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MCCOURT v. MITSUI O.S.K. LINES AMERICA

April 16, 1996

JAMES MCCOURT and DONNA MCCOURT, PLAINTIFFS,
v.
MITSUI O.S.K. LINES AMERICA, INC., and PACIFIC VENTURE SHIPPING, S.A., DEFENDANTS.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Pacific Venture Shipping S.A., the only defendant remaining in this action, has moved for summary judgment. For the reasons set forth below, the Court will grant defendant's motion.

 Background

 Plaintiff James A. McCourt ("McCourt") and his wife, Donna McCourt, filed this negligence action against Pacific Venture Shipping, S.A., owner of the vessel M/V Cosmo Venture, as a result of an accident that occurred aboard the ship on June 30, 1992. On that day, plaintiff, a longshore worker, was employed by stevedore Maher Terminals as a member of a gang of longshore workers that went aboard defendant's ship for the purpose of unloading automobiles. Maher Terminals, a contract stevedore, was hired by defendant's agent to discharge the vessel.

 The longshore workers were to remove the vehicles from the vessel by driving them down ramps between successive deck levels until they reached the exit level, where they were to drive off the ship and park in an adjacent lot. The workers would then return to the vessel via van, walk up stair cases to the level from which the vehicles were being discharged, and repeat the process.

 On approximately his third trip from the discharge level through the ship, plaintiff deviated from the intended discharge pattern, which proceeded in a "corkscrew" fashion through ramps located one below the next. Instead, plaintiff drove along the length of the ship's No. 3 deck to another set of ramp openings and attempted to proceed to the next deck level through these openings. However, no ramp was in place on this end of the ship, and the automobile operated by plaintiff plunged through the open hole in the deck and came to rest with its rear tires on the ship's No. 3 deck and its front bumper or front tires below on the ship's No. 4 deck. Plaintiff struck his head and throat on the windshield and steering wheel, sustaining serious injuries.

 Defendant contends that the stevedore had clearly marked the "corkscrew" exit pattern from the ship with orange cones, arrow markers, and painted lines on the floor. Gill Dep. at 28. Defendant insists that in order for plaintiff to have reached the deck opening though which he fell, he must have disregarded the safety measures employed by the stevedore. Gill Dep. at 23. Plaintiff, on the other hand, avers that there were no directional signs present whatsoever. McCourt Dep. at 34. Nothing in the record indicates that the opening through which plaintiff's car fell was marked or protected by ropes, tape or chains. McCourt Dep. at 38-39; Gill Dep. at 30. Defendant's witness has testified that such precautions are customarily installed around a deck opening when no ramp is in place. Gill Dep. at 29.

 Based on the law governing shipowners' liability to longshore workers, defendant argues that it is entitled to summary judgment in spite of these disputes regarding the safety precautions in place at the time of plaintiff's accident.

 Summary Judgment Standard

 Rule 56(c) of the Federal Rules of Civil Procedure directs a district court to grant summary judgment:

 The burden of showing that no genuine issue of material fact exists rests initially with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party shows that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 323-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party may establish that the case presents a genuine issue for trial by showing that there is sufficient evidence favoring the non-moving party to enable a reasonable fact finder to return a verdict in that party's favor. Anderson, 477 U.S. at 249. In evaluating a motion for summary judgment, the court must view the facts, and the reasonable inferences therefrom, in the light most favorable to the non-moving party. ...


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