Opinion
Civil No. WDQ-02-3032.
July 22, 2004
MEMORANDUM OPINION AND ORDER
William Harris, a longshoreman, has sued the vessel "M/V Hual Trader," Hual North America, Inc., Leif Höegh Co. ASA, Leif Höegh (U.K.) LTD, Höegh Fleet Services, HFS Phillippines, Inc., Hual AS, and Woodstreet Leasing, Ltd. for negligence under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"). Pending is the Defendants' motion for summary judgment. For the reasons discussed below, the motion for summary judgment will be denied.
33 U.S.C. § 905(b) (2004).
BACKGROUND
In May 2001, the M/V Hual Trader ("the vessel" or "the Hual Trader") was docked at the Fairfield Atlantic Terminal in Baltimore, Maryland. Am. Compl. ¶ 4. The Hual Trader, primarily used to transport vehicles, has ten decks that can be raised and lowered to give longshoremen access to various cargo holds. Vrban Dep. 29-34.
On May 29, 2001, Harris, a driver for P O Ports of Baltimore ("P O"), was driving cargo onto deck five of the vessel when he needed to get off the ship. Kohler Dep. 25. Harris began walking down deck five to exit. Harris Dep. 60-63.
P O is a stevedoring company that had been hired to load the Hual Trader.
Because P O had told the ship's crew that it was nearly done loading deck five, the crew had lowered part of the deck to provide access to other areas of the ship. Vrban Dep. 72. When the deck was lowered, a large hole was created between decks five and four. Am. Compl. ¶ 4.
As Harris was walking down deck five to exit, he slipped on a loose chain and fell into the hole, landing on deck four approximately twelve feet below. Harris Dep. 49-50. Harris sustained multiple injuries in the fall. Id. at 105-08.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to summary judgment as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court explained that, in considering a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask . . . whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), but the opponent must produce evidence upon which a reasonable fact finder could rely. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment. Anderson, 477 U.S. at 252.
ANALYSIS
Harris claims that the Hual Trader was negligent in failing to warn of the dangerous condition created when the ship's crew lowered deck five. Ordinarily when a deck is lowered on a cargo ship, safety ropes are hung around the perimeter of the resulting hole. Pl.'s Ex. 3 (Master's Manual for M/V Hual Trader); Harris Dep. 63-64; Miller Dep. 50. Safety ropes were not hung around the hole that Harris fell into until after the accident. Miller Dep. 50.
Section 905(b) of the LHWCA provides that a longshoreman or harbor worker injured by the negligence of a vessel "may bring an action against such vessel as a third party. . . . If, [however], such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel."
The primary burden for avoiding injuries caused by obvious hazards is, therefore, on the stevedore. Hodges v. Evisea Mar. Co., 801 F.2d 678, 686 (4th Cir. 1986). The vessel's duties exist only as a supplement to the duty of the stevedore to supervise its longshoremen so that injuries will not result from obvious or warned-of defects of the vessel or its equipment. Id.
The "vessel owes the stevedore and his longshoremen employees the duty of exercising due care `under the circumstances.'" Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 166 (1981) ( quoting Marine Terminals v. Burnside Shipping Co., 394 U.S. 404, 415 (1969)).
The vessel does not have a continuing duty to inspect the cargo operations once the stevedore work has begun, but before stevedoring commences, it must at least exercise ordinary care to have the ship in such a condition that an experienced stevedore, with the exercise of reasonable care, can carry out its operations. Id. ( citing Scindia, 451 U.S. at 166-68). The vessel must warn the stevedore of hazards that are or should be known to the vessel, if the hazards are not known or should be known to the stevedore. Id. ( citing Scindia, 451 U.S. at 166-68). The vessel is also liable if, after stevedoring work has begun, it actively involves itself in the cargo operations and its negligence causes an injury, or if it fails to exercise due care to intervene to protect longshoremen from hazards under the active control of the vessel during the stevedoring operation. Id. (citing Scindia, 451 U.S. at 166-68).
Hodges, 801 F.2d at 683 ( citing Scindia, 451 U.S. at 166-68).
In Hodges v. Evisea Maritime Corporation, a longshoreman claimed that when he went into a cargo hold adjacent to the area where he had been working to obtain supplies, he fell through an open hatch. Hodges, 801 F.2d at 680. The longshoreman argued that the vessel was negligent both in leaving the hatch open and in failing to provide lighting or other safety measures that would have prevented the fall. Id. at 680-81. Because the ship's crew left the hatch open and the hold unlit, the Fourth Circuit found that there was sufficient evidence of control by the vessel to create a jury issue as to whether the vessel had a duty to intervene to eliminate the dangerous condition. Id. at 683.
Although several sections of the Hual Trader had been turned over to longshoremen for cargo loading, the vessel's crew remained responsible for raising and lowering its decks. Miller Dep. 28; Vrban Dep. 72. Because the ship's crew had sole control over the equipment that allegedly caused Harris's injuries, there is sufficient evidence of control by the Hual Trader that a jury could conclude it had a duty to intervene.
The Defendants argue that even if the vessel had a duty to intervene, its failure to hang safety ropes around the perimeter of the hole was not the proximate cause of Harris's injuries. Defs.' Mot. to Dismiss 15-16. Specifically, the Defendants assert that even if the safety ropes had been hung, Harris would have fallen on the loose chain and into the hole because he chose to exit the ship via a poorly lit deck that was full of cargo. Id.
There is testimony that the purpose of safety ropes hung around lowered ramps is to provide a visual cue to longshoremen that a hazard exists. Kohler Dep. 45; Vrban Dep. 73. Although it is unclear whether there was adequate lighting at the location of the accident, it is conceivable that if the lighting had been sufficient and the safety ropes had been hung, Harris would have seen the safety ropes indicating a hazard and known to use a different path to exit the ship, thereby avoiding the area where he tripped on loose chain. Moreover, there is testimony that the safety ropes are designed to physically prevent a longshoreman from falling into a hole. Kohler Dep. 45-46; Miller Dep. 52-53. If that is the case, even if Harris could not see the safety ropes because of poor visibility, the ropes could have physically stopped him from falling into the hole when he lost his footing.
Compare Harris Dep. 103 (very little light) with Miller Dep. 40 (lighting was "fine").
Because a reasonable factfinder could conclude that the Hual Trader had a duty to intervene and correct a dangerous condition under its control, and that its crew's failure to hang the safety ropes was the proximate cause of Harris's fall, the Defendants' motion for summary judgment will be denied.
CONCLUSION
For the reasons discussed above, the Defendants' motion for summary judgment will be denied.