BENDE et al v. G.R.O.W.S., INC. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/21/16. 4/21/16 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IMRE and CHRISTIE BENDE
PEACOCK MARITIME SA, SOJITZ
MARINE & ENGINEERING CORP.,
SIMS METAL EAST LLC d/b/a SIMS
MET AL MANAGEMENT, KESSEL
PAVING AND CONCRETE, AND
HANJIN SHIPPING CO. LTD.
April 21, 2016
Congress requires liability for negligence allegedly causing injuries to a longshoreman
during stevedoring operations be governed by a federal workers' compensation act known as the
Longshore and Harbor Workers Compensation Act ("Act"). We often must sort out liability
when the injured workman sues several parties with some contact with the Vessel. Defendants
seeking an early dismissal before discovery bear a heavy burden to show the longshoreman has
not, under Fed.R.Civ.P. 8, pleaded their liability under the Act. Given our deference to well
pleaded allegations and inferences drawn from those allegations, we deny a Vessel's owner's and
operator's motion to dismiss in the accompanying Order subject to discovery.
Facts in the Amended Complaint
On February 28, 2014, Imre Bentle and "Defendants were engaged in cargo handling
operations of loading and unloading" scrap metal from the hold of the Hanjin Matsue (the
"Vessel"). 1 While performing "cargo handling operations," Bentle "was on" an excavator being
lifted by the Vessel's gear identified as either a crane or grapple. 2 The crane and grapple are
attached to the Vessel. 3 As the Vessel's "gear" lifted the excavator, it struck the Vessel's
coaming4 causing Bentle to fall into the Vessel's hold where he sustained serious injury. 5 At the
time of the incident, the Vessel was docked at the Penn Manor Port in Pennsylvania on navigable
waters of the Delaware River waterway. 6
Bentle and his wife sued Peacock Maritime SA ("Peacock") and Sojitz Marine &
Engineering Corp. ("Sojitz") alleging they violated the Act, 33 U.S.C. §905(b) and a claim for
negligence against all Defendants. 7
Mrs. Bentle brings a consortium claim against all
Peacock and Sojitz are the owners and operators of, and "managed, supervised,
maintained, repaired, and controlled," the Vessel and employed the Vessel's Master, Officers
and Crew. 8 Bentle does not identify his employer, alleging only he "is a worker engaged in
maritime employment." 9
Peacock and Sojitz move to dismiss the Amended Complaint primarily arguing the
Bendes cannot state a claim under the Act. 10 Section 905(b) of the Act provides an injured
longshoreman with an exclusive remedy for the negligence of a "vessel."ll In Scindia Steam
Navigation Co., Ltd v. De Los Santos, the Supreme Court identified three duties a shipowner
owes to longshoremen under §905(b) of the LHWCA: (1) a "turnover duty"; (2) an "active
operations duty;" and (3) a "duty to intervene." 12
In response, the Bendes concede their Amended Complaint "does not allege
Peacock/Sojitz violated their tum-over duty," but assert they sufficiently plead violations of the
"active operations duty" and the "duty to intervene." 13
A. Active Operations Duty
"The active operations duty requires a vessel owner to exercise reasonable care to
prevent injuries to longshoremen in the areas of the ship over which the vessel remains in active
control after stevedoring operations have begun." 14 To trigger the active operations duty, the
vessel "must have substantially controlled or been in charge of (i) the area in which the hazard
existed, (ii) the instrumentality which caused the injury, or (iii) the specific activities the
stevedore undertook." 15 Our Court of Appeals identified the purpose behind the "substantially
controlled" or "in charge of' requirement is to "ensure that the vessel is not held vicariously
liable for injuries the stevedore causes and that the active operations duty does not supplant the
turnover duty/duty to warn and duty to intervene in areas under the stevedore's control." 16
To establish a prima facie breach of the active operations duty against the vessel, a
plaintiff must show: "(1) that the vessel appreciated, should have appreciated, or with the
exercise of reasonable care would have appreciated, the condition; (2) that the vessel knew, or
should have known, that the condition posed an unreasonable risk of harm to a longshore worker;
(3) that a longshore worker foreseeably might fail to (i) either discover the condition or
apprehend the gravity and probability of the harm, or (ii) protect himself or herself from the
danger; and (4) that the vessel failed to take reasonable precautionary or remedial steps to
prevent or eliminate the dangerous condition." 17
Does the Amended Complaint Allege Facts Sufficient to
Trigger the Active Operations Duty?
Peacock and Sojitz argue the Bendes fail to sufficiently allege facts showing Peacock and
Sojitz "substantially controlled" or were "in charge of' the area, instrumentality or activity
performed by Bende allegedly causing his injury. Peacock and Sojitz argue the Bendes make
only conclusory allegations Peacock and Sojitz "had a vessel cargo officer present who
participated in vessel cargo operations" and "retained control over the cargo operations." 18
Peacock and Sojitz additionally point to allegations all Defendants "engaged in cargo handling
operations" on the one hand, but then a contradictory allegation only Defendant Sims "employed
a Dock Supervisor who participate in instructing and overseeing the cargo operations." 19
Peacock and Sojitz assert the Bendes fail to identify who among the Defendants actually
exercised control over cargo operations, how the control was exercised, and who instructed
Bentle to perform his tasks, specifically riding the excavator. With regard to the allegation they
"had a vessel cargo officer present who participated" in cargo operations, Peacock and Sojitz
argue there are no allegations as to how, and to what extent, the officer participated. Simply
observing the loading of cargo does not, Peacock and Sojitz argue, constitute active involvement
and control triggering the shipowner's duty.
The Bendes argue they sufficiently plead Peacock and Sojitz exercised substantial control
over both the "instrumentality" causing Bende's injury and "the activities the stevedore
undertook."20 The Bendes identify the hazardous condition as riding on the excavator which,
while being lifted by the Vessel's crane or grapple, struck the coaming causing Bentle to fall into
the hold. In their opposition, the Bendes elaborate upon the facts and now explain longshoremen
unloading scrap metal from the Vessel's hold used the excavator as a means of exiting the hold
because scrap metal blocked the "customary means of egress" via the staircase. 21 The Bendes
concede this allegation is "perhaps not specifically laid out" in the Amended Complaint. 22 The
Bendes further argue they need not specify which of the Defendants were involved in cargo
operations because a vessel owner may be liable where it acted jointly with the stevedore, citing
Davis, and they allege the vessel cargo officer participated in - much more than simply
observing- cargo operations. 23
Accepting as true the Bendes' allegations Peacock and Sojitz retained control over cargo
operations; had a vessel cargo officer present who participated in cargo operations; the crane or
grapple lifting the excavator was attached to the Vessel and part of its "gear"; and "individually
or jointly initiated, developed and/or participated in the cargo plan," we find they plausibly give
rise to trigger the active operations duty. Our Court of Appeals in Davis explained where a
"hazard occurs due to the vessel's active operations ... it no longer is proper for the vessel to
defer to the stevedore's expertise in handling cargo."24 At the motion to dismiss stage, we cannot
accept Peacock and Sojitz's factual assertion "control over the ship's cranes, holds and hatches
had been turned over to the stevedore. " 25 This argument is appropriate for the summary
judgment stage, and we cannot, on the face of the Amended Complaint, make such a conclusion.
Based on the allegations, it is plausible Peacock and Sojitz actively controlled, or were in charge
of, the area, instrumentality or activity performed by Bentle at the time of his injury so as to
trigger the "active operations" duty.
Does the Amended Complaint State a Prima Facie
Breach of the Active Operations Duty?
Peacock and Sojitz argue even if the Amended Complaint sufficiently alleges substantial
control over the area, instrumentality or activity where Bentle was injured, there are no
allegations of any dangerous condition of which they knew or should have known and failed to
eliminate. Peacock and Sojitz assert the act of riding an excavator while being lifted from the
Vessel is not a dangerous "condition" but a "potential[ly] unsafe activity."26 In any case, Peacock
and Sojitz argue, Bende's own negligence in choosing to ride the excavator is the sole cause of
his injury and cannot, without an allegation of equipment defect or malfunction of the Vessel's
crane, be a dangerous "condition" under the law of this Circuit.
We find Peacock's and Sojitz's argument unpersuasive. We do not read the Davis,
Sarauw II, and Hurst cases to distinguish between a dangerous "condition" and a dangerous
"activity" as determining applicability of the active operations duty. Under Scindia, a vessel may
be liable under the active operations duty "if it actively involves itself in the cargo operations and
negligently injures a longshoreman, or if it fails to exercise due care to avoid exposing
longshoremen to harm from hazards they encounter in areas, or from equipment, under the active
control of the vessel during the stevedoring operation."27 Following Scindia, our Court of
Appeals in Davis prescribed application of the active operations duty to "to those areas under the
vessel's active control, even if the stevedores shares control with the vessel or if at some earlier
time the area was under the stevedore's exclusive control."28
Having found the Amended Complaint alleges facts making it plausible Peacock and
Sojitz actively controlled the area, instrumentality or activity performed by Bende at the time of
the accident, we consider whether the Bendes allege the four elements of a prima facie claim for
breach of the activity operations duty. The Bendes allege Peacock and Sojitz retained control
over cargo operations; 29 maintained a vessel cargo officer who participated in cargo operations; 30
had actual knowledge of the dangerous condition of a longshoreman riding an excavator as it
was being lifted by vessel gear; 31 had actual knowledge that a longshoreman, such as Bende, in
the exercise of "obvious improvident judgment" would fail to correct the dangerous situation; 32
and failed to correct or make safe cargo operations. 33 The Bendes state a claim and we decline to
dismiss their claims before the parties fully develop the factual record.
B. Duty to Intervene
Under Scindia, a vessel owner owes no general duty to longshoremen to supervise or
inspect stevedoring operations "absent a contract provision, positive law, or custom to the
contrary." 34 The Court in Scindia found a "duty to intervene" may exist in certain circumstances
"where the danger to longshoremen arises from the malfunctioning of the ship's gear being used
in the cargo operations."35 This concept imposes a duty upon the shipowner to intervene and
correct any dangerous conditions arising during stevedoring operations when it has "actual
knowledge both of the hazard and that the stevedore, in the exercise of 'obviously improvident'
judgment, means to work on in the face of it and therefore cannot be relied on to remedy it."36
Peacock and Sojitz argue we must dismiss with prejudice the Amended Complaint
because the Bendes fail to allege a defect or malfunction in the Vessel or its equipment. Like
their argument on the active operations duty, Peacock and Sojitz argue the alleged hazard is the
act of riding in an excavator while being lifted out of the hold by the vessel's crane or grapple;
an unsafe usage by the stevedore but not a defect or malfunction with the ship's equipment.
Peacock and Sojitz argue Third Circuit precedent dictates a duty to intervene in the stevedore's
cargo operations may only be imposed where a defect or malfunction in the ship or its equipment
creates a hazard, relying on Derr v. Kawasaki Kisen K.K. 37 The Bendes respond they adequately
allege Peacock and Sojitz had actual knowledge, through their cargo officer who participated in
cargo operations, of Bentle riding on the excavator while being lifted by the vessel's gear. The
Bendes suggest discovery will reveal the primary means of exiting the vessel's hold was by
staircase, but the staircase was blocked by scrap metal cargo, thus the only way out of the
vessel's hold was to be lifted out.
The parties' arguments turn on whether the duty to intervene is limited only to defective
or malfunctioning ship equipment. We begin with the decision of our Court of Appeals in Derr.
In Derr, two longshoremen were injured when cargo fell on them during the unloading of cargo,
and each brought claims under §905(b) of the Act alleging the vessels' negligence caused their
injuries. 38 The district court in each case granted directed verdict for the vessels under Scindia.
With respect to the duty to intervene in cargo operations, the Court of Appeals noted the
parameters of such duty "were not fully drawn in Scindia," but read Scindia narrowly: "The
Scindia Court was prepared only to hold that if it were proven that the ship knew of the
malfunctioning cargo winch that was part of the ship's own gear, and which it might have a duty
to repair, there was a basis for imposition of the negligence liability."39 The Court of Appeals in
Derr concluded, "[i]t is unlikely that the narrow duty of a ship to intervene to make repairs was
intended to extend beyond defective conditions with respect to the ship, its equipment, and
gear."40 Opinions from the district courts following Derr analyze the duty to intervene in the
context of a malfunction in the ship's equipment. Whether the duty to intervene applies requires
a threefold inquiry: "(1) whether there was a malfunction in the ship's equipment, tools or work
space; (2) whether the vessel owner knew of this malfunction; and (3) whether the stevedore's
conduct was so 'obviously improvident' as to mandate intervention."41
Examining the Amended Complaint, we find its allegations are sufficient to state a claim
for breach of the duty to intervene, although it is a close call. We are persuaded the Amended
Complaint plausibly asserts a duty to intervene, particularly when coupled with the Bendes'
assertion cargo in the hold blocked the ship's "staircase."42 We also consider the case law cited
by the parties, and our own research, where the issue of a shipowner's duties under Scindia is
addressed almost entirely on summary judgment or post-trial stage. Peacock's and Sojitz's
factual assertions such as Bentle created the alleged dangerous condition "by choosing to ride the
hook out of the ship's hold despite the availability of a safe means of egress (the ship's internal
ladders) and despite repeated warnings against the practice" and the OSHA investigation report
"surely . . . would have pointed out defects of malfunctions associated with the vessel or its
equipment if any had existed" are more properly reserved for summary judgment.
Peacock and Sojitz also generally move to dismiss Bende's negligence claim. The scope
of the shipowner's duty (negligence) is defined by §905(b) of the Act. There is no separate
negligence claim as §905(b) is the negligence claim: "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" (emphasis added).
Peacock and Sojitz do not offer grounds to dismiss the negligence claim other than their
arguments under the Act. As we find the Bendes state a claim under the Act, we deny the motion
to dismiss the negligence claim.
D. Loss of Consortium Claim
Peacock and Sojitz seek to dismiss Mrs. Bende's loss of consortium claim as derivative
of her husband's claim, arguing because Bende's claims must be dismissed so must Mrs.
Bende's claim. As we find Bende's §905(b) claims may move forward at this time, Mrs. Bende's
consortium claim may also go forward.
Our deference to a motion to dismiss precludes preliminary dismissal based on the
Amended Complaint alone. We deny Peacock's and Sojitz's motion to dismiss in the
Amended Complaint ("Am. Compl.") at if 35 (ECF Doc. No. 32).
Id at ifif 39-40.
"Coaming" is defined as "the raised frame of wood or steel around a hatchway, skylight, or
other opening in the deck of a ship to prevent water from running below." Webster's Third New
International Dictionary, Unabridged. 2016. Web. 14 Apr. 2016.
Am. Compl. at if 35.
Id at ifif 36, 41.
The other Defendants are Sims Metal East LLC d/b/a Sims Metal Management ("Sims"),
Kessel Paving and Concrete ("Kessel") and Hanjin Shipping Co., Ltd. ("Hanjin"). On March 8,
2016, we dismissed Defendants Waste Management of Pennsylvania, Inc. and Port Contractors,
Inc. (ECF Doc. No. 39). Sims is a stevedoring company. Hanjin chartered the Vessel from
Peacock and/or Sojitz for exporting and/or importing scrap metal. Kessel is a paving and
concrete contractor supplying workers for loading and unloading of cargo and a stevedore
engaged in loading and/or unloading the Vessel. Peacock, Sojitz, and/or Hanjin contracted with
Sims, who in tum subcontracted with Kessel, for the loading and/or unloading of materials on
and/or off the Vessel.
Am. Compl. at ifif 16, 18, 22. Peacock and Sojitz do not dispute they are the owners and
operators, respectively, of the Vessel. See Briefin support of motion to dismiss at 1 (ECF Doc.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the
plausibility standard when the facts alleged "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Burtch v. Millberg Factors, Inc., 662
F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility standard is
not "akin to a 'probability requirement,'" there nevertheless must be more than a "sheer
possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"
Id. (quoting Twombly, 550 U.S. at 557). The Court of Appeals requires us to apply a three-step
analysis under a 12(b)(6) motion: (1) "it must 'tak[e] note of the elements [the] plaintiff must
plead to state a claim;"' (2) "it should identify allegations that, 'because they are no more than
conclusions, are not entitled to the assumption of truth;'" and, (3) "[w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief." Connelly v. Lane Construction Corp., 809 F.3d
780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221;
Malleus v. George, 641 F.3d 560, 563 (3d. Cir. 2011); Santiago v. Warminster Township, 629
F.3d 121, 130 (3d. Cir. 2010).
Section 905(b) provides:
"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, and
the employer shall not be liable to the vessel for such damages directly or
indirectly and any agreements or warranties to the contrary shall be void. If
such person was employed by the vessel to provide stevedoring services, no
such action shall be permitted if the injury was caused by the negligence of
persons engaged in providing stevedoring services to the vessel ... The
liability of the vessel under this subsection shall not be based upon the
warranty of seaworthiness or a breach thereof at the time the injury occurred.
The remedy provided in this subsection shall be exclusive of all other
remedies against the vessel except remedies available under this chapter."
The Act defines "vessel" as "any vessel upon which or in connection with which any
person entitled to benefits under this chapter suffers injury or death arising out of or in the course
of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare
boat charterer, master, officer, or crew member." 33 U.S.C.A. § 902(21).
451 U.S. 156, 167-68 (1981); see also Davis v. Portline Transportes Maritime Internacional,
16 F.3d 532, 537 (3d Cir. 1994).
Plaintiffs' response at 3 (ECF Doc. No. 47). The "turnover duty" applies to a shipowner's
conduct before cargo operations begin, and imposes upon a shipowner "both a duty to provide
safe conditions and a corollary duty to warn of known, nonobvious hazards." Kirsch v. Plovidba,
971F.2d1026, 1028-29 (3d Cir. 1992) (quoting Scindia, 451 U.S. at 167).
Fiocca v. Triton Schiffahrts GmbH, 530 F. App'x 183, 186 (3d Cir. 2013), cert. denied, 134
S.Ct. 908, 187 L.Ed.2d 779 (2014) (citing Scindia, 451 U.S. at 167-68).
IS Davis, 16 F.3d at 540 (citations omitted); see also Serbin v. Bora Corp., Ltd., 96 F.3d 66, 71
(3d Cir. 1996).
Davis, 16 F.3d at 541.
Id. at 541 (citations omitted); see also Serbin, 96 F.3d at 71.
Am. Compl. at iii! 44-45.
Iid. at iii! 35, 50.
Plaintiffs' response at 9-10 (ECF Doc. No. 47).
Id. at 9, n.4.
Id. at 10.
Davis, 16 F.3d at 548.
Reply brief at 2 (ECF Doc. No. 49).
Reply brief at 3, citing Davis, 16 F.3d at 535; Sarauw v. Oceanic Navigation Corp. (Sauraw
II), 655 F.2d 526 (3d Cir. 1981); and Hurst v. Triad Shipping Co., 554 F.2d 1237, 1252 n.38 (3d
Cir. 1977) (ECF Doc. No. 49). The courts did not decide these issues upon a motion to dismiss:
Davis considered an appeal from a grant of summary judgment to the shipowner; Sarauw
considered appeals from post-trial motions; and, Hurst from directed verdict.
Scindia, 451 U.S. at 167.
Davis, 16 F.3d at 537.
Am.Comp!. at~~ 45, 55(t).
Id. at ~ 44.
Id. at~~ 42, 47.
Id. at~~ 43, 48.
Id. at 172; see also Derr v. Kawasaki Kisen KK, 835 F.2d 490, 493(3d Cir. 1987).
Id. at 175. Scindia involved a winch, part of the ship's gear, being used by the stevedore to
lower cargo. Id. at 159. The braking mechanism on the winch malfunctioned while lowering
cargo causing cargo to fall and hit the longshoreman. Id. at 160.
Fiocca, 530 F. App'x at 186 (quoting Greenwood v. Societe Francaise De, 111 F.3d 1239,
1245 (5th Cir. 1997)); see also Whitfieldv. Craigwin Co., 727 F. Supp. 183, 185 (E.D. Pa. 1989)
(quoting Scindia, 45 l U.S. at 175).
835 F.2d 490 (3d Cir. 1987).
Id. at 491.
Id. at 496.
Id. See also Davis v. Kambara Kisen Co., Ltd., C.A. No. 88-7245, 1990 WL 110250, at *2829
(E.D. Pa. July 31, 1990), ajf'd, 925 F.2d 416 (3d Cir. 1991) (a shipowner may have a duty to
intervene "where the danger to the longshoremen arises from the malfunctioning of the ship's
gear being used in cargo operations," citing Derr); Mullen v. Hoyu Kaiun Kabushiki Kaisha,
C.A. No. 88-8311, 1990 WL 55090, at *3-*4 (E.D. Pa. Apr. 26, 1990), ajf'd, 922 F.2d 832 (3d
Cir. 1990) (granting summary judgment as a matter of law under Derr because the alleged
accident did not involve the ship or its equipment).
Whitfield, 727 F. Supp. at 185 (citing Brown v. Philippine President Lines, Inc., 704 F.Supp.
606, 609 (E.D.Pa.1989)); see also Thomas v. Kambara Kisen Co., Ltd., C.A. No. 88-7243, 1990
WL 11647, at *1 (E.D. Pa. Feb. 12, 1990) (citing Brown, 704 F.Supp. at 609). The Bendes seek
to distinguish Derr, and cite Wheelings v. Seatrade Groningen, 516 F.Supp. 2d 488 (E.D. Pa.
2007). We do not agree Wheelings limits Derr; Wheelings does not cite Derr, but its analysis in
denying summary judgment focused on ''the defective container" and a crew member's failure to
notify a supervisor "about an unusual occurrence with the ship's equipment." Wheelings, at 503.
Although specific facts regarding the blocked staircase are not pied, Bendes allege negligence
in paragraph 55(n) of the Amended Complaint for "failing to provide a safe means and method
for longshoreman [sic] such as plaintiff to exit the hold of the vessel."
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