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Kirsch v. Plovidba

filed: July 30, 1992; As Corrected September 28, 1992.


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (Dist. Ct. Civil No. 90-01067)

Before: Becker, Nygaard, and Higginbotham, Circuit Judges

Author: Becker


BECKER, Circuit Judge.

This is a longshoreman's personal injury action that requires us to determine the contours of a shipowner's duty to turn over its ship in a condition that an expert stevedore acting with reasonable care can operate safely. Such a duty is imposed by section 5(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b), as interpreted in Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981). We conclude that, under Scindia, a shipowner is subject to liability for the injuries of longshore workers who fail to avoid an obvious danger only if the shipowner should have expected that the stevedore and its longshore workers could not or would not avoid the danger and conduct cargo operations reasonably safely.

In this case, the plaintiff-appellant was injured when he slipped and fell while loading cargo aboard a ship owned by the defendant-appellee, as a result, he claims, of the shipowner's negligence in turning over the ship with a large oil slick in a cargo hatch. We conclude that the oil slick, as alleged, was obvious, and that the shipowner could reasonably have relied on the stevedore and its longshore workers to clean up or treat the slick or to have others do so. We will therefore affirm the district court's grant of summary judgment to the shipowner.


On May 19, 1989, plaintiff-appellant William Kirsch was employed as a longshoreman by Holt Cargo Systems, Inc. ("Holt"), a stevedore with terminal facilities at Gloucester, New Jersey. The defendant-appellee, Prekookeanska Plovidba ("Prekookeanska") had hired Holt to load cargo containers aboard its vessel, the M/V Ivangrad, which had arrived early that morning at Holt's terminal. Prekookeanska turned the ship over to Holt, an expert and experienced stevedore, at 8:00 that morning, and two gangs of longshore workers employed by Holt boarded the ship. Kirsch, an experienced longshoreman, served as a hold worker in the gang headed by James Phillips, which was assigned to load cargo containers in the No. 4 hold.

The cargo containers were of standard size, measuring twenty feet long by eight feet wide by eight feet high. When such containers are loaded into a hold such as the one in the Ivangrad, they are secured with "pineapple" clamps, so called because of their resemblance to the fruit. Longshore workers position the clamps in slots in the deck of the hold, then load the containers aboard the ship with a crane and fit them onto the clamps, which are then locked. Workers thereupon climb on top of the first layer of containers and place additional clamps on top of the containers, and the process is repeated for each tier of cargo.

When the Phillips gang, including Kirsch, entered the No. 4 hold, the hold was empty, but they discovered a thin coating of oil covering a substantial portion of the deck of the hold. The origins and size of the oil slick are disputed, but in view of Kirsch's supporting affidavits and deposition testimony, we must assume, for purposes of this summary judgment motion, that (1) the slick was present when Prekookeanska turned the ship over to Holt, and (2) it was so large that the longshore workers could not traverse the deck of the hold without stepping in the oil.*fn1 The Phillips gang noticed and complained about the oil before the start of cargo operations but none of Holt's employees took any action to have the slick cleaned up or to have traction improved by the apparently customary remedy of placing sawdust on the oil, even though Holt had sawdust available.

The oil on the deck of the hold made the surface slippery, and some of the workers, including Kirsch, slipped while initially searching for the clamps, which were stored in the hold. Although Kirsch did not fall at this time, apparently some of the oil remained on his shoes. Loading of the first tier of containers continued for about fifteen minutes without incident. Shortly before Kirsch's accident, however, another longshoreman had climbed up on top of the first tier to ready clamps for loading of the second tier. Kirsch remained on deck, but when the crane operator inadvertently knocked off one of the clamps, Kirsch climbed up on the container to reset the clamp. As Kirsch walked on top of the container, he slipped because of the oil on his shoes and fell eight feet to the deck below, badly injuring his feet.

Kirsch brought suit against Prekookeanska, alleging that Prekookeanska's negligence had caused his injuries.*fn2 The district court had jurisdiction under 28 U.S.C. § 1331 (1988) and, because Prekookeanska was an instrumentality of the government of Yugoslavia, under 28 U.S.C. § 1330(a) (1988). On September 17, 1991, the district court granted summary judgment for Prekookeanska, explaining its reasoning in a bench ruling. Kirsch filed a timely appeal. We have jurisdiction over the final judgment of the district court under 28 U.S.C. § 1291 (1988). Our scope of review is plenary.


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