Hines v. British Steel Corp.

• Decision Date: 02 August 1990
• Docket Number: No. 89-2969,89-2969
• Citation: 907 F.2d 726
• Parties: Rachelle HINES, as Special Administrator of the Estate of Clark Hines, Deceased, Plaintiff-Appellant, v. BRITISH STEEL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 726

907 F.2d 726

1990 A.M.C. 2986

Rachelle HINES, as Special Administrator of the Estate of Clark Hines, Deceased, Plaintiff-Appellant, v. BRITISH STEEL CORPORATION, Defendant-Appellee.

No. 89-2969.

United States Court of Appeals, Seventh Circuit.

Argued June 20, 1990.

Decided July 23, 1990.

As Amended July 27 and Aug. 2, 1990.

James L. Farina, Chicago, Ill., for plaintiff-appellant.

Duane C. Weaver, Harold L. Witsaman, Theodore C. Robinson, Ray, Robinson, Hanninen & Carle, Chicago, Ill., for defendant-appellee.

Before FLAUM and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

Plaintiff-appellant, Rachelle Hines, appeals the district court's order granting defendant-appellee British Steel Corporation's (BSC) motion for summary judgment in this negligence action brought under Section 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 905(b). The parties, by stipulation below, dismissed defendant ship, the M.S. Ravenna, with prejudice. Rachelle Hines brought the suit as special administrator of the estate of Clark Hines, a longshoreman who was killed in an accident aboard the M.S. Ravenna. We affirm.

I. BACKGROUND

This case arose out of the death of Clark Hines (Hines), a longshoreman who was killed on October 3, 1987, while performing stevedoring activities aboard the M.S. Ravenna (the Ravenna) while it was docked at Iroquois Landing in Chicago. Hines was an employee of Ceres Terminals, Inc. (Ceres), an independent stevedoring concern. The Ravenna had been "time-chartered" ¹ by BSC from the owner of the Ravenna, Roscoe Shipping, S.A., and had been docked in Chicago on October 1, 1987, to unload BSC cargo. British Steel had hired Ceres as an independent contractor to unload a cargo of steel. The Ravenna's Master (captain) and crew were employees of Roscoe Shipping.

At the time of the accident which caused Hines's death, Ceres had completed the unloading of British Steel's cargo into a barge owned by Caterpillar Corporation. Ceres employees, including Hines, were conducting clean-up of the Ravenna. The Ravenna contains five holds for cargo storage, each having a hatch at deck level through which cargo is loaded and unloaded using the ship's deck-level cranes. Hines, along with others, was working in hold number three cleaning up dunnage (pieces of lumber used to protect a ship's cargo from damage during transport). A full, strapped bundle of unused, new dunnage, owned by Ceres, that had been returned from the Caterpillar barge after it was loaded, lay on the Ravenna's deck. This bundle of dunnage was to be removed from the deck of the Ravenna and brought ashore.

Ceres employees had rigged Ceres-owned slings to the bundle of dunnage. A Ceres longshoreman secured the slings to one of the Ravenna's cranes. This crane, serving hold number three, was situated between hatch number three and hatch number two. The crane was able to be rotated in a 360 degree circle and was in good working condition. At the time, hatch number two was shut.

Captain Tore Sorenson, a Ceres Superintendent, was in charge of the stevedoring operations aboard the Ravenna. He was standing adjacent to hold number three as his longshoremen worked below. Another Ceres longshoreman acted as signalman directing the crane operator. He was also responsible for making sure that the load of dunnage was not swung over the open hatch of hold number three while men were working below and to warn the workers when a load was to be swung over the hatch. Swinging a load of cargo or dunnage over a hatch opening while men are working in the hatch is a prohibited activity, and Ceres crane operators are instructed not to do so. John Folan, BSC's cargo representative, was aboard the Ravenna during its journey, but was on shore at the time of the accident.

Although the crane operator could see the open hatch and the men working below, he lifted, without warning, the load of dunnage and swung it over hold number three. Captain Sorenson and others on the deck saw this and yelled a warning to the workers in the hatch. For reasons unknown, the bundle of dunnage then fell from the crane into the hold. The bundle of dunnage broke apart when it hit a dumpster in the hold. Some of the flying dunnage struck Clark Hines, and he later died.

Rachelle Hines filed this suit in the Circuit Court of Cook County, Illinois, but on June 1, 1988, BSC removed it to the United States District Court for the Northern District of Illinois. On June 30, 1989, BSC moved for summary judgment, arguing that BSC had no general duty to supervise the stevedoring operations aboard the Ravenna. Plaintiff responded that the charter agreement between BSC and the Ravenna's owners, together with the various agreements between BSC and Ceres regarding the Ravenna's cargo, evinced an intent by BSC to control and supervise Ceres's unloading operations.

On October 5, 1989, the district court granted summary judgment in favor of BSC. The court found that as a "time charterer," BSC was amenable to suit under the LHWCA. ² The court then stressed that the Supreme Court's decision in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 172, 101 S.Ct. 1614, 1624, 68 L.Ed.2d 1 (1981), precluded any finding that BSC had "any general duty to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore." The court rejected plaintiff's assertions that BSC had contractually assumed a duty of safe supervision. First, the court found that the language of the time charter agreement imposed no special duty on BSC to insure the safety of the longshoremen. Second, the court emphasized the uncontroverted deposition testimony from Captain Sorenson and from BSC's cargo superintendent, John Folan, which indicated that Folan took no part in the actual stevedoring activities and that any suggestions he made to the captain were advisory. This appeal followed. For the reasons discussed below, we affirm the district court's grant of summary judgment.

II. ANALYSIS

A. Standard of Review

A grant of summary judgment is appropriate when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact "exists when 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.' " Puckett v. Soo Line Ry. Co., 897 F.2d 1423, 1425 (7th Cir.1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If alternate inferences can be drawn from the available evidence, summary judgment is inappropriate. LHLC Corp. v. Cluett Peabody & Co., 842 F.2d 928 (7th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 311, 102 L.Ed.2d 329 (1988). On appellate review, we review the record and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Cameron v. Frances Slocum Bank & Trust Co., 824 F.2d 570, 573 (7th Cir.1987). Review of the district court's findings is de novo. Puckett, 897 F.2d at 1425. We apply these standards in light of the substantive law applying to LHWCA cases. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). In reviewing the district court's decision, we must determine whether BSC, as time charterer, owed any duty to supervise stevedoring operations aboard the Ravenna. This is a question of first impression in this circuit.

B. A Vessel's Duty of Care Under 33 U.S.C. Sec. 905(b)

In Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court interpreted the extent of a vessel's liability under the 1972 amendments to Section 905(b). The Court explained that imposing on the vessel "a continuing duty to take reasonable steps to discover and correct dangerous conditions that develop during the loading or unloading process," would be inconsistent with congressional intent in amending the LHWCA. Id. at 169, 101 S.Ct. at 1623. Thus, the Court held that in the absence of a contract provision, positive law, or custom to the contrary, the 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 operation that are assigned to the stevedore." Id. at 172, 101 S.Ct. at 1624. The shipowner "is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself." Id. The shipowner also owes no duty to inspect or supervise the stevedore's cargo operations. Id. Rather, "the shipowner, within limits, is entitled to rely on the stevedore." Id. (emphasis in original). Although Scindia did not involve a time charterer, the principles discussed in the Supreme Court's opinion apply with equal force to the situation presented in this case. ³

In this case, there was no evidence that the crane which dropped the dunnage that killed Clark Hines was not in good working order. In fact, the deposition testimony of the stevedore captain is to the contrary. Furthermore, the act of the crane operator in swinging a load of dunnage over hold number three while men were working below was unforeseeable. Finally, BSC's cargo representative was not on the boat at the time of the accident. Under these circumstances, Scindia forecloses liability on BSC absent a contract provision, positive law, or custom to the contrary. Cameron v. Consolidated Grain and Barge Co., 654 F.2d 468, 471-72 (7th Cir.1981). Indeed, appellant argues that BSC, by its contractual arrangements with both the owner of the Ravenna and with Ceres, undertook operative control of stevedoring operations aboard...