Kirsch v. Plovidba

• Decision Date: 31 August 1992
• Docket Number: No. 91-1915,91-1915
• Citation: 971 F.2d 1026
• Parties: William KIRSCH, Appellant, v. Prekookeanska PLOVIDBA, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 1026

971 F.2d 1026

1992 A.M.C. 2747

William KIRSCH, Appellant, v. Prekookeanska PLOVIDBA, Appellee.

No. 91-1915.

United States Court of Appeals, Third Circuit.

Argued May 4, 1992.

Decided July 30, 1992.

Rehearing Denied Aug. 31, 1992.

Charles Sovel (argued), Freedman & Lorry, P.C., Philadelphia, Pa., for appellant.

Richard Q. Whelan (argued), Gary Francis Seitz, Palmer Biezup & Henderson, Philadelphia, Pa., for appellee.

Before: BECKER, NYGAARD, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is a longshoreman's personal injury action that requires us to determine the contours of a shipowner's duty to turn over its ship in a condition that an expert stevedore acting with reasonable care can operate safely. Such a duty is imposed by section 5(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b), as interpreted in Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). We conclude that, under Scindia, a shipowner is subject to liability for the injuries of longshore workers who fail to avoid an obvious danger only if the shipowner should have expected that the stevedore and its longshore workers could not or would not avoid the danger and conduct cargo operations reasonably safely.

In this case, the plaintiff-appellant was injured when he slipped and fell while loading cargo aboard a ship owned by the defendant-appellee, as a result, he claims, of the shipowner's negligence in turning over the ship with a large oil slick in a cargo hatch. We conclude that the oil slick, as alleged, was obvious, and that the shipowner could reasonably have relied on the stevedore and its longshore workers to clean up or treat the slick or to have others do so. We will therefore affirm the district court's grant of summary judgment to the shipowner.

I. FACTS AND PROCEDURAL HISTORY

On May 19, 1989, plaintiff-appellant William Kirsch was employed as a longshoreman by Holt Cargo Systems, Inc. ("Holt"), a stevedore with terminal facilities at Gloucester, New Jersey. The defendant-appellee, Prekookeanska Plovidba ("Prekookeanska") had hired Holt to load cargo containers aboard its vessel, the M/V Ivangrad, which had arrived early that morning at Holt's terminal. Prekookeanska turned the ship over to Holt, an expert and experienced stevedore, at 8:00 that morning, and two gangs of longshore workers employed by Holt boarded the ship. Kirsch, an experienced longshoreman, served as a hold worker in the gang headed by James Phillips, which was assigned to load cargo containers in the No. 4 hold.

The cargo containers were of standard size, measuring twenty feet long by eight feet wide by eight feet high. When such containers are loaded into a hold such as the one in the Ivangrad, they are secured with "pineapple" clamps, so called because of their resemblance to the fruit. Longshore workers position the clamps in slots in the deck of the hold, then load the containers aboard the ship with a crane and fit them onto the clamps, which are then locked. Workers thereupon climb on top of the first layer of containers and place additional clamps on top of the containers, and the process is repeated for each tier of cargo.

When the Phillips gang, including Kirsch, entered the No. 4 hold, the hold was empty, but they discovered a thin coating of oil covering a substantial portion of the deck of the hold. The origins and size of the oil slick are disputed, but in view of Kirsch's supporting affidavits and deposition testimony, we must assume, for purposes of this summary judgment motion, that (1) the slick was present when Prekookeanska turned the ship over to Holt, and (2) it was so large that the longshore workers could not traverse the deck of the hold without stepping in the oil. ¹ The Phillips gang noticed and complained about the oil before the start of cargo operations but none of Holt's employees took any action to have the slick cleaned up or to have traction improved by the apparently customary remedy of placing sawdust on the oil, even though Holt had sawdust available.

The oil on the deck of the hold made the surface slippery, and some of the workers, including Kirsch, slipped while initially searching for the clamps, which were stored in the hold. Although Kirsch did not fall at this time, apparently some of the oil remained on his shoes. Loading of the first tier of containers continued for about fifteen minutes without incident. Shortly before Kirsch's accident, however, another longshoreman had climbed up on top of the first tier to ready clamps for loading of the second tier. Kirsch remained on deck, but when the crane operator inadvertently knocked off one of the clamps, Kirsch climbed up on the container to reset the clamp. As Kirsch walked on top of the container, he slipped because of the oil on his shoes and fell eight feet to the deck below, badly injuring his feet.

Kirsch brought suit against Prekookeanska, alleging that Prekookeanska's negligence had caused his injuries. ² The district court had jurisdiction under 28 U.S.C. § 1331 (1988) and, because Prekookeanska was an instrumentality of the government of Yugoslavia, under 28 U.S.C. § 1330(a) (1988). On September 17, 1991, the district court granted summary judgment for Prekookeanska, explaining its reasoning in a bench ruling. Kirsch filed a timely appeal. We have jurisdiction over the final judgment of the district court under 28 U.S.C. § 1291 (1988). Our scope of review is plenary.

II. DISCUSSION

A. Overview of the Duties of a Shipowner

Section 5(b) of LHWCA, 33 U.S.C. § 905(b), grants longshore workers a statutory cause of action against negligent shipowners. ³ That section does not, however, specify precisely what standards should be used to gauge a shipowner's conduct. Instead, as the Supreme Court recognized in the leading case interpreting the statute, Congress left the matter for the courts to resolve. Scindia, 451 U.S. at 165-66 & n. 13, 101 S.Ct. at 1621 & n. 13. ⁴

In Scindia, the Court reiterated that the vessel owes to the stevedore and its longshore employees a duty to exercise due care under the circumstances. Id. at 166, 101 S.Ct. at 1622 (citing Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 415, 89 S.Ct. 1144, 1150, 22 L.Ed.2d 371 (1969). Justice White's opinion for a unanimous Court recognized a shipowner's "turnover duty" comprising both a duty to provide safe conditions and a corollary duty to warn of known, nonobvious hazards:

This duty extends at least to exercising 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 to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known to the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work....

The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools, and work space to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman.

451 U.S. at 167, 101 S.Ct. at 1622 (citation omitted).

Scindia went on to mention a second type of duty, a duty when the ship's crew itself actively participates in cargo operations:

It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.

Id.

Scindia itself turned on the contours of a third type of duty, the ship's crew's duty to intervene after a stevedore has begun cargo operations. In that case, the plaintiff longshoreman alleged that he was injured when he was hit by falling cargo from a pallet that was being held by a winch that was part of the ship's gear. He alleged that the shipowner knew or should have known that the winch had been malfunctioning for several days, but did nothing. The Court held that, absent a contract, positive law, or custom to the contrary, the shipowner had no continuing duty to learn of dangerous conditions by inspecting or supervising the stevedoring operation. Id. at 172, 101 S.Ct. at 1624. But the Court also held that, on the facts of that case, if the ship's crew knew or was charged with knowing that the stevedore was "obviously improvident" by proceeding with the defective winch, the shipowner had a duty to intervene and repair the winch. Id. at 175-76, 101 S.Ct. at 1626.

The major distinction between the turnover duty and the duty to intervene is that the turnover duty covers the shipowner's conduct before cargo operations have begun, while the duty to intervene addresses conduct after turnover. Scindia holds that the shipowner has no continuing duty to inspect or supervise cargo operations conducted by the stevedore after turnover. But Scindia does not cast any doubt on the shipowner's duty to inspect the ship for hazards before turning the ship over to the stevedore, because inspection is integral to providing the stevedore with a reasonably safe workplace, a duty that Scindia explicitly recognized. For example, the shipowner's duty to warn the stevedore of hidden dangers necessarily implies a duty to inspect to discover those dangers.

Kirsch alleges only breach of the...