ALVIN B. RUBIN, Circuit Judge:
The district court rendered summary judgment rejecting a harborworker's claim under 33 U.S.C. § 905(b) and general maritime law against a vessel aboard which he was injured. It did so because: (1) the harborworker's accident resulted from an obvious danger, and (2) that danger was created by circumstances about which the vessel neither knew nor should have known. The injured harborworker had ample opportunity to produce evidence sufficient to create a genuine issue of material fact concerning the "negligence of [the] vessel" required for recovery under § 905(b), but he failed either to do so or to invoke Federal Rule of Civil Procedure 56(f) to extend the time available for discovery prior to responding to the defendant's motion for summary judgment. Therefore, we affirm.
Because this is an appeal from summary judgment, we accept the version of the facts set forth in opposition to the motion for summary judgment insofar as it is supported by at least some evidence and is not purely speculative or argumentative.
Richard Teply was employed by Reeled Tubing, Inc. He was assigned, together with Tony Cipriano as operator and two other Reeled Tubing employees, to work on a Mobil Oil Exploration and Producing Southeast, Inc. (MOEPSI) oil well that was on land but accessible only by barge. MOEPSI furnished the barge transportation for Reeled Tubing's equipment and employees.
On February 4, 1986, Teply and his three co-workers drove a Reeled Tubing truck to the MOEPSI dock, arriving in the early morning during a pouring rain. MOEPSI employees required Cipriano to load the Reeled Tubing truck far to one side of the barge in order to leave room for other equipment. The barge was then moved to the well with the Reeled Tubing employees and equipment aboard. The MOEPSI employees traveled on another vessel.
Reeled Tubing's machinery was operated from a console that was reached by a ladder. The ladder was in two parts, a top section permanently affixed to the console, and a portable section that was designed to reach from the last step of the top section to the ground or deck. Because of the Reeled Tubing unit's location on the barge, however, the ladder when attached hung over the edge of the barge. There is no evidence that MOEPSI employees knew of this problem.
After the barge had arrived at the well site, a MOEPSI employee instructed the Reeled Tubing crew to rig up as much as possible while they were waiting for other work to be done on the well. In order to rig up, Teply climbed the ladder into the console to check the pressure gauges. He then began to climb down, but, while one of his feet was on the first step of the fixed ladder and he was bringing the other foot down, he slipped and fell onto a pipe that was welded vertically to the edge of the barge. He suffered serious injuries.
At his deposition, Teply testified that the Reeled Tubing unit was hydraulic, oil had leaked on the fixed ladder and its rails, and the steps were slippery. The ladder "was wet," he stated, "[t]here was oil all over the side of the unit and everything. It was slippery." The oil made it difficult to climb the ladder and Teply knew he had to be careful. However, Teply adduced no evidence that any MOEPSI employee knew of the danger, and MOEPSI adduced evidence that its employees were not aware of it. Natural Union Fire Insurance Company and Reeled Tubing have intervened in this action to assert a subrogation claim for Teply's compensation benefits.
Teply asserts that MOEPSI was responsible for his injury in at least one of three ways: (1) it was responsible for Teply's slip from the ladder; (2) it was responsible for the problem with the bottom part of the ladder, which, Teply asserts, caused Reeled Tubing employees not to attach it and thus precluded him from grabbing it to break his fall, and (3) it was responsible for the dangerous position of the vertical pipe onto which Teply fell. Teply contends that summary judgment was improper because there was evidence from which the trier of fact might infer the company's negligence.
Section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b), does not impose liability without fault on vessel owners. The statute is limited by its terms to negligence and expressly negates liability for unseaworthiness, which is a form of liability without fault. The Supreme Court interpreted § 905(b) as it applies to stevedores, but in principle as it applies to other harborworkers who work on board vessels as well, in Scindia Steam Navigation Company v. De Los Santos.
Undisputed facts preclude Teply's recovery under § 905(b). First, Teply testified that he slipped because of oil and water on the fixed ladder's steps, a danger caused wholly by Reeled Tubing's rather than MOEPSI's equipment. Furthermore, Teply was aware of the danger; indeed, given the uncontested fact that MOEPSI's employees were not present on the barge and did not supervise Teply's work closely, MOEPSI could have known of the danger only if it was so obvious that Teply could not have failed to recognize it. Ship owners are not liable for obvious dangers that injure contractors aboard their vessels unless the contractors, in order to avoid the danger, would be forced either to leave the job or to face penalties for causing delay.
Second, Teply claims that the absence of the bottom portion of the ladder precluded him from breaking his fall. However, the absence of the ladder plainly was not a hidden danger for which MOEPSI could be held liable under § 905(b). Rather, the danger was simultaneously so obvious to Teply and his co-workers as to preclude recovery, and unknown to MOEPSI's employees, who, the uncontradicted evidence demonstrates, were unaware both of the absence of the ladder and of its significance.
Third, Teply claims that the vertical pipe on the barge exacerbated his injuries, and that MOEPSI was responsible for the barge's dangerous condition. However, the pipe became dangerous only because of its proximity to the Reeled Tubing equipment, and again, any danger must have been obvious to Teply. Furthermore, there is no evidence that MOEPSI's employees either knew or should have known of the danger, a danger that could have been predicted only on the basis of considerable knowledge about Reeled Tubing's method of operation. Consequently, Teply has failed to raise a genuine issue of material fact that could demonstrate MOEPSI's negligence.
Teply cites a number of cases in which the vessel owner was held liable for injuries to longshoremen and harborworkers or in which summary judgment was denied.
Although Teply complains that he has not yet taken the deposition of one of the MOEPSI employees, he made no effort to take the deposition for more than a year. He filed suit on February 4, 1987, and in September the district court ordered discovery to be completed by March 21, 1988. The motion for summary judgment was filed on January 20, 1988, and although the intervenors were denied additional time to respond under Fed.R.Civ.P. 56(f), Teply failed even to request further time to depose the MOEPSI employee. Under these circumstances, Teply's failure to depose the MOEPSI employee does not preclude entry of summary judgment against him.
In Celotex Corp. v. Catrett,
The district court properly put a quick end to this litigation, saving all of the parties the labor and expense of a trial that would have been fruitless. Accordingly, its judgment is AFFIRMED.