Martinez v. Korea Shipping Corp., Ltd.

Decision Date07 June 1990
Docket NumberNo. 88-6460,88-6460
PartiesArmando MARTINEZ, Plaintiff-Appellant, v. KOREA SHIPPING CORP., LTD.; Hyundai Heavy Industries Company, Ltd., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Preston Easley, Law Offices of Preston Easley, San Pedro, Cal., for plaintiff-appellant.

Forrest R. Cogswell and Michael Reese Davis, Williams, Woolley, Cogswell, Nakazawa and Russell, Long Beach, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, Chief Judge, SCHROEDER and BEEZER, Circuit Judges.

GOODWIN, Chief Judge:

Armando Martinez, an injured longshoreman, appeals a grant of summary judgment in favor of defendant ship owner. Martinez alleges that Korea Shipping Corporation (KSC) negligently provided an unreasonably dangerous vessel for cargo loading and is therefore liable for injuries Martinez sustained while working on board the vessel. Finding that KSC met its duty of care to Martinez, the district court granted KSC's motion for summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

Martinez is a longshoreman employed by Marine Terminals Corporation, a stevedoring company contracted by KSC to load and unload cargo containers on board their vessel the KOREAN WONIS SEVEN (the vessel). Martinez's duties entail installing and releasing lashing bars and turnbuckles that secure cargo containers to the vessel. The vessel is owned and operated by KSC and was manufactured by Hyundai Heavy Industries Company, Ltd.

Martinez sustained serious back injuries when he fell through an unguarded ladder opening on a lashing platform six feet above the deck. The ladder ascends between a catwalk and a lashing platform into a three foot by three foot circular opening. The opening is neither covered nor surrounded by a guard rail. The accident occurred when, after unlashing the last container on the platform, Martinez turned toward the catwalk to put the removed lashing bar down. The bar was six to ten feet long and Martinez was maneuvering it from a vertical to horizontal position as he walked. While turning and stepping, Martinez failed to notice the ladder opening and fell through it.

Martinez collected his statutory compensation through his employer and then sued KSC claiming that the unguarded ladder opening created an unreasonably dangerous condition that could not be corrected by the longshoremen. He alleged that KSC was liable under the theories of negligence, products liability and breach of express and implied warranties of fitness and merchantability.

KSC moved for summary judgment and the district court granted the motion. The court found that KSC complied with the relevant shipowner duties and that the exclusive duty to take any necessary safety precautions fell on the stevedore. The court also found that the lashing platform was reasonably safe for longshoremen to work and that Martinez could not maintain a products liability suit against KSC.

Summary judgment may be granted only if, viewing the evidence in the light most favorable to the nonmoving party, there is no "genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Martinez does not dispute that a products liability suit is untenable against KSC. 1 Rather, he argues that KSC was negligent for failing to provide a reasonably safe working environment. Specifically, he argues that material questions of fact must be resolved by a jury before KSC's compliance with its duties as a vessel owner can be adjudged.

Both parties agree that the Supreme Court's decision in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) provides the legal and analytic framework for this case. In Scindia, the Supreme Court articulated three general principles to govern the duties of vessel owners towards longshoremen. 451 U.S. at 166-79, 101 S.Ct. at 1621-28. First, before turning the ship over to the stevedore, a vessel owner must "exercise 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." Id. at 167, 101 S.Ct. at 1622. The vessel owner must also warn the stevedore of hidden unsafe conditions on the vessel of which the owner is, or should be, aware. Id.

Second, once the stevedore has begun its work, the shipowner has no duty to inspect equipment or supervise the longshoremen unless contract provisions, regulations or custom dictate to the contrary. The vessel owner is not obligated to monitor the stevedore's operation; rather the owner is entitled to rely on the experience and reasonableness of the workers. Id. at 172, 101 S.Ct. at 1624.

Third, an exception exists to the general absence of vessel owner duty to protect longshoremen. If after the vessel is turned over to the stevedore the owner becomes aware that the ship's gear is malfunctioning, a risk of harm exists, and the stevedore, as a result of "obvious improvident" judgment, has failed to protect the workers against the danger, then the owner is under a duty to intervene in the stevedore's operation and remedy the dangerous condition. Id. at 175-76, 101 S.Ct. at 1626-27.

Martinez asserts that KSC violated all three aspects of its duty. Specifically, he claims that (1) KSC failed to turn the vessel over to Marine Terminals Corporation in a reasonably safe condition; (2) KSC violated its contractual obligations under a collective bargaining agreement and its duties under the Pacific Coast Marine Safety Code; and (3) KSC should have intervened to protect Martinez and his co-workers from the unsafe lashing platform. We find that material issues of fact exist with regard to the first contention, but agree with the district court that, as a matter of law, the remainder of Martinez's contentions lack merit.

A. DUTY TO TURN THE VESSEL OVER IN A REASONABLY SAFE CONDITION

In Scindia, the Supreme Court distinguished a negligence claim from a strict liability cause of action for unseaworthiness. Prior to 1972, if a longshoreman was injured as a result of a vessel's unseaworthiness, he could receive compensation from his employer (the stevedore) as well as damages from the vessel owner. If the unsafe condition rendered the vessel unseaworthy, vessel owner liability was strict and required no evidence of fault. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90, 66 S.Ct. 872, 875, 90 L.Ed. 1099, reh'g denied, 328 U.S. 878, 66 S.Ct. 1116, 90 L.Ed. 1646 (1946). See generally Benedict On Admiralty Sec. 91, 5-2--5-4 (7th ed. 1988). In 1972, Congress amended the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950, to foreclose a cause of action for unseaworthiness. See Scindia, 451 U.S. at 165, 101 S.Ct. at 1621. The 1972 amendments to the LHWCA abolished this cause of action, leaving only a statutory negligence action. See 33 U.S.C. Sec. 905(b).

While the Scindia Court defined a shipowner's duty of care under the amended LHWCA, it did not address directly whether a court or a jury should decide whether the shipowner breached its duty. It is sometimes said that a determination of negligence is a mixed question of law and fact. Barnett v. Sea Land Service, Inc., 875 F.2d 741, 745 (9th Cir.1989); Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). The existence and extent of a duty of care are questions of law, but proximate cause and whether such a duty has been breached are questions of fact. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir.1985). Summary judgment is rarely granted in negligence cases. Whether the defendant acted reasonably is ordinarily a question for the trier of fact. See Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d Sec. 2729 (2d ed. 1983); see also Bueno v. United States, 687 F.2d 318 (9th Cir.1982) (grant of summary judgment to vessel owner reversed). Cf. Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir.1981) ("Courts should exercise special care in considering summary judgment in Jones Act cases which require a very low threshold for submission to the jury.").

In this case the district court decided as a matter of law that KSC did not breach its duty. Viewing the evidence in the light most favorable to Martinez, however, we find that a material question of fact is whether an obvious situation--an unguarded ladder opening--constitutes an unreasonably dangerous condition to expert and experienced stevedores. If so KSC could be found negligent in turning the ship over to the stevedore for cargo operations. Scindia, 451 U.S. at 167, 101 S.Ct. at 1622.

The parties themselves dispute whether the unguarded ladder opening on the lashing platform constitutes an unreasonably dangerous condition. Martinez contends that the ladder opening was unsafe and dangerous to the stevedore. He presented affidavits from a naval architect and a marine engineer who both agree that the vessel is unsafe. Photographs of other vessels that have guardrails around the ladder openings were also submitted.

KSC, on the other hand, submitted the affidavits of a licensed ship master and a naval architect, who claimed that the platform is standard in the industry and meets international requirements. KSC also offered evidence that during the vessel's seven years of operation no longshoreman ever fell into one of the ladder openings on the lashing platforms and no complaints were lodged concerning the platforms.

On the basis of KSC's evidence, the district court found that KSC met its duty to provide a reasonably safe ship to an expert and experienced stevedore; an accident was not reasonably...

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