Opinion
Civil Action No. 02-3599 SECTION "T" (4).
March 22, 2005
ORDER AND REASONS
Before the Court are a Motion for Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure filed on behalf of Defendant, Vakif Deniz Finansal Kiralama, A.S., a Motion for Summary Judgment filed on behalf of Defendant, Hyundai Merchant Marine Company, Ltd., and a Motion in Limine to Strike the Affidavit of David E. Cole filed on behalf of Defendant, Vakif Deniz Finansal Kiralama, A.S. These causes came before the Court for hearing on December 1, 2004, with oral argument. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence is fully advised in the premises and ready to rule.
I. BACKGROUND:
On November 7, 2001, M/V Orhan Ekinci arrived at the Port of New Orleans carrying a cargo of plywood bundles, among other things. At all relevant times to this case, the M/V Orhan Ekinci was owned by Defendant Vakif Deniz Finansal Kiralama, A.S. (Finansal) and was under a time charter agreement to Defendant Hyundai Merchant Marine Company, Ltd. (Hyundai). Upon berthing at the Nashville Avenue Wharf, cargo discharge operations began with P O Port of Louisiana (P O) as the stevedores assigned to the vessel to be in complete charge and control of the cargo operations. The plywood cargo was packaged in bundles held together by metal bands. The bundles were then stacked in layers and separated by dunnage material. Each bundle was wrapped in a thin protective cover, commonly referred to in the industry as "doorskin."
On November 9, 2001, the third day of cargo discharge operations, Mr. Coleman worked as a longshoreman assisting in the discharge of the cargo of plywood bundles from the M/V Orhan Ekinci. On the morning of November 9, 2001, Mr. Coleman was allegedly injured while picking up dunnage on a newly exposed level of bundles. In the course of picking up the debris, he stepped on a piece of doorskin which had somehow become detached from its bundle in the course of loading/unloading the bundles and covered a void space between bundles of plywood in the vessel's No. 1 hold. The thin piece of doorskin collapsed under the weight of the Mr. Coleman, causing him to fall into the void space and thus causing his injuries. Plaintiffs then filed the instant claim in accordance wit § 905 (b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) insofar as it involves a claim of injury to a longshoreman while discharging cargo from a vessel.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of Defendant Vakif Deniz Finansal Kiralama, A.S. in Support of Summary Judgment:
Defendant Finansal argues that the primary responsibility for the safety of longshoremen rests with the stevedore, not the vessel. Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir. 1990). A vessel owner's duty to longshoremen aboard the vessel for cargo operations was defined by the Supreme Court in Scindia Steam Navigation Co. V. De Los Santos, 451 U.S. 156 (1981). InScindia, the Supreme Court held that a vessel owner may be held liable under § 905 (b) of the LHWCA in only three instances:
1. If the vessel owner fails to turn over a reasonably safe ship or fails to warn on turning over the ship of hidden defects of which it knew or should have known (commonly referred to as the "turnover duty");
2. If the vessel owner fails to remedy hazards under the active control of the vessel;
3. If the vessel owner fails to intervene in the stevedore's operations when it has actual knowledge both of the hazard and that the stevedore, in the exercise of obviously improvident judgment, means to work on in the face of it and therefore cannot be relied upon to remedy it.Id. at 156-57.
First, Defendant Finansal argues that it turned over a reasonably safe ship, as evidenced by the depositions of the stevedore ship superintendent, who concluded that the work could begin safely, as well as Mr. Coleman's co-workers and Mr. Coleman himself. Defendant Finansal asserts that the occurrence of gaps between plywood bundles, especially in the forward most part of the ship such as Hold No. 1, is common and should be expected by the longshoremen. The turnover duty applies only to latent hazards that would be neither obvious to nor anticipated by a competent stevedore in the ordinary course of cargo operations.Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 99 (1994). The use of forklifts in the cargo holds to move bundles necessarily results in damage to the doorskins covering some of the bundles, and the removal of damaged and excess materials is the responsibility of the stevedore.
Defendant Finansal further notes that the stevedore's safety director's investigation into Mr. Coleman's injury determined that the fault rested plainly with Mr. Coleman and his co-workers, concluding that most vessels have void spaces between stowage, that employees in the hold failed to maintain reasonable housekeeping in the work area, and that stevedoring employees failed to use proper safety precautions. Two recent district court decisions granted summary judgment in similar situations. In Jackson v. Egyptian Navigation Co., 222 F. Supp.2d 700 (E.D.Penn. 2002), the Eastern District of Pennsylvania granted summary judgment when a longshoreman fell into a cargo hold when a plank of wood leading from the bottom of a ladder to stacked steel coils failed. Similarly, in Woodward v. Logistec, Ltd., 164 F.Supp.2d 941 (N.D.Ohio 2001), the Northern District of Ohio granted summary judgment when cargo was toppled and crushed the plaintiff's leg during discharge.
Next, Defendant Finansal argues that it has no liability for Mr. Coleman's injuries since it did not have active control of the vessel. While the vessel has a duty to remedy hazards under the active control of the vessel, when 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.Pimental v. Limited Canadian Pacific Bulk, 965 F.2d 13, 16 (5th Cir. 1992). In Clay v. Daiichi Shipping, 74 F.Supp.2d 665 (E.D. LA. 1996), a vessel owner's motion for summary judgment was granted when a longshoreman was injured unloading a cargo of bundled and loose steel pipe after one of the pipe hooks slipped out of the pipe, causing the pipe to roll over the longshoreman. A vessel owner may be liable for breach of the active control duty when it exercises control over the actual methods of work used by the stevedore. Id. at 673. There was no evidence that the vessel owner in that case had any control over the unloading operations. Similarly in the instant matter, unloading operations had been going on for two days without any input, much less control, on the part of the vessel.
Third, Defendant Finansal argues that it is not liable for Mr. Coleman's injuries because it had no duty to intervene. Defendant Finansal argues that there was no evidence of a "substantial risk of danger" as the stowage and discharge of the vessel was customary and routine. Further, even if there was a substantial risk of danger, there was no evidence that the vessel owner had any knowledge of its existence or that the stevedore was not taking appropriate measures to protect longshoremen from it. Defendant Finansal submits that the mere presence of vessel personnel aboard the vessel does not establish that the vessel owner or a charterer had knowledge of an alleged hazard in the stevedore work area. Hill v. Texaco, 647 F.2d 447, 450 (5th Cir. 1982).
B. Arguments of Defendant Hyundai Merchant Marine Company, Ltd., in Support of Summary Judgment:
Hyundai reiterates most of the same arguments of Defendant Finansal, except from the perspective of a time charterer as opposed to the vessel owner. The Fifth Circuit has concluded thatScindia does not set the duty of time charterers. Kerr-McGee Corp. V. Ma-Ju Marine Services, Inc., 830 F.2d 1332, 1340 (5th Cir. 1987). The time charterer typically has control over choosing the vessel's cargo, the vessel's route and the general mission of the charter, as well as the specific time in which the vessel would perform its assignment, but unless the vessel owner and time charterer had altered the traditional allocation of responsibilities, the charterer owed no duty under § 905 (b) of the LHWCA beyond those typical spheres. Id. at 1340-43. "We hold 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." Id. at 1343. See also Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th Cir. 1996) (endorsing the ruling in Kerr-McGee regarding a time charterer's duties).
Regardless, in Dahlen v. Gulf Crews, Inc., 281 F.3d 487 (5th Cir. 2002), the Fifth Circuit applied the exceptions ofScindia/Howlett to a time charterer in a situation where the facts more closely resembled Howlett than those in Hodgen. InHodgen, a longshoreman was injured while transferring from a crewboat to a platform in rough seas, while Howlett related to the condition of cargo loaded aboard a chartered vessel. Thus, as this too relates to the conditions of cargo loaded aboard a chartered vessel, the application of the Scindia/Howlett exceptions would be proper.
Hyundai essentially reiterates the arguments of Defendant Finansal from here forward. The exercise of reasonable care (in the turnover duty) does not require the shipowner to supervise the ongoing operations of the stevedore or to inspect the completed stow. Howlett, 512 U.S. at 105. The plywood cargo discharge was under the exclusive control of the stevedores and not under the active control of Hyundai. Plaintiffs failed to meet their burden of proving that Hyundai had actual knowledge (1) that the void space was covered with doorskin, (2) that the condition posed an unreasonable risk of harm, and (3) that the vessel could not rely on the stevedore to protect the longshoremen from it. Therefore, there is no duty to intervene.
C. Arguments of the Plaintiffs in Opposition to Summary Judgment:
Plaintiffs offer virtually no evidence as to how or when the piece of doorskin came to cover the void in the cargo. They primarily rely upon the existence of forklift tire tracks near the void and that one of the bundles near the void had its doorskin missing and its metal band broken. Plaintiffs then speculate that, since no forklift had yet been lowered to that tier of bundles during unloading, the damage to the nearby bundle must have occurred during the onloading of the bundles in Indonesia without the protection of steel plates to cover the bundles. Plaintiffs contend that the void was not customary due to its large size (4' × 4') and was not open and obvious, but rather was a latent hazard as it was located in the middle of the hold and was covered by material that looked like other bundles of plywood. Thus, a skilled stevedore in the competent performance of his duties would not reasonably anticipate it. The stevedore is chargeable only with knowledge of defects discernable by reasonable but cursory inspection and is not responsible for latent defects. Lamar v. Admiral Shipping Corp., 476 F.2d 300 (5th Cir. 1973).
Plaintiffs cite the Charter Agreement, which states that "charterers are to load, stow and trim, check, lash, tally, unlash, secure, and discharge the cargo at their expense under the supervision and responsibility of the captain." Thus, Plaintiffs conclude that both the vessel owner and time charterers have obligations as far as the loading and unloading of cargo. Plaintiffs also cite the owners procedural manual, which outlines the duties of the vessel during cargo loading procedures, requiring at least one seaman and one deck officer to be on watch during loading and unloading and requiring the watch officer to report to the relief officer "[a]ll duties on board, characteristics, amount and whereabout of the loaded cargo, the cargo still to be loaded and what is left after unloading." Plaintiffs again cite the owners procedural manual, outlining the duties of second mates to make preparations for loading operations, such as the type, amount and order of cargo loading, the storage factor, and the "method and efficiency of loading."
Plaintiffs contend that both the vessel owners and time charterers are liable for not meeting their turnover duty to warn of a hidden defect that they should have known about. Plaintiffs argue that the vessel owner and time charterer should have known that forklifts were being used on the bundles without the protection of steel plates, thus leading to the damaged doorskin that subsequently covered the void in the bundles that Mr. Coleman fell through. Plaintiffs submit that the issue of the vessel owner's and time charterer's supposed knowledge that forklifts were not used creates a question of material fact such that summary judgment is not proper. Plaintiffs do not address the Active Control exception of Scindia. Plaintiffs finally contend that when the vessel owner and time charterer observed the loading without the protection of steel plates, they had a duty to intervene under the third Scindia exception. Thus, they aver that as a result of the failure to intervene, Mr. Coleman sustained his injuries.
III. LAW AND ANALYSIS:
A. Law on Rule 56 Summary Judgment:
The Federal Rules of Civil Procedure provide that a court should grant a motion for summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of Law." Fed.R.Civ.P. 56©). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56©), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts, and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Analysis of the Court:
The Plaintiffs' argument is highly speculative as to what the vessel owner and time charterer observed during the onloading process in Indonesia. The Plaintiffs submit that the tire tracks on the bundles were left during that onloading process, that they were caused by a forklift being used without the protection of steel plates, and that they were the reason that a piece of doorskin wound up covering the void. Plaintiffs offer no evidence that its scenario actually happened. Plaintiffs also assume that the use of forklifts to move the bundles without steel plates covering them is something that creates such a danger that Defendants should have seen it and should have reported it. The Court does not accept Plaintiffs' speculation as sufficient evidence to raise a genuine issue of material fact and thus deny the Defendants' Motions for Summary Judgment.
Under Scindia, a vessel owner may be held liable under § 905 (b) of the LHWCA in only three instances:
1. If the vessel owner fails to turn over a reasonably safe ship or fails to warn on turning over the ship of hidden defects of which it knew or should have known (commonly referred to as the "turnover duty");
2. If the vessel owner fails to remedy hazards under the active control of the vessel;
3. If the vessel owner fails to intervene in the stevedore's operations when it has actual knowledge both of the hazard and that the stevedore, in the exercise of obviously improvident judgment, means to work on in the face of it and therefore cannot be relied upon to remedy it.Scindia, 451 U.S. at 156-57. As a result of Dahlen, theScindia duties are also applicable to a time charterer in a situation such as this, where the action relates to the condition of cargo loaded aboard a chartered vessel. Thus, the Scindia duties apply to both the vessel owner, Vakif Deniz Finansal Kiralama, A.S., and the time charterer, Hyundai.
First, the Defendants did not violate the turnover duty. In their depositions, the stevedore ship superintendent, Mr. Coleman's co-workers, and Mr. Coleman himself all acknowledged that the ship was reasonably safe when it was turned over to the stevedores. In fact, unloading operations had been conducted for two days prior to the accident. The turnover duty applies only to latent hazards that would be neither obvious to nor anticipated by a competent stevedore in the ordinary course of cargo operations. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 99 (1994). The occurrence of gaps between plywood bundles, especially in the forward most part of the ship such as Hold No. 1, is common and should be expected by the longshoremen.
Even if the occurrence of a gap between the bundles was not something that a longshoreman should have expected, there is no way that either the vessel owner or the time charterer could have known of this defect. Plaintiffs suggest that during the onloading process, a representative of the vessel owner and/or time charterer should have been supervising the activities of the stevedores. Plaintiffs then submit that either such a person was not present, or such a person did not notice that a forklift was being used without the protection of steel plates covering the plywood bundles. Plaintiffs then contend that one of these forklifts used without the protection of steel plates damaged the layer of doorskin covering one of the bundles, and that the damaged doorskin wound up covering the hole that Mr. Coleman subsequently fell through. The only thing that Plaintiffs substantiate this story with is a tire track on one of the bundles near the hole.
There is no evidence that any of this scenario actually happened, let alone that there was anything that actually should have given the vessel owner and/or time charterer reason to know that there was a hole in between the bundles that was covered by damaged doorskin. Further, even if this exact scenario had occurred, and had a representative seen a forklift being used without steel plates, and had that representative known that steel plates should be used, the Court is not convinced that the turnover duty would have been violated. The Court does not find that the conduct would have been so egregious as to impose a duty to warn the offloading stevedores of the possibility that some of the doorskin could have been damaged and that such damaged doorskin could have fallen in a place so as to cover a hole between the bundles that is commonly caused by the shifting in cargo during transport. In short, even if the Court were to take Plaintiffs' hypothesis as the true sequence of events, it is far too attenuated to impose a legal duty to warn on the vessel owner and/or time charterer under the turnover duty.
Second, there is no dispute that neither the vessel owners nor the time charterers were in active control of cargo discharge operations at the time of Mr. Coleman's accident. While the vessel has a duty to remedy hazards under the active control of the vessel, when 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. Pimental v. Limited Canadian Pacific Bulk, 965 F.2d 13, 16 (5th Cir. 1992). Unloading operations had been going on for two days without any input, much less control, on the part of the vessel owners or the time charterers before Mr. Coleman sustained his injuries. Thus, neither party can be found to have offended the active control exception of Scindia.
Finally, Defendants did not violate any duty to intervene imposed by Scindia. The Plaintiffs claim that the vessel owner and time charterer are liable for his injuries because they failed to intervene when they saw forklifts being used on unprotected bundles. As discussed above, these accusations are speculative on many levels, and a claim that this failure to intervene caused Mr. Coleman's injuries is a stretch. Plaintiffs have addressed nothing, except to quote small portions of the owners procedural manual and the charter agreement, that would impose any responsibility on the Defendants to monitor the actions of the stevedore nor impose any liability for Mr. Coleman's injuries under Scindia onto the Defendants. They have produced no evidence that forklifts were, in fact, used without protective steel plates during the onloading process, nor that any representative of the vessel owner or time charterer witnessed that failure to use steel plates. Again, even had this happened, the Court is not convinced that the activity would give the vessel owners or time charterers actual knowledge that a hole in the bundles, which may or may not have been present at the time, would be covered by damaged doorskin as a result of the failure to use steel plates, and that a stevedore might fall into that hole causing injury, so as to impose a duty to intervene on the Defendants.
Plaintiffs' arguments are pure speculation. There is no evidence that anything Plaintiffs have represented actually happened. There is no testimony from workers during the onloading process in Indonesia. There is no testimony from representatives of the vessel owner or time charterer who were present during onloading. There is nothing to prove that the hole or damaged doorskin occurred during onloading and not during offloading. There is only a set of tire tracks and speculation. Thus, there are no genuine issues of material fact to be decided at trial.
IV. CONCLUSION:
For the foregoing reasons, the Court is of the opinion that summary judgment in favor of the Defendants is proper. The record taken as a whole could not lead a rational trier of fact to find for the Plaintiffs; therefore, there are no genuine issues of material fact for trial. Also, as a result, the Motion in Limine to Strike the Affidavit of David E. Cole filed on behalf of Defendant, Vakif Deniz Finansal Kiralama, A.S., is hereby rendered moot.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the Defendant, Vakif Deniz Finansal Kiralama, A.S., be and the same is hereby GRANTED. IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of the Defendant, Hyundai Merchant Marine Company, Ltd., be and the same is hereby GRANTED. IT IS FURTHER ORDERED that the Motion in Limine to Strike the Affidavit of David E. Cole filed on behalf of the Defendant, Vakif Deniz Finansal Kiralama, A.S. is MOOT.