Opinion
Civil Action No. 98-CV-7402 (DGT)
February 5, 2003
MEMORANDUM AND ORDER
Plaintiff Leonardo Conenna ("Conenna") and his wife, Palma Conenna (collectively, the "plaintiffs"), brought this action against defendants Loyal Chartering Corporation, KS/UL Agnete and A/S D/S TORM (collectively, the "defendants"). This action arises out of injuries suffered by Conenna while working as a longshoreman unloading cargo aboard the vessel M/V TORM AGNETE (the "TORM"). Plaintiffs claim that Conenna's injuries were caused by defendants' negligence and that defendants are liable for damages pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Background (1)
The following facts are either undisputed by the parties or presented in the light most favorable to the plaintiffs. Conenna is a veteran longshoreman who first began working as a longshoreman in 1966. On February 28, 1997, Conenna was working as a longshoreman unloading a shipment of cocoa beans from the TORM at the Red Hook Terminal, Pier #8, Brooklyn, New York. Conenna was not a member of the TORM's crew; nor was he supervised directly by them. Conenna was employed by a stevedore contracted to unload the cargo aboard the TORM, including a shipment of cocoa beans, and was injured while unloading that cargo.
In 1997 — and perhaps still today — the most common method of transporting a cargo of cocoa beans was to stack bags of cocoa beans in "Marino slings." (Defendant's Rule 56.1 Statement ("Def. St.") ¶ 3.) The slings contain nine-inch straps that crisscross below the bottom and over the top of the bags securing the bags together for stowage and transport. (Def. St. ¶ 4.) Each Marino sling generally holds between 15 to 25 bags of cocoa beans. (Def. St. ¶ 3.) The slings also have lifting straps that longshoremen attach to cranes to load and unload the slings to and from the vessel. (Def. St. ¶ 4.)
To attach the lifting straps to the crane when discharging the cargo, the longshoreman walks across the top of the stowed cargo and, while standing atop the edge of an adjacent sling, bends over and hooks the lifting strap to the crane. (Def. St. ¶ 4; Conenna Dep. at 14-15, 21-22.) By attaching multiple lifting straps to the crane, the crane can then load or unload several slings simultaneously. (Conenna Dep. at 17; Deposition of Mikael Samuelsen ("Samuelsen Dep.") at 43; Deposition of Captain Kare Hansen ("Hansen Dep.") at 24.)
It is not unusual for a certain number of slings to become disturbed during transport. (Def. St. ¶ 4; Conenna at 17, 30-31.) The sling itself can break, causing the bags to become loose. (Hansen Dep. at 24.) If one or more bags slip out of a sling or if the bags themselves rip, spilling their contents, the entire sling can become disturbed. (Id.) Hence, while atop the cargo, the longshoreman must avoid standing on broken slings because the slings might shift or collapse beneath him. (Conenna Dep. at 21.)
(2)
In the early part of February 1997, the TORM loaded cargo — bags of cocoa beans placed in Marino slings — in Abidjan and San Pedro, Ivory Coast. (Def. St. ¶ 1; Plaintiffs' Rule 56.1 Statement ("Pl. St.") ¶ 1.) The bags of cocoa beans were placed in Marino slings and loaded onto the TORM by a load port stevedore. (Samuelsen Dep. at 9-10.) In both Abidjan and San Pedro, the crew members of the TORM halted the loading of the cargo because the lifting straps on top of the slings were not tightened properly. (Pl. St. ¶ 2; Forde Aff., Ex. 6 ("Ship's Log"); Forde Aff., Ex. 5 ("Hansen Report") at 2-3.) After a delay, the loading of the cargo then resumed. (Pl. St. ¶ 2; Ship's Log; Hansen Report at 2-3.) The TORM made a second call in Abidjan on February 12, 2002, and loaded an additional shipment of cocoa beans without incident. (Ship's Log; Hansen Report at 3.)
During the voyage to New York, the TORM encountered bad weather that caused the TORM to labor heavily and seawater to wash over the deck and the deck's cargo. (Samuelsen Dep. at 12-13; Hansen Report at 3.) The TORM arrived at Red Hook Terminal in Brooklyn on February 27, 2002, and the longshoremen commenced unloading its cargo on February 28, 2002. (Hansen Report at 3.)
The parties have not suggested that the fact that some of the cargo was wet contributed to the cause of the accident.
Also on February 28, 2002, Captain Kare Hansen ("Hansen"), a surveyor — whose job it is to document the condition of the cargo upon its arrival — observed the cargo as it was being discharged and took photographs of the cargo. (Def. St. ¶ 15.) Hansen, who had performed many such surveys, was hired by the defendants as a matter of course. (Def. St. ¶ 15; Hansen at 7-8.) Hansen's report also noted the history and condition of the cargo in his report.
The TORM's crew members did not participate or manage the unloading of the cargo upon its arrival. (Def. St. ¶ 14.) Their duties were generally focused on the vessel itself, such as checking the position of the vessel and checking the vessels's flags, lights and lines. (Id.) The crew members also observed the condition of the cargo and the use of the vessel's equipment to prevent damage to the vessel. (Id.) The crew members also removed the kraft paper — placed on the cargo to keep it dry — from above the cargo. (Defendants' Further 56.1 Statement ¶ 12.)
After the TORM's crew removed the kraft paper covering the cargo, the longshoremen began unloading the cargo. (Samuelson Dep. at 41; Conenna Dep. at 22; Defendants' Further 56.1 Statement ¶ 12.) Conenna was assigned the task of helping unload the slings in the tween deck number 3 hatch by hooking the lifting straps to the crane. While working to unload the slings in the number 3 hatch, Conenna fell from the cargo to the surface below, suffering injuries to his head, neck, shoulder, back and left leg. (Conenna Dep. at 33, 35-36, 46; Ship's Log.) Conenna described the accident in his deposition testimony:
Let's assume this is the layer of cocoa beans (indicating). I was here on top. And I was hooking the other — the package that was into the sling that was in front of me like this (indicating). While I was hooking it, the strap on which I had my feet broke and I fell. . . . I am sorry, the bags broke, the bags underneath my feet broke and I lost my support and I fell.
(Conenna Dep. at 33, 36.)
Conenna testified that before he fell, he checked the spot from which he later fell and did not see anything wrong. (Id. at 41-42.) Conenna also testified that the lighting in the hatch was normal, and that he looked at the straps of the sling before he stepped on the sling and that the sling looked "all right." (Id. at 41.) Similarly, the crew members, who observed the cargo and removed the kraft paper covering the cargo, also testified that the cargo seemed to be in good condition. (Def. St. ¶ 13.)
(3)
Plaintiffs and defendants offer differing versions on the condition of the slings in the cargo. (Pl. St. ¶ 2; Def. St. ¶ 13-14.) Specifically, they disagree whether the number of disturbed slings were unusually high in this shipment of cargo. (Id.) In the particular hatch where Conenna was injured — the tween deck number 3 hatch portside — five slings in the top tier of slings were disturbed with their bags adrift outside the sling. (Hansen Report at 5.) Hansen noted in his survey that during the unloading of the slings in the number 3 hatch, "several slings came apart in handling [and a]bout 80 bags were discharged loose in cargo nets." (Id.) Hansen also noted in his survey that a large number of bags were torn open when the slings hit the ship's structure during unloading, and some of Hansen's photographs depict some disturbed slings at various stages of the discharging process. (Id. at 6.) However, Hansen testified that the number of disturbed slings in the number 3 hatch were less than the normal number of disturbed slings. Indeed, Hansen testified that the condition of the slings in the number 3 hatch was "very good" and "better than average." (Hansen Dep. at 58-59.)
According to the stowage plan, the cocoa beans cargo in the tween deck number 3 hatch portside originated from San Pedro. (Samuelsen Dep. at 43.)
However, Conenna testified that "as we would pick them up, many of them would break and many of them were already broken." (Conenna Dep. at 32.) He also testified that when they were discharging the cargo at "first[,] we used the slings, then as the slings kept breaking, we would also use the net." (Id. at 31.)
Discussion
Summary judgment is granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512 (1986). In making this determination, all factual inferences must be drawn in favor of the party against whom summary judgment is sought, viewing the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the party opposing the motion. See id. at 255, 106 S.Ct. at 2513; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). However, "conclusory statements, conjecture, or speculation" by the non-moving party will not defeat the motion. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
(1) Longshore and Harbor Workers' Compensation Act
The shipowner, longshoreman and stevedore form a tripartite legal triangle that is governed by the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), as amended in 1972, 33 U.S.C. § 905(b). "The LHWCA `establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death.'"O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 62 (2d Cir. 2002) (quotingHowlett v. Birkdale Shipping Co., 512 U.S. 92, 96, 114 S.Ct. 2057, 2062 (1994)). Under this no-fault workers' compensation scheme, an injured longshoreman is entitled to these benefits regardless of fault. See id. "The injured longshoreman's employer — in most instances, an independent stevedore — must pay the statutory benefits regardless of fault, but is shielded from any further liability to the longshoreman." Howlett, 512 U.S. at 96, 114 S.Ct. at 2062 (citation omitted). The longshoreman receiving compensation under the LHWCA cannot sue the employer for negligence. See id.
However, the LHWCA allows an injured longshoreman to bring a negligence action against a third party — who, in longshoreman injury cases, is often the vessel owner. See O'Hara, 294 F.3d at 62. Indeed, § 905(b) of the LHWCA specifically contemplates such lawsuits stating that "[i]n the event of injury to a person covered under this Act caused by the negligence of a vessel . . . such person . . . may bring an action against such vessel as a third party." 33 U.S.C. § 905(b). However, the LHWCA limits the liability of the vessel to negligence claims and disallows the broader "warranty of seaworthiness" as a legal basis for vessel liability. Id.
The LHWCA does not define what constitutes "negligence of a vessel," except to say that the stevedore's negligence cannot be the basis for the vessel's liability. Id. "Instead, Congress left the determination of negligence to the `application of accepted principles of tort law and the ordinary process of litigation.'" Esposito v. Maritrans Operating Partners, L.P., 1995 WL 708693 at *3 (S.D.N.Y. Dec. 1, 1995) (quotingScindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166, 101 S.Ct. 1614, 1621 (1981)).
In defining "negligence," the Supreme Court has referred to the congressional intent of the 1972 amendments to the LHWCA in establishing the duties of care owed by a vessel — the breach of which would constitute negligence. The Supreme Court found that 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, 114 S.Ct. at 2063. As such, the Court held that vessels should not be subjected to lawsuits "for injuries that could be so anticipated and prevented by a competent stevedore." Id.
The Supreme Court in two cases, Scindia and later in Howlett — both involving injured longshoremen suing the vessel owners — has articulated three duties of care owed by vessel owners to longshoremen.See Howlett, 512 U.S. at 98, 114 S.Ct. at 2063; Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 172-73, 101 S.Ct. 1614, 1624-25 (1981). These three duties "define the scope of the vessel's duty of care in the classic tripartite situation under § 905(b)." Gravatt v. City of New York, 226 F.3d 108, 120 (2d Cir. 2000). Known as the Scindia duties, they impose upon the vessel the following duties: the turnover duty; the active control duty; and the duty to intervene. See id. at 120-21.
a. The Turnover Duty
The turnover duty imposes upon the vessel owner a duty to exercise "ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety." See id. (quoting Scindia, 451 U.S. at 167, 101 S.Ct. at 1622). The turnover duty also encompasses a "duty to warn" of latent hazards: the vessel owner must "warn the stevedore of hidden dangers that could not be discovered through the exercise of reasonable care." See id. at 121.
"There is no duty to turn over an absolutely safe vessel." Sinagra v. Atl. Ocean Shipping, 182 F. Supp.2d 294, 300 (E.D.N.Y. 2001). Moreover, "certain dangers that may be hazardous to unskilled persons need not be remedied if an expert and experienced stevedore could safely work around them." Id. at 302 (citations and quotations omitted). Accordingly, routine and obvious conditions that arise during stevedoring operations do not implicate a turnover duty even when they arise before the stevedore commences operations.
In Howlett, a longshoreman slipped and fell on a sheet of clear plastic that was improperly placed by the load port stevedore underneath the cargo of cocoa beans. See Howlett, 512 U.S. at 94-95, 114 S.Ct. at 2061. The longshoreman claimed that when the cargo was removed, exposing the surface, he slipped on the plastic that was obscured by debris. See id. The vessel crew had supplied the plastic to the load port stevedore and the longshoreman claimed that the vessel had knowledge of the hazard and, as such, had a duty to warn the stevedore and longshoremen of the hazard. See id.
The Court held in Howlett that the turnover duty as it applies to the condition of the cargo is a narrow one. See id. at 105, 114 S.Ct. at 2067. It does not apply to obvious conditions. See id. The vessel owner is not obligated to inspect the ship and cargo before turning over the ship to the stevedore for cargo operations because any defect obvious enough for the vessel owner to detect would be discovered by a competent stevedore. See id. Moreover, the vessel owner is "entitled to assume that a competent stevedore will be able to identify and cope with defects in the stow." See id. at 105, 114 S.Ct. at 2067.
Applying these principles to the facts in Howlett, the Court remanded the case for further factual determinations. See id. at 105-06, 114 S.Ct. at 2067. The Court found that knowledge of the condition by some crew members could be imputed to the ship owner since they supplied the plastic. See id. Furthermore, it held that the district court erred in assuming that if the condition was observed by the crew members, it was not a latent condition and therefore observable to a competent stevedore. See id. The Court explained that what may have been an open and obvious condition during loading could have become a latent condition at the discharging port. See id. However, the Court held that summary judgment for defendant would be appropriate if the district court found that the plastic was visible when the longshoreman slipped on it. See id.
b. The Active Control Duty
Under the active control duty, "once stevedoring operations have begun, the vessel will be liable `if it actively involves itself in the cargo operations and negligently injures a longshoreman.'" Gravatt, 226 F.3d at 121 (2d Cir. 2000) (quoting Scindia, 451 U.S. at 167, 101 S.Ct. at 1614). The vessel owner that is not involved in cargo operations "has no ongoing duty to supervise or inspect the stevedore's work — absent contractual, regulatory or customary obligations to the contrary."Id. However, the vessel owner is still liable for unreasonable hazards in areas that remain under the vessel's control during cargo operations.See id.c. The Duty to Intervene
As stated above, the vessel owner generally has no duty to warn the stevedore of obvious defects and may rely on the stevedore's expertise during cargo operations. However, the courts have carved out a duty to intervene where the vessel owner is aware of a dangerous condition and the stevedore is not exercising reasonable care to protect the employees. See id. (citing Scindia, 451 U.S. at 175-76, 101 S.Ct. at 1626). A stevedore's judgment may be so "obviously improvident" that a vessel owner that is aware of the stevedore's inability or unwillingness to correct a dangerous condition must intervene. Scindia, 451 U.S. at 175-76, 101 S.Ct. at 1626. "Under such circumstances, the vessel owner may have a duty to intervene and repair the condition regardless of the fact it is open and obvious." Bradford v. BARGE B-10, 1999 WL 1256248 (S.D.N.Y. Dec. 27, 1999); see Lieggi v. Maritime Co., 667 F.2d 324, 328 (2d Cir. 1981).(2) Defendants' Motion for Summary Judgment
At the outset, defendants attempt to infer from Conenna's own testimony that his fall was caused by a defective bag that broke, rather than a defective sling. Defendants point to Conenna's testimony where he states that "the strap on which I had my feet broke and I fell. . . . I am sorry, the bags broke, the bags underneath my feet broke and I lost my support and I fell." (Conenna Dep. at 33, 36.)
Conenna's deposition testimony, which was aided by an Italian interpreter, is not particularly clear on the exact circumstances of his fall: whether he is claiming that the straps broke, that the bags literally broke, or that simply the bag he was standing on broke loose from the sling. Nonetheless, reading the testimony in the light most favorable to Conenna, his testimony is fairly understood to allege that the integrity of the sling he was standing on failed, causing him to fall from the top of the cargo to the surface below.
Defendants move for summary judgment arguing that there are no genuine issues of material fact in this case because plaintiffs have not submitted evidence that defendants knew or should have known of any dangerous conditions on board the TORM. Defendants point to Conenna's own statements that he did not see anything wrong with the cargo from which he fell. Defendants argue that if a longshoreman with thirty years experience did not see anything wrong, it can hardly be expected that a shipowner should detect the defect. Defendants rely on Howlett andScindia for the proposition that the vessel owner has no duty to inspect the cargo and that it is the stevedore that is in the better position to spot and correct defects in the cargo. Alternatively, defendants argue that if the defect was obvious, then it was the stevedore's duty — not the vessel's — to correct or work around the defect.
Plaintiffs respond that the defect was substantial; that many slings were strewn about in disarray; and that when the vessel's crew removed the kraft paper they would have observed the defective cargo. Plaintiffs further point to events at the loading ports where the loading was stopped because of improper use of the slings as evidence that the vessel crew was aware that defective slings were part of the cargo.
(3)
To successfully defend this motion for summary judgment, plaintiffs must first show that there is a genuine issue of material fact as to whether defendants breached one or more of the Scindia duties. As for the second duty — the active control duty — other than removing the kraft paper covering the cargo, the TORM's crew did not participate in unloading the cargo. As for the third duty — the duty to intervene — there is no evidence that the stevedore's actions were so "obviously improvident" as to implicate the duty to intervene. Hence, only the first prong of the Scindia duties — the turnover duty — is worthy of analysis in this case.
The controlling question thus becomes whether plaintiffs have presented sufficient evidence that Conenna's injury was caused by a latent defect in the sling — of which defendants were aware — specifically, a defect created by the load port stevedores' improper tying of slings and perhaps by events en route. Plaintiffs submitted uncontradicted evidence that there were problems with the slings at the load ports. Defendants claim that the loading continued only after the situation was remedied, but did not present any evidence that the slings already loaded were somehow corrected; nor have defendants presented evidence that the vessel alerted the stevedore about the problems at the load ports and the bad weather during transport. As such, plaintiffs have presented sufficient evidence that there existed a defect in the cargo.
However, the turnover duty requires that the vessel owner warn the stevedore only of latent hazards in the stow. An obvious hazard is of course not latent. It is therefore puzzling that plaintiffs are advancing the theory that the cargo was in obvious disarray. Indeed, to the extent that the cargo was in obvious disarray, there would be no duty to warn and plaintiffs' negligence claim would fail.
Here, plaintiffs claim that the cargo was in obvious disarray. Conenna testified that, even before he was injured, "many of [the slings] would break and many of them were already broken." (Conenna Dep. at 32.) Hence, the stevedore had actual or constructive notice of problems in the cargo. As such, there was no duty to warn, and it was the stevedore's responsibility to assure the safe discharge of the cargo. Plaintiffs have therefore failed to show that there is a genuine issue of material fact as to defendants' breach of the Scindia duties.
Plaintiffs argued — or rather, in context, admitted — that the stow was obviously improper, and that such improper stows are indeed the norm for coffee and cocoa bean cargos. Plaintiffs claim that the customary method of shipping and discharging these cargos is outdated and inherently unsafe, causing injury and even death to longshoremen without legal recourse against the vessels. However, under the LHWCA scheme and Scindia, stevedores are considered to be in the best position to correct such unsafe conditions; though the contrary argument is made that the current state of the law imposes little incentive on vessels to improve conditions, despite that the vessel may be the only party with the influence and ability to impose safer transport methods at both ends of the shipping line. Indeed, this latter argument is not without its supporters. See Clay v. Daiichi Shipping, 74 F. Supp.2d 665, 671 n. 4 (E.D.La. 1999) ("There is a contrary view that the vessel owner has the economic clout to compel safety and that by placing the economic burden on the vessel owner, accidents can best be avoided.") (citations omitted). However, to the extent that the activity was "obviously improvident" — no evidence of which has been presented here — liability may still attach to a vessel under the duty to intervene. Scindia, 451 U.S. at 175-76, 101 S.Ct. at 1626.