Barry v. Shell Oil Company et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
BLANE BARRY, )
)
Plaintiff, ) 2:15-cv-00004 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 173]
SHELL OIL COMPANY, ARCTIA )
OFFSHORE, LTD., SHELL )
OFFSHORE, INC.; and SAFETY )
MANAGEMENT SYSTEMS, LLC, )
)
Defendants. )
)
I. MOTION PRESENTED
At docket 173 defendant Safety Management Systems, LLC (“SMS”) moves for
summary judgment as to the claims brought against it by Plaintiff Blane Barry
“Plaintiff”). The motion is supported by a memorandum at docket 174. Arctia Offshore,
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Ltd. (“Arctia”) responds at docket 177. Plaintiff responds at docket 180. SMS replies at
docket 182. Oral argument was not requested and would not assist the court.
II. BACKGROUND
This matter arises out of a claim for personal injuries sustained by Plaintiff in
August of 2012 while he was working aboard the M/V NORDICA for EPS Cargo
Handlers or EPS Logistics (collectively “EPS”) as a lead rigger. The NORDICA was
owned by defendant Arctia. Arctia supplied the vessel via a Master Time Charter with
defendant Shell Offshore, Inc. (“Shell”) to aid Shell with marine oil field support and
transportation services. Plaintiff alleges in his complaint that he seriously injured his
back and neck while lifting a heavy cable at the request of another crew member on
board the vessel. He seeks damages for lost earnings, lost earning capacity, past and
future medical expenses, and “physical and emotional pain and suffering and loss of
enjoyment of life.”1
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”2 The
materiality requirement ensures that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”3 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
1Doc. 4 at ¶¶ 23, 24, 25.
2Fed. R. Civ. P. 56(a).
3Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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reasonable jury could return a verdict for the nonmoving party.”4 However, summary
judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”5
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.6 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.7 Once the moving party has met this burden, the nonmoving party
must set forth evidence of specific facts showing the existence of a genuine issue for
trial.8 All evidence presented by the non-movant must be believed for purposes of
summary judgment and all justifiable inferences must be drawn in favor of the
non-movant.9 However, the non-moving party may not rest upon mere allegations or
denials but must show that there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.10
4Id.
5Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
6Id. at 323.
7Id. at 323-25.
8Anderson, 477 U.S. at 248-49.
9Id. at 255.
10Id. at 248-49.
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IV. DISCUSSION
Plaintiff alleges that his spinal injuries on board the NORDICA occurred as a
result of helping another crew member, Jens Boel Fischer, lift a crane cable spool on
deck. Fischer was one of the crane technicians aboard the vessel. During his
deposition, Plaintiff testified that he was approached by Fischer to help secure and
clean up items on NORDICA’s deck in advance of impending adverse weather. There
were miscellaneous items to pick up or secure and a large spool of crane cable that
needed to be moved. He admitted at his deposition that only Fischer asked him to help
and that he did not know whether anyone had asked Fischer to complete such a task.11
He admitted that no officers, captains or members of the navigational team were
involved in the deck clean up or directed him to engage in such efforts.12 Plaintiff
agreed to help Fischer clean up, believing that Fischer was an employee of Arctia and
that he had to comply with Fischer’s directions because Fischer was one of the crane
operators while he was a rigger.13 Plaintiff admitted that Fischer did not indicate that he
was Plaintiff’s superior.14 Given these undisputed facts, Plaintiff’s alleged injuries stem
from moving heavy cable as requested and supervised solely by Fischer.
In an order at docket 155, the court granted summary judgment to Arctia.
However, the court denied SMS’ first motion for summary judgment at docket 144. The
court explained its decision to deny SMS ‘ motion as follows:
11Doc. 141-3 at pp. 3.
12Id. at p. 5.
13Id. at p. 7.
14Id.
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Two central factual questions remain in dispute necessitating the presence of
SMS as a Co-Defendant in this case. Joshua W yatt was the safety
representative assigned to the vessel by SMS. His duty and responsibility
regarding safety on the NORDICA and the duty and responsibilities of SMS in
relationship to Shell are issues that remain in dispute.15
The lengthy contract between Shell and SMS is comprised mainly of standard
form provisions used by Shell for an array of different contractors.16 Most pertinent to
the matter at hand the contract (1) expresses Shell’s “‘Goal Zero’ [which ] means the
principle of relentlessly pursuing no harm to people and no significant incidents”17;
(2) obligates SMS to be aware of Goal Zero;18 and (3) requires SMS to provide the
services of an HSE technician upon Shell’s request.19 The goal of no harm to people
and SMS’ obligation to provide the HSE representative is sufficient to establish that
SMS had a duty to persons on the NORDICA to seek to assure their saf ety.
SMS’ employee Joshua Wyatt was the HSE safety technician on the NORDICA.
In that role Wyatt’s duty was to assure that operations on the vessel were conducted
safely. At his deposition, Wyatt testified he was on the vessel to insure that Shell’s
policies and procedures were followed to make sure things were done in a safe
manner.20 Before any activity was undertaken, even basic cleaning such as mopping
or sweeping, there was to be a pre-job safety discussion of the activity and a joint safety
15Docket 144 at p. 4.
16Docket 180-7.
17Id. at p. 4.
18Id, at p. 7.
19Id. at p. 21.
20Deposition of Joshua Wyatt, docket 180-5 at p. 22.
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assessment (“JSA”) prepared.21 Wyatt was to be involved in the JSA process and
would have some oversight to see that the work was done safely.22 Wyatt was
expected to attend daily meetings on the vessel and to participate in round-table
discussions to learn what was going on aboard the ship.23
The NORDICA is an ice breaker and around the time of the accident there was
no ice management to be done. So basically, the vessel was waiting for the time when
ice-breaking would be needed.24 Wyatt testified that there was nothing going on aboard
the NORDICA on the day of Barry’s injury.25 Wyatt said that because there was no
work being done, there was no JSA.26 Hence, in Wyatt’s view he had nothing to review
or oversee.
While it is clear that the NORDICA had no ice management duties to perform in
August of 2012, it cannot accurately be said that there was nothing going on aboard the
vessel. For one thing, sound source devices were being deployed on the seabed in
August.27 Beyond that, there were routine maintenance chores being done daily.28
Also, there is the activity in which Barry was injured when helping Fisher move the
21Id. at pp. 129-30.
22Id. at p. 129.
23Id. at pp. 24-25.
24 Deposition of Tom Ekegren, docket 180-2 at pp. 13-14.
25 Docket 180-5 at pp. 129, 131.
26Id. at p. 131.
27Doc. 180-2 at p. 15.
28Id. at p. 61; Deposition of Barry, docket 180-4 at p. 44.
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crane cable spool.29 Drawing all justifiable inferences from these facts in favor of non-
movant Barry supports the conclusion that W yatt was negligent in the discharge of his
safety responsibilities. SMS is not entitled to summary judgment with respect to
Barry’s claim regarding the circumstances in which he was injured.
Barry’s injuries may have been exacerbated when he was transferred 3 miles to
shore in a fast rescue boat. SMS contends that it is not responsible f or any increased
damage caused by the boat transport. SMS points out that W yatt specifically
recommended against that form of transport and indicated helicopter transfer was
preferable. SMS says Wyatt’s recommendation was rejected by Shell which made the
decision to make the transfer by boat.30 Barry counters by pointing to Wyatt’s
testimony that “everybody from the bottom up and the top down has the authority to
stop the job and it’s their obligation to do so.”31
Wyatt’s statement emphasizes the overriding importance of safety to Shell and
its subcontractors. However, it is not credible to say that if Shell itself made a decision
after hearing contrary advice that the giver of that contrary advice could stop the work.
With respect to any additional injury caused by the transport to shore on a fast rescue
boat, there is no credible evidence that anyone but Shell made that decision. SMS is
entitled to summary judgment on this point.
29Docket 141-3 at pp. 1-8.
30Docket 180-5 at pp. 66-76.
31Id. at p. 33.
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In its response Arctia asserts that after the court awarded summary judgment on
Barry’s claims against Arctic, Arctia’s cross claims against SMS became moot, and so
the court ought not to consider the motion at docket 173.32 The court has determined
that it should consider the motion at docket 173, for it narrows the issues for trial
between Barry and SMS. In this circumstance, Arctia asks the court to consider the
arguments in its opposition to SMS’ first summary judgment motion.33 Those
arguments are found at docket 129. They are very much like Barry’s arguments in his
response to the pending motion. Nothing in docket 129 causes the court to alter the
analysis set out above.
V. CONCLUSION
For the reasons above the motion at docket 173 is DENIED as to the claim that
SMS is responsible for Barry’s initial injury, but GRANTED as to the claim that SMS is
responsible for any additional injury caused by the transport to shore by boat.
DATED this 25th day of September 2018.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
32Doc. 177 at p. 4.
33Id.
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