                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2009

Mullen v. Alicante
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3083




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Recommended Citation
"Mullen v. Alicante" (2009). 2009 Decisions. Paper 1783.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1783


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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 07-3083


                  STEPHEN MULLEN; DONNA MULLEN, H/W,
                                             Appellants

                                         v.

                  ALICANTE CARRIER SHIPPING CORP.;
            DEL MONTE FRESH PRODUCE INTERNATIONAL, INC.;
                 DEL MONTE FRESH PRODUCE N.A., INC.;
           COMERCIALIZADORA INTERNATIONAL CONSERBA S.A.


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                        D.C. Civil Action No. 02-cv-06722
                         (Honorable Bruce W. Kauffman)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               November 20, 2008

           Before: SCIRICA, Chief Judge, and RENDELL, Circuit Judges,
                    and O’CONNOR, Retired Associate Justice *

                               (Filed: March 4, 2009)


                            OPINION OF THE COURT




  *
   The Honorable Sandra Day O’Connor, Retired Associate Justice of the Supreme
Court of the United States, sitting by designation.
SCIRICA, Chief Judge.

       Stephen Mullen appeals the order denying his motion for a new trial. Mullen

challenges one of the District Court’s jury instructions and the sufficiency of evidence

justifying it. For the following reasons, we will affirm.1

                                             I.

       Mullen is a career longshoreman who suffered injury while disengaging cargo

slings from pallets of newly arrived shipments of bananas. He filed a personal injury

complaint against Del Monte Fresh Produce N.A. (Del Monte N.A.) and others under

general maritime law and the Longshoremen’s and Harbor Workers’ Compensation Act,

33 U.S.C. § 905(b).2 Del Monte N.A. was the operator of the terminal where the cargo

was being unloaded and, Mullen contends, in control of the defective sling which caused

his injury. The jury returned a verdict absolving Del Monte N.A. of any liability for

Mullen’s injury. Mullen timely appealed.

                                             II.



   1
     The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1332. We have
jurisdiction under 28 U.S.C. §1291 which provides appellate jurisdiction over all final
decisions of district courts.
   2
     Initially, Mullen filed a complaint against three defendants: Alicante Carrier
Shipping Corp., Del Monte Fresh Produce International, Inc. and Del Monte N.A. All
three defendants filed Motions for Summary Judgment. On August 1, 2004, the District
Court granted the motions for Alicante Carrier and Del Monte International. On
September 27, 2004, the District Court denied Del Monte N.A.’s motion and the case
proceeded to a jury. Mullen initially appealed all of these orders, but has since settled
with Alicante and Del Monte Fresh Produce.

                                              2
          Two negligence principles are at issue in this matter: obviousness and contributory

negligence. Obviousness is a defense in negligence contexts including general maritime

law. Howlett v. Birkdale Shipping Co., 512 U.S. 92, 99 (1994) (identifying the

obviousness of a hazard as a bar to recovery). Comparative negligence is the negligence

regime applied in the maritime context. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424,

431 (1939) (“Any rule of assumption of risk in admiralty, whatever its scope, must be

applied in conjunction with the established admiralty doctrine of comparative negligence

and in harmony with it.”).

          Mullen contends he injured his right shoulder when the sling he was removing

became stuck in the pallet (allegedly due to a knot) and he forcefully yanked the sling to

dislodge it. At trial, multiple witnesses, including Mullen, testified that slings got stuck

on a regular basis and that the best way to deal with stuck slings was to use a forklift to

free the slings, rather than to forcefully yank them. Trial testimony demonstrated that

longshoremen, including Mullen, re-circulated knotted slings instead of disposing of

them. Importantly, the jury heard testimony that Del Monte N.A. instructed Mullen and

his fellow longshoremen to dispose of knotted slings. There was unchallenged evidence

that new slings were always available. and under the longshoremen’s control. The jury,

thus, heard testimony that the longshoremen knew of the danger posed by damaged

slings.




                                               3
       General maritime law adopts land-based tort principles of which obviousness is a

defense. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 168 (identifying

legislative intent that maritime liability is to be judged by land-based standards). While it

is true, as Mullen contends, the Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. § 905(b), applies an active operations duty, this Act is limited only to

vessels and therefore is not applicable here. Davis v. Portline Transportes Maritime

Internacional, 16 F.3d 532, 540 (3d Cir. 1994) (specifically limiting § 905(b) claims to

situations where the vessel controls the area and the instrumentality of the injury).

Mullen cites no cases where a § 905(b) active operations duty has been applied to a

terminal operator. The District Court re-stated well-settled law when it instructed the

jury that, “The defendant is not required to protect the plaintiff from dangers which the

defendant could reasonably believe would be obvious to the plaintiff.”

       Contributory negligence was injected into the case by plaintiff’s own jury charge

submission. When the District Court asked Mullen’s counsel during the charging

conference to clarify the difference between comparative and contributory negligence,

plaintiff’s counsel said the difference was “academic” and consented to the court’s use of

the word “contributory” negligence in the judge’s jury charge. Thus, to the extent there is

confusion in the nomenclature in this matter, it was created by Mullen. More importantly,

the District Court in fact instructed the jury correctly on obviousness and comparative

negligence, the liability scheme that applied in this case.



                                              4
       Mullen also contends the evidence cited at trial did not justify the obviousness

charge. But even Mullen testified that he had encountered stuck slings, that he regularly

re-circulated knotted slings himself and could have been injured by one of his own re-

circulated slings in this case, and that forklifts were available, ready to free the sling

mechanically. There was abundant evidence from which a jury could find this was a

known and obvious condition to the plaintiff. Accordingly, the District Court’s obvious

hazard instruction was proper.

       We will affirm the judgment.




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