Miller et al v. Navalmar (UK) Ltd.

Filing 113

ORDER dismissing as moot 82 Motion ; dismissing as moot 84 Motion ; granting 86 Motion for Summary Judgment; granting 89 Motion for Summary Judgment; denying 110 Motion. The Clerk is directed to close the case. Signed by Judge William T. Moore, Jr on 3/31/16. (wwp)

U.

.
a. M, U1' C01 mT

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TYRONE T. MILLER and SHEILA)
MILLER,
Plaintiffs,
CASE NO. CV413-239

V.

NAVALMAR (UK) LTD. and GRIEG
STAR SHIPPING II AS,
Defendants.

ORDER
Before the Court are Defendants Grieg Star Shipping
AS's (Doc. 86) and Navalmar (UK) Ltd.'s (Doc. 89) Notions
for Summary Judgment. For the following reasons, Defendants'
motions are

GRANTED.

As a result, Plaintiffs' Motions to

Exclude (Doc. 82; Doc. 84) are DISMISSED AS MOOT. 1 The Clerk
of Court is DIRECTED to close this case.
BACKGROUND
This case arises from an injury Plaintiff Tyrone I.
Miller

1

sustained while employed as a longshoreman by SSA

Because the Court has determined oral argument unnecessary
in this case, Defendant Grieg's Notion for Oral Hearing
(Doc. 110) is DENIED.
2
Plaintiffs' third amended complaint includes a loss of
consortium claim on behalf of Plaintiff Sheila Miller. (Doc.
46 ¶1 47-48.)

.
1

Stevedoring ("SSA") .

(Doc. 101 at 8-9. ) On September 28,

2011, Plaint iff 4 was selected to work the 6:00 p.m. shift
aboard the N/V Carrara Castle ('Vessel"). (Id. at 1.) At the
time, the vessel was owned by Defendant Navalmar and
provided to Defendant Grieg under a written time charter. 5
When Plaintiff arrived at the jobsite, SSA had already
loaded a substantial portion of the hold with rolls of Kraft
Liner Board ('KLB") . (Id. at 2.) The rolls were
approximately eight feet in height and stacked end-on-end in
four tiers, a technique commonly referred to as the chimed
method. (Id.) The result was a number of thirty-two-foot
high stacks of KLB rolls. (Id.) Because of the KLB rolls'
curved edges, the chimed method results in smaller gaps
between the rolls, and larger gaps between the rolls and the
corner of the hold. (Id. at 3.)
For the purposes of ruling on Defendants' Motions for
Summary Judgment, the Court construes the facts in the light
most favorable to Plaintiffs. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 577-78 (1986).
Because Plaintiff Sheila Miller's claims are entirely
derivative of Plaintiff Tyrone Miller's, the Court will
refer to Plaintiff Tyrone Miller as Plaintiff.
A time charter agreement provides that the charterer will
use a ship for a specific period of time for the purpose of
shipping goods. Thomas J. Schoenbaum, 2 Admiralty & Maritime
Law § 11-5 (5th ed. 2011) . "In a time charter the vessel
owner commonly retains possession and control of the vessel,
provides the crew and fully equips and maintains the
vessel." Id.
2

To prepare for the next commodity to be loaded in that
hold, SSA directed Plaintiff to place sheets of plywood on
top of the outermost rolls. (Id. at 8.) The plywood,
approximately four feet across and eight feet long, would
help cover the gaps between the rolls and the hold's
bulkhead and would provide the support necessary for the
palletized cargo to be placed on top of the rolls. (Id.)
Plaintiff was tasked with covering the larger corner gaps
with two sheets of plywood in an overlapping 'L" shaped
pattern. (Id.)

'[I]n a momentary lapse of concentration,"

Plaintiff stepped onto the plywood he had placed over a
corner gap. (Id. at 9.) Because of the minimal support
provided by the rolls due to the large corner gap, the
plywood collapsed and Plaintiff was injured after falling
the thirty-two feet to the bottom of the hold. (Id.)
Plaintiff maintains that stowing KLB rolls in the
chimed method routinely created the large corner gaps and
that he assumed some sort of fall protection was present
between the tiers, such as airbags, plywood, or nets. (Id.
at 8-9.) Defendants contend the KLB rolls had to be stowed
in the chimed fashion to prevent damage that could result in

3

the product failing to properly unroll when utilized by the
end consumer. (Doc. 89, Attach. 1 at 2.) Additionally,
Defendants claim that the use of plywood between individual
tiers causes similar damage to the edges of the KLB rolls.
(Id. at 5-6.) Defendant Grieg's Shipping Procedures did call
for securing gaps in chimed rolls destined for certain ports
in a manner that prevents a man from falling into the void—
using airbags, webbing, netting, or any other manner as
directed by the attending port captain." (Doc. 104, Attach.
1 at 2.) However, Defendants maintain that airbags and
netting were unusable for the larger corner gaps. (Doc. 89,
Attach. 1 at 5.) The corner gaps were too large for airbags,
which are designed to secure cargo and not fall protection.
(Id.) Netting and webbing were impractical solutions because
they could not be secured to the smooth bulkhead, leaving it
sagging into the larger corner gaps. (Id.)
Based on his fall, Plaintiff filed suit in the State
Court of Chatham County. (Doc. 1, Ex. 1.) Defendants invoked
this Court's diversity jurisdiction and timely removed the
complaint to this Court pursuant to 28 U.S.C. § 1332. (Dec.
1.) In his third amended complaint, Plaintiff alleges that
his injuries were caused, in part, by Defendants'

negligence.

(Doc.

46

¶ 36.)

Plaintiff

contends

that

Defendants provided a vessel with no attachments for
netting, instituted procedures that did not permit the
placement of plywood and airbags between tiers to arrest
falls, and failed to intervene when the inadequate fall
protection became apparent. (Id.)
In their Motions for Summary Judgment, Defendants
maintain that they did not breach any duty owed to Plaintiff
because they turned over a reasonably safe vessel, were not
actively involved in loading the cargo, were not in active
control of the hold at the time of the incident, and were
not required to intervene in SSA's loading operation. (Doc.
87 at 15-23; Doc. 89, Attach. 1 at 13-25.) In response,
Plaintiff argues that Defendants failed to turn over a
reasonably safe vessel because the hold did not include
equipment to which netting could be secured over the corner
gaps as fall protection. (Doc. 101 at 13-16.) Additionally,
Plaintiff argues that Defendant Grieg's Shipping Procedures
constitute active involvement in the loading process. (Id.
at 17-21.) Finally, Plaintiff reasons that Defendants had a
duty to intervene in the loading process once it became
apparent that loading the KLB rolls in the chimed method

5

would result in large, unsafe gaps in two corners. (Id. at
21-25.)
ANALYSIS

I.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered 'if the pleadings,

depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). The 'purpose of summary judgment is
to pierce the pleadings and to assess the proof in order to
see whether there is a genuine need for trial.' " Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Fed. R. Civ. P. 56 advisory committee notes)
Summary judgment is appropriate when the nonrnovant 'fails to
make a showing sufficient to establish the existence of an
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, 322 (1986) . The substantive law
governing the action determines whether an element is

essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co.,
887 F.2d 1499, 1505 (11th Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion, and
identifying those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovarit to establish, by going beyond the pleadings, that
there is a genuine issue as to facts material to the
nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 (11th Cir. 1991). The Court must review the evidence and
all reasonable factual inferences arising from it in the
light most favorable to the rionmovarit. Matsushita, 475 U.S.
at 587-88. However, the nonmoving party ''must do more than
simply show that there is some metaphysical doubt as to the
material facts." Id. at 586. A mere "scintilla" of evidence,
or simply conclusory allegations, will not suffice. See,
e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th
Cir. 1998) . Nevertheless, where a reasonable fact finder may
"draw more than one inference from the facts, and that
inference creates a genuine issue of material fact, then the

7

Court should refuse to grant summary judgment." Barfield

V.

Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).
II. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
A.

Liability Under The Longshore And Harbor Workers'
Compensation Act

Section 905(b) of the Lorigshore and Harbor Workers'
Compensation Act ('LHWCA"), 33 U.S.C. §§ 901-950 authorizes
suits by Longshoremen injured due to the negligence of a
shipowner or charterer. The Supreme Court, however, has
significantly narrowed the duties a shipowner or charterer
owes to longshoremen under the LHWCA. First, 'a shipowner
must turn over the ship and its equipment in a condition
that permits a stevedore to do its work with reasonable
safety, and must warn the stevedore of any hidden dangers of
which it knows or should know." Roach v. M/V Aqua Grace, 857
F.2d 1575, 1581 (11th Cir. 1988) (citing Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 166-67
(1981) ) . Second, there is generally no duty to supervise the
stevedore during cargo loading, " 'absent contract
provisions, positive law, or custom to the contrary.' " Id.
(quoting Scindia, 451 U.S. at 172) . In this respect, the
shipowner or charterer is permitted to "rely on the

rei
L!J

stevedore to perform its work with reasonable care." Id.
(citing Scindia, 451 U.S. at 172). Once cargo loading is
underway, however, the shipowner or charterer may be liable
if it "actively involves itself in the cargo operations and
negligently injures a longshoreman or if it fails to
exercise due care to avoid exposing longshoremen to harm
from hazards they may encounter in areas, or from equipment,
under the active control of the vessel during the
stevedoring operation." Scindia, 451 U.S. at 167. Lastly,
the shipowner. has a duty to intervene only when it becomes
aware that the ship or its equipment poses a danger to the
stevedore, and that the stevedore is acting unreasonably to
protect the longshoremen. Roach, 857 F.2d at 1581 (citing
Scindia, 451 U.S. at 178).
1.

Turnover Duty

In their motions, 6 Defendants contend that they did not
violate their duty to turnover a reasonably safe ship. (Doc.

6

While the arguments raised in Defendants' two motions
differ in their specifics, they are nearly identical in
substance, as demonstrated by Plaintiff's almost identical
responses to both. Based on the similarity and for ease of
reference, the Court will not refer to each individual
motion in its analysis. In addition, the Court assumes
without deciding that Defendants Navalmar and Grieg owed the
same duties to Plaintiff.

87 at 15-17.) In response, Plaintiff argues that Defendants
breached their turnover duty "when the vessel was turned
over to SSA to be loaded with KLB in a 'chimed' stow but
without . . . places for attachment of safety nets in the
corners of the hold." (Doc. 101 at 2.) With respect to the
turnover duty, a shipowner is required to
"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."
In re Natures Way Marine, LLC, 2013 WL 6157928, at

*6 (S.D.

Ala. Nov. 25, 2013) (quoting Fed. Marine Terminals, Inc. v.
Burnside Shipping Co., 394 U.S. 404, 416 n,18 (1969)).
In this case, there is no evidence in the record that
Defendants breached the turnover duty. As noted above,
Plaintiff must point to evidence establishing that an expert
and experienced stevedore would not be able, by the exercise
of reasonable case, to carry on its cargo operations with
reasonable safety to persons and property. Id.; see also
Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204,
1208 (9th Cir. 1989) . There is simply no evidence in the
record that stowing KLB rolls in the chimed method without
10

any way to attach a safety net in the larger corner voids
would preclude SSA from loading the vessel with reasonable
safety. Plaintiff's supervisor in the hold, SSA's head
stevedore overseeing the loading operations, and Plaintiff's
expert witness all testified that there was nothing unusual
or unsatisfactory about the hold on the date of the incident,
including the absence of any place to attach netting over the
larger corner gaps. Doc. 72 18:24 to 19:2; Doc. 71 70:8-22;
Doc. 70 102:12-15.) Plaintiff's expert did opine that he
believed the charterer of a vessel has a duty to protect the
corner gaps. (Doc- 70 103:2-9.) That opinion, however, falls
far short of establishing that an expert and experienced
stevedore, exercising reasonable care, would not be able to
carry on its cargo operations with reasonable safety to
persons and property. Accordingly, Defendants are entitled to
summary judgment with respect to Plaintiff's claim based on a
breach of Defendants' turnover duties.
2.

Active Involvement

Defendants maintain that they were not actively
involved in the loading of cargo at the time of Plaintiff's
injury. (Doc. 87 at 17-19.) In response, Plaintiff contends
that Defendants were actively involved because Defendant
Grieg had written procedures concerning the loading

11

operation, theoretically enforced by the presence of
Defendant Grieg's Port Captain on the vessel during loading. 7
(Doc. 101 at 17-21.) A shipowner or time charterer may
become liable for injuries where "it actively involves
itself in the cargo operations and negligently injures a
longshoreman." Scindia, 451 U.S. at

167.8 Eased on their

liability for certain damage to cargo, however, a shipowner
or charterer may have some degree of participation in cargo
operations without becoming actively involved. For example,
a shipowner or charterer dos not incur any liability for
injuries to the longshoremen by observing cargo operations.
Derr v. Kawasaki KisenK.K., 825 F. 2d 490, 494 (3rd Cir.
1987) . Similarly, the creation of stowage plans or safety
procedures is not the level of involvement required to
render a shipowner or charterer actively involved in loading

There is no evidence in the record that Defendant Grieg's
Port Captain ever actually enforced any of the Shipping
Procedures.
8
A shipowner can also be liable where "it fails to exercise
due care to avoid exposing longshoremen to harm from hazards
they may encounter in areas, or from equipment, under the
active control of the vessel during the stevedoring
operation." Scindia, 451 U.S. at 167. The Court understands
Plaintiffs' complaint to allege that Defendants were
actively involved in loading the cargo through
implementation of Defendant Grieg's Shipping Procedures, not
that they were in active control of the cargo hold or any
equipment.
12

the vessel. See Jones v. Sanko Steamship Co., - F. Supp.
3d , 2015 WL 8361745, at

*13 (D.N.J. 2015); see also

Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 103-104
(1994) (recognizing creation of stowage plan does not
constitute active involvement); Price

V.

Atl. Ro-Ro

Carriers, 45 F. Supp. 3d 494, 507-08 (D. Md. 2014) ('[E]ven
where a vessel plans some limited aspect of a cargo
operation—such as a stowage plan for storing cargo—
involvement at that level may not constitute active control
under Scindia.")
After reviewing Defendant Grieg's Shipping Procedures,
the Court concludes that Defendants were not actively
involved in the loading of cargo. The Shipping Procedures
simply contained guidelines concerning the proper way to
stow and secure certain types of cargo. After an exhaustive
review, the Court can find no case concluding that the
Shipping Procedures amount to active involvement in the
loading process. In the absence of any contractual
provision, positive law, or custom to the contrary, a
shipowner simply 'has no general duty by way of supervision
or inspection to exercise reasonable care to discover

13

dangerous conditions that develop within the confines of the
cargo operations that are assigned to the stevedore." Id. at
172. Because the evidence Plaintiff identifies fails to
establish that Defendants were actively involved in the
cargo operations, Defendants are entitled to summary
judgment with respect to Plaintiff's claim based on
Defendants' alleged active involvement.
3.

Duty to Intervene

Defendants argue that they did not have a duty to
intervene in the loading process because 'nothing about the
loading and stowage methods employed by the stevedores would
have put [them on notice of an unreasonable risk of harm."
(Doc. 87 at 19.) In response, Plaintiff contends that
Defendants "should have intervened as a result of the open
corner void 32' deep, which could not be adequately rendered
safe." (Doc. 101 at 21.) Also, Plaintiff claims that there
is evidence in the record establishing SSA was 'acting
improvidently when it, among other things, violated
[Occupational Safety and Hazard Administration] fall
protection regulations through allowing the longshoremen to
work within 3' of an unprotected edge 8' or higher." (Id.)

14

Once in control of a vessel, the stevedore bears the
primary responsibility for the safety of the longshoremen.
Lampkin v. Liberia Athene Transp. Co., 823 F.2d 1497, 1501
(11th Cir. 1987) . However, an shipowner or charterer "has a
duty to intervene to protect the longshoremen

[]

if 'it

becomes aware that the ship or its gear poses a danger to
the longshoremen and that the stevedore is failing,
unreasonably, to protect the longshoremen.' " Id. (quoting
Clark v. Bothelho Shipping Corp., 784 F.2d 1563, 1565 (11th
Cir. 1986)) . A duty to intervene only arises where a
shipowner or charterer has actual knowledge of both the
hazard, Lampkin, 823 F.2d at 1501, and that the stevedore is
exercising "obviously improvident" judgment by continuing to
work despite the hazard, Sobrino-Barrera
Shipping Co., 2011 WL 5245396, at
2011) (quoting Greenwood

v.

V.

Anderson

*7 (N. D. Tex. Oct. 24,

Societe Francaise De, 111 F.3d

1239, 1249 (5th Cir. 1997))
Plaintiff's argument fails for two reasons. First,
Plaintiff does not point to any evidence in the record
establishing that Defendants knew of the allegedly dangerous
condition. In this respect, Plaintiff appears to rely on the

15

notion that Defendant Grieg created the stowage plan, which
required that the KLB rolls be loaded in the chimed method.
Therefore, Defendants must have known that loading the rolls
in that manner would create the dangerously large corner
gap. This argument, at best, would establish that Defendants
had constructive, not actual, knowledge of the danger.
However, a duty to intervene only arises where an shipowner
has actual knowledge of a hazard. Lampkin, 823 F.2d at 1501.
Second, even assuming Defendants had actual knowledge
of the hazard, there is no evidence in the record that SSA's
decision not to protect the corner gaps with a barricade was
obviously improvident such that Defendants were required to
intervene. Plaintiff fails to identify any action taken by
SSA during the loading of the KLB rolls that would be
considered abnormal. Also, there is no indication SSA,
Plaintiff, or any other longshoreman complained about the
alleged hazard, but rather they continued to load the
vessel. See Harris v. Pac.-Gulf Marine, Inc., 967 F. Supp.
158, 165 (E.D. Va. 1997) (noting neither stevedore nor
longshoreman complained of alleged hazard) . Quite simply,
this Court finds nothing with respect to SSA's decisions

16

regarding loading the vessel that could be considered so
egregious such that Defendants had a duty to intervene. See
Burns v. D. Oltmann Mar. PTE Ltd., 901 F. Supp. 203, 208
(E. D. Va. 1995) (finding that "only the most eggregious
[sic] decisions by the stevedore are 'obviously
improvident'

'I)

Accordingly, Defendants are entitled to

summary judgment with respect to Plaintiff's claim based on
a breach of the duty to intervene. 9
CONCLUSION
For the foregoing reasons, Defendants Grieg Star
Shipping AS's (Doc. 86) and Navalmar (UK) Ltd.'s (Doc. 89)
Motions for Summary Judgment are

GRANTED.

As a result,

Plaintiffs' Motion to Exclude (Doc. 82; Doc. 84) are
DISMISSED AS MOOT.

The Clerk of Court is DIRECTED to close

this case.

Sr
SO ORDERED this

day of March 2016.

WILLIAM T. MOORE, J
JV
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

Because Defendants have been awarded summary judgment with
respect to all of Plaintiff Tyrone Miller's claims,
Plaintiff Sheila Miller's derivative loss of consortium
claim must fail.
17