On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Before Judges Shebell, Skillman and Kleiner.
The opinion of the court was delivered by
This is an appeal from a summary judgment in favor of defendant Sea-Land Services, Inc. (Sea-Land) in a wrongful death action brought pursuant to section 905(b) of the Longshore and Harbor Workers Compensation Act. 33 U.S.C. § 901 to § 950. Sea-Land is the owner of the ship on which the fatal accident occurred. Decedent was an employee of Coastwide Marine & Ship Services, Inc. (Coastwide), with which Sea-Land contracted to clean a large fuel tank in the ship.
On the day of the accident, most of the members of Coastwide's crew -- excluding the decedent -- began cleaning the tank at approximately 8:00 a.m. Prior to that time, Sea-Land employees placed approximately five or six sets of portable fluorescent lights outside the tank. Coastwide employees subsequently brought the lights down into the tank and placed them near the areas where they worked. Sea-Land's employees did not supervise the way in which Coastwide's employees cleaned the tank or placed the portable lights.
Decedent arrived at the vessel at approximately 4:00 p.m. and, together with two other workers, descended down a series of vertical ladders in order to arrive at the access hole, or "cut out," leading to the tank in which the rest of the Coastwide crew had already been working for approximately eight hours. The decedent walked in front of the other two men as they made their way through the access hole and up the ladder inside the tank. When decedent arrived at the top, he stepped onto a narrow strip of metal designed in a horseshoe shape around the inside perimeter of the tank. There was a large opening, or "lightening hole" in the center of the tank at that level, and there were no guardrails
around the hole. The decedent began to walk along a poorly illuminated part of this metal ledge, sometimes referred to as a "stringer," towards the location where the other Coastwide workers were cleaning the tank. Apparently unable to see that the ledge had a horseshoe shape rather than being straight, the decedent stepped off the side, falling to his death on the metal deck below.
The trial court granted Sea-Land's motion for summary judgment on the ground that even if there were an unreasonably dangerous condition in the area of the ship where the accident occurred, this condition was the responsibility of Coastwide rather than Sea-Land.
Section 905(b) provides in pertinent part:
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 . . . 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. . . . 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.
In the leading case interpreting this provision, Scindia Steam Navigation Ltd. v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981), ...