Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

4-7-2004

Jackson v. Egyptian Navigation Precedential or Non-Precedential: Precedential

Docket No. 02-3828

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Recommended Citation "Jackson v. Egyptian Navigation" (2004). 2004 Decisions. Paper 753. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/753

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Stewart L. Cohen William D. Marvin (Argued) UNITED STATES COURT OF Steven L. Smith APPEALS FOR THE THIRD CIRCUIT Kessler Cohen & Roth Philadelphia, PA 19102

02-3828 Attorneys for Appellants

Richard Q. Whelan (Argued) RONALD JACKSON and Gary Francis Seitz PAMELA JACKSON, h/w, Palmer, Biezup & Henderson Philadelphia, PA 19106 Appellants Attorneys for Appellee v.

EGYPTIAN NAVIGATION COMPANY, OPINION OF THE COURT

Appellee FRIEDMAN, Circuit Judge.

In this case a longshoreman Appeal from an Order employed by a stevedoring company Of the United States District Court seeks to recover under the Longshore For the Eastern District of Pennsylvania and Harbor Workers’ Compensation Act, (E.D. Pa. No. 99-5695), (“Longshore Act”),

Dismissing Plaintiff’s Complaint on (2000), from the shipowner for injuries he Defendant’s Motion for Summary suffered while unloading the ship. The Judgment longshoreman’s theory is that the District Judge: Hon. Michael M. Baylson shipowner was negligent because it failed to provide him with a safe place to work. The district court dismissed the complaint, Argued December 2, 2003 and we affirm.

Before: SLOVITER, ALITO and I FRIEDMAN,* Circuit Judges A. The appellant Ronald Jackson (Filed: April 7, 2004) (“Jackson”) was employed as a longshoreman by Delaware River Stevedores. He was injured while unloading a cargo of steel coils from a ship owned by the appellee Egyptian * Daniel M. Friedman, United Navigation Company (“Egyptian”) (an States Senior Circuit Judge for the Egyptian corporation) that had arrived in Federal Circuit, sitting by designation. Camden, New Jersey the previous day.

1 The cargo had been loaded in Turkey by was also dunnage placed between the a different stevedoring company. various coils to prevent their movement.

The ship contained two holds, one There was no direct evidence on above the other. The unloading of the top how or when the board had been placed hold began at 8 a.m. and was completed between the ladder rung and the stowed at 11 a.m. The ship’s crew members then cargo. The ship’s First Officer indicated in opened the cover of the lower hold, and his deposition that in his daily inspections the longshoremen climbed into that hold of the cargo area during the voyage, he to start unloading the cargo stored there. never noticed any plank in that position. Jackson’s theory is that the board was Jackson was the fifth person to placed in that position by the Turkish descend into the lower hold. The first stevedore when it loaded the cargo in man down was a superintendent from the Turkey and that it remained there during stevedoring company; he was followed by the ship’s transatlantic voyage. three other longshoremen. B. Jackson and his wife then filed As Jackson descended a ladder on the present damages action in the United the side of the lower hold, he saw the four States District Court for the Eastern others standing on top of the coils about District of Pennsylvania against Egyptian. ten feet above the floor of the hold. Upon The complaint alleged that Jackson’s fall going down the ladder, he saw a narrow “was caused by the sudden failure of the piece of wood extending from one of the means provided by defendant to walk rungs of the ladder (which was about ten from an access ladder permanently feet above the floor of the hold) across an affixed to the vessel, to the top of the open space of approximately four or five cargo, approximately ten feet above the feet to the top of the coils. Apparently floor of the hold”; that Jackson “had been believing that the other men had walked directed to use this ladder and means of across the board to reach the cargo, access by the crew of the defendant’s Jackson started to walk over the board. vessel, in order to reach the cargo in the The board broke; Jackson fell ten feet to lower hold”; and that “[t]he conditions the floor of the hold and was seriously which caused plaintiff’s injuries were injured. created by defendant no later than when the cargo was loaded overseas, and It turned out that the board was defendant allowed those conditions to made of dunnage, a cheap and weak remain for the entire length of the form of wood that stevedores regularly voyage.” The complaint further alleged use in connection with stowing cargo to fill that the defendant “knew or should have in empty spaces and thus reduce or known” that “the conditions in the hold eliminate movement by the cargo during and the means for access to the cargo the voyage. The parties agree that the were improper, defective, inadequate, Turkish stevedore had supplied and dangerous, and unsuitable,” that the placed dunnage in the lower hold. The “plaintiff and the other stevedores would stowed cargo sat upon dunnage that was be required to use these means for between it and the floor of the hold; there access, because there was no other way

2 for them to reach the cargo to prepare it Jackson, 222 F.Supp. 2d at 709. for unloading,” and that “because of the conditions in the hold, including the The court ruled that Jackson was physical arrangement of the ladder and “unable to prove” that the “Defendant had cargo access, and the poor lighting notice of the plank, but failed to take any conditions, the plaintiff and other action,” id. at 707, that the “Defendant stevedores would not be able to discover knew or should have known that the the danger or protect themselves from it.” longshoremen would disregard the risk Finally, the complaint stated: posed by the plank,” id. at 708, or that “the hazard posed by the plank was not Defendant’s acts and open and obvious to the longshoremen,” omissions as set forth id. at 709. It therefore concluded that the above, by its agents, three factual disputes that Jackson servants and employees, contended precluded summary judgment were careless and did not present any “genuine issues of negligent, making material fact.” Id. at 707. defendant liable to plaintiffs under general maritime law II and the laws of the jurisdiction where the injury A. Prior to 1972, a longshoreman occurred. injured while working aboard a ship could recover from the ship under the After some discovery, the district Longshore Act without proving court granted Egyptian’s motion for n e g l i g e n ce , p u r s u a n t t o t h e summary judgment and dismissed the unseaworthiness doctrine that made the complaint. Jackson v. Egyptian ship absolutely liable for such injuries. Navigation Co.,

(E.D. See Scindia Steam Navigation Co. v. De Pa. 2002). After discussing relevant Los Santos,

, 172 decisions of the Supreme Court and this (1981). In 1972, however, Congress court, the district court pointed out that significantly changed the basis of the “[t]he parties do not dispute that, based shipowner’s liability. It eliminated liability on the allegations of Plaintiff’s Complaint, based on unseaworthiness and provided and the facts and evidence adduced, only that “[i]n the event of injury to a person the shipowner’s turnover duty is covered under [the Longshore Act] implicated here,” id. at 704, i.e., the duty caused by the negligence of a vessel, to turn over to the stevedore a safe place then such person . . . may bring an action to work and “to warn of known, against such vessel.”

(b). nonobvious hazards,” Serbin v. Bora “Section 905 (b) did not specify the acts Corp.,

(3d Cir. 1996) or omissions of the vessel that would (quoting Kirsch v. Plovidba, 971 F.2d constitute negligence.” Scindia,

, 1028 (3d Cir. 1992)). The court at 165. In Scindia and Howlett v. Birkdale held that the “Plaintiff has produced no Shipping Co.,

(1994), the evidence from which a jury could Supreme Court explained the scope and reasonably conclude that Defendant parameters of the ship’s duty to the breached any duty owed to Plaintiff.” longshoremen working on it for a

3 stevedoring company. not known by the stevedore[,] and would not In Howlett, the Court stated that be obvious to or anticipated Scindia had “outlined the three general by him if reasonably duties shipowners owe to longshoremen. competent in the The first, which courts have come to call performance of his work.” the ‘turnover duty,’ relates to the condition of the ship upon the commencement of

(internal citations omitted). stevedoring operations.”

. As we have noted, the present case, like The Court in Howlett also pointed Howlett, involves only the ship’s “turnover out that “there can be no recovery under duty.” [§ 905(b)] for a vessel’s failure to warn of dangers that would be apparent to a Under that duty longshore man of reasonable [a] vessel must “exercise competence.” Id. at 104. “[T]he vessel’s ordinary care under the turnover duty to warn of latent defects in circumstances” to turn over the cargo stow and cargo area is a narrow the ship and its equipment one. The duty attaches only to latent and appliances “in such hazards, defined as hazards that are not condition that an expert and known to the stevedore and that would be experienced stevedoring neither obvious to nor anticipated by a contractor, mindful of the skilled stevedore in the competent dangers he should performance of its work.” Id. at 105. reasonably expect to encounter, arising from the This court has recognized the hazards of the ship’s obviousness limitation on the ship’s duty service or otherwise, will be to warn. In Serbin, this court stated that in able by the exercise of Howlett the Supreme Court held in a ordinary care” to carry on turnover duty case that if “the hazard . . . cargo operations “with was obvious to a competent stevedore, reasonable safety to summary judgment would be appropriate persons and property.” A for the ship,” and that this court “had corollary to the turnover already decided that obviousness was a duty requires the vessel to bar to liability under the turnover duty.” warn the stevedore “of any

. hazards on the ship or with respect to its equipment,” B. Jackson contends that the ship so long as the hazards “are violated its turnover duty because it knew known to the vessel or of the board’s location in the lower hold should be known to it in the and because the presence of the board exercise of reasonable was not an obvious danger that the care,” and “would likely be stevedore should have immediately e n c o u n t e r e d by t h e ameliorated but was a concealed defect stevedore in the course of of which the ship was required to warn the his cargo operations[,] are stevedore. The district court correctly

4 ruled that under the governing principles was overweight or discussed above, Jackson had not shown underweight, it doesn’t that Egyptian violated its turnover duty make a difference. Stability and that Jackson’s contentions did not rules have to be followed all raise any disputed issues of material fact the way through. that precluded summary judgment.

. Under the foregoing analysis, it is irrelevant that Jackson’s injury resulted Even if one were to assume, not from his slipping and falling off the contrary to the district court’s ruling and board but from the board breaking while the evidence in the record, that the board he was walking across it. The obvious was placed in that position by the Turkish hazard the board created for the stevedore, remained there during the longshoremen was that it would be entire voyage, and that the ship was dangerous for them to use as a bridge aware of its presence there, Jackson still between the ladder and the cargo – not could not prevail. The ship has no duty to because it was inferior wood that was warn about an obvious hazard in the work likely to break but because it was so area that a competent stevedore would be narrow and unprotected that there was a expected to discover while properly serious danger that anyone who used it performing its duties. There is no claim might slip and fall off it. Although use of that the stevedore here was not the board was more hazardous because competent. The presence of the board the board itself was internally weak, the was an obvious hazard, and the nature of the hazard the board posed was stevedore’s superintendent, who was the not changed by the nature of the injury first employee to descend into the lower Jackson suffered. hold in connection with the cargo removal, should either have removed the board or Jackson argues that even if the warned the longshoremen not to use it in board posed an obvious danger, this case moving from the ladder to the cargo. comes within this court’s ruling in Kirsch that the ship may be liable for injuries The ship’s First Officer explained caused by obvious dangers “if the the danger the board presented to the shipowner should have expected that the safety of the longshoremen: stevedore and its longshore workers could not or would not avoid the danger.” [I]t’s very easy for 971 F.2d at 1026. In rejecting this somebody to slip on a 10 contention, the district court ruled that centimeter-wide piece of there was “no record evidence supporting wood. And . . . usually, the [Jackson’s] contention that [Egyptian] laborer will never go on top knew or should have known that the of that because it’s [not longshoremen would disregard the risk safe], and he doesn’t jump posed by the plank.” Jackson, 222 because jumping is against F.Supp. 2d at 709. For example, the First stability and he could still Officer stated that no member of the lose his stability and fall ship’s crew used the board to reach the down. . . . [W]hether he cargo and that he did not see anyone

5 using the board as a bridge.

This court has stated that questions relating to the existence and obviousness of hazards in the cargo area “generally” are not to be decided on summary judgment but require a trial. Serbin,

; Kirsch, 971 F.2d at 1030. This case, however, comes within the exception to that principle. Here the evidence is unequivocal that the board’s presence and placement presented an obvious danger and hazard to the safety of a longshoreman unloading the cargo, which the stevedore should and could have corrected and for which the shipowner was not liable. See Serbin,

. There is no evidence from which a reasonable jury could have concluded otherwise.

In view of our conclusion on that issue, we need not consider Jackson’s contentions that the board was in its position in the lower hold before anyone descended to that area to unload it and that the ship knew of its presence.

The order of the district court granting the defendant’s motion for summary judgment is affirmed.

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