Petition for Writ of Certiorari — Farrell Lines Inc. v. Dino

; Supreme Court, U.S.

FILED

ak

001620 APR z 0 2008

No. 00-

a

IN THE

Supreme Court of the United States

FARRELL LINES INCORPORATED,

Petitioner,

Vv.

JOSEPH DINO, PATRICIA DINO, AND AMERICAN

MARITIME SERVICE OF NEW YORK, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

So oon

PETITION FOR A WRIT OF CERTIORARI

PETER A. JUNGE

LAMBOS & JUNGE

Attorneys for Petitioner

29 Broadway - 9" Floor

New York, New York 10006

(212) 381-9700

166420 cel

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

This case presents fundamental questions concerning

shipowner liability for personal injuries to longshore workers

in third-party actions under § 5(b) of the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”),

33 U.S.C. § 905(b). In Scindia Steam Navigation Co. v.

De Los Santos, 451 U.S. 156 (1981), this Court established

the parameters of shipowner’s liability under the LHWCA

and held that a shipowner has a duty to turnover a vessel in a

reasonably safe condition and to warn the stevedore of hidden

dangers which might be confronted by the stevedore’s

longshore employees.

In the present case, which involves a shipboard accident

to a longshore worker, the court of appeals reversed the

district court’s grant of summary judgment in favor of

Petitioner, a shipowner, for two reasons. First, it held that

Petitioner had failed to present evidence that an obvious

shipboard hazard could have been avoided, and thus shifted

the established burden of proof from plaintiff to defendant.

Second, it held that anecdotal statements indicating that

longshoremen work in all weather conditions under time

pressures were sufficient to establish Petitioner’s negligence

because Petitioner should have expected that the longshore

worker, or his stevedore employer, would not have corrected

or avoided an obvious hazard. As such, the court of appeals

found that Petitioner’s negligence could be established solely

on universai realities inherent in longshoring which exist in

every port in the United States, effectively creating an

absolute standard of liability applicable to all shipowners in

any case involving the Scindia “turnover” duty.

il

It is submitted that a writ of certiorari is warranted in

order to resolve the following questions:

1)

2)

Did the court of appeals depart from the accepted

and usual course of judicial proceedings when it

shifted the burden of proving whether an obvious

hazard could have been avoided from the plaintiff-

longshore worker to the defendant-shipowner? That

is, should a shipowner be required to prove that it

was not negligent under § 5(b) of the LHWCA?

Did the court of appeals, contrary to Scindia, create

a heretofore unrecognized absolute basis of liability

under § 5(b) of the LHWCA, akin to the abrogated

warranty of seaworthiness, by permitting the

- longshore worker to establish shipowner negligence

based on nothing more than generalizations about

the nature of the stevedoring industry, and not upon

facts specific to the case?

iil

STATEMENT PURSUANT TO RULE 29.6

Petitioner Farrell Lines Incorporated states that it is a

wholly owned subsidiary of P&O Nedlloyd Limited and that

Farrell Lines Incorporated has no publicly-traded stock.

iv

TABLE OF CONTENTS

Page

Questions Presented ...........----eeeeeeeeee i

Statement Pursuant to Rule 29.6 ............... ill

Tilbhn OF COMING nn icc ccc wba eeccisdcuarsenss iV

Table of Cited Authorities ..... SO pa RARE Ee ct vi

Table of Appendices ...........-.-22-eeeeeees Vill

Opinions Below ...........---.00-seeeeeeeee: l

Statement of Jurisdiction .............+-+++-5: 1

Statutory Provisions Involved ..........-.-.--: l

Statement of the Case ......-...-----++eeeeees 2

A. The District Court’s Decision ............ 2

B. The Third Circuit’s Decision .. ee aac 3

Reasons for Granting the Writ ...............-.-- 5

1. The Court Of Appeals Departed From The

Accepted And Usual Course Of Judicial

Proceedings By Requiring That The

Shipowner Prove It Was _ Not

Negligent Under The LHWCA ........... 5

Contents

Page

2. The Court Of Appeals Has Created An

Absolute Basis Of Liability Applicable To

Shipowners Not Contemplated By This Court

We GOS ie o'er sakesineeen eee 9

| Pe erro roe 12

vi

TABLE OF CITED AUTHORITIES

Page

Cases:

Biggs v. Logicon, Inc., 663 F.2d 52 (8th Cir. 1981) .. )

Bjaranson vy. Botelho Shipping Corp., 873 F.2d 1204

(Sta Cle. 19GB) onc ceccccscscccsdscceseseses 9, 10

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .... &

‘Clay v. Daiichi Shipping, et al., 74 F. Supp. 2d 665

(E.D. LA. 1999) ....cccccrccccccccccesccces 10

Greenwood v. Societe Francaise De, 111 F.3d 1239

(Sth Cir. 1997) 20... cece cccccecccccccccces 10

Huggins v. Teamsters, 585 F. Supp 148 (E.D. Pa.

SOOG) ccccacacscdesdeceny cesuaveceuneeaes 10

Keller v. United States, 38 F.3d 16 (ist Cir. 1994) ... 9

Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992)

venveessececbequeesebeewaeeseseeeeueeee passim

Scindia Steam Navigation Co. v. De Los Santos, 451

U.S. 1S6(1GB1) oc cccccccccccccccsccces passim

Cited Authorities

Statutes:

28 U.S.C.A. § 1254(1)

33 U.S.C. § 905(b)

Rule:

Fed. R. Civ. P. 56

on EEE EEO

vill

TABLE OF APPENDICES

Appendix A — Opinion And Judgment Of The

United States Court Of Appeals For The Third

Circuit Dated And Filed December 5, 2000 .

Appendix B — Letter-opinion And Order Of The

United States District Court For The District Of

New Jersey Dated And Filed December 1,

cco od RR aR ES ERE DORE SUK OES EAS ROOT ROE

Appendix C — Order Of The United States Court

Of Appeals For The Third Circuit Denying Petition

For Rehearing Dated February 27, 2001 .......

Appendix D — Relevant Statute .............-.

Page

la

19a

Petitioner respectfully petitions for writ of certiorari to

review the judgment of the United States Court of Appeals

for the Third Circuit.

OPINIONS BELOW

The opinion of the Third Circuit Court of Appeals

(Mckee, C.J., joined by Rendell and Stapleton, JJ.) reversing

the decision of the United States District Court for the District

of New Jersey (Lechner, D.J.) is unpublished and produced

in the Appendix to this Petition (App. A at la). The decision

of the district court granting Petitioner’s summary judgment

motion is also unpublished and produced in the Appendix

(App. B at 19a). The order of the court of appeals denying

rehearing and rehearing en banc is not published and

produced in the Appendix (App. C at 55a).

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on December

5, 2000, (App. A at 17a) and denied rehearing and rehearing

en banc on February 27, 2001 (App. C at 56a). This petition

is filed within ninety (90) days of the date of the denial of

rehearing and rehearing en banc. As such, the jurisdiction of

this Court is invoked under 28 U.S.C.A. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of § 5(b) of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 905(b),

(“LHWCA”) are reprinted in the Appendix (App. D at 57a).

2

STATEMENT OF THE CASE

The present case involves a suit brought by Respondents,

Joseph and Patricia Dino, against Petitioner, Farrell Lines

Incorporated (“Farrell’’), for damages arising from the alleged

negligence of Farrell in discharging its turnover duty under

section 5(b) of the LHWCA. Respondents allege that

Petitioner negligently turned over its vessel causing Joseph

Dino (hereafter “Respondent Dino”) to sustain personal

injuries while he was performing his duties as a longshore

worker. The district court granted Petitioner’s motion for

summary judgment, but the court of appeals reversed holding

that Petitioner did not submit any evidence that it was not

negligent and that generalizations concerning longshore work

conditions which exist throughout the country were sufficient

to prove Petitioner should have known Respondent would

not avoid a known and obvious hazard.

A. THE DISTRICT COURT’S DECISION

The district court below granted Petitioner’s motion

for summary judgment. The facts before the district court

were as follows: after the vessel docked in Port Elizabeth,

New Jersey, Petitioner hired Respondent American Maritime

Services of New York, Inc. to remove ice and snow from the

ship’s deck. After the ice and snow removal work was

concluded, the stevedore, Respondent Dino’s employer,

Maher Terminals Inc., inspected the vessel. The stevedore

found the deck free of snow and ice, determined that it was

reasonably safe, accepted turnover of the vessel and ordered

Cargo operations to commence. Respondent Dino,

an experienced hatch boss in charge of a gang of

longshoremen, testified that he noticed the starboard

passageway had some obvious patches of ice, but the deck

eS ee ee a a ee. ee ee

3

had been salted. Respondent Dino testified that he worked

and observed conditions in the starboard passageway area

for approximately twenty minutes before he fell while rapidly

stepping backwards on the ship’s deck to avoid being hit by

a hatch cover being lifted by a co-worker who was operating

a shore crane.

The district court granted summary judgment to

Petitioner. It held that if there was ice and snow on the deck

which caused Respondent to slip and fall, that condition was

open and obvious to him prior to the accident. Further, the

district court held that Respondent Dino had not proven under

Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992), that the

condition which caused him to fall was either practically

unavoidable, or that Petitioner should have known by virtue

of custom or contract that Respondent would not have

avoided the condition. In short, the district court granted

Petitioner’s motion for summary judgment based upon the

clearly articulated holding in Scindia Steam Navigation Co.

v. De Los Santos, 451 U.S. 156 (1981), that the primary

responsibility for avoiding injuries due to obvious hazards

is placed upon the expert stevedore-employer.

B. THE THIRD CIRCUIT’S DECISION

On appeal, the Third Circuit acknowledged the well

established holding in Scindia that a shipowner is generally

not liable to a longshoreman injured by an obvious hazard,

but nevertheless reversed the grant of summary judgment to

Petitioner. The Third Circuit so held for two reasons: first,

it found that Petitioner submitted no evidence that the

longshoreman could have avoided the ice; second, it found

that even if the ice could have been avoided or removed,

Respondents’ anecdotal evidence that longshoremen,

4

in general, work year round in any weather and do so under

time pressure to handle cargo expeditiously, was sufficient

to prove that Petitioner should have known that a dangerous

icy condition, even if avoidable, would not have been avoided

by Respondent Dino.

It is submitted that in reversing the district court,

the court of appeals has erroneously placed upon the

shipowner the burden of proving that a hazardous condition

known by the longshore worker could have been avoided.

In other words, the decision of the court of appeals has

departed from the accepted and usual course of judicial

proceedings by requiring the shipowner under section 5(b)

of the LHWCA to show that it was not negligent.

In addition, by ruling that anecdotal, generalized

evidence was sufficient to prove Petitioner should have

known Respondent Dino would not avoid a known obvious

hazard, the court of appeals has created a factual predicate

which would be applicable in any turnover duty case brought

under LHWCA. The decision below eliminates the

shipowner’s ability to obtain summary judgment in turnover

duty cases regardless of the specific facts involved.

As such, the decision creates an absolute basis of liability

against shipowners which is precluded by the 1972

amendments to the Act and Scindia.

5

REASONS FOR GRANTING THE WRIT

1. THE COURT OF APPEALS DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS BY REQUIRING

THAT THE SHIPOWNER PROVE IT WAS NOT

NEGLIGENT UNDER THE LHWCA

Section 5(b) of LHWCA, 33 U.S.C. § 905(b), grants

longshore and harbor workers a statutory cause of action

against shipowners sounding in negligence. That provision

of the LHWCA was explained by this Court in Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), and

further interpreted by district courts and courts of appeal

across the country, including the Third Circuit in Kirsch v.

Plovidba, 971 F.2d 1026 (3d Cir. 1992). In both Scindia and

Kirsch, the plaintiff longshore worker was required to prove

that the shipowner was negligent in turning over its vessel.

No matter how section 5(b) of the LHWCA and Scindia were

interpreted before the decision of the court of appeals in this

case, no court ever required the shipowner defendant to prove

it was not negligent in order to prevail in a motion for

summary judgment. .

As noted by this Court in Scindia, the 1972 amendments

to the LHWCA radically altered the scheme of compensation

for injuries to such workers. Those amendments dramatically

increased compensation payments by stevedores to longshore

workers while eliminating longshore workers’ virtually

absolute right to recover against shipowners under the

warranty of unseaworthiness. Prior to the amendments,

a longshore worker only needed to prove that the vessel

contained an unsafe injury-causing condition. After the

amendments, longshore workers were required to prove that

6

the shipowner was negligent. This negligence was

comparable to land-based tort standards and was to evolve

as a matter of federal common law. /d. at 166.

In Scindia, the Court held that the vessel owes a duty to

the stevedore and its longshore employees to exercise due

care under the circumstances. /d. at 160. In setting forth the

duty owed at the time the vessel is turned over to longshore

workers for cargo operations, this Court stated as follows:

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 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.

Id. at 167.

7

In addition to the above described turnover duty, the

Scindia Court set forth two other duties which the shipowner

owed to the longshore worker: a duty to exercise due care if

it actively involved itself in cargo operations, and a duty to

intervene if the ship’s crew knew or was charged with

knowing that the stevedore was “obviously improvident” by

proceeding with cargo operations in the face of a dangerous

condition. However, the Court specifically held that absent

contract, positive law, or custom to the contrary, shipowners

had no continuing duty to learn of dangerous conditions b:

inspecting or supervising stevedoring operations. Scindia,

451 U.S. at 172.

In Kirsch, the Third Circuit applied the Scindia turnover

duty. There, the plaintiff-longshoreman alleged that the

shipowner breached its turnover duty by failing to clean an

oil spill which had completely covered an area of the ship

where longshoremen were conducting cargo operations.

In analyzing whether the oil slick could constitute a breach

of the turnover duty, the court of appeals ruled:

We therefore conclude that a shipowner may be

negligent for failing to eliminate an obvious

hazard that it could have eliminated, but only

when it should have expected that an expert

stevedore could not or would not avoid the hazard

and conduct cargo operations reasonably safely.

Id. at 1031.

Therefore, the court of appeals in Kirsch held that a

shipowner could be liable for not eliminating an open and

obvious hazard if, by custom or contract, the shipowner

should have known that the longshore worker would not have

8

avoided an otherwise avoidable and obvious hazard.

In so ruling, the Third Circuit relied upon that portion of

the decision in Scindia which held that absent a contract,

positive law, or custom to the contrary, the shipowner has

no continuing duty to learn of dangerous conditions

by inspecting or supervising the stevedoring operation.

Scindia, 451 U.S. at 172. The court thus held that custom

or contract could supplement a shipowner’s duty to

longshoremen.

As such, the Kirsch Court affirmed summary judgment

for the shipowner holding that it was not negligent with

regard to the oil spill inasmuch as the longshoremen could

have avoided the hazardous oil spill by treating or cleaning

it up themselves or by telling the ship’s crew to do so. Kirsch,

971 F.2d at 1034.

Summary judgment motions under Fed. R. Civ. P. 56

require that the non-moving party make a showing sufficient

to establish the existence of every element essential to

that party’s case and on which that party will bear the burden

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317

(1986). In third-party cases under § 5(b) of LHWCA, the

longshoreman has the burden of proving the shipowner’s

negligence. Here, in reversing the district court’s grant of

summary judgment to Petitioner, the court of appeals held

that Petitioner had not presented evidence that the alleged

icy condition of the deck was avoidable. In so holding, the

court stated “here there is no evidence that the longshoreman

could have avoided the ice.” App. A at 14a. By requiring the

shipowner to present evidence that the longshore worker

could have avoided the hazardous condition known to him,

the court of appeals is now requiring the shipowner to first

prove that it is not negligent on account of the existence of

9

the obvious and hazardous condition known to the longshore

worker. This is in direct conflict with the burden as set forth

in every case that has interpreted Scindia and the LHWCA,

including Kirsch, supra; Keller v. United States, 38 F.3d 16

(Ist Cir. 1994); Bjaranson v. Botelho Shipping Corp.,

873 F.2d 1204 (9th Cir. 1989); Biggs v. Logicon, Inc., 663

F.2d 52 (8th Cir. 1981), which require that the plaintiff-

longshereman must show that the defendant-shipowner was

negligent. As such, a writ of certiorari to the court of appeals

is warranted.

2. THE COURT OF APPEALS HAS CREATED AN

ABSOLUTE BASIS OF LIABILITY APPLICABLE

TO SHIPOWNERS NOT CONTEMPLATED BY

THIS COURT IN SCINDIA

The only evidence presented to the district court which

could have remotely suggested that Petitioner should have

known that Respondent Dino would not have avoided an

obvious and avoidable icy condition was that longshoremen

generally work throughout the year in any weather under time

sensitive circumstances. This simple anecdotal truism does

not constitute, nor was it presented as, a unique custom at

Port Elizabeth, New Jersey, nor is it evidence of a particular

contractual requirement between Respondent’s employer and

Petitioner. The fact that longshoremen work year-round under

a time schedule is a common reality in the longshore industry

at every port and marine terminal in this country, and is

therefore, applicable to each and every longshoreman

nationwide. Nowhere in Scindia was it suggested that this

basic fact common to all longshoremen could provide a

sufficient basis to hold a shipowner negligent in the

performance of its turnover duty. Moreover, the Third Circuit

itself in Kirsch granted summary judgment to a shipowner

Men

10

arising from the plaintiff’s slip and fall on an open and

obvious oil spill without ever suggesting that the time

constraints imposed upon longshoremen in general could

have excused them from avoiding obvious hazards or could

have rendered shipowners liable in negligence.

On the contrary, no court has ever previously held that

non-case specific, general work conditions under which

longshore workers practice their occupation was a sufficient

basis for holding a shipowner negligent under the LHWCA.

Clay v. Daiichi Shipping, et al., 74 F. Supp. 2d 665 (E.D.

LA. 1999); see Greenwood v. Societe Francaise De, 111 F.3d

1239, 1246 (Sth Cir. 1997); Huggins v. Teamsters, 585

F. Supp 148, 150-51 (E.D. Pa. 1984) (“. .. mere inferences,

conjecture, speculation or suspicion are insufficient to

establish a material fact upon which to base a denial of

summary judgment”’).

As the Ninth Circuit has observed, certain dangers that

may be hazardous to unskilled persons need not be remedied

if an expert and experienced stevedore could safely work

around such conditions. Bjaranson v. Botelho Shipping

Corp., Manila, 873 F.2d 204, 208 (9th Cir. 1989). The Third

Circuit in Kirsch cited Bjaranson approvingly and held that

a shipowner can ordinarily reasonably rely on the stevedore

(and its longshore employees) to notice obvious hazards and

to take steps consistent with its expertise to avoid these

hazards where practical to do so. Kirsch, 971 F.2d at 1030.

It is submitted that a writ of certiorari is warranted to

- review the court of appeal’s substantial departure from what

this Court in Scindia established as duties shipowners owe

to longshore workers. In reversing summary judgment,

the court of appeals has created an absolute standard of

11

liability based solely on generalities applicable to all

shipowners nationwide under any circumstance involving the

turnover duty. It is plainly inconsistent with Scindia and the

decisions of other courts of appeal which have reviewed

this issue.

Further, under its decision, the court of appeals will

inadvertently make working conditions on the waterfront

more dangerous. Stevedores could now permit their

longshore employees to work through or ignore obvious

hazards, confident in the knowledge that their significant

workers’ compensation payments may be recouped through

third-party actions against shipowners based upon this

absolute standard of determining shipowners’ negligence

which would be applicable in all turnover duty cases.

12

CONCLUSION

For the reasons set forth above, this Court should grant

this petition in order to review fundamental issues affecting

the proper burden of proof in longshore workers’ third-party

actions. The Court’s guidance is also required to correct

judicial erosion of Scindia’s negligence principles so that

standards of care comparable to absolute liability will not

again be applied to shipowners. If the decision of the court

of appeals is not reviewed, the stevedore-employer, who is

immune from tort liability under § 5(b) of the LHWCA and

is thus beyond the reach of being impleaded into such third-

party actions, will have no incentive to carry out its primary

duty of ensuring a safe workplace for its employees.

Respectfully submitted,

Peter A. JUNGE

LaMBos & JUNGE

Attorneys for Petitioner

29 Broadway - 9* Floor

New York, New York 10006

(212) 381-9700

APPENDIX

la

APPENDIX A — OPINION AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT DATED AND

FILED DECEMBER 5, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-6119

JOSEPH DINO; PATRICIA DINO,

Appellants

V.

FARRELL LINES, INC.; Ss ARGONAUT; ABC VESSEL

OWNER 1-10, (being fictitious and unknown); PDQ

VESSEL LESSEE 1-10, (being fictitious and unknown);

JOHN DOE MASTER OFFICER 1-10, (being fictitious and

unknown); XYZ MAINTENANCE COMPANY 1-10,

(being fictitious and unknown)

FARRELL LINES, INC.,

Third-Party Plaintiff

v.

AMERICAN MARITIME SERVICES, INC.,

Third-Party Defendant

2a

Appendix A

Joseph Dino and Patricia Dino,

Appellants

Appeal from the Judgment of

the United States District Court

for the District of New Jersey

Civil Action No. 99-cv-01155

District Judge: Honorable Alfred J. Lechner, Jr.

Argued: November 6, 2000

Before: McKEE, RENDELL, and STAPLETON,

Circuit Judges

(Opinion filed: December 5, 2000)

* * a

OPINION OF THE COURT

McKEE, Circuit Judge.

Joseph Dino appeals the district court’s grant of summary

judgment.to defendant shipowner in an action Dino brought

for personal injuries under § 5(b) of the Longshore and

Harbor Workers’ Compensation Act (LHWCA), 33 U.S<..

§ 905(b). Dino sought to recover for injuries arising out of

his slip and fall on the deck of defendant’s cargo vessel. For

the reasons that follow, we will reverse and remand for

further proceedings consistent with this opinion.

ere. eee ee mr a

3a

Appendix A

I. Background’

Dino was an experienced longshoreman employee of

Maher Terminals, Inc., a stevedoring company in Port

Elizabeth, New Jersey. Dino was working as a hatch boss at

the time of the accident that gave rise to this litigation. An

essential part of Dino’s job involved managing a gang — a

group of workers assigned to a specified area — and ensuring

that cargo was unloaded from ships to the dock. Defendant

and third-party plaintiff, Farrell Lines, Inc. owned and

operated a ship called the SS Argonaut.

On January 17, 1997 the SS Argonaut’s Master called

ahead to Charles Andrews, Farrell’s Port Manager, to request

assistance in removing ice and snow from the ship’s deck

upon its arrival. Andrews in turn hired American Maritime

Services Inc. (AMS) to perform snow and ice removal

services when the ship arrived in port.

The SS Argonaut arrived at port the next day at 6:48 am

and by all accounts the ship was coated with snow and ice.

It is undisputed that it was a very cold day with morning

temperatures hovering around 18.” The deck log suggests

that the AMS crew did not board the ship until about 7:30

am to begin de-icing.

1. Inasmuch as we are reviewing a grant of summary judgment,

we must accept Dino’s well pleaded allegations s true, and view the

record in the light most favorable to him. See Jones v. School Dist.

of Phila., 198 F.3d 403, 410 (3d Cir. 1999).

2. Dino offers several photographs of the ship’s deck taken

several hours after the incident.

4a

Appendix A

Maher’s stevedore operations began at about 8:00 am,

approximately thirty minutes after the de-icing crew boarded.

Dino, the hatch boss, was in charge of overseeing unloading

cargo from the number two batch. Scott Stahl, the ship

superintendent that Maher employed, was in charge of the

entire unloading operation. Stahl testified that he inspected

the vessel before it was turned over to Maher. His declaration

states as follows:

I arrived for work that day at approximately

7:00AM... Shortly after my arrival at the

terminal, I boarded the SS ARGONAUT to

inspect the vessel to determine if stevedoring

operations could be performed safely and for

defects or unsafe conditions aboard the vessel that

might make cargo operations dangerous.

I performed this inspection with the knowledge

that the vessel arrived with snow and ice

accumulations that required snow and ice removal

services... I found the vessel to be free of ice

and snow in areas where cargo operations were

to take place. I saw evidence of snow and ice

removal activity in that I saw rock salt spread on

the decks in the areas where the longshoremen

would be working. . . At approximately 8:00 AM,

when the vessel was turned over to Maher for

cargo operations, the areas on deck where

longshoremen would be working were free of

snow and ice and reasonably safe for cargo

operations.

Stahl’s Verified Declaration at Jf 13-16. Additionally,

Andrews testified that he inspected the deck to ensure that

Ty Tee

Pe Ee ee ee ee ee OR

5a

Appendix A

AMS workers were clearing the deck of snow and ice, and

saw that the deck was being salted and shoveled. He stated

he had no problem traversing the vessel.

Later that morning, Dino was called to the ship because

a new crane operator was having a problem. Dino states: -

When I went up the gangway I observed no

warning signs of any type which in any way

related to ice or other hazardous conditions. When

I went up the starboard passageway, it was

covered with ice and had not been shoveled. Some

salt had been put down but it was essentially

covered with ice. All of the equipment on the deck

... were covered with ice. All of the containers

were ice-coated and I would note that the coverings

with ice were heavier and more complete than

shown in photographs 000505 through 000507.

Dino’s Certification at § 7. As the crane operator was lifting

the hatch, the Dino moved back and slipped. He grabbed for

the rail, but the ice on the rail and the ice on the deck

combined to cause him to fall. Stahl stated that he went to

Dino and observed that the area was “free and clear of snow

and ice.” Stahl’s Certification at ¥ 23.

3. Longshoreman Manuel Trueba also stated in his certified

statement that the deck of the ship was “extremely slippery and

virtually everything was covered with ice.” Trueba’s Certification

at {| 8. Longshoreman Roberto Ruiz also stated that the “deck area,

including walkways and cross passageways were covered with ice

all morning.” Ruiz’s Certification at ] 5.

6a

Appendix A

Dino subsequently sued Farrell in the New Jersey

Superior Court pursuant to § 905(b) of the LHWCA. Farrell

removed the case to the United States District Court for the

District of New Jersey based on diversity of citizenship under

28 U.S.C. § 1332(a) and admiralty jurisdiction under 28

U.S.C. § 1333(1). Farrell then filed a third-party complaint

against. AMS.

Farrell filed a motion for summary judgment which AMS

joined. The district court granted that motion in favor of

Farrell and AMS, and against Dino, and this appeal followed.

II. Standard of Review

Plaintiffs challenge the district court’s grant of summary

judgement on the ground that genuine issues of material fact

exist as to the duty of the shipowner.* An appellate court

reviewing the granting of a summary judgment motion is

governed by the same test applied by the district court.

See Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987).

Under that test, summary judgment is appropriate when “the

4. In addition, Dino’s statement of the issues presented for

review States that “[t]he District Court erred in denying the request

to extend discovery” but he does not mention this issue in the

substance of his brief. See Plaintiffs Brief at 3. AMS correctly points

out that under Federal Rule of Civil Procedure 72(a), plaintiff needed

to file timely objections to the Magistrate Judge’s September 13,

1999 ruling denying Dino’s motion to extend discovery in order for

the district court to consider the objections. See AMS Brief at 25.

Moreover, since Dino failed to properly include this issue in the

body of its brief to us, this issue has now been waived. See Farrell’s

Brief at 42-43.

7a

Appendix A

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.”

FeD.R.Civ.P. 56(c). We exercise “plenary review over the

trial court’s choice and interpretation of legal precepts and

its application of those precepts to the historical facts.”

Epstein Family Partnership v. Kmart Corp., 13 F.3d 762,

766 (3d Cir. 1994).

Ill. Discussion.

Prior to 1972, longshoremen were afforded the protection

of a warranty of seaworthiness. See Seas Shipping Co. v. -

Sieracki, 328 U.S. 85 (1946). Under that warranty,

shipowners were strictly liable for injuries to longshoreman,

even if the injuries were caused by the stevedore contracted

to load the cargo. The stevedore was immune from suit by

the longshoreman because the LHWCA, like most worker’s

compensation schemes, traded a system of benefits for

employer immunity from tort suit. See Ryan v. Stevedoring

Co. v. Pan-Atlantic Corp., 350 U.S. 124, 129-30 (1946).

In 1972, Congress amended the LHWCA.° The

amendment eliminated the warranty of seaworthiness and

5. 33 U.S.C. § 905(b) currently provides:

b) Negligence of vessel

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such

(Cont'd)

(see te Salad eka it

8a

Appendix A

created a cause of action for negligence in favor of an injured

longshoreman and against a shipowner. See Edmonds v.

Compaignie Generale Transatlantique, 443 U.S. 256, 262

(1979). The amendment did not, however, delineate acts or

omissions which would amount to negligence. Scindia Steam

Navigation Co. v. De Los Santos, 451 U.S. 156, 165 (1981).

Instead, it left the scope of the duty owed longshoreman to

“be resolved through the application of the accepted principles

(Cont'd)

person, or anyone otherwise entitled to recover damages

by reason thereof, may bring an action against such

vessel as a third party in accordance with the provisions

of section 933 of this title, and the employer shail not

be liable to the vessel for such damages directly or

indirectly and any agreements or warranties to the

contrary shall be void. If such person was employed by

the vessel to provide stevedoring services, no such

action shall be permitted if the injury was caused by

the negligence of persons engaged in providing

stevedoring services to the vessel. If such person was

employed to provide shipbuilding, repairing, or breaking

services and such person’s employer was the owner,

owner pro hac vice, agent, operator, or charterer of the

vessel, no such action shall be permitted, in whole or in

part or directly or indirectly, against the injured person’s

employer (in any capacity, including as the vessel’s

owner, owner pro hac vice, agent, operator, or charterer)

or against the employees of the employer. The liability

of the vessel under this subsection shall not be based

upon the warranty of seaworthiness or a breach thereof :

at the time the injury occurred. The remedy provided in |

this subsection shall be exclusive of all other remedies

against the vessel except remedies available under this

chapter.

Se tial Dee

9a

Appendix A

of tort law and the ordinary process of litigation.” Jd. at

165-66 (citing H.R. Rep. No. 92-1125, 92d Cong., 2d Sess.

(1972)). However, in Scindia Steam Navigation Co., the

Supreme Court outlined three general duties that shipowners

owed to longshoremien. Shipowners have a duty to: (1) turn

the vessel over in a reasonably safe condition and to warn

the stevedore of unsafe conditions on the ship; (2) exercise

due care to protect longshoreman from hazards when the

shipowner maintains active control of the vessel during the

Stevedoring operation; and (3) to intervene when the

shipowner has actual knowledge of the hazard and knows,

or should know, that the stevedore cannot be relied upon to

remedy it. /d. at 166-67.

This suit focuses upon the turnover duty, which is

comprised both of a duty to provide safe conditions and a

duty to warn of dangers:

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

——————————————————————————————————————————X—E_e———_—_——eeeeeeeeeeeeeeee

10a

Appendix A

performance of his work. (citations omitted). 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.

Id. at 166-67.

We refined the shipowner’s duty of care in Kirsch v. |

Plovidba, 971 F.2d 1026 (3d Cir. 1992). There, an experienced |

longshoreman slipped on an oil slick on the deck and fell |

eight feet. The issue before us was when does “a shipowner |

breach its basic duty to provide safe working conditions by

turning over a ship with an obvious hazard.” /d. at 1029. In

answering this question, we first explained that the crucial

difference between the turnover duty and the duty to

intervene. “(T]he turnover duty covers the shipowner’s

conduct before cargo operations have begun, while the duty

to intervene addresses conduct after turnover.” Jd. We noted

that:

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.

|

|

|

|

eT ee ee

lla

Appendix A

/d. In general, therefore, a shipowner would not be liable to

a longshoreman injured by an obvious hazard because the

shipowner can rely on its longshoremen employees to “notice

obvious hazards and take steps consistent with its expertise

to avoid those hazards where practical to do so.” /d. at 1030.

However, we also concluded:

in some Cases, a shipowner cannot reasonably rely

on longshore workers to avoid obvious hazards,

and therefore the courts have rejected a bright-line

rule that a shipowner can never be liable for

injuries caused by obvious hazards. For example,

if a hazard is obvious yet practically unavoidable,

the shipowner can hardly reasonably expect the

stevedore or the longshore worker to avoid the

hazard. Frequently, this question is one of degree,

for the standard is not whether it was absolutely

impossible to avoid the hazard, but whether, under

all the circumstances, safer alternatives were

impractical (citations omitted). Jn many cases, this

fact-intensive question will be inappropriate to

decide on summary judgment and must be left for

the jury.

Id. (emphasis added).

However, under some circumstances, a shipowner may

be liable even if the hazard was both obvious and it was

practical to avoid it. /d. at 1031. When customary practice

suggests that the shipowner should know “that longshore

workers frequently confront rather than avoid a type of

obvious hazard,” the shipowner call not escape liability by

12a

Appendix A

relying upon the longshoreman’s ability to detect and avoid

the hazard. /d. In such a situation “the shipowner may be

negligent in not eliminating the hazard, although plaintiffs

recovery may be reduced according to his or her comparative

fault.” /d. (citing Griffith v. Wheeling-Pittsburgh Steel Corp.,

657 F.2d 25, 27-28 (3d Cir. 1981) (shipowner found negligent

because he should have known that plaintiff might use a

negligent method to remove stuck hatch covers)).

Accordingly, the following rule emerges from Kirsch:

a shipowner may be negligent for failing to

eliminate an obvious hazard that it could have

eliminated, but only when it should have expected

that an expert stevedore could not or would not

avoid the hazard and conduct cargo operations

safely.

Id. (emphasis added).

Reading Scindia and Kirsch, together, we must determine

whether there is a genuine issue of material fact as to any of

the following issues: (1) was there a dangerous condition on

the ship when it was turned over, i.e. whether the deck laden

with snow and ice when the cargo operations began; (2) if

so, was it obvious;* (3) if the icy condition was obvious,

was it practical to avoid the ice; (4) if it was practical to

avoid the ice, is there evidence that it is customary for

experienced longshoremen to confront the icy conditions

rather then stop working or remedying it.

6. If it was not obvious the shipowner had a duty to warn Dino.

13a

Appendix A

When this record is viewed against this background, it

is obvious that several genuine issues of material fact exist

and that summary judgment is therefore inappropriate here.

Dino asserts that the ship was ice laden when the discharge

operations, began at approximately 8:00 am. He has

submitted his own certification to that effect as well as

ceftifications of Manuel Trueba, and Roberto Ruiz; each of

whom state that the deck was filled with ice during cargo

operations. Dino has also produced photographs of the ship

allegedly taken over two hours after he fell. Those

photographs show snow and ice on the deck. Dino also argues

that the record establishes that AMS only de-iced the ship

for about thirty minutes, and that was not long enough to

effectively remove the hazard. Farrell and AMS dispute this

assertion by relying on Stahl’s testimony that he boarded

the ship after 7:00 am to inspect it and “found the vessel to

be free of ice and snow in areas where cargo operations were

to take place.” Stahl’s Verification at ¥ 15. He further stated

that the cargo areas remained free of ice and snow at the

time the vessel was turned over to Maher. Stahl’s Verification

at | 16.

A reasonable jury may conclude that Stahl is credible

and that the ship was safe when Dino fell. However, at the

summary judgment level, “all inferences, doubts and issues

of credibility must be resolved against the moving party.”

Meyer v. Reigel Products Corp., 720 F.2d 303, 307 (3d Cir.

1983). As noted above, all evidence “must be viewed in the

light most favorable to the nonmoving party and all

inferences must be drawn in that party’s favor.” Jd. Here,

the district court appears to have ignored that principle at

each facet of its analysis.

14a

Appendix A

The declarations by Dino, Ruiz, and Trueba are sufficient

to establish an icy condition on the ship.’ Even assuming

that the condition was obvious to Dino (as is clearly

suggested by Dino’s own exhibits), there remains a genuine

issue of material fact as to how practical it was to avoid the

hazard. In other words, were practical safer alternatives

available which would have allowed plaintiff to avoid contact

with the danger. In Kirsch we found that the oil slick was so

large that longshoremen could not have done their jobs

without walking through it. Kirsch, 971 F.2d at 1033.

However, we still determined that the hazard was avoidable

because the longshoreman could have: 1) cleaned up the spill;

2) told the ship’s crew to clean it up; or 3) covered the spill

with sawdust. Jd. We also pointed out that the Occupational

Safety and Hazard Administration’s regulations indicate that

stevedores are considered competent to treat oil spills. /d.

(citing 29 C.F.R. § 1918.91(c) (1991)).

Here, there is no evidence that the longshoremen could

have avoided the ice. In fact, the shipowner hired someone

else to clean up the ice. Moreover, as we cautioned in Kirsch,

this is a fact-intensive question that should normally be

resolved by a jury. /d. at 1030 (citing example 7readaway v.

Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5™ Cir.

1990) (upholding jury verdict for plaintiff, even though water

and oil on the main deck were clearly visible, because there

was some testimony that alternative passage was locked)).

7. We note that it is possible that plaintiff could present

evidence at trial to show that the icy condition in the specific area

where plaintiff fell might not have been obvious. At this stage,

however, the record does not reflect such evidence.

15a

Appendix A

Finally, even if Dino could have avoided or removed

the ice, there is yet another issue of fact as to whether the

shipownei should have known that plaintiff would not have

avoided the danger. Dino presented declarations of three

experienced longshoreman (including his own) that

established that it is customary at Port Elizabeth to confront

and work through weather related problems such as snow

and ice. Longshoreman Manuel Trueba, who has been a

longshoreman for thirty-six years, explained in his certified

statement that longshoremen are under tremendous time

pressure when unloading ships:

The rate that we unload containers is checked on

an hourly basis and, if we fall even slightly below

the hourly rate that is expected, there are

immediate complaints and inquiries as to what the

problem is. We work in all sorts of weather and

do not stop for rain, snow, cold, wind or, in this

case ice. The ice that we saw on the ship, while

unusually thick, is the type of condition that we

just have to confront and work around as best we

can in order to keep the ship on schedule.

Trueba’s Certification at J 5. See also Dino’s Certification

at J 11; Ruiz’s Certification at J 11. Dino argues that “[t]his

raises a genuine issue of material fact as to whether

Defendant, knowing the ship was iced up would know the

stevedores would confront the situation rather than cease

cargo operations.” Plaintiff's Brief at 14-15. We agree.

l6a

Appendix A

—

IV. Conclusion

For the foregoing reasons, the district court’s grant of

summary judgment be reversed and remanded for further

proceedings consistent with this opinion.

TO THE CLERK OF THE COURT:

Please file the foregoing Opinion.

By the Court:

/s/ Theodore A. McKee

CIRCUIT JUDGE

DATED: December 5, 2000

17a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-6119

JOSEPH DINO; PATRICIA DINO,

Appellants

v.

FARRELL LINES, INC.; SS ARGONAUT; ABC VESSEL

OWNER 1-10, (being fictitious and unknown); PDQ

VESSEL LESSEE 1-10, (being fictitious and unknown);

JOHN DOE MASTER OFFICER 1-10, (being fictitious and

unknown); XYZ MAINTENANCE COMPANY 1-10,

(being fictitious and unknown)

FARRELL LINES, INC.,

Third-Party Plaintiff

v.

AMERICAN MARITIME SERVICES, INC.,

Third-Party Defendant

Joseph Dino and Patricia Dino,

Appellants

18a

Appendix A

Appeal from the Judgment of

the United States District Court

for the District of New Jersey

Civil Action No. 99-cv-01155

District Judge: Honorable Alfred J. Lechner, Jr.

Argued: November 6, 2000

Betore: McKEE, RENDELL, and STAPLETON,

Circuit Judges

JUDGMENT

This cause came to be heard on the record from the

United States District Court the District of New Jersey and

was argued before a panel of this court on November 6, 2000.

On consideration whereof, it is now ORDERED and

ADJUDGED that the judgment of the United States District

Court for the District of New Jersey decided on December

1, 1999 is reversed and remanded for further proceedings in

consistent with this court’s opinion.

ATTEST:

s/ Marcia M. Waldron

CLERK

DATED: December 5, 2000

19a

APPENDIX B — LETTER-OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY DATED

AND FILED DECEMBER 1, 1999

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARTIN LUTHER KING JR.

FEDERAL BUILDING & U.S. COURTHOUSE

50 WALNUT ST., ROOM 5054

P.O. BOX 999

NEWARK, NJ 07101-0999

CHAMBERS OF

ALFRED J. LECHNER, JR.

JUDGE

| December 1999

LETTER-OPINION

ORIGINAL FILED WITH THE CLERK OF THE COURT

Robert G. Leonard

John Scott

Leonard & Butler

65 Madison Avenue

Morristown, New Jersey 07960

(Counsel for Plaintiffs)

20a

Appendix B

Carol N. Lambos

Peter A. Junge

Lambos & Junge

473 Broadway

Bayonne Plaza Suite 209

Bayonne, New Jersey 07002

(Counsel for Defendant Farrell Lines, Inc.)

William J. Rinna

Wilson, Elser, Moskowitz,

Edeiman & Dicker

Two Gateway Center

12" Floor

Newark, New Jersey 07102-5003

(Counsel for Defendant American Maritime Services, Inc.)

Re: Joseph Dino and Patricia Dino v. Farrell Lines, Inc.,

SS Argonaut v. American Maritime Services, Inc.,

Civil Action No. 99-1155 (AJL)

Counsel:

This 1s an action by plaintiffs Joseph Dino (“Dino”) and

Patricia Dino (collectively “Plaintiffs”), against defendants,

Farrell Lines, Inc., SS Argonaut (“Farrell”) and also, by third-

party plaintiff, Farrell, against third party-defendant,

American Maritime Services, Inc. (“AMS”) (collectively

Defendants”). Plaintiffs filed a Complaint (the “Complaint’’)

in the Superior Court of New Jersey, Law Division, Union

County alleging damages, under Section 905(b) of the

Longshore and Harbor Workers’ Compensation Act (the

“Act” or “LHWCA”), 33 U.S.C. § 905(b), for personal

ee ee a ee ee eee

ee Te

AE MARNE latte Zee ee

21a

Appendix B

injuries sustained from a slip and fall aboard SS Argonaut.

Patricia Dino, Dino’s wife, asserted a derivative claim based

upon the loss of consortium, services and society. Currently

pending is Farrell's motion for summary judgement (the

“Motion for Summary Judgment”)', in which AMS has

1. In support of the Motion for Summary Judgment Farrell

submitted:

1. Verified Declaration of Carol N. Lambos (the “Lambos

Declaration”), attaching Exhibits A through N;

tw

Statement of Uncontested Facts pursuant to L.Civ.R. 56.1

(“Rule 56.1 Statement”);

3. Memorandum of Law in Support of Defendant’s Motion

for Summary Judgment (the “Moving Brief”):

4. Verified Declaration of Joseph Farley (the “Farley

Declaration”) and

5. Reply Memorandum of Law in Support of Defendant's

Motion for Summary Judgment (the “Reply Brief”).

In support of the Motion for Summary Judgment AMS

submitted:

1. Verified Declaration of Matthew Mahoney (the “Mahoney

Declaration”) and

2. Memorandum of Law in Support of Farrell Lines

Incorporated and Joinder in that Motion (the “AMS Brief”).

in opposition to the Motion for Summary Judgment Plaintiffs

submitted:

(Cont'd)

22a

Appendix B

joined. The Motion for Summary Judgment is granted for

the reasons set out below.

Facts

A. Parties

Plaintiffs are New Jersey residents. See Complaint. Dino

was employed as a longshoreman by Maher Terminals, Inc.

(“Maher”), an independent stevedore company, in Port

Elizabeth, New Jersey. See id., Count 1, at 4. Dino, worked

as a longshore worker for more than thirty years, and at the

time of the accident worked as a hatch boss for Maher.

See Lambos Declaration, Exhibit J (deposition transcript of

Joseph Dino) (“J. Dino Dep.”’) at 15-21. Dino began his career

as a holdsman and through the years was promoted to

dockman and deckman. See id. at 16-21. As a hatch boss,

Dino had his own gang,’ which was referred to as “Dino’s

gang”; it consisted of nine workers. See id. at 24. Dino

described his job as “[g]etting the gang together, seeing that

they produce, or any problems with them tying up the ships,

(Cont'd) ;

1. Certification of R. Gregory Leonard (the “Leonard

Certification”), attaching Exhibits A through E;

2. Plaintiffs’ Memorandum in Opposition to Motion for

Summary Judgment of Farrell Lines, Inc. and American

Maritime Service of New York, Inc. (the “Opposition

Brief’).

2. The term “gang” refers to the longshore workers assigned

to work a specific area of the ship.

haf nbanen ota Haid

Ob LE, Antes ti

1 Nn all Se Cr eS CE he ac erghel, Jaa,

23a

Appendix B

shifting ships, genera! management of the gang and their

production.” /d. at 21.

Farrell is a Delaware corporation with its principal place

of business located in the New York, New York. See Notice

of Removal § 1. Farrell was “at all relevant times the operator,

Owner pro hac vice and bareboat charterer of the

SS Argonaut.” /d. Farrell conducts business in New Jersey

and maintains a business address in Elizabeth, New Jersey.

See Complaint, Count 1, 4 1. SS Argonaut is an American-

flag container ship operated by Farrell. See Lambos

Declaration ¥ 3.

AMS is a general maritime services independent

contractor. See Mahoney Declaration § 3. AMS was engaged

by Farrell on 18 January 1997 to perform snow and ice

removal services on the deck of SS Argonaut. See id.

B. Procedural History

On 6 January 1999, Plaintiffs filed the Complaint

alleging injuries in relation to an accident that occurred

aboard SS Argonaut 18 January 1997. See Complaint. The

Defendants filed a notice of removal alleging admiralty

jurisdiction, pursuant to 28 U.S.C. § 1333, and diversity

jurisdiction, pursuant to 28 U.S.C. § 1332.

On 23 March 1999, Farrell filed an answer to the

Complaint and also filed a third-party complaint (the “Third-

Party Complaint”) naming AMS as a third-party defendant.

On 15 April 1999, a scheduling order (“15 April 1999

Maen Tee ee

24a

Appendix B

Scheduling Order”) was issued setting 30 July 1999 as the

cutoff for discovery.’

C. Background

1. 17 January 1997

On 17 January 1997, Charles Andrews (‘‘Andrews”),

Farrell’s Port Manager, received a phone call from the Master

of SS Argonaut concerning an accumulation of snow and

ice on the deck of the incoming vessel. See Lambos

Declaration, Exhibit H (the deposition testimony of Charles

Andrews) (“Andrews Dep.”) at 7, 35. The Master also

informed Andrews that the crew was cleaning the deck, but

that further assistance might be needed upon arrival of

SS Argonaut at Port Elizabeth. See id. at 35.

In response to the call, Andrews retained AMS to

perform snow and ice removal services on SS Argonaut upon

its arrival at Maher on 18 January 1997. See id. AMS agreed

to send a crew to remove the snow and ice and then perform

the unlashing of the ship. Andrews also communicated with

Maher, the stevedore company employed to unload

SS Argonaut, to warn it about the condition of the vessel.

See id. at 116; Lambos Declaration, Exhibit K (Verified

Declaration by Scott Stahl of Maher) (“Stahl Declaration”)

3. As part of the 15 April 1999 Scheduling Order, the parties

were required to answer interrogatories from the court no later than

24 May 1999. The Plaintiffs have not done so. Moreover, Plaintiffs

have not offered expert witness data, as required by Rule 26(a)(2),

even though the 15 April 1999 Scheduling Order required disclosure

of such information be made by 18 June 1999.

Ce ee ee ee ee ee

mm itnidud

ae D . x adil

25a

Appendix B

4 12 (“On or about January 17, 1997, I was notified that

Farrell warned Maher that the Ss ARGONAUT would be

arriving with snow and ice accumulated on the vessel. I was

also informed that Farrell had arranged for shore workers to

perform snow and ice removal services upon the vesse!’s

arrival at Maher.”’).

2. 18 January 1997: Before Turn Over

Dino arrived at work at approximately 6:00 o’clock a.m.

on 18 January 1997. See Leonard Certification, Exhibit B

(Certification of Joseph Dino) (“Dino Certification”) 4 2.

SS Argonaut docked on the starboard side of its berth at

Maher terminal and “finished with engines” was ordered at

6:48 o'clock a.m. on 18 January 1997. See Lambos

Declaration, Exhibit L (Deck Log of SS Argonaut) (“Deck

Log”). Dino assisted in tying up SS Argonaut shortly before

7:00 o’clock a.m. See J. Dino Dep. at 37; Dino Certification

{ 2. At 7:30 o’clock a.m. the AMS snow and ice removal

crew boarded the vessel to begin snow and ice removal.

See Deck Log.

The Sh‘p Superintendent from Maher, Scott Stahl

(“Stahl”) testified that he boarded SS Argonaut and

conducted an inspection before the turnover and before

stevedore operations began at 8:00 o’clock a.m. See Stahl

Declaration 44 1, 14. Stahl testified that upon turnover “the

areas on deck where longshoremen would be working were

free of snow and ice and reasonably safe for cargo

operations.” See id. at | 16. Specifically, Stahl stated:

26a

Appendix B

Shortly after my arrival at the terminal, | boarded

the SS ARGONAUT to inspect the vessel to

determine if stevedoring operations could be

performed safely and for defects and unsafe

conditions aboard the vessel that might make

cargo operations dangerous. I performed this

inspection with the knowledge that the vessel

arrived with snow and ice accumulations that

required snow and ice removal services. To

perform my inspection | walked about the areas

of the vessel where cargo operations would be

performed including but not limited to the in-

shore decks, the weather decks and cross walks

between the hatches. In addition, | performed a

visual inspection of the areas surrounding the

cargo working area of the vessel. There were no

conditions or equipment aboard the vessel at

that time that would have prevented my

complete inspection of the vessel or obscured

my views of the cargo operations area.

>

Id. at § 14 (emphasis added). Stahl indicated that it is known

in the stevedore industry that at Maher during “cold weather

it is commen for vessels to arrive at the terminal with

accumulations of snow and ice.” /d. at 4 18. Joseph Farley,

Safety Director for Maher, testified that it is known both at

Maher and “in the stevedoring industry in general, that if

snow and ice accumulates [sic] during stevedoring operations

which render work conditions unsafe, longshoremen should

stop work.” Farley Declaration { 6.

27a

Appendix B

On the morning of 18 January 1997, Stahl testified that

in the course of his inspection he

®

Pe

&

é

é

found the vessel to be free of ice and snow in areas

where cargo operations were to take place. [He]

saw evidence of snow and ice removal activity in

that [he] saw rock salt spread on the decks and in

the areas where the longshoremen would be

working. Moreover, [he] saw extra bags of rock

salt left on the deck. Since [he] was aware that

snow and ice on a vessel could pose a risk during

cargo operations, [he] took special care with [his]

inspection to see that the snow and ice removal

operation was properly accomplished. At the end

of [his] inspection, [he] was satisfied that the

vessel was reasonably safe for stevedoring

operations.

rive hat A dai a Sha NIUS SALA ibe On cl Nas RAB HEH

Stahl Declaration at § 15. Further, Stahl commented that the

deck area “remained safe throughout the entire day.” /d. at

q 16.

3. Existence of Ice on Deck

Andrews testified that at approximately 6:30 o’clock

a.m.* on 18 January 1997, in keeping with his normal

practice, he boarded SS Argonaut. See Andrews Dep. at 28.

4. In light of the entry in the deck log stating that the ship did

not dock until 6:48 o’clock a.m., Andrews testimony that he boarded

the vessel at 6:30 o'clock a.m. appears to be incorrect. Nevertheless,

this discrepancy is immaterial to the resolution of the Motion for

Summary Judgment.

28a

Appendix B

Upon boarding SS Argonaut, Andrews testified that he

observed a layer of ice between a half inch and one inch in

thickness. See id. at 26. Andrews testified AMS had been

hired to “put salt down and shovel the snow or ice that would

be there from the salt.” /d. at 23.

Andrews indicated that he met with the Chief Mate to

discuss the stowage plan for the vessel. See id. at 29, 33.

After this meeting, which lasted approximately thirty

minutes, Andrews testified that he went to check the progress

of the AMS workers in clearing the snow and ice. See id. at

35, 43. Andrews testified he walked “the fore and aft, the

starboard passageway looking down the authorized ship’s

passageways, walkways” and found that the AMS workers

were performing ice and snow removal procedures. See id.

at 44. Upon seeing the AMS workers performing the snow

and ice removal, Andrews left the vessel to resume his other

job responsibilities. Andrews experienced no difficulty while

walking on the deck of SS Argonaut. See id. at 48.

Dino testified that he was on the dock around 8:00

o’clock a.m. when unlashing began on SS Argonaut and he

“never saw Charles Andrews or Scott Stahl on the dock or

on the Argonaut.” Dino Certification { 3. However, Dino

acknowledged in substance that he was off the dock when

he stated that at 8:00 o’clock a.m. he went to the office area

to warn up and see the schedule for his gang. See id. at q 7.

Manuel Trueba (“‘Trueba”), a member of Dino’s gang, also

testified that he did not see Stahl in the vicinity of

SS Argonaut before 9:30 o’clock a.m. See Leonard

Certification, Exhibit D (Certification of Manuel Trueba)

29a

Appendix B

(“Trueba Certification”) J 3.5 Trueba did testify, however,

that as a longshore worker he worked through all kinds of

weather and that the ice on the deck of SS Argonaut was the

type of condition he had to “confront and work around as best

[he could] in order to keep the ship on schedule.” Jd. at "3.

Although Dino testified that he noticed ice on the vessel,

he did not warn his gang to take any precautions and, indeed,

he did not himself take any particular precautions.

See J. Dino Dep. at 50-51. As well, Dino testified that even

though Maher always had a safety man on duty, he did not

speak with him on 18 January 1997. See id. at 52, 82-83;

see also Stahl Declaration 4 21. In fact, Dino testified that

the presence of ice did not constitute a reason to call the

safety man. See J. Dino Dep. at 51-53.

4. The Accident

Around 9:00 o’clock a.m., Stahl asked Dino to address

a problem Robert Ruiz (“Ruiz”), a relatively new crane

operator in Dino’s gang, was having in removing one of the

hatches from the ship. See id. at 57. Dino boarded the vessel!

via the gangway and walked along the open weather deck to

the hatch his gang was working. See id. at 59-60.

Dino testified he was the first member of the gang to

board the ship. See id. at 51. Dino noticed another gang

working on a different hatch at the time. See id. at 61. Most

5. The statements of Dino and Trueba do not create a genuine

issue of material fact because neither contests the presence of Stahl

on the vessel. The issue is not whether either Dino or Trueba “saw”

Stahl on the deck or on the vessel.

30a

Appendix B

of the longshore workers carrying out cargo operations were

working from the dock or off “shoe boxes”, platforms which

pick the longshore workers up and lift them onto the

containers. /d. at 31-32. Dino explained:

Lately we do most of our working from the dock

to the ship rather than being on the deck of the

ship. We don’t normally go onto the deck of the

ship now, until the containers are cleared off the

ship, then we go down below. Before we would

be on the ship and handling cargo up there, but

now because of safety reasons they have us

working from the dock.

Id. at 30.

Upon reaching the hatch area his gang was working,

Dino checked to see if the hatch cover was “undogged”, or

unlatched, to ensure that his gang did not lose additional

time looking for a ship’s mate to perform the function.

See id. at 61. Dino noticed the hatch cover was undogged.

See id. at 62. Dino then moved to the forward corner of the

hatch and waited for his gang to unload the containers stacked

on top of the hatch cover. See id. at 67. Dino estimated that

he moved around the deck for approxim _ly twenty minutes

while his crew unloaded the container. resting on the hatch

cover. See id. at 67-68. After removing the containers, the

hatch cover would be removed using a Maher shore-side

crane with a forty foot spreader bar. See id. at 70-71.

Dino testified that the gang “hooked up the inshore cover

without incident and took it out.” /d. at 72. Ruiz began having

3la

Appendix B

difficulty locking the spreader, the equipment used to remove

the hatch covers, onto the second hatch cover in order to

remove it from the hatch. See id. At 72-73. Aware of this

difficulty, Dino ordered Trueba to ready the dumbbells,

adapters used to lock the hatch cover, if Ruiz needed them.

See id. at 73. To assist Ruiz with locking the spreader, Dino

walked around the deck between the first and second hatch.

See id. at 75. When Dino was halfway past the first hatch

cover, Ruiz was able to lock the spreader and he began to

raise the cover. See id. at 76. In response to this action, Dino

testified that he “had to get out of the way.” /d. To avoid

contact with the hatch cover, Dino backed up quickly and

testified he slipped on what he believed was ice. See id. at

81-82.° Dino fell back and was injured.

5. Dino's Contentions

Plaintiffs argue Defendants were negligent for turning

over the ship to Maher while the deck “was iaden with ice.”

See Opposition Brief at |. Plaintiffs offer pictures of the deck,

which show ice on the railings, hatch covers and ship

6. Q. Now, you said that you — do you know what

you slipped on, by the way?

A. No, I don’t.

Q. So you don’t know if you slipped on ice or oil or

anything you —

A. It was slippery enough. It was ice.

J. Dino Dep. at 81.

32a

Appendix B

equipment, and certifications of several members of Dino’s

gang stating that the deck was covered in ice. See Leonard

Certification, Exhibit E (picture taken of the deck at noon

on 18 January 1997); Leonard Certification, Exhibit C

(Certification of Roberto Ruiz); Leonard Certification,

Exhibit D (Certification of Manuel Trueba).

Plaintiffs argue that Farrell “knew the ship was not

reasonably safe for cargo operations and that is why Farrell

requested assistance from AMS to assist the ship’s captain.”

Opposition Brief at 5-6. Plaintiffs argue that Farrell intended

AMS would have two hours to remove ice and snow from

the deck when Andrews called and ordered the crew on

17 January 1997. See id. at 3. Yet due to delays, Plaintiffs

argue the crew was afforded only thirty minutes to perform

the snow and ice removal services, before turning to their

unlashing responsibilities. See id. at 5; Deck Log. Plaintiffs

argue the time AMS had to clear the decks was insufficient

and that Andrews and Stahl should not be believed

concerning the condition of the deck. See Opposition Brief

at 6, 11; but see Stahl Declaration § 15.

Plaintiffs contend these arguments create genuine issues

of material fact concerning whether Farrell acted reasonably,

whether the thirty minutes of snow and ice removal was

sufficient and whether the inspections were deficient.

See Opposition Brief at 11. However, Plaintiffs do not offer

or point to any evidence to support these arguments.

Moreover, as noted, Plaintiffs failed to offer any expert

testimony concerning the reasonableness of how or when

Farrell acted or the duration of snow removal or the adequacy

of the inspections.

33a

Appendix B

Plaintiffs argue the salt the AMS crew placed on the

deck was ineffective due to the cold weather. See id.

Plaintiffs, however, offer no expert testimony for this

proposition. Plaintiffs argue this presents another fact

question — whether the salting itself demonstrated

reasonable care to discharge Defendants’ duty under Section

905(b). See id.

Plaintiffs argue Farrell violated the duty to warn the

stevedore of latent defects, namely the ice on the decks of

SS Argonaut. See id. at 12. Plaintiffs also argue Defendants

knew or should have known that the longshore workers would

confront the icy decks rather than avoiding the danger posed

by the ice or ceasing stevedore operations. See id. Again,

Plaintiffs fail to point to evidence, and fail to offer expert

testimony, to establish this argument.

Discussion

A. Summary Judgment Standard

To prevail on a motion for summary judgment, the

moving party must establish “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). The present

task is to determine whether genuine issues of material fact

exist and whether Farrell and AMS are entitled to judgment

as a matter of law.

A District Court may not resolve factual disputes in a

motion for summary judgment. See Linan-Faye Constr. Co.

v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir. 1995) (“[A]t

PU Bee Pe tReet

34a

Appendix B

the summary judgment stage, ‘the judge’s function is not

... to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.’ ”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986)); Desvi, Inc. v. Continental Ins. Co., 968

F.2d 307, 308 (3d Cir. 1992) (“[T]hreshold inquiry is whether

there are ‘genuine factual issues that properly can be resolved

only by a finder of fact because they may reasonably be

resolved in favor of either party’ ”) (citations omitted).

In considering a motion for summary judgment, all

evidence submitted “must be viewed in the light most

favorable to the nonmoving party and all inferences must be

drawn in that party’s favor.” Gray v. York Newspapers,

Inc., 957 F.2d 1070, 1077 (3d Cir. 1992) (citing Erie

Telecommunications vy. Erie, 853 F.2d 1084, 1093 (3d Cir.

1988)); see also Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Kowalski v. L & F

Products, 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel

Products Corp., 720 F.2d 303, 307 & n.2 (3d Cir. 1983) (the

court must resolve “all inferences, doubts and issues of

credibility ... against the moving party”), cert. dismissed,

465 U.S. 1091 (1984). '

Although the summary judgment hurdle is difficult to

overcome, it is not insurmountable. As Rule 56(e) makes

clear, once the moving party files a properly supported

motion, the burden shifts to the non-moving party to

demonstrate the existence of a genuine issue of material fact.

See Fed.R.Civ.P. 56(e); see also Anderson, 477 U.S. at 256.

As the Supreme Court indicated in Matsushita, once the

moving party has demonstrated the absence of a genuine

35a

Appendix B

issue of material fact, the opposing party “must do more than

simply show that there is some metaphysical doubt as to the

material facts.” 475 U.S. at 586. Indeed, the nonmoving party

must come forward with “specific facts showing that there

is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Where the

record taken as a whole could not lead a rational trier of fact

to find for the non-moving party, there is no “genuine issue

for trial.” Matsushita, 475 U.S. at 586-87 (emphasis in

original) (citations omitted). In other words, the inquiry

involves determining “ ‘whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.’ ” Brown vy. Grabowski, 922 F.2d 1097, 1111

(3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52) cert.

denied, 501 U.S. 1218 (1991).

“[T]he mere existence of a scintilla of evidence in

support of the [nonmovant’s] position will be insufficient;

there must be evidence on which the jury could reasonably

find for the plaintiff.” Anderson, 477 U.S. at 252: Gomez v.

Allegheny Health Serv., Inc., 71 F.3d 1079, 1085 (3d Cir.

1995), cert. denied, 518 U.S. 1005 (1996); see also Siegel

Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125; 1130-

31 (3d Cir. 1995); United States v. 717 So. Woodward St.,

2 F.3d 529, 533 (3d Cir. 1993) (“Although entitled to the

benefit of all justifiable inferences from the evidence, the

nonmoving party may not... withstand summary judgment

by resting on mere allegations or denials in the pleadings.”)

(citations omitted); Players Int'l, Inc. v. United States, 988

F. Supp. 497, 500 (D.N.J. 1997) (“[T]he non-moving party

must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial.”) (citations

36a

Appendix B

omitted); Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726

F. Supp. 525, 534 (D.N.J. 1989), aff’d without op’n, 899

F.2d 1218 (3d Cir. 1990).

“The nonmoving party creates a genuine issue of material

fact if [he or she] provides sufficient evidence to allow 2

reasonable jury to find for him [or her] at trial.” Brewer v.

Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir.

1995) (citations omitted). If the nonmovant fails to make a

sufficient showing regarding an essential element of his or

her case upon which he or she will bear the ultimate burden

of proof at trial, all other facts are necessarily immaterial

and summary judgment must be granted. See Celotex Corp.

v. Catrett, 477 U.S. 317, 321 (1986); Brewer, 72 F.3d at

330; Siegel, 54 F.3d at 1130-31; see also Armstrong v. City

of Dallas, 997 F.2d 62, 67 (Sth Cir. 1993) (“Summary

judgment is appropriate where critical evidence is so weak

or tenuous on an essential fact that it could not support a

judgment in favor of the nonmovant, or where it is so

overwhelming that it mandates judgment in favor of the

movant”).

In Anderson, the Court held that “[i]f the evidence

[submitted by the non-movant] is merely colorable, or is not

significantly probative, summary judgment may be granted.”

477 U.S. at 249-50 (citations omitted). A factual dispute is

genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Jd. at 248;

see also Coolspring Stone Supply, Inc. v. American States

Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993) (observing

that for issue to be considered genuine, nonmoving party

must adduce more than a mere scintilla of evidence in its

37a

Appendix B

favor). In addition, when the factual context renders a claim

implausible, the nonmovant has a heavier burden of

production in opposing a motion for summary judgment.

Matsushita, 475 U.S. at 587. “Summary judgment may

present the district court with an opportunity to dispose of

meritless cases and avoid wasteful trials.” Orson, Inc. v.

Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996)

(citing Celotex, 477 U.S. at 327).

Discovery in this case is completed. A review of all the

submissions reveals no genuine factual dispute that can be

described as “material” in light of the relevant case law.

Accordingly, judgment may be awarded as a matter of law.

B. Recovery Under the Act

Plaintiffs bring this action against Farrell under Section

905(b) of the Act to recover damages for the physical injuries

Dino suffered. Section 905(b) of the Act provides in pertinent

part:

In the event of injury to a person covered

under this chapter caused by the negligence of a

vessel, then such person . . . may bring an action

against such vessel as a third party in accordance

with the provisions of section 933 of this title,

and the employer shall not be liable to the vessel

for such damages directly or indirectly and any

agreements or warranties to the contrary shall be

void. If such person was employed by the vessel

to provide stevedoring services, no such action

shall be permitted if the injury was caused by the

38a

Appendix B

negligence of persons engaged in providing

stevedoring services to the vessel.... The

liability of the vessel under this subsection shall

not be based upon the warranty of seaworthiness

or a breach thereof at the time the injury occurred.

The remedy provided in this subsection shall be

exclusive of all other remedies against the vessel

except remedies available under this chapter.

33 U.S.C. § 905(b).

The Act established a comprehensive workers’

compensation program for longshoremen and their families.

See Serbin v. Bora Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996),

Davis v. Portline Transportes Maritime Internacional, 16

F.3d 532, 548 (3d Cir. 1994). The 1972 amendments to the

Act increased the benefits payable to an injured

longshoreman, abolished the longshoreman’s strict liability

cause of action against the vessel, and insulated the employer

from third party liability to the vessel for the worker’s injury.

See Howler’ v. Birkdale Shipping, 512 U.S. 92, 97 (1994);

Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.

156, 165 (1981).

The Act places primary responsibility for the safety of

longshore workers on the shoulders of their employers, the

stevedores. See 33 U.S.C. § 941 (“Section 941”). Section

941 requires the stevedore, as the longshore worker's

employer, to provide a “reasonably safe” place to work and

to take the safeguards necessary to avoid injuries. See id.

Congress altered the statutory responsibilities to reflect the

belief that stevedores are in the best position to prevent

39a

Appendix B

injuries to longshore workers. See Howlett, 512 U.S. at 97;

Scindia, 451 U.S. at 165, 171. The Act, as amended, grants

an injured longshore worker primary recovery against his

stevedore employer, and limits the liability that may be

imposed against the vessel. See 33 U.S.C. § 905(b).

Section 905(b) of the Act provides longshoremen a cause

of action for injuries resulting from the negligence of a ship

or its crew. See 33 U.S.C. § 905(b); see also Howlett, 512

U.S. at 97. The Act, however, does not specify what acts

constitute negligence or what duties are owed by shipowners

to longshore workers. See 33 U.S.C. § 905(b). Having

determined that vessels are liable to longshore and harbor

workers for negligence, Congress left it to the courts to define

the contours of vessel negligence. See Scindia, 451 U.S. at

165-66. “... Congress intended that the scope of a

shipowner’s liability would evolve under general common

law principles.” Serbin, 96 F.3d at 70 (citing H.R.Rep. No.

1441, 92d Cong., 2d Sess. (1972), reprinted in 1972

U.S.C.C.A.N. 4698, 4704).

In Scindia, the Court determined that a vessel may be

liable for negligence under one of three duties imposed by

Section 905(b). See 451 U.S. at 167; see also Howlett, 512

U.S. at 98; Serbin, 96 F.3d at 70; Davis; 16 F.3d at 537:

Kirsch v. Plovidba, 971 F.2d 1026, 1028 (3d Cir. 1992). These

duties are the turnover duty or the duty to warn, the active

operations duty and the duty to intervene. See Howlett, 512

U.S. at 98; Serbin, 96 F.3d at 70; Davis, 16 F.3d at 537; Kirsch,

971 F.2d at 1028. The Court further observed that a shipowner’s

duties under the Act may be supplemented through custom,

contract or existing laws. See Scindia, 451 U.S. at 172.

40a

Appendix B

The “turnover duty” applies at the time the vessel

initially gives control of the ship to the stevedore.

See Howlett, 512 U.S. at 98. The “active operations/control

duty” applies once the stevedoring operations have

commenced. See id. This duty requires that a shipowner must

exercise reasonable care to prevent injuries to longshoremen

when it actively involves itself in cargo operations or when

it actively controls the vessel. The “duty to intervene”

concerns conduct after turnover “with regard to cargo

operations in areas under the principal control of the

independent stevedore.” Jd. The duty to intervene arises when

a vessel knows of a hazard posed by defective equipment

that the stevedore has continued to use and which poses “an

unreasonable risk of harm to the longshoremen.” Scindia,

451 U.S. at 175.

Plaintiffs argue that Defendants, by failing to remove

the ice from the deck, were negligent in failing to turn over

the ship in a reasonably safe condition. See Opposition Brief

at 2. In addition, Plaintiffs argue Defendants breached the

turnover duty by failing to warn of the slippery condition on

deck. See id. at 12. Finally, Plaintiffs argue Defendants

breached the turnover duty because Farrell should have

expected the stevedore could not or would not avoid the

danger posed by the ice, but rather would confront the

weather conditions. See id. Again, Plaintiffs have failed to

offer or to point to evidence to support these arguments, there

is no expert report or opinion from Plaintiffs to support any

of these contentions.

4la

Appendix B

1. The Turn Over Duty

The turnover duty imposes “ ‘both a duty to provide safe

conditions and a corollary duty to warn of known,

nonobvious hazards’ ” before the ship is turned over to the

stevedore’s control. See Serbin, 96 F.3d at 70 (quoting

Kirsch, 971 F.2d at 1028); see also Howlett, 512 U.S. at 98.

The Court stated:

A vessel must “exercise ordinary care under the

circumstances” to turn over the ship and its

equipment and appliances “in such condition that

an expert and experienced stevedoring

contractor, mindful of the dangers he should

reasonably expect to encounter, arising from the

hazards of the ship’s service or otherwise, will

be able by the exercise of ordinary care” to carry

on cargo operations “with reasonable safety to

persons and property.”

Howlett, 512 U.S. at 98 (quoting Federal Marine Terminals,

Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969)) (emphasis

added). Significantly, Plaintiffs have not proffered testimony

or an opinion from an expert to establish in this case the

precise contours of what “ordinary care” is, how Farrell failed

to exercise such care, what an “expert and experienced

stevedore contractor” would or would not do in the

circumstances and how that would impact on the turnover

duty of Farrell.

An owner of a vessel ordinarily “will not be liable to a

longshore worker injured by an obvious hazard because the

42a

Appendix B

shipowner’s duty is only to provide a workplace where

skilled longshore workers can operate safely.” /d.; McCourt

v. Mitsui O.S.K. Lines America, Inc., 921 F. Supp. 1315,

1318 (D.N.J. 1996) (describing a deck opening without a

ramp as an obvious danger). “As a general matter, the

shipowner may rely on the stevedore to avoid exposing the

longshoremen to unreasonable hazards.” Scindia, 451 U.S.

at 170. This is based upon the fact that the Act holds the

stevedore principally responsible for ensuring the safety of

longshore workers. See id. at 170; see also 33 U.S.C. § 941.

Indeed, the ability to rely upon a expert stevedore implies

that certain open and obvious hazards need not be remedied,

provided an expert stevedore could safely work around them.

See Kirsch, 971 F.2d at 1030 (citing Bjaranson v. Botelho

Shipping Corp., Manila, 873 F.2d 1204, 1208 (9th Cir.

1989)). As explained, Plaintiffs have not provided an expert

report or opinion that an expert stevedore could not or should

not work around the snow and ice hazard presented in this

case.

As mentioned, this Circuit has stated:

[A] shipowner can, ordinarily, reasonably rely on

the stevedore (and its longshore ernployees) to

notice obvious hazards and to take steps consistent

with its expertise to avoid these hazards where

practical to do so.... Thus, where a danger is

obvious but easily avoidable, the shipowner will

not be liable for negligence.

Kirsch, 971 F.2d at 1030. Plaintiffs have not demonstrated

through expert testimony or otherwise that the hazard was

43a

Appendix B

not easily avoidable. While “in many cases the obviousness

of a hazard under all circumstances, which includes as a key

element the appreciability of the danger, will be a jury

question,” the Third Circuit has granted summary judgment

when the evidence indicates a hazard was open and the

shipowner was reasonable in relying upon the stevedore to

eliminate the hazard. /d. at 1033.

In Kirsch, the shipowner turned over its vessel for

loading with a large oil slick in the cargo hold. See 971 F.2d

at 1027. Although the stevedore noticed the oil spill, no

action was taken to clean, treat or otherwise remedy the spill.

See id. During cargo operations, the plaintiff stepped in the

oil. See id. The plaintiff later slipped as a result of the oil

left on the bottoms of his shoes. See id. The Circuit affirmed

the grant of summary judgment because the oil slick that

caused the accident was obvious and known to the stevedore.

See id. at 1034.

The Circuit determined that the shipowner was

reasonable in assuming the stevedore would remedy the oil

spill. See id. at 1033. Specifically, the Circuit commented

that the existence of an Occupational Safety and Hazard

Administration (“OSHA”) regulation requiring the stevedore

to remedy slippery conditions, as they occur, suggests the

shipowner was reasonable in relying upon the stevedore to

remedy the oil spill. See id. Further, the Circuit commented

that sawdust was available to treat the oil spill and that the

plaintiff did not allege that it would be impractical for the

stevedore to treat the oil spill before commencing cargo

operations. See id. In addition, the Circuit found that the

plaintiff offered no evidence indicating that the shipowner

PEO EPR Pee eee ee pate tee ee

44a

Appendix B

was aware the stevedore and longshore workers would

confront the hazard rather than avoiding it or remedying it.

See id. at 1034. This case is no different.

In certain circumstances, however, a shipowner cannot

reasonably rely on longshore workers to avoid obvious

hazards. See Kirsch, 971 F.2d at 1030. When a hazard is

obvious yet practically unavoidable, the shipowner cannot

rely upon the stevedore or the longshore worker to avoid the

hazard. See id. This entails a consideration of whether “under

all the circumstances, safer alternatives were impractical.”

Id. (citing Morris v. Compagnie Maritime Des Chargeurs

Reunis, S.A., 832 F.2d 67, 71 (Sth Cir. 1987)) (noting a

plaintiff need not show there was no safer alternatives, but

rather, that under the circumstances safer alternatives were

unduly impractical). The Plaintiffs have not shown through

the production of expert testimony, or otherwise, safer

alternatives were impractical or unavailable.

A shipowner may be negligent in not eliminating the

hazard, if a shipowner would reasonably be aware that a

stevedore and the longshore workers would not avoid an

obvious hazard, but would instead confront the hazard.

See id. at 1030-1031; Scindia, 451 U.S. at 174-175 (“mere

knowledge of the danger [is] not sufficient in itself to fasten

such a duty on the shipowner, but if the shipowner should

anticipate that the stevedore will not or cannot correct the

danger and that the longshoremen cannot avoid it, then the

shipowner’s duty is triggered to take steps . . . to eliminate

the hazard.” (emphasis added)). This may be shown through

custom, contract or other laws supplementing a shipowner’s

duties under the Act. See Scindia, 451 U.S. at 172, 176. Thus,

45a

Appendix B

“a shipowner may be negligent for failing to eliminate an

obvious hazard that it could have eliminated, but only when

it should have expected that an expert stevedore could not

or would not avoid the hazard and conduct cargo operations

reasonably safely.” Kirsch, 971 F.2d at 1031. This is not the

case presented by Plaintiffs through expert opinion or

otherwise.

In Howlett, the Court considered the contours of the duty

to warn of latent defects. See 512 U.S. at 99. The Court

specifically observed that the duty to warn must be

considered in light of the stevedore’s statutory duty to ensure

the safety of longshore workers.. See id. Further, the Court

stated the duty to warn attaches only to “hazards that would

be neither obvious to nor anticipated by a competent

stevedore in the ordinary course of cargo operations.” Jd. In

so holding, the Court rejected imposing upon a shipowner

the duty to inspect the cargo area before turnover. See id. at

104. Further, when hazards are obvious there can be no

recovery under Section 905(b) for a shipowner’s failure to

warn. See id.

2. Application of the Turnover Duty in the Instant

Case

In order to prevail on the Motion for Summary Judgment,

Defendants must establish no genuine issues of material fact

exist concerning whether Defendants acted reasonably when

they turned over the ship to Maher. Plaintiffs argue genuine

issues of material fact exist concerning whether Farrell acted

reasonably by turning over the SS Argonaut with ice on the

deck, whether the thirty minutes of snow and ice removal

46a

Appendix B

was sufficient and whether the alleged inspections were

deficient. See Opposition Brief at 11. Further, Plaintiffs argue

the effectiveness of the salting due to the cold weather and

the adequacy of salting as a method of eliminating the hazard

also raise fact questions. See id. Plaintiffs also argue that

there are genuine issues of material fact concerning Farrell’s

turnover duty to warn of latent defects. See id. at 12. Indeed,

Plaintiffs argue whether the snow and ice constituted a latent

defect is a genuine issue of material fact which precludes

summary judgment. See id. at 16-17. Finally, Plaintiffs argue

whether Farrell knew the longshore workers could not or

would not avoid the danger posed by the icy deck prevents

summary judgment. See id. at 12. As explained, Plaintiffs

have not offered expert testimony, or other evidence, to

support any of these arguments.

As the Circuit explained in Kirsch, the significant

distinction separating the turnover duty from the duty to

intervene is that the turnover duty is concerned with the

conduct before cargo operations commence while the duty

to intervene covers conduct fellowing turnover. See 971 F.2d

at 1029. This case concerns allegations of an injury which

occurred during cargo operations, after the ship had been

turned over to the stevedore. At that stage, the owner of the

vessel had no continuing duty to inspect, or indeed supervise

cargo operations conducted by the stevedore following

turnover. See id. Because the turnover duty requires the

owner of the ship to tender it in a condition such that an

expert stevedore acting with reasonable care could conduct

cargo operations safely, the requirement to warn of a hidden

hazard is significant. However, in this case because Dino

conceded the ice conditions were obvious, the duty to warn

of such “hidden hazard” is not relevant. See id.

47a

Appendix B

The Kirsch court adopted the observation made by the

Ninth Circuit that

the fact that cargo operations will be conducted

by an “expert and experienced” stevedore

“implies that certain dangers that may be

hazardous to unskilled persons need not be

remedied if an expert and experienced stevedore

could safely work around them.”

971 F.2d at 1029-1030 (quoting Bjaranson v. Botelho

Shipping Corp., Manila, 873 F.2d 1204, 1208 (9" Cir. 1989)).

This is the rationale why an owner of a vessel can ordinarily

rely on a stevedore and its employees to both note obvious

hazards and to take steps to avoid them. See id. at 1030.

The Kirsch opinion and its teachings are particularly

instructive. Kirsch restated the principle that “where a danger

is obvious but easily avoidable, the shipowner will not be

liable for negligence.” /d. Significantly, Kirsch stated:

[I]f in this case we could assume that the oil slick

were obvious to a reasonably prudent stevedore

and its longshore workers but small enough to be

avoided easily by skirting it, we would conclude

that the stevedoring operations could be

conducted safely, and hence that the shipowner

was not negligent in failing to provide a safe

workplace.

Id.

48a

Appendix B

The instant case presents a situation similar to that

presented in Kirsch. SS Argonaut alerted Andrews, Farrell’s

Port Manager, before its arrival of the snow and ice

conditions. Farrell retained AMS to perform snow and ice

removal. Andrews also alerted the stevedore, Maher, to the

conditions of the vessel. Upon the arrival, and before cargo

operations began, AMS began snow and ice removal.

Although cold weather operations are common and it Is

common for a vessel to arrive with accumulations of snow

and ice, the Ship Superintendent, Stahl, testified that before

turnover he inspected the cargo operations area (and indeed

the whole ship) and found the vessel to be free from snow

and ice.

Dino testified he noticed and was aware of *he snow

and ice, that he did not warn his gang to take precautions,

that he did not take precautions, that he did not speak with

Maher’s safety man who was on duty and that the presence

of ice did not constitute a reason to call the safety man.

Drawing all inferences in favor of Plaintiffs, it will be

assumed the ice was pervasive and covered the area where

Dino was injured. In fact, the snow and ice were obvious

and it appears the stevedore, and its employees, were

thoroughly aware of its presence. These expert and

experienced longshore workers are skilled workers and could

be expected to work around the conditions of the day. This

much is clear from the testimony of Dino who said he did

not call the safety man or advise his gang to take precautions

or himself take precautions because the presence of the snow

and ice did not constitute a reason to do so.

49a

Appendix B

Dino, like Kirsch, candidly admitted the conditions were

obvious and he was aware of them before he entered on the

vessel. See Kirsch, 971 F.2d at 1033. Like Kirsch, Dino

appreciated the conditions. See id. The Circuit in Kirsch

assumed the oil slick was so large that Kirsch and others

could not have avoided the oil in the area in question. Kirsch

argued that alone sufficed to defeat summary judgment. The

Circuit disagreed. The Circuit stated the stevedore and the

longshore workers had another option — eliminate the

obvious hazard by treating or cleaning up the oil slick

themselves or by telling the ship’s crew to clean it up.

See id. Likewise, here it will be assumed the snow and ice

were pervasive and could not be avoided. Nevertheless, Dino

had the same options as Kirsch. Salt was available, the AMS

workers were available and the stevedore’s safety man was

available.

In Kirsch, the Circuit referenced OSHA regulations

which indicated stevedores are “competent to treat oil spills,

a typical form of slippery condition during cargo operations.”

Id. The presence of snow and ice during cold weather

operations is typical and snow and ice are typical forms of

slippery conditions during cold weather operations.

Stevedores are as competent to treat slippery snow and ice

conditions, as they are to treat oil spills.

Although Defendants have established it is comr:on

during cold weather for vessels to arrive with an

accumulation of ice and snow, it is known in the stevedoring

industry in general, and at Maher in particular, that if snow

and ice render working conditions unsafe, the longshore

workers should stop work, Dino has not established

50a

Appendix B

otherwise. There is nothing in the submissions which

suggests the longshore workers would have continued cargo

operations despite the presence of snow and ice, if such

rendered the area unsafe.

As the Kirsch decision instructs:

[A] shipowner can, ordinarily, reasonably rely on

the stevedore (and its longshore employees) to

notice obvious hazards and to take steps consistent

with its expertise to avoid those hazards where

practical to do so.

Id. at 1030.

Defendants had a duty to turnover SS Argonaut

“in such condition that an expert and experienced

stevedoring contractor, mindful of the dangers he

should reasonably expect to encounter, arising

from the hazards of the ship’s service or

otherwise, will be able by the exercise of ordinary

care to carry on cargo operations with reasonable

safety to persons and property.”

Howlett, 512 U.S. at 98 (quoting Federal Marine Terminals,

Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969)).

Defendants were entitled to rely upon Maher to ensure the

safety of the longshore workers.

Plaintiffs’ own testimony concerning the use of shoe

boxes to work around unsafe conditions on deck indicates

Sla

Appendix B

that Maher, as an expert stevedore, could, and indeed did,

work around the icy deck conditions. See J. Dino Dep. at 30.

In fact, Dino testified that due to OSHA regulations longshore

workers rarely worked from the ships’ decks due to safety

concerns. See id. In light of the Circuit’s analysis in Kirsch,

Defendants were reasonable in relying upon Maher to comply

with OSHA regulations. See Kirsch, 971 F.2d at 1033 (noting

that the existence of an OSHA regulation requiring the

stevedore to remedy slippery conditions as they occur

indicates a shipowner acts in a reasonable manner when

relying upon the stevedore to comply with the OSHA

regulation).

Plaintiffs have not raised a genuine issue of material fact;

the ice on the ship was open and obvious, and significantly,

Dino was aware of it. See Howlett, 512 U.S. at 98; Kirsch,

971 F.2d at 1030. Plaintiffs rely upon Bellomo v. United Arab

Shipping, 863 F. Supp. 107 (S.D.N.Y. 1994), arguing that

ice by its very nature poses a latent condition. See Opposition

Brief at 16. In Bellomo, a longshoreman slipped and fell

during cargo operations on ice that was underneath snow on

a vessel’s deck. See Bellomo, 863 F. Supp. at 108. The court

concluded that whether the ice was on the deck at the time

of turnover presented a genuine issue of material fact

precluding summary judgment. See id. at 111.

Further, the court noted that whether the ice was a latent

condition presented a question of fact which prevented the

entry of summary judgment. See id. In so holding, Bellomo

relied upon the plaintiffs testimony that he could not see

the ice under the snow. See id. In contrast, Dino, a longshore

worker for more than thirty years, admitted in his testimony

52a

Appendix B

that he was aware of the ice and did not deem the ice to be

the kind of a safety hazard he would warn his gang about or

that would cause him to take precautions or notify the safety

officer on duty for Maher. See J. Dino Dep. at 50-53.

Plaintiffs have not established a case under the turnover

duty. See Howlett, 512 U.S. at 99 (requiring shipowners to

warn stevedores of latent conditions). Plaintiffs argue that

no warning signs were posted on the ship indicating that the

decks were icy. See J. Dino Dep. at 50. The record is clear,

however, that the ice was not a hidden condition. See id. at

50-53. Further, Farrell warned Maher about the ice on the

deck. See Andrews Dep. at 116; Stahl Declaration 4 12.

Accordingly, Defendants could expect that Maher, the

stevedore, would fulfill its statutory obligations under

Section 941 by passing along the warnings to the longshore

workers or remedying the hazard. See Howlett, 512 U.S.

at 99.

The general statement by Trueba, see Trueba

Certification ¥ 5, that longshore workers work through all

weather conditions, including ice, does not create genuine

issues of material fact about the Defendants’ knowledge that

the longshore workers would confront the ice rather than

avoiding it. See Kirsch, 971 F.2d at 1034. The statement in

no way suggests that Defendants knew or should have known

that the stevedore would ignore the statutory duty to keep

longshore workers safe imposed by Section 941 and would

begin cargo operations despite the existence of a safety

hazard that could not be avoided during operations. In fact,

Dino’s testimony regarding the use of shoe boxes suggests

that Defendants were reasonable in relying upon Maher to

53a

Appendix B

protect the longshore workers from unsafe deck conditions.

See J. Dino Dep. at 30. In addition, testimony from Stahl

indicates that the stevedore was aware of the risks posed by

ice and accordingly he conducted an inspection of the decks

before commencing stevedore operations. See Stahl

Declaration 4 15. It is this testimony which supports

Defendants’ position that they relied upon the stevedore to

perform its statutory duty under Section 941 to ensure the

safety of the longshore workers and that the Defendants

believed that the stevedore would remedy any safety hazards

before the start of cargo operations. See Kirsch, 971 F.2d at

1034. Because the asserted danger was obvious but easily

avoidable, the Defendants are not liable for negligence.

See id. at 1030. Affording Plaintiffs all reasonable inferences,

no genuine issue of material fact exists. Accordingly, the

Motion for Summary Judgment is granted.

Conclusion

For the reasons stated, the Motion for Summary

Judgment is granted.

s/ Alfred J. Lechner, Jr.

ALFRED J. LECHNER, JR..,

U.S.D.J.

AJL/cfw

54a

Appendix B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CIVIL ACTION NO. 99-1155 (AJL)

JOSEPH DINO and PATRICIA DINO,

Plaintiff,

V.

FARRELL LINES, INC., SS ARGONAUT, ABC VESSEL

OWNER 1-10 (10 being fictitious and unknown), JOHN

DOE MASTER OFFICER 1-10 (10 being fictitious and

unknown), XYZ MAINTENANCE COMPANY 1-10

(10 being fictitious and unknown) v. AMERICAN

MARITIME SERVICES, INC.

ORDER

This matter having come before this Court upon the

motion for summary judgment (the “Motion for Summary

Judgment”); and this court having considered the

submissions of the parties; and for the reasons set forth in a

Letter-Opinion, filed on this date; and for good cause shown,

IT IS, on this 1* day of December 1999,

ORDERED, that the Motion for Summary Judgment is

granted in favor of the Defendants, and it is further

ORDERED, that this matter be and hereby is dismissed

with prejudice.

s/ Alfred J. Lechner, Jr.

ALFRED J. LECHNER, JR..,

U.S.D.J.

55a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

DENYING PETITION FOR REHEARING

DATED FEBRUARY 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-6119

JOSEPH DINO; PATRICIA DINO,

Appellants

v.

FARRELL LINES, IN©.; Ss ARGONAUT; ABC VESSEL

OWNER 1-10, (being fictitious and unknown); PDQ

VESSEL LESSEE 1-10, (being fictitious and unknown);

JOHN DOE MASTER OFFICER 1-10, (being fictitious and

unknown); XYZ MAINTENANCE COMPANY 1-10,

(being fictitious and unknown)

FARRELL LINES, INC.,

Third-Party Plaintiff

V.

AMERICAN MARITIME SERVICES, INC.,

Third-Party Defendant

Joseph Dino and Patricia Dino,

Appellants

56a

Appendix C

SUR PETITION FOR REHEARING

BEFORE: BECKER, Chief Judge

SLOVITER, MANSMANN, SCIRICA, NYGAARD,

ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO

and FUENTES, Circuit Judges,

and STAPLETON, Senior Circuit Judges*

The petition for rehearing filed by Appellee, American

Maritime Services of New York, Inc., and Appellee,

Farrell Lines Incorporated in the above-entitled case,

having been submitted to the judges who participated in the

decision of this court and to all other available circuit judges

in regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges in regular active service not having voted for

rehearing by this court en banc, the petitions for rehearing

are hereby DENIED.

IT IS SO ORDERED.

By the Court,

s/ Theodore A. McKee

Hon. Theodore A. McKee

Circuit Judge

DATED: FEB 27 200i

* Judge Stapleton’s vote is limited to panel rehearing only.

57a

APPENDIX D — RELEVANT STATUTE

33 U.S.C. § 905(b)

§ 905. Exclusiveness of liability

a * ok

(b) Negligence of vessel

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages by

reason thereof, may bring an action against such vessel as a

third party in accordance with the provisions of section 933

of this title, and the employer shall not be liable to the vessel

for such damages directly or indirectly and any agreements

or warranties to the contrary shall be void. If such person

was employed by the vessel to provide stevedoring services,

no such action shall be permitted if the injury was caused by

the negligence of persons engaged in providing stevedoring

services to the vessel. If such person was employed to provide

shipbuilding, repairing, or breaking services and such

person’s employer was the owner, owner pro hac vice, agent,

operator, or charterer of the vessel, no such action shall be

permitted, in whole or in part or directly or indirectly, against

the injured person’s employer (in any capacity, including as

the vessel’s owner, owner pro hac vice, agent, operator, or

charterer) or against the employees of the employer. The

liability of the vessel under this subsection shall not be based

upon the warranty of seaworthiness or a breach thereof at

the time the injury occurred. The remedy provided in this

subsection shall be exclusive of all other remedies against

the vessel except remedies available under this chapter.

* * * *