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Ahmad BARTON and Dawn Barton, Plaintiffs, v. HAI FENG 1710 DESIGNATED and Hapag-Lloyd AG, Defendants.
Before the Court is Defendants Hai Feng 1710 Designated and Hapag-Lloyd AG's (“Defendants”) Motion for Summary Judgment. (Doc. 42.) For the following reasons, Defendants’ motion (Doc. 42) is GRANTED.
This case arises from an injury Plaintiff Ahmad Barton 2 received while working as a longshoreman on the M/V Vienna Express (the “Vessel”). (Doc. 33 at ¶¶ 8, 18.) On September 12, 2018, the Vessel called at the Port of Savannah to load and discharge containerized cargo. (Doc. 44 at ¶ 2; Doc. 49 at ¶ 2.) The Vessel is a foreign-flag container vessel that transports intermodal container cargo. (Doc. 44 at ¶ 1; Doc. 49 at ¶ 1.) At all times relevant to this action, the Vessel was owned and managed by Defendants. (Doc. 44 at ¶ 1; Doc. 49 at ¶ 1.)
Barton was employed as a longshoreman by Ceres Marine Terminal, Inc., a stevedoring company with operations in the Port of Savannah. (Doc. 44 at ¶ 1; Doc. 49 at ¶ 1.) Barton was one of the International Longshoremen Association members hired by Ceres to assist with the Vessel's cargo operations. (Doc. 44 at ¶¶ 1-2; Doc. 49 at ¶¶ 1-2.)
To unload cargo on the Vessel, Barton was required to unfasten AllSupport lashing rods which secured the cargo during transport. (Doc. 33 at ¶ 13; Doc. 44 at ¶ 3; Doc. 49 at ¶ 3.) While working to unlash a container, Barton was initially unable to successfully release an AllSupport end from the container's corner casting. (Doc. 44 at ¶ 3; Doc. 49 at ¶ 3.) Barton attempted to release the AllSupport a second time; at which point the AllSupport released “unexpectedly” and “too easily.” (Doc. 40, Attach. 1 at ¶ 129, Doc. 44 at ¶ 4; Doc. 49 at ¶ 4.) As a result of the AllSupport's sudden release, the AllSupport slipped out of Barton's right hand and fell on his left hand, causing him significant injuries. (Doc. 33 at ¶ 18, Doc. 44 at ¶ 4; Doc. 49 at ¶ 4.)
The AllSupport involved in Barton's accident remained in service for nine and a half months after the accident before being removed from the Vessel in June 2019 for inspection.3 (Doc. 44 at ¶ 11; Doc. 49 at ¶ 11.) On June 26, 2019, an inspection of the AllSupport was conducted in controlled conditions at Defense Counsel's office. (Doc. 44 at ¶ 14; Doc. 49 at ¶ 14.) During the inspection, a 1.5-degree bend in the AllSupport was discovered. (Doc. 44 at ¶ 14; Doc. 49 at ¶ 14.) Two days prior to Barton's accident, the Vessel's crew performed an inspection of the Vessel's lashing equipment and discovered no bend in the relevant AllSupport. (Doc. 40 at 270, 272; Doc. 44 at ¶ 15; Doc. 49 at ¶ 15.)
In their amended complaint, Plaintiffs bring claims of negligence against Defendants due to Defendants’ alleged failure to exercise reasonable care to maintain the AllSupport in safe condition. (Doc. 33 at ¶ 19.) Specifically, Plaintiffs allege that Defendants knew or should have known of the risk of an unsafe condition created by a bend in an AllSupport and that Barton was injured as a result of the bend in the AllSupport.4 (Id. at ¶¶ 21, 22-24) Plaintiff Dawn Barton, Barton's spouse, brings a derivative claim for loss of consortium as a result of Barton's injuries. (Id. at ¶¶ 25, 28.) Now Defendants move for summary judgment on Plaintiffs’ claims. (Doc. 42.)
STANDARD OF REVIEW
According to Fed. R. Civ. P. 56(a), “[a] party may move for summary judgment, identifying each claim or defense–or the part of each claim of defense–on which summary judgment is sought.” Such a motion must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. The “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56 advisory committee notes).
Summary judgment is appropriate when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).
As the Supreme Court explained:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. The burden then shifts to the nonmoving party to establish, by going beyond the pleadings, that there is a genuine issue concerning facts material to its case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88, 106 S. Ct. at 1356. However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id., 475 U.S. at 586, 106 S. Ct. at 1356. A mere “scintilla” of evidence, or simply conclusory allegations, will not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir. 1998). Nevertheless, where a reasonable fact finder may “draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the Court should refuse to grant summary judgment.” Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).
Vessel Defendants contend that they are entitled to summary judgment on Plaintiffs’ negligence claim and derivative loss of consortium claim. (Doc. 43 at 1.) Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950, authorizes suits by longshoremen injured due to the negligence of a shipowner or charterer.5 The Supreme Court, however, has significantly narrowed the duties a shipowner or charterer owes to longshoremen under the LHWCA. See Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 164-72, 101 S. Ct. 1614, 1620-25, 68 L. Ed. 2d 1 (1981). These duties, now known as the Scindia duties, include (1) the turnover duty, (2) the active control duty, and (3) the duty to intervene. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98, 114 S. Ct. 2057, 2063, 129 L. Ed. 2d 78 (1994).
In this case, the only Scindia duty at issue is the turnover duty. (Doc. 48 at 7.) With respect to the turnover duty,
[a] vessel must exercise ordinary care under the circumstances to turn over the ship and its equipment and appliances in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.
Howlett, 512 U.S. at 98, 114 S. Ct. at 2063 (citation and internal quotations omitted). As a corollary to this duty, the vessel must also
warn the stevedore of any hazards on the ship or with respect to its equipment, so long as the hazards are known to the vessel or should be known to it in the exercise of reasonable care, and would likely be encountered by the stevedore in the course of his cargo operations, are not known by the stevedore, and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.
Id. at 98-99, 114 S. Ct. at 2063 (citation and internal quotations omitted). “The duty to warn, however, is narrow. It does not include dangers which are either (1) open and obvious, or (2) which a reasonable competent contractor should anticipate encountering.” In re Knudsen, 710 F. Supp. 2d 1252, 1274 (S.D. Ala. 2010); see also Howlett, 512 U.S. at 98-99, 114 S. Ct. at 2063.
Plaintiffs allege that Defendants breached their turnover duty by turning the Vessel over to the stevedores with a hazardous condition. (Doc. 48 at 9.) Namely, Plaintiffs allege that the relevant AllSupport was bent by 1.5 degrees at the time of Barton's accident and that this bend caused the AllSupport to release unexpectedly and injure Barton. (Id. at 14-15.) Additionally, Plaintiffs allege that Defendants failed to warn Barton of the defective AllSupport, which Defendants “at the very least should have known about ․” (Id. at 18.)
Defendants argue that they are entitled to summary judgment on Plaintiffs’ negligence claims because Plaintiffs cannot establish that the AllSupport was bent at the time the vessel was turned over or that the bend, if it existed at the time of the accident, caused Barton's injuries. (Doc. 43 at 8.) Defendants further contend that, even if the AllSupport was bent at the time the Vessel was turned over, Defendants had no duty to warn Barton about the bend. (Id. at 18.)
The Court finds that summary judgment is warranted on Plaintiffs’ claims against Defendants for two reasons.6 First, Plaintiffs have failed to create a dispute of material fact that Defendants turned the Vessel over in an unsafe condition. Specifically, Plaintiffs have not offered any evidence indicating that the relevant AllSupport was bent at the time of Barton's accident or that the AllSupport was bent at the time the Defendants turned the Vessel over to the Stevedores. Second, even if the AllSupport was bent, Defendants had no duty to warn Barton about the allegedly defective AllSupport. The Court will address each reason in turn.
I. TURNOVER DUTY OF SAFE CONDITION
The first question in a turnover duty inquiry is whether Defendants turned over the Vessel in a condition under which Barton could do his work with reasonable safety. Washington v. Nat'l Shipping Co. of Saudi Arabia, 374 F. Supp. 3d 1339, 1352 (S.D. Ga. 2019). Plaintiffs argue that Defendants violated the turnover duty of safe condition because the relevant AllSupport was rendered defective due to a 1.5-degree bend at the time Defendants turned the Vessel over. (Doc. 48 at 8.)
As an initial matter, Plaintiffs have adduced no facts to support their contention that the AllSupport was bent at the time of Barton's accident. Barton has no personal knowledge about whether the AllSupport was bent. During his deposition, the following exchange occurred:
Q. Okay. So is there ․ is it your contention that there is something about the condition of that bottle jack that was deficient?
A. I can't ․ I can't answer that.
(Doc. 40, Attach. 1 at 130-131.) In fact, Barton does not discuss the alleged bend in the AllSupport at all in his deposition.7 From the Court's perspective, Plaintiffs are assuming that, because the relevant AllSupport was difficult to remove and because a 1.5 degree bend was discovered in the AllSupport nine months later, the difficulty in removing the AllSupport must have been caused by the bend. However, Plaintiffs’ speculation alone is not enough to support their claim that the AllSupport was bent at the time of Barton's accident.
Further, Plaintiffs have produced no other witnesses who have testified that the AllSupport was bent on the day in question. On the contrary, two days prior to Barton's accident, the Vessel's crew performed an inspection of the Vessel's lashing equipment and discovered no bend in the relevant AllSupport. (Doc. 44 at ¶ 15; Doc. 49 at ¶ 15.) In the absence of any evidence creating a dispute of material fact, the Court cannot find that Defendants turned over the vessel in an unsafe condition.
Plaintiffs contend, however, that the fact that the AllSupport did not function correctly at the time of Barton's injury is, by itself, sufficient evidence to conclude the AllSupport was “defectively bent so as to survive summary judgment.” (Doc. 48 at 9.) Plaintiffs rely on Villers Seafood Co., Inc. v. Vest, 813 F.2d 339, 342 (11th Cir. 1987) (citations omitted) for the proposition that “[i]f a ship's equipment breaks under normal use, the logical inference that follows is that the equipment was defective.” (Doc. 48 at 9.)
In Villers, a shrimp boat captain was injured when attempting to climb a ladder from the boat's engine room to the upper deck. Villers, 813 F.2d at 340. As the captain was climbing the ladder, the top of the ladder moved away from the beam which had supported it and “dumped him on the engine below.” Id. Prior to the accident, a “hook-and-eye” fastener, which had secured the top of the ladder, was removed from the ladder. Id. The Eleventh Circuit reversed the district court's grant of summary judgment and held that a presumption that equipment is defective “arises when a safety device is removed from a ship's equipment resulting in the type of accident which the safety device was designed to prevent.” Id. at 342.
Villers dealt with a case brought under the Jones Act, 46 U.S.C. § 30104 (formerly 46 U.S.C. § 688), not the LHWCA, and dealt with the question of whether the shrimp boat was seaworthy. Id. at 340. In Scindia the Supreme Court held that Vessel owners in § 905(b) cases could no longer be held faultlessly liable based solely on a theory of unseaworthiness or nondelegable duty. Id. 451 U.S. at 169, 101 S. Ct. at 1623; see also Crimson Yachts v. Betty Lyn II Motor Yacht, 603 F.3d 864, 874 n.5 (11th Cir. 2010). As a result, the Court doubts Villers's application in this case.
Assuming Villers is relevant to a LHWCA case, Villers is distinguishable from the facts of this case. Unlike in Villers, Plaintiffs do not contend that Defendants removed any safety device from the AllSupport or did anything at all to create a defect in the AllSupport. And unlike the defective, unattached ladder in Villers, which clearly caused the captain to fall, it is not clear in this case that a defect in the AllSupport caused Barton's accident. As discussed previously, no witness, including Barton, has been able to point to evidence that the AllSupport was defective on the day of the accident. See Villers, 813 F.2d at 342 (“[T]here is no presumption that a ship is unseaworthy merely because an accident has occurred on it․”) (citations omitted). Accordingly, the Court does not find the holding in Villers has application in this case.
Plaintiffs also argue that the discovery of the bend in the AllSupport nine months after the accident is evidence that the AllSupport was bent on the day in question. (Doc. 48 at 10.) Plaintiffs contend that because Barton testified that the AllSupport behaved unusually on the day of the accident, any defect later discovered in the AllSupport should be attributed to the accident. (Id. at 9-10, 14.) This argument is purely speculative and does not evidence a dispute of material fact sufficient to defeat summary judgment. See Purvis v. Maersk Line A/S, 795 F. App'x 756, 759 (11th Cir. 2020) (finding defect in hatch cover discovered two and a half years after the accident was not evidence that the hatch was defective at the time of the accident).
Even if the Court accepted Plaintiffs’ arguments, they would only produce evidence that the AllSupport was bent at the time of Barton's accident. However, none of this evidence attributes the bend in the AllSupport to the Vessel's crew or its pre-turnover operations. See Hampton v. Broadway Mar. Shipping Co., Ltd., No. C-96-0464 SI, 1997 WL 102500, at *3 (N.D. Cal. Feb. 25, 1997) (granting summary judgment where the plaintiff offered no evidence “to demonstrate that such a condition, if it did exist, could be attributed to [ ] the shipowner”). As noted above, “to visit liability upon a vessel under the turnover duty, it is not enough to point toward a hazardous condition.” Washington, 374 F. Supp. 3d at 1356. Plaintiffs must also introduce evidence that the hazard was present at the time the Vessel was turned over to the longshoremen. See Clark v. Bothelho Shipping Corp., 784 F.2d 1563, 1566 (11th Cir. 1986) (affirming directed verdict for the operator of the ship where “[n]o evidence existed to indicate that the grease spot was on the deck before stevedoring operations began”). Because Plaintiffs have failed to produce evidence that the AllSupport was bent at the time the Vessel was turned over, the Court finds that Defendants did not violate the turnover duty of safety and, therefore, Defendants’ motion (Doc. 42) is GRANTED.8
II. Turnover Duty to Warn
Even if Plaintiffs could establish that the AllSupport that injured Barton was defective at the time of the Vessel's turnover, Plaintiffs’ evidence is insufficient to show that Defendants violated the corollary duty to warn. As previously discussed, Vessel owners owe a duty to “warn the stevedore of any hazards on the ship or with respect to its equipment, so long as the hazards are known to the vessel or should be known to it in the exercise of reasonable care․” Howlett, 512 U.S. at 98-99, 114 S. Ct. at 2063 (citation and internal quotations omitted) (emphasis added). Plaintiffs contend that Defendants violated the turnover duty to warn because they “at the very least should have known about the defect in the lashing rod.” (Doc. 48 at 18.)
The Court finds Defendants had no actual or constructive notice that the relevant AllSupport contained a defect. The Vessel's Chief Officer, Robin Lorenzen, testified that Defendants were unaware of any prior incidents in which a longshoreman on the Vessel had been injured by a bent AllSupport. (Doc. 40, Attach. 2 at 106.) When Defendants conducted their monthly inspection of the Vessel's lashing equipment two days before Barton's accident, they discovered no defect in the AllSupport. (Doc. 44 at ¶ 15; Doc. 49 at ¶ 15.) This inspection was conducted by five crew members over the course of two days. (Doc. 49 at ¶ 15.)
As Defendants highlight, Plaintiffs have not produced evidence that Defendants failed to exercise reasonable care in their monthly inspection of the Vessel's lashing equipment. (Doc. 43 at 19-20.) Plaintiffs essentially argue that Defendants’ inspection was unreasonable simply because it did not discover the bend in the AllSupport. However, this argument relies on Plaintiffs’ speculation that the AllSupport contained a bend at the time of Defendants’ inspection. See Reed v. ULS Corp., 178 F.3d 988, 992 (8th Cir. 1999) (“[Plaintiff] merely argues that that [defendant] had a duty to conduct a more detailed inspection but provides nothing to support his argument other than evidence that a step failed and he fell.”). Accordingly, the Court cannot find that Defendants violated the turnover duty to warn. See Id. (finding the defendant did not have constructive knowledge of defect because the defendant conducted monthly inspections of relevant areas and “[t]here is nothing to indicate that such an inspection constitutes a failure to exercise reasonable care under the circumstances of this case.”). As a result, Defendants’ motion (Doc. 42) is GRANTED.
Based on the foregoing, Defendants’ Motion for Summary Judgment (Doc. 42) is GRANTED.
SO ORDERED this 29th day of March 2021.
2. The Court will refer to Plaintiff Ahmad Barton as “Barton” throughout this order.
3. Six days after the accident Plaintiffs sent Defendants a litigation holder letter, in which Plaintiffs demanded Defendants preserve the AllSupport which was being utilized by Barton at the time of his injury. (Doc. 43, Attach. 4 at 2.) Attached to the letter was the Georgia Ports Authority Incident Report which identified the location of the incident as “row 13” of Bay 42. (Id. at 7, 8.) Based on the incident report, Defendants preserved an AllSupport rod from row 13, Bay 42. (Doc. 43 at 8 n.6.) Months later, during a discussion between counsel for the parties, it was discovered that the wrong AllSupport had been preserved and that the relevant AllSupport, located at stack position 15, Bay 42, was still in service. (Doc. 14 at 2.)
4. In their amended complaint, Plaintiffs also allege that Defendants were negligent by failing to reasonably maintain a safety strap connected to the AllSupport and that this failure was also the proximate cause of Barton's injuries (Doc. 33 at ¶¶ 20, 22-24.) In their response to Defendants’ motion for summary judgment, however, Plaintiffs do not rely on this allegation in arguing that summary judgment is inappropriate. Accordingly, the Court will not address Plaintiffs’ allegations that Defendants were negligent by failing to provide a functioning safety strap. See Edmondson v. Bd. of Trustees of Univ. of Ala., 258 F. App'x 250, 253 (11th Cir. 2007) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)) (“[T]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”).
5. Plaintiffs’ Amended Complaint does not explicitly invoke the LHWCA, 33 U.S.C. §§ 901-950. However, “it is undisputed that this action is governed by the [LHWCA], specifically Section 905(b) thereof, since it is premised upon injuries [Barton] suffered while working on the [M/V Vienna Express], a foreign-flag vessel owned and controlled by [Defendants].” Washington v. Nat'l Shipping Co. of Saudi Arabia, 374 F. Supp. 3d 1339, 1344 (S.D. Ga. 2019).
6. Because the Court finds Defendants are not liable for Barton's injuries, the Court is required to grant summary judgment on Plaintiff Dawn Barton's derivative claim for loss of consortium. Hendricks v. Earling Shipping Co., No. CV297-121, 1998 WL 684206, at *5 (S.D. Ga. May 4, 1998) (holding in the longshore context that “loss of consortium is a derivative claim” that can only be sustained when the defendant “is liable in tort to a spouse who is unable to provide consortium”).
7. At the time, Barton contended that the accident was caused by Defendants’ failure to provide an adequate safety strap, which presumably could have kept the AllSupport from falling. (Doc. 40, Attach. 1 at 106-107.) As discussed previously, this claim has since been abandoned.
8. Plaintiffs also request the Court sanction Defendants under Federal Rule of Civil Procedure 37(b) (2) (A) (i)-(ii) for Defendants’ failure to preserve the correct AllSupport in response to Plaintiffs’ litigation hold letter. (Doc. 48 at 13.) Rule 37(b)(2) sanctions are only appropriate when a party fails to obey an order to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A). “Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374-75 (11th Cir. 1999) (per curiam) (citation omitted). The Court enjoys “broad discretion to fashion appropriate sanctions for violation of discovery orders[.]” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). It is the Court's opinion that Defendants’ response to the Plaintiffs’ litigation hold letter was reasonable considering the lack of identifying information in the letter. As a result, the Court does not find sanctions against Defendants are warranted at this time.
WILLIAM T. MOORE, JR., UNITED STATES DISTRICT JUDGE
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Docket No: CASE NO. CV419-017
Decided: March 29, 2021
Court: United States District Court, S.D. Georgia, Savannah Division.
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