                                 UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                   No. 17-2101


TROY D. PRICE, JR.,

                 Plaintiff - Appellant,

           and

ATLANTIC RO-RO CARRIERS, INC.; BALTIC MERCUR JOINT STOCK
COMPANY,

                 Defendants and 3rd-Party Plaintiffs,

           v.

MOS SHIPPING CO., LTD.,

                 Defendant - Appellee,


RUKERT TERMINALS CORPORATION,

                 Third Party Defendant.



                                   No. 17-2167


MOS SHIPPING CO., LTD.,

                 Defendant and 3rd-Party Plaintiff - Appellant,

           and
ATLANTIC RO-RO CARRIERS, INC.; BALTIC MERCUR JOINT STOCK
COMPANY,

                    Defendants and 3rd-Party Plaintiffs,

             v.

TROY D. PRICE, JR.,

                    Plaintiff - Appellee,


RUKERT TERMINALS CORPORATION,

                    Third Party Defendant - Appellee.



Appeals from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:11-cv-01735-CCB)


Submitted: May 18, 2018                                           Decided: July 5, 2018


Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.


No. 17-2101 affirmed; No. 17-2167 dismissed by unpublished per curiam opinion.


Gerald F. Gay, Bernard J. Sevel, ARNOLD, SEVEL AND GAY, P.A., Towson, Maryland,
for Appellant/Cross-Appellee. Kirk M. Lyons, LYONS & FLOOD, LLP, New York, New
York, for Appellee/Cross-Appellant. James W. Bartlett, III, Imran O. Shaukat, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Cross-Appellee Rukert Terminals
Corporation.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Troy D. Price, Jr., appeals the district court’s order entering judgment in favor of

Mos Shipping Co., Ltd. (“Mos”), following a jury trial, and the district court’s order

denying Price’s Fed. R. Civ. P. 59(a) motion for a new trial.           Mos cross-appeals,

challenging the district court’s orders denying its pretrial motion for summary judgment

and granting the pretrial motion in limine and motions for summary judgment filed by

third-party defendant Rukert Terminals Corporation. For the reasons that follow, we affirm

the district court’s judgment.

       In Price’s appeal, Price first argues that the district court abused its discretion in

denying his Rule 59(a) motion. “We review for abuse of discretion a district court’s denial

of a motion for new trial, and will not reverse such a decision save in the most exceptional

circumstances.” Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454, 468 (4th

Cir. 2013) (internal quotation marks omitted). “We commit this decision to the district

court because the district judge is in a position to see and hear the witnesses” and “may

weigh evidence and assess credibility in ruling on a motion for a new trial.” Bristol Steel

& Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994) (internal quotation

marks omitted). Because Price did not make a Fed. R. Civ. P. 50 motion for judgment as

a matter of law at the conclusion of the evidence, our review of the court’s order denying

his Rule 59(a) motion “is exceedingly confined.” Minter v. Wells Fargo Bank, N.A., 762

F.3d 339, 348 (4th Cir. 2014) (internal quotation marks omitted). We may consider only

“whether there was any evidence to support the jury’s verdict, irrespective of its

sufficiency, or whether plain error was committed which, if not noticed, would result in a

                                             3
manifest miscarriage of justice.” Id. (internal quotation marks omitted). “What is at issue

is whether there was an absolute absence of evidence to support the jury’s verdict.” Bristol

Steel, 41 F.3d at 187 (internal quotation marks omitted).

       Price, a former longshore worker, alleged that, due to Mos’ negligence, he was

severely and permanently injured while unloading freight in the hold of Mos’ ship, the M/V

VALGA, when a forklift being operated by another longshore worker fell through an

unprotected hatch in the deck above Price and struck him. The parties do not dispute that

Price’s claim arises under 33 U.S.C. § 905(b) (2012) of the Longshore and Harbor

Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (2012). As relevant to that

provision, a vessel owner owes three general duties to longshore workers: (1) the “turnover

duty”; (2) the “active control duty”; and (3) the “duty to intervene.” Bunn, 723 F.3d at

460-61 (internal quotation marks omitted); see Howlett v. Birkdale Shipping Co., S.A., 512

U.S. 92, 97 (1994) (construing Scindia Steam Navigation Co., Ltd. v. De Los Santos

(‘Scindia’), 451 U.S. 156 (1981)). Only the active control duty and duty to intervene are

relevant here.

       Under the active control duty, a vessel owner is liable if it either “actively involves

itself in the cargo operations and negligently injures a longshoreman” or “fails to exercise

due care to avoid exposing longshoremen to harm from hazards that they may encounter

in areas, or from equipment, under the active control of the vessel during the stevedoring

operation.” Scindia, 451 U.S. at 167; see Gravatt v. City of New York, 226 F.3d 108, 121

(2d Cir. 2000); England v. Reinauer Transp. Cos., LP, 194 F.3d 265, 270 (1st Cir. 1999).

As we have observed, the mere “presence of an officer of the ship’s crew [does not]

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constitute ‘active involvement’ in discharge operations within the meaning of Scindia.”

Bonds v. Mortensen & Lange, 717 F.2d 123, 127 n.4 (4th Cir. 1983). Instead, the active

control duty “recognizes that although a vessel owner no longer retains the primary

responsibility for safety in a work area turned over to an independent contractor, no such

cession results as relates to areas or equipment over which the vessel’s crew retains

operational control.” Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir.

1997).

         With respect to the duty to intervene, “absent contract provision, positive law, or

custom to the contrary,” a vessel owner generally “owes no duty to the longshoremen to

inspect or supervise the cargo operations,” Scindia, 451 U.S. at 172, and may rely on the

judgement of the stevedore to avoid exposing longshore workers to unreasonable risks of

harm, id. at 172, 175. However, the vessel owner cannot reasonably assume that the

stevedore will remedy a problem, and thus incurs a duty “to intervene and stop unloading

operations,” when the vessel owner knows that “the stevedore’s judgment in carrying out

his tasks is ‘obviously improvident’” under the circumstances. Bonds, 717 F.2d at 127

(quoting Scindia, 451 U.S. at 175-76). The vessel owner violates the duty to intervene if

he “fails to intervene in the stevedore’s operations when he has actual knowledge” that

both: (1) a hazardous condition exists; and (2) “the stevedore, in the exercise of obviously

improvident judgment means to work on in the face of it and therefore cannot be relied on

to remedy it.” Manson Gulf, LLC v. Modern Am. Recycling Serv., Inc., 878 F.3d 130, 134

(5th Cir. 2017) (internal quotation marks omitted); see In re Buchanan Marine, L.P., 874

F.3d 356, 365 (2d Cir. 2017), cert. denied, 138 S. Ct. 1442 (2018). “If the shipowner may

                                              5
reasonably believe, despite its own knowledge of the danger, that the stevedore will act to

avoid the dangerous conditions, the owner cannot be said to have been negligent,” as “the

decision whether a condition imposes an unreasonable risk of harm to longshoremen is a

matter of judgment committed to the stevedore in the first instance.” Hodges v. Evisea

Mar. Co., S.A., 801 F.2d 678, 687 (4th Cir. 1986) (internal quotation marks omitted).

       Our review of the record leads us to conclude that the district court committed no

abuse of discretion in denying Rule 59(a) relief.1 The undisputed evidence established that

Mos, through VALGA crewmember Alexander Nosov, maintained active control over the

cargo elevator that was lowered to produce the hatch opening through which the errant

forklift fell. However, it also is undisputed that the accident did not take place in the

context of matters over which Nosov clearly exercised control—the movement of the

elevator and the condition of its platform—but instead during stevedoring operations on

the deck after the cargo was unloaded from the elevator. The trial record contained at least

some evidence to support a finding that Nosov had no involvement or control over this

portion of the stevedoring operation. His presence as an observer of those operations is

insufficient to trigger the active control duty. See Bonds, 717 F.2d at 127 n.4.

       Moreover, even assuming, without deciding, that Nosov had some duty to use due

care to ensure that the longshore workers operating forklifts in the immediate vicinity of



       1
         In both of his arguments on appeal, Price relies in part on a footnote in the district
court’s pretrial order granting summary judgment to Atlantic Ro-Ro Carriers, Inc. We find
Price’s reliance on this footnote misplaced, in view of the disparate issues, record, and
standard of review at issue in resolving that pretrial motion.

                                              6
the elevator did not fall through the unprotected opening, the record also contains evidence

to support a finding that the forklift operators were acting with reasonable care in light of

their speed and location and the condition of the deck surface, and thus that Nosov did not

act unreasonably in failing to remediate their operations. The record also provided support

for a finding that the stevedore’s actions in continuing operations was not “obviously

improvident,” and thus that Nosov was entitled to rely on the longshore workers’ judgment

as to whether cargo operations could be conducted safely. See Manson Gulf, 878 F.3d at

134; Hodges, 801 F.2d at 683-84; Bonds, 717 F.2d at 127.             Price also identifies no

circumstances giving rise to a manifest miscarriage of justice. Thus, we conclude that the

district court did not abuse its discretion in denying Rule 59(a) relief.

       Price also contends that the district court abused its discretion in admitting the

evidence of Mos’ expert witness, Walter Curran. 2 We review for abuse of discretion the

district court’s decision to admit expert testimony. Anderson v. Westinghouse Savannah

River Co., 406 F.3d 248, 260 (4th Cir. 2005); see Belk, Inc. v. Meyer Corp., U.S., 679 F.3d

146, 161 (4th Cir. 2012) (describing standard). Expert testimony is admissible if it

concerns “scientific, technical, or other specialized knowledge” and “will help the trier of

fact to understand the evidence or to determine a fact in issue.” See Fed. R. Evid. 702(a).

In evaluating the admissibility of expert testimony, courts must “act as gatekeepers to


       2
         Although Mos argues that Price failed to properly preserve his challenge to
Curran’s testimony, Mos is mistaken. The district court’s denial of Price’s motion in limine
sufficiently preserved his challenge to Curran’s testimony without the need for additional
objection at trial. United States v. Ruhe, 191 F.3d 376, 383 n.4 (4th Cir. 1999); see Fed.
R. Evid. 103(b).

                                              7
ensure that expert testimony is relevant and reliable.” Bresler v. Wilmington Tr. Co., 855

F.3d 178, 195 (4th Cir.) (internal quotation marks omitted), cert. denied, 138 S. Ct. 470

(2017); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993).

       Price effectively argues that Curran’s testimony was not reliable or relevant because

he was permitted to testify that Nosov had no duties under Scindia, and his testimony was

both inconsistent with evidence presented at trial and confusing to the jury. While a court

may abuse its discretion in admitting an expert opinion that conflicts directly with

uncontroverted evidence of record, Tyger Constr. Co. v. Pensacola Constr. Co., 29 F.3d

137, 143 (4th Cir. 1994), Curran’s testimony did not suffer from such a conflict. To the

extent Curran’s testimony conflicted with some of the disputed evidence of record,

“questions regarding the factual underpinnings of the expert witness’ opinion affect the

weight and credibility of the witness’ assessment, not its admissibility.” Bresler, 855 F.3d

at 195 (alteration and internal quotation marks omitted). The district court properly

allowed these disputes to be tested through “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at

596. And while “evidence that has a greater potential to mislead than to enlighten should

be excluded,” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999), we

conclude that Curran’s testimony was not misleading or unduly confusing to the jury. We

therefore find no abuse of discretion in the district court’s admission of this evidence.

       Because we affirm the district court’s judgment in Mos’ favor, we dismiss as moot

Mos’ cross-appeal of the court’s pretrial orders. We dispense with oral argument because



                                              8
the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.


                                                               No. 17-2101, AFFIRMED;
                                                               No. 17-2167, DISMISSED




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