Carwie v. Knudsen

• Decision Date: 11 January 2013
• Docket Number: 1100697.
• Citation: 116 So.3d 206
• Parties: J. Gregory CARWIE, conservator for and on behalf of Emil HARRIS v. Peter KNUDSEN A/S.
• Court: Alabama Supreme Court

116 So.3d 206

J. Gregory CARWIE, conservator for and on behalf of Emil HARRIS

v.Peter KNUDSEN A/S.

1100697.

Supreme Court of Alabama.

Aug. 24, 2012.

Rehearing Denied Jan. 11, 2013.

Appeal from Mobile Circuit Court (CV–08–900682); James C. Wood, J.

David A. Hilleren of Hilleren & Hilleren, L.L.P., Evergreen, Louisiana; and John L. Moore IV, Mobile, for appellant.

John P. Kavanagh, Jr., and Edward G. Bowron of Burr & Forman LLP, Mobile, for appellee.

Douglas Brown of Brady Radcliff & Brown LLP, Mobile; and Scott A. Soule and Adelaida J. Ferchmin of Chaffe McCall LLP, New Orleans, Louisiana, amicus curiae American Longshore Mutual Association, Ltd., in support of the appellant.

PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.

MALONE, C.J., and WOODALL, BOLIN, MURDOCK, SHAW, and MAIN, JJ., concur.

STUART and PARKER, JJ., dissent.

WISE, J., recuses herself.

STUART, Justice (dissenting).

J. Gregory Carwie, conservator for Emil Harris, sued Peter Knudsen A/S (“Knudsen”) in the Mobile Circuit Court, seeking damages for injuries Harris suffered in a fall while performing repairs on the M/V Vinland Saga, a Knudsen-owned cargo ship, while it was in drydock at a shipyard in Mobile, Harrison Brothers Drydock & Repair Yard, Inc. The majority affirms the judgment in favor of Knudsen; however, for the reasons that follow I respectfully dissent.

The United States District Court for the Southern District of Alabama provided the following general background for this case in In re Peter Knudsen A/S, 710 F.Supp.2d 1252, 1256 (S.D.Ala.2010):

“At all times relevant hereto, Knudsen, a Danish corporation, owned the M/V Vinland SAGA, which is a Danish general cargo vessel. This vessel has two working cargo holds, Number One Hold forward and Number Two Hold aft, which were separated into two decks, a lower hold and a ‘tween deck.’ In order to enter Number One Hold from the weather deck/main deck, access must be made through an opening on the main/weather deck. In order to travel from the main/weather deck to the bottom of the cargo hold, a person would need to descend an access ladder via a small opening or hatch cover on the main deck. The ladder from the main deck stopped at the ‘tween deck’ which consisted of a ledge or ‘catwalk’ running around the perimeter of the hold. The ‘tween deck’ was approximately seven feet from the bottom (tank top) of the hold and about four feet wide. The ‘tween deck’ was comprised of metal plates which could be opened to allow full use of the cargo hold, i.e. from the bottom of the cargo hold (sometimes referred to as the ‘tank top’) all the way to the main hatch covers on the weather/main deck. If the ‘tween deck's' floor plates were removed, the ledge or catwalk was open to the bottom of the cargo hold or tank top. After climbing down the access ladder from the main deck to the ‘tween deck,’ a person would have to walk a few feet forward and descend a second ladder to the bottom or tank top.

“In early March 2006, the Vinland SAGA loaded a cargo of heavy anchor chains in Bilbao, Spain. When the anchor chain was loaded in Bilbao, the ‘tween decks' were open allowing the chain to fill up most of the cargo hold. John Sorenson and Captain Hovgaard were the captains and John Andreassen was the chief engineer aboard the vessel during the voyage from Bilbao. Captain Sorenson testified that the crew put lashings to secure the ‘tween deck’ plates in place prior to the sea voyage from Bilbao to the United States. In route to Port Forchon, the Vinland SAGA suffered a breakdown in its propulsion system near the Bahamas. After being towed several times, the vessel ultimately arrived in Mobile, Alabama.”

(Capitalization in original; citations to record omitted.) The M/V Vinland Saga arrived at the Harrison Brothers shipyard in Mobile on August 21, 2006. Harrison Brothers personnel and the ship's officers then jointly inspected the ship to survey the work that needed to be completed, and, on August 30, 2006, the M/V Vinland Saga was moved to drydock so that repairs could begin.

The M/V Vinland Saga's six-man crew remained onboard the ship while it was in drydock undergoing repair; the crew was actively engaged in performing separate repairs during this time. The crew did not work on the same projects as did shipyard personnel; however, it is undisputed that both the ship's crew and shipyard personnel had projects in both of the ship's cargo holds. On September 28, 2006, Harris, a pipefitter by trade, was tasked by Harrison Brothers with removing the fire-line piping from the M/V Vinland Saga. This task required Harris to descend to the bottom of the Number One Hold. Harris was accompanied in this task by a welder, and, as they descended into the Number One Hold for the first time, Harris, upon reaching the tween deck, stepped aside to give the welder some room to come down the ladder. In doing so, Harris stepped off of the unguarded tween-deck ledge and fell approximately seven feet to the bottom of the hold, suffering a severe head injury that has required multiple surgeries and a lengthy rehabilitation.

Because of the circumstances of his injury, Harris received workers' compensation benefits under the federal Longshore and Harbor Workers' Compensation Act (“the LHWCA”), 33 U.S.C. § 901 et seq., as opposed to the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975. Like traditional state workers' compensation statutes, the LHWCA sets forth a compensation scheme for injured longshoremen and shipyard workers that is generally their exclusive remedy for on-the-job injuries. However, § 905(b) of the LHWCA does permit a covered worker to assert a negligence claim against the owner of a ship on which the worker is injured, stating: “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....” ¹

On April 30, 2008, Carwie, as conservator for Harris, initiated an action against Knudsen pursuant to § 905(b), asserting, among other claims, that Harris's injuries were the result of Knudsen's negligence as the owner of the M/V Vinland Saga. Instead of filing an answer to that complaint, Knudsen initiated a limitation-of-liability action in the United States District Court for the Southern District of Alabama, which subsequently entered an order limiting the scope of state-court proceedings while it considered certain federal issues. Ultimately, however, the federal issues required the federal district court to consider the issue central to Carwie's state-court claim: Whether Knudsen had in fact been negligent. Both Carwie and Knudsen filed motions in the federal district court for a summary judgment focusing on that issue and specifically whether Knudsen had breached any of the duties a shipowner owes to longshoremen or shipyard workers working aboard its ship. As the federal district court noted in its April 28, 2010, order ruling on those motions: “ ‘The starting point in this regard must be [the Supreme Court's] decision in Scindia Steam [ Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981),] which outlined the three general duties shipowners owe to longshoremen.’ ” 710 F.Supp.2d at 1269 (quoting Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994)). The Supreme Court has described the three general duties outlined in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), as follows:

“The first, which courts have come to call the ‘turnover duty,’ relates to the condition of the ship upon the commencement of stevedoring operations. See [Scindia ] at 167. The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active control of the vessel.’ Ibid. The third duty, called the ‘duty to intervene,’ concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. See id., at 167–178.”

Howlett, 512 U.S. at 98, 114 S.Ct. 2057. The federal district court accordingly reviewed the evidence submitted by Carwie and Knudsen in support of their summary-judgment motions with regard to these three duties and held that factual issues precluded the entry of a summary judgment in either party's favor with regard to whether Knudsen had breached the active-control duty or the duty to intervene; however, it held that Knudsen was entitled to a summary judgment with regard to the turnover duty. The federal district court then concluded its order entering a partial summary judgment in favor of Knudsen by noting that the issue whether the second and third Scindia duties were breached remained to be tried. 710 F.Supp.2d at 1274.

The record before this Court does not reveal exactly what transpired next in the federal district court; however, it apparently elected to let the state-court action proceed and for the state court to conduct the trial to determine whether the second and third Scindia duties had been breached. A four-day nonjury trial was held beginning January 10, 2011, and, at the close of all the evidence, Knudsen moved the trial court to enter a judgment in its favor. On February 3, 2011, the trial court granted that motion without making specific findings of fact and without explaining its rationale. Carwie subsequently appealed that judgment, and it now falls upon this Court to review that judgment pursuant to the following standard of review:

“Because the trial judge made no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment. Fitzner Pontiac–Buick–Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala....