JONES v. SANKO STEAMSHIP CO., LTD et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/8/2015. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 10-6787 (JBS/KMW)
SANKO STEAMSHIP CO., LTD, S.K.
SHIPPING CO., LTD, GRANDSLAM
ENTERPRISE CORP., HARMONY
STEVEDORING SERVICES, and
HYUNDAE SHIP’S SUPPLY CO.,
Scott A. Portner, Esq.
Stanley B. Gruber, Esq.
FREEDMAN & LORRY, P.C.
1601 Market Street, Suite 1500
Philadelphia, PA 19103
Attorneys for Plaintiff
Charles P. Neely, Esq.
Richard Q. Whelan, Esq. (pro hac vice)
PALMER BIEZUP & HENDERSON LLP
330 Market Street
Camden, NJ 08102
Attorney for Defendant Grandslam Enterprise Corp.
Jeffrey S. Moller, Esq.
James J. Quinlan, Esq.
BLANK ROME LLP
One Logan Square
130 North 18th Street
Philadelphia, PA 19103
Attorneys for Defendant S.K. Shipping Co. Ltd.
SIMANDLE, Chief Judge:
Table of Contents
FACTUAL AND PROCEDURAL BACKGROUND......................... 7
SK’s Shipping Contract with LWI and Charter of the SANKO
SK’s Malaysian Loading Operations of the SANKO .......... 9
SK’s Camden Discharging Operations of the SANKO ........ 12
The “cut” sling and Plaintiff’s Injuries .............. 16
STANDARD OF REVIEW ..................................... 19
Section 905(b) Duties under the LHWCA, Generally ....... 21
Turnover Duty of Grandslam, the “bareboat charterer” .. 25
a. Plaintiff cannot establish a prima facie breach of
Grandslam’s turnover duty................................ 28
b. No contract, positive law, or custom supplants the
application of the general duties under Scindia.......... 32
Turnover duty of SK, the “time charterer” ............. 36
a. Genuine issues of fact preclude the entry of summary
judgment in favor of SK.................................. 37
b. Genuine issues of fact preclude a finding that the
“cut” sling was “open and obvious”....................... 41
While working as a longshoreman on Camden, New Jersey’s
Pier No. 1 during cargo operations conducted by his employer,
the Delaware River Stevedores, Inc. (hereinafter, “DRS”), on M/V
SANKO SUMMIT (hereinafter, “SANKO”), Plaintiff Ronald Jones
(hereinafter, “Plaintiff”) suffered serious injuries when a
“cut” sling parted, and caused a pre-slung plywood bundle to
fall on his legs.
There is no dispute that the sling, which is
made of rope of almost one inch in diameter, contained a cut
that had penetrated about 80% of the thickness near the loops in
the sling that were used to hoist the cargo from the hold to the
dock, where Plaintiff awaited.
As a result of these injuries, Plaintiff brings claims
under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 905(b) (hereinafter, the “LHWCA”), against a bevy of
entities,1 including the owner of the SANKO, Defendant Sanko
Steamship Co. Ltd (hereinafter, “Sanko Steamship”),2 the bareboat
charterer/owner pro hac vice of the SANKO, Defendant GrandSlam
Enterprise Corp. (hereinafter, “Grandslam”),3 the “time
charterer” of the SANKO and owner of the rope sling at issue in
this litigation, Defendant SK Shipping Co., Ltd. (hereinafter,
Plaintiff could not, however, sue his employer DRS, because the
LHWCA obligated DRS to compensate him and provide reimbursement
for his medical costs and expenses, but otherwise immunized it
from suit. See 33 U.S.C. §§ 903, 904. 905(a), 907.
2 As a result of Sanko Steamship Co. Ltd.’s August 8, 2012
bankruptcy petition, the Court stayed this case as against Sanko
Steamship on September 12, 2012. [See Docket Item 57.] As
explained later, however, Grandslam in essence stands in the
shoes of Sanko Steamship for purposes of this litigation, and
its absence therefore has no impact on the disposition of the
3 In simple terms, a bareboat charterer (commonly referred to as
a demise charterer) assumes control of a vessel in “bare”
condition and must provide a crew to navigate and maintain it in
seaworthy condition. Dougherty v. Navigazione San Paolo, S.P.A.
Medafrica Line, 622 F. Supp. 1, 1 (E.D. Pa. 1984). In that way,
the bareboat charterer becomes the owner pro hac vice, and
succeeds to responsibilities and obligations equivalent to that
of the vessel owner. See id. As a result, the Court will use
the term vessel owner, bareboat charterer, and owner pro hac
“SK” or “SK Shipping”),4 the Korean contractor that maintained
SK’s rope slings prior to their application to the plywood
cargo,5 Defendant Hyundae Ship Supply Co. (hereinafter, “Hyundae
Supply”), and the stevedoring company that loaded the plywood in
the Malaysian port of Tanjung Manis, Defendant Harmony
Stevedoring Services (hereinafter, “Harmony Stevedoring”).6
Following years of discovery, Grandslam and SK now
separately move for summary judgment, based upon their belief
that the undisputed record demonstrates, as a matter of law,
that they breached none of the duties owed to Plaintiff under
section 905(b) of the LHWCA or general maritime law.
as the bareboat charterer/owner pro hac vice of the SANKO,
specifically argues that it cannot, as a matter of law, be found
In contrast to a bareboat charterer, a time charterer obtains
use of a vessel’s carrying capacity for a fixed charter period,
while the vessel owner (bareboat charterer or owner pro hac
vice) retains control of the vessel’s management and navigation.
See Dougherty, 622 F. Supp. at 1.
5 Plaintiff additionally brought claims against the owner of the
cargo of pre-slung bundled plywood being discharged by DRS at
the time of his injuries, Defendant Liberty Woods International
(hereinafter, “LWI” or “Liberty Woods”). On May 27, 2015,
however, Plaintiff voluntarily dismissed his claims against LWI
with prejudice. [See Docket Item 123.]
6 Despite service pursuant to international convention [see
Docket Items 58 & 61], neither Harmony (a Malaysian entity) nor
Hyundae (a South Korean entity) have ever responded to the
claims asserted against them in this litigation. As a result,
the Clerk of Court entered default (but not default judgment)
against Harmony on October 15, 2012 [see Docket Item 60], and
against Hyundae on March 27, 2013. [See Docket Item 64.]
Plaintiff shall notify the Court of his intentions vis-à-vis
these Defendants within seven (7) days from entry of this
Court’s Opinion and Order.
in breach of its duties under section 905(b) of the LHWCA,
because the disputed sling came aboard the SANKO after the
vessel had been turned over to the independent stevedore hired
by SK, and because it had no part in the use of the rope slings,
nor any involvement in the loading of the plywood cargo.
generally Grandslam’s Br. at 21-38; Grandslam’s Reply at 3-10.)
As a result, Grandslam claims that it had no duty to inspect or
supervise the Malaysian stevedore’s use of rope slings in
connection with the plywood shipment, and cannot be charged with
any negligence based upon the condition of the disputed rope
(See generally Grandslam’s Br. at 21-38; Grandslam’s
Reply at 3-10.)
SK, as time charterer of the SANKO, similarly
argues that it breached no duties in relation to Plaintiff’s
injuries, because no evidence reflects that SK had
responsibility for, knew of, or should have known of the deep
“cut” on its rope sling, and because maritime law entitled SK to
rely upon the expertise of the independent stevedores (here and
(See generally SK’s Br. at 21-38; SK’s Reply at 3-10.)
Indeed, given the nature of the damage to the rope sling—being
“cut” rather than “frayed or worn” from use—SK submits that
Plaintiff “cannot prove that [it] failed to act reasonably.”
(SK’s Reply at 1-3.)
Plaintiff, by contrast, takes the position that factual
issues relative to Grandslam’s and SK’s discharge of their
duties preclude the entry of summary judgment in either parties’
(See generally Pl.’s Grandslam Opp’n at 22-37; Pl.’s SK
Opp’n at 23-48.)
Plaintiff points, in particular, to evidence
that Grandslam failed to inspect the cargo slings or to
otherwise ensure the condition of the slings prior to the
commencement of cargo operations in Camden (see Pl.’s Grandslam
Opp’n at 26-38); and to evidence that SK separately failed to
discover, remedy, prevent, and/or disclose the dangerous
condition of the rope slings.
(See Pl.’s SK’s Opp’n at 32-48.)
The parties are in agreement (1) that the rope sling at
issue came aboard the SANKO while in port at Tanjung Manis; (2)
that the exact source of the “cut” cannot be scientifically
determined (or drawn out through the robust discovery in this
action); and (3) that that the single “cut” could have occurred
at any time prior to Plaintiff’s incident.
backdrop, this case calls upon the Court to consider the duties,
if any, owed to stevedoring longshoremen by “bareboat” and “time
charterers” under section 905(b) of the LHWCA, Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), Howlett v.
Birkdale Shipping Co., S.A., 512 U.S. 92 (1994), and general
More specifically, the Court must determine the
nature of the independent duties, if any, owed by Grandslam and
SK to Plaintiff as an off-loading longshoremen, and must then
consider whether genuine issues of fact exist on whether each
entity acted in compliance with those duties in relation to the
“cut” rope sling.
For the reasons that follow, Grandslam’s motion for summary
judgment will be granted, and SK’s motion for summary judgment
will be denied.7
FACTUAL AND PROCEDURAL BACKGROUND
A. SK’s Shipping Contract with LWI and Charter of the SANKO8
SK Shipping, a company headquartered in Seoul, Korea,
specializes in providing shipping services for owners of various
(See SK’s SMF at ¶ 1; Pl.’s SMF at ¶ 1.)
The Court heard oral argument upon both motions on November 24,
8 Although SK and Grandslam moved separately for summary
judgment, each motion substantively relies upon the same factual
record, and references the same deposition transcripts,
agreements, and graphics. (Compare Grandslam’s SMF, with SK’s
SMF.) For that reason, the Court will discuss the factual
background relative to the pending motions together.
9 The Court derives the undisputed facts stated herein from the
parties’ various statements of material facts, affidavits, and
exhibits, unless otherwise indicated, and recounts them in the
manner most favorable to Plaintiff. However, the Court
disregards, at it must, those portions of the parties’
statements of material facts that either lack citation to
relevant record evidence and/or contain legal argument or
conclusions. See generally L. CIV. R. 56.1(a). As a result,
many aspects of SK’s and Plaintiff’s lengthy statements of
material facts have been disregarded (at least in part) as
plainly improper under Local Civil Rule 56.1(a), on account of
their inclusion of legal argument, factual statements without
accompanying record citations, and/or for otherwise reciting
factual irrelevancies. (See, e.g., SK’s SMF at ¶¶ 23-24, 42,
75, 91 (making legal arguments concerning the inferences and/or
conclusions to be drawn from various pieces of evidence); Pl.’s
Grandslam SMF at ¶¶ 17, 32, 43-47, 50, 79, 89-90 (setting forth
“disputed facts” without accompanying record citations), ¶¶ 55,
2010, Liberty Woods contracted with SK to transport a ship-load
of “plywood in bundles” from manufacturers in various ports in
Malaysia and Indonesia to the United States.
(See SK’s SMF at ¶
1; Pl.’s SMF at ¶ 1.)
In order to ship Liberty Woods’ plywood, SK Shipping
entered into a “Time Charter” agreement with Sanko Steamship on
October 2, 2010, in which it “time chartered” the SANKO, a bulk
carrier made up of eight (8) discrete open-hatch cargo holds.
(See Ex. C to SK’s SMF; Pl.’s SK SMF at ¶¶ 2-4; Grandslam’s SMF
at ¶ 23; SK’s SMF at ¶ 53.)
SK then separately arranged for
“[a]t least 22,400 rope slings”10 to be delivered to the vessel
by Hyundae Supply, the Korean entity that long-maintained SK
Shipping’s inventory of “previously used slings.”11
(SK’s SMF at
118-123 (making various legal arguments concerning Grandslam’s
various duties); Pl.’s SK SMF at ¶¶ 90-95 (making various legal
arguments, based upon “disputed facts” without accompanying
10 In its reply briefing and at oral argument, SK made much of
certain “shipment records” that indicate “that only 22,400 of
the 24,945 slings (or 90%) of the slings” came from “SK’s
inventory at Hyundae.” (SK’s Reply at 14.) SK, in turn, argues
(without any citation to record evidence) that this discrepancy
creates an inference that some portion of the rope slings used
on the SANKO must have been new. (See id.) SK, however,
simultaneous concedes (intentionally or otherwise) that the rope
sling at issue here came from the 22,400 used slings provided by
Hyundae. (See, e.g., SK’s SMF at ¶¶ 7, 38.) Nevertheless,
because the parties do not genuinely dispute that the “cut”
occurred from some factor other than prior use, SK’s claimed
discrepancy has little impact on the pending motion.
11 Plaintiff acknowledges that Hydunae’s services to SK
ordinarily included sorting, inspecting, and testing SK’s
inventory of previously used slings, but disputes the nature of
¶¶ 7, 12-13; see also Lee Dep. at 18:20-19:18; Ex. 20 to Pl.’s
SK SMF (stating that Hyundae sorted only “used slings” for use
on the SANKO).)
These slings consisted of 22mm (7/8 inch) three-
strand polypropylene rope, with a minimum rated breaking
strength of 15,225 lbs.12
(See Att. C to Flory Rep.; SK’s SMF at
¶ 9; Ex. 33 to Pl.’s Grandslam SMF (Bill of Lading relative to
Hyundae’s shipment of rope slings).)
B. SK’s Malaysian Loading Operations of the SANKO
In advance of shipping, the plywood manufacturer readied
the plywood for shipment by stacking, banding, and covering
sheets of plywood to create a rectangular bundle, which measured
four feet in width, two feet in height, and eight feet in
length, and weighed approximately 2,000 lbs.
(See Att. C to
Flory Rep.; SK’s SMF at ¶ 31; Pl.’s SK SMF at ¶ 31.)
Independent foreign stevedores then loaded and stowed the
SANKO’s hold with bundles of plywood (among other goods) in five
the testing performed by Hyundae relative to the sling at issue
here (see, e.g., Pl.’s Grandslam SMF at ¶ 41; Pl.’s SK SMF at ¶
36), because Hyundae itself stated that it only “sorted used
slings per [its] strict standard” and then conducted (through
another entity) a “sample [strength] test” of only a select few.
(Exs. 20 & 24 to Pl.’s Grandslam SMF.)
12 No party disputes the ordinary adequacy of these rope slings
for purposes of the plywood bundles at issue here. (See SK’s
SMF at ¶ 10; Pl.’s SK SMF at ¶ 10.)
ports throughout Malaysia and Indonesia.13
(See SK’s SMF at ¶
26; Grandslam’s SMF at ¶ 27; Pl.’s SK SMF at ¶ 26.)
As relevant here, cargo operations in Tanjung Manis,
Malaysia took place from March 20, 2010 to March 25, 2010, under
the supervision of SK’s Malaysian Port Captain Jeong Hyun Kim.14
(See Grandslam’s SMF at ¶ 28; Pl.’s Grandslam SMF at ¶ 28; Kim
Dep. at 104:8-113:19 (describing SK’s loading port captain
duties relative to cargo operations).)
Indeed, on the first day
of cargo operations, Port Captain Kim performed a “visual”
inspection of the rope slings, and then held a “pre-loading
meeting” at which time he instructed cargo workers (including
the Malaysian stevedores) to separate and discard any damaged
(Kim Dep. at 35:1-17, 45:22-46:2, 113:10-19; Ex. 22 to
Pl.’s SK SMF (Kim Statement of Facts regarding cargo operations
Harmony Stevedoring then positioned barges alongside the
SANKO and lifted, loaded, and stowed 10,176 plywood bundles—
These ports specifically included (1) Tawau, Malaysia; (2)
Sandaken, Malaysia; (3) Samarinda, Indonesia; (4) Tanjung Manis,
Malaysia; and (5) Bintulu, Malaysia.
14 The focus of the discovery in this action, and the Court’s
factual recitation, centers upon Tanjung Manis, because the
parties agree that the pre-slung plywood bundle at issue in this
litigation came aboard the SANKO in port at Tanjung Manis.
(See, e.g., SK’s SMF at ¶ 27; Pl.’s SK SMF at ¶ 27.)
15 Nevertheless, SK never received any reports of broken or
problematic cargo pre-slings during loading operations in
Tanjung Manis, nor at any other Malaysian port. (Grandslam’s
SMF at ¶ 48; Pl.’s Grandslam SMF at ¶ 48.)
either by chains or rope slings—into one of SANKO’s eight cargo
(See Grandslam’s SMF at ¶¶ 32, 52; Pl.’s Grandslam SMF
at ¶¶ 32, 52.)
Once loaded within the cargo hold, Harmony’s “loading
longshoremen” then wrapped rope slings around the bundles and
oriented the ends (or, eyes) of the slings on top, so that the
bundles would be “pre-slung” and accessible for easy offloading
in the port of destination.17 (SK’s SMF at ¶¶ 33-34; Ex. X to
SK’s SMF (depicting the pre-slung cargo); Pl.’s SK SMF at ¶¶ 3334.)
As a result of these efforts, all of the crated plywood
loaded and stowed in port at Tanjung Manis18 ultimately consisted
of pre-slung bundles.19
(See Grandslam’s SMF at ¶ 32; Pl.’s
The Malaysian stevedores placed these plywood bundles on top
of and covering the previously stowed cargo from prior ports.
(See, e.g., Grandslam’s SMF at ¶ 56.) Following loading, the
stevedores covered the plywood (and slings) with a layer of
“‘Kraft’ paper” to protect it from any seawater that might leak
through the hatch covers. (SK’s SMF at ¶ 55; see also Ex. X to
SK’s SMF (depicting the loaded and covered cargo); Pl.’s SK SMF
at ¶ 55.)
17 LWI requested this pre-slinging as part of its standard
practice in connection with crated plywood cargo. (Grandslam’s
SMF at ¶¶ 37-38; Polatchek Dep. at 301:7-13, 327:15-328:8.)
18 The cargoes carried aboard the SANKO in prior ports, by
contrast, did not include any pre-slung cargoes (of the crated
plywood variety or otherwise). (See Grandslam’s SMF at ¶ 35; Ex.
19 to Grandslam’s SMF (setting forth the SANKO’s Voyage Memo);
Pl.’s Grandslam SMF at ¶ 35.)
19 As explained on the oral argument record of November 24, 2015,
and in the parties’ various submissions, the Malaysian
stevedores loaded some of the plywood bundles into the hold with
the rope pre-slings already attached, while others were applied
to the bundles after being stowed. (See, e.g., Pl.’s Grandslam
SMF at ¶ 32.)
Grandslam SMF at ¶¶ 3, 32; Ex. S to SK’s SMF (depicting preslung plywood crates during loading in Tanjung Manis).)
C. SK’s Camden Discharging Operations of the SANKO
Following an international voyage, the SANKO arrived at its
first U.S. port of call, Pier 1 of the Broadway Terminal in
Camden, on May 4, 2010.
(See SK’s SMF at ¶ 40.)
In order to
unload the SANKO at the port, SK engaged DRS, a domestic
stevedoring company that SK had engaged “on many prior
occasions,” and one with extensive experience discharging preslung bundles of crated plywood.
(SK’s SMF at ¶¶ 41, 67; see
also Pl.’s SK SMF at ¶ 41, 67; Lee Dep. at 72:10-13.)
selected the “‘plywood gear’” necessary to discharge cargo preslung with rope slings,20 a spreader and four yellow DRS nylon
slings, and attached this gear to the SANKO’s crane hooks.
(Grandslam’s SMF at ¶¶ 43, 59, 61; Pl.’s Grandslam SMF at ¶ 59;
Exs. 20 & 21 to Grandslam’s SMF (depicting a crane hook,
spreader, and four nylon slings, all connected to a pre-slung
plywood bundle in Camden); SK’s SMF at ¶ 65.)
In that way, the
gear collectively used for the discharge of the plywood cargo
consisted of various discrete components that DRS connected
together, including: (1) SANKO’s crane and crane wire, (2) DRS’s
In other words, DRS proceeded to cargo operations well aware
of the pre-slung nature of the cargo within the SANKO’s holds.
(See, e.g., Grandslam’s SMF at ¶ 66; Exs. 20 & 21 to Grandslam’s
SK SMF at ¶ 43; Exs. 20 & 21 to Grandslam’s SMF.)
Prior to the start of discharging operations, however, SK’s
U.S.-based Port Captain Se Jin Joo conducted a “pre-discharging
meeting” at which time he instructed cargo workers (including
DRS) to separate and discard any damaged slings.
Pl.’s SK SMF; Joo Dep. at 18:21-22:13.)
(Ex. 38 to
DRS then selected its
cargo gear, and commenced cargo operations under the supervision
of five different DRS supervisors, and without significant
guidance from Captain Joo and/or the SANKO’s officers and crew.22
(See SK’s SMF at ¶¶ 42-43; Pl.’s SK SMF at ¶¶ 42-43; Grandslam’s
SMF at ¶ 83.)
These operations specifically began on May 5,
2010, with “three gangs of [DRS] longshoremen” dispersed
throughout SANKO’s cargo holds 3, 5, and 8, the SANKO’s cranes,
as well as the terminal dock.
(Grandslam’s SMF at ¶¶ 43, 59,
61; Pl.’s Grandslam SMF at ¶ 59; SK’s SMF at ¶ 65; DiNapoli Rep.
at ¶¶ 4-6.)
During the first day of cargo operations, discharging
occurred in the following fashion:
spreader bar’s four cargo hooks. (See Grandslam’s SMF at ¶ 82;
Pl.’s Grandslam SMF at ¶ 82.)
22 These supervisors (and their years of experience) specifically
included (1) DRS Manager of Vessel Operations Michael Billups
(10 years of experience); (2) DRS Stevedore Supervisor John
Eberle (at least 30 years of experience); (3) DRS Staff
Consultant Captain James Hassall (17 years of experience); (4)
DRS Ship Foreman Donald Hankinson (47 years of experience); and
(5) DRS Gang Foreman John Mulgrew (one of DRS’s “oldest and most
experienced gang bosses”). (Grandslam’s SMF at ¶¶ 61, 68-76;
Pl.’s Grandslam SMF at ¶ 61; SK’s SMF at ¶ 48.)
The DRS crane operator would lower the crane’s
wire into one of the SANKO’s holds where DRS
“hold persons” would connect the pre-slings to
one of the hooks of the spreader bar by weaving a
DRS nylon strap through the “eye loops” at the
ends of the rope slings. (DiNapoli Rep. at ¶ 5;
see also Flory Rep. at 2-6.)
The crane operator would then lift the draft up
and out of the hold, pivot the crane over the
SANKO’s side, and slowly begin to lower the cargo
towards the dock. (DiNapoli Rep. at ¶ 5; see
also Flory Rep. at 2-6.)
As the load approached the surface of the dock
(commonly referred to as “the hammer” or
“doorway”), DRS’s “doorway persons” would turn
the load to orient it for easy removal by a fork
lift, and would then disconnect the rope slings
from the spreader/nylon strap assembly. (See
DiNapoli Rep. at ¶ 6; see also Flory Rep. at 26.)
Following this, the crane operator would lift the
spreader/nylon strap assembly back over the
SANKO’s side and into one of the holds for
assembly of the next load, while DRS’s “checker”
would record the contents of the landed draft on
the pier. (See DiNapoli Rep. at ¶ 6; see also
Ex. 25 to Grandslam’s SMF (setting forth DRS’s
tally reports for its cargo operations); see also
Flory Rep. at 2-6.)
In that way, only DRS’s “hold persons” within the cargo holds
had a view of the condition of the rope slings at the time of
discharge: first, when the “hold persons” connected the rope
sling to the spreader through the nylon strap (thereby
potentially exposing the portion of the rope slings nearest to
the “eyes”); and then again when the load began its ascent out
of the cargo hold (thereby exposing the portion of the rope
slings that covered the bottom of the plywood bundles).23
Grandslam’s SMF at ¶¶ 87-90; Pl.’s Grandslam SMF at ¶¶ 87-90.)
Productive cargo operations unfolded in this fashion until
late in the evening on May 5, 2010, and then continued on May 6,
2010 throughout cargo holds 1, 2, 3, 5, and 7.
(See, e.g., Ex.
18 to Grandslam’s SMF (setting forth DRS’s activity reports).)
Indeed, during these first two days of cargo operations, DRS
discharged more than 6,400 crates of pre-slung plywood cargo,
and reported no issues relative to the cargo pre-slings (or
(See Grandslam’s SMF at ¶¶ 60, 86, 95, & 100.)
1. The “cut” sling and Plaintiff’s Injuries
Circumstances changed, however, when the DRS crew led by
DRS Gang Foreman John Mulgrew (hereinafter, “Foreman Mulgrew”
and his “Mulgrew crew”) resumed discharging pre-slung bundles
from cargo hold 2 on May 7, 2010.
(See SK’s SMF at ¶ 72; Ex. Z
to SK’s SMF (setting forth DRS’s activity report); Grandslam’s
SMF at ¶ 93; Pl.’s Grandslam SMF at ¶ 93.)
On that day, the
Mulgrew crew consisted of two “hold over” longshoremen, Daniel
As discussed below, the parties genuinely dispute whether the
location of the “cut” made it more likely than not that the
“hold persons” would have or should have noticed it.
24 DRS supervisors expected DRS’s “hold persons” to look at the
pre-slings and to systematically remove and replace any cut or
damaged pre-slings. (See Grandslam’s SMF at ¶¶ 97-99; Pl.’s
Grandslam SMF at ¶¶ 97-99.) Indeed, DRS considered the removal
of cut or damaged cargo pre-slings part of its normal
discharging process. (See Grandslam’s SMF at ¶ 99; Pl.’s
Grandslam SMF at ¶ 99.)
Mortorano and Fred McAllister, two “door” longshoremen, George
Matthews and Plaintiff, and one crane operator, Leo Mullen (see
Grandslam’s SMF at ¶¶ 100-105; Pl.’s Grandslam SMF at ¶¶ 100105; SK’s SMF at ¶¶ 66-68, 76), and discharging proceeded
largely as usual for much of the morning.
approximately 9:30 A.M., the DRS “hold over” longshoremen
approached a plywood draft, looked at and handled the cargo
slings, and then connected the rope sling to the hook of the
cargo spreader with DRS’s nylon strap.
(See Mortorano Dep. at
89:12-22; McAllister Dep. at 65:10-24, 68:8-21, 69:7-19; SK’s
SMF at ¶¶ 79-80; Grandslam’s SMF at ¶¶ 101-103.)
DRS crane operator Mullen then lifted the draft from the
hold in two phases: first, he lifted the draft high enough to
allow the “hold over” longshoremen to inspect the slings at the
bottom of the draft; then, he lifted the draft out of cargo hold
2, swung the draft over towards the pier, and began to lower
(See Mullen Dep. at 62:18-70:17; Grandslam’s SMF at ¶ 104;
Pl.’s Grandslam SMF at ¶ 104.)
At that time, Plaintiff, as the
“doorway” longshoreman, approached the descending draft with his
arms extended, in order to reach and “spin” the draft into
Plaintiff concedes that the SANKO’s crane (and crane
operation) “had nothing whatsoever to do with [his] accident.”
(Grandslam’s SMF at ¶ 115; Pl.’s Grandslam SMF at ¶ 115.)
position on the pier.26
(Pl.’s Dep. at 170:20-172:4, 192:24-
As the draft came within one to two feet from
Plaintiff’s grasp, he heard a “‘pop’” and watched the plywood
draft shift towards him, ultimately striking him on the legs.
(SK’s SMF at ¶ 83.)
Following this incident (and Plaintiff’s removal by
ambulance), the DRS supervisors examined the “parted sling” in
the presence of SK Port Captain Joo, and discovered that it had
somehow been “cut” through 80% of its thickness just below one
of the “eyes.”27
(Billups Dep. at 131:1-132:3, 144:5-18; see
also SK’s SMF at ¶¶ 84-85; Pl.’s SK SMF at ¶¶ 84-85; Grandslam’s
SMF at ¶¶ 105, 108.)
Nevertheless, DRS deemed the failed sling
a “one off” or “fluke” incident, and the DRS supervisors made
the decision to continue their use of the rope pre-slings in
connection with the cargo operations.
(Grandslam’s SMF at ¶
Despite the fact that Plaintiff testified to routinely
standing underneath drafts of descending plywood, Plaintiff
disputes whether Plaintiff stood directly underneath the
disputed draft in this instance. (Compare SK’s SMF at ¶¶ 68-69,
with Pl.’s SMF at ¶¶ at 68-69.) This dispute, however, has no
impact on the disposition of the pending motions, because no
party advances the position that this entire incident would have
been avoided by a slight change in Plaintiff’s physical position
on the pier.
27 The parties engaged in a protracted period of discovery
relative to Plaintiff’s initial position that the parted sling
parted on account of its frayed and worn condition.
Nevertheless, Plaintiff and his expert ultimately conceded that
the fibers of the rope sling had been cut, and that the cut
occurred prior to SANKO’s arrival in port at Camden. (See,
e.g., Pl.’s SK SMF at ¶¶ 85-86.) The actual source and timing
of the cut, by contrast, remains unknown.
109; Pl.’s Grandslam’s SMF at ¶ 109; SK’s SMF at ¶ 84; Pl.’s SK
SMF at ¶ 84.)
At 2:00 P.M. on the same day, however, a second
rope pre-sling failed, and DRS Captain Hassall “immediately”
directed DRS’s crews to cease all discharging.28
DRS then made the decision, together with SK Port
Captain Joo, to use steel chains to discharge the remainder of
(See Grandslam’s SMF at ¶¶ 111-12; Pl.’s Grandslam SMF
at ¶¶ 111-12; Hassall Dep. at 128:8-130:14.)
Following this incident, Plaintiff filed this litigation,
claiming that he suffered an array of orthopedic, neurological,
and internal injuries,29 on account of the “carelessness and
negligence” of Grandslam and SK.30
(Second Am. Compl. at ¶¶ 26-
The parties thereafter proceeded to an extended period of
pretrial discovery, and the pending motions followed.
STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.”
Alabama v. North Carolina, 560
The parties provide no detail regarding the condition of this
second “parted” sling.
29 These injuries allegedly include “crushing injuries to his
right hip, right ribcage, cervical, thoracic and lumbar spines,”
and left ankle. (Second Am. Compl. at ¶ 28.)
30 Grandslam, SK, and the other Defendants, in turn, asserted a
series of Crossclaims against each other for contribution and/or
indemnification. [See, e.g., Docket Items 87, 88, & 89.]
U.S. 330, 344 (2010) (citations and internal quotation marks
omitted); see also FED. R. CIV. P. 56(a).
In evaluating a motion for summary judgment, the Court must
view the material facts in the light most favorable to the nonmoving party, and make every reasonable inference in that
See Scott v. Harris, 550 U.S. 372, 378 (2007);
Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
inference based upon “‘speculation or conjecture,’” however,
“‘does not create a material factual dispute sufficient to
defeat summary judgment.’”
Halsey, 750 F.3d at 287 (citations
Rather, the non-moving party must support each
essential element with concrete record evidence.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” the
Court may grant summary judgment.
Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In simple terms, this action centers upon which entity, if
any of the present Defendants, bears some legal responsibility
for the failed rope sling that caused Plaintiff’s injuries.
This inquiry, in turn, requires a consideration of the various
duties imposed upon the players most routinely involved in
maritime shipping—the “bareboat” charterer/owner pro hac vice,
the “time charterer,” and the stevedores.
For that reason, the
Court will first introduce the relevant framework, prior to
turning to the specific contours of the duties owed by Grandslam
and SK in this instance.
A. Section 905(b) Duties under the LHWCA, Generally
Throughout much of the 1900s, the admiralty doctrine of
unseaworthiness effectively placed absolute liability upon a
shipowner (and related entities) for injuries sustained by
longshoreman and other non-seamen working on board a vessel
while in port.31
See Seas Shipping Co. v. Sieracki, 328 U.S. 85,
90-94 (1946) (discussing the doctrine of unseaworthiness); see
also Marroquin v. Am. Trading Trans. Co., Inc., 711 F. Supp.
1165 (E.D.N.Y. 1988) (discussing pre-LHWCA admiralty law).
The enactment of the 1972 Amendments to the LHWCA, however,
spelled the “demise” of an injured longshoreman’s right to
maintain a cause of action for unseaworthiness.
Maritime Co. of Philippines, 643 F.2d 1380, 1380 (9th Cir.
1981); see also 33 U.S.C. § 905(b).
The LHWCA took away, in
particular, absolute liability for injured longshoremen, and
substituted a comprehensive statutory workers’ compensation
Although dressed in admiralty terms, the doctrine of
unseaworthiness constituted merely a species of negligence,
imposing strict liability upon a vessel owner for failure to
supply a seaworthy vessel, equipment, and/or crew. See
Smallwood v. Am. Trading & Transport Co., 839 F. Supp. 1377,
1379 (N.D. Cal. 1993) (discussing “the tortuous history of
negligence and unseaworthiness in admiralty law”).
scheme that restricts an injured longshoreman’s ability to
maintain a cause of action against a vessel owner or its agents
to instances in which one of those entities acted negligently in
relation to the injury.32
See Hill v. Reederei F. Laeisz
G.M.B.H., Rostock, 435 F.3d 404, 406 (3d Cir. 2006); see also 33
U.S.C. § 905(b)
Section 905(b) codifies the exclusive remedy for
longshoremen, and specifically 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, 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.... 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) (emphases added).
The LHWCA, in turn,
defines a “vessel” within the meaning of section 905(b) to
include “vessel’s owner, owner pro hac vice, agent, operator,
charter or bare boat charterer, master, officer, or crew
33 U.S.C. § 902(21) (emphases added).
several courts have identified certain ambiguity in the
definition of “vessel” under the LHWCA, extant authority
reflects that the LHWCA plainly includes “time charterers” and
In other words, the 1972 amendments to the LHWCA fundamentally
changed the nature of third-party negligence actions initiated
by longshoremen. See Howlett v. Birkdale Shipping Co., 512 U.S.
92, 97 (1994) (describing the “fundamental changes”).
“bareboat charterers,” as here, within its statutory scope.33
See, e.g., Hudson v. Schlumberger Tech. Corp., 452 F. App’x 528,
536 (11th Cir. 2011); Becker v. Tidewater, Inc., 586 F.3d 358,
373 (5th Cir. 2009); Rodriguez v. Bowhead Trans. Co., 270 F.3d
1283, 1286 (9th Cir. 2001); Hines v. British Steel Corp., 907
F.2d 726, 729 (7th Cir. 1990); Kerr–McGee v. Ma–Ju Marine
Servs., Inc., 830 F.2d 1332, 1338–39, 1343 (5th Cir. 1987);
Migut, 571 F.2d at 356.
Nevertheless, relevant precedent
limits, in different ways, the types of negligence for which
longshoremen can sue vessel owners, charterers, and the like.
In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.
156 (1981) and Howlett v. Birkdale Shipping Co., 512 U.S. 92
Differences emerge in how courts rationalize this
interpretation, with some courts including “time charterers” by
reference to the LHWCA’s express language, while others include
“time charterers” by extension of the LHWCA’s intended purpose.
In Migut v. Hyman-Michaels Co., 571 F.2d 352 (6th Cir. 1978),
for example, the Court of Appeals for the Sixth Circuit
determined that the definitional provisions of the LHWCA
included, in essence, a typographical error, and construed the
statute as covering time charterers rather than simply a
“charter.” Id. at 355-56. In Dougherty, by contrast, a judge
of the Eastern District of Pennsylvania construed the LHWCA to
include “time charterers” on account of the LHWCA’s manifest
purpose of enabling longshoremen to sue negligent third parties
for injuries. 622 F. Supp. at 1. Despite these differences,
the salient conclusion remains that “time charterers” fall
within the statutory coverage of liability under section 905(b)
of the LHWCA. As explained below, however, the sphere of duties
changes dramatically depending upon the nature of the “vessel”based entity sued. For that reason, and as discussed below,
Grandslam’s duties under section 905(b) as the “bareboat
charterer” differ from the section 905(b) duties imposed upon SK
as the “time charterer.”
(1994), both landmark cases, the Supreme Court concluded that
“vessels” within the meaning of section 905(b) owe three general
duties to longshoremen:34 (1) a “turnover duty,” which relates to
the condition of the ship upon commencement of stevedoring
operations and includes a corollary duty to warn; (2) an “active
operations duty,” which requires that a “vessel” exercise
reasonable care to prevent injuries to longshoremen in areas
that remain under the “active control of the vessel;” and (3) a
“duty to intervene,” which imparts an obligation upon the
“vessel” to intervene in certain circumstances in areas under
the principal control of the independent stevedore.35
512 U.S. at 98 (citing Scindia, 451 U.S. at 167-68).
These general duties, as explained below, apply absent a
contractual provision, positive law, or custom to the contrary.
See Scindia, 451 U.S. at 172.
35 SK claims that the Scindia duties do not squarely apply to it,
given the “necessarily different and more limited” capacity of a
time charterer (as opposed to Grandslam’s more encompassing role
as “bareboat charterer”). (SK’s Br. at 24-25.) Plaintiff, in
response, advances inconsistent positions: arguing at great
length that the Scindia defines the contours of SK’s duties (see
Pl.’s SK Opp’n at 21-32), and then contrarily stating that the
general “maritime negligence standard” of reasonable care
governs SK rather than the Scindia duties. (Id. at 32-33.) The
Court recognizes that neither Scindia nor Howlett involved a
time charterer, and that in Kerr-McGee, the Court of Appeals for
the Fifth Circuit expressed its view that Scindia “does not
[expressly] set the duty of time-charterers.” 830 F.2d at 1340
n.8 (“Though the Supreme Court used the word ‘vessel’ throughout
its opinion, the context of the case, as well as the Court’s
alternate use of ‘shipowner’ throughout its opinion suggest that
the duties prescribed in Scindia apply only to true owners.”).
Nevertheless, in Kerr-McGee, the Court of Appeals for the Fifth
Circuit went on to determine the time charterer’s duty within
Plaintiff alleges in this instance that Grandslam and SK
each breached their turnover duty relative to pre-slung plywood
The nature of this duty, in turn, splinters in relation
to Grandslam and SK.
The Court now turns to the particular
nuances relative to each moving Defendant, and then to whether
issues of fact preclude summary judgment in favor of each
1. Turnover Duty of Grandslam, the “bareboat charterer”
Based upon a “vessel owner’s” or “bareboat charterer’s”
heightened control over a vessel, in Howlett, the Supreme Court
explained the relevant turnover duty as follows:
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
the same analytical framework as the Scindia Court. Id. at
1341-43. Even more, robust authority following and applying
Scindia plainly reflects the nuanced duty analysis relative to
time charterers and owners pro hac vice. See, e.g., Becker, 586
F.3d at 373 (describing the difference analysis, in light of the
differences in scope of authority and responsibility). As a
result, this dispute has little practical value here, because
the essential analysis relative to SK’s conduct remains the
same, whether denominated as a Scindia analysis or one under
more general maritime negligence principles. See Hines, 907
F.2d at 729 (concluding that the Scindia principles “apply with
equal force” to a time charterer).
36 Plaintiff concedes that the “active operations duty” and the
“duty to intervene” have no application to the facts of this
litigation. (See Pl.’s SK Opp’n at 2, 28-32; Pl.’s Grandslam
Opp’n at 2, 26-33.)
care’ to carry on cargo operations ‘with reasonable
safety to person and property.’
512 U.S. at 98 (citation omitted and emphasis added).
turnover duty thus includes the logical corollary that the
vessel “warn the stevedore” of any known or knowable hazards on
the ship or with respect to its equipment, that (1) “would
likely be encountered by the stevedore in the course of his
cargo operations,” that (2) “would not necessarily be known by
the stevedore,” and that (3) “would not [otherwise] be obvious
to or anticipated by [the stevedore] if reasonably competent in
the performance of his work.”
Id. (citation and internal
quotations omitted); see also See Serbin v. Bora Corp., 96 F.3d
66, 70 (3d Cir. 1996) (citation omitted) (“The turnover duty
comprises ‘both a duty to provide safe conditions and a
corollary duty to warn of known, non-obvious hazards’ in
instrumentalities and areas ‘turned over’ to the stevedore’s
For that reason, the turnover duty proves narrow when the
alleged defect occurs in the cargo stow or cargo area (an area
typically within the purview of the stevedores) rather than in
the ship’s gear, equipment, tools, or work space (an area
typically under the control of the vessel owner or owner pro hac
Indeed, binding case law from the Supreme Court and
Court of Appeals for the Third Circuit articulates three
guideposts critically relevant to the disposition of Grandslam’s
First, the vessel owner/owner pro hac vice “has no general
duty” to supervise, inspect, or discover dangerous conditions
“that develop within the confines of the cargo operations,” a
task routinely “assigned to the stevedore.”
Scindia, 451 U.S.
Second, “the shipowner has no duty to supervise or
inspect cargo loaded or unloaded by stevedores and therefore may
not be held liable for injuries arising out of the stevedore’s
[own] failure” to properly perform its function. Derr v.
Kawasaki Kisen K.K., 835 F.2d 490, 493 (3d Cir. 1987).
the turnover duty relative to defects in cargo operations
“attaches only to latent hazards,” i.e., not known, obvious, or
anticipated conditions, and “encompasses only those hazards”
that the vessel owner/owner pro hac vice knew of or should have
known of “in the exercise of reasonable care.”
U.S. at 105.
Stated differently, in order to succeed on a claim against
Grandslam for breach of the turnover duty, Plaintiff must show:
(1) that a defect in the vessel, its equipment, or a latent
defect in the cargo area caused the accident; (2) that the
vessel owner/owner pro hac vice knew about the hazard or should
have discovered it before turning over the vessel to the
stevedore; (3) that the known or knowable hazard constituted one
of the type that the stevedoring company would likely or
ordinarily have encountered in the course of cargo operations;
and (4) that the hazard would not have been obvious to or
anticipated by a reasonably competent stevedore.
See Mullen v.
Alicante Carrier Shipping Corp., No. 02-6722, 2004 WL 1737493
(E.D. Pa. Aug. 3, 2004) (citing Hill v. NSB Niederelbe
Schiffahrtsges. MBH & Co., No. 02-2713, 2003 WL 23162396, at *3
(E.D. Pa. Dec. 30, 2003)).
a. Plaintiff cannot establish a prima facie breach
of Grandslam’s turnover duty
Plaintiff’s claim relative to Grandslam hinges, in its
entirety, upon his position that (1) Grandslam had an obligation
under Scindia (and its progeny) to inspect the rope slings as
part of the SANKO’s equipment, and that (2) certain safety and
operations procedures imparted an obligation upon Grandslam to
supervise the stevedores’ cargo operations.
Grandslam Opp’n at 26-31, 37-38.)
Nevertheless, neither of
Plaintiff’s positions find support in law or in the evidence
proffered in this case, and so neither aspect presents an issue
to be resolved by the factfinder at trial.
The Court notes, at the outset, that the damaged rope sling
came aboard the SANKO after the vessel had been turned over to
SK and the independent stevedores hired by SK, and during cargo
operations in which Grandslam played no role (as a supervisor or
(See Grandslam’s SMF at ¶¶ 49-51, 116; Pl.’s
Grandslam SMF at ¶¶ 49-51, 116.)
Grandslam had turned the
vessel over to SK before the plywood and slings were onloaded in
(See Grandslam’s SMF at ¶¶ 49-51, 116; Pl.’s
Grandslam SMF at ¶¶ 49-51, 116.)
Indeed, it is undisputed that
Grandslam had no access to or control over the cargo rope slings
that came aboard the vessel for the first time during the
loading operations of Malaysian stevedores.
RSMF at ¶ 118; Pl.’s Grandslam SMF at ¶ 33.)
As a result,
Plaintiff has not, and cannot, demonstrate that a hazard known
or knowable to Grandslam existed on the SANKO prior to turnover.
Rather, the undisputed record evidence plainly reflects that the
hazardous condition (e.g., the “cut” rope sling) was introduced
into the vessel after turnover, and in relation to an implement
unconnected to the vessel, its equipment, or the cargo area.37
The Court finds no support for Plaintiff’s position that the
rope slings constituted part of the SANKO’s equipment rather
than part of the cargo. (See Pl.’s Grandslam Opp’n at 26-29.)
Indeed, Plaintiff concedes that only SK owned, selected,
purchased, and provided the rope slings for use by the Malaysian
stevedores, and that these slings came onboard the SANKO for the
first time during cargo operations. (See Pl.’s Grandslam SMF at
¶¶ 33, 36, 50.) The Captain of the SANKO, its Chief Officer,
and the DRS Captain then all consistently testified that the
rope slings were not part of SANKO’s equipment, and instead came
aboard the SANKO as part of the cargo and solely for the purpose
of discharging the cargo. (Valencia Dep. at 35:24-36:12,
Purificacion Dep. at 24:6-14; Hassall Dep. at 197:8-15.)
Plaintiff mounts no genuine challenge to this version of events,
nor proffers any fact to suggest any involvement by Grandslam in
the Malaysian cargo operations (or in any other way relevant to
Even more critically, in Howlett, the Supreme Court
expressly rejected the notion that a vessel owner’s turnover
duty required it “to supervise the ongoing operations of the
loading stevedore (or other stevedores who handle the cargo
before its arrival in port) or inspect the completed stow.”
U.S. at 105.
Plaintiff’s argument, by contrast, invites the
the rope slings). (See generally Pl.’s Grandslam SMF.) Rather,
Plaintiff relies upon certain case and regulatory support—
Prinski v. Blue Star Line Marine Ltd., 341 F. Supp. 2d 511 (E.D.
Pa. 2004), Revak v. Interforest Terminal UMEA AB, No. 03-4822,
2009 WL 1362554 (E.D. Pa. May 14, 2009), and the Safety and
Health Regulations for Longshoring, 29 C.F.R. § 1981, et seq.
(hereinafter, the “OSHA regulations”)–that does not advance his
position. (See Pl.’s Grandslam Opp’n at 26-28.) Indeed, Prinski
involved a defect in permanent parts of the vessel’s physical
structure (specifically steel archways on the main deck), 341 F.
Supp. 2d at 514, and not cargo slings that came aboard only as a
result of independent cargo operations (as here). In Revak, by
comparison, the parties presented evidence that the “vessel
leased the [broken] sling,” “provided the [broken] sling to the
stevedores,” and “had the most direct access to and control over
the [broken] sling.” 2009 WL 1362554, at *7. As a result, the
Revak court found an issue of fact on whether the broken sling
constituted equipment. Id. Here, by contrast, Plaintiff
concedes that none of the facts present in Revak exist here,
except that Revak also involved a parted sling. (See Pl.’s
Grandslam SMF at ¶¶ 33, 36, 50.) Finally, in relation to the
OSHA regulations, the Court need only briefly mention that those
regulations imposed obligations upon DRS as the stevedore
employer and not Grandslam. See, e.g., 33 C.F.R. §
1918.62(d)(1)-(3). Beyond these plainly distinguishing
features, defining the SANKO’s equipment to include the rope
slings at issue here would contravene the allocation of fault
embodied by the LHWCA, because the injury here occurred outside
Grandslam’s traditional sphere of operation (the cargo area) and
because of an instrument (a rope sling) to which it had no
access or control. See Howlett, 512 U.S. at 101-05 (explaining
that the LHWCA attempts to place liability for injuries upon the
party that most controls the areas and instrumentalities
involved in the injuries).
Court to reach the opposite conclusion, and specifically to
conclude that Grandslam’s turnover duty required it to
continuously supervise the Malaysian stevedore and to inspect
the cargo pre-slings that came aboard the SANKO for the first
time during cargo loading operations.
Grandslam Opp’n at 26-31, 37-38.)
(See generally Pl.’s
Such a requirement, however,
would require vessels “to exercise scrutiny over a cargo loading
operation” and “to inject themselves into matters beyond their
Howlett, 512 U.S. at 103.
attributing a supervisory duty under these facts would “saddle
[Grandslam] with precisely the sort of nondelegable duty that
Congress sought to eliminate” through enactment of the LHWCA.
Scindia, 451 U.S. at 169.
The Supreme Court considered and
rejected this precise sort of argument in Howlett, under facts
even more supportive of the longshoremen than present here, and
Plaintiff’s position would run directly contrary to the Supreme
Court’s interpretation of the LHWCA.38
In Howlett, the Supreme Court found that plastic sheeting
supplied by the vessel and placed underneath cargo bags
constituted part of the cargo stow (as opposed to the vessel’s
equipment). 512 U.S. at 94-105. Despite agreeing that the
vessel had “no obligation to supervise and inspect cargo loading
operations” and no constructive knowledge of any hazard, the
Supreme Court ultimately vacated and remanded the lowers’ courts
grant and affirmance of summary judgment in favor of the vessel
owner, on account of the fact that the lower courts did not
address the fact that crew members testified to observing the
plastic sheeting during loading operations (thereby creating the
possible inference of actual knowledge on the part of the vessel
Simply put, Grandslam, after turnover to SK, had no duty to
oversee the Malaysian stevedores that loaded the shipment of
pre-slung plywood at issue in this action, and Plaintiff has
advanced no fact suggesting that Grandslam had actual and/or
constructive knowledge of the “cut” rope sling (a condition
that, again, arose in connection with this vessel after the
As a result, Plaintiff cannot, as a matter
of law, demonstrate that Grandslam breached its turnover duty
under Scindia (and its progeny).
b. No contract, positive law, or custom supplants
the application of the general duties under
Nor can the Court find that Grandslam’s safety management
system procedures created an independent custom or contractual
obligation to supervise the stevedores’ cargo operations.
generally Pl.’s Grandslam Opp’n at 30-31.)
In Scindia, the Supreme Court made clear that its duties
apply “absent contract provision, positive law, or custom to
451 U.S. at 172.
Although Scindia does not define
the type of custom or contract that could alter Grandslam’s duty
to longshoremen under section 905(b), no provisions impose such
a heightened duty in this instance.
owner). Id. at 105-06. Plaintiff has presented no such
evidence here, and in fact concedes quite the opposite.
Indeed, no contract exists between Grandslam and DRS, nor
has Plaintiff identified any conduct that suggests a custom of
enhanced supervision over stevedoring affairs.
Plaintiff takes the position that three isolated provisions
within the SANKO’s internal safety management procedures and
cargo plans somehow create an expansive duty of care beyond that
of Scindia and Howlett.39
(See Pl.’s Grandslam Opp’n at 30-31.)
On the oral argument record of November 24, 2015 and briefly
in his opposition, Plaintiff argued that the International
Safety Management (hereinafter, “ISM”) Code constitutes positive
law that creates duties in excess of the LHWCA and general
maritime law. (See Pl.’s Grandslam Opp’n at 30.) On both
occasions, however, Plaintiff referenced the ISM Code only by
name, and provided no citation or discussion of any allegedly
relevant provisions. (See, e.g., Pl.’s Grandslam Opp’n at 30.)
Congress codified the ISM code by statute, 46 U.S.C. §§ 32013025, and through federal regulations, 33 C.F.R. §§ 96.20096.390. Few courts have addressed whether the ISM Code, as
codified, creates duties running from vessels to longshoremen in
excess of those set out in the LHWCA. Nevertheless, every
federal court that has addressed this issue has concluded that
it does not. See, e.g., See Horton v. Maersk Line, Ltd., 603 F.
App’x 791, 797 (11th Cir. 2015) (rejecting the ISM Code as a
basis for a negligence claim in excess of the LHWCA and Scindia,
and citing supportive cases); Aronson v. Celebrity Cruises,
Inc., 30 F. Supp. 3d 1379, 1396 (S.D. Fla. 2014) (“[T]he
International Safety Management Code does not create any duties
and thus cannot be the basis for a negligence claim against a
cruise line.”); Rinker v. Carnival Corp., 753 F. Supp. 2d 1237,
1243 (S.D. Fla. 2010) (“Plaintiff has failed to present any
authority that establishes that the [Code] creates any duties
that Carnival owes to Plaintiff.”); Calderon v. Offen, No. 07–
61022, 2009 WL 3429771, at *4 (S.D. Fla. Oct. 20, 2009)
(“Congress merely desired to participate with other maritime
nations in achieving safety goals [through the Code], but did
not intend to change long-established rules of law which govern
liability and its allocation in general maritime law.”); Johnson
v. Horizon Lines, LLC, 520 F. Supp. 2d 524, 533 (S.D.N.Y. 2007)
(finding that the regulations implemented under the ISM Code
Plaintiff references, in particular, the language in the
Management of Safe Operation Rules that states that “the Chief
Officer shall control and supervise cargo operations” (Ex. 30C
to Pl.’s Grandslam SMF at § 7.2.1); the provision in the
Procedure for Bulk Carrier/Cargo Ship Cargo Operations that
notes that “[t]he Master shall assume overall responsibility for
supervising the cargo operation in bulk carriers and other cargo
ships and shall confirm such work result...” (Ex. 31 to Pl.’s
Grandslam SMF at § 3); and the part of the Cargo Operation Plan
for Unloading Plywood in Crates that directs “Officers and Crew
on Duty” to “secure the safety of personnel working with the
cargo” and to ensure “safe operation” of the “equipment and
tools for cargo operation.”
(Ex. 32 to Pl.’s Grandslam SMF at §
JJ (emphasis in original).)
Even a cursory inspection of these documents reveals that
they amount to little more than an instructional guide to
provide direction to the ship’s officers, and not a contract
with any other entity nor any effort to modify maritime custom
relative to cargo discharging operations.
(See Exs. 30C, 31, &
were “cast in general terms which restate principles already
well established by American case law,” and thus should not be
construed as imposing additional duties). Because Plaintiff has
not cited any specific portion of the ISM Code that provides
support for the duty he alleges, nor any precedent that
recognizes the ISM Code as a basis for a negligence claim, this
Court joins the weight of authority in finding that the ISM Code
provides him with no relief.
32 to Pl.’s Grandslam SMF.)
Indeed, these documents do not
mention longshoremen, the stevedores, or cargo-oriented tools
(like, rope slings), and they speak primarily (if not
exclusively) in terms of the SANKO crews’ responsibility for the
SANKO equipment used in connection with cargo operations (like,
the crane, hatch covers, and deck lights).
In that way, when
viewed as a whole, each document reflects an obvious intention
to remind the SANKO’s officers and crew of the importance of
conscientiousness in the high-risk world of international
(See, e.g., Ex. 30C at § 1.)
Indeed, because the vessel and its crew cannot remain
entirely “detached from cargo operations,” vessels routinely
take “responsibility” for preparing cargo-oriented plans and
Howlett, 512 U.S. at 103.
vessel owners construct these documents with the expectation
that “the stevedore, the independent contractor hired for its
expertise in the stowage and handling of cargo,” will be
“charged with actual implementation” of the various procedures.
And, because Plaintiff has identified no actions by
Grandslam in relation to cargo operations, the undisputed record
supports only that conclusion.
For these reasons, the Court finds Plaintiff’s reliance
upon internal safety guides misplaced as a basis to enhance the
otherwise-applicable Scindia duties.
See Goldsmith v. Swan
Reefer A.S., 173 F. App’x 983, 988 (3d Cir. 2006) (declining to
conclude that a contract between parties other than the
stevedore, and not enacted for its benefit, expanded a vessel’s
duty relative to the safety of longshoremen); Mullen v. Alicante
Carrier Shipping Corp., No. 02-6722, 2004 WL 1737493 (E.D. Pa.
Aug. 2, 2004) (examining the contract provision exception in
Scindia, and determining that it only applies if the contract
provision specifically involves a duty to discover dangerous
conditions related to longshoremen); Horton, 603 F. App’x at
796-97 (rejecting a ship’s safety manuals and the ISM Code as a
basis to modify the standards set forth in section 905(b) and
Scindia); Celestine v. Lykes Bros. S.S. Co., 729 F. Supp. 691,
694 (N.D. Cal. 1989) (same).
For all of these reasons, Grandslam’s motion for summary
judgment will be granted.40
2. Turnover duty of SK, the “time charterer”
Although the overwhelming weight of authority makes plain
that “time charterers,” like SK, qualify as a vessel within the
meaning of section 905(b), equal authority states that the
duties applicable to a vessel owner differ from the duties
imparted upon a vessel owner/owner pro hac vice.
In general, a
“time charterer” that has no control over the vessel assumes no
Grandslam shall advise the Court of the impact of this
decision, if any, upon its Crossclaims within seven (7) days.
liability for negligence, unless the harm occurs “within the
charterer’s traditional sphere of control and responsibility or
has been transferred [to the charterer] by the clear language of
the charter agreement.”
Kerr–McGee, 830 F.2d at 1343; see also
Mullen v. Hoyu Kaiun Kabushiki Kaisha, No. 88-8311, 1990 WL
55090 (E.D. Pa. 1990) (same), aff’d, 922 F.2d 832 (3d Cir.
1990); Irby v. Tokai Lines, No. 88-6890, 1990 WL 18880 (E.D. Pa.
In other words, a “time charterer” may be liable
to a longshoremen only if the “time charterer” acts
independently negligent or otherwise unreasonably in relation to
its own charter activities.
See Browning v. Safmarine, Inc.,
No. 11-2436, 2012 WL 6089481, at *3 (D.N.J. Dec. 5, 2012); Weeks
Marine, Inc. v. Hanjin Shipping, No. 04-1703, 2005 WL 1638148,
at *4 (D.N.J. July 12, 2005).
As applied here, in order to prevail on its negligence
claim against SK, Plaintiff must demonstrate that SK acted with
independent negligence, or unreasonably under all of the
existing circumstances, in relation to the cargo pre-slings.
a. Genuine issues of fact preclude the entry of
summary judgment in favor of SK
In support of its request for summary judgment, SK submits
that Plaintiff’s claims as against it rely upon little more than
“bluster and conflation,” because Plaintiff has adduced “no
evidence [from] which to prove that any actions SK took or
failed to take proximately caused [Plaintiff’s] injuries.”
(SK’s Reply at 1.)
The Court, however, finds that SK’s position ignores the
realities of SK’s involvement relative to the cargo rope slings
and its general supervision over the stevedores’ cargo
Indeed, SK’s argument on summary judgment centers
upon (1) SK’s delegation of its sling management process to an
independent contractor, (2) the fact that it did not control the
SANKO during the loading, voyage, or discharge, as well as (3)
its entitlement to rely upon the expertise of DRS (and its
related assertion that DRS should be called to answer for its
(See SK’s Br. at 35-42; SK’s Reply at 4-8.)
Nevertheless, even if the Court accepted each of these
positions (which it does not), the Court may not ignore the
record evidence that reflects (1) that SK selected, owned, and
supplied all of the pre-slings carried aboard the SANKO,
including the “cut” rope sling at issue here; (2) that SK did
not “carefully” inspect the conditions and/or safety of the rope
slings; (3) that SK’s own conduct, coupled with its internal
policies, support an inference that it actively supervised the
cargo operations of its international and domestic stevedores;
and (4) that the question of whether the “cut” sling proved open
and obvious cannot be resolved upon the competing evidence
For purposes of the pending motion, however, the
Court need only elaborate on the most-striking examples.
Critically, at all times relevant to this action, SK
required its port captains to follow SK’s “Guideline[s] for
Sling Management” (hereinafter, the “Guidelines”).
to Pl.’s SK SMF.)
(See Ex. 21
These Guidelines specifically required the
“discharging” and “loading” port captains to “carefully check,”
“inspect,” and “supervise” sling quality, condition, and use
during cargo operations.
During loading operations in
Tanjung Manis, Port Captain Kim, in turn, declared that he
“instructed and informed” the stevedores “regarding the usage of
slings,” and then “loaded all cargo” without incident and
under the “control” of SK’s “sling management procedures.”
22 to Pl.’s SK SMF (capitalization omitted).)
his deposition, Captain Kim reiterated that his role as the
Malaysian Port Captain required him to “carefully check and
supervise the condition” and “use” of the slings, to ensure the
safety of the loading stevedores, and to supervise overall cargo
operations (during and after loading).
(Kim Dep. at 18:3-21,
In that way, the Guidelines markedly differ from Grandslam’s
internal safety procedures which do not require supervision
and/or inspection of slings (or any other cargo-related
implements). (Compare Ex. 21 to Pl.’s SK SMF, with Exs. 30C,
31, & 31 to Pl.’s Grandslam SMF.) Beyond this plainly
distinguishing feature, SK’s Port Captains actually participated
in the cargo operations, as explained herein. SK’s role
relatively to the cargo operations therefore proves contextually
different from Grandslam’s uninvolved role.
44:22-46:2, 59:13-61:6, 104:8-113:19 (emphasis added).)
Nevertheless, Captain Kim acknowledged that he performed only a
“visual inspection” of the over 22,000 slings.
(Id. at 112:6-
During discharge in Camden, Port Captain Joo similarly
declared that he “instructed” the stevedores regarding the usage
of slings and that, despite Plaintiff “accident,” SK kept to its
“sling management procedure before discharging and during
discharging for safe working.”
(Ex. 38 to Pl.’s SK SMF.)
Indeed, during his deposition, Captain Joo testified to
significant communications between himself and DRS supervisors
relative to various aspects of DRS’s discharging operations
(see, e.g., Joo Dep. at 76:11-82:22), and specifically stated
that he “checked the conditions of [the] plywood and [the]
conditions of the slings” with DRS Captain Hassall.
(Id. at 85-
Taken together, this evidence, viewed in the light most
favorable to Plaintiff as the non-moving party, depicts SK as
intimately involved in the cargo operation of its stevedores
here and abroad.
Indeed, this evidence suggests that SK took
(through its port captains and the Guidelines) an active role in
ensuring the usability of the rope slings and in ensuring the
overall safety of its stevedores.
Despite the seemingly
pervasive involvement, however, this evidence equally suggests
that the Port Captains implicated in this instance arguably
erred in fulfilling the requirements reflected in the Guidelines
and in their own testimony, particularly those related to
ensuring the safety of the rope slings.
Against that backdrop,
this Court cannot conclude that SK acted reasonably under all of
the existing circumstances as a matter of law, because this
collective evidence, examined in the light most reasonable to
Plaintiff, creates at least a reasonable inference of
b. Genuine issues of fact preclude a finding that
the “cut” sling was “open and obvious”
Nor can the Court conclude upon this record that the “cut”
sling proved so “open and obvious” that it excuses any fault of
SK relative to the condition of the sling.
As relevant here, obviousness turns upon whether “a
reasonable longshore worker under all the circumstances would
actually have noticed the hazardous condition” and “would
actually have appreciated the true significance (probability and
gravity) of the threatened harm.”
Davis v. Portline Transportes
Maritime Internacional, 16 F.3d 532, (3d Cir. 1994) (citations
When confronted with “obvious” hazards, a “time
charterer” like SK can ordinarily “‘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.’”
Hill, 435 F.3d at 409 (quoting Kirsch v.
Prekookeanska Plovidba, 971 F.2d 1026, 1031 (3d Cir. 1992)).
a result, a “time charterer” “‘may be liable for failing to
eliminate an eliminable [or open and obvious] hazard only if it
should have expected that its expert stevedore would not avoid
the hazard and conduct cargo operations safely.’”
Kirsch, 971 F.3d at 1033).
Given the nature of the discharging operations in this
instance, however, it remains unclear whether DRS’s “hold”
longshoremen should have immediately recognized the condition of
the “cut” sling.
Specifically, although the “cut” itself rested
close to the “eyes” of the slings, the record evidence leaves
some doubt concerning the orientation of the “cut” sling on top
of the plywood bundle (thereby creating a question on whether
the “cut” should have been visible on the resting sling) and
whether the DRS “hold” longshoremen connected the slings to the
spreader assembly in a way that would have given them a clear
view of the “cut” (thereby creating a question on whether the
“cut” became visible once lifted off of the bundle).
e.g., Mortorano Dep. at 86:18-89:18.)
Indeed, one of the “hold”
longshoremen specifically testified that the rope sling at issue
here “looked good” from his vantage.
(Id. at 89:17-18.)
Court cannot resolve this disputed evidence in the context of
See Davis, 16 F.3d at 538-39 (reversing a
district court’s obviousness finding, based upon testimony that
the longshoremen did not observe the hazardous condition);
Williams v. Precious Cliffs, Ltd., 2006 WL 2057891, at *4-*7
(E.D. Pa. July 21, 2006) (denying the “vessel” defendants’
motion for summary judgment, in light of factual issues on the
obviousness of the hazard).
For all of these reasons, the Court finds that factual
disputes preclude the entry of summary judgment in favor of SK.
See FED. R. CIV. P. 56(a).
For the reasons explained above, Grandslam’s motion for
summary judgment will be granted, and SK’s motion for summary
judgment will be denied.
An accompanying Order will be
December 8, 2015
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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