Eastern Car Liner, Ltd. v. Kyles, No. A06A0677.

• Decision Date: 10 July 2006
• Docket Number: No. A06A0677.
• Citation: 634 S.E.2d 129,280 Ga. App. 362
• Parties: EASTERN CAR LINER, LTD. et al. v. KYLES.
• Court: Georgia Court of Appeals

280 Ga. App. 362

634 S.E.2d 129

EASTERN CAR LINER, LTD. et al. v. KYLES.

No. A06A0677.

Court of Appeals of Georgia.

July 10, 2006.

Hunter, Maclean, Exley & Dunn, Robert S. Glenn, Jr., Jessica L. McClellan, Savannah, for appellants.

Savage, Turner, Pinson & Karsman, Robert S. Kraeuter, Savannah, for appellee.

ADAMS, Judge.

Eastern Car Liner, Ltd. (ECL) and Albar Shipping and Trading Corporation (Albar) appeal from the trial court's denial of ECL's motion for summary judgment and both parties' motion for partial summary judgment.

Our review of the trial court's denial of the summary judgment motions is de novo and we construe the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Valdosta Hotel Properties v. White, 278 Ga. App. 206, 208, 628 S.E.2d 642 (2006). This case arises out of injuries sustained by longshoreman Ronald Kyles on January 24, 2002, on board the cargo vessel M/V Reina Rosa, which at the time was docked at a slip on the Savannah River. Albar was the ship's owner and ECL was the vessel's charterer. The facts underlying this incident are more completely spelled out in this Court's first opinion in this case, Kyles v. Eastern Car Liners, 266 Ga.App. 784, 598 S.E.2d 353 (2004). In that case, Kyles appealed from a grant of summary judgment to ECL and Albar. The trial court granted summary judgment on numerous grounds, finding that: (1) there was no breach of the duties under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the landmark United States Supreme Court case that outlines the three duties that a ship owner owes a longshoreman; (2) the International Safety Management (ISM) Code did not create additional duties beyond those outlined in Scindia; (3) the charter party between ECL and Albar did not give rise to any additional duties; (4) Kyles' argument that the vessel's unseaworthiness for carrying kaolin breached the turnover duty was without merit; and (5) ECL had no liability in the case because time charterers such as ECL assume no liability for negligence of the crew or the unseaworthiness of the ship, absent an agreement to the contrary, and Kyles presented no evidence of such an agreement.

Kyles appealed the trial court's order, but raised arguments only as to the trial court's ruling that the defendants had breached no duties under Scindia or the ISM Code. Although Kyles named ECL as an appellee Kyles did not appeal the trial court's ruling that ECL, as a time charterer, had no liability for the negligence of the crew or the unseaworthiness of the M/V Reina Rosa. This Court reversed, holding that factual issues existed as to whether the appellees had breached certain duties under Scindia and as to whether any duties under the ISM Code had been breached. Kyles v. Eastern Car Liners, 266 Ga.App. at 786-788(2)-(5), 598 S.E.2d 353.

Upon remand, ECL and Albar moved for partial summary judgment on the ground that the Reina Rosa was not required to comply with the ISM Code until July 1, 2002, almost six months after Kyles' accident, and thus that no issue of fact existed as to whether any duties under the code were breached. In addition, ECL moved for summary judgment on the ground that time charterers such as itself are not liable for injuries to longshoremen except under clearly defined exceptions not applicable in this case. Kyles countered that this Court's prior decision in the case barred ECL and Albar from pursuing these motions under the "law of the case," as defined in OCGA § 9-11-60(h), because they made no new evidentiary proffer in support of the motions. The trial court agreed, denying both motions in a single order, concluding that this Court's prior decision barred the summary judgment motions.

1. ECL argues that the trial court erred in denying its motion for summary judgment because this Court never considered its status as a time charterer in reaching the earlier opinion. The trial court found that this Court's earlier ruling that a jury issue existed regarding Kyles' Scindia and ISM Code claims precluded the court from considering ECL's argument that it was not liable to Kyles. But the trial court had previously found under well-settled precedent that a time charterer such as ECL "`assumes no liability for negligence of the crew or unseaworthiness of the vessel absent an agreement to the contrary,'" citing Hendricks v. Earling Shipping Co., 1998 WL 684206 (S.D.Ga.1998). See also Hayes v. Wilh Wilhelmsen Enterprises, 818 F.2d 1557, 1559 (11th Cir.1987); Mallard v. Aluminum Co. of Canada, 634 F.2d 236, 242, n. 5 (5th Cir.1981). Kyles did not appeal that ruling, and, accordingly, this Court did not address that issue on appeal. Therefore, the only "law of the case" resulting from that opinion were our holdings on the issues appealed, which related to the duties defined by Scindia and the ISM Code relating to ship owners. Hopkinson v. Labovitz, 263 Ga.App. 702, 704(1)(a), 589 S.E.2d 255 (2003).¹ We conclude that nothing in this Court's earlier opinion precluded the trial court from granting summary judgment on the ground that ECL, as a time charterer, has no liability to Kyles.

The language of our prior opinion was somewhat ambiguous in purporting to include both ECL and Albar within the ambit of its holdings although the duties addressed concerned ship owners. Kyles is seeking to take advantage of that ambiguity to argue that ECL must remain in the case. But, notably, Kyles does not contend that the trial court erred in its prior conclusion that ECL, as a time charterer, was not liable on the facts presented. Moreover, we note that nothing in OCGA § 9-11-56 limits the number of times a party may make a motion for summary judgment, even without proffering additional evidence, leaving it within the trial judge's discretion to consider such motions. Hubbard v. Dept. of Transp., 256 Ga.App. 342, 344(1), 568 S.E.2d 559 (2002).

Accordingly, we reverse the trial court's denial of ECL's motion and hold that ECL is entitled to summary judgment on the ground that as a time charterer, it had no liability to Kyles under the facts of this case. See Hayes v. Wilh Wilhelmsen Enterprises, 818 F.2d at 1559.

2. ECL and Albar argue that the trial court also erred in holding that they were barred from...