JONES v. SANKO STEAMSHIP CO., LTD et al
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/2/2016. (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.,
SIMANDLE, Chief Judge:
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” rope sling parted, and caused a pre-slung plywood bundle
to fall on his legs.
As a result of these injuries, Plaintiff
brought claims under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 905(b) (hereinafter, the “LHWCA”)
against an array of entities.
On December 8, 2015, this Court granted summary judgment in
favor of the bareboat charter/owner pro hac vice, Defendant
Grandslam Enterprise Corp. (hereinafter, “Grandslam”), but
denied summary judgment in favor of the time charterer,
Defendant SK Shipping Co., Ltd. (hereinafter, “SK” and together
with Plaintiff, the “moving parties”)).
See Jones v. Sanko
Steamship Co., Ltd, ___ F. Supp. 3d ____, No. 10-6787, 2015 WL
8361745 (D.N.J. Dec. 8, 2015) (hereinafter, the “summary
judgment decision” or the “SMJ decision”)).
In the wake of the
summary judgment decision, the Court now confronts motions for
reconsideration by Plaintiff (relative to the entry of summary
judgment in favor of Grandslam) and SK (relative to the denial
of summary judgment in its favor).
[See Docket Items 146 & 151]
In connection with both motions, though, the moving parties
simply rehash the arguments expressly considered – and
previously rejected – in the Court’s summary judgment decision.
Plaintiff, for instance, restates (1) his position
concerning when the “cut” occurred (compare Pl.’s Grandslam SMJ
Opp’n Br. at 31-33, with SMJ decision at 18-19 & n.27 and Pl.’s
Recon. Br. at 4-7), (2) his view that the rope sling constituted
part of the SANKO’s “equipment” (compare Pl.’s Grandslam SMJ
Opp’n Br. at 26-30, with SMJ decision at 29-31 & n. 37-38 and
Pl.’s Recon. Br. at 7-13), and (3) his opinion that the
International Safety Management (hereinafter, “ISM”) Code and/or
SANKO’s internal operating procedures somehow expanded the duty
of care Grandslam owed to Plaintiff.
(Compare Pl.’s Grandslam
SMJ Opp’n Br. at 30-31, with SMJ decision at 33 & n. 39 and
Pl.’s Reconsideration Br. at 14-24.)
SK, in turn, advances its
prior arguments concerning (1) the recency of the “cut” to the
sling, (2) the SK Port Captains’ limited role in the cargo
operations, and (3) the impact, or lack thereof, of its
Guidelines for Sling Management and Port Captain Manual on the
scope of its oversight of its own stevedores.
(Compare SK’s SMJ
Br. at 35-42, with SMJ decision at 36-41 and SK’s
Reconsideration Br. at 9-13, 21-22.)
In other words, the motions for reconsideration present
little more than disagreement with this Court’s summary judgment
decision, and for the more detailed reasons that follow, both
will be denied.
The Court finds as follows:
Summary Judgment Decision.
In a forty-three page
decision dated December 8, 2015, the Court recited, at great
length, the factual background relative to Grandslam’s and SK’s
involvement in the plywood shipment at issue in this litigation,
see Jones, ___ F. Supp. 3d ____, 2015 WL 8361745, at *2-*7, the
framework for liability under the LHWCA and general maritime
law, see id. at *7-*9, and then the specific contours of the
duties owed by Grandslam and SK in this instance.
See id. at
With respect to Grandslam, the “bareboat charterer,”
this Court detailed the scope of its turnover duty under Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) and
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (1994), and
then explained that, in order to succeed 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
Id. at *10 (citations and emphasis omitted).
concluded, however, that Plaintiff could not meet the first two
elements, because the undisputed record evidence reflected that
the hazardous condition implicated here (e.g., the “cut” rope
sling) came aboard “the vessel after turnover, and in relation
to an implement unconnected to the vessel, its equipment, or the
Id. at *11 (emphasis in original).
concluding, the Court rejected Plaintiff’s characterization of
the rope slings as part of the SANKO’s equipment (as opposed to
a component of the cargo) on an array of legal and factual
In other words, the Court concluded that Grandslam “played no
role” in the cargo operations (in Camden or in Tanjung Manis),
and observed that it was “undisputed that Grandslam had no
access to or control over the cargo ropes that came aboard the
vessel for the first time during the loading operations of
Malaysian stevedores.” Jones, ___ F. Supp. 3d ____, 2015 WL
8361745, at *11.
See id. at *11 n.37.
Even more critically, though, the
Court reasoned that Plaintiff’s argument on the scope of
Grandslam’s turnover duty ran directly counter to the Supreme
Court’s interpretation of the LHWCA.
See id. at *12.
of these largely independent reasons, the Court determined that
Plaintiff could not, as a matter of law, demonstrate that
Grandslam breached its turnover duty under Scindia and its
Turning then to whether a contract, positive law, or
custom supplanted Grandslam’s general duties under Scindia, the
Court rejected Plaintiff’s position that the ISM Code and/or
Grandslam’s internal operating procedures “somehow create[d] an
expansive duty of care beyond that of Scindia and Howlett.”
In so finding, the Court followed the overwhelming
weight of authority rejecting the notion that the ISM Code
and/or a ship’s internal safety manuals “create duties running
from vessels to longshoremen in excess of those set out in the
Id. at *13 & n.39 (citations omitted).
Aside from this
legal conclusion, the Court observed, as a factual matter, that
Grandslam’s internal procedures did “not mention longshoremen,
the stevedores, or cargo-oriented tools (like, rope slings), and
[spoke] 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
Id. at *13 (emphasis added).
The Court therefore
found these documents unavailing as a source of any heightened
duty, because the rope slings did not, and do not, constitute
For all of those reasons, this Court found
Grandslam entitled to summary judgment.
With respect to SK, however, the Court confronted a
contextually different set of circumstances, in large part,
because the scope of SK’s turnover duty, as the “time
charterer,” differed from that Grandslam.
Id. at *13-*14.
more critically, though, the Court recited the genuine record
evidence reflecting “(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;” and
(3) that SK, through its own conduct and internal policies,
“actively supervised the cargo operations of its international
and domestic stevedores.”2
Id. at *14.
The Court then detailed
certain aspects of SK’s Guidelines for Sling Managements (most
especially, those provisions that required SK port captains to
In addition, the Court found that the question of whether the
“cut” sling proved open and obvious could not be resolved upon
the competing evidence presented on summary judgment. See
Jones, ___ F. Supp. 3d ____, 2015 WL 8361745, at *14. SK,
however, does not challenge this portion of the Court’s summary
judgment decision, and so the Court need not provide any
additional detail. (See SK’s Recon. Br. at 19 n.5.)
“‘carefully check,’ ‘inspect,’ and ‘supervise’” sling quality,
condition, and use during cargo loading), as well as the SK Port
Captains’ own testimony concerning their actual involvement in,
and supervision over, the cargo operations at issue here.
at *14-*15 (citations omitted).
Against that backdrop, this
Court stated that it could not “conclude that SK acted
reasonably under all of the existing circumstances as a matter
of law, because th[e] collective evidence, examined in the light
most [favorable] to Plaintiff, creates at least a reasonable
inference of negligence.”
Id. at *15 (emphasis in original).
For all of those reasons, this Court found that factual disputes
preclude the entry of summary judgment in favor of SK.
SK filed its motion for reconsideration on December
23, 2015 [see Docket Item 146], and Plaintiff’s motion for
reconsideration followed on January 5, 2016.
[See Docket Item
Standard of Review.
Local Civil Rule 7.1(i) governs
the Court’s review of the moving parties’ motions for
In order to prevail on a motion for
Although Plaintiff improperly filed his motion as one seeking
relief under Federal Rule of Civil Procedure 59(e), as discussed
below, extant authority explains that Local Civil Rule 7.1(i)
embodies the relevant standard, regardless of the manner in
which Plaintiff styled his motion. See, e.g., Grossberger v.
Saldutti, 834 F. Supp. 2d 209, 216 (D.N.J. 2011); Ivan v. Cnty.
of Middlesex, 612 F. Supp. 2d 546, 550 (D.N.J. 2009); Vasquez v.
Batiste, No. 14-4366, 2015 WL 6687549 (D.N.J. Oct. 30, 2015);
reconsideration, the party seeking reconsideration must, as
relevant here, demonstrate “‘the need to correct a clear error
of law or fact or to prevent manifest injustice.’”4
Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014)
(citations omitted); Lazaridis v. Wehmer, 591 F.3d 666, 669
(citation omitted) (3d Cir. 2010) (same).
the moving party must set forth the “‘dispositive factual
matters or controlling decisions of law’” it believes the Court
overlooked when rendering its initial decision.
Twp. of Willingboro Mun. Gov’t, 913 F. Supp. 2d 62, 78 (D.N.J.
2012) (citation omitted).
In that way, a party seeking reconsideration must meet
a high burden.
See United States v. Jones, 158 F.R.D. 309, 314
(D.N.J. 1994); Maldonado v. Lucca, 636 F. Supp. 621, 629 (D.N.J.
Even more critically, though, reconsideration does not
provide “an opportunity for a second bite at the apple,” Tishcio
v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998), nor a
vehicle “to relitigate old matters.”
NL Indus., Inc. v.
Tuytjens v. United States, No. 13-7597, 2015 WL 5882820, at *2
(D.N.J. Oct. 6, 2015) (same); Fabics v. City of New Brunswick,
No. 13-6025, 2015 WL 5167153, at *3 (D.N.J. Sept. 3, 2015)
(same); Nkansah v. Aviles, No. 15-2678, 2015 WL 4647988, at *2
(D.N.J. Aug. 5, 2015) (same).
4 A party seeking reconsideration could, in the alternative,
identify an intervening change in law and/or the availability of
previously unavailable evidence. See Andreyko, 993 F. Supp. 2d
at 478 (citations omitted). The moving parties here, however,
advance no such arguments.
Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996).
Indeed, mere disagreement with the court’s decision –
particularly its reasoning and distillation of the applicable
law and facts – should be aired through the appellate process.
See Andreyko, 993 F. Supp. 2d at 478; see also Shevline v.
Phoenix Life Ins., No. 09-6323, 2015 WL 348552, at *1 (D.N.J.
Jan. 23, 2015) (same).
Here, the Court first addresses two introductory
deficiencies common to both motions, before turning to the
moving parties’ more specific (and less intertwined) challenges.
The Motions are Untimely.5
As an initial matter,
Plaintiff improperly filed his motion as one seeking
reconsideration under Local Civil Rule 7.1(i) and Federal Rule
of Civil Procedure 59(e).
The provisions of Federal Rule of
Civil Procedure 59 address orders rendering a final judgment,
not interlocutory orders, like the summary judgment decision,
denying summary judgment on some, but not all, of a party’s
See Pellicano v. Blue Cross Blue Shield Ass’n, 540 F.
App’x. 95, 97 n.4 (3d Cir. 2013) (citation omitted) (“[B]ecause
an order dismissing fewer than all claims or parties is
generally not a final judgment, a Rule 59(e) motion to challenge
such an order may only be filed after the district court enters
Indeed, Grandslam challenges Plaintiff’s motion on precisely
that basis. (See Grandslam’s Opp’n at 1-2.)
the final judgment.”).
Because no final judgment has been
entered in this action pursuant to Federal Rule of Civil
Procedure 54(b), the provisions of Rule 59(e), and its 28–day
time limit, have no application in this instance.6
v. Colvin, ___ F. Supp. 3d ____, No. 12-2316, 2015 WL 5737353,
at *4 (E.D. Pa. Sept. 30, 2015) (finding Rule 59(e) inapplicable
to the plaintiff’s request for reconsideration, given the
absence of a final judgment); Mitchell, 913 F. Supp. 2d at 78
Rather, Local Civil Rule 7.1(i) provides the proper
procedural mechanism for reconsideration of this Court’s
interlocutory summary judgment decision.
Local Civil Rule 7.1(i), however, requires that a
motion for reconsideration be served and filed within 14 days
from entry of the Order on the original motion.7
See L. CIV. R.
In this case, Plaintiff and SK filed their motions for
This Court’s decision in Navarrete v. United States, No. 093683, 2013 WL 796274 (D.N.J. Mar. 4, 2013), aff’d, 532 F. App’x
121 (3d Cir. 2013), compels no contrary conclusion. In
Navarrete, a party sought reconsideration of this Court’s
decision granting summary judgment as to all claims against the
single remaining defendant. See id. at *1. For that reason,
this Court applied Federal Rule of Civil Procedure 59(e) to the
plaintiff’s reconsideration submission. See id. at *2. Here,
by contrast, this Court’s summary judgment decision plainly left
open Plaintiff’s claims against SK, and so no final judgment has
7 Such a rule proves particularly important in this case, given
the vintage of this action, and the over five years expended by
the parties, free of motion practice, in pretrial factual
reconsideration 28 and 15 days, respectively, after the court
entered its summary judgment decision.
[See Docket Items 146 &
The moving parties’ failure to file their motions within
the fourteen-day period prescribed by the Local Rule provides a
basis, on its own, to deny their motions.
See Mitchell, 913 F.
Supp. 2d at 78 (D.N.J. 2012) (citing cases, and denying a motion
for reconsideration as untimely).
The Court will therefore deny
the motions for reconsideration as untimely.
issue, the Court will equally deny the motions for lack of
The Moving Parties’ Challenges to the Court’s
Observation Concerning the Timing of the “cut”.
On the merits,
the Court first addresses the moving parties’ relatively common
contention concerning the time at which the “cut” occurred.
More specifically, the moving parties argue, from different
vantages, that the Court “overlooked” Plaintiff’s factual
position that the “cut” “either occurred in Tanjung Manis” or
“sometime prior to the slings arrival at that port” (Pl.’s
Recon. Br. at 4-7), and SK’s factual position that the “cut”
must have occurred just prior to the accident.
(See SK’s Recon.
Br. at 18-20.)
In the prefatory portion of its summary judgment
decision, this Court observed the parties’ essential agreement
“that the single ‘cut’ could have occurred at any time prior to
8361745, at *2.
Jones, ___ F. Supp. 3d ____, 2015 WL
The moving parties take issue with this general
observation, based upon their belief that certain evidence
supports their position on the more precise timing of the “cut.”
Nevertheless, the Court finds these challenges unavailing
because, as generally recited in the summary judgment decision,
Plaintiff’s own expert explained the lack of scientific evidence
relative to the timing of the cut, and specifically stated that
it could have occurred at any time prior to the incident.
Grandslam’s Recon. Opp’n Br. at 5-6 (citation omitted).)
SK, in turn, agrees that the “cut” could have occurred
at any time, but points to the experts’ alleged agreement that
the “cut” could only have occurred “‘recently.’”
Br. at 19.)
Based upon that term alone, SK then claims that the
evidence supports only the conclusion that the cut occurred
“just prior to the Accident.”
(Id. (emphasis in original).)
SK’s position, however, fundamentally overstates the clarity of
the “evidence” on recency (a term not defined by the experts
that used it), and ignores the evidence that suggests that the
“cut” could not have occurred in transit (internationally), nor
at the time the Camden stevedores connected the sling for
unloading (given the nature of the implements used by the DRS
(See, e.g., Pl.’s SK SMF at ¶¶ 87-88; see also
Pl.’s SK Recon. Opp’n at 5-8.)
Against that backdrop, the Court
discerns no error in its observation that the “actual source and
timing of the cut ... remains unknown.”
Jones, ___ F. Supp. 3d
____, 2015 WL 8361745, at *6 n.27
Even more importantly, though, the precise timing of
the cut proves largely meaningless for purposes of the pending
motions (and in relation to the summary judgment decision),
given the evidence, discussed at length in the summary judgment
decision, that SK exercised at least some oversight over cargo
operations in Tanjung Manis and Camden, and in relation to the
stevedores’ use of its own rope slings.
See Jones, ___ F. Supp.
3d ____, 2015 WL 8361745, at *14-*15.
For all of these reasons, the Court finds no basis to
reconsider its summary judgment decision on account of the
timing of the “cut,” and therefore turns to the moving parties’
Plaintiff’s Remaining Positions on Reconsideration. In
the remainder of his reconsideration submission, Plaintiff takes
the position that the Court “overlooked” matters in finding the
rope slings part of the cargo rather than part of the SANKO’s
equipment, and, relatedly, in the Court’s interpretation of the
ISM Code and Grandslam’s internal documents.
(Pl.’s Recon. Br.
These arguments, however, present little more than
Plaintiff’s disagreement with the Court’s prior conclusions, and
not a demonstration of any dispositive factual matters or
controlling legal authorities actually overlooked by this Court.
Indeed, in again claiming that the “cut” rope sling
constituted “equipment” (and thereby heightened Grandslam’s
duty), Plaintiff, as noted by Grandslam, simply recapitulates
his position that Grandslam could be held to a duty that
transcends the Supreme Court’s interpretation of the LHWCA.
(Pl.’s Recon. Br. at 7, 11-14; see also Grandslam’s Recon. Opp’n
Based upon this view (one rejected by this Court) and
his reading of certain non-binding decisions and regulations
(sources considered and rejected by this Court), Plaintiff
submits, for the second time, that the rope slings constitute
(See generally id. at 7-14.)
In that way, though,
Plaintiff’s position rests upon his disagreement with the
Court’s treatment of non-binding decisions, application of
binding Supreme Court precedent, and view of Grandslam’s lack of
involvement in the cargo operations (or in any other way
relevant to the rope slings).
Nevertheless, the Court fully and
comprehensively considered these arguments, and finds no reason
to revisit them now.
See generally Jones, ___ F. Supp. 3d ____,
2015 WL 8361745, at *10-*12.
With respect to Plaintiff’s position on the ISM Code
and Grandslam’s internal safety procedures, Plaintiff similarly
repeats, as noted by Grandslam, its prior arguments.
Recon. Br. at 14-24; see also Grandslam’s Recon. Opp’n at 1315.)
Nevertheless, in rejecting the ISM Code as a basis for
heightened duties, this Court “join[ed] the weight of authority
in finding,” as a matter of law, “that the ISM Code provides him
with no relief,” and Plaintiff again proffers no controlling
Jones, ___ F. Supp. 3d ____, 2015 WL
8361745, at *12 n.39.
Similarly, in finding Plaintiff’s
reliance upon the internal safety guides “misplaced as a basis
to enhance the otherwise-applicable Scindia duties,” the Court
observed that the internal safety guides exclusively govern
equipment (and not cargo-oriented tools, like rope slings at
issue here), and could not, as a matter of law, impose
heightened duties upon Grandslam.
Id. at *12-*13.
issue too, Plaintiff, again, offers no dispositive factual
matter or controlling legal decision to the contrary.
generally Pl.’s Recon. Br. at 19-24.)
For all of these reasons,
Plaintiff’s motion for reconsideration will be denied.
SK’s Remaining Positions on Reconsideration.
remainder of its reconsideration submission, SK advances its
view that the Court “overlooked” factual matters related to the
SK Port Captains’ involvement in cargo operations, and on the
duties, if any, imparted by SK’s own internal documents.
Recon. Br. at 4-13.)
More specifically, SK essentially takes
the position that its activities at the loading port in Tanjung
Manis have no relevance to this litigation, because the “cut”
could, allegedly, only have occurred just prior to the accident.
(SK’s Recon. Br. at 21.)
Nevertheless, this Court, as explained above, finds
SK’s narrow view on the timing of the “cut” unconvincing.
more importantly, though, SK does not dispute that its internal
documents (most especially, its Guidelines for Sling Management)
required that SK port captains exercise some oversight over
cargo operations involving rope slings,8 nor that the testimony
of its Port Captain creates at least some inference that the
Port Captains did indeed act in at least a quasi-supervisory
capacity at all times relevant to this litigation (and both in
Tanjung Manis and in Camden).
(See, e.g., SK’s Recon. Br. at 3,
5, 11-12; see also Pl.’s SK Recon. Opp’n at 9-16 (recounting the
evidence recited in the summary judgment decision on these
This involvement includes, in SK’s own words, a
Rather, SK takes exception to this Court’s summary judgment
decision, because the SK port captains’ duties, as partially
laid out in the Guidelines for Sling Management, impose
different obligations upon the port captains at the loading and
unloading ports. (See SK’s Recon. Br. at 10-13.) More
specifically, at the loading port, SK port captains must
carefully check, inspect, and confirm cling quality, quantity,
condition, and use; while, at the unloading port, SK port
captains must simply collect, discard, and deliver the use
slings. (See SK’s Recon. Br. at 10-11.) SK’s challenge,
however, rests upon the twice-rejected notion that the “cut”
could only have occurred at the unloading port in Camden. (See
generally id.) Thus, it provides no basis for reconsideration.
telephone call and meeting between SK’s US-based Port Captain Se
Jin Joo (hereinafter, “Captain Joo”) and DRS Captain James
Hassall, “a brief visual inspection of the general cargo
conditions,” and various contact between Captain Joo and DRS
Captain Hassall in the wake of Plaintiff’s accident.
Recon. Br. at 5, 7-9; see also Pl.’s SK Recon. Opp’n at 15-16
(citing additional examples).)
In their deposition testimony,
SK’s Malaysian Port Captain Jeong Hyun Kim and Captain Joo, then
reiterated, as explained in the summary judgment decision, the
obligations imparted by SK’s Guidelines and the scope of their
actual involvement in the circumstances (both loading and
unloading) that spawn this litigation.
See Jones, ___ F. Supp.
3d ____, 2015 WL 8361745, at *14-*15.
In other words, although SK argues that it took a
hands-off approach to the cargo operations, the evidence, as
discussed in the summary judgment decision, and seen in the
light most favorable to the opposing party, fairly supports a
See id. at *14-*15.
SK’s challenges to the
weight of this evidence and/or to the credit-worthy nature of
its Port Captains’ recollection provide issues for resolution by
the fact finder at trial, not by this Court on summary judgment.
(See, e.g., SK’s Recon. Br. at 6.)
For all of these reasons,
SK’s motion for reconsideration will be denied.
An accompanying Order will be entered.
March 2, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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