E. GRADY JOLLY, Circuit Judge:
Trinidad Pimental is a longshoreman. He brought this suit against the defendant vessel owner for damages arising from an injury he sustained while unloading the vessel M/V Fort Nanaimo. At the close of the defendant's evidence, the district court took the case away from the jury and granted a directed verdict in favor of the vessel owner.
Pimental appeals. He argues that he presented sufficient evidence from which a reasonable jury could find the vessel owner liable. We hold that the evidence does not support a finding of liability. We therefore affirm the judgment of the district court.
Trinidad Pimental was employed by the I.T.O. Corporation, the stevedore, to unload
Pimental presented evidence that there were oil and grease in the crane housing and that the lighting in the housing was inadequate. Two crane operators who operated the crane earlier on the day of the accident and the day before the accident testified that the oil and grease was immediately obvious to them. These crane operators reported the condition to the gang foreman and the walking foreman, who were both employed by the stevedore. Plaintiff offered no proof that these conditions were reported to the vessel crew.
During the cargo operations, the stevedore had absorbent material alongside the dock that was designed to "dry up" oil spills. After the accident, the stevedore, unsatisfied with the vessel's clean-up job, used the material to clean up the oil in the crane housing. The material was easily and quickly applied.
On appeal, Pimental argues that the district court erred in granting the vessel owner's motion for a directed verdict because he presented evidence from which a reasonable jury could find it liable under Section 5(b) of the Longshore and Harbor Workers' Compensation Act.
Section 5(b) of the Longshore and Harbor Workers' Compensation Act provides in pertinent part:
33 U.S.C. § 905(b). In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court articulated the scope of a vessel's duty under § 5(b). "The basic principle which emerges from Scindia is that the primary responsibility for the safety of the longshoremen rests upon the stevedore." Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir.1990). Despite this broad statement of vessel immunity, vessel liability may arise:
Id.; Masinter v. Tenneco Oil Co., 867 F.2d 892, 897 (5th Cir.1989). Thus, the district court erred if Pimental presented sufficient
Pimental argues that the defendant failed to turn over a safe vessel because he failed to warn the stevedore that there was oil and grease on the passageway in the crane housing. In Scindia, the Supreme Court held that a vessel has a duty:
Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. Generally speaking, the defendant has not breached its duty to turn over a safe vessel if the defect causing the injury is open and obvious and one that the longshoreman should have seen. Polizzi v. M/V Zephyros II Monrovia, 860 F.2d 147, 149 (5th Cir.1988); Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67, 71 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988). However, if a longshoreman's only alternatives when facing an open and obvious hazard are unduly impracticable or time-consuming, then the vessel owner may still be held liable. Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir.1990); Morris, 832 F.2d at 71; Teply v. Mobil Oil Corp., 859 F.2d 375, 378 (5th Cir.1988).
In the instant case, the two crane operators who operated the crane the day of the accident and the day before testified that the oil and grease on the passageway were immediately obvious to them. Evidence was also presented that during the unloading, the stevedore had a product on the dock that could quickly and easily be used to clean up the oil and grease. Based on the evidence presented, a reasonable jury could find only that the hazard was open and obvious and that it could have been easily remedied by Pimental. Therefore, Pimental did not present evidence that supports liability under the first exception.
Pimental also argues that the defendant is liable under the second exception that imposes liability for an injury caused by a hazard under the control of the defendant. The vessel has a duty to "exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation." Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. Liability based on this exception is not relieved when the hazard is open and obvious. Masinter, 867 F.2d at 897. If, however, a vessel has relinquished control over an area to the stevedore, then it is the primary responsibility of the stevedore to remedy a hazard in that area. Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505, 512-513 (5th Cir.1984).
As we have said, Pimental fell on the landing in the housing for the Number 3 crane. Apparently, this was the only way to get to the crane controls. The crane was only being operated by employees of the stevedore. The crane was necessary to unload the cargo being handled by the stevedore. Furthermore, the accident took place in a part in the crane housing that
Finally, Pimental argues that the defendant is liable under the third exception that imposes on the vessel a duty to intervene. The Supreme Court discussed this duty to intervene in Scindia:
Scindia, 451 U.S. at 175-176, 101 S.Ct. at 1626-1627. Thus, a vessel has a duty to intervene when it has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of "obviously improvident" judgment, has failed to remedy it. Randolph, 896 F.2d at 970; Woods v. Sammisa Co., 873 F.2d 842, 854 (5th Cir.1989), cert. denied, 493 U.S. 1050, 110 S.Ct. 853, 107 L.Ed.2d 847 (1990); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1037 (5th Cir.1983).
Pimental argues that the defendant knew about the oil and grease. He argues that somebody cleaned the windows in the crane housing during lunch, that it must have been the vessel's crew, and that therefore the vessel must have been aware of the oil and grease.
Pimental further argues that the oil and grease were present when the defendant turned over the ship, and that therefore, the defendant must be deemed to have been aware of it.
Even so, however, there was not sufficient evidence to support the conclusion that the vessel had "actual knowledge that it could not rely on the stevedore to protect its employees and that if unremedied the condition posed a substantial risk of danger." Randolph, 896 F.2d at 971. See also Woods, 873 F.2d at 852. Nor was there evidence that the defendant had actual knowledge that the stevedore had not cleaned up the oil. Thus, there was not sufficient evidence to support the defendant's liability under the third exception.
In conclusion, we hold that there was insufficient evidence to support a finding of liability based on any of the three exceptions to the general rule that a stevedore is responsible for the safety of the longshoremen. The vessel did not fail to warn the stevedore of any hidden defects because the oil and grease were open and obvious. Furthermore, the plaintiff did have an alternative that was not unduly impracticable or time-consuming — he could have quickly applied the material to absorb the oil. Therefore, the defendant could not be held liable under the first exception. The crane housing landing was an area that was turned over to the stevedore, and therefore the defendant had no duty to remedy hazards under the second exception. Finally, Pimental offered no proof that the defendant had actual knowledge that the stevedore had not remedied the oil and grease. Thus, the defendant had no duty to intervene. Therefore, the order of the district court granting the defendant a directed verdict is