The opinion of the court was delivered by: Greenaway, District Judge.
On February, 3, 1996, at about 3:30 a.m., plaintiff Zedenko
Kolanvic ("plaintiff")*fn2 was on board of the SUAT ULUSOY, a
cargo vessel. Kolanovic, a longshoreman, was assisting with the
loading of cargo containers while the SUAT ULUSOY was berthed at
Global Terminals in Jersey City, New Jersey. After completing the
cargo work on board the vessel, plaintiff used a ladder, supplied
by a seaman*fn3, to go from the roof of one container to another
container to exit the ship.*fn4
Prior to using the ladder, plaintiff did not notice anything
wrong with the ladder; in fact, he had not seen the ladder prior
to it being delivered to him by two Turkish seamen. While
plaintiff ascended the ladder to exit the cargo hatch, either the
ladder slipped on ice located on the container, and/or a rung on
the ladder broke or bent. As a result, plaintiff lost control of
both the ladder and his body. Plaintiff fell backward from the
ladder onto the surface of the lower container roof allegedly
causing injury to himself.
At the time of the accident, there were four (4) seamen in the
hatch with plaintiff, each of them was supposed to hold the
ladder while plaintiff ascended it. When plaintiff fell the only
person securing the ladder was fellow longshoreman, Robert
Waanamen ("Waanamen"). Waanamen held the ladder at the top from
the higher container — none of the other seamen were holding the
ladder. Waanamen was the only witness to the fall.
Wannanen stated that 1) at the time of plaintiff's fall,
plaintiff was almost half-way up the ladder; 2) the safety shoes
and feet that were normally part of the ladder were missing; 3)
when Waanamen used the ladder right before plaintiff's fall, he
did not notice any missing or loose rungs; and 4) the rungs and
the frame of the ladder were bent. Waananen stated also that
nothing on the subject ladder broke during plaintiff's fall.
According to Chief Officer Bulent Cihangiroglu
("Cihangiroglu")*fn5, at the time of the accident it was
snowing, and there was snow and ice on both containers involved
in the accident. Cihangiroglu stated also that the ladder
supplied by the vessel had no safety shoes and that the presence
of snow and ice made the ladder highly slippery and unsafe.
Cihangiroglu claims that the ladder was not missing any rungs.
After plaintiff's fall, the ladder was eventually removed from
the vessel's hold up to the deck, where the ladder was inspected
and photographed by Luard & Company, marine surveyors.*fn6 Luard
& Company acted at the behest of the vessel owners. Cihangiroglu
stated that photographs of the ladder taken after plaintiff's
fall accurately reflect the condition of the ladder.
Cihangiroglu stated that once he learned of the accident, he
notified defendants' claims representatives, Ship Owners Claim
Bureau, who sent a Marine Surveyor ("defendants' surveyor") on
board the vessel. Defendants surveyor did not take a statement
from any of the witnesses to the accident, including Cihangiroglu
and the four (4) seamen in the hatch.
Defendants' surveyor, however, took photographs of the ladder
lying flat on a snowy icy deck the same day that the accident
occurred.*fn7 Plaintiffs claim that defendants knew from the
onset both that there was a claim that this accident was caused
by a defective ladder, supplied by the ship to a longshoreman and
that a lawsuit would follow. Plaintiffs contend that the ladder
disappeared after plaintiff filed this Federal Complaint in
September 1997. Plaintiffs claim further that they were not
provided with an opportunity to examine the photographs, which
the surveyor took, until some time after the accident, pursuant
to the direction of Magistrate Haneke. Plaintiffs allege that it
would be impossible for them to determine the current condition
of the ladder, and to determine whether or not the ladder
required a metallurgical inspection.
Plaintiffs stated that after looking at the photographs of the
ladder, it is clear that this ladder should not have been used at
any time prior to, or subsequent to, plaintiff's accident.
Furthermore, plaintiffs' expert, John Keefe, stated that when an
accident occurs and the offending parties are aware of the
accident, the vital evidence, such as the ladder in this case,
should be kept safe, taken off of the ship, and put into a place
where it could be produced for inspection by the parties'
experts. Even so, Keefe confirmed that in his experience, where
the subject apparatus is not available for litigation,
photographs of the apparatus are sufficient. See Keefe
Dep.,*fn8 Ex. K at 100-02.
Defendants claim that Luard & Company issued a report, dated
March 8, 1996, with photographs, which declared that the subject
ladder "had uneven side rails, . . . rungs [that] . . . turn[ed]
in their sockets, and . . . [that some of the rungs had the]
plastic coating shifted from the center towards one side." Defs.'
Br. at 3-4. Luard & Company reported that it did not note that
anything was wrong with the ladder.
Plaintiffs commenced this lawsuit on May 8, 1997, approximately
fifteen months following the subject events. As of September
1996, the ladder remained on board the vessel and was in use by
the vessel's crew*fn9. Defendants' claims adjuster contends that
the ladder was aboard the vessel as late as July 1997. According
to defendants, plaintiffs did not request inspection of the
ladder until February 17, 1998, approximately two years after the
accident. Defendants claim also that plaintiffs' lawyers failed
to make a request to defendants' insurer's claims adjuster to
produce the ladder or to have it tested by a metallurgist. Also,
defendants claim that plaintiffs never requested that defendants
"hold and keep safe" the subject ladder. Plaintiffs concede,
however, that they are "probably not" prevented . . . from
proving at trial a necessary element of their underlying cause of
action for negligence by the absence of the ladder. Unger Decl.,
Ex. B at 1-5.
Defendants argue that New Jersey state law does not recognize
causes of action for spoliation of evidence relating to claims
between the plaintiff and the defendant to a primary action.
Defs.' Br. at 5. Specifically, defendants assert that New Jersey
has not recognized the causes of action for either negligent or
intentional spoliation of evidence claims "when the spoliation
affects the ability of a party to the primary action to establish
its claims." Id. Defendants contend further that New Jersey
recognizes spoliation of evidence claims only "when the
spoliation cause of action between a plaintiff and defendant in
the primary action is based on either the plaintiff's or
defendant's ability to properly prosecute a claim against a
In Counts three and four of plaintiffs' Amended Complaint,
dated July 27, 1998, plaintiffs allege negligent spoliation and
intentional spoliation, respectively. See Pls.' Am. Compl. at
3-4. Defendants have moved for partial summary judgment on the
third and fourth causes of action in plaintiffs' Amended
Complaint. For the ...