FISHER v. GOLDEN SHORE CORPORATION et al

Filing 110

OPINION fld. Signed by Judge Jose L. Linares on 6/25/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN FISHER,

Civil Action No. 11-cv-02661

Plaintiff,
v.
GOLDEN SHORE CORPORATION, et
al.,

OPIN ION

Defendants.

JOSE L. LINARES, U.S.D.J.

This matter comes before the Court upon motion by defendants, Golden Shore
Corporation and Cosco Container Lines, Co., for summary judgment (the “Motio
n” or
“Motion for Summary Judgment”). (ECF No. 103). Pursuant to Rule 78 of the
Federal
Rules of Civil Procedure, no oral argument was heard. Upon consideration of
the Parties’
submissions, and for the reasons stated below, Defendants’ Motion for Summ
ary
Judgment, (ECF No. 103), is DENIED.

I. BACKGROUND

This action arises from an alleged injury to the Plaintiff, John Fisher (herein
after
“Plaintiff’). Plaintiff was employed as a longshoreman by Maher Terminals
at a facility
located within the Port of Elizabeth in Elizabeth, New Jersey. (Statement
of Undisputed
Facts (“SOUF”), ECF No. 103-1,

¶ 2).

Plaintiff allegedly suffered a lower back injury

after a slip and fall incident occurred on board the MN River Elegance (the “Vesse
l”) on

1

September 17, 2009 at 1100 hours. (Id.

¶

1). In the course of his duties, Plaintiff was

walking on a catwalk that runs across the Vessel between cargo bays when he encountered
a large pile of lashing bars obstructing his path. (Id. ¶ 2). The walkways were wet because
it had been raining. (Id. ¶ 11). Plaintiff claims that as he proceeded to walk across the pile
of lashing bars, the pile shifted under his weight and caused him to slip, fall, and sustain
injuries. (Id. ¶ 3). Plaintiff walked off the vessel after being injured and reported his injury
to the stevedore. (Id.

¶

17). Plaintiff contends that the cause of his injury was the pile of

lashing bars blocking the passageway. (Id ¶ 5).
In light of the foregoing, Plaintiff commenced the instant cause of action on May
10, 2011 against A.G. Ship Maintenance Corp., the lashing company who serviced the
Vessel at in Port Elizabeth, Golden Shore Corp., the Vessel operator, and COSCO
Container Co., the Vessel owner. (ECF No. 1). This Court’s jurisdiction is premised on
maritime jurisdiction, 28 U.S.C.
claims:

§

1333. The Amended Complaint contains the following

(1) a violation of 33 U.S.C.

§

905b of the Longshore & Harbor Workers

Compensation Act by Golden Shore Corporation and Cosco Container Lines, Co., Ltd.;
and (2) a breach of the duty of care by A.G. Ship Maintenance Corp. through reckless,
careless, and negligent discharge of lashing bars. (ECF No. 28). Defendant A.G. Ship
Maintenance Corp. moved for summary judgment and the motion was granted on Octobe
r
21, 2013. (ECF No. 64). A.G. Ship Maintenance Corp. was terminated as a Party
on

November 14, 2013. (ECF No. 69). Defendants Golden Shore Corporation and Cosco
Container Lines, Co. now move for Summary Judgment on Plaintiff’s remaining claims
.
(ECF No. 103).

2

II. LEGAL STANDARD

Summary judgment is appropriate when, drawing all reasonable inferences in the
non-movant’ s favor, there exists no “genuine dispute as to any material fact” and the
movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party is entitled to judgment as a matter of law when the non-moving
party fails to make “a sufficient showing on an essential element of her case with respect
to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Court must, however, consider all facts and their reasonable inferences in the light
most favorable to the non-moving party. See Pennsylvania Coal Ass ‘n v. Babbitt, 63 F.3d
231, 236 (3d Cir. 1995).

If a reasonable juror could return a verdict for the non-moving

party regarding material disputed factual issues, summary judgment is not appropriate. See
Anderson, 477 U.S. at 242-43 (“At the summary judgment stage, the trial judge’s function
is not himself to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”).

III. DISCUSSION

As stated above, Plaintiff’s Amended Complaint now only contains the following
claim: a violation of 33 U.S.C.

§ 905b of the Longshore & Harbor Workers Compensation

Act by Golden Shore Corporation and Cosco Container Lines, Co., Ltd. Because this Court
finds that a genuine issue of material fact remains as to, among other issues, the condition
of the Vessel and the avoidability of the lashing bars, summary judgment shall
be
appropriately denied.

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A.

Plaintiff’s Claim under the Longshore & Harbor Worker Compensation Act

(“Longshore Act”)
The Longshore Act established a federal workers’ compensation program that
provides longshoremen and their families with benefits for work-related injuries and
requires employers to pay statutory benefits regardless of fault. Howlett v. Birkdale
Shipping Co., S.A., 512 U.S. 92, 96 (1994). Congress amended the Longshore Act in 1972
and abolished longshoremen’s right to recover against the owner of a ship for
unseaworthiness, but an individual covered by the Longshore Act may “seek damages in a
third-party negligence action against the owner of the vessel on which he was injured...
.“

Howlett, 512 U.S. at 96. The United States Supreme Court set forth the duties of care a

ship owner or operator must fulfill under Section 905(b), which are: the turnover duty, the
duty of active involvement, and the duty to intervene. Scindia Steam Navigation Co., Ltd
v, Dc Los Santos, 451 U.S. 156, 156-157 (1981). Here, the turnover duty is at issue.
The turnover duty requires a ship owner or operator to exercise “ordinary care under
the circumstances” to have the ship in a safe condition such that cargo operations can be
carried out “with reasonable safety” and to warn the cargo crew of any hazards on the ship
“that are known to the vessel or should be known to it.

.

.

.“

Scindia, 451 U.S. at 167 (citing

Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 415 (1969). The ship owner or
operator may not be liable for breach of the turnover duty if the dangerous condition could
not be discovered through reasonable care, if there is sufficient speculation that
the
condition did not exist when the vessel was turned over, or if the condition was easily
discoverable and easily avoided. Howlett, 512 U.S. at 98.

4

Plaintiff, a longshoreman, claims that the turnover duty was breached here when
“the management personnel, captain and crew, and vessel officers of the Vessel
(River
Elegance) failed to provide him with a safe work environment comporting with
widely
accepted customs and practices of the maritime industry.” (Plaintiff’s Memo
randum of
Law in Opposition to Defendants’ Motion for Summary Judgment, (“PL’s Memorandum

”),

ECF No. 108, at 7). Similarly, Plaintiff contends the unsafe pile of lashing bars
was not
avoidable. In contrast, the crux of Defendants’ argument in support of summary
judgment
is that the Plaintiff has not proven how the pile of lashing gear was created and that

the pile

was obvious and therefore Plaintiff could have avoided injury by using reason
able care.
(Defendants’ Reply Memorandum of Law in Support of Motion for Summary Judgm
ent,
(“Defs.’ Memorandum”), ECF No. 109, at 1-2). The Court cannot agree with Defend
ants
at this juncture.

B.

Genuine Factual Disputes Exist
Though the basic account of what occurred on September 17, 2009 is not in dispute
,

most of the details surrounding the events of that day are disputed by the parties. The
main
points of contention at the heart of this matter are: the extent to which the lashing
gear was
in plain sight and visible to the Plaintiff when the pile of lashing gear was created
; whether
an adequate inspection of the ship’s walkways was done upon its arrival;
whether the
Plaintiff had safer alternatives than walking over the lashing gear; whether lashing
bars in
walkways are expected and common obstacles for longshoremen
; and whether
longshoremen are supposed to report unsafe conditions or work throug
h them.

As

discussed more fully below, these disputes create genuine factual issues concer
ning the

5

core of Plaintiffs claim and Defendants’ defenses, thus summary judgm
ent is
inappropriate as these factual determinations must be left to the jury.
The first major dispute relates to the visibility of the lashing gear to Plaintiff
as he
proceeded across the walkway in bay 24. Defendants contend that the lashing
gear was
obvious and in plain sight, and that “Plaintiff saw the Pile from as far away as 10-20
feet.”
(SOUF

¶

12). Plaintiff however asserts his view was blocked by the support structure of

the elevated catwalk and that “Plaintiff could not really see how badly cluttered the

catwalk

was until after he had walked over the lashing gear toward the outboard hatch, and
by then
it was unreasonable to turn around.” (Plaintiffs Response to Defendants’ Local
Rule 56.1
Statement of Material Facts Not in Dispute and Counter-Statement of Material Facts
(“P1.’s
Response”), ECF No. 108-1,

¶

12). Plaintiff cites to his deposition, photographs taken of

the scene, and an affidavit for this assertion. The Parties’ conflicting accoun
ts of the
visibility of the lashing gear to Plaintiff create a genuine factual dispute as to
Defendants’
defense that the lashing pile was easily observable and avoidable.
Additionally, also in dispute is when the pile of lashing gear was created
.
Defendants argue that Plaintiff does not know when the condition was created
, (SOUF

¶

6), while Plaintiff asserts they have presented “substantial evidence illustra
ting that the
condition was created prior to the commencement of cargo operations.” (P1.
‘s Response ¶
6).

This factual dispute concerns who is at fault for the pile of lashing gear,
or, put

differently, whether the dangerous condition of the Vessel existed when
the vessel was
turned over. Undoubtedly, this issue proves central to Plaintiffs claim. See
Howlett, 512
U.S. at 98 (“The ship owner or operator may not be liable for breach of the
turnover duty

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if there is sufficient speculation that the condition did not exist when the vessel
was
turned over.”).
Next, the Parties dispute whether the vessel’s crew performed an adequa
te
inspection of the vessel’s walkways when the ship arrived at port. Defend
ants state that
“[pjrior to arrival, the Vessel’s crew performed routine inspections of the
Vessel’s
walkways and there were no obstructions.” (SOUF

¶ 9).

Plaintiff denies this statement,

arguing that the Vessel log “does not indicate that the crew performed an inspec
tion of the
entire ship with specificity,” and that “there was significant evidence that COSC
O’s ships
would regularly come in with unrecorded, cluttered walkways.

.

.

.“

(Pl.’s Response ¶ 9).

Defendants cite to the Vessel log to show that no obstacles were found during inspec
tion
while Plaintiff cites to the deposition of Lasher Juan Rego to support his
claim that ships
regularly contained cluttered walkways. Whether the Vessel was adequa
tely inspected
when it arrived at port essentially determines whether the turnover duty
was breached and
is therefore material.

The Court remains cognizant that in considering a motion for

summary judgment, a district court may not make credibility determination
s or engage in
any weighing of the evidence; instead, the non-moving party’s eviden
ce (here, Plaintiff’s
evidence) “is to be believed and all justifiable inferences are to be
drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2
d 202 (1986).
With this premise in mind, bolstered by the juxtaposed recounts of
the inspections of the
Vessel, a reasonable fact-finder could certainly find that the Vessel
’s crew failed to
properly inspect the Vessel.
The fourth fact in dispute is whether the Plaintiffhad safer alterna

tives than walking

across the lashing pile and violated company protocol by proceeding
across the obstacle.
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(SOIJF ¶J 18, 2 1-23). Plaintiff denies that there were viable safer alternatives
available to
him and incorporates by reference Section II of his Memorandum of Law, (Pl.’s
Response

¶J

18, 21-23), which states that Defendants’ safer alternatives arguments must
fail because

Defendants ignore the fact that Plaintiff could not see the full extent of the
hazard on the
walkway, because the hazard was not one a longshoreman would commonly
encounter,
and because it would have taken too long to report the lashing pile and have the

obstruction

cleared. (Pl.’s Memorandum, at 17-21). Both Parties rely on the deposi
tions of those
familiar with industry practices for their arguments on this point. In the
same vein, it is
disputed by the Parties whether to a longshoreman it is common to encoun
ter lashing bars
obstructing walkways in the course of cargo operations. Defendants assert
that “[flashing
bars placed on walkways during the course of cargo operations are common,”
and “[fit is
up to the individual to be aware of his surroundings.” (SOUF 24). Plaintiffs
respond that
¶
“[t]he extent of the obstruction was not common and Plaintiff was unable
to view the full
extent of the hazard before attempting to walk through the passageway
of Bay 24.” (Pl.’s
Response

¶ 24).

Here again, both Parties rely on the depositions of those familiar with

industry practices for their arguments on this point. Parties’ conflicting
views here also
relate to Defendants’ defense that the lashing pile was easily observable
and avoidable.
This Court finds that the credibility of those deposed or the weight attribu
table to each,
must be sorted out by the fact-finder to determine if the lashing pile was
easily avoidable
or the obstruction was common and/or easily avoidable.
Finally, whether longshoremen are required to stop working and
report unsafe
conditions they come across or rather are expected to continue with
their duties in order to
reach performance goals is disputed. Defendants argue that “Mahe
r Terminals’ work

8

procedures require that tasks be performed in a safe manner and if a situation is
deemed
unsafe, that the worker is required to notify a supervisor in order to rectify the situatio
n.”
(SOUF ¶ 27). Plaintiff does not dispute that this language is contained in Maher
Terminals’
written policies, but alleges that “Plaintiff and fellow longshoremen Juan
Rego, John
Natale and the expert opinion of Captain Spooner all contend that the unwritten
policy of
Maher Terminals is to work through unsafe conditions in order to meet produc
tion
demands.” (P1.’s Response ¶ 27). Again, this Court finds this factual dispute
is not ripe
for summary judgment as the Plaintiff, at this juncture, shall receive all favora
ble and
reasonable inferences and thus a fact-finder could conclude that Plaintiff was
forced to
attempt to work through the pile of lashing gear which proved unsafe.
Accordingly, these aforementioned factual disputes sit at the very core of Plaintiff’s
claim and Defendants’ defenses, as both sides present depositions, expert
testimony, and
physical evidence to support their versions of the pertinent facts, and thus there
is more
than mere “metaphysical doubt” as to the material facts of this case, but rather
a genuine
dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct.
1348, 1356, 89 L. Ed. 2d 538 (1986).

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment,
(ECF
No. 103), is DENIED. An appropriate Order accompanies this Opinion.

Date: June

2015

nited States District Judge

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