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                                                                      [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-10533
                        ________________________

                     D.C. Docket No. 1:18-cv-21586-UU


ANTHONY TROUTMAN,

                                                             Plaintiff-Appellant,

                                   versus

SEABOARD ATLANTIC LTD.,
a foreign corporation,
SEABOARD MARINE, LTD., INC.,
a foreign corporation, and
M/V SEABOARD ATLANTIC,
One 456’ freight ship (IMO #9395563; Call Sign D5DC5),
in rem,

                                                         Defendants-Appellees.
                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                               (May 13, 2020)
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Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.

MARTIN, Circuit Judge:

      Anthony Troutman was injured when he fell from a walkway on the upper

deck of the ship where he was working as a longshoreman. He sued the ship and

its owners (collectively, “Seaboard”), seeking to hold them liable under the

Longshore and Harbor Workers’ Compensation Act (the “LHWCA”), 33 U.S.C.

§ 901 et seq. Seaboard moved for summary judgment, arguing that the LHWCA

does not permit Mr. Troutman’s negligence claim. The District Court granted

Seaboard’s motion. It held that Mr. Troutman’s suit was barred because, among

other reasons, the hazardous condition that led to his injury was open and obvious.

      With the benefit of oral argument, we affirm.

                                         I.

A. FACTUAL BACKGROUND
      On April 22, 2016, Mr. Troutman was working for a stevedoring company

named Eller ITO to secure containers being loaded onto the M/V Seaboard

Atlantic (the “Vessel”). The Vessel is owned and chartered by Defendants

Seaboard Atlantic Ltd. and Seaboard Marine Ltd. Prior to the incident, Mr.

Troutman had been employed as a longshoreman for over 19 years.

      This case centers around the cargo-loading process for two of the Vessel’s

bays, Bay 28 and Bay 32. Bay 28 is raised above Bay 32. An elevated walkway



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runs along the bottom of Bay 28, above Bay 32. Usually, cargo is loaded into the

lower Bay 32 before Bay 28. When this happens, the cargo fills Bay 32 and the

tops of the containers are higher than the walkway above. This alleviates the risk

of falling off the walkway, since the person on the walkway is even with the tops

of the cargo in Bay 32. However, when Bay 32 is empty, there is a six-to-eight-

foot drop from the walkway to the deck.

      Before April 22, 2016, Mr. Troutman had worked on the Vessel over 20

times. Sometimes when Mr. Troutman worked on the Vessel, the elevated

walkway was protected by a rope fence. Other times, Mr. Troutman and other

longshoremen had to ask Seaboard to put up the rope fence. When he worked on

the Vessel, including on the day in question, Mr. Troutman worked as a lasher. A

lasher works to secure, and to release securing mechanisms for, cargo being loaded

onto the ship.

      On the day of the incident, the superintendent of Eller ITO, Gilberto Perez,

decided to load Bay 28 first because of a delay in readying the containers that were

to be loaded into Bay 32. There was no rope fence protecting the walkway that

day. Mr. Troutman and Mr. Perez both knew that the walkway was unsafe without

the rope fence. Mr. Troutman also knew that he was not obligated to put himself

in danger to perform his job, and that if a dangerous condition was present he was

not required to work through it. Mr. Troutman did not ask Seaboard to put up the



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rope fence that day. No party disputes that the walkway, in its exposed state, was

an open and obvious hazard.

      While Mr. Perez did direct that Bay 28 be loaded first, he did not instruct

Mr. Troutman to start lashing the cargo on Bay 28. Had Mr. Troutman asked, Mr.

Perez would have told him not to start lashing the cargo on Bay 28 until Bay 32

was loaded. Mr. Perez also testified that Eller ITO would have provided Mr.

Troutman with safety equipment to prevent him from falling if he asked for it.

      Nevertheless, Mr. Troutman began to lash the cargo loaded into Bay 28

before cargo had been loaded into Bay 32. While walking on the elevated

walkway, he tripped on loose lashing materials left there by another longshoreman.

He lost his balance and fell to the deck below. He was seriously injured and had to

undergo surgery.

B. PROCEDURAL HISTORY
      Mr. Troutman sued Seaboard, alleging it was negligent in breach of (1) the

duty to turn over a safe vessel to the stevedore company; (2) the duty to intervene;

and (3) the duty to exercise ordinary care to keep the vessel in reasonably safe

condition. Seaboard answered the complaint and the parties proceeded to

discovery. Following discovery, Seaboard moved for summary judgment.

      The District Court granted summary judgment for Seaboard on all of Mr.

Troutman’s claims. Relevant to this appeal, the court held that Mr. Troutman



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could not succeed on his first claim—breach of what is known as the LHWCA’s

“turnover duty”—because the walkway was an open and obvious hazard which he

could have avoided. Mr. Troutman timely appealed. His appeal challenges the

grant of summary judgment on this basis alone.

                                           II.

      “We review de novo the district court’s grant of summary judgment,

considering all of the evidence in the light most favorable to the nonmoving party.”

Nesbitt v. Candler County, 945 F.3d 1355, 1357 (11th Cir. 2020). “Summary

judgment is proper ‘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.

(quoting Fed. R. Civ. P. 56(a)).

                                          III.

      This appeal requires us to address a question of first impression in this

circuit: when, if ever, a negligence claim for breach of the shipowner’s duty to turn

over a vessel in safe condition properly lies where the plaintiff was injured by an

open and obvious hazard. We conclude that, generally, a shipowner does not

breach this duty when the injurious hazard was open and obvious and could have

been avoided by a reasonably competent stevedore. Although this rule is not

absolute, Mr. Troutman cannot show any exception to the rule that would deprive




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Seaboard of an open-and-obvious defense here. We therefore affirm the District

Court’s order granting summary judgment in favor of Seaboard.

                                          A.

      The LHWCA “establishes a comprehensive federal workers’ compensation

program that provides longshoremen and their families with medical, disability,

and survivor benefits for work-related injuries and death.” Howlett v. Birkdale

Shipping Co., S.A., 512 U.S. 92, 96, 114 S. Ct. 2057, 2062 (1994). The statute

was amended in 1972 to permit a longshoreman to “seek damages in a third-party

negligence action against the owner of the vessel on which he was injured.” Id.;

see Longshoremen’s and Harbor Workers’ Compensation Act Amendments of

1972, Pub. L. No. 92-576, § 18(a), 86 Stat. 1251, 1263 (codified as amended at 33

U.S.C. § 905(b)). It is this section of the LHWCA that governs Mr. Troutman’s

claim for relief.

      Under § 905(b), a shipowner owes the longshoreman three general duties:

“(1) a turnover duty, (2) a duty to exercise reasonable care in the areas of the ship

under the active control of the vessel, and (3) a duty to intervene.” Kirksey v.

Tonghai Mar., 535 F.3d 388, 391 (5th Cir. 2008) (citing, inter alia, Howlett, 512

U.S. at 98, 114 S. Ct. at 2063); see Scindia Steam Nav. Co. v. De Los Santos, 451

U.S. 156, 167–68, 101 S. Ct. 1614, 1622–23 (1981). The 1972 amendments to the

LHWCA also abrogated the shipowner’s common-law defenses of assumption of



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the risk and contributory negligence. Kirsch v. Plovidba, 971 F.2d 1026, 1031 n.6

(3d Cir. 1992) (citing Scindia, 451 U.S. at 165 n.13, 101 S. Ct. at 1621 n.13).

       A shipowner’s turnover duty consists of two corresponding duties. First,

under the “duty of safe condition,” the shipowner must exercise “ordinary care

under the circumstances to have the ship and its equipment in such condition that

an expert and experienced stevedore will be able by the exercise of reasonable care

to carry on its cargo operations with reasonable safety to persons and property.” 1

Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204, 1207 (9th Cir. 1989)

(quoting Scindia, 451 U.S. at 167, 101 S. Ct. at 1622); see Roach v. M/V Aqua

Grace, 857 F.2d 1575, 1581 (11th Cir. 1988) (“[A] shipowner must turn over the

ship and its equipment in a condition that permits a stevedore to do its work with

reasonable safety . . . .”). Second, the shipowner has a “duty to warn” the

longshoreman “of any hidden dangers of which [the shipowner] knows or should

know.” Roach, 857 F.2d at 1581; see Howlett, 512 U.S. at 98–99, 114 S. Ct. at

2063. The duty to warn is a “corollary” to the duty of safe condition. Howlett,

512 U.S. at 98, 114 S. Ct. at 2063.




       1
         Although the turnover duty of safe condition is framed in terms of danger to the
stevedore—the longshoreman’s employer—“the focus of the factual inquiry is frequently
directed at [whether] experienced longshore workers” could complete their work with reasonable
safety. See Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 n.4 (9th Cir. 1994)


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                                          B.

      The District Court granted summary judgment for Seaboard on both aspects

of the turnover duty. The court held that Seaboard did not breach the duty of safe

condition because “an expert and experienced stevedore could have loaded the

Vessel with ‘reasonable safety’ by loading the lower deck first or . . . by staying off

the walkway until after the lower deck was loaded.” Troutman v. Seaboard Atl.

Ltd., No. 1:18-cv-21586-UU, 2019 WL 656259, at *4 (S.D. Fla. Jan. 8, 2019). The

court also held that Seaboard did not breach the duty to warn because “[t]he

undisputed facts show that the hazard posed by the exposed walkway was open and

obvious to the stevedore.” Id. On appeal, Mr. Troutman argues the District Court

erred by granting Seaboard an open-and-obvious defense to its turnover duty of

safe condition.

      Under the LHWCA, the stevedoring company and the longshoreman have

primary responsibility for avoiding hazards they should have anticipated. The

LHWCA assumes the ability of “an expert and experienced stevedoring contractor,

mindful of the dangers he should reasonably expect to encounter, . . . to carry on

cargo operations with reasonable safety to persons and property.” Howlett, 512

U.S. at 98, 114 S. Ct. at 2063 (quotation marks omitted). The shipowner does not

have a duty “to turn over an absolutely safe vessel; the shipowner need only

exercise reasonable care.” 1 Thomas J. Schoenbaum, Admiralty & Maritime Law



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§ 7:14, at 708 (6th ed. 2018). Where a hazard exists, the question of negligence

boils down to whether “an expert and experienced stevedore”—rather than an

“unskilled person[]”—could safely avoid the hazard. Bjaranson, 873 F.2d at 1208.

Generally, shipowners have “a rightful expectation” that a stevedoring company

will “perform [its] task properly without supervision by the ship” and that the

stevedore will “avoid exposing the longshoremen to unreasonable hazards.”

Scindia, 451 U.S. at 170, 101 S. Ct. at 1623–24; see id. at 180 (Powell, J.,

concurring) (stating that, under the majority opinion in Scindia, the “primary

burden . . . for avoiding injuries caused by obvious hazards” is placed “on the

stevedore”).

       We read this precedent to establish a general rule that the open-and-obvious

defense applies to breach of the turnover duty of safe condition. This squares with

the Supreme Court’s pronouncements in Scindia and Howlett. A longshoreman

can only be said to have carried out his work with “reasonable competence” if he

“identif[ied] and cope[d] with defects” of which he was aware.2 Howlett, 512 U.S.

at 104, 114 S. Ct. at 2066; Scindia, 451 U.S. at 172, 101 S. Ct. at 1624. Although



       2
         To the extent that our pre-Howlett case law—in particular, Lemon v. Bank Lines, Ltd.,
656 F.2d 110 (5th Cir. Sept. 1981)—suggests that a shipowner breaches the duty of safe
condition by turning over a ship with an open and obvious hazard, we agree with the current-day
Fifth Circuit that these cases have been “undermine[d]” by Howlett. See Kirksey, 535 F.3d at
395–96; see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981).


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the Supreme Court’s articulation of what it means to act as a reasonable

longshoreman came in the context of the duty to warn, see Howlett, 512 U.S. at

99–100, 101 S. Ct. at 2064, this reasoning applies with equal force to the

shipowner’s defense “against a claim based on the general failure to provide a safe

ship based on defects in the stow.” See Kirksey, 535 F.3d at 393–94; see also

Howlett, 512 U.S. at 102, 114 S. Ct. at 2065 (applying principles “taken from

[Scindia’s] examination of the . . . duty to intervene” to analysis of the turnover

duty). In contrast, Mr. Troutman’s preferred rule—that a shipowner violates the

duty of safe condition by turning over a ship with any hazard, no matter how

obvious or avoidable—would violate several principles established in this area of

law. For example, shipowners could no longer rely on the expertise and

experience of the stevedoring company or longshoremen to deal with hazards that

may arise. In addition, Mr. Troutman’s rule would effectively require shipowners

to turn over an absolutely safe vessel, a duty which the LHWCA does not impose.

We thus conclude that the open and obvious nature of the exposed walkway is

relevant to whether Seaboard violated its turnover duty of safe condition.

      Mr. Troutman says the defense does not apply in this case because the

walkway was inherently unsafe, comparing it to a hypothetical situation in which

Seaboard allowed tigers to prowl the Vessel’s deck. See Oral Argument Recording

at 5:45–6:03. Mr. Troutman’s analogy misses the mark because it would hardly be



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reasonable for Seaboard to expect him to carry out his duties with safety if

dangerous animals were roaming the ship. Here, by contrast, it is undisputed that

Mr. Troutman could have waited to use the walkway until after Bay 32 was loaded

with cargo, thereby avoiding the hazard. As a result, the general rule applies in

this case.

      Finally, Mr. Troutman says that affirming the District Court in his case

cannot be squared with Congress’s abrogation of the shipowner’s defenses of

assumption of the risk and contributory negligence. This argument misunderstands

whose negligence is at issue in this appeal. We do not hold that Mr. Troutman is

barred from recovery because he acted negligently by crossing the walkway.

Rather, we hold that, based on the undisputed facts of this case, Seaboard did not

act negligently. As we have explained, Seaboard was entitled to rely on the

“expertise in cargo operations” of Mr. Troutman and his employer. See Kirsch,

971 F.2d at 1031 n.6. Because “an ‘expert and experienced stevedore’ acting with

‘reasonable care’” would have been able to avoid the walkway, Seaboard was not

negligent in allowing the walkway to exist in its exposed state. See Morris v.

Compagnie Mar. Des Chargeurs Reunis, S.A., 832 F.2d 67, 71 (5th Cir. 1987)

(quoting Scindia, 451 U.S. at 168, 101 S. Ct. at 1622).




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                                        IV.

      The exposed walkway was an open and obvious hazard that Mr. Troutman

could have avoided with the exercise of reasonable care. For this reason, the

District Court properly dismissed Mr. Troutman’s claim for negligence under the

LHWCA.

      AFFIRMED.




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