                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WILLIAM LINCOLN, JR.,                   
                Plaintiff-Appellant,
                 v.
REKSTEN MANAGEMENT,
              Defendant-Appellee,
                and                               No. 99-1681

NEW ORLEANS COLD STORAGE; GREEN
TUNDRA, her engines, appurtenances,
cargo, apparel, electronics, etc., in
rem,
                          Defendants.
                                        
           Appeal from the United States District Court
         for the District of South Carolina, at Charleston.
               Patrick Michael Duffy, District Judge.
                          (CA-98-490-2-23)

                        Argued: March 3, 2000

                      Decided: December 29, 2003

        Before WIDENER and KING, Circuit Judges, and
   James H. MICHAEL, Jr., Senior United States District Judge
    for the Western District of Virginia, sitting by designation.



Affirmed in part, vacated in part, and remanded with instructions by
published opinion. Judge Widener wrote the opinion, in which Judge
King and Senior Judge Michael joined.
2                  LINCOLN v. REKSTEN MANAGEMENT
                             COUNSEL

ARGUED: Edward Paul Gibson, RIESEN LAW FIRM, L.L.P.,
North Charleston, South Carolina, for Appellant. Gordon D. Schreck,
BUIST, MOORE, SMYTHE & MCGEE, P.A., Charleston, South
Carolina, for Appellee. ON BRIEF: Allison A. Stover, RIESEN
LAW FIRM, L.L.P., North Charleston, South Carolina, for Appellant.
Julius H. Hines, BUIST, MOORE, SMYTHE & MCGEE, P.A.,
Charleston, South Carolina, for Appellee.


                              OPINION

WIDENER, Circuit Judge:

   Plaintiff, William Lincoln, appeals the district court’s opinion and
order granting summary judgment to the defendant, Reksten Manage-
ment A.S. (Reksten). Lincoln v. Reksten Management, A.S., No. 2:98-
0490-23 (D.S.C. Apr. 14, 1999). Lincoln was injured while loading
Reksten’s ship, the M/V GREEN TUNDRA (the GREEN TUNDRA),
with frozen chicken, and he filed this negligence action against Reks-
ten under § 905(b) of the Longshore and Harbor Workers’ Compensa-
tion Act, 33 U.S.C. §§ 901-950. Lincoln claims the district court erred
because a genuine issue of material fact existed as to whether Reksten
breached its turnover duty to Lincoln and because Reksten owed Lin-
coln, as a third-party beneficiary to the charter party contract, a
heightened duty to supervise, inspect, and/or intervene in the steve-
dore’s activities. We affirm in part, vacate in part, and remand.

                                   I.

   At the time of his accident, Lincoln was employed by Stevens
Shipping and Terminal Company (Stevens) as a longshoreman. Ste-
vens is a stevedore and was hired to load the GREEN TUNDRA, a
refrigerator vessel owned by Reksten, with a load of frozen chicken
destined for Russia pursuant to a charter party agreement between
Reksten and Hudson Foods. The charter party agreement included
provisions that Reksten would provide a ship that had decks capable
of holding up to five tons and that was fit in every way for the loading
of frozen food packed in cartons.
                   LINCOLN v. REKSTEN MANAGEMENT                      3
   The GREEN TUNDRA has three cargo holds or decks, designated
A, B, and C from top to bottom. Longshoremen access these decks
through four cargo hatches, numbered one through four moving from
fore to aft on the ship. The stevedore is required to lower pallets full
of boxes of frozen chicken with a crane through the cargo hatches into
the cargo holds. Once the crane deposits the pallets in the cargo holds,
the stevedore uses forklifts to move the pallets of chicken boxes to
designated areas in the cargo hold. The longshoremen remove the
chicken boxes from the pallets and hand stack them on the ship’s
decks in their appropriate locations within the hold.

   At the time of his accident, Lincoln was working on deck B.1 The
floor of deck B consists of wooden deck boards bolted to supporting
steel I-beams. The deck boards in deck B are approximately ten
inches wide and two to three inches thick, and there is an approxi-
mately one and a half inch space between each of the boards that
allows refrigerated air to circulate between decks B and C. There is
no other barrier between decks B and C, so if a board broke on deck
B, an object, with no interruption, would fall straight to the floor of
deck C.

   The GREEN TUNDRA arrived in Charleston, South Carolina on
July 16, 1996 to receive the load of frozen chicken. Prior to the ship’s
arrival, the ship’s crew had pre-cooled the ship’s cargo holds to 20
degrees Fahrenheit, cleaned the holds, and inspected the holds to
ensure they were safe and ready for loading. Prior to the loading oper-
ations, Stevens’ stevedore superintendent conducted a pre-loading
inspection of the pre-cooled ship’s holds to ensure that they were safe
for the longshoremen to work in. Stevens commenced loading the fro-
zen chicken that same day. The evidence is in conflict as to whether
Lincoln’s accident or the condition of the ship which caused it was
reported to the vessel before Lincoln’s suit was filed.

  At approximately 4:30 p.m. on July 22, 1996, Lincoln was on deck
B when his right foot went through the deck boards. Lincoln’s right
foot and leg went through the boards, causing him to fall down so that
he was "resting on [his] tailbone," leaving his foot and leg dangling
  1
   The evidence is in conflict as to whether Lincoln was in hatch 2 or
4 at the time.
4                  LINCOLN v. REKSTEN MANAGEMENT
inside hold C. Lincoln’s fellow longshoremen working on deck B
helped Lincoln out of the hole after it appeared that he could not
extricate himself. Lincoln then climbed out of the cargo hold using
the ladder. On the dock, he spoke to Lawrence Mixson, the stevedore
in the dock office, who states that he reported the accident to the ves-
sel and told Lincoln to go to the hospital. As a result of this fall, Lin-
coln sustained injuries to his wrist, back, neck, and knee. Another
stevedore acting as the safety director for the operation, David
LeBlanc, filled out two accident reports documenting Lincoln’s fall,
one dated July 29, 1996 and another that is not dated.

  On March 11, 1998, Lincoln filed this action against Reksten under
33 U.S.C. § 905(b), which provides in relevant part:

        In the event of injury to a person covered under this chap-
     ter caused by the negligence of a vessel, then such person,
     or anyone otherwise entitled to recover damages by reason
     thereof, may bring an action against such vessel as a third
     party in accordance with the provisions of section 933 of
     this title, and the employer shall not be liable to the vessel
     for such damages directly or indirectly and any agreements
     or warranties to the contrary shall be void. . . . The liability
     of the vessel under this subsection shall not be based upon
     the warranty of seaworthiness or a breach thereof at the time
     the injury occurred. . . .

33 U.S.C. § 905(b). After completing some of the discovery in the
case, Reksten moved for summary judgment arguing that it had not
breached any duties owed Lincoln. The district court granted the
motion after finding that Lincoln did not provide sufficient evidence
that Reksten breached its turnover duty to Lincoln and that Reksten
did not owe Lincoln a heightened duty to supervise and to inspect the
hold under either OSHA regulations or its charter party contract with
Hudson Foods. Lincoln appeals, claiming the district court improperly
granted summary judgment when material issues of fact exist as to
whether Reksten breached its turnover duty to Lincoln and claiming
the district court erred as a matter of law in concluding that Lincoln
was not a third-party beneficiary of a heightened duty of care con-
tained in the charter party contract.
                   LINCOLN v. REKSTEN MANAGEMENT                      5
   We review a district court’s decision granting summary judgment
de novo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A party
is entitled to summary judgment only if, after viewing the facts in the
light most favorable to the non-moving party, it is entitled to a judg-
ment as a matter of law. Shaw, 13 F.3d at 798.

                                  II.

   While Congress created a cause of action against the shipowner in
negligence in § 905(b), it left to the courts the task of defining the
duties the shipowner owed to the longshoreman. Scindia Steam Navi-
gation Co. v. De Los Santos, 451 U.S. 156, 165-66 (1981). In Scindia
Steam, the Court defined three general duties shipowners owe long-
shoremen under § 905(b): (1) the turnover duty, which relates to the
condition of the ship upon the commencement of stevedoring opera-
tions; (2) once stevedoring operations have begun, the duty to exer-
cise reasonable care in order to prevent injuries to longshoremen in
areas where the shipowner remains in "active control of the vessel";
and (3) the duty to intervene concerns the vessel’s obligations with
respect to cargo operations in areas under the principal control of the
independent stevedore. Howlett v. Birkdale Shipping Co., 512 U.S.
92, 98 (1994) (construing Scindia Steam, 451 U.S. at 167-68). In this
appeal, we first consider Lincoln’s argument that Reksten breached
the first of these duties, the duty to exercise reasonable care when
turning the ship over for stevedoring activities.2

   The turnover duty has two components. The first involves the ship-
owner’s duty with respect to the ship’s gear, equipment, tools, and
work space that the stevedore will utilize during its operations. The
shipowner must "at least [exercise] ordinary care under the circum-
stances to have the ship and its equipment in such condition that an
expert and experienced stevedore will be able by the exercise of rea-
sonable care to carry on its cargo operations with reasonable safety
to persons and property." Scindia Steam, 451 U.S. at 166-67.
  2
    Lincoln argues that Reksten also breached a duty based on provisions
in the charter party contract between Reksten and the charterer, Hudson
Foods. We address this argument in section III, infra.
6                   LINCOLN v. REKSTEN MANAGEMENT
    As a corollary to this initial turnover duty, the shipowner must

      warn the stevedore of any hazards on the ship or with
      respect to its equipment that are known to the vessel or
      should be known to it in the exercise of reasonable care, that
      would likely be encountered by the stevedore in the course
      of his cargo operations and that are not known by the steve-
      dore and would not be obvious to or anticipated by him if
      reasonably competent in the performance of his work.

Scindia Steam, 451 U.S. at 167. The duty to warn attaches only to
latent hazards, including those in cargo areas, and "[a]bsent actual
knowledge of a hazard, . . . the duty to warn may attach only if the
exercise of reasonable care would place upon the shipowner an obli-
gation to inspect for, or discover, the hazard’s existence." Howlett,
512 U.S. at 99-100. If a defect is open and obvious and the stevedore
should be able to conduct its operations around it safely, the ship-
owner does not violate the duty to warn. See Bonds v. Mortensen &
Lange, 717 F.2d 123, 127-28 (4th Cir. 1983) (finding malfunctioning
bell was an obvious defect).

   There is no evidence that the rotten wood or hole in the deck that
Lincoln fell through was known to either Lincoln or the stevedore or
the vessel, so we assume that the defect in the floorboards on the
GREEN TUNDRA was latent and that Reksten breached the second
part of the turnover duty, the duty to warn, by failing to inspect the
ship adequately and to warn the stevedore of a hole or rotten flooring
in the hold. Under Scindia Steam, in order to avoid summary judg-
ment, Lincoln must show that there was a latent defect in the deck,
that the shipowner knew or should have known of the defect in the
exercise of reasonable care, and that the shipowner breached its duty
by failing to discover or warn the stevedore of the defect. Howlett,
512 U.S. at 105 (citing Scindia Steam, 451 U.S. at 167).

   There is no evidence that the hole in the deck through which Lin-
coln fell, or the rotten wood at that place, was known to the vessel.
So the question is whether the vessel should have known of the defect
in the exercise of reasonable care so that it might have warned the ste-
vedore of the defect. In this connection, the hole is described in the
                    LINCOLN v. REKSTEN MANAGEMENT                         7
record as 6 inches wide and 18 inches long at a place where the space
between the planks in the deck should have been 1-1/2 inches.

   The affidavit of Captain Helgesen, widely experienced in such
marine affairs, describes the state of repair and upkeep of the deck as
that which resulted from "evidence that the ship’s personnel failed to
act reasonably concerning maintenance and upkeep of the vessel." He
noted that the coatings on the deck boards had not been maintained,
leading to water access to the wood in the deck boards, making them
conducive to rot, that holes remained in the wooden decks, "areas that
could be repaired were not repaired." He attached photographs to his
affidavit illustrating wooden patches in certain decks, unreasonable
damage to certain decks, cracks in hatch boards in certain decks, worn
and splintered boards in certain decks, steel plates installed over
wooden hatch boards in certain decks, and extreme wear of edges of
deck boards and surface coatings of certain decks. Captain Helgesen
stated that the refrigerated compartments in the ship, of which this
was one, were pre-frozen3 and, on that account, the deck boards might
appear quite sound when they, in fact, were not, and should have been
inspected before freezing sets in. He stated that decayed wood can be
spotted by sounding with a hammer for "[d]eteriorated wood will be
spongy when probed."

   In this connection, such a state of upkeep of the holds was gener-
ally corroborated by Lawrence Mixson, an employee of the stevedore,
who was in charge of the loading of the ship. He stated that with the
number in the crew down to "a fourth the size that they used to have,
I think with the size of the crew they had, they found it very difficult
to keep up with what was going on. Regular maintenance was diffi-
cult, much less damage that was happening." It was a part of Mix-
son’s job to see that the decks were in working condition, and he
probably, in fact, actually inspected the decks prior to the time that
loading commenced.4 Mixson states he reported Lincoln’s accident to
   3
     By pre-frozen it is meant that the temperature in the refrigerated hold
was reduced to well below freezing prior to the commencement of the
loading of the ship. This enabled the shipper to load frozen chicken
directly into the cold holds without delay.
   4
     This is not to infer that any negligence on the part of Mixson would
be a defense to the suit against the vessel.
8                  LINCOLN v. REKSTEN MANAGEMENT
the ship’s crew but received no report back with respect to the acci-
dent. One of the longshoremen testified that the hole Lincoln fell into
was later covered up with boxes of chicken.

   While we emphasize that the facts we have just related may be
stated favorably to Lincoln, Lincoln has no burden in opposing sum-
mary judgment to reconcile inconsistent statements in the record. The
burden is on the moving party, as we have stated, to show that it is
entitled to judgment as a matter of law. In that respect, it is remark-
able that an affidavit of Captain Tipnis,5 a marine surveyor, offered
by the vessel, with respect to the inspections of deck boards which
would have been required by Helgesen, stated: "In my opinion, to
expect the officers and compliment of the GREEN TUNDRA to per-
form detailed inspections of deck boards and deck gratings as sug-
gested by Mr. Helgesen would be both impractical and unreasonable."
Despite this excuse for not making inspections as recommended by
Helgesen, an affidavit of the ship’s bosun states that while he could
not "remember any specific repairs which may have been made at that
time" he stated "with certainty that all necessary repairs would have
been carried out," prior to loading.

   An analysis of the foregoing evidence convinces us that the record
shows that, taking the present evidence most favorably for Lincoln,
the vessel might have been negligent in the maintenance, upkeep, and
especially the inspection of the deck in question, so that, in the exer-
cise of reasonable care, it might have discovered the defect or hole in
the decking into which Lincoln fell, enabling it to warn the stevedore
of the defect.

  The summary judgment of the district court in favor of the vessel
on this account must be vacated.
    5
   For our present purposes, we consider Captain Helgesen and Captain
Tipnis were each a qualified expert in the fields in which they testified
by way of affidavit. Notably, Helgesen concluded "it is my opinion that
the vessel was negligent in all respect and that its negligence caused Lin-
coln’s accident." Tipnis’s affidavit concluded that the decks "are very
well maintained and exhibit only the usual signs of normal wear and
tear." This illustrates the conflict in the statements of fact relied on by
the parties. We do not at this time accept either conclusion, even if
admissible as such.
                   LINCOLN v. REKSTEN MANAGEMENT                      9
                                  III.

   Lincoln also claims that the district court erred in its finding that
the charter party provisions did not inure to his benefit thus creating
an additional obligation to those outlined in Scindia Steam. The rele-
vant language in Scindia Steam is "absent contract provisions to the
contrary the ship owner has no general duty by way of supervision or
inspection to exercise reasonable care to discover dangerous condi-
tions that develop within the confines of the cargo operations that are
assigned to the stevedore." 451 U.S. 172 (italics added). The contract
provisions which Lincoln relies on from the charter party are parts of
clauses 19 and 36 of the charter party. Clause 19: "[t]he vessel’s holds
to be clean, dry and free from smell and in every way fit for holding
a cargo of frozen food products in cartons;" Clause 36: "Fully
gratingsfitted, suitable for forklifts with rubber tyres upto 5 tons
weight incl cargo."

   The argument goes that construing these provisions, at least liter-
ally and probably over-literally, the fact that the gratings, which were
fully fitted, and at one place had a hole or rotten place in them which
a man’s foot could fall through, were bound to be not "in every way
fit for loading" under clause 19 and not "fully gratingsfitted" under
clause 36.

   In this circuit we have held in Bernard v. U. S. Lines, Inc., 475
F.2d 1134 (4th Cir. 1973), that a longshoreman who was injured in
the use of a land-based forklift owned by the charterer was not a
third-party beneficiary of the charter party agreement because it "cre-
ated no contractual duty to the longshoreman on the part of the United
States, a time charterer." 475 U. S. at 1135, 1136. Similarly, in Spence
v. Mariehamns R/S, 766 F.2d 1504 (11th Cir. 1985), a longshoreman
who was injured by the stevedore’s negligence in the unloading of the
vessel was held not entitled to recover from the vessel under a charter
party provision which provided that the "Charterers to load, stow and
discharge the cargo at their expense under the supervision of the Cap-
tain." The Court held that the quoted language was not construed so
that the vessel’s "crew would take direct responsibility for supervising
the discharge of cargo." 766 F.2d at 1507. It reasoned, as did Bernard,
that the language made no mention of the longshoremen’s safety, and
the plaintiff had not presented extensive proof of such a duty. In Car-
10                 LINCOLN v. REKSTEN MANAGEMENT
penter v. Universal Star Shipping, S.A., 924 F.2d 1539, 1545 (9th Cir.
1991), the court held that charter party provisions that "stevedores . . .
shall be employed and paid for by charterers" and "charterer to load,
stow, lash, secure, trim and discharge the cargo free of risks and
expenses to owners" determined indemnity issues between the owner
of the vessel and the charterer and did not inure to the benefit of a
longshoreman who had been injured when he fell through a hole
improperly left in the loading of a cargo of logs. The court held, as
had Spence, that the charter party was a contract between the charterer
and the ship owner and did not affect the duty owed to the longshore-
man. It held that no language in the charter party created a duty on
the ship owner to intervene to insure longshoremen’s safety during
cargo loading. We especially note that the real basis for such claims
is footnote 23 on page 176 of Scindia Steam, which provides that "[i]t
may also be that the contract between the stevedore and the ship-
owner will have provisions specifically bearing on the dispute. The
contract between Scindia [the owner] and Seattle [the stevedore] is
not part of the record in this case [referring to Scindia Steam]." There
is no provision in the charter party in the case at hand specifically
bearing on the dispute at hand. Longshoremen’s safety or concomitant
care is not mentioned in the charter party. Therefore, we are of opin-
ion, and so hold, that the charter party provision does not offer Lin-
coln an additional opportunity to sue the owner on account of his
injury. At this point, we should note that a construction of the charter
party provision involved here so as to give relief to Lincoln would
amount to a recovery on the ground that the ship was not seaworthy.
Even if the fact of unseaworthiness be true in the abstract, the ability
of a longshoreman to sue the ship because not seaworthy instead of
for negligence was abolished by the Longshoremen’s and Harbor
Worker’s Compensation Act of 1972. Scindia Steam, Part II, 451
U.S. at 164, et seq.

   We thus hold that the charter party provisions involved do not sup-
port a cause of action on behalf of Lincoln. The decision of the dis-
trict court is affirmed in that respect.

   The decision of the district court is accordingly affirmed in part
and vacated in part, and the case is remanded for action not inconsis-
tent with this opinion.
LINCOLN v. REKSTEN MANAGEMENT      11
         JUDGMENT VACATED IN PART AND
           REMANDED WITH INSTRUCTIONS
