In the Matter of the Complaint of Columbia Leasing L.L.C. as Previous Owner, and Columbia Coastal Transport, L.L.C., as Present Owner and Previous Owner Pro Hac Vice of the Barge Columbia Houston Offi v. NONE

Filing 78

OPINION AND ORDER - granting 46 Motion for Summary Judgment. The Mullens' motion for relief pursuant to Fed. R. Civ. P. Rule 56(d) is DISMISSED AS MOOT, as the discovery disputes have since been resolved and, in any event, the evidence so ught would not have aided the Court in its decision. Plaintiffs' motion for summary judgment is GRANTED, as the Mullens have failed to show that there is any genuine issue of material fact as to whether Plaintiffs violated any of the duties owed to them. Therefore, the Mullens' claims against Plaintiffs are DISMISSED WITH PREJUDICE, and Ceres' contribution claim against Limitation Plaintiffs is DISMISSED AS MOOT, as Plaintiffs are not liable to the Mullens for their negligence claims. IT IS SO ORDERED. Signed by District Judge Mark S. Davis and filed on 1/10/14. Copies distributed to all counsel of record 1/10/14. (ldab, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

IN THE MATTER OF THE COMPLAINT OF

COLUMBIA LEASING L.L.C.,
AS PREVIOUS OWNER,
COLUMBIA COASTAL TRANSPORT,

L.L.C.,

AS PRESENT OWNER AND PREVIOUS OWNER
PRO HAC VICE OF THE BARGE

COLUMBIA HOUSTON, OFFICIAL NO.
AND ITS EMPLOYEE, LARRY WARD,

694869,

Plaintiff-Petitioners,
Civil Action No.

JOHN R. MULLEN,
KAREN MULLEN,

2:12cv678

II AND

Claimants,

CERES MARINE TERMINALS, INC, AND
CERES MARINE TERMINALS INCORPORATED,
Claimants.

OPINION AND ORDER

This

matter

is

before

the

Court

on

a

motion

judgment filed by Columbia Coastal Transport,
Coastal")

("Ward")

and Larry Ward

that

they

pursuant

cannot

to

present

Fed.
facts

R.

record of

this matter

as

("Columbia

II and Karen Mullen

Civ.

P.

essential

opposition to the summary judgment motion.
the

L.L.C.

summary

(collectively "Plaintiffs"),

as well as a motion filed by John R. Mullen,

("the Mullens")

for

a whole,

56(d),
to

asserting

justify

their

After examination of

the Court

has

determined

that

a

facts

hearing
and

on

legal

the

instant

arguments

decisional

process

would

argument.

Fed. R.

Civ.

motion

are
not

P.

is

unnecessary,

adequately
be

aided

78(b);

For the reasons discussed below,

significantly

E.D.

Va.

Loc.

the Mullens'

is DISMISSED AS MOOT and Plaintiffs'

the

by

Civ.

Rule

the

and

presented,

as

R.

56(d)

oral

7 (J).
motion

motion for summary judgment

is GRANTED.

I.

The

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

facts

in

this

Longshoreman John Mullen
at

the

Marine

on

31,

August

COLUMBIA HOUSTON

ECF No. 19.

to

loading

the
and

dock

when

("PMT")

the

he was injured
in

attempting

Portsmouth,

to

owned by Columbia

board

the

Leasing,

LLC

Ward was the port captain employed by

Columbia

and

unloading

a
of

Coastal

hired

stevedore
containers

tug

boats

("Ceres")
to

and

to
from

Ceres contracted with Express Container Services
service

undisputed.

and bareboat chartered to Columbia Coastal.

On that date,

Columbia Coastal.

barge

2009,

largely

alleges that

Terminal

("the barge"),

("Columbia Leasing")

are

("Mullen")

Portsmouth

Virginia

case

refrigerated

refrigerated container

containers

("reefer")

on

the

to

tow the

conduct
the

barge.

("Express")

barge.

Mullen,

mechanic employed by

the

to
a

Express,

was scheduled to disconnect the power to the reefer units on the

barge when it arrived at the PMT on August 31, 2009.

When the barge was docked at

the PMT,

gap separated the barge from the dock,

at

a three-to-four-foot
least in part because

of the bumpers/fenders between the dock and the barge.
a

ladder

because

could

was

of

permanently

the

be

gap

used

affixed

between

only

the

when

the

addition,

only

barge.

Mullen

The

was

the

refrigerated

sections of the barge.
at

various

times

and

dock,

twenty

forklift
access

and

from

years,
metal
the

approximately

4:00

the

ladder

with

a

rarely occurred.

were

assigned

located

locations

in

the

stevedores

basket,
to

in

a.m.,

at

the
on

barge.

Mullen

to

unloaded.

located

the

order

to

In
the

multiple

On

was

Thus,

PMT

the

service

chose

dock,

August

required

situated on

the prongs

of

to
to

to

the

for more

31,

refrigerated unit located near the barge's ladder.
metal basket

barge,

This required Mullen to board the barge

and

dock

the

dock,

mechanic

containers

of

sufficiently

which

reefer

side
the

aligned

particular container being loaded or
than

the

barge

it

bumper/fender located on

to

Although

use

a

provide
2009,

service

at

a

He entered a

a Ceres-owned forklift.

The forklift's prongs were inserted into slots on the bottom of
the

basket.

A

Ceres

employee

then

lifted

forklift and drove toward the barge in

to the barge.

end

of

barge's

one

However,

of

ladder

the

order to

basket

on

the

prongs

maneuvering

caught

of

the

the

the

deliver Mullen

as the basket approached the barge,

forklift's

during

the

side

metal

of

the

the

basket,

causing

Mullen

to

be

thrown

about

inside

the

basket

when

the

prong was dislodged.

The Mullens

filed

a personal

injury lawsuit

Circuit Court against Columbia Leasing,
and

Ceres.

Coastal,

On

and

December

Ward

13,

2012,

(collectively

in

Portsmouth

Columbia Coastal,

Columbia

"Limitation

Leasing,

Ward,

Columbia

Plaintiffs")

filed

in this Court a Complaint seeking exoneration from or limitation
of

liability.

issued an
Act,

46

ECF

No.

injunction,
U.S.C.

§

1.

On

February

pursuant

30501,

to

et

seq.,

Portsmouth Circuit Court lawsuit.

28, 2013, ECF No. 11).

and

Claim,

seeking

the

25,

Limitation
staying

ECF No.

On April 11, 2013,

contribution

from

2013,

10

this

of

Court

Liability

activity

in

the

(amended February

Ceres filed an Answer

Limitation

Plaintiffs

in

the event that "Ceres and Columbia are found jointly liable for

the

Mullens[']

No.

14.

Answer,

On

injuries."
April

Claims,

Complaint.
personal

ECF
injury

23,

and

Ceres'

2013,

the

Crossclaims

No.
under

19.

Answer

maritime

Mullens

to

The

& Claim at

the

(by

asserted
Mullen)

11,

their

Limitation

Mullens
law

filed

SI

ECF

Amended

Plaintiffs'

claims
and

loss

for
of

consortium (by Mullen's wife) against Columbia Coastal and Ward.1
According

to

the

Mullens,

both

Mr.

Mullen's

Mullen's loss of consortium were "a direct

injuries

and

and proximate

Mrs.

result

1 The Mullens have not asserted any claims in this Court against
Columbia Leasing.
Columbia Leasing filed a Second Motion for Default
Judgment against the Mullens, which the Court granted on December 30,
2013.

ECF No.

77.

Id. n

of the negligence" of Columbia Coastal and/or Ward.
28.

By order of May 6, 2013,

2013 trial date.
filed

the

Mullens.

ECF

opposition

on

response,
Civil

No.

alternative,

complete

11,

also

for

summary

The

56(d),

motion

On August 28, 2013, Plaintiffs

for

46.

Mullens

Procedure

Plaintiffs'

motion

September

the

the Court scheduled a December 17,

ECF No. 20.2

instant

2013.

seek

discovery.

September 17, 2013.

filed

ECF

relief

requesting

summary

judgment

Mullens

as

to

filed

Accordingly,

In

Federal
the

the

brief

55.

in

their

Rule

Court

Ward

to Ward until

Plaintiffs

ECF No. 56.

No.

that

against

their

under

judgment

delay its ruling as

their

24,

deny

in

the

the Mullens

can

a

or,

of

reply

brief

on

the matter is now

ripe for decision.
II.

The

Federal

Rules

STANDARD OF REVIEW

of

Civil

Procedure

provide

that

a

district court shall grant summary judgment in favor of a movant

if such party "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of

law."

Fed.

R.

Civ.

P.

56(a).

The

mere

existence

of

some

alleged factual dispute between the parties "will not defeat an
otherwise

properly

supported

motion

for

summary

judgment;

the

requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby Inc.,

477 U.S.

242,

247-48

(1986).

If

2 By order of October 17, 2013, the December 17, 2013 trial date
was continued,
69.

at the parties'

request,

to April

15,

2014.

ECF No.

the

pleadings,

affidavits,

deposition

transcripts,

and

other

discovery materials demonstrate that there is no genuine dispute
as to a material fact,

"it is the

^affirmative obligation of the

trial judge to prevent factually unsupported claims and defenses

from proceeding to trial.'"
744

F.

Pratt,

Supp.

2d

545

543,

999 F.2d 774,

Hostettler v. Auto-Owners Ins. Co.,
(E.D.

778-79

Va.

2010)

(4th Cir.

(quoting

Drewitt

v.

1993)).

If a movant has properly advanced evidence supporting entry

of summary judgment,

the non-moving party may not rest upon the

mere

the

allegations

specific

facts

illustrating
Catrett,

judge's

a

477

of

in

the

pleadings,

form

genuine

U.S.

function

317,

is

of

issue

for

and

trial.

(1986).

himself

to

determine the truth of the matter but

is a genuine issue for trial."

instead must

exhibits

322-24

not

but

sworn

set

statements

Celotex
At

weigh

that

forth

Corp.

"the

evidence

the

point,

and

to determine whether

Anderson,

v.

there

477 U.S. at 249.

In

doing so, the judge must construe the facts and all "justifiable
inferences" in the light most favorable to the non-moving party,
and the

judge may not make credibility determinations.

255;

T-Mobile Ne.

380,

385

(4th Cir.

non-movant's
thinks

but

LLC v.

the

whether

favor,
evidence

a

City Council of Newport News,

2012).
"the

After

viewing

judge must

unmistakably

ask

favors

fair-minded jury could

the

himself
one

return

674

evidence
not

side

a

Id.

or

F.3d

in

whether
the

verdict

at

the
he

other

for

the

[non-movant]

252.

on the evidence presented."

Because

implicates
would

the

apply

existence

of

on

a

trial

on

scintilla

the

standard

merits [,]

.

evidence

be

will

in

"necessarily
of

proof

that

.

[t]he

mere

.

insufficient"

summary

477 U.S. at

judgment

of

support

to

judgment

of

overcome

motion.

the

a
Id.

if the non-movant's evidence "is merely colorable,

not

significantly

probative,

summary

judgment

may

be

Id_;_ at 249-50.
III.

A.

Plaintiffs

28,

summary

evidentiary

well-founded

Accordingly,

granted."

the

position

defendant's

is

ruling

substantive

at

plaintiff's

or

a

Anderson,

2013.

DISCUSSION

The Mullens'

filed

their

On September 5,

Rule 56(d) Motion

summary

2013,

judgment

the Mullens

motion

on

August

filed a Motion to

Compel "complete" Answers and Responses from Columbia Coastal to
certain
51.

interrogatories and

requests

for production.

ECF No.

The Mullens alleged that Columbia Coastal had "objected to

some but not all of the requested discovery," but asserted that

the Motion

discovery

to Compel

is

should be granted because the

reasonable"

and

authorized by Fed. R. Civ.
at 1,

ECF No. 52.

P.

"within

the

26(b)(1)."

On September 10,

2013,

scope

Defs.'

"requested

of

discovery

Mem.

in Supp.

the Mullens filed a

Second Motion to Compel the depositions of Columbia Coastal and
Ward.

ECF

No.

53.

The

Mullens

claimed

that

Plaintiffs'

"refusal

to

make

themselves

prejudicing the Mullens'
Court"

and

Judgment."
ECF No.

Mem.

deposition

is

efforts to present their claims to this

respond

Defs.'

for

to

Plaintiffs'

in Supp.

"Motion

of Second Mot.

for

Summary

to Compel at 4,

54.

On

September

Motion

to

Rule of

11,

Compel,

Plaintiffs'

Court

to

available

Motion

Civil

deny

2013,
the

for

Plaintiffs'

day

Mullens

Summary

Procedure

or, alternatively,

one

filing

their

their

filed

Judgment.

56(d),

Motion

after

response

Pursuant

the response

for

to

Second

Federal

requested that

Summary Judgment

to

the

as to Ward

delay ruling on the motion until the Mullens

could complete the necessary discovery to adequately respond to
Plaintiffs'

24,

Motion for Summary Judgment.

ECF No.

stated

in

develop

55.
a

sworn

facts

Judgment

As

filed

required by Rule
declaration

necessary

by

Defs.' Br. in Opp'n at

to

that

oppose

Petitioner

56(d),
he

Mullens'

had

the

Larry

been

Motion

Ward"

counsel

"unable

for

and

specifically needed "complete responses to the Mullens'

to

Summary

that

he

federal

discovery to Columbia Coastal and the deposition of Larry Ward,"
in order to oppose Ward's summary judgment motion, Jackson Decl.
SISI

4,

12,

"expect[ed]
"enable

ECF

55-4.

to obtain,"

[him]

Judgment."

No.

to

Counsel

asserting

oppose

Larry

IcL_ f 12.

8

listed

that

the

such

Ward's

information

information

Motion

for

he

would

Summary

On September 23,

Coastal

first

"anticipate[d]

so

Plaintiffs responded to
asserting that Columbia

had "recently"

Mullens'

compel

counsel for

Motions to Compel,

both of the Mullens'

2013,

or

that

Opp'n at

at

Motion

that

to

the

least

state what

ECF No.

may

and

requested

that

will withdraw

they believe

rectify

57.

discovery

Compel

[the Mullens]

[Plaintiffs]

2,

provided

Counsel

if

counsel

the
thus

[the] motion to

remains

possible."

for

in

outstanding

Pis.'

Plaintiffs

Br.

in

also asserted

that counsel had recently scheduled the depositions of Columbia
Coastal

and

Ward

to

counsel

requested

be

that

taken

the

on

October

Court

"moot and, consequently[, ] that

find

9,

both

2013.

Id.

Motions

[they] be denied."

Thus,

to

Compel

Id. at 2-3.

The Mullens did not file a reply to Plaintiffs' response.
On

October

Plaintiffs

record
parties,

were

11,

2013,

scheduled

telephonic

two
to

status

days

occur,

after
the

conference

Court

with

depositions
held

an

counsel

of

on-the-

for

all

where the Court discussed the case status with counsel

and, pursuant to the request of all counsel,

to April

the

15,

2014.

At

the

continued the trial

conclusion of the conference,

when

the Court asked counsel if they had "anything else" to discuss,
counsel

for

the

Mullens

Telephone Conference Tr.

responded,

at 19,

"No,

ECF No.

64.

thank

you,

Judge."

Since the filing of

both Motions to Compel and the Mullens'

Brief in Opposition to

Plaintiffs'

the Mullens have filed

Motion for Summary Judgment,

no further pleadings pursuant to Local Rule 37(E)

discovery disputes.3

regarding the

Nor have the Mullens requested permission

"to serve a supplemental pleading" based on any relevant facts

obtained from those interrogatories, requests for production, or
depositions

"after

Plaintiffs'

the

Motion

for

15(d).

Furthermore,

Mullens

"expect[ed]

No.

55-4,

date
Summary

with

to

Motion

for

the

[Mullens'

Judgment."

respect

obtain,"

the Court notes

Plaintiffs'

of

to the

Jackson

that,

as

Summary

the

response

Fed.

facts

Decl.

R.

Civ.

counsel

fl

to
P.

for the

12(a)-(i),

ECF

following discussion of

Judgment

will

demonstrate,

none

of those facts were required by the Court to answer such motion.
Therefore,

for the reasons discussed,

it is apparent to the

Court that the discovery disputes have been resolved as to both
of the Mullens'

obtained

any

Plaintiffs'

Motions to Compel, and that the Mullens have not

information
Motion

for

"after

the

Summary

date

response "to be supplemented."

In

event,

because

discovery would not
material

Yelton,

fact

"the

sufficient

439 F.3d 191, 195

to

Fed. R.

additional

have by itself
defeat

the

Judgment],"

Mullens'

any

of

[response

requiring

Civ. P.

evidence

summary

(4th Cir. 2006)

judgment,"

the

15(d).

sought

created a genuine

to

for

issue of
Ingle

v.

(citation and internal

3 Local Rule 37(E) states, in part, that "[t]he Court will not
consider any motion concerning discovery matters unless the motion is
accompanied by a statement of counsel that a good faith effort has
been made between counsel to resolve the discovery matters at issue."
10

quotation

marks

omitted),

request for Rule 56(d)

the

Court

DISMISSES

the

Mullens'

relief as MOOT.

B. Plaintiffs' Motion for Summary Judgment

Plaintiffs
exoneration
Limitation
alleging

or

limitation

Liability

that

the

of

"any

owner

for Summ.

summary

from
of

Plaintiffs
vessel

seek

as

J. at

judgment
of

Act,

46

undisputed
of

the

2, ECF No.

by

U.S.C.

owed

the

46

their

liability

30501,

shows

to

a

Supreme

claim

pursuant

§

evidence

duties

established

on

no

that

because

summary

"there

relating

to

is

judgment
a

whether

is

genuine

or

et

the

seq.,

breach

by

by

Pis.'

a

Mot.

(citing Scindia Steam Navigation

Co. v. De Los Santos, 451 U.S. 156, 167-68 (1981)).4
argue

to

longshoreman
Court,"

for

not

appropriate

dispute

not

The Mullens

in

this

concerning material

Columbia

Coastal

turnover duty and . . . its duty to intervene."

case
facts

breached
Defs.'

its

Br.

in

Opp'n at 1, ECF No. 55.5
4 "Under the Limitation of Liability Act, a shipowner can limit
its liability to the value of its vessel and pending freight, provided
that the accident occurred without the privity or knowledge of the
owner."
Norfolk Dredging Co. v. Wiley, 357 F. Supp. 2d 944, 946 (E.D.

Va. 2005)
(citing Robert Force, Admiralty and Maritime Law 133
(2004)); see also 46 U.S.C. § 30505(a)-(b).
"A court faced with a
limitation action should proceed in two steps: (1) determine whether
the accident was caused by the negligence of the vessel; and, if so,
(2) determine whether the vessel owner had privity and knowledge of
those acts."
In re Complaint of Christiansen Marine, Inc., 1996 AMC
2353, 2363 (E.D. Va. 1996).
If the court determines the shipowner was

not

negligent,

the

claims against it."

shipowner

"is

entitled

to

exoneration

from

all

Id. at 2366.

5 Plaintiffs assert that the Court should consider as undisputed
all

of

comply

the

with

facts

in

Local

Plaintiffs'

Civil

Rule

brief

56,
11

because

which

the

Mullens

requires

the

failed

to

brief

in

1. Longshoremen's Pre-1972 Remedies against a Vessel
Before

Congress

Harbor Workers

Supreme

Compensation Act

Court

seaworthiness

extensively

opinions

claims

against
vessel.

Co.,

(1944),

U.S.

originally

96

held

only

unseaworthy vessel,
vessel

rendered

a

was

v.

Sieracki,

broad

a

the

the
in

Longshore

1972,

for

v.

seaworthiness

shipowner

to

liable

injury

Southern S.S.

doctrine,

for

of

bring

virtually any

in Mahnich

and

a series

longshoremen

vessel

First,

which

furnishing

an

broadened to include appliances of the

unseaworthy

officers or crew members.

("LHWCA")

enabled

received aboard the

321

revised

by

the

negligence

Two years later,

of

the

vessel's

in Seas Shipping Co.

328 U.S. 85 (1946), the Supreme Court extended this

no-fault

seaworthiness

duty

to

longshoremen.

The

Court

later extended the shipowner's no-fault liability to unseaworthy

conditions caused by the negligence of a third party, such as a
stevedore.

Alaska

Recognizing

the inequity of shifting the entire burden of a

third party's

S.S.

Co.

v.

negligence onto

Petterson,

347

the shipowner,

U.S.

396

(1954).

the Supreme Court

opposition to "include a specifically captioned section listing all
material facts as to which it is contended that there exists a genuine

issue necessary to be litigated."
ECF No. 56 at 2 (quoting Local
Civil Rule 56 and citing Kolon Indus., Inc. v. E.I, du Pont De Nemours
& Co., No. 3:llcv622, 2012 U.S. Dist. LEXIS 48722 (E.D. Va. Apr. 5,
2012)).
In Kolon, although the non-moving party was found to be in
violation of the local rule, the Court stated that, "given the

significance of summary judgment and considering the interest of
justice, it is preferable to determine the motion on its merits,
rather than on [a] breach of Local Civil Rule 56(B)."
Kolon,
U.S. Dist. LEXIS 48722, at *28.
On the particular facts of
record,

the Court agrees.
12

2012
this

held that shipowners could seek indemnity from the stevedore on
the theory that the stevedore had breached its implied warranty
of

workmanlike

Co.

v.

Pan-Atl.

because

a

benefits

under

bringing

an

stevedores

pay

performance
S.S.

Corp.,

the

awarded to the

well

117

as

"series

Ryan

In addition,

worker's

did

compensation

not

action

prohibit

against

liability,

payments
indemnify

of

Stevedoring

(1956).

him

the

from

vessel,

requiring them to

to

their

shipowners

employee

for

damages

in third-party negligence

actions.

Flota Oceanica Brasileira,

(2d Cir. 1986)

Amendments

LHWCA

double

longshoremen

See, e.g., Kakavas v.

124

of

compensation
as

U.S.

third-party

faced a sort of

worker's

shipowner.

receipt

pre-1972

additional

the

350

longshoreman's

longshoremen,

112,

to

(Friendly,

J.)

S.A., 789 F.2d

(describing the pre-1972

frustrations,"

which

required

the

"stevedore, whose liability was to have been limited by § 905(a)
to the workmen's compensation payments to the injured employee,"

to also pay "the larger amounts awarded against the ship").
The

1972

Amendments

scheme of things."

to

Scindia,

the

LHWCA

"radically

451 U.S. at 165.

changed

this

In exchange for

"substantially increased" worker's compensation payments to the
injured
for

longshoreman,

unseaworthiness

his "right
was

to recover

abolished,"

although

recover from the shipowner for negligence was

13

[from the vessel]
"his

right

preserved."

to

Id.

In

addition,

"the

stevedore's

shipowner . . . was abolished."

obligation

to

indemnify

the

Id.

2. Duties Owed by a Vessel to Longshoremen

Section 905(b)
'seek

damages

owner

of

the

Oldendorff

2013)

92,

in

of the LHWCA now "permits a longshoreman to
a

third-party

vessel

Carriers

on

which

GmbH

&

Co.,

negligence
he

was

723

action

injured.'"

F.3d

454,

(quoting Howlett v. Birkdale Shipping Co.,

96

(1994)).6

"While Congress

against
Bunn

460

(4th

S.A.,

created a cause

against the shipowner in negligence in § 905(b),

the
v.

Cir.

512 U.S.

of action

it left to the

courts the task of defining the duties the shipowner owed to the

longshoreman."

Lincoln v. Reksten Mgmt., 354 F.3d 262, 266 (4th

Cir. 2003)

(citing Scindia,

task,

United

the

"three

general

"turnover

States

duties

duty,"

451 U.S. at 165-66).
Supreme

shipowners

which

"relates

Court

owe

to

to

the

in

Taking on that

Scindia

longshoremen:"

condition

of

upon the commencement of stevedoring operations;" 2)
control"
begun

duty,

[and]

which

applies

provides that

"once

active

control

of

a shipowner must

the

1)

the

use

vessel;"

and

3)

the

ship

the "active

stevedoring operations

have

reasonable care

to prevent injuries to longshoremen in areas that
the

recognized

remain under

the

"duty

to

intervene," which "concerns the vessel's obligations with regard

6 None of the parties dispute that Mullen is a maritime worker
covered by the LHWCA, or that the barge is a "vessel" as defined in 33
U.S.C. § 902(21).
Thus, Section 905(b) is the only means by which the
Mullens may recover against the barge for vessel negligence.
See 33
U.S.C.

§ 905(b).
14

to cargo operations in areas under the principal control of the
independent

stevedore."

Howlett,

quotation marks omitted)

(citing Scindia,
a.

The

Mullens

512

assert

U.S.

at

98

(internal

451 U.S. at 167-78).

Turnover Duty

that

Plaintiffs

breached

the

"turnover

duty" because they failed to deliver "the vessel and its
of
Br.

ingress and egress in a reasonably safe condition."
in Opp'n at

13,

turnover duty did

ECF No.

not

55.

include

Plaintiffs

the

means
Defs.'

respond that their

forklift-and-basket

means

of

ingress and egress because "the stevedore owned the forklift and
basket."

Pis.'

Br.

at

15,

ECF

No.

47.

Plaintiffs

further

assert that "the vessel had its own ladder by which people might

gain access to the barge and it was the stevedore's choice to
use the

forklift and basket

In any event,
the

instead of the

Id.

at

16.

Plaintiffs contend, any alleged hazard related to

forklift and basket was

"open and obvious," thus

Plaintiffs of any duty to warn.

The

ladder."

turnover

duty,

as

relieving

Id.

defined

by

the

Supreme

Court,

requires a vessel owner to:

"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 in the exercise of ordinary care" to carry on
cargo operations with "reasonable safety to persons
and property."

15

Howlett,

512

U.S.

at

98

(quoting Fed.

Burnside Shipping Co., 394 U.S.
Scindia,
safe

451 U.S. at 167) .

condition,"

see,

turnover duty does

416 n.18

(1969)

Inc.

v.

and citing

Sometimes referred to as a "duty of

e.g.,

not

404,

Marine Terminals,

Bunn,

obligate

723

F.3d

a vessel

at

465

n.13,

the

owner "to turn over a

vessel in perfect condition," 1 Robert Force & Martin J. Norris,
The Law of Maritime Personal Injuries § 8:32,
2013).

To

employer,"
safe'

§ 941),

the

id.

to

sure,

the

required

is

place

U.S.C.
of

be

by

work,"

Furthermore,

encounter"

statute

Scindia,

the

owes

451

the

longshoreman's

"provide

U.S.

at

a

170

'reasonably
(quoting

no

such

statutory duty to

turnover

duty

presumes

stevedore,

certain

who

dangers

"should

"arising

ship's service or otherwise."
at 416 n.18.

to

as

(5th ed.

33

but the vessel owner "is not the common employer

longshoremen and

experienced"

"stevedore,

at 8-134

an

reasonably

from

the

them,"

"expert

and

expect

to

hazards

Fed. Marine Terminals,

of

the

394 U.S.

Accordingly,

the ship need only be delivered in a

reasonably safe condition,

free from only those "hazard[s that]

would have been neither obvious to nor anticipated by a skilled

and
U.S.

competent
at

stevedore

at

the

discharge

port."

Howlett,

512

106.

"A corollary to the turnover duty" places on a vessel owner

a duty to warn the stevedore of latent hazards existing "on the
ship or with

respect to

its equipment" that are

16

"known to the

vessel

or

should

be

known

to

it

in

the

exercise

of

reasonable

care" and that "would likely be encountered by the stevedore in
the

course

of

his

cargo

Scindia,

451 U.S.

at 167;

n.18).

However,

"[i]f

operations."

stevedore

should

be

Fed.

a

open

394 U.S.

conduct

its

at 416

obvious

operations

proposition

that

1983)).

the

This

"primary

the

the

around

is

duty

to

it

354 F.3d at 266 (citing Bonds v. Mortensen & Lange, 717

general

violate

and

Lincoln,

(4th Cir.

not

and

(citing

the

127-28

does

is

98-99

safely,

F.2d 123,

shipowner

to

at

Marine Terminals,

defect

able

Id.

warn."

in accord with the

burden"

is

placed

upon

"the stevedore for avoiding injuries caused by obvious hazards."
Scindia,

can

be

451 U.S.

no

failure

recovery

to

warn

longshoreman
104

at

of

180

(Powell,

under
of

[33

(citing Scindia,

U.S.C.

dangers

reasonable

J.,

that

concurring).

§

905(b)]

would

competence."

451 U.S.

at

167).

be

ship

allow

is

the

safe

enough

stevedore,

when

turned

exercising

for

a

512

In short,

the

over

care
to

reasonable

"there

vessel's

apparent

Howlett,

duty requires a shipowner to "exercise due
the

Thus,

to

a

U.S.

at

turnover

to ensure that

the

stevedore

care,

to

to

perform

cargo operations safely, and that the stevedore be warned of any
hidden

defects

shipowner."
Cir.

that

Deyerle

are

v.

known

United

or

should

States,

1998).

17

149

be

F.3d

known

314,

to

316

the

(4th

Here,

the

Mullens

barge,

its

unsafe

condition,

latent

hazards

Ceres

equipment,

owned,

method

of

or

or

on

do

not

its

that

appliances

Plaintiffs

the barge.

maintained,

accessing

Nor do

and

the

specifically
were

the

Rather,

the

include

"the means

means

Defs.'

of

Br.

argument,

ingress

in

Opp'n

of
and

at

vessel
egress

14,

ingress
is

ECF No.

warn

the

in
of

an
any

dispute

that

forklift-and-basket

the

Court to extend the Scindia turnover duty,
to

to

Mullens

the

that

delivered

failed

operated

barge.

assert

Mullens

and

this

a matter of

as

ask

law,

egress,

supplied

by

55.

support

In

a

even when
stevedore."
of

their

the Mullens rely on cases from other circuits for the

proposition

that

the

turnover duty

includes

"a

duty to

ensure

that a safe means of access is provided for longshoremen coming
to work on [the]

cases

vessel."

Id.

from the Fourth Circuit

at 15.

The Mullens also cite two

that the Mullens

allege extend a

shipowner's duty of care "to the means of access,
owns or controls it."

Id.

no matter who

For the following reasons,

the Court

is not persuaded by the cases cited by the Mullens and declines
the invitation to establish such a duty in the § 905(b)

context.

i. Reyes and its Unintended Following
All of the cases cited by the Mullens in support of
argument
Circuit's

rely,

either

decision

in

directly
Reyes

v.

18

or

indirectly,

Marine

upon

Enterprises,

the
Inc.,

their
First
4 94

F.2d 866 (1st Cir.
inapposite.

In

1974).7

Reyes,

a

However,

the holding of Reyes is

longshoreman

attempted to board [the barge]

was

when

Reyes,

4 94 F.2d at

Because the longshoreman was injured before the

869.

amendments to

"he

and fell from the gangway," which

"did not belong to the barge or its owner."
868,

injured

the LHWCA took effect,

1972

the plaintiff longshoreman

properly brought suit under theories of both unseaworthiness and

negligence.
verdict

was

for

Id.
the

caused by

appurtenances

at

On

shipowner

The district court directed a

after

"concluding]

that

'pierside equipment not part of the
and that

ship directing
Id.

at 868 n.l.8

the

there was

plaintiff

or

no member of

his

activities

the

the

injury

ship or

its

crew of

the

at

the

time.'"

869.

appeal,

holding

that

a

the

First

vessel

Circuit

owner's

Court

of

Appeals

seaworthiness

duty

disagreed,

"includes

providing [the vessel's crew] with a suitable means to board and
7 See, e.g., Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 790
(9th Cir. 2007) (relying upon Reyes and Gay v. Barge 266, 915 F.2d
1007 (5th Cir. 1990), which relied indirectly upon Reyes, to declare
that "the turnover duty, at a minimum, requires a vessel to provide a
safe means of access"); Gay, 915 F.2d at 1013 (relying upon Sarauw v.
Oceanic Navigation Corp., 655 F.2d 526 (3d Cir. 1981), which, in turn,
relied upon Reyes, to acknowledge a shipowner's "duty of care with
respect to providing a proper gangway"); Sarauw, 655 F.2d at 528
(relying upon Reyes to hold that the shipowner "could not divest
itself" from the "duty to exercise reasonable care with respect to the
gangway's being properly secured to the vessel and maintained in a
safe condition").

8 "Prior

to

1972,

a

longshoreman

injured

while

loading

or

unloading a ship could receive compensation payments and also have
judgment against the shipowner if the injury was caused by the ship's
unseaworthiness or negligence."
Scindia, 451 U.S. at 164 (citing
Sieracki).
19

disembark."

Id.

The

court

then

held

that

the

vessel's

seaworthiness duty extends "to the gangway by whomever supplied,

owned,

or

holding

controlled."

a

vessel

Id.

owner

Acknowledging

responsible

"for

the

the

harshness

fault

of

a

of

shore-

based operator," the court noted that a vessel "owner may often
be entitled to indemnity" and,

unseaworthy

employer,

condition

fault

court

negligence

[is]

"*[t]he fact that the

of

[the

longshoreman's]

immaterial.'"

Reyes,

(quoting Bostrom v. Astro Crecido CIA,

720 (1st Cir.

Reyes

the

and not the defendant,

F.2d at 869 n.3

718,

[is]

therefore,

1973) ).9

concluded

claim

Then,

its

. . .,

in a single paragraph,

opinion

though

477

with

with

its

perhaps

"views

less

on

494
F.2d

the
the

certainty,"

stating:
Because the means of ingress and egress, by whomever
furnished, are an "appurtenance" of the vessel, the
owner has a duty of care regarding them.
The owner is
thus liable for a negligent failure to inspect a
gangway
and
to
warn
against
defects
reasonably
apparent from inspection or to take steps to repair or
replace it.
Id.

at

means

870.

of

ingress

"refer[red]

establishing

In

to

and egress,

cases

Reyes's

injury,

the

preceding

[LHWCA]," reiterating that,
to

the

the

duty

court
the

of

care

regarding

emphasized that

[1972]

Amendments

the

it had
to

the

because the Amendments did not apply

court

"[had]

no

need

to

consider,

and

9 The
1972
Amendments
to
the
LHWCA
also
abolished
"the
stevedore's obligation to indemnify the shipowner if the latter was
held liable to the longshoreman." Scindia, 451 U.S. at 165.
20

[did]
the

not consider,

1972

what duties

Amendments."

"Reyes was

Id.

at

and liabilities may exist under

870

entitled to take his

n.4.

The

[LHWCA]"

allowed

negligent
place

the

a

breach

to

work

Agromar

Line,

Scindia,

451

law

to
518
U.S.

"prior

to

longshoreman

of

its

all

F.2d
at

to

come

738,

1972

recover

duty

aboard

740

164.

held

that

Id. at 870.10

the

nondelegable

who

then

case to the jury on the issues

of both unseaworthiness and negligence."
Certainly,

court

its

(4th

However,

Amendments

for

to

provide

1975);

Fourth

the

"shipowner's

vessel."

Cir.
the

a

to

a

safe

Bess
see

v.

also

Circuit

has

expressly declined to find, "as a matter of law, a duty on the
shipowner

to

provide

[a

safe

place

to

work]

. . .

under

negligence principles," by relying upon "cases arising prior to
the 1972 Amendments to the Act

doctrine

of

seaworthiness

[that]

or

upon

provide a safe place to work."

Bess,

clearly proceeded upon the

the

nondelegable

518 F.2d at 743.

duty

to

Because

it is beyond question that the Reyes court considered only cases
prior

to the

1972

Amendments

in establishing the duty of

care

owed by the shipowner to the plaintiff injured before the 1972
Amendments

became

effective,

this

Court

declines

to

rely

upon

the inapposite holding set forth in Reyes.

10 The Mullens mistakenly assert on brief that the First Circuit
held in Reyes that the "barge owner was liable for negligent failure
Defs.' Br. in
to inspect [a] gangway supplied by [a] third party."
Opp. at 15, ECF No. 55 (citing Reyes, 494 F.2d at 870).
21

ii.

The

Mullens

Fourth Circuit "Precedent"

also

submit

Fourth Circuit "cit[ing]
. . .

for

extends

it."

to the means

Defs.'

Br.

United States,

Ice

&

Fuel,

neither

53

539

White

of

in

F.2d

nor

that

access,

Opp'n

F.3d

the

Court

two

cases

from

the

with approval the case of Romero Reyes

proposition

the

to

a

shipowner's

no matter who

at

15,

46

(4th Cir.

43,

1318,

ECF No.

1320

Russell

(4th

stands

owns

55

of

care

or controls

(citing White

1995);

Cir.

for

duty

Russell

1976)).

the

broad

v.

v.

City

However,
proposition

suggested by the Mullens.

In White,
shipowner's

not only did the Fourth Circuit not hold "that a

duty

of

care

extends

to

the

matter who owns or controls it," Defs.'
No.

in

55,

it

White

vested

did not

was

with

even consider

simply

whether

admiralty

the

"the

means

Br.

access,

in Opp'n at

issue.

district

jurisdiction"

of

where

Rather,

court
the

15,

the

was

no
ECF

issue

properly

plaintiff

had

fallen "onto a small wooden platform at the end of the gangway"
while disembarking from a vessel.

footnote,
cases we

649

the

Court

listed

Reyes

have considered since

(1935)],"

for

the

White,

as

one

[The]

proposition

53

"of

Admiral

"that

F. 3d at

the

following

White,

the

enactment

53 F.3d at 46 & n.3

of

the

the

rule

Extension

(emphasis added).

22

many

Peoples[,

Peoples extending jurisdiction to the gangplank is

law

44.

In a

gangway
295 U.S.

of

Admiral

[still]

Act

in

Therefore,

good

194 9."
because

the

Court

in

jurisdiction,
in this

White

considered

only

issues

of

admiralty

the holding of White neither applies nor controls

case.

Likewise,

Russell

addressed the

doctrine

negligence.

There,

established

rule

does

not

apply

in

of seaworthiness,

the

"that

Fourth
a

vessel

this
not

Circuit
in

case

33

because

U.S.C.

it

905(b)

the

stated

§

well-

navigation

ordinarily

warrants the seaworthiness of the means provided for members of
its crew to board and to disembark."

(emphasis added).
of

seaworthiness

dock,"

held

that

Russell,

Court

does
the

several

listed

cases

1320

The Court, noting that "a vessel's warrant[y]
not
"fuel

extend
flat

beyond

involved

the

Reyes

in

footnote,

the

supporting

a

Court's

gangway

[t]here,

not a gangway; it was a part of the dock."
the

539 F.2d at

Id.

citing

to

the

however,

was

As in White,
it

as

observation

one

that

of

the

seaworthiness "warranty of means of ingress and egress includes

a gangway by whomever owned or controlled when supplied for such
a purpose."
although the
of

a

vessel

Russell,

539

F.2d at

1320

& n.2.

Accordingly,

Fourth Circuit has clearly recognized such a duty
to

its

crew

in

the

seaworthiness

has not yet done so in a 33 U.S.C.

§ 905(b)

context,

context,

Court declines the invitation to establish such a duty.

23

id.,

it

and this

iii. Sarauw and its Instructive Reasoning

Although the Court need not distinguish every case cited by
the Mullens
Third

526

from the

Circuit

(3d

in

Cir.

certain

facts

Sarauw

1981)

specific

is

of

v.

this

Oceanic

instructive

facts,

case,

whether

reasoning of

Navigation

in

a

the

Corp.,

owes

a

655

F.2d

based

determining,

shipowner

upon

reasonable

duty of care regarding a gangway owned by a third party,
a

the

such as

stevedore.

A

brief

background

recitation

of

Sarauw

of

is

the

relevant

necessary.

factual

There,

and

the

procedural

stevedore

had

supplied the vessel with a small gangway for use until the water
rose
622

to

a

certain

F.2d 1168,

stevedore put

level.

1171

Sarauw

(3d Cir.

v.

1980)

Oceanic

Navigation

[hereinafter Sarauw I] .

the small gangway in place,

reached

replaced

with

proceeded

to

the

"point

where

a

longer

"swing

the

the

one,"

longer

small

the

gangway

plaintiff

gangway

The

but the vessel's crew

failed to properly secure the gangway to the vessel.
water

Corp.,

into

When the
had

to

be

longshoreman

position."

Id.

When the longshoreman could not "attract the attention of anyone
aboard

the

[walking]

ship"

up

the

to

secure

small

the

gangway[,]

longer

which

loose," causing the longshoreman to fall.

At trial,
owner,

and

the

gangway,

. . .

he

suddenly

were

all

24

came

Id.

the jury found that the longshoreman,
stevedore

"started

negligent.

On

the vessel
appeal,

the

Third Circuit affirmed the jury's finding that the vessel owner

had been negligent in failing to properly secure the gangway to
the

vessel.

Supreme

Id.

Court,

at

1173.

which

reconsideration

in

The

vessel

remanded

light

of

to

its

Supreme

reconsideration,

Court's

provision,

law

appealed

Third

451 U.S.

in

to

for

Scindia.

See

966 (1981).

court

first

acknowledged

in

or

the

Circuit

the

instruction

positive

the

decision

Oceanic Navigation Corp. v. Sarauw,

Upon

owner

Scindia

that,

"'absent

custom

to

the

contrary

the

contract

. . .

the

shipowner has no general duty ... to exercise reasonable care
to

discover

confines

of

dangerous
the

stevedore.'"

(quoting

conditions

cargo

Sarauw,

Scindia,

that

operations

655

451

F.2d

at

U.S.

that
528

at

develop
are

assigned

[hereinafter

172) .

within

The

the

to

the

Sarauw

court

II]

then

characterized the issue before it "in the light of the ruling of

the Supreme Court in Scindia," stating:
The precise question which this case presents on
remand is whether the gangway here involved which was
supplied by the stevedore and used by its longshoremen
was an appliance which was "within the confines of the
cargo operations" assigned to the stevedore.
Id.

fall

If so,

the court

"outside

reasonable

care

the
to

explained,

general
inspect

the gangway would necessarily

duty
and

of

the

supervise

shipowner
for

the

to

purpose

use
of

discovering and remedying dangerous conditions which might exist
or develop in the course of its use."

25

Id.

Considering the particular gangway at
court

reaffirmed

its

[the vessel owner]

respect
and

to

the

"original

the

terminal

in

safe

Id.

stevedore
to

use

Moreover,

in which the

[in

I]

conclusion

being

properly

condition

explained how it had come to
that

the Sarauw II

Sarauw

that

had the duty to exercise reasonable care with

gangway's

maintained

issue,

use."

to

the

Id.

vessel

The

court

its "original conclusion,"

"required

only

for

secured

all

gangways

vessels

supplied

by

unloading
it,

the

noting
at

its

stevedore."

"the shipowner maintained control over the manner

gangway was

to be secured"

and certain testimony

presented at trial further established the shipowner's duty "to
secure,

maintain,

(Adams,

J.,

and

concurring);

(describing expert's
the

ship

watch

was

over

see

the

also

Sarauw

testimony "that

responsible

for

gangway."

I,

Id.

622

the officer

seeing

that

the

F.2d

at

at

529

1172

in charge
gangway

of
was

properly secured and that a gangway watch would be the customary
method

of

fulfilling

that

responsibility").

Thus,

the

court

held, because the shipowner "did not surrender control over the
manner in which the
F.2d

at

1172,

the

gangway was
shipowner

to be

"could

not

secured," Sarauw I,
divest

itself"

of

622
the

"duty of care . . . even though the gangway was supplied by the
stevedore."

Sarauw II,

655 F.2d at

528

(citing Reyes,

494

F.2d

at 870).u

11 The Fifth Circuit relied upon this holding in Gay, 915 F.2d at
1012 & n.18 {noting in a dual-capacity case that, where employee acts
26

It is apparent to the Court that the holding of

Sarauw II

was specific to the facts of that case and was not intended to

impose

a general

duty of

care

upon

all

vessel

owners

for

means of ingress and egress to and from their vessels.
the

court

hypothesized

about

certain

situations

all

Indeed,
where

a

shipowner would presumably owe no such duty:
Conceivably, there might be a case in which a special
gangway, which is in addition to the ship's regular
gangway, is supplied by a stevedore for the exclusive
use of its longshoremen in carrying out its cargo
operation and which, therefore, might be regarded as
wholly within the confines of that operation under the
Scindia rule.

Id.

It

is

equally apparent

that

the

reasoning

of

Sarauw

II,

applied to the facts of this case, fails to support the Mullens'
argument that Plaintiffs'

turnover duty

included the forklift-

and-basket method of accessing the barge.
Ceres owned,

and,

maintained,

It is undisputed that

and controlled the forklift and basket,

unlike in Sarauw II, there is no evidence that

exercised any

control

over

the

forklift

and

basket,

Plaintiffs
such

that

Plaintiffs could be said to have assumed an affirmative duty to
"secure,

maintain,

barge]."

Id.

combination

the

and

at
sole

watch

529.
means

over

Nor
of

the

was

[means

the

accessing

of

access

to

the

forklift-and-basket

the

barge.

Although

Mullen alleges that the barge's "ladder was not accessible from

as agent of defendant in capacity of both shipowner and stevedore,
defendant "as shipowner" cannot divest itself of its "duty of care
with respect to providing a proper gangway" by relying on actions of
employee acting for defendant as "stevedore-employer").
27

the dock" on August
he

concedes

when

"the

that

barge

happen to be
accord

31,

port

2009,

Mullen Decl.

captains

ladder

and

use

Dep.

at

top

of

the

lined up," Defs.'

Moulton

the

52,

Br.

78,

5 21,

barge
the

ladder

dock

in Opp'n at

ECF

No.

47-1

ECF No.

55-1,

to

bumper

board
should

19, ECF No.
(testifying

55;
that

port captains "typically" use the "ladder and climb on board the

barge," although "sometimes they
the ladder is

not

[need]

to use the basket" when

"lined up with one of the bumpers") .

Nor do

the Mullens allege that Ceres "required all vessels unloading at
its

terminal to use only

stevedore."

Sarauw II,

[means of access]
655

F.2d at

528.

supplied by it,
Thus,

the

there being no

evidence of "'contract provision,

positive law or custom to the

contrary,'"

"general

Plaintiffs

reasonable

basket]

inspect

which might

and

duty

supervise

...

[the

to

use

forklift

and

exist

or develop

in the

course

of its

Id^ (quoting Scindia, 451 U.S. at 172).
Moreover,

whether

was

to

no

for the purpose of discovering and remedying dangerous

conditions

use."

care

owed

the

"wholly

although the Court need not

forklift-and-basket

within

Scindia rule," id.,

the

method

confines

of

of

that

it appears that Ceres'

decide in this case
accessing

the

barge

operation

under

the

forklift and basket

might be just the sort of "special" case the Sarauw II court had
in

mind,

especially

reefer mechanics,

considering

such

as

Mullen.

28

the

specific
Mullen's

requirements
sworn

of

declaration

states

one

that

barges

section

"units

"frequently have

(bay)

will

be

operation."

of

unloaded

be

too

Id.

mechanic

assigned

is

mechanic

on the

to

to

with

work

has

the

on

to

refrigerated
the

cargo

Because the units

when

they

that

whole

board

than

without power,"

time

the

more

during

55-1.

fact

on

those

times

vessel

the

units

that

different

close

Coupled

frequently

and

SI 15, ECF No.

long

unplugged

unloaded."

barge,"
at

Mullen Dep.

should not "sit[]
"should

the

reefer

and

are

only

to

"one

barge,"

the

disembark

they
be

reefer
"reefer

from

the

container barge . . . multiple times during a cargo operation."
Id.

Hence,

combination

the

the

enables

location

of

portability
a

the

reefer mechanic

the

appropriate time.

of

specific

unit

to

located

"more

in

suggests that

the

barge
of

Sarauw II,

Furthermore,
August

31,

the

of

cargo
F.2d at

Mullen's
2009,

service

near

at

the

one

were the reefer mechanic

using a single
the

barge

section

in

(bay)

ladder or

order
of

to

intended

operations
528

units

barge."

the

assigned

use
to

(quoting Scindia,

injury

only when

for

Id.

occurred
Mullen

29

had

"at
to

about

accessing

" 'within

the
451

gangway

reach

forklift-and-basket method of

specifically

the
655

area

than

This

confines

the barge

fixed

was

the barge

One can easily imagine the additional time

required to access
a

access

requiring

that would be needed for each service,

located in

forklift-and-basket

the

stevedore.'"
U.S.

at

4:00

a.m."

service

the

172).

on

"reefer

units

. . . near the barge ladder," Mullen Decl.

55-1.

As

Mullen

points

forklift operator brought

began

raising

against
injury.

one

the

Court

it

[Mullen]

was

not

until

that

the

forklift

rungs

the

barge

ladder"

on

"Ceres

next to the barge ladder and

basket,"

the

the

ECF No.

prong
and

"caught

caused his

Id.

In sum,

by

of

the

out,

f 28,

the Court finds the Fourth Circuit authority cited

Mullens

inapplicable

to

this

case.

Furthermore,

rejects the holdings of the remaining cases

the

relying upon

Reyes, primarily because of Reyes's reliance upon "cases arising

prior to the 1972 Amendments to the Act [that] clearly proceeded

upon the doctrine of seaworthiness or upon the nondelegable duty

to provide a safe place to work."
However,

Ceres'

518 F.2d at 743.

applying the reasoning of Sarauw II,

cited by the Mullens,
Court

Bess,

finds

that

to the specific facts of this case,

Plaintiffs'

forklift-and-basket

any event,

one of the cases

turnover

method

of

duty

did

accessing

not
the

the

extend
barge.

to
In

even if a factual scenario may exist, as Sarauw II

suggests, where it could be said that,

as a matter

of law,

a

vessel owes a duty to provide a safe means of ingress and egress

to a longshoreman, this is not that case and the Court leaves
that question for another day.

30

b. Active Control Duty

The

active

operations
care

to

have

begun,

prevent

under the

98

control

duty
"a

injuries

provides

shipowner

to

that,

must

longshoremen

assertion

Scindia,

that

[barge]"

451

U.S.

Plaintiffs

after

delivering

at

in

the

barge

the

control

Court

material

Plaintiffs'

no

genuine

issue

of

that

make

control

of

stevedore

duty.

remain

512 U.S.

Mullens

"active

Plaintiffs breached their active

finds

areas

The

to

reasonable

Howlett,

167).

maintained

stevedoring

exercise

'active control of the vessel.'"

(quoting

once

or

no
the

that

Id.

Thus,

with

fact

at

the

respect

to

active control duty.
c. Duty to Intervene

The

Mullens

intervene

of the
that

because

that

Plaintiffs

Plaintiffs
were

breached

"'deemed

to

their

have

duty

been

to

aware'"

"inherently dangerous" method of accessing the barge and
the

"continual

improvident."
Scindia,

the

assert

only

operated

Defs.'

451

U.S.

danger
in

this

Furthermore,

show that
condition

at

was
one

use

or

vessel

this

method

Br. in Opp'n at 22-23,
176).

in

Plaintiffs

"the

manner

instance,"

Plaintiffs

the

of

contend,

owner

that

improvident' judgment."

the

which

Pis.'

Br.

"there

stevedore

ECF No.

disagree,

in

had actual

are

obviously

55 (quoting

alleging

that

[the

method]

was

19,

ECF

No.

47.

that

can

at
no

knowledge

facts

of

exercised

Id. (citation omitted).

31

was

a

dangerous
'obviously

"As

a

general

stevedore

to

hazards."

Scindia,
in

to

problem."

the

longshoremen

451 U.S. at 170.
which

at

In

"shipowner

would

that

such

being used in the

it

174

longshoremen arises

the

shipowner

assume

Id.

omitted).

the

exposing

avoid

circumstances

shipowner

matter,

and

continue

a

duty

to

intervene

operations[,]

presents

an unreasonable risk of
Supp. at 164

operations
tasks

is

owner

has

"to

when the stevedore's
'obviously

(quoting Scindia,
United States,

Reederei,

657

130

at

175,

stevedore's
hazard[,]

longshoremen,"

451 U.S. at 176).

and

stop

unloading

judgment in carrying out his
Bonds,

175);

(4th Cir.

682 F.2d 1070, 1074

F.2d 53

known

intervene

at 167,

710 F.2d 128,

to

ship's gear

451 U.S.

the

marks

"obvious and known to all,"

improvident.'"

451 U.S.

Hango Shipowners/AB,
v.

a duty

the

the

the

"danger

a

(citing Scindia,

Even where a hazardous condition is

vessel

a

a

to

for

correct

when

despite

harm

"there may be

quotation

where

the

unreasonable

will

cargo operations," Scindia,

has

on

reasonable

from the malfunctioning of

to

the

to

internal

"circumstances,"

decision

Harris, 967 F.

be

stevedore

(citation

rely

Nonetheless,
not

the

may

(4th Cir.

F.2d

at

127

see also Woodruff v.
1982)

(citing Gill v.

(4th Cir.

1981))

injury to the longshoreman must be a

717

1982);

Harris

(observing that "the

'reasonably foreseeable'

consequence of exposure to the open and obvious hazard for the
shipowner to be liable").

32

Of course, it is well-established that there can be no duty
to intervene unless the vessel owner has both "knowledge of the
[hazardous]

condition"

the stevedore is
Mar.

Co.,

Scindia,

S.A.,

and

"knowledge

continuing its
801

451 U.S.

F.2d

at

that

despite

operations."

678,

Hodges

danger,

v.

(4th

Cir.

1986)

Furthermore,

175-76).

686-87

the

even

if

Evisea
(citing

the vessel

owner knows of a dangerous condition, but "reasonably believe[s]
. . .

that

condition[],
for

the

the

stevedore

will

act

to

the owner cannot be said

decision

whether

a

condition

avoid

to

the

have

imposes

been
an

dangerous

negligent,

unreasonable

risk of harm to longshoremen is 'a matter of judgment committed
to the stevedore in the first instance.'"
Scindia,

451 U.S.

was

at

687

(quoting

at 175).

In this case,

combination

Id.

as indicated above,

wholly

owned,

the

maintained,

forklift-and-basket

and

controlled by

Ceres; thus, any alleged "danger to longshoremen" from accessing

the barge via the forklift and basket did not "arise [] from the
malfunctioning

operations."

of

the

Scindia,

ship's

451

gear

U.S.

at

being

175

used

in

(emphasis

the

cargo

added).12

12 The Court acknowledges some disagreement among the circuits as
to whether the duty to intervene "extend[s] beyond conditions with

respect to the ship, its equipment, and gear," Derr v. Kawasaki Kisen
K.K., 835 F.2d 490, 496 (3d Cir. 1987), see, e.g., Fontenot v. United
States, 89 F.3d 205, 209 (5th Cir. 1996) (noting that "whether the

danger was located in the ship or ship's gear" was only one of six
factors in determining "whether the vessel owner has a duty to
intervene"); Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 215 (5th

Cir. 1984) (declining to adopt an "across-the-board rule that the
involvement of a dangerous condition of the ship itself, its gear, or
equipment is in all circumstances per se either necessary or
33

Furthermore,
the

regardless of whether

condition,"

danger[]"

to

Hodges,

the

801

F.2d

longshoremen

in

method of accessing the barge,
No.

55,

Plaintiffs had "knowledge of
at

686,

using

Defs.'

the

any

"inherent[]

forklift-and-basket

Br. in Opp'n at 22-23,

was "obvious and known to all," Bonds,

717 F.2d at

ECF
127.

Indeed, Mullen himself acknowledges that it "is easy to see from
the

dock

or

from

the

basket"

that

"the

forklift

would stick out beyond the forward edge
Decl.

SI

23,

ECF

No.

55-1,

thus

blades

.

.

.

of the basket," Mullen

rendering

it

"entirely

foreseeable" that "a forklift blade might "catch . . . against a

barge ladder rung," Defs.'

Br.

in Opp'n at 21,

ECF No.

55.

As

the Fourth Circuit held in Bonds,

the danger "being obvious and

known

entitled

to

all,

judgment

the

as to

undertaken,"

shipowner

whether

unless

circumstances was

was

discharge

Ceres'

to

operations

"judgment

in

[their]

tasks," id.

"gaps in the lines along

at 128

could

Bonds,

451 U.S. at 175).

were several safe locations from which the

carry out

on

proceeding

'obviously improvident.'"

127-28 (quoting Scindia,

rely

[Ceres' ]

safely be
under
717

the

F.2d at

As in Bonds, "there
[longshoremen]

n.5,

could

such as the other

the side of the barge"

located away

sufficient to impose a duty on a shipowner") ; Lieggi v. Maritime Co.
of Philippines,

667 F.2d 324, 328 (2d Cir. 1981)

(formulating "a more

general principle, applicable not only to the ship's gear but also to
transitory conditions on the ship").
However, the Court need not
address

this

issue

because

the

Mullens

present

no

specific

facts

suggesting that "the stevedore's judgment in carrying out his tasks
[was] obviously improvident," Bonds, 717 F.2d at 127 (emphasis added),
or

that

Plaintiffs

condition."

Hodges,

otherwise

had

any

801 F.2d at 686.
34

"knowledge

of

the

[hazardous]

from the barge ladder,

Mullen Decl.

SI 16, ECF No.

55-1; see also

Defs.' Br. in Opp'n at 20, ECF No. 55 (noting that "longshoremen
typically boarded
the

side

of

[the barge]

[the]

barge

at the two

where

there

to

were

four places

gaps

in

the

along

barge's

safety lines," and that only one of those gaps was located near

"the barge ladder") .
the

longshoremen

"This is not a situation,

were

precluded

from

then,

performing

their

except by a means which was inherently dangerous."
F.2d at 128 n.5.
for

the

conduct

court

of

Accordingly,

to

conclude

[Ceres]

was

in which
tasks

Bonds,

717

because "it would be antithetical

under

[Bonds

and]

Scindia

'obviously improvident,'"

that

id.

the

at

128

(quoting Scindia, 451 U.S. at 175, and "that the shipowner had a
duty to intervene and stop the
Court

finds

that

Plaintiffs

[cargo]

are

operations," id.,

"entitled

to

judgment

the
as

matter of law" regarding their alleged duty to intervene,
R.

Civ.

P.

a

Fed.

56(a).

In summary,

the Court finds that,

because Plaintiffs did

not violate any of the "three general duties shipowners owe to

longshoremen," Howlett, 512 U.S. at 98 (citing Scindia, 451 U.S.
at 167-78), Mullen's injury was not "caused by the negligence of
the vessel," In re Complaint of Christiansen Marine,
AMC

2353,

2363

(E.D.

Va.

1996).

Accordingly,

Inc.,

Plaintiffs

1996
are

entitled to summary judgment and "exoneration from all claims

against

[them]."

Id^ at

2366.

35

Furthermore,

the

Court's

determination
Judgment

with

respect

renders

moot

to

Plaintiffs'

Ceres'

claim

Motion

seeking

for

Summary

contribution

if

"Ceres and Columbia are found jointly liable for the Mullens[']
injuries,"

Ceres'

Answer

Court will DISMISS

& Claim

Ceres'

relief
MOOT,

the

pursuant

to

set

Fed.

11,

ECF

14,

that

and

basis.

above,

Civ.

P.

the

Rule

Mullens'

56(d)

is

motion

for

DISMISSED AS
in

the evidence sought would not have aided the Court in

decision.

GRANTED,

the

CONCLUSION

forth

R.

No.

as the discovery disputes have since been resolved and,

any event,
its

reasons

SI

contribution claim on
IV.

For

at

as

Plaintiffs'

the

Mullens

motion

have

failed

for
to

summary

show

judgment

that

there

is

is
any

genuine issue of material fact as to whether Plaintiffs violated
any of the duties owed to them.
against

Plaintiffs

are

DISMISSED

Therefore,
WITH

the Mullens'

PREJUDICE,

and

claims
Ceres'

contribution claim against Limitation Plaintiffs is DISMISSED AS
MOOT,

as

Plaintiffs

are

not

liable

to

the

Mullens

for

their

negligence claims.
The Clerk is REQUESTED

co send a copy of

this

Opinion and

Order to all counsel of record.
IT

IS

SO

ORDERED.

W&&

/s/
Mark

UNITED STATES

Norfolk, Virginia

January jQ

, 2014
36

S.

Davis

DISTRICT

JUDGE