                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

Jackson v. Egyptian Navigation
Precedential or Non-Precedential: Precedential

Docket No. 02-3828




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Jackson v. Egyptian Navigation" (2004). 2004 Decisions. Paper 753.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/753


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                     PRECEDENTIAL              Stewart L. Cohen
                                               William D. Marvin (Argued)
    UNITED STATES COURT OF                     Steven L. Smith
 APPEALS FOR THE THIRD CIRCUIT                 Kessler Cohen & Roth
                                               Philadelphia, PA 19102

                 02-3828                              Attorneys for Appellants

                                               Richard Q. Whelan (Argued)
       RONALD JACKSON and                      Gary Francis Seitz
       PAMELA JACKSON, h/w,                    Palmer, Biezup & Henderson
                                               Philadelphia, PA 19106
                            Appellants
                                                      Attorneys for Appellee
                    v.

 EGYPTIAN NAVIGATION COMPANY,                         OPINION OF THE COURT

                            Appellee
                                               FRIEDMAN, Circuit Judge.

                                                      In this case a longshoreman
           Appeal from an Order                employed by a stevedoring company
   Of the United States District Court         seeks to recover under the Longshore
For the Eastern District of Pennsylvania       and Harbor Workers’ Compensation Act,
          (E.D. Pa. No. 99-5695),              (“Longshore Act”), 33 U.S.C. §§ 901-950
   Dismissing Plaintiff’s Complaint on         (2000), from the shipowner for injuries he
    Defendant’s Motion for Summary             suffered while unloading the ship. The
                 Judgment                      longshoreman’s theory is that the
District Judge: Hon. Michael M. Baylson        shipowner was negligent because it failed
                                               to provide him with a safe place to work.
                                               The district court dismissed the complaint,
       Argued December 2, 2003                 and we affirm.

    Before: SLOVITER, ALITO and                                     I
     FRIEDMAN,* Circuit Judges
                                                     A. The appellant Ronald Jackson
          (Filed: April 7, 2004)               (“Jackson”) was employed as a
                                               longshoreman by Delaware River
                                               Stevedores.    He was injured while
                                               unloading a cargo of steel coils from a
                                               ship owned by the appellee Egyptian
*     Daniel M. Friedman, United               Navigation Company (“Egyptian”) (an
States Senior Circuit Judge for the            Egyptian corporation) that had arrived in
Federal Circuit, sitting by designation.       Camden, New Jersey the previous day.

                                           1
The cargo had been loaded in Turkey by             was also dunnage placed between the
a different stevedoring company.                   various coils to prevent their movement.

        The ship contained two holds, one                 There was no direct evidence on
above the other. The unloading of the top          how or when the board had been placed
hold began at 8 a.m. and was completed             between the ladder rung and the stowed
at 11 a.m. The ship’s crew members then            cargo. The ship’s First Officer indicated in
opened the cover of the lower hold, and            his deposition that in his daily inspections
the longshoremen climbed into that hold            of the cargo area during the voyage, he
to start unloading the cargo stored there.         never noticed any plank in that position.
                                                   Jackson’s theory is that the board was
       Jackson was the fifth person to             placed in that position by the Turkish
descend into the lower hold. The first             stevedore when it loaded the cargo in
man down was a superintendent from the             Turkey and that it remained there during
stevedoring company; he was followed by            the ship’s transatlantic voyage.
three other longshoremen.
                                                           B. Jackson and his wife then filed
       As Jackson descended a ladder on            the present damages action in the United
the side of the lower hold, he saw the four        States District Court for the Eastern
others standing on top of the coils about          District of Pennsylvania against Egyptian.
ten feet above the floor of the hold. Upon         The complaint alleged that Jackson’s fall
going down the ladder, he saw a narrow             “was caused by the sudden failure of the
piece of wood extending from one of the            means provided by defendant to walk
rungs of the ladder (which was about ten           from an access ladder permanently
feet above the floor of the hold) across an        affixed to the vessel, to the top of the
open space of approximately four or five           cargo, approximately ten feet above the
feet to the top of the coils. Apparently           floor of the hold”; that Jackson “had been
believing that the other men had walked            directed to use this ladder and means of
across the board to reach the cargo,               access by the crew of the defendant’s
Jackson started to walk over the board.            vessel, in order to reach the cargo in the
The board broke; Jackson fell ten feet to          lower hold”; and that “[t]he conditions
the floor of the hold and was seriously            which caused plaintiff’s injuries were
injured.                                           created by defendant no later than when
                                                   the cargo was loaded overseas, and
       It turned out that the board was            defendant allowed those conditions to
made of dunnage, a cheap and weak                  remain for the entire length of the
form of wood that stevedores regularly             voyage.” The complaint further alleged
use in connection with stowing cargo to fill       that the defendant “knew or should have
in empty spaces and thus reduce or                 known” that “the conditions in the hold
eliminate movement by the cargo during             and the means for access to the cargo
the voyage. The parties agree that the             were improper, defective, inadequate,
Turkish stevedore had supplied and                 dangerous, and unsuitable,” that the
placed dunnage in the lower hold. The              “plaintiff and the other stevedores would
stowed cargo sat upon dunnage that was             be required to use these means for
between it and the floor of the hold; there        access, because there was no other way

                                               2
for them to reach the cargo to prepare it          Jackson, 222 F.Supp. 2d at 709.
for unloading,” and that “because of the
conditions in the hold, including the                      The court ruled that Jackson was
physical arrangement of the ladder and             “unable to prove” that the “Defendant had
cargo access, and the poor lighting                notice of the plank, but failed to take any
conditions, the plaintiff and other                action,” id. at 707, that the “Defendant
stevedores would not be able to discover           knew or should have known that the
the danger or protect themselves from it.”         longshoremen would disregard the risk
Finally, the complaint stated:                     posed by the plank,” id. at 708, or that
                                                   “the hazard posed by the plank was not
       Defendant’s acts and                        open and obvious to the longshoremen,”
       omissions as set forth                      id. at 709. It therefore concluded that the
       above, by its agents,                       three factual disputes that Jackson
       servants and employees,                     contended precluded summary judgment
       were careless and                           did not present any “genuine issues of
       negligent,        making                    material fact.” Id. at 707.
       defendant liable to plaintiffs
       under general maritime law                                        II
       and the laws of the
       jurisdiction where the injury                         A. Prior to 1972, a longshoreman
       occurred.                                   injured while working aboard a ship could
                                                   recover from the ship under the
        After some discovery, the district         Longshore Act without proving
court granted Egyptian’s motion for                n e g l i g e n ce , p u r s u a n t t o t h e
summary judgment and dismissed the                 unseaworthiness doctrine that made the
complaint.        Jackson v. Egyptian              ship absolutely liable for such injuries.
Navigation Co., 222 F.Supp. 2d 700 (E.D.           See Scindia Steam Navigation Co. v. De
Pa. 2002). After discussing relevant               Los Santos, 451 U.S. 156, 164-65, 172
decisions of the Supreme Court and this            (1981). In 1972, however, Congress
court, the district court pointed out that         significantly changed the basis of the
“[t]he parties do not dispute that, based          shipowner’s liability. It eliminated liability
on the allegations of Plaintiff’s Complaint,       based on unseaworthiness and provided
and the facts and evidence adduced, only           that “[i]n the event of injury to a person
the shipowner’s turnover duty is                   covered under [the Longshore Act]
implicated here,” id. at 704, i.e., the duty       caused by the negligence of a vessel,
to turn over to the stevedore a safe place         then such person . . . may bring an action
to work and “to warn of known,                     against such vessel.” 33 U.S.C. § 905(b).
nonobvious hazards,” Serbin v. Bora                “Section 905 (b) did not specify the acts
Corp., 96 F.3d 66, 70 (3d Cir. 1996)               or omissions of the vessel that would
(quoting Kirsch v. Plovidba, 971 F.2d              constitute negligence.” Scindia, 451 U.S.
1026, 1028 (3d Cir. 1992)). The court              at 165. In Scindia and Howlett v. Birkdale
held that the “Plaintiff has produced no           Shipping Co., 512 U.S. 92 (1994), the
evidence from which a jury could                   Supreme Court explained the scope and
reasonably conclude that Defendant                 parameters of the ship’s duty to the
breached any duty owed to Plaintiff.”              longshoremen working on it for a

                                               3
stevedoring company.                                       not known by the
                                                           stevedore[,] and would not
        In Howlett, the Court stated that                  be obvious to or anticipated
Scindia had “outlined the three general                    by him if reasonably
duties shipowners owe to longshoremen.                     competent in            the
The first, which courts have come to call                  performance of his work.”
the ‘turnover duty,’ relates to the condition
of the ship upon the commencement of                Id. at 98-99 (internal citations omitted).
stevedoring operations.” Id. at 98. As we
have noted, the present case, like                         The Court in Howlett also pointed
Howlett, involves only the ship’s “turnover         out that “there can be no recovery under
duty.”                                              [§ 905(b)] for a vessel’s failure to warn of
                                                    dangers that would be apparent to a
       Under that duty                              longshore man of reasonable
       [a] vessel must “exercise                    competence.” Id. at 104. “[T]he vessel’s
       ordinary care under the                      turnover duty to warn of latent defects in
       circumstances” to turn over                  the cargo stow and cargo area is a narrow
       the ship and its equipment                   one. The duty attaches only to latent
       and appliances “in such                      hazards, defined as hazards that are not
       condition that an expert and                 known to the stevedore and that would be
       experienced stevedoring                      neither obvious to nor anticipated by a
       contractor, mindful of the                   skilled stevedore in the competent
       dangers he should                            performance of its work.” Id. at 105.
       reasonably expect to
       encounter, arising from the                         This court has recognized the
       hazards of the ship’s                        obviousness limitation on the ship’s duty
       service or otherwise, will be                to warn. In Serbin, this court stated that in
       able by the exercise of                      Howlett the Supreme Court held in a
       ordinary care” to carry on                   turnover duty case that if “the hazard . . .
       cargo operations “with                       was obvious to a competent stevedore,
       reasonable safety to                         summary judgment would be appropriate
       persons and property.” A                     for the ship,” and that this court “had
       corollary to the turnover                    already decided that obviousness was a
       duty requires the vessel to                  bar to liability under the turnover duty.”
       warn the stevedore “of any                   96 F.3d at 75.
       hazards on the ship or with
       respect to its equipment,”                          B. Jackson contends that the ship
       so long as the hazards “are                  violated its turnover duty because it knew
       known to the vessel or                       of the board’s location in the lower hold
       should be known to it in the                 and because the presence of the board
       exercise of reasonable                       was not an obvious danger that the
       care,” and “would likely be                  stevedore should have immediately
       e n c o u n t e r e d by t h e               ameliorated but was a concealed defect
       stevedore in the course of                   of which the ship was required to warn the
       his cargo operations[,] are                  stevedore. The district court correctly

                                                4
ruled that under the governing principles                was overweight or
discussed above, Jackson had not shown                   underweight, it doesn’t
that Egyptian violated its turnover duty                 make a difference. Stability
and that Jackson’s contentions did not                   rules have to be followed all
raise any disputed issues of material fact               the way through.
that precluded summary judgment. 96
F.3d at 75.                                               Under the foregoing analysis, it is
                                                  irrelevant that Jackson’s injury resulted
        Even if one were to assume,               not from his slipping and falling off the
contrary to the district court’s ruling and       board but from the board breaking while
the evidence in the record, that the board        he was walking across it. The obvious
was placed in that position by the Turkish        hazard the board created for the
stevedore, remained there during the              longshoremen was that it would be
entire voyage, and that the ship was              dangerous for them to use as a bridge
aware of its presence there, Jackson still        between the ladder and the cargo – not
could not prevail. The ship has no duty to        because it was inferior wood that was
warn about an obvious hazard in the work          likely to break but because it was so
area that a competent stevedore would be          narrow and unprotected that there was a
expected to discover while properly               serious danger that anyone who used it
performing its duties. There is no claim          might slip and fall off it. Although use of
that the stevedore here was not                   the board was more hazardous because
competent. The presence of the board              the board itself was internally weak, the
was an obvious hazard, and the                    nature of the hazard the board posed was
stevedore’s superintendent, who was the           not changed by the nature of the injury
first employee to descend into the lower          Jackson suffered.
hold in connection with the cargo removal,
should either have removed the board or                  Jackson argues that even if the
warned the longshoremen not to use it in          board posed an obvious danger, this case
moving from the ladder to the cargo.              comes within this court’s ruling in Kirsch
                                                  that the ship may be liable for injuries
       The ship’s First Officer explained         caused by obvious dangers “if the
the danger the board presented to the             shipowner should have expected that the
safety of the longshoremen:                       stevedore and its longshore workers
                                                  could not or would not avoid the danger.”
       [I]t’s   very easy for                     971 F.2d at 1026. In rejecting this
       somebody to slip on a 10                   contention, the district court ruled that
       centimeter-wide piece of                   there was “no record evidence supporting
       wood. And . . . usually, the               [Jackson’s] contention that [Egyptian]
       laborer will never go on top               knew or should have known that the
       of that because it’s [not                  longshoremen would disregard the risk
       safe], and he doesn’t jump                 posed by the plank.” Jackson, 222
       because jumping is against                 F.Supp. 2d at 709. For example, the First
       stability and he could still               Officer stated that no member of the
       lose his stability and fall                ship’s crew used the board to reach the
       down. . . . [W]hether he                   cargo and that he did not see anyone

                                              5
using the board as a bridge.

       This court has stated that
questions relating to the existence and
obviousness of hazards in the cargo area
“generally” are not to be decided on
summary judgment but require a trial.
Serbin, 96 F.3d at 73; Kirsch, 971 F.2d at
1030. This case, however, comes within
the exception to that principle. Here the
evidence is unequivocal that the board’s
presence and placement presented an
obvious danger and hazard to the safety
of a longshoreman unloading the cargo,
which the stevedore should and could
have corrected and for which the
shipowner was not liable. See Serbin, 96
F.3d at 75. There is no evidence from
which a reasonable jury could have
concluded otherwise.

       In view of our conclusion on that
issue, we need not consider Jackson’s
contentions that the board was in its
position in the lower hold before anyone
descended to that area to unload it and
that the ship knew of its presence.

       The order of the district court
granting the defendant’s motion for
summary judgment is affirmed.




                                             6
