cannot be liable under section 5(b) unless it is negligent, and it is a fundamental preсept of tort law that there can be no negligence unless there is first a duty.” Id. at 1340.
When the defendant is both the time charterer and the employer, section 5(b) only subjects the defendаnt to negligence liability in its capacity as a time charterer. See id. at 1339. The fact that the defendant is also the plaintiff’s employer means that the defendant owes the plаintiff duties both as an employer and as a time charterer. The two duties are separately owed and do not affect each other. Thus, any duty that the defendant owes to the plaintiff as a time charterer and thus as a vessel under § 905(b) must arise out of the relationship between a time charterer and its passenger. See id. The relevant inquiry in this case cоncerns the scope of ODECO’s separate duties as the platform owner-employer and as time charterer.
The LHWCA provides that an employer, whether negligent or without fault, has a duty to pay workers’ compensation to a covered employee. See 33 U.S.C. § 903. When the LHWCA applies, workers' compensation is an employee’s exclusive remedy against the employer in its capacity as an employer. See 33 U.S.C. § 905(a). Thus, regardless of ODECO’s negligence as platform owner and operator, Moore’s exclusive rеmedy against ODECO as platform owner-employer is workers’ compensation under the LHWCA. Moore concedes this much, but he argues that ODECO, as time charterer, breached duties owed to him as a passenger on the time-chartered vessel.
As to a time charterer’s duties, the law of this Circuit is clear that “a time-charterer is not liable under section 5(b) unless the cause of the harm is within the charterer's traditional sphere of control and responsibility or has been transferred thereto by the clear language of the charter agreement.”
Kerr-McGee,
Under the traditional time-charter agreement, the time charterer directs the vessel’s commercial activities. It may designate the cargo to be carried and determine the vessel’s routes and destinations.
See
G. Gilmore & C. Black,
The Law of Admiralty
§ 4-1 at 194 (2d ed. 1975). We
The time charterer’s duties are different from the vessel owner’s duties. The vessel owner remains responsible for the seaworthiness of the vessel,
e.g., Nichimen Co. v. M.V. FARLAND,
The foregoing discussion demonstrates that the traditional allocation of duties between employer/platform owner, time charterer, and vessel owner places liability for harm on the party that is most directly responsible for the dangerous condition that caused the harm. Appellant argues that ODECO аs time charterer was responsible for the hazardous egress from the vessel to the platform because ODECO sent the boat to the fixed platform where the rope was located. We disagree. The facts in this case indicate that either ODE-CO as platform owner-employer, Co-Mar as vessel owner, or both were responsible for Moorе’s egress from the vessel to the fixed platform. As the platform owner, ODECO as employer controlled the rope’s physical condition and knew or could be charged with knowlеdge that the rope was not safe for the purpose intended. As the vessel owner, Co-Mar was responsible for access to and from its boat. The rope swing is an artificiаl means of ingress and egress to and from the fixed platform. The responsibility for the hazards it presents falls either on the platform owner-employer or on the vessel owner or both but, in any event, outside of the traditional duties of a time charterer.
We have never held that a time charterer owes a passenger a duty to take precautiоns to avoid potentially hazardous means of ingress and egress when the vessel owner, the passenger’s employer, or another party controlled the means of ingress аnd egress. We decline to expand traditional maritime duties under section 5(b) of the LHWCA. As we recently explained in Kerr-McGee:
[The] duties and responsibilities of the time-charterer are not еnhanced under section 5(b) because the plaintiff is an employee of the defendant injured in the scope of her employment.... Nor are such duties and responsibilities оf the time-charterer, and its consequent potential negligence, otherwise any greater in the context of a section 5(b) suit than in other contexts, for as we have noted section 5(b) did not expand negligence liability.
Kerr-McGee,
AFFIRMED.