Filed: Apr. 07, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-7-2004 Jackson v. Egyptian Navigation Precedential or Non-Precedential: Precedential Docket No. 02-3828 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Jackson v. Egyptian Navigation" (2004). 2004 Decisions. Paper 753. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/753 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-7-2004 Jackson v. Egyptian Navigation Precedential or Non-Precedential: Precedential Docket No. 02-3828 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Jackson v. Egyptian Navigation" (2004). 2004 Decisions. Paper 753. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/753 This decision is brought to you for free and open access by the O..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-7-2004
Jackson v. Egyptian Navigation
Precedential or Non-Precedential: Precedential
Docket No. 02-3828
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Jackson v. Egyptian Navigation" (2004). 2004 Decisions. Paper 753.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/753
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
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PRECEDENTIAL Stewart L. Cohen
William D. Marvin (Argued)
UNITED STATES COURT OF Steven L. Smith
APPEALS FOR THE THIRD CIRCUIT Kessler Cohen & Roth
Philadelphia, PA 19102
02-3828 Attorneys for Appellants
Richard Q. Whelan (Argued)
RONALD JACKSON and Gary Francis Seitz
PAMELA JACKSON, h/w, Palmer, Biezup & Henderson
Philadelphia, PA 19106
Appellants
Attorneys for Appellee
v.
EGYPTIAN NAVIGATION COMPANY, OPINION OF THE COURT
Appellee
FRIEDMAN, Circuit Judge.
In this case a longshoreman
Appeal from an Order employed by a stevedoring company
Of the United States District Court seeks to recover under the Longshore
For the Eastern District of Pennsylvania and Harbor Workers’ Compensation Act,
(E.D. Pa. No. 99-5695), (“Longshore Act”), 33 U.S.C. §§ 901-950
Dismissing Plaintiff’s Complaint on (2000), from the shipowner for injuries he
Defendant’s Motion for Summary suffered while unloading the ship. The
Judgment longshoreman’s theory is that the
District Judge: Hon. Michael M. Baylson shipowner was negligent because it failed
to provide him with a safe place to work.
The district court dismissed the complaint,
Argued December 2, 2003 and we affirm.
Before: SLOVITER, ALITO and I
FRIEDMAN,* Circuit Judges
A. The appellant Ronald Jackson
(Filed: April 7, 2004) (“Jackson”) was employed as a
longshoreman by Delaware River
Stevedores. He was injured while
unloading a cargo of steel coils from a
ship owned by the appellee Egyptian
* Daniel M. Friedman, United Navigation Company (“Egyptian”) (an
States Senior Circuit Judge for the Egyptian corporation) that had arrived in
Federal Circuit, sitting by designation. Camden, New Jersey the previous day.
1
The cargo had been loaded in Turkey by was also dunnage placed between the
a different stevedoring company. various coils to prevent their movement.
The ship contained two holds, one There was no direct evidence on
above the other. The unloading of the top how or when the board had been placed
hold began at 8 a.m. and was completed between the ladder rung and the stowed
at 11 a.m. The ship’s crew members then cargo. The ship’s First Officer indicated in
opened the cover of the lower hold, and his deposition that in his daily inspections
the longshoremen climbed into that hold of the cargo area during the voyage, he
to start unloading the cargo stored there. never noticed any plank in that position.
Jackson’s theory is that the board was
Jackson was the fifth person to placed in that position by the Turkish
descend into the lower hold. The first stevedore when it loaded the cargo in
man down was a superintendent from the Turkey and that it remained there during
stevedoring company; he was followed by the ship’s transatlantic voyage.
three other longshoremen.
B. Jackson and his wife then filed
As Jackson descended a ladder on the present damages action in the United
the side of the lower hold, he saw the four States District Court for the Eastern
others standing on top of the coils about District of Pennsylvania against Egyptian.
ten feet above the floor of the hold. Upon The complaint alleged that Jackson’s fall
going down the ladder, he saw a narrow “was caused by the sudden failure of the
piece of wood extending from one of the means provided by defendant to walk
rungs of the ladder (which was about ten from an access ladder permanently
feet above the floor of the hold) across an affixed to the vessel, to the top of the
open space of approximately four or five cargo, approximately ten feet above the
feet to the top of the coils. Apparently floor of the hold”; that Jackson “had been
believing that the other men had walked directed to use this ladder and means of
across the board to reach the cargo, access by the crew of the defendant’s
Jackson started to walk over the board. vessel, in order to reach the cargo in the
The board broke; Jackson fell ten feet to lower hold”; and that “[t]he conditions
the floor of the hold and was seriously which caused plaintiff’s injuries were
injured. created by defendant no later than when
the cargo was loaded overseas, and
It turned out that the board was defendant allowed those conditions to
made of dunnage, a cheap and weak remain for the entire length of the
form of wood that stevedores regularly voyage.” The complaint further alleged
use in connection with stowing cargo to fill that the defendant “knew or should have
in empty spaces and thus reduce or known” that “the conditions in the hold
eliminate movement by the cargo during and the means for access to the cargo
the voyage. The parties agree that the were improper, defective, inadequate,
Turkish stevedore had supplied and dangerous, and unsuitable,” that the
placed dunnage in the lower hold. The “plaintiff and the other stevedores would
stowed cargo sat upon dunnage that was be required to use these means for
between it and the floor of the hold; there access, because there was no other way
2
for them to reach the cargo to prepare it Jackson, 222 F. Supp. 2d at 709.
for unloading,” and that “because of the
conditions in the hold, including the The court ruled that Jackson was
physical arrangement of the ladder and “unable to prove” that the “Defendant had
cargo access, and the poor lighting notice of the plank, but failed to take any
conditions, the plaintiff and other action,”
id. at 707, that the “Defendant
stevedores would not be able to discover knew or should have known that the
the danger or protect themselves from it.” longshoremen would disregard the risk
Finally, the complaint stated: posed by the plank,”
id. at 708, or that
“the hazard posed by the plank was not
Defendant’s acts and open and obvious to the longshoremen,”
omissions as set forth id. at 709. It therefore concluded that the
above, by its agents, three factual disputes that Jackson
servants and employees, contended precluded summary judgment
were careless and did not present any “genuine issues of
negligent, making material fact.” Id. at 707.
defendant liable to plaintiffs
under general maritime law II
and the laws of the
jurisdiction where the injury A. Prior to 1972, a longshoreman
occurred. injured while working aboard a ship could
recover from the ship under the
After some discovery, the district Longshore Act without proving
court granted Egyptian’s motion for n e g l i g e n ce , p u r s u a n t t o t h e
summary judgment and dismissed the unseaworthiness doctrine that made the
complaint. Jackson v. Egyptian ship absolutely liable for such injuries.
Navigation Co., 222 F. Supp. 2d 700 (E.D. See Scindia Steam Navigation Co. v. De
Pa. 2002). After discussing relevant Los Santos,
451 U.S. 156, 164-65, 172
decisions of the Supreme Court and this (1981). In 1972, however, Congress
court, the district court pointed out that significantly changed the basis of the
“[t]he parties do not dispute that, based shipowner’s liability. It eliminated liability
on the allegations of Plaintiff’s Complaint, based on unseaworthiness and provided
and the facts and evidence adduced, only that “[i]n the event of injury to a person
the shipowner’s turnover duty is covered under [the Longshore Act]
implicated here,”
id. at 704, i.e., the duty caused by the negligence of a vessel,
to turn over to the stevedore a safe place then such person . . . may bring an action
to work and “to warn of known, against such vessel.” 33 U.S.C. § 905(b).
nonobvious hazards,” Serbin v. Bora “Section 905 (b) did not specify the acts
Corp.,
96 F.3d 66, 70 (3d Cir. 1996) or omissions of the vessel that would
(quoting Kirsch v. Plovidba, 971 F.2d constitute negligence.” Scindia,
451 U.S.
1026, 1028 (3d Cir. 1992)). The court at 165. In Scindia and Howlett v. Birkdale
held that the “Plaintiff has produced no Shipping Co.,
512 U.S. 92 (1994), the
evidence from which a jury could Supreme Court explained the scope and
reasonably conclude that Defendant parameters of the ship’s duty to the
breached any duty owed to Plaintiff.” longshoremen working on it for a
3
stevedoring company. not known by the
stevedore[,] and would not
In Howlett, the Court stated that be obvious to or anticipated
Scindia had “outlined the three general by him if reasonably
duties shipowners owe to longshoremen. competent in the
The first, which courts have come to call performance of his work.”
the ‘turnover duty,’ relates to the condition
of the ship upon the commencement of Id. at 98-99 (internal citations omitted).
stevedoring operations.”
Id. at 98. As we
have noted, the present case, like The Court in Howlett also pointed
Howlett, involves only the ship’s “turnover out that “there can be no recovery under
duty.” [§ 905(b)] for a vessel’s failure to warn of
dangers that would be apparent to a
Under that duty longshore man of reasonable
[a] vessel must “exercise competence.” Id. at 104. “[T]he vessel’s
ordinary care under the turnover duty to warn of latent defects in
circumstances” to turn over the cargo stow and cargo area is a narrow
the ship and its equipment one. The duty attaches only to latent
and appliances “in such hazards, defined as hazards that are not
condition that an expert and known to the stevedore and that would be
experienced stevedoring neither obvious to nor anticipated by a
contractor, mindful of the skilled stevedore in the competent
dangers he should performance of its work.” Id. at 105.
reasonably expect to
encounter, arising from the This court has recognized the
hazards of the ship’s obviousness limitation on the ship’s duty
service or otherwise, will be to warn. In Serbin, this court stated that in
able by the exercise of Howlett the Supreme Court held in a
ordinary care” to carry on turnover duty case that if “the hazard . . .
cargo operations “with was obvious to a competent stevedore,
reasonable safety to summary judgment would be appropriate
persons and property.” A for the ship,” and that this court “had
corollary to the turnover already decided that obviousness was a
duty requires the vessel to bar to liability under the turnover duty.”
warn the stevedore “of any 96 F.3d at 75.
hazards on the ship or with
respect to its equipment,” B. Jackson contends that the ship
so long as the hazards “are violated its turnover duty because it knew
known to the vessel or of the board’s location in the lower hold
should be known to it in the and because the presence of the board
exercise of reasonable was not an obvious danger that the
care,” and “would likely be stevedore should have immediately
e n c o u n t e r e d by t h e ameliorated but was a concealed defect
stevedore in the course of of which the ship was required to warn the
his cargo operations[,] are stevedore. The district court correctly
4
ruled that under the governing principles was overweight or
discussed above, Jackson had not shown underweight, it doesn’t
that Egyptian violated its turnover duty make a difference. Stability
and that Jackson’s contentions did not rules have to be followed all
raise any disputed issues of material fact the way through.
that precluded summary judgment. 96
F.3d at 75. Under the foregoing analysis, it is
irrelevant that Jackson’s injury resulted
Even if one were to assume, not from his slipping and falling off the
contrary to the district court’s ruling and board but from the board breaking while
the evidence in the record, that the board he was walking across it. The obvious
was placed in that position by the Turkish hazard the board created for the
stevedore, remained there during the longshoremen was that it would be
entire voyage, and that the ship was dangerous for them to use as a bridge
aware of its presence there, Jackson still between the ladder and the cargo – not
could not prevail. The ship has no duty to because it was inferior wood that was
warn about an obvious hazard in the work likely to break but because it was so
area that a competent stevedore would be narrow and unprotected that there was a
expected to discover while properly serious danger that anyone who used it
performing its duties. There is no claim might slip and fall off it. Although use of
that the stevedore here was not the board was more hazardous because
competent. The presence of the board the board itself was internally weak, the
was an obvious hazard, and the nature of the hazard the board posed was
stevedore’s superintendent, who was the not changed by the nature of the injury
first employee to descend into the lower Jackson suffered.
hold in connection with the cargo removal,
should either have removed the board or Jackson argues that even if the
warned the longshoremen not to use it in board posed an obvious danger, this case
moving from the ladder to the cargo. comes within this court’s ruling in Kirsch
that the ship may be liable for injuries
The ship’s First Officer explained caused by obvious dangers “if the
the danger the board presented to the shipowner should have expected that the
safety of the longshoremen: stevedore and its longshore workers
could not or would not avoid the danger.”
[I]t’s very easy for 971 F.2d at 1026. In rejecting this
somebody to slip on a 10 contention, the district court ruled that
centimeter-wide piece of there was “no record evidence supporting
wood. And . . . usually, the [Jackson’s] contention that [Egyptian]
laborer will never go on top knew or should have known that the
of that because it’s [not longshoremen would disregard the risk
safe], and he doesn’t jump posed by the plank.” Jackson, 222
because jumping is against F.Supp. 2d at 709. For example, the First
stability and he could still Officer stated that no member of the
lose his stability and fall ship’s crew used the board to reach the
down. . . . [W]hether he cargo and that he did not see anyone
5
using the board as a bridge.
This court has stated that
questions relating to the existence and
obviousness of hazards in the cargo area
“generally” are not to be decided on
summary judgment but require a trial.
Serbin, 96 F.3d at 73;
Kirsch, 971 F.2d at
1030. This case, however, comes within
the exception to that principle. Here the
evidence is unequivocal that the board’s
presence and placement presented an
obvious danger and hazard to the safety
of a longshoreman unloading the cargo,
which the stevedore should and could
have corrected and for which the
shipowner was not liable. See
Serbin, 96
F.3d at 75. There is no evidence from
which a reasonable jury could have
concluded otherwise.
In view of our conclusion on that
issue, we need not consider Jackson’s
contentions that the board was in its
position in the lower hold before anyone
descended to that area to unload it and
that the ship knew of its presence.
The order of the district court
granting the defendant’s motion for
summary judgment is affirmed.
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