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Desantis v. Alder Shipping Co.

August 8, 2008

NICHOLAS DESANTIS, PLAINTIFF,
v.
ALDER SHIPPING CO., FRESH DEL MONTE PRODUCE, INC., DEL MONTE FRESH PRODUCE, N.A., INC. DEL MONTE FRESH PRODUCE CO. INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.



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

OPINION

This matter comes before the Court on the Alder Shipping Company's motion for summary judgment on plaintiff's claim under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), as well as the Del Monte defendants' joint motion for summary judgment on plaintiff's LHWCA and federal maritime tort law claims. For the reasons expressed below, Alder's motion will be denied and the Del Monte defendants' motion will be granted.

BACKGROUND

Plaintiff has brought a negligence action against Alder Shipping Co. ("Alder"), Del Monte Fresh Produce, N.A., Inc. ("Del Monte N.A."), Fresh Del Monte Produce, Inc., and Del Monte Fresh Produce Co. under the LHWCA and federal maritime tort law. Plaintiff alleges that he was injured while engaged in cargo operations on board the M/V Alma. Specifically, plaintiff alleges that he fell on April 14, 2005 after a cardboard box filled with cantaloupes collapsed under his weight. Both parties agree that there was no "walking board" on top of the cardboard box that collapsed.

At the time that injury occurred, the M/V Alma was docked at Broadway Terminal in Camden, New Jersey for the purpose of unloading a cargo of cantaloupes shipped in pallets of cardboard boxes. The M/V Alma is a refrigerated vessel owned by Alder and equipped with four cargo hatches. Del Monte N.A. functions as a terminal operator, leasing the facility at Broadway Terminal and coordinating terminal and warehouse operations for the incoming fruit cargo. Del Monte N.A. contracted with Delaware River Stevedores Inc. ("DRS") to provide the labor for unloading the fruit cargo from the arriving vessels. Plaintiff was a longshoreman employed by DRS. Prior to the date of his accident, plaintiff had worked on approximately one hundred ships loaded with fruit.

Del Monte Fresh Produce Co. is the parent company of Del Monte N.A. Fresh Del Monte Produce Inc. is a foreign corporation and the indirect parent of both Del Monte Fresh Produce Co. and Del Monte N.A. Neither party disputes that a Del Monte subsidiary chartered the M/V Alma for the journey from Costa Rica, where the fruit originated, to Camden.*fn1

When the cantaloupes were stowed in M/V Alma's cargo hatches at the loading port in Costa Rica, slings were placed around the pallets of fruit that were slated to be discharged first. The cargo was loaded by the stevedore company, Comercializadora Anfo, S.A., which is not an affiliate or a contracting partner with any of the Del Monte defendants in this matter. Whatever walking boards were used to load the cargo in Costa Rica were removed and the cargo shipped to Camden without them.*fn2

On the day of his injury, plaintiff and three other longshoremen were tasked with going down into Hatch 1 and attaching cargo hooks on the pre-placed slings so that the first pallets could be lifted out of the hatch. When they arrived at Hatch 1, the hatch cover was open. The top of the cargo was approximately eight to ten feet below the cargo hatch. At approximately 7:00 a.m., plaintiff and another longshoreman placed a portable ladder into Hatch 1 to allow access down into the hatch.*fn3 With Plaintiff and one longshoreman holding the ladder, the two other longshoremen entered the hatch, apparently without incident. With one longshoreman holding the ladder, plaintiff then climbed down into the hatch. When plaintiff took his second foot off of the ladder and stepped down on top of the cardboard boxes of cantaloupes, two of the boxes collapsed and the plaintiff fell. Plaintiff broke his left wrist in an attempt to brace himself as he fell.

A walking board is a piece of plywood, approximately four feet by four feet. There is no dispute that walking boards serve to protect the fruit from being trampled on by stevedores. Plaintiff also contends that walking boards serve to decrease the risk to longshoremen of falls. Typically, Del Monte or one of its subsidiaries owns the walking boards but on occasion when a Del Monte subsidiary charters a vessel for a one time run, the vessel owner will provide its own walking boards. Each board has a hole drilled in it, in order to allow for ventilation during shipment and easier handling by longshoremen. John Hamilton, a DRS Stevedore Supervisor, testified in his deposition that of the thousands of ships that arrived at the Broadway Terminal, approximately 90 percent of them came already equipped with walking boards. Additional walking boards were kept in a building about 300 yards from where the M/V Alma was docked on the day of the injury.

Walking boards have been the subject of many letters and emails between Del Monte N.A. and DRS. The following is a list of relevant correspondence between Del Monte N.A. and DRS. In October 1998, Ernie Casper, Port Manager for Del Monte N.A., sent a letter to Robert Palaima, DRS President, notifying DRS that Del Monte N.A. did not want fruit walked on during unloading operations. Palaima responded by telling Casper about some additional walking boards that they constructed out of plywood but also told Casper that the best solution to the problem would be to have walking boards in place when the vessel arrived.

In 2000, Casper sent Palaima an email notifying him that Sergio Mancilla, then-Senior Vice President of Shipping Worldwide for Del Monte N.A., had instructed vessel staff to report any walking on fruit and stop unloading until the situation was remedied.

On January 7, 2000, Frank Timothy Albano, Vice President of Vessel Scheduling, North American Port Operations, sent Casper an email expressing his concern for how stevedores were disregarding Del Monte N.A.'s instructions to use walking boards and the adverse effect on the quality of the fruit. Albano instructed Casper to reiterate to DRS that its employees should use walking boards during unloading operations.

That same day, Casper sent a letter to Palaima informing him that some vessels will continue to arrive without walking boards but that this does not give DRS "the right to walk on the cargo." (Pl.'s Ex. 12.) Casper also expressed his concern about ladders being placed on top of boxes of fruit instead of walking boards.

On August 28, 2001, Casper sent a letter to DRS informing the stevedore company that he observed longshoremen removing some loose walking boards from the cargo hatch and walking on fruit. Casper instructed DRS to find employees that would comply with their directive to use walking boards.

On October 31, 2001, Casper sent another letter to DRS informing the stevedore company that he again observed stevedores failing to use walking boards. Again, Casper instructed DRS to find employees who would use walking boards.

DISCUSSION

I. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.

II. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of ...


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