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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.


A. Overview of the Duties of a Shipowner

Section 5(b) of LHWCA, 33 U.S.C. § 905(b), grants longshore workers a statutory cause of action against negligent shipowners.*fn3 That section does not, however, specify precisely what standards should be used to gauge a shipowner's conduct. Instead, as the Supreme Court recognized in the leading case interpreting the statute, Congress left the matter for the courts to resolve. Scindia, 451 U.S. at 156 at 165-66 & n.13, 101 S. Ct. 1614, 68 L. Ed. 2d 1 & n.13.*fn4

In Scindia, the Court reiterated that the vessel owes to the stevedore and its longshore employees a duty to exercise due care under the circumstances. Id. at 166, 101 S. Ct. at 1622 (citing Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 415, 89 S. Ct. 1144, 1150, 22 L. Ed. 2d 371 (1969). Justice White's opinion for a unanimous Court recognized a shipowner's "turnover duty" comprising both a duty to provide safe conditions and a corollary duty to warn of known, nonobvious hazards:

This duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known to the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. . . . The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools, and work space to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman.

451 U.S. at 167, 101 S. Ct. at 1622 (citation omitted).

Scindia went on to mention a second type of duty, a duty when the ship's crew itself actively participates in cargo operations:

It is also accepted that the vessel may be liable 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 may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.


Scindia itself turned on the contours of a third type of duty, the ship's crew's duty to intervene after a stevedore has begun cargo operations. In that case, the plaintiff longshoreman alleged that he was injured when he was hit by falling cargo from a pallet that was being held by a winch that was part of the ship's gear. He alleged that the shipowner knew or should have known that the winch had been malfunctioning for several days, but did nothing. The Court held that, absent a contract, positive law, or custom to the contrary, the shipowner had no continuing duty to learn of dangerous conditions by inspecting or supervising the stevedoring operation. Id. at 172, 101 S. Ct. at 1624. But the Court also held that, on the facts of that case, if the ship's crew knew or was charged with knowing that the stevedore was "obviously improvident" by proceeding with the defective winch, the shipowner had a duty to intervene and repair the winch. Id. at 175-76, 101 S. Ct. at 1626.

The major distinction between the turnover duty and the duty to intervene is that the turnover duty covers the shipowner's conduct before cargo operations have begun, while the duty to intervene addresses conduct after turnover. Scindia holds that the shipowner has no continuing duty to inspect or supervise cargo operations conducted by the stevedore after turnover. But Scindia does not cast any doubt on the shipowner's duty to inspect the ship for hazards before turning the ship over to the stevedore, because inspection is integral to providing the stevedore with a reasonably safe workplace, a duty that Scindia explicitly recognized. For example, the shipowner's duty to warn the stevedore of hidden dangers necessarily implies a duty to inspect to discover those dangers.

Kirsch alleges only breach of the turnover duty. As discussed above, the basic turnover duty is to turn over the ship in such a condition that an expert stevedore acting with reasonable care can conduct cargo operations reasonably safely. The corollary duty to warn of hidden hazards that a competent stevedore is likely to encounter is not relevant here, because Kirsch admits that the oil slick was obvious to him and his coworkers. Thus the only issue before us is when a shipowner breaches its basic duty to provide safe working conditions by turning over a ship with an obvious hazard.


The Turnover Duty and Obvious Hazards

A shipowner will not ordinarily be liable to a longshore worker injured by an obvious hazard because the shipowner's duty is only to provide a workplace where skilled longshore workers can operate safely. The basic theme of the Supreme Court's decision in Scindia is that "as a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards." 451 U.S. at 170, 101 S. Ct. at 1623. Scindia "places the primary burden on the stevedore for avoiding injuries caused by obvious hazards." Id. at 180, 101 S. Ct. at 1628 (Powell Concurring). The Ninth Circuit has observed that the fact that cargo operations will be conducted by an "expert and experienced" stevedore "implies that certain dangers that may be hazardous to unskilled persons need not be remedied if an expert and experienced stevedore could safely work around them." Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1208 (9th Cir. 1989). We agree. Accordingly, a shipowner can, ordinarily, reasonably rely on the stevedore (and its longshore employees) to notice obvious hazards and to take steps consistent with its expertise to avoid those hazards where practical to do so.

Thus, where a danger is obvious but easily avoidable, the shipowner will not be liable for negligence. For example, in Morris v. Compagnie Maritime des Chargeurs Reunis, S.A., 832 F.2d 67, 70-71 (5th Cir. 1987), the Fifth Circuit held that where a longshore worker could easily have used ladders other than one that was obviously defective, the shipowner was not liable. In Bjaranson, the Ninth Circuit held that where the stevedore could easily have moved a crane rather than used a hazardous ladder, the shipowner did not breach the turnover duty to provide safe working conditions. 873 F.2d at 1208. Similarly, if in this case we could assume that the oil slick were obvious to a reasonably prudent stevedore and its longshore workers but small enough to be avoided easily by skirting it, we would conclude that the stevedoring operations could be conducted safely, and hence that the shipowner was not negligent in failing to provide a safe workplace.*fn5

But in some cases, a shipowner cannot reasonably rely on longshore workers to avoid obvious hazards, and therefore the courts have rejected a bright-line rule that a shipowner can never be liable for injuries caused by obvious hazards. For example, if a hazard is obvious yet practically unavoidable, the shipowner can hardly reasonably expect the stevedore or the longshore worker to avoid the hazard. Frequently, this question is one of degree, for the standard is not whether it was absolutely impossible to avoid the hazard, but whether, under all the circumstances, safer alternatives were impractical. See, for example, Morris, 832 F.2d at 71 ("longshoreman need not show that he had no possible alternative but . . . only that the circumstances made safer alternatives unduly impractical or time-consuming"). In many cases, this fact-intensive question will be inappropriate to decide on summary judgment and must be left for the jury. See, for example, Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir. 1990) (upholding jury verdict for plaintiff, even though water and oil on the main deck were clearly visible, because there was some testimony that alternate passage was locked).

Moreover, there may be cases where the shipowner cannot reasonably expect that a stevedore (and its employees) will avoid an obvious hazard even when practical to do so. The Court in Scindia suggested that positive law, custom, and contract may supplement a shipowner's duties to longshore workers. 451 U.S. at 172, 176, 101 S. Ct. at 1624, 1626. If, for example, a regulation required shipowners and only shipowners to rectify a specific type of obvious hazard, a shipowner may not reasonably expect a stevedore and its employees to do so. Depending on other regulations or on a custom between the shipowner and the stevedore or within the port or industry, however, the shipowner might still reasonably expect that, upon discovering an obvious hazard, the stevedore would inform the ship's crew so that the crew could rectify the situation.

On the other hand, customary practice may suggest that a shipowner should know that longshore workers frequently confront rather than avoid a type of obvious hazard. If so, the shipowner may be negligent in not eliminating the hazard, although the plaintiff's recovery may be reduced according to his or her comparative fault. See Griffith v. Wheeling-Pittsburgh Steel Corp., 657 F.2d 25, 27-28 (3d Cir. 1981) ("Griffith II") (shipowner who should have known that plaintiff might use a negligent method to remove stuck hatch covers was itself negligent).*fn6

We therefore conclude that a shipowner may be negligent for failing to eliminate an obvious hazard that it could have eliminated, but only when it should have expected that an expert stevedore could not or would not avoid the hazard and conduct cargo operations reasonably safely.*fn7 We note that this holding appears consistent with ordinary principles of land-based tort law set out in sections 343 and 343A of the Restatement (Second) of Torts (1965), which at least two federal courts of appeals have deemed to be an appropriate guidepost in the area. See Moore v. M.P. Howlett, Inc., 704 F.2d 39, 42-43 (2d Cir. 1983); Harris v. Reederei, 657 F.2d 53, 54-55 (4th Cir. 1981).*fn8 Those sections discuss the duty of a landowner to his or her invitees. Under section 343A(1) of the Restatement, a possessor of land is not liable to invitees (including business invitees) for injuries caused by dangers known or obvious to them, "unless the possessor should anticipate the harm despite such knowledge or obviousness."*fn9

The Supreme Court observed in Scindia that although the legislative history of the 1972 amendments suggested that land-based tort principles should be employed, the legislative history did not refer to the Restatement test, and that because the lower courts had disagreed on how to apply the Restatement test in the maritime context, "those sections, while not irrelevant, do not furnish sure guidance . . ." 451 U.S. at 168 n.14, 101 S. Ct. at 1622 n.14. It also mentioned a test adopted by the Second Circuit based on the Restatement test and noted that it was "presently unprepared to agree that the shipowner had precisely that duty." Id. at 175, 101 S. Ct. at 1626. Nevertheless, the Court proceeded to adopt a test arguably similar to the Restatement test. See id. at 180 n.1, 101 S. Ct. at 1629 n.1 (Powell Concurring) (reading Restatement standard as consistent with Court's holding, although the Court found it unnecessary to adopt that standard fully).

The status of the Restatement test in this circuit after Scindia is somewhat uncertain. In Griffith II, 657 F.2d at 26-28, we reinstated the judgment that had been based on our earlier opinion in Griffith I, 610 F.2d 116 (3d Cir. 1979), which the Supreme Court had vacated for reconsideration in light of Scindia. Although our earlier opinion discussed the relevance of the Restatement, our opinion on remand did not. We merely concluded that it was consistent with Scindia to hold liable a shipowner who knew or should have known of defective hatch covers and had grounds to believe that the stevedore would not remedy the resulting unsafe conditions. That decision, which we cited earlier, is consistent with our analysis above.*fn10

Like the Supreme Court in Scindia, we see no reason to adopt or reject the Restatement test here. Our holding here can be viewed as a refinement of that test that is appropriate to this industry in light of the principles discussed in Scindia. Moreover, we believe that our Conclusion -- that a shipowner may be liable for failing to eliminate an eliminable obvious hazard only if it should have expected that its expert stevedore would not avoid the hazard and conduct cargo operations safely -- suffices to resolve this case.

C. Application to the Facts of this Case

We now evaluate Prekookeanska's conduct in light of this standard of liability. Although in many cases the obviousness of a hazard under all the circumstances, which includes as a key element the appreciability of the danger, will be a jury question, in this case it is not. Kirsch candidly admits that the oil slick on the floor of the hold was obvious to all. He testified that he knew of the oil the second he entered the hatch, before the first clamp had been set and before the first container was loaded. The longshoremen in fact complained about the oil, which indicates that they appreciated the danger. Those facts alone, however, do not conclude the analysis.

First we must consider whether the stevedore, Holt, and its longshore employees could have, in a practical manner, avoided the danger, for if they could not have, then Prekookeanska could not reasonably have expected that Holt's workers could conduct cargo operations safely. Under the facts as we must assume them, the oil slick was so large in area that Kirsch and the other longshore workers could not have crossed the hold without trekking through the oil. Kirsch claims that this suffices to defeat summary judgment, but we disagree. Holt and his cohorts had another option -- to eliminate the obvious hazard by treating or cleaning up the oil slick themselves or by telling the ship's crew to do so.

The question therefore becomes whether Prekookeanska could reasonably have relied on Holt and its employees to treat or clean up a preexisting oil spill or to have that done. On this score, as in Scindia, the regulations of the Occupational Safety and Hazard Administration (OSHA) are relevant, although not conclusive. See 451 U.S. at 176-78, 101 S. Ct. at 1626-27. OSHA's regulations for stevedores, enacted pursuant to 33 U.S.C. § 941 (1988), require that "slippery conditions shall be eliminated as they occur." 29 C.F.R. § 1918.91(c) (1991). Even if Kirsch is correct that the OSHA regulation does not require the stevedore to eliminate slippery conditions that came into being before the stevedore assumed control, the regulation nonetheless indicates that stevedores are considered competent to treat oil spills, a typical form of slippery condition during cargo operations. Indeed, sawdust was available for precisely that purpose, and Kirsch has not contended that the workers were under such a tight time schedule that it would have been impractical for Holt to eliminate the hazard.*fn11

Notwithstanding the regulation, Kirsch would be able to defeat summary judgment if he could offer evidence that, in light of custom between Prekookeanska and Holt (or at that port or in this industry), Prekookeanska would have acted unreasonably to assume that Holt's workers would avoid the danger. Kirsch has produced no evidence of such a custom or course of conduct in this case. He himself merely testified in his deposition that he expected the ship's crew to clean up the oil spill, which is not the same thing. Kirsch did not testify, for example, that stevedores and longshore workers frequently proceed with cargo operations in holds despite large oil slicks there, which might imply that Prekookeanska should have expected that they would do so here.

Kirsch's gang boss, Phillips, testified in his deposition that, if informed about an oil slick like the one Kirsch alleges, he would normally inform the ship's crew, which would then take care of the problem. But that testimony indicates, if anything, that Prekookeanska could rely on Holt to notify it of oil spills that Holt would not rectify. Phillips's statement is not evidence that Prekookeanska should have expected that longshore workers frequently proceed despite such obvious hazards.

Kirsch also fails to cite any specific provisions of the stevedoring contract between Holt and Prekookeanska that arguably address the parties' responsibilities regarding the treatment of oil spills discovered during stevedoring operations. Kirsch asserts that, as a general matter, stevedores are paid to load and unload cargo, not to clean up oil spills. That may be so, but it hardly follows that Prekookeanska should assume that when oil spills do occur, the stevedore and longshore workers will ignore them.

Therefore, although we must assume that Prekookeanska should have known of the oil spill, Kirsch has presented insufficient evidence that Prekookeanska should not have assumed that Holt and its employees would avoid the obvious danger that the spill allegedly presented. Accordingly, Prekookeanska was not negligent, and the district court's award of summary judgment to Prekookeanska will be affirmed.


Prekookeanska was not negligent, and the district court's award of summary judgment to Prekookeanska will be affirmed.

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