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December 29, 1999


The opinion of the court was delivered by: Greenaway, District Judge.


This matter comes before the Court on defendants' motion for partial summary judgment on Counts III and IV of plaintiffs Zedenko and Nicolina Kolanovic's ("plaintiffs") Amended Complaint. The defendants moving for partial summary judgment are Pak Gida Uretim Pazarlama A.S., incorrectly sued as Pinat Gida a/s (Turkey), and Pinat Gida Sanayi Ve Ticaret A.S., incorrectly sued as Pinat Gida a/s (Turkey) ("defendants")*fn1. For the following reasons, this Court grants partial summary judgment for defendants on the third and fourth claims of plaintiffs' Amended Complaint.


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 non-party." Id.

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 ...

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