Bunn v. Oldendorff Carriers GmbH & Co. KG

Filing 92

MEMORANDUM AND ORDER DENYING 86 Motion for Judgment as a Matter of Law. Signed by Judge William M Nickerson on 7/5/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RICHARD BUNN
v.
OLDENDORFF CARRIERS
GmbH & CO. K. G.
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Civil Action No. WMN-10-255

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MEMORANDUM AND ORDER
This case arises from Plaintiff’s slip and fall on board
the MV Christoffer Oldendorff during an ice storm in February
2007.

Plaintiff Richard Bunn was a deck foreman employed by CNX

Marine Terminals, Inc. (CNX), the owner/operator of a coal
loading facility in the Baltimore harbor.

Defendant Oldendorff

Carriers GmbH & Co. K.G is the owner of the Christoffer
Oldendorff.
On January 14, 2011, the Court denied Defendant’s motion
for summary judgment following a line of cases that have held
that, when a ship owner voluntarily and affirmatively undertakes
to remedy an unsafe condition, but fails to do so, liability can
attach to the ship owner.

ECF No. 32 at 6 (citing Lieggi v.

Maritime Co. of the Philippines, 667 F.2d 324 (2nd
Cir. 1981); Bueno v. United States, 687 F.2d 318 (9th Cir.
1983)).

In reaching that decision, the Court relied on the

testimony of Jody White, a CNX employee, who met with the ship’s
Chief Officer, Andriy Fediv, prior to the commencement of

loading operations.

White testified that the Chief Officer

promised to salt and sand pathways to those portions of the ship
CNX employees would need to traverse during the loading
operations.
In that January 14, 2011, Memorandum and Order, the Court
also granted Defendant an additional opportunity to oppose a
cross motion that had been filed by Plaintiff.

Defendant

subsequently filed a supplemental opposition to Plaintiff’s
motion, and a motion for reconsideration of the Court’s order
denying its summary judgment motion.

Defendant submitted with

that pleading the affidavit of Chief Officer Fediv, in which
Fediv contradicts much of White’s version of their pre-loading
conversation.

Specifically, Fediv denied any request made by

White to clear particular portions of the deck and denies having
made any promise to do so.

Fediv Aff. ¶ 8.

The Court held that

the conflict between Fediv’s affidavit and White’s testimony
created a genuine dispute as to a material fact, rendering it
inappropriate to grant summary judgment in Plaintiff’s favor.
The Court also denied Defendant’s motion for reconsideration for
the same reasons.
Thus, there was no question that the central determination
regarding liability to be reached at trial was whether Fediv had
promised to clear those portions of the deck where those
unloading the vessel would need to traverse.
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The Court

instructed the jury accordingly.

The Court stated the general

rule derived from Scindia Steam Navigation Co. Ltd. v. De Los
Santos, 451 U.S. 156 (1981), and its progeny that, “[o]nce
loading or unloading of a ship by a stevedoring company has
begun, the responsibility for safe working conditions is
generally the burden of the terminal or stevedoring company, in
this case CNX Marine Terminal.”

The Court also gave an

instruction setting out the limited but potentially relevant
exception to that general rule:

“A shipowner, Oldendorff

Carriers in this case, will only be responsible, or liable for
injury resulting directly from an unsafe condition on the ship
of which it was aware and which it voluntarily agreed and
undertook to remedy, but failed to do so.”
At trial, White and Fediv testified consistent with their
earlier testimony.

The jury obviously found White’s testimony

to be more credible.

On that basis and consistent with the

Court’s instructions, the jury returned a verdict in favor of
Plaintiff.
Defendant has now filed a motion for judgment as a matter
of law, ECF No. 86, raising essentially the same arguments
raised in Defendant’s motion for summary judgment and motion for
reconsideration, arguments that were considered and rejected by
the Court.

Defendant devotes the majority of its briefing

putting forward the rule that a ship owner has no duty to warn
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or to remedy open and obvious hazards and that ice on the ship’s
deck during an ice storm is such an open and obvious hazard.
The validity of that rule or its applicability to ice on the
deck under general circumstances has never been in dispute.
What was in dispute was whether Fediv voluntarily assumed the
responsibility for salting and sanding the ice in the places
where he knew CNX personnel would be working.1

Plaintiff’s

consistent position has been that, while ice on the deck may be
open and obvious, it was not obvious that the ship owner would
promise to take care of the hazard, and then not do so.
In its motion, Defendant largely ignores the history of
this litigation, confidently declaring that “the conversation
between the chief officer and the shift supervisor is
irrelevant.”

ECF No. at 11.

In its reply brief, Defendant

largely ignores the finding of the jury, opining that White
“probably . . . never asked Chief Officer Fediv to salt and sand
in the first place – as the Chief Officer unequivocally
testified.”

ECF No. 89 at 5.

testified otherwise.

White, however, unequivocally

The jury believed White.

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Defendant seriously mischaracterizes this argument, contending
that “plaintiff now claims that the fact that every square inch
of the ship’s deck was not salted or sanded” gave rise to
Defendant’s liability. ECF No. 89 at 2. Plaintiff has,
throughout the course of this litigation, contended that Fediv
promised to have his crew salt and sand only those areas of the
ship where CNX employees would need to go to safely unload the
cargo.
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Accordingly, it is this 5th day of July, 2012, by the United
States District Court for the District of Maryland, ORDERED;
1) That Defendant’s motion for judgment as a matter of law,
ECF No. 86, is DENIED; and
2) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

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