           Case: 14-14450   Date Filed: 02/27/2015   Page: 1 of 19


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 14-14450
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 4:12-cv-00127-WTM-GRS


JOHN HORTON, et al.,

                                                            Plaintiff-Appellant,

                                  versus

MAERSK LINE, LIMITED, et al.,

                                                        Defendants-Appellees.

                        ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (February 27, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       The plaintiff in this case, a longshoreman, suffered serious injuries when a

twist-lock fell onto his neck. He sued the owner of the ship on which he was

working and the owner of the containers being loaded onto the ship.

       He now appeals two orders from the district court granting summary

judgment to these two defendants.

I.     BACKGROUND

       On the morning of March 18, 2011, plaintiff-appellant John Horton

(“Plaintiff”), a longshoreman, was working aboard the M/V Sealand Champion

when a crane operator, placing a shipping container onto a stack of other shipping

containers, used sufficient force to dislodge a twist-lock from one of the

containers. 1 The twist-lock fell and struck Plaintiff on the head. Although he was

wearing a hardhat, Plaintiff’s neck was broken in two places. After Plaintiff was

taken to the hospital, the twist-lock was taken from the ship’s deck and brought to

the ship’s office. It was given to the ship’s captain, who examined it and found it

to be in working order. The twist-lock was tagged to identify it and retained by the

owner of the ship.




1
   A twist-lock is “a locking device for securing large containers to the trailers on which they are
transported.” Twist-lock Definition, OED.COM,
http://www.oed.com/view/Entry/208149?redirectedFrom=twist+lock#eid17272399 (last visited
Jan. 21, 2015).
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      Plaintiff filed suit against the Georgia Ports Authority, the employer of the

crane operator, in the State Court of Chatham County, Georgia. Plaintiff alleged

that it was the negligent stacking of the containers that had caused his injuries.

That case was settled, with Plaintiff receiving $600,000 from the Authority.

Plaintiff then filed suit, also in the State Court of Chatham County, against

defendant-appellee Maersk Line, Limited (“Maersk”), the owner of the M/V

Sealand Champion. Maersk removed this legal action to the Southern District of

Georgia. Plaintiff subsequently added, as a party, defendant-appellee A.P. Moller-

Maersk, A/S (“Moller”), the owner of the shipping container. In Plaintiff’s

amended complaint, he alleged that Maersk failed “to exercise reasonable care to

provide vessel equipment which was reasonably fit for its intended use.” The

equipment was unfit because “[t]he locking shoes/twists locks were antiquaiated

[sic] and were known by Defendant MAERSK LINE, LIMITED to release from

containers when being placed on vessels.” As for Moller, Plaintiff argued that it

“was in charge and had substantial control over the container at issue and breached

its duty to Plaintiff and other longshoreman [sic] by failing to maintain the

container and ensure that it was reasonably fit for its intended use.” As to these

defendants, Plaintiff asserted claims of negligent maintenance, negligent

employment, negligent training, and negligent failure to warn.

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       Plaintiff sought to support his theory that the twist-lock was defective

through the expert testimony of Robert Williams and Jeffery Culwell. Williams

stated that he has “[a]pproximately twenty-eight years of welding experience in

MIG (metal inert gas), TIG (tungsten inert gas), arc welding and stick (shield metal

arc) welding.” Plaintiff argued that Williams’ welding experience, which includes

seventeen years of repairing shipping containers, qualified him as an expert to

testify on any defects in the casting corner or twist-lock.2 Williams’ inspection of

the casting corner on the container involved in the accident led him to the opinion

that it had been “shaved,” was rusted, and was generally worn. This condition

made it more likely, in Williams’ opinion, that a twist-lock would fail. Culwell has

thirty-four years of engineering experience, including consulting on maritime

equipment, and specifically on twist-lock issues. Culwell also opined that the

corner casting was worn and perhaps corroded, which could “adversely affect the

proper engagement [of the twist-lock] into the corner casting.”

       Moller, the owner of the shipping container, moved to exclude the testimony

of Williams and Culwell. Moller contended that Williams was unqualified as an

expert and that his opinion was unreliable. Moller contended that Culwell had also

reached an unreliable opinion. Plaintiff disputed these arguments. Moller also
2
  The docket and briefs occasionally refer to the “casing corner,” although “casting corner”
seems to be the appropriate term. In any event, the phrase refers to the part of the container into
which the twist-lock fits.
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moved for summary judgment, arguing that without the testimony of Williams and

Culwell, Plaintiff had provided no evidence of a defect in the container that had

caused the accident, and thus there was no genuine dispute of material fact.

Plaintiff argued that, because the expert testimony should not be excluded, there

was a genuine dispute of material fact.

      The district court granted Moller’s motion to exclude the expert testimony of

Williams and Culwell. As for Williams, the district court determined that Plaintiff

had “not established that Mr. Williams’s experience as a welder and container

repairman qualifies him as an expert on the interaction between twist-locks and

corner casings.” Rather, “[a]t most, Mr. Williams’s experience may qualify him to

assess the quality of container repair. However, that experience repairing

containers is simply tangential to the issue of whether there was a defect in the

corner casting and whether that defect caused the twist-lock to separate from the

container.” The district court further noted that “the expert report only states that

Mr. Williams has twenty-eight years of experience working as a welder, with

twenty-one of those in container repair; holds no professional memberships; has

not published any literature; and has never testified as an expert.”

      As for Culwell, the district court determined that his opinion was unreliable

because, in his expert report, his “methodology is not even explained, precluding

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any ability to determine its reliability”; his analysis was not “based on any

technique that has been subjected to peer review”; and “no standards for

determining inappropriate amounts of wear for corner casings” were offered. The

district court found that “Culwell did little more than look at pictures of the

container and arrive at a personal belief that the corner casting may have

contributed to the twist-lock becoming dislodged.” This lacked “the slightest iota

of science.”

       Addressing Moller’s motion for summary judgment, the district court noted

that, because Plaintiff had failed to provide any ground beyond the testimony of

Williams and Culwell for the existence of a genuine issue of material fact, the

motion must be granted.

       Maersk, the owner of the ship, also moved for summary judgment, arguing

that its duties to Plaintiff were quite narrow once the stevedore had commenced the

loading and unloading of the ship. 3 In response, Plaintiff argued that Maersk had a

duty to supervise the cargo operations and was negligent in that duty. Plaintiff also

argued that he should be entitled to an adverse inference that Maersk failed to turn

over a reasonably safe vessel to the stevedore. This adverse inference arises from



3
  A stevedore is a “person or company that hires longshore and harbor workers to load and
unload ships.” Black’s Law Dictionary 1549 (9th ed. 2009).

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the fact, according to Plaintiff, that the actual twist-lock involved in the accident

was not identified.

       Maersk’s motion for summary judgment was also granted. Plaintiff’s case

against Maersk was premised on the breach of duties allegedly owed by a ship

owner to longshoremen: (1) the duty to turn over to the stevedore and

longshoremen a reasonably safe vessel and (2) the duty to properly supervise cargo

operations. As for the first duty, the district court decided that Plaintiff was

“unable to point to any evidence that Defendant Maersk failed to properly turn

over the vessel to the stevedore.”4 As for the second duty, the district court held

that Maersk, as ship owner, had no duty to supervise the cargo operations

conducted by the stevedore, but was expected only to warn the stevedore of

dangers that were known or should have been known. As there was no evidence of

a defect in the twist-lock, there was also no reason that Maersk failed to exercise

reasonable care in discovering such a defect.

II.    ARGUMENTS ON APPEAL

       On appeal, Plaintiff argues that the district court erred in granting summary

judgment to Maersk because the district court (1) misconstrued the duty Maersk

4
  The district court also rejected Plaintiff’s request for an adverse inference from the alleged fact
that the twist-lock that was produced in discovery had either been modified or was not the actual-
twist lock that had been involved in the accident. The basis for this request, as the district court
noted, was “simply because the twist-lock provided by Defendant Maersk did not meet
[Plaintiff’s] expectations.”
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owed to Plaintiff and (2) should have granted an adverse inference that the twist-

lock was defective. Plaintiff argues that the district court erred in granting

summary judgment to Moller because it should not have excluded Williams and

Culwell as experts and, had their testimony been admitted, a genuine issue of

material fact would have existed. We address these contentions in turn.

A.    Maersk’s Duties to Plaintiff

      We review a grant of summary judgment de novo, applying the same legal

standard as the district court. Connelly v. Metro. Atlanta Rapid Transit Auth., 764

F.3d 1358, 1363 (11th Cir. 2014). Further, “[w]e review questions of law de

novo[.]” Dixon v. U.S Att’y Gen., 768 F.3d 1339, 1341 (11th Cir. 2014).

      Plaintiff contends that the district court mischaracterized Maersk’s duties as

ship owner to Plaintiff as a longshoreman. Specifically, Plaintiff argues that the

International Safety Management Code (“the Code”) mandates that a Safety

Management System Manual be kept onboard the vessel for the crew’s use. This

manual, Plaintiff states, requires the ship’s officers to supervise and ensure safe

cargo loading. Plaintiff points to deposition testimony from the chief officer and

captain of the M/V Sealand Champion that confirms that the ship had this

responsibility. On this basis, Plaintiff argues that Maersk had a duty to supervise




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the cargo operations and that there is “a clear question of fact as to whether . . .

[Plaintiff’s] injuries were proximately caused by Maersk’s failure to supervise.”

      In its response, Maersk argues that the district court correctly stated the

applicable law and that Plaintiff’s argument about the Code is unavailing because

it imposes no duties on the ship owner that would supersede the existing legal

obligations. As a longshoreman alleging negligence against a ship owner,

Plaintiff’s claim is governed by § 905(b) of the Longshore and Harbor Workers’

Compensation Act (“the Act”), 33 U.S.C. §§ 901–950. As the Supreme Court and

this Circuit have explained, the Act imposes limited duties on a ship owner. First,

“a shipowner must turn over the ship and its equipment in a condition that permits

a stevedore to do its work with reasonable safety, and must warn the stevedore of

any hidden dangers of which it knows or should know.” Roach v. M/V Aqua

Grace, 857 F.2d 1575, 1581 (11th Cir. 1988) (citing Scindia Steam Navigation Co.

v. De Los Santos, 451 U.S. 156, 166–67 (1981)). Second, “the shipowner may rely

on the stevedore to perform its work with reasonable care, and there is no duty to

supervise the stevedore ‘absent contract provisions, positive law, or custom to the

contrary.’” Id. (quoting Scindia, 451 U.S. at 172). Third, “[t]he shipowner must

intervene only when it becomes aware that the ship, its equipment or gear poses a

danger to the stevedore and is also aware that the stevedore is acting unreasonably

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to protect the longshoreman.” Id. (citing Scindia, 451 U.S. at 178) (emphasis in

original). This duty is limited, however, because “creation of a shipowner’s duty

to oversee the stevedore’s activity and insure the safety of longshoremen would . . .

saddle the shipowner with precisely the sort of nondelegable duty that Congress

sought to eliminate by amending section 905(b).” Scindia, 451 U.S. at 169

(internal quotations omitted) (quoting Hurst v. Triad Shipping Co., 554 F.2d 1237,

1249 n.35 (3d Cir. 1977)).

      It is clear that under the Act, there is no duty of the ship owner to supervise

the stevedore. The question is whether the Code imposes such a duty. The Code,

which is part of the International Convention for the Safety of Life at Sea, has been

implemented by Congress in 46 U.S.C. §§ 3201–3205. The safety management

system Plaintiff mentions is to be implemented through regulations. 46 U.S.C. §

3203(a). These regulations are contained in 33 C.F.R. §§ 96.200–96.390. A vessel

subject to the regulations may face a civil penalty or a revocation of its Coast

Guard clearance if it is not in compliance with the regulations. 33 C.F.R. §

96.380(c).

      The circuit courts have not opined on whether the Code creates additional

duties, running from vessels to longshoremen, besides those set out in the Act.

District courts within this Circuit have done so, however, and have come to the

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conclusion that it does not. E.g., Aronson v. Celebrity Cruises, Inc., No. 12-CV-

20129, 2014 WL 3408582, at *11 (S.D. Fla. May 9, 2014) (“[T]he International

Safety Management Code does not create any duties and thus cannot be the basis

for a negligence claim against a cruise line.”); Rinker v. Carnival Corp., 753 F.

Supp. 2d 1237, 1243 (S.D. Fla. 2010) (“Plaintiff has failed to present any authority

that establishes that the [Code] creates any duties that Carnival owes to Plaintiff.”);

Calderon v. Offen, No. 07-61022-CIV, 2009 WL 3429771, at *4 (S.D. Fla. Oct. 20,

2009) (“Congress merely desired to participate with other maritime nations in

achieving safety goals [through the Code], but did not intend to change long-

established rules of law which govern liability and its allocation in general

maritime law.”) Addressing the regulations implemented in furtherance of the

Code, the Southern District of New York noted that 33 C.F.R. § 96.230 was “cast

in general terms which restate principles already well established by American

case law,” and thus should not be construed as imposing additional duties.

Johnson v. Horizon Lines, LLC, 520 F. Supp. 2d 524, 533 (S.D.N.Y. 2007).

      We agree with these district courts that Plaintiff cannot rely on the Code to

support his negligence claim against Maersk. Plaintiff points to no authority that

recognizes the Code as modifying the duties set out in the Act and recognized in

Scindia. Congress has directed that compliance with the Code is to be achieved

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through regulations that are “consistent” with it, and it has provided penalties for

non-compliance. 46 U.S.C. § 3203(b); 33 C.F.R. § 96.380(c). Further, attributing

to the ship owner a duty to supervise cargo loading and unloading would run

directly contrary to the Supreme Court’s interpretation of the Act: namely, that a

duty to supervise the stevedore would “saddle the shipowner with precisely the sort

of nondelegable duty that Congress sought to eliminate[.]” Scindia, 451 U.S. at

169. Because Plaintiff has not cited any specific United States statute or

regulation that provides a private right of action for the breach of the duty he

alleges, nor any judicial precedent that recognizes the Code as a basis for a

negligence claim, we reject Plaintiff’s argument on this point and hold that the

district court identified and applied the correct legal standards: namely, those

recognized in the Act.

B.    The Adverse Inference

      “A district court’s decision regarding spoliation sanctions is reviewed for

abuse of discretion.” S.E.C. v. Goble, 682 F.3d 934, 947 (11th Cir. 2012) (quoting

Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1313 (11th Cir.

2010). “[A]n adverse inference is drawn from a party’s failure to preserve

evidence only when the absence of that evidence is predicated on bad faith.” Id.




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(quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). “Mere negligence”

is insufficient. Bashir, 119 F.3d at 931.

      Plaintiff states that “Maersk provided a twist lock from container [sic]

stacked at the ‘five-high’ level for analysis and testing. Unfortunately, the

evidence in this action indicates that the twist lock actually fell from the container

that was stacked ‘four high.’ These facts alone raise a rebuttable presumption in

favor of Appellants that the twist lock was defective.” The district court could

make little sense of Plaintiff’s argument. “Plaintiffs appear to assume bad faith

simply because the twist-lock provided by Defendant Maersk did not meet

Plaintiffs’ expectations.” Plaintiff contends that the district court mistook the

argument and restates it on appeal:

      Appellants have evidence that an incorrect twist lock was provided
      per the testimonies of those that witnessed the event. Additionally,
      Appellants provide evidence that some lubrication or other agent was
      added to the provided twist lock. The lubrication would be irrelevant
      if the twist lock provided by Appellee Maersk was a twist lock other
      than the one in dispute in this case. On the other hand, if this twist
      lock was, as Maersk contends, the twist lock relevant to this lawsuit,
      then it is clear that the lubricant or agent applied to the twist lock
      would prevent the twist lock from being presented in an unmodified
      condition.

Plaintiff, however, cites no evidence in support of his position that the twist-lock

provided was not the one that struck him. Nor does Plaintiff explain why the



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alleged lubrication means that the twist-lock was tampered with or is not the one

involved in the accident.

      The district court was well within its discretion in refusing Plaintiff’s request

for an adverse inference. First, Plaintiff has not provided evidence that should

have led the district court to conclude that the twist-lock was either not the twist-

lock that struck Plaintiff or that it had been modified after the accident. Second,

even if the twist-lock was not the one that struck Plaintiff, Plaintiff has not met the

burden of showing that there was bad faith, as opposed to mere negligence, in

collecting and turning over the correct twist-lock. Plaintiff’s unsupported

speculations are insufficient to raise a genuine issue of material fact. Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). We thus AFFIRM the

district court’s denial of an adverse inference on this issue.

      Plaintiff argues that the district court erred in granting summary judgment in

favor of Maersk because there was a genuine issue of material fact. However,

Plaintiff’s alleged genuine issue of material fact is the defective twist-lock.

Plaintiff believes this remains a genuine issue of material fact because the district

court erred in not granting the adverse inference Plaintiff requested. Plaintiff

offers no further argument beyond that. Thus, having resolved the issue of the

adverse inference, we find no error in the district court’s grant of summary

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judgment in favor of Maersk. We AFFIRM the grant of summary judgment in

favor of Maersk.

C.    Exclusion of Williams’ and Culwell’s Testimony

      We review a district court’s ruling on evidentiary matters for abuse of

discretion. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th

Cir. 1998).

      The district court excluded the testimonies of Williams and Culwell because

they failed to meet the standard required for expert testimony. Federal Rule of

Evidence 702 governs the admission of expert testimony:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

      (a) the expert’s scientific, technical, or other specialized knowledge
      will help the trier of fact to understand the evidence or to determine a
      fact in issue;

      (b) the testimony is based on sufficient facts or data;

      (c) the testimony is the product of reliable principles and methods;
      and

      (d) the expert has reliably applied the principles and methods to the
      facts of the case.

Fed. R. Evid. 702. In applying Rule 702, the district courts consider whether

      (1) the expert is qualified to testify competently regarding the matters
      he intends to address; (2) the methodology by which the expert
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      reaches his conclusions is sufficiently reliable as determined by the
      sort of inquiry mandated in Daubert; and (3) the testimony assists the
      trier of fact, through the application of scientific . . . expertise, to
      understand the evidence or to determine a fact in issue.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). It is the burden of

the party seeking to introduce the expert testimony to establish that the

requirements have been met. McCorvey v. Baxter Healthcare Corp., 298 F.3d

1253, 1257 (11th Cir. 2002).

      With regard to Williams, the district court held that Plaintiff failed to meet

his burden. The district court found that Williams’ “career repairing corner casing

is wholly insufficient to render [him] qualified to offer an opinion as to whether a

corner casing was defective and whether that defect caused the twist-lock to

become dislodged.” On appeal, Plaintiff argues that Williams’ experience is more

extensive than the district court recognized. Plaintiff mentions that Williams “re-

built entire containers, including casting corners, during his career,” and has held

supervisory positions over other welders. In response, Moller argues that Williams

“has no experience actually performing the job that Plaintiffs have hired him to

opine about in this case: to wit, inspecting and assessing the condition of corner

castings.” Moller points out that Williams did not inspect corner castings; rather,

marine surveyors did the inspecting, and Williams merely repaired the castings that

those marine surveyors sent to him. Williams admitted in his deposition that he
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could not say what amount of rust present on a corner casting would render it in

need of repair or replacement, stating that a “[s]urveyor would have a figure for it,”

but “I wasn’t a surveyor, I’m a mechanic. My job is to fix it.” Moller further notes

that in his sole inspection of the corner casting and the container, Williams only

visually inspected the container without taking measurements or performing any

tests. Finally, in his deposition, Williams conceded that he could not say that the

rust on the corner casting caused the twist-lock to fail.

      As for Culwell, the district court held that Plaintiff had “fail[ed] to identify

any characteristic that would reasonably render Mr. Culwell’s opinion reliable.”

This is because Culwell’s expert report does not explain his methodology and

“elucidates no standards for determining inappropriate amounts of wear for corner

casings, nor is it based on any technique that has been subjected to peer review.”

Indeed, the district court stated that “Culwell did little more than look at pictures of

the container and arrive at a personal belief that the corner casting may have

contributed to the twist-lock becoming dislodged.”

      On appeal, Plaintiff argues that Culwell’s engineering education and

extensive experience in maritime equipment consulting qualify him as an expert.

Further, Plaintiff asserts that in reaching his conclusion that the wear on the casting

corner most likely caused the accident, Culwell followed Moller’s own guidelines.

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In response, Moller points out first that Culwell did not personally inspect the

corner casting in reaching his opinion that it was too worn. More importantly,

Moller notes that Culwell admits that there is no industry standard for the amount

of wear a corner casting may safely endure and that he has no opinion on what that

standard should be.

      The district court did not err in rejecting the expert testimony of Williams or

Culwell. By Williams’ own statements, he has no expertise in identifying a

defective corner casting. He meets none of the three requirements we set out in

Frazier. There are no grounds for believing that Williams could testify

competently about the state of the corner casting, that he employs a reliable

methodology, or that he would help the trier of fact understand the evidence or

determine a fact in issue. See Frazier, 387 F.3d at 1260. Although he presents a

stronger case for expertise due to his education and experience, Culwell too was

rightly rejected as an expert because he provided no reason to believe that his

opinion was rendered on the basis of some standard or pursuant to some

methodology. The district court had no way of determining the reliability of

Culwell’s opinion because of his failure to explain his methodology. See United

Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013).

Without such an explanation, Culwell’s testimony would not help the trier of fact

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in understanding the evidence or determining a fact in issue. We thus AFFIRM

the district court’s exclusion of the testimonies of Williams and Culwell.

III.   CONCLUSION

       We AFFIRM the district court on all points raised by Plaintiff’s appeal.

The district court applied the correct legal standard to Plaintiff’s claims. It did not

err in excluding the testimony of Williams and Culwell. It did not err in denying

Plaintiff’s request for an adverse inference. Finally, it did not err in granting

summary judgment to Moller and Maersk.




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