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examining the contract provision exception in Scindia , and determining that it only applies if the contract provision specifically involves a duty to discover dangerous conditions related to longshoremen
Summary of this case from Jones v. Sanko S.S. Co.Opinion
Civil Action No. 02-6722.
August 1, 2004
MEMORANDUM AND ORDER
Plaintiffs Stephen and Donna Mullen seek recovery under the 1972 Amendments to the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b), for injuries suffered by Stephen Mullen in the course of his employment as a longshoreman. Now before the Court are: (1) the joint Motion for Summary Judgment of Defendants Alicante Carrier Shipping Corporation ("Alicante") and Del Monte Fresh Produce International, Inc. ("Del Monte International") and (2) the Motion for Summary Judgment of Defendant Del Monte Fresh Produce N.A., Inc. ("Del Monte N.A."). For the reasons that follow, the Motion of Alicante and Del Monte International will be granted, but the Court will reserve judgment on the Motion of Del Monte N.A.
I. Background
The following facts are undisputed. At all material times, Alicante was the owner of the M/V Alicante Carrier, a four-hatch refrigerated cargo vessel that regularly called at the Broadway No. 5 Terminal in Camden, New Jersey. Motion for Summary Judgment of Alicante and Del Monte International ("Motion I") at ¶ 5. The M/V Alicante Carrier was time chartered by Del Monte International. Id. at ¶ 6. Del Monte N.A. operated the No. 5 Terminal in Camden in connection with its fruit distribution business. Motion for Summary Judgment of Del Monte N.A. ("Motion II") at p. 3. Del Monte N.A. had a services contract with Delaware River Stevedores, Inc. ("DRS"), an independent stevedoring contractor responsible for removing cargo from the calling vessel into the refrigerated warehouse located at Terminal 5. Id.
Plaintiff Stephen Mullen ("Plaintiff") was a longshoreman for over 20 years. Id. at p. 4. At the time of his accident on April 10, 2001, he was employed by DRS and was assigned to the No. 5 Terminal. Pl. Statement of Facts at ¶ 3. Plaintiff worked at that facility for at least five years prior to his accident, holding the position of hatch foreman during the last three.Id. at ¶ 4. On the day of his accident, Plaintiff was performing "doorwayman duties." One aspect of this job entailed removing cargo slings from fruit pallets after they had been lowered, via shipboard crane, to the wharf. The doorwayman would disengage the cargo slings from the pallets so that the pallets could be moved via forklift to the adjacent refrigerator warehouse. Deposition of Stephen Mullen ("Mullen Dep.") at 39-43, 50, 53, 88-93.
On the day in question, Plaintiff was removing slings from pallets of bananas that had been loaded aboard the M/V Alicante Carrier by an independent Colombian stevedore while the ship was at anchor in the port of Turbo, Colombia. Id. at pp. 28-29, 62-63. The Colombian stevedore applied two cargo slings to each pallet before the pallets were loaded on the ship. This activity took place aboard three covered barges alongside the Alicante Carrier. Deposition of Gladys Restrepo at 62-67; Deposition of Chief Officer Vytautus Kucinskas at 25, 67-68. The slings were owned by Del Monte N.A. See purchase order, Exhibit 7 to Motion I.
Gladys Restrepo is the General Manager of Commercializadora International Conserba S.A. ("Conserba"), formerly a party to this litigation. Conserba is a Colombian company owned in part by two Del Monte companies, which acts as a contact between Del Monte and the independent fruit growers as well as the companies that sell their fruit directly to Del Monte. Conserba was dismissed from the case by agreement of the parties.
When the ship arrived at Camden, the port of discharge, DRS longshoremen attached their own six-hook spreader to the ship's crane, which allowed them to unload groups of six pallets, referred to as "six-packs," simultaneously. Mullen Dep. at 72-75, 90, 227-228. Once the DRS spreader was fitted to the ship's crane, the DRS crane operator lowered the spreader into the cargo hold, where DRS longshoremen attached the two slings on each pallet to one of the six spreader hooks. The crane operator then hoisted the six-pack out of the cargo hold and lowered it onto the adjacent pier. Id. at 103-109.
Once the six-pack was on the pier, Plaintiff and two other longshoremen were responsible for detaching the slings from the spreader hooks, removing the slings from each palletized unit, and removing the walking boards. Id. at 90. Plaintiff was injured when he attempted to remove two slings from a palletized unit of bananas that was resting on the pier surface. According to Plaintiff, as he was walking backwards away from the pallet with his hands at his sides, holding one sling in his right hand and one sling in his left hand, the sling in his right hand got stuck. Id. at 112-116, 209-225. He claims that he felt a pop in his right shoulder, dropped the slings, and then walked up to the pallet to remove the walking board positioned on top of the pallet. Id. at 120-121. Plaintiff testified that it was not until he reached up with his right arm above his shoulder to remove the walking board that he felt pain. Id. He claims that the sling in his right hand got caught as he was pulling it out because there was a knot in it that was not visible before the accident. Complaint at ¶ 15. Plaintiff admits that on at least 100 prior occasions, he has encountered slings getting stuck or caught while pulling them from a pre-slung palletized unit of bananas. Mullen Dep. at 114-117.
Walking boards are 3-foot by 3-foot pieces of plywood placed on top of the units by the Colombian stevedore to protect the fruit.
Plaintiff reported the incident to his DRS supervisor, Joe Piazza, and then sought treatment. He underwent shoulder surgery in the summer of 2001 and reports that he still suffers pain in his shoulder and has a limited range of motion.
II. Legal Standard
In deciding a motion for summary judgment pursuant to Fed.R.Civ.P. 56, the test is "whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine the evidence in the light most favorable to the non-moving party and resolve all reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, "there can be `no genuine issue as to any material fact' . . . [where the non-moving party's] complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because the case involves a cause of action arising under federal law, and also under 28 U.S.C. § 1332, because the parties are diverse and the amount in controversy exceeds $75,000.
III. Claims Against Alicante and Del Monte International
Plaintiff's claims against Defendants Alicante and Del Monte International, the ship's owner and time charterer, respectively, are brought under § 905(b) of the LHWCA. That Section provides, in pertinent part:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.33 U.S.C. § 905(b).
In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) and Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994), the Supreme Court set forth the negligence standard that applies to § 905(b) cases. Shipowners owe three general duties to longshoremen: (1) the "turnover duty," which relates to the condition of the ship upon commencement of stevedoring operations and includes a corollary duty to warn; (2) the "active operations duty," which provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the "active control of the vessel;" and (3) the "duty to intervene," which concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. Howlett, 512 U.S. at 98, citing Scindia, 451 U.S. at 167-68. See also Hill v. NSB Niederelbe Schiffahrtsges.MBH Co., 2003 WL 23162396, *3 (E.D. Pa. Dec. 30, 2003).
Plaintiff alleges breach only of the turnover duty. The Supreme Court has explained the turnover duty as follows:
A vessel must `exercise ordinary care under the circumstances' to turn over the ship and its equipment and appliances `in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care' to carry on cargo operations `with reasonable safety to person and property.'Howlett, 512 U.S. at 98, quoting Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n. 18 (1969). In some instances, the turnover duty carries with it a duty to warn:
A corollary to the turnover duty requires the vessel to warn the stevedore `of any hazards on the ship or with respect to its equipment,' so long as the hazards `are known to the vessel or should be known to it in the exercise of reasonable care,' and `would likely be encountered by the stevedore in the course of his cargo operations[,] are not known by the stevedore[,] and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.'
Id. at 98-99, quoting Federal Marine Terminals, 394 U.S. at 416 n. 18.
The turnover duty is narrow when the alleged defect occurs in the cargo stow or cargo area rather than in the ship's gear, equipment, tools or work space. "[T]he shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore." Scindia, 451 U.S. at 172. Further, "the shipowner has no duty to supervise or inspect cargo loaded or unloaded by stevedores and therefore may not be held liable for injuries arising out of the stevedore's failure to perform his job properly." Derr v. Kawasaki Kisen K.K., 835 F.2d 490, 493 (3d Cir. 1987). As to defects in cargo operations, the turnover duty "attaches only to latent hazards, defined as hazards that are not known to the stevedore and that would be neither obvious to nor anticipated by a skilled stevedore in the competent performance of his work . . . The duty encompasses only those hazards that are known to the vessel or should be known to it in the exercise of reasonable care." Howlett, 512 U.S. at 105.
To succeed on a claim under the turnover duty, Plaintiff must show that: (1) the accident was caused by a defect in the vessel or its equipment or a latent defect in the cargo area; (2) the vessel owner knew about the hazard or should have discovered it before the vessel was turned over to the stevedore; (3) the hazard was one likely to be encountered by the stevedoring company in the course of its operations; and (4) the hazard was one that would not be obvious to or anticipated by a reasonably competent stevedore. Hill, 2003 WL 23162396 at * 5.
A. Existence of Defect
Plaintiff argues that the cargo sling became stuck due to the presence of a knot that he never saw. He did not look at the sling in question following his accident, and he admits that he does not know where the sling became caught. Mullen Dep. at 122, 136. Plaintiff's evidence of the existence of a knot comes from the testimony of Louis Meyer and Carl Pacitti, fellow longshoremen who were working alongside him on the day in question. Meyer testified at deposition that immediately after the accident, he removed the sling that had become stuck and saw a knot. Meyer Dep. at 23-24. Defendants argue that later in his deposition, Meyer said that he could not remember whether he had pulled the sling in question, and that he did not see the knot when the sling was still attached to the pallet, but rather saw the knot only after the sling had already been removed from the pallet. Meyer Dep. at 44. However, Carl Pacitti, Meyer's partner, also testified to having seen a knot in the sling that caused Plaintiff's injury. Pacitti Dep. at 17. This testimony is sufficient to create a genuine issue of material fact regarding the existence of a knot.
Defendants also argue that Pacitti later expressed reservations about whether the sling in which he saw a knot was the sling that injured Mullen. Having reviewed the testimony, however, the Court concludes that none of Pacitti's later statements contradicts his assertion that he knew the sling he saw on the ground was the one that injured Mullen. See Pacitti Dep. at 17, 33-34.
B. Location of Defect
The next issue that must be determined is whether the cargo slings were part of the ship's equipment or were merely part of the cargo operation. Plaintiff submits, "Although legal title rested with another Del Monte company, the slings were [the] ship's equipment because they stayed on the ship when they were not in use and the ship's crew inspected and maintained them and gave them to the loading stevedore." Pl. Opp. to Motion I at 11. Defendants respond that cargo-handling materials do not become the ship's gear merely because they make their way onto the ship as part of the cargo operation, or because the cargo slings are returned to the loading stevedore by the vessel's personnel.
The distinction between ship's gear and cargo stow has been addressed in a number of cases. A defective winch being used by a stevedore to unload cargo is part of the ship's gear. Scindia, 451 U.S. at 159. Likewise, the lashing gear used by longshoremen in the course of unloading cargo is part of the ship's gear.Hill, 2003 WL 23162396 at *6. In those cases, the items in question were apparatuses that were part of the ship. On the other hand, a coil that is part of the stowage being unloaded was held to be part of the cargo operations. Derr, 835 F.2d at 496. Similarly, plastic provided by the ship and laid under the cargo is stowage. Howlett, 512 U.S. at 105-106. Electrical cords attached to storage containers that had been improperly tied by the ship's crew also were found to be part of the cargo. Mankus v. Swan Reefer I, 2003 U.S. Dist. LEXIS 10263, *16-17 (E.D. Pa. 2003).
Of the cases cited above regarding the distinction between a ship's equipment and stowage, the facts of this case most closely resemble those of Howlett. In that case, the vessel had supplied the plastic to the loading foreign stevedore, who improperly placed it under the cargo bags. The Court found that the plastic was considered part of the cargo stow, not the ship's equipment. Here, there is a dispute as to whether the vessel truly supplied the Colombian stevedore with the cargo slings, as they were owned by the pier operator, or just transported them. However, even crediting Plaintiff's assertion that the ship provided the cargo slings to the Colombian stevedore, the slings should be considered part of the cargo hold.
C. Obviousness of Defect
Because the shipowner is liable only as to latent defects in the cargo area, the next question is whether the presence of a knot should have been obvious to or anticipated by the unloading stevedore. Plaintiff's Complaint states that the knot or knots "were not visible upon inspection of the pre-slung pallets because they were in between two loaded pallets which were being discharged simultaneously from the Alicante Carrier." Compl. at ¶ 15. Defendants have produced no evidence to suggest that the knot was or should have been obvious to the stevedore.
With respect to whether the stevedore should have anticipated knots in the slings, the evidence overwhelmingly suggests that stevedores had encountered and safely dealt with knots in the past. The process of unloading and removing slings from pre-slung units of bananas was something that Plaintiff and his gang members had done on a regular basis for a number of years prior to his accident. Mullen Dep. at 38-39; Meyer Dep. at 26; Pacitti Dep. at 15. Plaintiff, his DRS supervisor, and several other DRS stevedores testified that the slings on pre-slung cargo sometimes got stuck on or between pallets during removal, and that they had a method they routinely employed to removed the stuck slings. Mullen Dep. at 115-116, 219-220; Piazza Dep. at 39-41, 45, 56-57; Collins Dep. at 21-23; 32-33. Piazza testified that this happened "quite a bit." Collins stated that this is something doorwaymen "always encounter." Plaintiff has admitted that on at least 100 prior occasions during the five years he worked in Camden, he encountered slings getting stuck while pulling them from pre-slung pallets of bananas. He estimated that one-third of the time, the slings became stuck due to knots; one-third of the time because of broken pallets; and one-third of the time due to slings getting caught between pallets. Mullen Dep. at 114-117; 192-194; 219-220. Further, he testified that he and his fellow longshoremen could safely deal with a stuck sling by using a forklift to disentangle it. Id. at 219-220. Several other DRS stevedores testified to the same effect. See Pacitti Dep. at 24-25; Piazza Dep. at 39-41; Collins Dep. at 23. In addition, Plaintiff's supervisor, Joe Piazza, testified that the stevedores should gently test pull the slings before yanking on them. Piazza Dep. at 41. He also noted that this type of incident could reoccur, as slings have a tendency to become caught on the pallets. Id. at 39.
William Collins is the Ship Boss, the highest ranking official employed at Pier 5 by independent stevedore DRS.
Plaintiff's response to this multitude of evidence is weak. With respect to his admission that he had encountered stuck slings on at least 100 prior occasions, Plaintiff states that thousands of pre-slung pallets were discharged each year, and that "100 times out of thousands of pallets is not such a large number as to alert longshoremen to alter their routine and thereby slow down the operation because of a concern about a sling getting caught up due to a knot." Pl. Opp. to Motion I at 7. Plaintiff also testified that there was nothing the stevedores could do to protect themselves against the knots, but he fails to reconcile that statement with his own testimony regarding the use of a forklift, and the testimony of his supervisor that the longshoremen should pull gently at first.
Plaintiff also attempts to distinguish between the situation where a sling becomes stuck due to a knot as opposed to being caught on a broken pallet or between pallets. He provided the Court with one longshoreman's testimony to the effect that when the slings get caught on or between the pallets, they do not move at all, whereas when there is a knot, the slings initially slide out, but then become jammed. Pacitti Dep. at 19, 24. Even crediting this testimony, the Court nonetheless concludes that the stevedore should have anticipated that there might be knots in the slings. Every longshoreman who provided deposition testimony stated that he had previously encountered knots in slings. See Pacitti Dep. at 18, 26 (testifying that he had definitely seen knots in slings before); Meyer Dep. at 22 (stating that cargo arriving from Colombia has knots in the slings); Holt Dep. at 19 (noting that he saw knotted slings and, in fact, had encountered one just a week before his testimony); Lamb Dep. at 12, 18-19 (testifying that it was "common knowledge" that there was a problem with knotted slings; that with the discharge of each hatch, the longshoremen might encounter half a dozen knotted slings; and that it was difficult to know when there was a knot because some of the slings would be knotted and some would not). In addition, Plaintiff testified that he had complained to Ernie Casper, Del Monte N.A.'s Port Manager, about knots in the cargo slings. Mullen Dep. at 131.
Plaintiff argues at length that the Ship's officers could have prevented the knots from being put in the slings by calling their contacts in Colombia or supervising the loading of the cargo on the barges. This argument misses the mark. Under § 905(b), the shipowner does not have a duty to correct circumstances that should be anticipated by a reasonably competent stevedore, notwithstanding the ease with which it could do so. See Howlett, 512 U.S. at 104 (holding that shipowners "are entitled to assume that a competent stevedore will be able to identify and cope with defects in the stow.").
In light of the evidence described above, it is clear that all of the DRS longshoremen, including Plaintiff, had prior experience with stuck slings generally and knots in particular, and that knots in the slings appeared with regularity. Even viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the Court is constrained to find that knots in slings were the type of defect that a competent stevedore should have anticipated. Accordingly, the Court will grant summary judgment for Defendants Alicante and Del Monte International.
D. Claims Under the Time Charter
The purpose of the 1972 Amendments to the LHWCA was to "shift more of the responsibility for compensating injured longshoremen to the party best able to prevent injuries: the stevedore-employer." Howlett, 512 U.S. at 97. Thus, theScindia duties owed by a vessel to a longshoreman are narrowly circumscribed. However, the Supreme Court carved out an exception to these narrow statutory duties. A shipowner has no duty to supervise stevedoring operations "absent contract provision, positive law, or custom to the contrary." 451 U.S. at 172. A shipowner may, therefore, assume a heightened duty by operation of contract.
Plaintiff attempts to rely on the charter agreement between shipowner Alicante and time charterer Del Monte International as a contract that takes the shipowner outside the Scindia duties. Clause 66 of the time charter provides,
Attendance
Owners to provide at their expenses one crew watchman per hold, and one Officer on deck during whole time of loading/discharging to prevent any pilferage or misconduct to the cargo and also watch, supervise and secure proper handling and/or stowing of the cargo.
Def. Exh. 18 (Rider to Head Charter) cl. 66.
In Mankus v. Swan Reefer I, 2003 U.S. Dist. LEXIS 10263 (E.D. Pa. 2003) (Yohn, J.), the District Court rejected a longshoreman's attempt to use this exact charter contract language as a basis for imposing on the vessel a heightened duty of care with respect to longshoremen. Looking at the context of the "contract provision" exception in Scindia, Judge Yohn held that "the Scindia Court's contract exception is logically interpreted to be premised on the Court's envisioning contract provisions between the stevedore and shipowner, provisions that specifically address the dangerousness of conditions that the longshore workers might encounter during their stevedoring operations." Id. at *35. Thus, because the longshoreman was not a party to the charter between the shipowner and its charterer, and the contract provisions had no relationship to the conditions on the ship that were dangerous to longshore workers, the contract did not alter the ship's statutory duties with respect to the third party stevedore. Id. Judge Yohn further held that, even if the charter party had created some duty to longshoremen, the plaintiff had failed to provide any evidence of causation. "The Court cannot discern how defendant's supervision of the unloading would have prevented the accident that injured plaintiff." Id. at *37.
This Court agrees with Judge Yohn's analysis in Mankus. Plaintiff has not provided any relevant case law to the contrary. He cites a line of cases from the Fifth Circuit holding that a time charterer owes a hybrid duty, arising from contract and tort, to persons with whom it has no contractual relationship, where the time charterer is negligent in the performance of its rights or duties under a time charter. However, even in those cases, the Court held that the duty extended only to "the sphere of activity over which [the time charterer] exercises at least partial control." Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1520 (5th Cir. 1996). In this case, it is undisputed that if there was a knot in the cargo sling, it was put there by the Colombian stevedore aboard separate barges not owned by Alicante. Thus, Alicante had no control over the relevant activity. Further, as in Mankus, there is no evidence of causation in this case. Even if the Court were to find that Alicante assumed some duty to Plaintiff by supervising the cargo loading, Plaintiff does not explain how the crewmembers' observation of loading operations from the decks and holds of the Alicante Carrier could have alerted them that one of the slings, on the interior of a pre-slung six-pack, had a hidden knot. Accordingly, Defendant Alicante will not be held to a higher duty of care than that established in Scindia.
IV. Claims Against Del Monte N.A.
The federal maritime law consists of both statutory and common law. Sevison v. Cruise Ship Tours, Inc., 1997 WL 530267, *6 (D. Virgin Islands Aug. 15, 1997). Plaintiff's claim against Del Monte N.A., the terminal operator, is not governed by the LHWCA or other federal maritime statutes. Plaintiff asserts that the claim falls within the Court's maritime jurisdiction because "[a] stevedoring contract is a maritime contract." Mem. Opp. Motion II at 1, citing American Stevedores, Inc. v. Porello, 330 U.S. 446, 456 (1947). However, Plaintiff does not state to what contract he refers, or why his claim for personal injury sounds in contract rather than tort. Defendant Del Monte N.A. does not address this issue at all. Accordingly, the Court will reserve judgment on the Motion of Del Monte N.A. pending further briefing on this issue. Specifically, the parties shall address: (1) whether maritime law, contract or tort, applies to this claim; and (2) if not, which state's law the Court should apply under Pennsylvania's choice of law rules.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding that a federal court sitting in diversity applies the choice of law principles of the forum state).
V. Conclusion
The Court will grant the motion for summary judgment of Defendants Alicante and Del Monte International and will reserve decision on the motion for summary judgment of Defendant Del Monte N.A. An appropriate Order follows.
ORDER
AND NOW, this day of August, 2004, upon consideration of the Motion for Summary Judgment of Defendants Alicante Carrier Shipping Corp. and Del Monte Fresh Produce International (docket no. 27) and the Motion for Summary Judgment of Defendant Del Monte Fresh Produce N.A. (docket no. 28), Plaintiffs' responses thereto, and Defendants' replies, and after oral argument on June 28, 2004, it is ORDERED that:
1. The Motion of Defendants Alicante Carrier Shipping Corp. and Del Monte Fresh Produce International is GRANTED. Accordingly, judgment is entered in favor of these defendants and against Plaintiffs.
2. The Court will reserve judgment on the Motion of Defendant Del Monte Fresh Produce N.A. pending supplemental briefing, to be submitted according to the following schedule:
a. Defendant Del Monte Fresh Produce N.A. shall brief the issue of whether maritime law applies, and if not, which state's law applies, by August 16, 2004.
b. Plaintiff shall submit a brief in reply on the same issue by August 23, 2004.
c. No extensions of time to submit briefing will be granted.