Jones v. Sanko S.S. Co., Civil Action No. 10-6787 (JBS/KMW)

• Decision Date: 08 December 2015
• Docket Number: Civil Action No. 10-6787 (JBS/KMW)
• Parties: Ronald Jones, Plaintiff, v. Sanko Steamship Co., Ltd, S.K. Shipping Co., Ltd, Grandslam Enterprise Corp., Harmony Stevedoring Services, and Hyundae Ship's Supply Co., Defendants.
• Court: U.S. District Court — District of New Jersey

148 F.Supp.3d 374

Ronald Jones, Plaintiff,

v.Sanko Steamship Co., Ltd, S.K. Shipping Co., Ltd, Grandslam Enterprise Corp., Harmony Stevedoring Services, and Hyundae Ship's Supply Co., Defendants.

Civil Action No. 10-6787 (JBS/KMW)

United States District Court, D. New Jersey.

Signed December 8, 2015

APPEARANCES: Scott A. Portner, Esq., Stanley B. Gruber, Esq., FREEDMAN & LORRY, P.C., 1601 Market Street, Suite 1500, Philadelphia, PA, 19103, Attorneys for Plaintiff

Charles P. Neely, Esq., Richard Q. Whelan, Esq. (pro hac vice), PALMER BIEZUP & HENDERSON LLP, 330 Market Street, Camden, NJ 08102, Attorney for Defendant Grandslam Enterprise Corp.

Jeffrey S. Moller, Esq., James J. Quinlan, Esq., BLANK ROME LLP, One Logan Square, 130 North 18th Street, Philadelphia, PA 19103, Attorneys for Defendant S.K. Shipping Co. Ltd.

OPINION

SIMANDLE

, Chief Judge:

Table of Contents

I. INTRODUCTION...377

II. FACTUAL AND PROCEDURAL BACKGROUND...379

A. SK's Shipping Contract with LWI and Charter of the SANKO...379

B. SK's Malaysian Loading Operations of the SANKO...380

C. SK's Camden Discharging Operations of the SANKO ...381

1. The “cut” sling and Plaintiff's Injuries...384

III. STANDARD OF REVIEW...385

IV. DISCUSSION...386

A. Section 905(b) Duties under the LHWCA, Generally...386

1. Turnover Duty of Grandslam, the “bareboat charterer”...388

a. Plaintiff cannot establish a prima facie breach of Grandslam's turnover duty...389

b. No contract, positive law, or custom supplants the application of the general duties under Scindia....391

2. Turnover duty of SK, the “time charterer”...393

a. Genuine issues of fact preclude the entry of summary judgment in favor of SK...393

b. Genuine issues of fact preclude a finding that the “cut” sling was “open and obvious”...394

V. CONCLUSION...395

I. INTRODUCTION

While working as a longshoreman on Camden, New Jersey's Pier No. 1 during cargo operations conducted by his employer, the Delaware River Stevedores, Inc. (hereinafter, “DRS”), on M/V SANKO SUMMIT (hereinafter, “SANKO”), Plaintiff Ronald Jones (hereinafter, “Plaintiff”) suffered serious injuries when a “cut” sling parted, and caused a pre-slung plywood bundle to fall on his legs. There is no dispute that the sling, which is made of rope of almost one inch in diameter, contained a cut that had penetrated about 80% of the thickness near the loops in the sling that were used to hoist the cargo from the hold to the dock, where Plaintiff awaited.

As a result of these injuries, Plaintiff brings claims under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b)

(hereinafter, the “LHWCA”), against a bevy of entities,¹ including the owner of the SANKO, Defendant Sanko Steamship Co. Ltd (hereinafter, “Sanko Steamship”),² the bareboat charterer/owner pro hac vice of the SANKO, Defendant GrandSlam Enterprise Corp. (hereinafter, “Grandslam”),³ the “time charterer” of the SANKO and owner of the rope sling at issue in this litigation, Defendant SK Shipping Co., Ltd. (hereinafter, “SK” or “SK Shipping”),⁴ the Korean contractor that maintained SK's rope slings prior to their application to the plywood cargo,⁵ Defendant Hyundae Ship Supply Co. (hereinafter, “Hyundae Supply”), and the stevedoring company that loaded the plywood in the Malaysian port of Tanjung Manis, Defendant Harmony Stevedoring Services (hereinafter, “Harmony Stevedoring”).⁶

Following years of discovery, Grandslam and SK now separately move for summary judgment, based upon their belief that the undisputed record demonstrates, as a matter of law, that they breached none of the duties owed to Plaintiff under section 905(b) of the LHWCA or general maritime law. Grandslam, as the bareboat charterer/owner pro hac vice of the SANKO, specifically argues that it cannot, as a matter of law, be found in breach of its duties under section 905(b) of the LHWCA, because the disputed sling came aboard the SANKO after the vessel had been turned over to the independent stevedore hired by SK, and because it had no part in the use of the rope slings, nor any involvement in the loading of the plywood cargo. (See generally Grandslam's Br. at 21-38; Grandslam's Reply at 3-10.) As a result, Grandslam claims that it had no duty to inspect or supervise the Malaysian stevedore's use of rope slings in connection with the plywood shipment, and cannot be charged with any negligence based upon the condition of the disputed rope sling. (See generally Grandslam's Br. at 21-38; Grandslam's Reply at 3-10.) SK, as time charterer of the SANKO, similarly argues that it breached no duties in relation to Plaintiff's injuries, because no evidence reflects that SK had responsibility for, knew of, or should have known of the deep “cut” on its rope sling, and because maritime law entitled SK to rely upon the expertise of the independent stevedores (here and abroad). (See generally SK's Br. at 21-38; SK's Reply at 3-10.) Indeed, given the nature of the damage to the rope sling—being “cut” rather than “frayed or worn” from use—SK submits that Plaintiff “cannot prove that [it] failed to act reasonably.” (SK's Reply at 1-3.)

Plaintiff, by contrast, takes the position that factual issues relative to Grandslam's and SK's discharge of their duties preclude the entry of summary judgment in either parties' favor. (See generally Pl.'s Grandslam Opp'n at 22-37; Pl.'s SK Opp'n at 23-48.) Plaintiff points, in particular, to evidence that Grandslam failed to inspect the cargo slings or to otherwise ensure the condition of the slings prior to the commencement of cargo operations in Camden (see Pl.'s Grandslam Opp'n at 26-38); and to evidence that SK separately failed to discover, remedy, prevent, and/or disclose the dangerous condition of the rope slings. (See Pl.'s SK's Opp'n at 32-48.)

The parties are in agreement (1) that the rope sling at issue came aboard the SANKO while in port at Tanjung Manis; (2) that the exact source of the “cut” cannot be scientifically determined (or drawn out through the robust discovery in this action); and (3) that that the single “cut” could have occurred at any time prior to Plaintiff's incident. Against this backdrop, this case calls upon the Court to consider the duties, if any, owed to stevedoring longshoremen by “bareboat” and “time charterers” under section 905(b) of the LHWCA, Scindia Steam Navigation Co. v. De Los Santos , 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981)

, Howlett v. Birkdale Shipping Co., S.A. , 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994), and general maritime law. More specifically, the Court must determine the nature of the independent duties, if any, owed by Grandslam and SK to Plaintiff as an off-loading longshoremen, and must then consider whether genuine issues of fact exist on whether each entity acted in compliance with those duties in relation to the “cut” rope sling.

For the reasons that follow, Grandslam's motion for summary judgment will be granted, and SK's motion for summary judgment will be denied.⁷

II. FACTUAL AND PROCEDURAL BACKGROUND

A. SK's Shipping Contract with LWI and Charter of the SANKO⁸

SK Shipping, a company headquartered in Seoul, Korea, specializes in providing shipping services for owners of various commodities.⁹ (See SK's SMF at ¶ 1; Pl.'s SMF at ¶ 1.) In early 2010, Liberty Woods contracted with SK to transport a ship-load of “plywood in bundles” from manufacturers in various ports in Malaysia and Indonesia to the United States. (See SK's SMF at ¶ 1; Pl.'s SMF at ¶ 1.)

In order to ship Liberty Woods' plywood, SK Shipping entered into a “Time Charter” agreement with Sanko Steamship on October 2, 2010, in which it “time chartered” the SANKO, a bulk carrier made up of eight (8) discrete open-hatch cargo holds. (See Ex. C to SK's SMF; Pl.'s SK SMF at ¶¶ 2-4; Grandslam's SMF at ¶ 23; SK's SMF at ¶ 53.) SK then separately arranged for “[a]t least 22,400 rope slings”¹⁰ to be delivered to the vessel by Hyundae Supply, the Korean entity that long-maintained SK Shipping's inventory of “previously used slings.”¹¹ (SK's SMF at ¶¶ 7, 12-13; see also Lee Dep. at 18:20-19:18; Ex. 20 to Pl.'s SK SMF (stating that Hyundae sorted only “used slings” for use on the SANKO).) These slings consisted of 22mm (? inch) three-strand polypropylene rope, with a minimum rated breaking strength of 15,225 lbs.¹² (See Att. C to Flory Rep.; SK's SMF at ¶ 9; Ex. 33 to Pl.'s Grandslam SMF (Bill of Lading relative to Hyundae's shipment of rope slings).)

B. SK's Malaysian Loading Operations of the SANKO

In advance of shipping, the plywood manufacturer readied the plywood for shipment by stacking, banding, and covering sheets of plywood to create a rectangular bundle, which measured four feet in width, two feet in height, and eight feet in length, and weighed approximately 2,000 lbs. (See Att. C to Flory Rep.; SK's SMF at ¶ 31; Pl.'s SK SMF at ¶ 31.) Independent foreign stevedores then loaded and stowed the SANKO's hold with bundles of plywood (among other goods) in five ports throughout Malaysia and Indonesia.¹³ (See SK's SMF at ¶ 26; Grandslam's SMF at ¶ 27; Pl.'s SK SMF at ¶ 26.)

As relevant here, cargo operations in Tanjung Manis, Malaysia took place from March 20, 2010 to March 25, 2010, under the supervision of SK's Malaysian Port Captain Jeong Hyun Kim.¹⁴ (See Grandslam's SMF at ¶ 28; Pl.'s Grandslam SMF at ¶ 28; Kim Dep. at 104:8-113:19 (describing SK's loading port captain duties relative to cargo operations).) Indeed, on the first day of cargo operations, Port Captain Kim performed a “visual” inspection of the rope slings, and then held a “pre-loading meeting” at which time he instructed cargo workers (including the Malaysian stevedores) to separate and discard any damaged slings.¹⁵ (Kim Dep. at 35:1-17, 45:22-46:2, 113:10-19; Ex. 22 to Pl.'s SK SMF (Kim Statement of Facts regarding cargo operations in Malaysia).)

Harmony Stevedoring then positioned barges alongside the SANKO and lifted, loaded, and stowed 10,176 plywood bundles—either by chains or rope slings—into one of SANKO's eight...