               Case: 16-16796      Date Filed: 08/03/2017     Page: 1 of 16


                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                           _________________________

                                   No. 16-16796
                            _________________________

                      D.C. Docket No. 8:15-cv-01806-SDM-JSS

ANTOINETTE DIXON,


                                                                      Plaintiff-Appellant,
                                          versus



NYK REEFERS LTD., ET AL.,
                                                                  Defendants-Appellees.
                            _________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          _________________________

                                    (August 3, 2017)


Before ED CARNES, Chief Judge, and WILLIAM PRYOR, Circuit Judge, and
MOORE, * District Judge.




*
 Honorable K. Michael Moore, United States District Chief Judge for the Southern District of
Florida, sitting by designation.
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K. MICHAEL MOORE, District Judge:

       A crane unloading a vessel’s cargo lowered a metal tray onto longshoreman

Robert L. Dixon, killing him. Decedent’s spouse, Antoinette Dixon, sued the

vessel and the vessel’s charterer, alleging negligence. On summary judgment, the

district court held that the vessel’s owner and charterer were not negligent because

they owed no duty to intervene where there was no evidence of a defect in the

vessel or its gears. On appeal, Ms. Dixon argues that the district court erred by

interpreting a vessel’s duty too narrowly and that material issues of fact exist

regarding the crew’s knowledge of the stevedoring operations such that a jury

could find Defendants owed a duty to intervene in those operations and breached

that duty. Upon review, we affirm.

                                   I. BACKGROUND

       On May 14, 2012, the cargo vessel M/V Wild Lotus (“the Wild Lotus” or

“the vessel”) docked at Port Manatee, Florida, to discharge its cargo of Del Monte

pineapples and bananas. The Wild Lotus is owned by defendant NYK Reefers,

LTD, and at the time of the accident was chartered by Cool Carriers AB

(collectively, “Defendants”).1 Del Monte hired Logistec as stevedore to load and

unload cargo from its vessels on a weekly basis throughout the year. Logistec

decides what equipment is used in any particular discharge operation and provides

1
 The Court need not draw a distinction between the Defendants upon affirming the district
court’s decision that neither owed a duty to intervene.
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the equipment used to unload the cargo, including the lifting trays, forklifts, and

spreader bars. Logistec has been responsible for stevedore operations on various

vessels for Del Monte fruit at Port Manatee, Florida. Logistec unloaded cargo from

the Wild Lotus once before—the week prior to the accident.

      The Wild Lotus has four holds, each with an opening known as a “hatch” on

the deck to permit loading and unloading. The vessel was equipped with four

cranes, one for each hold. Containers on the vessel’s deck are offloaded first. The

hatches are then opened to allow access to the cargo in the holds. The first pallets

in the holds are removed by attaching a “breakout bar” to lines attached to those

pallets. The pallets are then hoisted out of the hold by the ship’s cranes. Once

enough pallets have been removed to clear space, forklifts are lowered into the

hold to continue unloading cargo. Each forklift driver moves a pallet of cargo onto

a 5,500-pound steel lifting tray and, once four pallets are on the tray, it is lifted out

of the hatch by shipboard cranes. This process is repeated until all of the cargo is

completely offloaded.

      Longshoremen unload vessels. The gang is divided into two parts, one that

handles unloading on the vessel side of operations and the other that does so on the

shore side. A longshoreman gang on the vessel side generally has four forklift

operators, one lander, and one header, and two crane operators on the deck. The

header is the person responsible for directing the gang and making decisions


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regarding the operation, as well as maintaining radio communication between the

longshoremen in the hold and the crane operator. A lander ensures that all debris is

out of the way of the forklifts as they move; a lander also often serves as a flagman

to communicate with the crane operator when a crane operator lacks precise and

unrestricted visibility of the site where the tray is to be lowered. Generally during

stevedoring operations, both the crane operators and the header have radios.

      Before stevedoring operations began, Logistec’s ship superintendent met

with the vessel’s Chief Officer to obtain crane certifications and confirm that the

cranes were in good condition. No dangerous conditions were reported to the

vessel’s crew prior to the accident.

       On May 12, 2014, the “Archie” gang—named after its header, Henry

Archie—was assigned to hold #2. Mr. Dixon was a forklift operator in the Archie

gang. Henry Archie was not with his gang in hold #2, nor was he on the ship that

morning, leaving the gang without a header at the time of the accident. There was

no lander at the time either; the lander was standing in for one of the forklift

drivers who was on a break at the time. The crane operator who lowered the tray

onto Mr. Dixon did not have a radio at the time of the accident, nor did anybody

within hold #2.

      After approximately an hour of offloading in hold #2, one of the Archie

gang’s longshoremen stalled his forklift in the landing zone of the open hatch area


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as the tray was being lowered. Mr. Dixon ran into the open hatch area to restart the

stalled forklift. Tragically, the crane operator lowered the 5,500-pound tray onto

Mr. Dixon before he could leave the landing area; Mr. Dixon died as a result.

      On summary judgment, the district court stated that “[a] hazard attendant to

the stevedore’s alleged negligence imposes on the vessel no duty to intervene” and

that “[o]nly a defect in the vessel or in the vessel’s equipment triggers a vessel’s

duty to intervene.” The district court found no evidence of a defect in the vessel or

its equipment, and no such defect was alleged. The district court held that, viewing

the facts in the light most favorable to Ms. Dixon, summary judgment was

appropriate because Ms. Dixon failed to show that Defendants had a duty to

intervene and a claim of negligence requires a duty.

                          II. STANDARD OF REVIEW

      “This Court reviews de novo summary judgment rulings and draws all

inferences and reviews all evidence in the light most favorable to the non-moving

party.” Craig v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011) (quoting Moton

v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)).

                                 III. DISCUSSION

      Prior to 1972, the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. §§ 901–950, held shipowners strictly liable for injuries to

longshoremen that were the result of a ship’s unseaworthiness as proven by the


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existence of an “unsafe, injury-causing condition on the vessel.” See Scindia Steam

Nav. Co. v. De Los Santos, 451 U.S. 156, 164–165 (1981). In 1972 Congress

“radically altered this scheme by, among other things, adding a statutory cause of

action for negligence against the shipowner.” Miller v. Navalmar (UK) Ltd., No.

16-11967, 2017 WL 1359831, *2 (11th Cir. Apr. 13, 2017).

      In Scindia, the Supreme Court addressed the crew’s duty to intervene when a

longshoreman was injured as a result of a winch on the ship breaking during cargo

unloading. Scindia, 451 U.S. at 175. The Supreme Court stated “Congress intended

to make the vessel answerable for its own negligence and to terminate its

automatic, faultless responsibility for conditions caused by the negligence or other

defaults of the stevedore.” Id. at 168. There is no continuing duty for the shipowner

“to take reasonable steps to discover and correct dangerous conditions that develop

during the loading or unloading process.” Id. at 169. “[A]bsent contract provision,

positive law, or custom to the contrary[,] . . . the shipowner has no general duty by

way of supervision or inspection to exercise reasonable care to discover dangerous

conditions that develop within the confines of the cargo operations that are

assigned to the stevedore.” Id. at 172. The Supreme Court thus established three

distinct duties, the “Scindia duties,” a shipowner does owe longshoremen during

cargo operations. Miller, 2017 WL 1359831, *2. First, under the turnover duty, “a

vessel must ‘exercise ordinary care under the circumstances’ to turn over the ship


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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 v. Birkdale Shipping Co., 512 U.S. 92, 98

(1994) (quoting Fed. Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S.

404, 416–417, n.18 (1969)). Second, under the active control duty, a shipowner is

to exercise reasonable care to prevent injuries to longshoremen in areas that are

under the shipowner’s active control. Id. Third, under the duty to intervene, a

shipowner must intervene if “during stevedoring operations, the shipowner

becomes aware that the ship or its gear poses a danger to the longshoremen and

that the stevedore is failing, unreasonably, to protect the longshoreman.” Clark v.

Bothelho Shipping Corp., 784 F.2d 1563, 1565 (11th Cir. 1986).

      The issue before the Court now is whether Defendants breached this third

Scindia duty—the duty to intervene. The dangerous conditions alleged here fit into

two categories: (1) negligent actions of the stevedore and (2) allegedly unsafe

equipment provided by Defendants. Neither set of allegations triggered a duty to

intervene. Ms. Dixon also unsuccessfully argues that it was Defendants’ custom to

monitor the stevedoring operations, triggering the duty to intervene. We address

each argument in turn.


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A. The Stevedore’s Failure to Use a Header, a Lander, or Radios Does Not Support
    a Finding That Defendants Had a Duty to Intervene in the Stevedore’s Cargo
                               Unloading Operations.

      Ms. Dixon does not dispute that Logistec was negligent but argues that

Defendants were also negligent by failing to intervene in the stevedore’s unsafe

cargo unloading operations. Specifically, Ms. Dixon argues that the cargo

operations posed an unreasonable risk of harm to the longshoreman and the

Defendants owed a duty to intervene because the longshoremen were unloading

cargo: (1) without a header, who is supposed to look over the hatch to see that

there are no longshoreman in the landing area before the tray is lowered; (2)

without a lander, who clears the deck and communicates with the crane operator

while the tray is being lowered into the hold; and (3) without any radio

communication between the longshoremen and the crane operator.

      Ms. Dixon argues that although these conditions are not defects in the vessel

or its gears, Defendants still owed a duty to intervene. Ms. Dixon primarily relies

upon this Court’s opinion in Clark v. Bothelho Shipping Corp., in support of the

argument that the vessel’s scope of liability extends beyond a physical defect in the

ship or its gear. 784 F.2d 1563. In Clark, the appellant was a longshoreman

employed by a stevedoring company who alleged injury from slipping in a puddle

of grease that was on the deck of the ship where he was unloading cargo. Id. at

1563. The stevedoring superintendent testified that he inspected the ship’s deck


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before stevedoring operations began and that he did not see a grease spot. Id. at

1566. There was no evidence whatsoever indicating that the grease spot existed

prior to stevedoring operations. Id. The district court granted a directed verdict in

favor of the shipowner because “[u]nder Scindia, once stevedoring operations

began, [the shipowner] had no duty to discover the dangerous condition.” Id. This

Court affirmed the decision.

      Despite this Court’s affirmance in Clark, Ms. Dixon argues that Clark stands

for the proposition that if a shipowner knows of a dangerous condition, as opposed

to a defect in the ship or its gear, it may be held liable for injuries that result from

that dangerous condition. In dicta, the Court stated that “[t]he only way [the

shipowner] may be held liable for [plaintiff’s] injuries is if [the shipowner] knew

of the dangerous condition yet failed to protect [plaintiff] from it.” Clark, 784 F.2d

at 1566. Ms. Dixon suggests that this statement is the Court’s recognition that a

shipowner may be held liable for an injury that is not the result of a defect in the

ship or its gear. Further, Ms. Dixon argues that here, unlike in Clark, the vessel’s

crew knew of the dangerous manner in which the longshoremen were operating

and may be held liable for Dixon’s death.

      First, Ms. Dixon relies upon dicta. The holding in Clark is limited to those

facts: a longshoreman was injured as a result of a transitory condition that appeared

on the ship’s deck after stevedoring operations began. Second, the puddle of grease


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was a dangerous condition—not a dangerous activity as alleged here. A dangerous

condition on a ship’s deck is arguably much more within the providence of a

shipowner than a dangerous activity taking place aboard a ship.

      Even if the scope of liability extends to dangerous activities, there is no

evidence that the Wild Lotus’s crew was aware of the dangerous manner in which

the stevedoring operations took place. The presence of a header, the presence of a

lander, and the use of radios are all conditions that could have remedied the

perilous effects of the crane operator’s limited visibility. It is undeniable that the

absence of these factors, in combination, contributed to Mr. Dixon’s death. It is not

evident however that the omission of any one is “obviously improvident.”

Critically, it is not evident that any crew member was aware of the existence of all

three of these problems. The captain was not on the deck at the time of Dixon’s

accident, so despite his testimony that he knew of the lack of flagmen and a

warning system, there is no evidence that he knew of the crane operator’s limited

visibility into hold #2 at the time of the accident. The crew members that were on

the deck at the time of the accident were not near hold #2, nor is there evidence

that they were aware of the crane operator’s limited visibility. “[T]he mere

presence of a vessel’s crew on the ship is insufficient to prove even constructive

knowledge—let alone actual knowledge—of a hazard.” Green v. United States,

700 F. Supp. 2d 1280, 1304 (M.D. Fla. 2010) (citing Stockstill v. Gypsum Transp.,


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607 F.2d 1112, 1117 (5th Cir. 1979)). The record does not support a finding that

any crew member had actual or constructive knowledge of the crane operator’s

limited visibility into the hatch.

      Even if Defendants had actual knowledge of the dangerous condition

resulting from the stevedore’s negligence, Ms. Dixon has not shown that

Defendants knew of Logistec’s failure to remedy the problem. As noted above,

neither Logistec nor any of its longshoremen complained to Defendants about

unsafe conditions before or during cargo unloading.

      Recently this Court affirmed summary judgment in favor of a shipowner and

charterer where an injured longshoreman alleged breach of the duty to intervene, as

well as breach of active control duty. Miller, 2017 WL 1359831. The plaintiff

alleged that the defendants must have had actual knowledge of the dangerous

condition—gaps in flooring that were the result of the method of cargo loading—

as well as actual knowledge that the stevedore failed to remedy the dangerous

condition. Id. at *4. The Court found that “even if we assume that the Defendants

had actual knowledge of the dangerous condition . . . [plaintiff] has made no

showing that they had actual knowledge of [the stevedore’s] failure to remedy the

problem.” Id. at *5. The plaintiff did not allege that the stevedore or any of its

employees ever complained to the shipowner regarding unsafe conditions during

loading. Id. Finally, nothing in the record indicated that the vessel’s personnel


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“oversaw the loading operation, inspected the cargo hold, or otherwise acquired

actual knowledge of the stevedore’s exercise of ‘obviously improvident’ judgment

in failing to deal with the safety hazards.” Id. The Court held that the defendants

were entitled to rely on the stevedore to perform his task properly without

supervision. Id. Here, as in Miller, Ms. Dixon points to no evidence that the

vessel’s crew oversaw the unloading operation, inspected the cargo hold, or had

actual knowledge of Logistec’s failure to remedy the safety hazards posed by the

crane operator’s limited visibility.

      Ms. Dixon argues that Defendants had a duty to intervene because they

should have been aware that the longshoremen would confront rather than avoid

the hazard. In support, Ms. Dixon cites to Hill v. Reederei F. Laeisz G.M.B.H.,

Rostock, 435 F.3d 404, 410 (3d Cir. 2006). In Hill, a jury returned a verdict in

favor of the defendants, a shipowner and a ship operator. Id. at 407. The plaintiff

was severely injured when, while loosening steel rods during cargo unloading, a

rod sprung off its housing, flew through the air, and hit the plaintiff in the head. Id.

The plaintiff appealed the judgment on various grounds, including that the jury

instructions did not properly set forth the duties a shipowner owes longshoremen.

Id. at 408. The Court of Appeals for the Third Circuit vacated the district court’s

judgment and remanded. Id. at 407. The Court held that the district court’s

instruction regarding the turnover duty when there is an open and obvious hazard


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did not properly convey the rule set forth in Kirsch v. Plovidba, 971 F.2d 1026 (3d

Cir. 1992). Hill, 435 F.3d at 409. Ms. Dixon’s reliance is misplaced—not only

does the decision lack precedential effect in this circuit, but the Third Circuit

addressed longshoremen’s confrontation rather than avoidance of hazards in the

context of the turnover duty, not the duty to intervene. Id. at 408–409. Appellant

cites no applicable case law from either this Court or the Supreme Court of the

United States.

      Defendants were entitled to rely upon Logistec to unload the cargo properly

without supervision.

 B. The Lack of a Warning System on the Cranes Does Not Trigger the Vessel’s
                               Duty to Intervene.

      Ms. Dixon also argues that the accident could have been prevented had the

vessel been equipped with an audio or visual warning system on the cranes.

Despite Ms. Dixon’s assertion that the accident was the result of “dangerous

circumstances that did not arise out of a defect in the ship or its gear,” this cannot

be construed as anything but a claim of a defect in the ship or its gears. This would

raise the first Scindia duty—the turnover duty—for failure to turn over a vessel in

safe condition. But Ms. Dixon does not and cannot allege a breach of the turnover

duty because Logistec certified that the vessel and its equipment were in good

condition when Logistec began its operations. Presumably, this is why Ms. Dixon

attempts to cloak this argument as one pertaining to the duty to intervene. But even
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if Ms. Dixon alleged a breach of the turnover duty, the evidence shows that the

crane was turned over in a reasonably safe condition. Logistec’s security officer

testified that he had seen warning devices on some ships but that it was not

commonplace for this type of vessel to have alarms. He also testified that he did

not think that such alarms would make the loading and unloading process safer for

the stevedores. Thus, a claim that Defendants breached the turnover duty would

also fail.

       The lack of an audio or visual warning system on the cranes, a condition that

existed prior to turning over the vessel, is not a dangerous condition that triggered

the duty to intervene. There is no evidence that Defendants were notified that the

absence of warning devices was a problem or that the longshoremen failed to

remedy the problem. This argument also fails.

C. The Evidence Does Not Support a Finding That it Was Defendants’ Custom to
                          Monitor Cargo Operations.

       The evidence does not support a finding that Defendants customarily

monitored cargo operations such that they would have discovered the dangerous

conditions alleged. In Scindia, the Supreme Court said “absent contract provision,

positive law, or custom to the contrary[,] . . . the shipowner has no general duty by

way of supervision or inspection to exercise reasonable care to discover dangerous

conditions that develop within the confines of the cargo operations that are

assigned to the stevedore.” Scindia, 451 U.S. at 172. Here, Ms. Dixon fails to
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identify any facts suggesting that it was customary for the vessel’s crew to discover

dangerous conditions.

      The captain’s testimony, the existence of a pre-cargo operations checklist

and a cargo planning checklist, and the presence of crew members on deck, are not

evidence that the vessel customarily monitored cargo operations in order to

discover conditions dangerous to longshoremen. When asked if the captain

monitors third parties on the vessel, Captain Dovbna testified:

      If while cargo operations [are ongoing] we detect a notice that action of any
      third party present on board might cause potential damage to [the] vessel,
      might cause violation of intactness and quality of cargo, might cause any
      unsafe circumstances and conditions for crew members and if that also
      would not comply with the standard safety measures being taken then we
      must inform to the manager of that third party.

In any light, this testimony is not evidence that the crew customarily undertook

inspection of cargo unloading to detect dangerous conditions. Similarly, the mere

presence of two crew members on the main deck during cargo operations does not

lead to the conclusion that Defendants took on the task of discovering dangerous

conditions that were the result of the stevedore’s negligence. Further, even if the

crew members were positioned on the deck for such a purpose, it is not alleged that

crew members were stationed within the holds generally or within hold #2

specifically, where the accident occurred. The testimony regarding the pre-cargo

operations checklist and cargo planning checklist also pertains to Defendants’

actions upon notification of a dangerous practice—not to an affirmative obligation
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to discover a dangerous practice or a custom of doing so. At best, the evidence

suggests that it was customary for the vessel’s crew to act in a prescribed manner

upon notification of a dangerous condition.

      There is no dispute that negligence led to Mr. Dixon’s tragic death. But the

Defendants were not the negligent parties. Defendants were entitled to rely on the

stevedore to “perform his task properly without supervision.” Scindia, 451 U.S. at

170. The district court did not err in granting summary judgment in favor of the

vessel.

                               IV. CONCLUSION

      We AFFIRM the district court’s grant of summary judgment.




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