                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1888


RICHARD BUNN,

                Plaintiff - Appellee,

           v.

OLDENDORFF CARRIERS GMBH & CO. KG,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:10-cv-00255-WMN)


Argued:   May 16, 2013                    Decided:   July 17, 2013


Before MOTZ, DAVIS, and WYNN, Circuit Judges.


Affirmed by published opinion. Judge Davis wrote the majority
opinion, in which Judge Wynn joined.      Judge Motz wrote a
dissenting opinion.


ARGUED: Geoffrey S. Tobias, OBER, KALER, GRIMES & SHRIVER,
Baltimore, Maryland, for Appellant.       Bernard Jerome Sevel,
ARNOLD, SEVEL & GAY, P.A., Towson, Maryland, for Appellee. ON
BRIEF: Jack R. Daley, OBER, KALER, GRIMES & SHRIVER, Baltimore,
Maryland, for Appellant.    Gerald F. Gay, ARNOLD, SEVEL & GAY,
P.A., Towson, Maryland, for Appellee.
DAVIS, Circuit Judge:

     Defendant-Appellant               Oldendorff          Carriers     GmbH   &   Co.    KG

(“Oldendorff”) appeals from a judgment entered on a jury verdict

under § 5(b) of the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 905(b) (the “Act”). The claim arose when the

longshoreman, Plaintiff-Appellee Richard Bunn, slipped and fell

on Oldendorff’s ship, the CHRISTOFFER OLDENDORFF (“the ship”),

during    loading       operations        in       the     Baltimore     port.     For   the

following reasons, we reject Oldendorff’s challenges and affirm

the judgment.

                                               I.

     Bunn, who worked for the stevedore, CNX Marine Terminals,

Inc. (“CNX”), slipped on ice and injured himself while loading

coal onto the ship, a bulk carrier, on February 16, 2007. We set

forth    the    facts       in   the    light       most    favorable     to     Bunn,   the

prevailing party at trial.

     CNX shift supervisor Joseph White boarded the ship around 7

p.m. on February 15, 2007, to tell chief officer Andriy Fediv

that CNX employees intended “to start[] loading that night.”

J.A. 113–14. Although the ship had been docked “a few days,” CNX

had been “unable to load [the] vessel” because of “some winter

weather.” Id. at 113. When White boarded the ship, “[he] noticed

that . . . there was ice covered throughout the ship, with the

exception      of   .   .   .    a   pathway        back   from   the    gangway    to   the

                                               2
deckhouse.” Id. at 114. White “instructed” Fediv, “[W]e need a

clear path to the holds to be able to load this vessel.” Id.

Fediv, who knew “which hatches [the CNX employees] were going to

be [loading],” responded “[t]hat [the ship’s crew] would salt

and sand between the holds.” Id. at 115–16. 1

       Based   on     this     conversation,      White   told       longshoreman

Christopher Moxey (before the loading operation started) that

the ship’s crew was “going to treat the ship and make sure it

was safe” by “[s]alt[ing] it, sand[ing] it, [and] shovel[ing]

it.” J.A. 86–88. Hours later, when Moxey and Bunn walked onto

the    ship,   they    found   the     area   between   the   gangway      and   the

deckhouse, and between the starboard rail and hatch number five,

“[p]erfectly clear” of ice. Id. at 88–89.

       Meanwhile, Bunn had arrived at the terminal at 6 p.m. on

February 15, 2007, and began his 12-hour shift an hour later.

His job was “to clean the terminal and to spread salt, and to go

around and make sure all the equipment . . . was . . . . fueled

and running . . . .” J.A. 223. Sometime between midnight and 1

a.m.   on   February    16,    2007,    White   approached    Bunn    to   discuss

loading the ship. Id. at 30, 224. Specifically, White instructed



       1
       Fediv, the chief officer, testified that the ship’s deck
was icy but he denied that he and White discussed using salt and
sand to treat the ice. Of course, the jury was entitled to
reject Fediv’s testimony and credit White’s, as it did.


                                          3
Bunn to work onboard the ship during the night to assist Moxey

in the loading operation. Bunn asked:

     well, you want me to go now? [White] said no, take
     your time, finish lunch. He said they’re getting the
     ship ready and we’re still finishing up getting the
     terminal ready.

Id. at 224–25. White told Bunn he would call him or Moxey by

radio when the ship was safe to load. Id. at 225.

     In due course, Bunn and Moxey “had the instruction that it

was okay to go up on the ship, the ship was ready,” and the two

boarded the ship around 1:30 a.m. on February 16, 2007. J.A.

177–78. Bunn testified:

     When we first got up on [the] deck, we could see a
     clear path to the number five hatch, and looking
     towards the deckhouse, you could see there was a path
     made to the deckhouse.

Id. at 178. Bunn and Moxey began loading coal into the number

five hatch. Id. at 178. During the loading process, coal moves

from a silo to a ship loader, id. at 121, “a giant crane that

hangs over the ship,” id. at 179.

     It has a boom with a conveyor belt on it that carries
     the coal. At the end of the boom, it has a spoon that
     comes down that goes in the hold. It has a spoon that
     rotates, and that directs the coal.

Id. at 179. Bunn’s job was to be on the ship and help guide the

coal as it was loaded into the holds.

     Being that the ship   loader operator is up in the air,
     and he sits on one    side of the machine, he can’t see
     exactly what we can   see when we’re close to the hold.
     So in order to keep    everything safe, we have to watch

                                 4
     his equipment, that he doesn’t hit the hatch cover,
     and also direct him on where’s the proper places to
     put the coal . . . . [T]he only way I see it is if I
     lean forward over the hold, I can see down in there
     how the coal is building up.

Id. at 179–80.

     After loading the number five hatch, Bunn told Moxey to

warm himself in the deckhouse; Bunn walked forward to load the

number three hatch, “holding onto the hand rail on the side of

the ship,” J.A. 180–82, whereupon the accident occurred:

     It was nighttime. It’s not much lighting when you get
     further past the beginning of the ship. At the
     beginning of the ship, the deckhouse has lights. But
     as you get down, the lighting is very poor.

     * * *

     Well, I remember coming off the path, and it felt like
     I stepped up a little bit. I could tell my surface
     changed a little.

     I took a couple steps, and the next thing I knew, I
     had slipped and fell right then, boom; but I caught
     myself with my knees and my hands when I fell.

     * * *

     Well, then I realized that I kind of hurt myself, so I
     took my time. Then I figured well, maybe I’m just on a
     patch of ice that I didn’t see and maybe I need to
     find where this path is.

     So I stood up and I said I’m going to slowly walk,
     take little steps toward the hold. I still needed to
     get to the hold . . . . So I started to walk towards
     the hold, and no more than one, two steps and boom. My
     feet came out from underneath of me and I landed on my
     back and my elbow.

Id. at 182–84.


                                5
     After Bunn’s fall, Moxey told chief officer Fediv that “the

ship was icy forward” and that it needed to be salted. J.A. 90.

Fediv responded that “he only had a limited supply of salt.” Id.

at 91. About a half hour later, Moxey loaded coal into hatch

number seven. Id. at 92. When he returned to hatch number three,

he “noticed that it was still icy.” Id.

     At the close of Bunn’s case, and again at the conclusion of

all the evidence, Oldendorff moved for judgment as a matter of

law. 2 The company argued (as it had in seeking summary judgment

earlier) that it owed no duty under the Act to warn of the open

and obvious danger posed by the presence of ice in the areas

where    the   longshoremen   would   be   working.   The   district   court

denied the motions, reasoning that “liability can attach to [a]

ship owner” that “voluntarily and affirmatively undertakes to

remedy an [otherwise open and obvious] unsafe condition, but

fails to do so.” Bunn v. Oldendorff Carriers GmbH & Co. K.G.,

No. WMN-10-255, 2012 WL 2681412, at *1 (D. Md. July 5, 2012).

The court noted that, based on White’s testimony, the jury could

conclude that the ship--on the unquestioned authority to do so

     2
       See Mot. for J. as a Matter of Law 2, ECF No. 86, Bunn v.
Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D.
Md. May 10, 2012). The joint appendix includes neither a
complete trial transcript nor excerpts of the oral motions and
the district court’s reasons for denying them. Accordingly, we
infer that information from the court’s memorandum opinion
denying Oldendorff’s post-trial motion for judgment as a matter
of law.


                                      6
of   the   chief    officer,    Fediv--had    “voluntarily     assumed   the

responsibility for salting and sanding the ice in the places

where he knew CNX personnel would be working.” Id. at *2.

     The district court also declined to give the following jury

instruction, requested by Oldendorff:

     In the absence of any agreement, the ship is                  not
     responsible for any open and obvious condition.

J.A. 84. The court instructed the jury as follows:

     The plaintiff’s claims in this case are governed by
     the law that is set out in what we know as the
     Longshoreman and Harbor Workers Act. In accord with
     the law, your basic determination in this case is
     going to be to decide whether negligence on the part
     of the operator of the vessel CHRISTOPHER OLDENDORFF
     caused or directly contributed to the plaintiff’s
     accident on or about February 16, 2007, and the
     damages claimed to have resulted from that occurrence
     . . . .

     * * *

     Negligence, simply stated, is the failure to exercise
     reasonable care under the existing circumstances.

     But once the loading or the unloading of a ship by a
     stevedoring company has begun, the responsibility for
     safe working conditions is generally the burden of the
     terminal or the stevedoring company, in this case, CNX
     Marine Terminal. A shipowner, Oldendorff Carriers in
     this case, will only be responsible or liable for
     injury resulting directly from an unsafe condition on
     the ship of which it was aware and which it
     voluntarily agreed and undertook to remedy, but failed
     to do so.

Id. at 385–87.

     The     jury   found      Oldendorff    negligent   and     calculated

$1,863,750 in pecuniary and non-pecuniary damages. J.A. 406–07.

                                      7
The jury further found, however, that Bunn was also negligent,

and that he was 15 percent at fault for the accident. Id.

     Oldendorff renewed its motion for judgment as a matter of

law and moved alternatively for a new trial, arguing that the

court had erred in refusing to give an instruction on the “open

and obvious” defense. Mot. for J. as a Matter of Law 17, Docket

No. 86, Bunn, No. 1:10-cv-00255-WMN (D. Md. May 10, 2012). The

court    denied   the    post-trial     motions,     and   this   timely    appeal

followed.

                                        II.

         Oldendorff     raises    two   principal      assignments     of   error.

First,     Oldendorff    argues    that       the   district   court   erred   in

denying the motions for judgment as a matter of law. Second,

Oldendorff argues that the district court misinformed the jury

about the applicable law, and therefore erred in denying the

motion for new trial. We discern no reversible error. 3



     3
       Oldendorff also argues that the district court erred in
denying its motion for summary judgment made at the conclusion
of discovery because, as a matter of law, the icy condition of
the ship was open and obvious, and therefore Oldendorff had no
duty to warn of the danger (the same argument made at and after
trial). Although neither party has addressed the propriety of
Oldendorff’s purported appeal of the summary judgment ruling, it
is well settled that we “‘will not review, under any standard,
the pretrial denial of a motion for summary judgment after a
full trial and final judgment on the merits.’” Varghese v.
Honeywell Int’l, Inc., 424 F.3d 411, 421 (4th Cir. 2005)
(quoting Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g
(Continued)
                                          8
                                         A.

      Oldendorff first argues that the district court erred in

denying its motions for judgment as a matter of law because

“[t]he open and obvious nature of the icy deck was established

beyond dispute,” and Oldendorff had “a responsibility to warn

only of hidden dangers.” Opening Br. 8, 17. 4 Those assertions are

correct statements of the law, as far as they go. The problem

for Oldendorff is that its liability does not depend on the duty

to    warn;    rather,   as    the   district       court    repeatedly    (and

correctly)     indicated,     this       is   a   simple    case   of   primary

negligence.

                                         1.

      Section 5(b) of the Act permits a longshoreman to “seek

damages in a third-party negligence action against the owner of

the   vessel    on   which    he   was    injured.”    Howlett     v.   Birkdale




Corp., 51 F.3d 1229, 1237 (4th Cir. 1995)). There is no reason
to deviate from that rule here.
     4
       Our applicable standard of review in these circumstances
is well-settled:

           We review the denial of a Rule 50(b) motion de
      novo, viewing the evidence in the light most favorable
      to the prevailing party, and will affirm the denial of
      such a motion unless the jury lacked a legally
      sufficient evidentiary basis for its verdict. First
      Union Commercial Corp. v. GATX Capital Corp., 411 F.3d
      551, 556 (4th Cir. 2005).

Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012).


                                         9
Shipping Co., S.A., 512 U.S. 92, 96 (1994). The Act does not,

however, “specify the acts or omissions of the vessel that . . .

constitute negligence”; rather, “the contours of a vessel’s duty

to   longshoremen   [have   been]    .   .   .   resolved   through   the

application of accepted principles of tort law and the ordinary

process of litigation.” Howlett, 512 U.S. at 97–98 (internal

quotation marks omitted). In Scindia Steam Navigation Co., Ltd.

v. De Los Santos (“Scindia”), the Supreme Court “outlined the

three general duties shipowners owe to longshoremen.” Id. at 98

(citing Scindia, 451 U.S. 156 (1981)).

     The first, which courts have come to call the
     “turnover duty,” relates to the condition of the ship
     upon the commencement of stevedoring operations. The
     second duty, applicable once stevedoring operations
     have begun, provides that a shipowner must exercise
     reasonable care to prevent injuries to longshoremen in
     areas that remain under the “active control of the
     vessel.”   The  third   duty,  called   the  “duty  to
     intervene,” concerns the vessel’s obligations with
     regard to cargo operations in areas under the
     principal control of the independent stevedore.

Id. (internal citations omitted) (citing Scindia, 451 U.S. at

167–78). Here, only the turnover duty is at issue.

     “The turnover duty has two components.” Lincoln v. Reksten

Mgmt., 354 F.3d 262, 266 (4th Cir. 2003).

     The first involves the shipowner’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 circumstances to have the ship and its
     equipment in such condition that an expert and
     experienced stevedore will be able by the exercise of

                                    10
       reasonable care to carry on its cargo operations with
       reasonable safety to persons and property.”

Id. (alteration in original) (emphasis added) (quoting Scindia,

451 U.S. at 166–67). “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 stevedore and would
         not be obvious to or anticipated by him if
         reasonably competent in the performance of his work.

Id. (emphasis added) (quoting Scindia, 451 U.S. at 167). “The

duty   to    warn   attaches   only      to    latent   hazards,”    id.    (quoting

Howlett, 512 U.S. at 99–100); “[i]f a defect is open and obvious

and    the   stevedore    should    be    able    to    conduct   its     operations

around it safely, the shipowner does not violate the duty to

warn,” id.

       In    denying   Oldendorff     judgment     as   a   matter   of    law,   the

district court reasoned that “[t]he validity of [the] [open and

obvious] rule or its applicability to ice on the deck under

general circumstances [was] never . . . in dispute.” Bunn, 2012

WL 2681412, at *2 (emphasis added).

       What was in dispute was whether Fediv voluntarily
       assumed the responsibility for salting and sanding the
       ice in the places where he knew CNX personnel would be
       working.




                                          11
Id. The court further reasoned that, “while ice on the deck may

[have] be[en] open and obvious, it was not obvious that the ship

owner would promise to take care of the hazard, and then not do

so.” Id.

     [W]hen a ship owner voluntarily and affirmatively
     undertakes to remedy an unsafe condition, but fails to
     do so, liability can attach to the ship owner . . . .
     Thus,   there  was   no  question  that   the  central
     determination regarding liability to be reached at
     trial was whether Fediv had promised to clear those
     portions of the deck where those unloading the vessel
     would need to traverse.

Id. at     *1.    Because   the    jury     could    reasonably     credit    White’s

testimony that Fediv had promised to treat ice leading to and

around the cargo holds, the court concluded that the jury could

reasonably find Oldendorff liable for affirmatively undertaking,

and failing, to remedy the unsafe condition. Id. at *2 & n.1.

That is, the jury could reasonably find Oldendorff liable for

simple negligence.

                                          2.

     We find no error in the district court’s reasoning. Several

other circuits have long held that a shipowner may be liable

under the Act for promising, yet failing, to remedy a dangerous

condition that injures a longshoreman. See Lieggi v. Maritime

Co. of the Philippines, 667 F.2d 324, 325–26, 329 (2d Cir. 1981)

(affirming       a   judgment     against      a   shipowner      whose    agent   had

“affirmatively       undert[aken],”       but      failed,   to   remove    wire   and


                                          12
grease spots that caused a longshoreman’s injuries because, “by

making this affirmative undertaking, the owner [had] eliminated

any possible reasonable basis for relying on the stevedore to

correct the hazardous condition”); Bueno v. United States, 687

F.2d 318, 320–21 (9th Cir. 1983) (finding that a shipowner may

be liable for a longshoreman’s injury aboard the ship when it

“voluntarily undert[akes] to check the safety of the vessel on a

regular basis”);      Webster v. M/V Moolchand, Sethia Liners, Ltd.,

730   F.2d   1035,   1037–38   (5th   Cir.   1984)     (affirming   a   jury’s

finding   of    liability   against   a    shipowner    because   “there   was

evidence that the winch [that injured the longshoreman] was not

operating      properly,    that   this    was   brought    to    the   crew’s

attention, and that their repair efforts failed”). 5

      Holding a shipowner liable for promising, but failing, to

remedy a dangerous condition comports with “accepted principles

of tort law,” which inform a shipowner’s duties under the Act.

      5
       Although some scholars view the relevant duty in Lieggi
and Webster as one of active involvement, not turnover, see 1
Thomas J. Schoenbaum & Jessica L. McClellan, Schoenbaum’s
Admiralty & Maritime Law § 7-10 (5th ed. 2012); Kenneth G.
Engerrand & Jonathan A. Tweedy, A Tedious Balance: Third Party
Claims Under the Longshore and Harbor Workers’ Compensation Act,
10 Loy. Mar. L.J. 1, 20 (2011), the Supreme Court has found that
the general principles supporting one duty under the Act may
apply to other duties, as well, Howlett, 512 U.S. at 102. For
the reasons given in text, we can discern no good reason to
limit liability arising from a shipowner’s breach of a promise
to correct a dangerous condition, even one that is otherwise
“open and obvious,” to the “active involvement” rubric.



                                      13
Howlett, 512 U.S. at 97–98. 6 These principles include the general

rule       that    “undertakings             can   create     a    duty    of    care.”       Dan      B.

Dobbs, Paul T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts §

410 (2d ed. 2012) (noting that “one who voluntarily assumes a

duty must then perform that duty with reasonable care”). “An

undertaking in this sense is a kind of explicit or implicit

promise,          or   at       least    a    commitment,     conveyed          in    words       or   in

conduct.” Id. (footnote omitted).

       The general rule is that the defendant is under a duty
       to perform undertakings made for safety purposes and
       is liable for physical harm he causes the plaintiff by
       negligently performing or quitting performance once it
       has begun.

Id. at § 411. Accord Dalldorf v. Higgerson-Buchanan, Inc., 402

F.2d 419, 422 (4th Cir. 1968) (“[A]nyone who does an affirmative

act    is    under          a    duty    to    others    to       exercise      the        care   of   a

reasonable man to protect them against an unreasonable risk of

harm to them arising out of the act.”) (internal quotation marks

omitted).          Because         the       credible    evidence         showed       that       Fediv

promised          to   treat       the       ice   but   failed      to    do        so,    the    jury

reasonably concluded that Fediv had failed to exercise due care.

       Holding a shipowner liable for promising, yet failing, to

remedy a hazard also comports with a well-settled principle of

       6
       Notably, Bunn’s complaint alleged negligence for both
failing to warn of the untreated ice, and for promising yet
failing to treat the ice in the first place. See J.A. 13–14
(Compl. ¶¶ 10, 12).


                                                   14
the   turnover    duty:    the    scope       of     that    duty    depends     on    the

circumstances of each particular case. See Lincoln, 354 F.3d at

266 (noting that a shipowner must exercise ordinary care “under

the   circumstances       to    have    the    ship”        in   a   reasonably       safe

condition) (emphasis added). When the circumstances include a

promise to remedy a dangerous situation, the shipowner may fail

to exercise reasonable care if it does not fulfill its promise. 7

Here, the evidence viewed in the light most favorable to Bunn

established that Fediv promised to treat the ice, and failed to

do so (perhaps because he “had a limited supply of salt,” see

supra, at 6). These circumstances provide a legally sufficient

evidentiary      basis    for    holding       Oldendorff        liable    for    Bunn’s

injuries.

                                          3.

      Apart   from   the       fact    that    the    jury       verdict   permissibly

rested on a finding of simple negligence, Oldendorff’s argument


      7
        Our   colleague   in    dissent insists   that  when   the
circumstances include an open and obvious hazard, the shipowner
“has a diminished turnover duty of safe condition.” Post, at 35
(citing cases from outside the Fourth Circuit). For the reasons
stated infra in Part II.A.3, however, the untreated ice was
neither open nor obvious. Moreover, in none of the cases cited
by the dissent did the shipowner expressly promise, and fail, to
remedy the hazardous condition. See, e.g., Pimental v. LTD Can.
Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992) (observing that the
plaintiff   had  “offered    no   proof that    the[]  [hazardous]
conditions were reported to the vessel crew”), cited post, at
35.



                                          15
that the ice was “open and obvious” conveniently overlooks the

fact that the presence of untreated ice was assuredly not “open

and obvious,” and betrays the company’s misplaced, narrow view

of the turnover duty. 8 That a shipowner generally need not warn

of open and obvious dangers does not negate the shipowner’s duty

to exercise ordinary care under the circumstances to ensure that

the ship is in a reasonably safe condition. Lincoln, 354 F.3d at

266 (quoting Scindia, 451 U.S. at 166–67). After all, the duty

to warn is a mere corollary to the turnover duty, not the sole

manner of measuring the reasonableness of a shipowner’s actions

upon turnover. See id. (quoting Scindia, 451 U.S. at 167). In

other words, failure to warn of a latent hazard is but one way a

shipowner may violate its turnover duty; promising, but failing,



    8
       Contrary to our dissenting colleague’s assertion, Bunn did
not concede that the untreated ice that he encountered near
hatch number three was open and obvious. See post, at 40.
Although Bunn asserted in his appellate brief that “the ice-
covered condition of the deck was open and obvious,” Resp. Br.
18 (emphasis added), he maintained that, following Fediv’s
promise, “the lack of treatment with sand and salt of the ice in
the darkened area where [he] was obliged to work”--i.e., the
area near hatch number three--“was not open and obvious,” id.
(emphasis added). See also Opp’n to Mot. for Summ. J, Bunn v.
Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D.
Md. Nov. 18, 2010), ECF No. 27, at 6 (“With the assurance by the
chief officer that he would make the slippery condition safe,
the slippery condition that continued to exist because of the
failure on the part of [Oldendorff] to correct same as promised
was no longer open and obvious . . . . [U]ntil [Bunn] fell, the
fact that [the slippery condition] had not been made safe was
neither open nor obvious to [CNX].”).


                               16
to remedy a dangerous condition may also establish a shipowner’s

failure to exercise ordinary care.

       In    any   case,     imposing   liability      on    a    shipowner      that

promises, but fails, to remedy a dangerous condition, and then

fails to warn of its own failure, is not inconsistent with our

prior cases on the open and obvious rule. Although a shipowner

need       not   warn   of   hazards    that   would    be       “obvious   to    or

anticipated” by a stevedore, Lincoln, 354 F.3d at 266 (quoting

Scindia, 451 U.S. at 166–67), a reasonably competent stevedore

has no reason to anticipate a hazard that the shipowner has

promised to remedy but fails, without warning, to do so. 9 Here,

for instance, the evidence viewed in the light most favorable to

       9
        The dissent asserts that “a shipowner can reasonably rely
on   an   expert   and  experienced  stevedore  and   its  expert
longshoremen to notice and avoid an open and obvious hazard,”
regardless of the shipowner’s “pre-turnover promise” to remedy
the hazard. Post, at 38–39. That may well be true when the
hazard remains open and obvious despite the unfulfilled promise
to remove it--imagine, for instance, a longshoreman encountering
a large oil slick in bright sunlight--but that is not the case
here. Common experience tells us that, unlike a brightly-lit oil
slick, ice may not be immediately visible, especially in the
dark. And viewing the evidence in the light most favorable to
Bunn, the untreated ice he encountered was neither open nor
obvious. Bunn discovered the ice--at night, in a poorly lit
area--only after taking the few steps that led to his fall.
Moreover, because Fediv knew where the CNX employees would be
working and had promised more than five hours before they
commenced work to treat the ice with salt and sand, Bunn had no
reason to anticipate a slippery surface near the number three
hatch. Thus, the untreated ice was a latent hazard. See, e.g.,
Lincoln, 354 at 266 (describing latent hazards as those that
“would not be . . . anticipated by” a longshoreman) (emphasis
added) (quoting Scindia, 451 U.S. at 167).


                                        17
Bunn        established      that    Fediv        promised   to      treat   the    ice;

accordingly, a jury could find that neither CNX (the stevedore)

nor Bunn (the longshoreman) had reason to anticipate untreated

ice    aboard       the    ship,    even   though     one    might    otherwise     have

expected such a hazard following a winter storm. 10

       We     are    not     persuaded       by    Oldendorff’s       argument     that,

regardless of Fediv’s promise to treat the ice, the untreated

ice remained an open and obvious condition as a matter of law,

absolving it of liability, even without Fediv communicating the

presence of the untreated ice to the stevedore. 11


       10
        Indeed, several witnesses testified that shipowners
generally bear responsibility for removing ice. See, e.g., Kevin
Palmer Test., J.A. 146 (testifying that “[it] would be usual”
for a ship’s crew to “be scraping the ice off their deck”);
White Test., J.A. 115 (“It’s [the chief mate’s] responsibility,
the vessel’s responsibility to clear [the ship], to make it safe
for stevedores[,] of the ice and the other debris that could be
up there.”).
       11
        It is readily apparent in its briefs and oral argument
that Oldendorff feels itself hemmed in by its inability to lay
much (if not all) of the blame for Bunn’s injury on his
employer,   CNX.   There   is  some   force   to   Oldendorff’s
understandable chagrin in this regard. Although Fediv promised
to make the work areas safe for the longshoremen loading the
coal, White, the CNX shift supervisor, apparently never
reboarded the ship to confirm that Fediv had done so before
ordering his workers, Bunn and Moxey, to commence operations.
But Congress has denied Oldendorff the opportunity it desires.
See Howlett, 512 U.S. at 97:

     Section   5(b)   also   eliminated   the   stevedore’s
     obligation, imposed by Ryan Stevedoring Co. v. Pan-
     Atlantic S.S. Corp., 350 U.S. 124 (1956), to indemnify
     a shipowner, if held liable to a longshoreman, for
(Continued)
                                             18
     Moreover, a shipowner is absolved of its duty to warn only

if the condition is both open and obvious and the stevedore’s

employee    is   “able   to   conduct    .   .   .    operations   around   [the

hazard]    safely.”   Lincoln,    354    F.3d    at    266   (citing   Bonds   v.

Mortensen & Lange, 717 F.2d 123, 127-28 (4th Cir. 1983)). 12 The




     breach of the stevedore’s express or implied warranty
     to conduct cargo operations with reasonable safety.

Furthermore, even assuming that Bunn indicated on deposition or
otherwise that he expects his employer to furnish a safe place
to work, such testimony does not absolve the shipowner of the
consequences of its direct primary negligence.

     Of course, a longshoreman’s own negligence, as opposed to
the negligence of his stevedore employer, may reduce a
shipowner’s liability. And indeed, as mentioned in text, the
jury here found Bunn 15 percent at fault for his injuries.
Although Bunn testified that he “noticed [a] pathway” that had
been cleared of ice, and “glance[d] around and [saw] ice in
other areas,” J.A. 226, this testimony does not establish beyond
dispute that he knew--before he fell and was injured--that the
ice near the number three hatch remained untreated. Indeed, Bunn
also testified that he fell almost immediately upon walking
toward the hold, see id. at 183 (testifying that he took only “a
couple steps, and the next thing [he] knew, [he] had slipped and
f[allen] right then, boom”). On this record, therefore, even had
we been asked to examine the issue (and we have not been asked)
we can discern no infirmity in the jury’s allocation of fault.
     12
        In Bonds, we held that the shipowner owed no duty to
intervene and stop discharging operations despite a gantry
crane’s malfunctioning bell, which failed to ring “when the
gantry move[d] forward or backward to warn longshoremen and the
ship’s crew of the gantry’s motion.” Bonds, 717 F.2d at 124. We
reasoned that the stevedore and longshoremen “were aware that
the bell was not functioning properly” and had not complained;
“the malfunctioning bell and ship’s design being obvious and
known to all, the shipowner was entitled to rely on [the
stevedore’s] judgment as to whether discharge operations could
(Continued)
                                        19
evidence, viewed in the light most favorable to Bunn, showed

that Oldendorff breached its duty to warn of the ice near the

number three hatch because it was impossible for Bunn to safely

navigate around the untreated ice to perform the cargo loading

operations. See, e.g., J.A. 92 (Moxey’s testimony that the area

around hatch number three was so “icy” that it was “unsafe” to

complete operations). 13




safely be undertaken.” Id. at 124, 127–28 & n.4 (emphasis
added). The reasoning of Bonds is inapplicable when, as here,
the shipowner had no reasonable basis for relying on the
longshoreman’s or stevedore’s judgment; neither CNX nor Bunn had
reason to expect the untreated ice near hatch number three after
Fediv promised to treat it, and thus, the ice was not “obvious
and known to all.” Id. at 127–28.
     13
        Contrary to our dissenting colleague’s assertion, see
post, at 41 n.7, the rule derived from Bonds and cited in
Lincoln is not inconsistent with Howlett, which was decided
nearly a decade before Lincoln. As the dissent recognizes, see
post, at 33, the duty to warn is a corollary to the turnover
duty of safe condition, Howlett, 512 U.S. at 98. As such, it is
subject to the same governing principles, including the rule
that a shipowner’s liability depends on whether the stevedore is
able “to carry on cargo operations with reasonable safety.” Id.
(internal quotation marks omitted). Indeed, several of our
sister   circuits--in   decisions  issued   after  Howlett--have
recognized that a shipowner may be liable for failure to warn of
even open and obvious hazards. See, e.g., Hill v. Reederei F.
Laesz G.M.B.H., Rostock, 435 F.3d 404, 409 (3d Cir. 2006)
(noting that a shipowner may be liable for not warning of an
“open and obvious hazard” if “avoiding the hazard would be
impractical for the longshoreman” or “the ship should have known
that the longshoremen would confront the hazard”), cited post,
at 35; Moore v. Angela MV, 353 F.3d 376, 381 (5th Cir. 2003)
(noting that “a vessel has no duty to warn of dangers that would
be obvious to a longshoreman of reasonable competence,” unless
“the longshoreman’s only alternatives to facing the hazard are
(Continued)
                               20
        (We emphasize that our discussion of the duty to warn is

merely dictum.)

       For all these reasons, we are not persuaded that the “jury

lacked a legally sufficient evidentiary basis for its verdict,”

Gregg, 678 F.3d at 341, and, thus, we conclude that the district

court did not err in its denial of the motions for judgment as a

matter of law.

                                           4.

        Before moving on to consider Oldendorff’s second issue on

appeal,       we   feel     it    appropriate    to   offer   a     few   respectful

responses to our good friend in dissent.

        Our colleague laments that

        the focus of the parties on the shipowner’s promise,
        rather than the character of the icy conditions, and
        the alternatives Bunn had in facing those conditions,
        left the jury with insufficient evidence to find
        Oldendorff breached its turnover duty.

Post,    at    32.    But    we   need   not    decide   whether    there   was   any

justification for “the [parties’] focus . . . on the shipowner’s

promise,” id.; there clearly was, as the promise was among the

circumstances that defined the standard of care. See Lincoln,

354 F.2d at 266 (noting that shipowners must exercise ordinary

care    “under       the    circumstances”).     Moreover,    the    parties   to   a



unduly impracticable or time-consuming or would force him to
leave the job”).



                                           21
lawsuit are entitled to frame the issues as each deems best.

See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008)

(“In our adversary system, in both civil and criminal cases, in

the first instance and on appeal, we follow the principle of

party presentation. That is, we rely on the parties to frame the

issues for decision and assign to courts the role of neutral

arbiter of matters the parties present . . . . [T]he parties

know what is best for them, and are responsible for advancing

the facts and arguments entitling them to relief.”) (internal

quotation marks omitted). The problem for Oldendorff--one from

which it cannot be rescued at this stage--is that it has elected

to litigate this case solely on the theory that it did not

breach the duty to warn, that is, that Oldendorff owed no duty

to warn of untreated ice after having promised, hours before

actual turnover of the vessel for loading, to treat the ice and

thereby render the areas around and abutting the holds safe.

Although we have offered up plenty of dicta to question the

legal   correctness     of    that    assertion,        our   affirmance    of   the

judgment   is   based   not    on    the    duty   to   warn   but   on    the   more

general turnover duty of safe condition. That is, we conclude

that the district court did not err in treating the breach of

Oldendorff’s promise, under the circumstances, as a failure to

exercise reasonable care in executing Oldendorff’s more general



                                           22
turnover       duty.      In   short,    the       evidence      supported           the    jury’s

finding of simple negligence.

     Adopting          Oldendorff’s          misguided       view       that        the    lawsuit

implicates only the duty to warn, the dissent asserts that “the

center of [our] disagreement . . . is the question of whether a

shipowner’s unfulfilled promise to remedy an open and obvious

hazard     affects         its    turnover          duty.”       Post,         at     32.     This

characterization           misses     the     mark,       not    only     for       the    reasons

articulated above but because it wrongly assumes that the hazard

created     by      the   presence      of    ice    on    the     deck    and       around      the

hatches remained precisely the same after Fediv’s promise to

treat     it   as    it    was   before       he    made    (and    then        breached)        his

promise:       perfectly       open   and     obvious.      See,     e.g.,       post,      at   39

(reasoning that “[a]s long as an unremedied hazard remains open

and obvious, a shipowner’s liability . . . is thus extremely

limited”) (emphasis added). For the reasons stated above, the

risk of injury from the untreated ice was decidedly not open and

obvious after Fediv made and then breached his promise to treat

it. We agree to disagree on that score. 14


     14
        To put it another way, Oldendorff should have known--
after Fediv’s promise and failure to treat the ice--that neither
Bunn nor    his  stevedore   employer  would  have   expected  a
longshoreman to encounter the slippery surface near hatch number
three. Thus, Oldendorff “should have expected that [Bunn] could
not or would not avoid the hazard and conduct cargo operations
reasonably safely.” Kirsch v. Plovidba, 971 F.2d 1026, 1031 (3d
(Continued)
                                               23
      Our     dissenting         colleague         insists          that    a      shipowner’s

turnover duty is narrow, see, e.g., post, at 32, 34, and that

stevedores and longshoremen bear the primary burden for ensuring

safe working conditions for longshoremen, see, e.g., post at 36

(observing that “a shipowner can, ordinarily, reasonably rely on

the stevedore [and longshoremen] . . . to notice obvious hazards

and to take steps consistent with [their] expertise to avoid

those   hazards       where      practical         to     do     so”)      (alterations       in

original) (quoting Kirsch v. Plovidba, 971 F.2d 1026, 1030 (3d

Cir. 1992)). Indeed, the dissent suggests that Bunn could have

prevented     his     injury       by,   inter           alia,      “clear[ing]      the    ice

himself.”     Post,    at       42–43.   But       that,       of    course,       would    have

required      Bunn    to    know      about        the     untreated        ice,    which     he

discovered only upon taking a few steps and immediately falling.

Moreover, the evidence at trial overwhelmingly established (and

the   jury    was    entitled      to    find)       that      the    responsibility         for

removing ice aboard a ship customarily rests with the shipowner.

See   supra    n.10.       As   the   dissent        concedes,        see    post,     at    39,

custom, like any other circumstance surrounding an accident, may




Cir. 1992), cited in post, at 39–40. As such, the jury was
entitled to find Oldendorff liable based on Fediv’s failure to
treat the ice as promised. Id.



                                              24
inform a shipowner’s duties to longshoremen. 15 And, of course,

any negligence on the part of a stevedore--here, CNX, acting

through its agent White--does not absolve a shipowner such as

Oldendorff       of    its    own   duty   of    care.    See,    e.g.,       Woodruff   v.

United States, 710 F.2d 128, 132 n.9 (4th Cir. 1983) (noting

that a shipowner “will be liable for the full extent of [a]

[longshoreman’s]         injuries      notwithstanding          proof    of    concurrent

negligence       contributing        to    the   injury     on    the    part    of   [the

stevedore], diminished only by [the longshoreman’s] contributory

negligence.”)           (citing        Edmonds       v.         Compagnie        Generale

Transatlantique, 443 U.S. 256 (1979)).

      For the reasons set forth, we think to say the turnover

duty is “narrow” is to speak descriptively, not prescriptively;

we   do    not   believe      the    Supreme     Court    has    built    the    kind    of

impenetrable          silos   of    theories     cabining       shipowner      negligence

with the rigidity that the dissent believes exist. If, indeed,

that is the import of the rule adopted by the Third, Fifth, and

Ninth Circuits, as the dissent’s reliance on their precedents

suggests, we choose a different path.


      15
        The dissent risks oversimplifying the case by suggesting
that darkness alone was the hazard giving rise to Bunn’s injury.
See post, at 44–45. As stated above, Oldendorff’s liability
arose from the totality of the circumstances, which included not
only the ship’s poor lighting, but Fediv’s promise to treat the
ice, his failure to do so, and the custom of shipowners taking
responsibility for removing ice aboard ships.


                                            25
       In any event, distilled to its essence, the dissent’s real

concern       seems    to   rest     on    its    unstated       belief     that   the   jury

should have found Bunn 100 percent at fault rather than merely

the 15 percent the jury did find. See post, at 39 (suggesting

that Bunn “shirk[ed] his duty to act with reasonable care”); but

see     supra     n.11.       But    whether          Bunn’s     failure      to    exercise

reasonable       care       for     his    own        safety    constituted        the   sole

proximate cause of his injuries--the crux of the dissent--is not

presented as an issue in this case.

       Finally, we confess we find somewhat puzzling the dissent’s

assertion       that    the    proper      outcome       is     neither    affirmance     nor

judgment for Oldendorff as a matter of law, but rather, “a new

trial or other proceedings.” Post, at 47. Yet our good friend

fails     to    explain       what        such    proceedings        would     accomplish.

Oldendorff has not, for example, challenged the sufficiency of

the verdict on the grounds that the district court allowed the

jury     to     consider          unreliable,         and      therefore,     inadmissible

evidence. See, e.g., Weisgram v. Marley Co., 582 U.S. 440, 443

(2000). Nor has Bunn, as appellee, asked for a new trial if we

find the district court erred in denying Oldendorff’s motions

for judgment as a matter of law. See Fed. R. Civ. P. 50(e);

Neely v. Martin K. Elby Constr. Co., 386 U.S. 317, 327 (1967)

(observing that a plaintiff-appellee may be entitled to a new

trial if “[t]he erroneous exclusion of evidence . . . would have

                                                 26
strengthened his case” or “the trial court itself caused the

insufficiency in [the] plaintiff-appellee’s case by erroneously

placing too high a burden of proof on him at trial”), cited

post, at 47. The task before us, then, is quite simple, and

requires no further proceedings: we need only decide “whether a

jury,   viewing   the    evidence    in       the   light    most    favorable   to

[Bunn], could have properly reached the conclusion reached by

this jury.” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001)

(internal    quotation     marks    omitted).       For     the    reasons   stated

above, we conclude that the answer is yes, and affirm the denial

of Oldendorff’s motions for judgment as a matter of law.

                                         B.

     Finally, Oldendorff argues that the district court erred in

denying its motion for a new trial because the court’s refusal

to give the company’s requested “open and obvious instruction

deprived the jury of a full and accurate understanding of the

law,” and “deprived [Oldendorff] of the opportunity to argue

effectively the significance of the open and obvious defense.”

Opening Br. 40–41.

     “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.” Figg v.

Schroeder, 312 F.3d 625, 641 (4th Cir. 2002) (internal quotation



                                         27
marks omitted). 16 Similarly, “[w]e review a trial court’s jury

instructions for abuse of discretion,” keeping in mind that “a

trial court has broad discretion in framing its instructions to

a jury.” Volvo Trademark Holding Aktiebolaget v. Clark Mach.

Co., 510 F.3d 474, 484 (4th Cir. 2007). “Instructions will be

considered adequate if construed as a whole, and in light of the

whole       record,     they       adequately       informed     the     jury     of    the

controlling legal principles without misleading or confusing the

jury to the prejudice of the existing party.” King v. McMillan,

594 F.3d 301, 311 (4th Cir. 2010) (internal quotation marks and

brackets omitted). “Even if a jury was erroneously instructed,

however, we will not set aside a resulting verdict unless the

erroneous       instruction         seriously        prejudiced        the    challenging

party’s case.” Coll. Loan Corp. v. SLM Corp., 396 F.3d 588, 595

(4th    Cir.    2005)        (emphasis      added)      (internal      quotation       marks

omitted).

       Preliminarily,          we    hold    that       Oldendorff      has   failed      to

preserve a challenge to the jury instructions, as the company

has provided no record of an objection to the district court.

See    Fed.    R.     Civ.    P.    51(c)(1)      (“A    party   who    objects    to    an

instruction or the failure to give an instruction must do so on

       16
         Collapsing  all  its   claims  into  one,  Oldendorff
erroneously contends that our standard of review of the denial
of its motion for a new trial is de novo. Opening Br. 8-9, 39–
41. It is not.


                                             28
the record, stating distinctly the matter objected to and the

grounds for the objection”). When challenging instructions on

appeal, a party must “furnish the court of appeals with so much

of the record of the proceedings below as is necessary to enable

informed appellate review.” Faigin v. Kelly, 184 F.3d 67, 87

(1st Cir. 1999) (finding that appellant’s “fail[ure] to supply a

transcript of the Rule 51 sidebar conference” gave rise to a

“presumption         that     none      of    his       challenges     to     the    jury

instructions were properly preserved”), cited in Belk, Inc. v.

Meyer    Corp.,      U.S.,     679   F.3d     146,      154   n.6    (4th    Cir.    2012)

(finding that appellant had “waived its challenge to any jury

instructions” because it had failed, inter alia, “to provide a

record citation to where it objected to any given or omitted

jury instruction”). See also Maltby v. Winston, 36 F.3d 548, 560

(7th    Cir.    1994)       (finding    that      the    appellant     had    failed    to

preserve       his    challenge        to    jury    instructions       because      “the

instruction          conference        in    the     district        court     was     not

memorialized in the record,” and the appellant had not otherwise

“ma[d]e a sufficient record”).

       Here,      Oldendorff         has     provided         only    its     requested

instructions, and those that the court ultimately gave the jury.

“Importantly, the mere tendering of a proposed instruction will

not preserve error for appeal.” Kevin F. O'Malley, et al., 1

Fed. Jury Practice & Instructions § 7:4 (5th ed. 2012). See also

                                             29
City of Richmond, Va. v. Madison Mgmt. Grp., Inc., 918 F.2d 438,

453 (4th Cir. 1990) (“Where . . . a party who has violated Rule

51   can   point   to   nothing     more    than    the    court’s      denial   of    a

requested    instruction,     a   reading     of    Rule    51   loose    enough      to

permit preservation of the point would effectively delete Rule

51 insofar as allegations of error in the failure to give an

instruction are concerned.”).

       In any event, even were we to reach the issue, we would

conclude    it   is    meritless.    For    the    reasons    stated     above,    see

supra Part II.A, the court properly informed the jury that a

shipowner may be “liable for injury resulting directly from an

unsafe condition on the ship of which it was aware and which it

voluntarily agreed and undertook to remedy, but failed to do

so.” J.A. 387. That a shipowner generally need not warn of an

open and obvious hazard does not absolve the shipowner of its

more    general       duty   to   exercise         ordinary      care    under     the

circumstances to ensure that the ship is in a reasonably safe

condition. Lincoln, 354 F.3d at 266 (quoting Scindia, 451 U.S.

at 166–67). Thus, we cannot see how Oldendorff was prejudiced,

let alone seriously prejudiced, by the absence of any specific

instruction on the open and obvious defense. Coll. Loan Corp.,

396 F.3d at 595.

       Moreover,      Oldendorff’s         proposed       instruction--“In         the

absence of any agreement, the ship is not responsible for any

                                       30
open and obvious condition.”--was an incomplete statement of the

law in any event. J.A. 84. In fact, a shipowner may still be

liable for failing to warn of an open and obvious hazard if a

stevedore’s   employee   would      not    be   able   to   work   around   the

hazard. Lincoln, 354 F.3d at 266. Accordingly, we find no abuse

of discretion in the district court’s denial of the motion for a

new trial.

                                    III.

     Like    ships   passing   in    the    night,     plaintiff   Bunn,    the

district court, and the jury, on the one hand, understood this

case was principally one of simple negligence, whereas on the

other hand, Oldendorff has insisted, here to the very end, that

it was solely a failure-to-warn case. For the reasons set forth

herein, we reject Oldendorff’s assertion and therefore affirm

the judgment.

                                                                     AFFIRMED




                                     31
MOTZ, Circuit Judge, dissenting:

      With respect, I dissent.                 In my view, the focus of the

parties on the shipowner’s promise, rather than the character of

the   icy    conditions,      and   the   alternatives      Bunn   had   in   facing

those conditions, left the jury with insufficient evidence to

find Oldendorff breached its turnover duty. 1



                                          I.

      At the center of my disagreement with the majority is the

question of whether a shipowner’s unfulfilled promise to remedy

an open and obvious hazard affects its turnover duty.

      It is well established that § 905(b) of the Longshore and

Harbor      Workers’   Compensation       Act    imposes    upon   a   shipowner   a

narrow turnover duty.           See Scindia Steam Navigation Co. v. De

Los   Santos,    451   U.S.    156,   166-67      (1981);    Kirksey     v.   Tonghai

Mar., 535 F.3d 388, 391 (5th Cir. 2008).                   This duty “relates to

the condition of the ship upon the commencement of stevedoring

operations” and “has two components.”               Lincoln v. Reksten Mgmt.,

354 F.3d 262, 266 (4th Cir. 2003).




      1
       I agree, for the reasons well stated by the majority, that
Oldendorff’s appeals of the district court’s order denying
summary judgment and its jury instructions are not properly
before us.



                                          32
      First, a 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.”

Scindia, 451 U.S. at 166-67 (emphasis added).                     This duty is

known as the turnover duty of safe condition.               See, e.g., Ludwig

v. Pan Ocean Shipping Co., 941 F.2d 849, 851 (9th Cir. 1991). 2

      As a corollary to the turnover duty of safe condition, a

shipowner must also

      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 stevedore and would not
      be obvious to or anticipated by him if reasonably
      competent in the performance of his work.

      2
       “Although the turnover duty of safe condition is usually
framed in terms of stevedores, it is clear that danger to
longshore workers is an essential part of the inquiry.” Thomas
v. Newton Int’l Enters., 42 F.3d 1266, 1270 n.4 (9th Cir. 1994)
(emphasis original).    Turning over a ship upon which an expert
stevedore can complete its operations with reasonable safety
necessarily requires turning over a ship upon which the
longshoremen--the stevedore’s expert employees who actually
perform   the   operations--can   complete  their   duties   with
reasonable safety.    Id.; accord Kirsch v. Plovidba, 971 F.2d
1026, 1029-30 (3d Cir. 1992). Hence, when determining whether a
shipowner has breached its turnover duty of safe condition, “the
focus of the factual inquiry is frequently directed at
experienced longshore workers”--not just their expert stevedore
employer. Thomas, 42 F.3d at 1270 n.4; accord Kirksey, 535 F.3d
at 396; Lincoln, 354 F.3d at 266; Kirsch, 971 F.2d at 1029-30.



                                     33
Scindia, 451 U.S. at 167 (emphasis added).                                  This duty is known

as the turnover duty to warn.                   See Howlett v. Birkdale Shipping

Co., S.A., 512 U.S. 92, 99 (1994).

       Thus, § 905(b) imposes on a shipowner duties at turnover

that are very narrow.               See Kirsch v. Plovidba, 971 F.2d 1026,

1029 (3d Cir. 1992) (“[T]he shipowner’s duty is only to provide

a    workplace       where        skilled       longshore           workers            can     operate

safely.”); see also Scindia, 451 U.S. at 170.                                The turnover duty

of   safe    condition       merely       requires          that       a    shipowner          exercise

ordinary care, under the circumstances, to provide an expert and

experienced stevedore or longshoreman, who exercises reasonable

care, the ability to carry out its operations with reasonable

safety.      Scindia, 451 U.S. at 166-67.                          The corollary turnover

duty to warn requires only that a shipowner exercise ordinary

care    to    provide        to     a    reasonably           competent               stevedore         or

longshoreman notice of non-obvious hazards.                                Id. at 167.

       Indeed,      the    openness       and     obviousness              of     a    hazard      to    a

stevedore     provides       a    shipowner          with    a     complete           defense      to    a

turnover     duty     to     warn        claim,       no     matter          how           unreasonably

dangerous     the    hazard.            See   Kirksey,           535       F.3d       at    393.    The

majority errs in asserting that a shipowner has a duty to warn a

stevedore of even an open and obvious hazard if the stevedore

“is [un]able to conduct . . . operations around [the hazard]


                                                34
safely.”         Ante at 11, 19-20.                     In fact, the Supreme Court has

explicitly rejected this view of the turnover duty to warn:

       The duty attaches only to latent hazards, defined as
       hazards that are not known to the stevedore and that
       would be neither obvious to nor anticipated by a
       skilled stevedore in the competent performance of its
       work.

Howlett, 512 U.S. at 105; see also Ludwig, 941 F.2d at 851 (“The

shipowner had no duty to warn Ludwig [the longshoreman] of the

hazard.          It    was        obvious,     so        its    mere     presence             carried    a

warning.”).

       Of course, the openness and obviousness of a hazard does

not    absolve         the    shipowner            of     its       turnover           duty    of    safe

condition.        See Manuel v. Cameron Offshore Boats, Inc., 103 F.3d

31, 34 (5th Cir. 1997); Kirsch, 971 F.2d at 1029-30; Ludwig, 941

F.2d   at    851.           But    when   a    hazard          is     open       and    obvious,        the

shipowner        has    a    diminished        turnover          duty       of    safe        condition.

See, e.g., Kirksey, 535 F.3d at 395-96; Hill v. Reederei F.

Laeisz    G.M.B.H.,          Rostock,     435       F.3d        404,    409       (3d    Cir.       2006);

Keller      v.    United      States,         38    F.3d        16,    24     (1st       Cir.       1994);

Pimental v. LTD Can. Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992);

Ludwig, 941 F.2d at 851-52.

       As the Third Circuit has explained, “a shipowner may be

negligent for failing to eliminate an [open and] obvious hazard

that it could have eliminated . . . only when it should have

expected that an expert stevedore [or longshoreman] could not or

                                                   35
would        not   avoid   the   hazard    and   conduct   cargo   operations

reasonably safely.”         Kirsch, 971 F.2d at 1031 (emphasis added).

         This standard recognizes that “a shipowner can, ordinarily,

reasonably rely on the stevedore [and longshoremen] . . . to

notice obvious hazards and to take steps consistent with [their]

expertise to avoid those hazards where practical to do so.”              Id.

at 1030; see also Howlett, 512 U.S. at 101; Ludwig, 941 F.2d at

852. 3       An expert and experienced longshoreman can avoid open and

obvious hazards in a number of ways, for example by fixing the

hazard himself, see Albergo v. Hellenic Lines, Inc., 658 F.2d

66, 69 (2d Cir. 1981), or completing operations while avoiding

the hazard, see Bjaranson v. Botelho Shipping Corp., Manila, 873

F.2d 1204, 1208 (9th Cir. 1989); Morris v. Compagnie Mar. Des

Chargeurs Reunis, S.A., 832 F.2d 67, 70 (5th Cir. 1987).                  So

long as an expert longshoreman has available such an option, a

shipowner cannot be held liable for a breach of its turnover




         3
       The negligence of a stevedore does not bar an injured
longshoreman’s recovery from a negligent shipowner.          See
Woodruff v. United States, 710 F.2d 128, 131-32 & n.7 (4th Cir.
1983). However, a shipowner breaches its turnover duty of safe
condition only when an expert stevedore and its expert
longshoremen could not through reasonable care carry on
operations with reasonable safety.    See Scindia, 451 U.S. at
166-67; Kirsch, 971 F.2d at 1029. If, through reasonable care,
operations could have been completed with reasonable safety, the
inquiry ends there, regardless of how negligent the stevedore
has been.



                                          36
duty of safe condition.               Rather, the shipowner can reasonably

rely on the longshoreman to exercise an alternative option.



                                             II.

       The        majority       largely     ignores      the      above    principles.

Instead,          relying    primarily     on      Lieggi     v.    Maritime      Co.   of

Philippines, 667 F.2d 324 (2d Cir. 1981) and two similar active

operations duty cases, the majority holds that “a shipowner may

be liable under the Act for promising, yet failing, to remedy a

dangerous condition that injures a longshoreman.”                          Ante at 12. 4

The    case        at    hand,    however,      does    not     concern     the    active

operations duty.             And the logic of the active operations duty

does not extend to the turnover duty context.

       Contrary to the majority’s suggestion, a “stark contrast”

exists between the turnover duty and the active operations duty.

See Davis v. Portline Transportes Mar. Internacional, 16 F.3d

532,       537     (3d   Cir.     1994).      The      turnover     duty    covers      the

shipowner’s conduct before the stevedore’s cargo operations have

begun, while the active operations duty covers a shipowner’s

conduct          after   cargo     operations      have     begun    in    those     areas

       4
       The active operations duty requires a shipowner after
turnover “not to take negligent actions in areas under its
control that threaten the longshoremen's safety.”  Serbin v.
Bora Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996); see also
Scindia, 451 U.S. at 167.



                                             37
remaining under control of the shipowner.                     See Scindia, 451 U.S.

at 167; Davis, 16 F.3d at 537.

     The    active   operations       duty    does      not    rest    on    whether   an

expert     stevedore     and    its     expert         longshoremen         could    have

completed operations with reasonable safety.                    Instead, that duty

rests on whether a shipowner negligently exposes longshoremen to

any hazards--even avoidable ones--in areas under the shipowner’s

control    during    stevedoring       operations.            See     Serbin    v.   Bora

Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996).                         For this reason,

the obviousness of a hazard does not presumptively bar recovery

under an active operations duty claim.                   Id. at 75-76; Pimental,

965 F.2d at 16.

     But    the    obviousness    of    a    hazard      does    presumptively         bar

recovery under a turnover duty claim.                   See Kirksey, 535 F.3d at

395-96; Kirsch, 971 F.2d at 1031; Pimental, 965 F.2d at 16;

Ludwig,    941    F.2d   at   851-52.        And   a    shipowner’s         pre-turnover

promise to remedy an open and obvious hazard does not itself

affect the openness and obviousness of the hazard at turnover.

Rather, a shipowner can reasonably rely on an expert stevedore

and its expert longshoremen to notice and avoid an open and




                                        38
obvious hazard.          See Kirksey, 535 F.3d at 394; Kirsch, 971 F.2d

at 1030. 5

       Moreover, a shipowner’s promise to remedy a hazard does not

create a duty actionable under § 905(b).                   This is so because in

the absence of a “contract provision, positive law, or custom to

the contrary,” all § 905(b) claims must fall under one of the

duties identified by the Supreme Court in Scindia.                      See 451 U.S.

at 172; Kirsch, 971 F.2d at 1031.                   An expert and experienced

longshoreman       cannot,    by    the    mere     virtue    of    a    shipowner’s

promise, shirk his duty to act with reasonable care in the face

of    an   open   and    obvious   hazard.        Holding    otherwise     raises   a

promise to the level of a contract, and impermissibly shifts

responsibility for longshoreman safety from stevedore (and the

longshoreman himself) to shipowner.

       As long as an unremedied hazard remains open and obvious, a

shipowner’s       liability    to     an       injured    longshoreman     is    thus

extremely     limited.        Absent       a    contract     provision,     statute,

regulation, or custom to the contrary, Scindia, 451 U.S. at 172,

the    shipowner    is    liable    only   to     the    extent   “it   should   have

       5
       The case at hand only involves a shipowner’s turnover duty
regarding open and obvious hazards.     A shipowner’s promise to
remedy a hazard that is neither known nor open and obvious may
affect the manner in which an expert and experienced stevedore
reasonably performs its operations.    In short, if a hazard is
not open and obvious, a stevedore would have reason to rely on a
shipowner’s representation that the hazard would be removed.



                                           39
expected that an expert stevedore [or longshoreman] could not or

would   not    avoid      the   hazard     and    conduct    cargo     operations

reasonably safely,” Kirsch, 971 F.2d at 1031.



                                     III.

     Considering the evidence in the light most favorable to

Bunn, and with these legal principles in mind, I cannot agree

with the majority’s disposition of this appeal.

     “[I]n many cases the obviousness of a hazard . . . will be

a jury question,” Kirsch, 971 F.2d at 1033, and if that were the

situation     here,   I   would   join    the    majority   in   sustaining     the

jury’s verdict.       But, both before this court and in the district

court, Bunn expressly conceded that “the ice-covered condition

of the deck was open and obvious.”                Resp. Br. at 18; see also

Bunn v. Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-

WMN (D. Md. Nov. 18, 2010), ECF No. 27, at 6.                    This concession

took this important question out of the hands of the jury at

trial, and binds us as we consider the proper application of the

law on appeal.

     Given     this    concession,       the    only   remaining     question   is

whether the evidence permitted a reasonable jury to conclude

that the shipowner, Oldendorff, violated either component of its

turnover duty by turning over the ship with open and obvious icy



                                         40
conditions.       It seems to me that the answer to that question is

certainly no.

       The parties focus on the turnover duty to warn, 6 and the

majority extensively discusses that duty, sometimes suggesting

that       Oldendorff   violated   it.        See   ante   at   15-23.   But   the

majority ultimately characterizes this discussion as “plenty of

dicta,” 7 and expressly disavows it as a basis of its holding.

The majority explains that its “affirmance of the judgment is

based not on the duty to warn but on the more general turnover
       6
       Contrary to the majority’s suggestion, ante at 15, 30-31,
Bunn deserves as much blame as Oldendorff for focusing on the
turnover duty to warn.    Both before the district court and on
appeal, Bunn did little to prioritize or offer evidence in
support of his turnover duty of safe condition claim.
       7
       In the course of this dicta, the majority asserts that,
although the ice on the ship was open and obvious, the “presence
of untreated ice was assuredly not ‘open and obvious.’” Ante at
15.      Howlett,   however,  cannot   be   avoided  simply   by
characterizing the ice as “untreated.”    This is so because, by
definition, ice and untreated ice are the same hazard. Just as
a shipowner’s unfulfilled promise to remedy an open and obvious
hazard--here icy conditions--does not render the hazard any less
open and obvious, so too a shipowner’s failure to treat the
hazard does not render it any less open and obvious.     Whether
one frames the hazard in this case as “ice” or “untreated ice,”
it remains equally open and obvious, and Howlett forecloses any
turnover duty to warn claim.

     Later in its own dicta, the majority relies on dicta in
Lincoln contending that a shipowner has a duty to warn a
stevedore of even open and obvious hazards if the stevedore “is
[un]able to conduct . . . operations around [the hazard]
safely.” Ante at 19. But, as noted above, Howlett simply does
not permit this conclusion.   For in Howlett the Supreme Court
expressly and clearly held that “[t]he duty [to warn] attaches
only to latent hazards.” 512 U.S. at 105 (emphasis added).



                                         41
duty of safe condition.”               Ante at 22 (emphasis original); see

also ante at 9 (“[L]iability does not depend on the duty to

warn.”).         This disavowal seems appropriate and inevitable given

the clear directive of Howlett--that the duty to warn “attaches

only       to    latent    [not   obvious]     hazards.”        512    U.S.   at    105

(emphasis added).

           However, affirmance on the basis of the turnover duty of

safe condition--the sole basis for the majority’s holding--is

not     possible      because     no   evidence     at     trial      established     a

violation of this duty.                That is, the jury had insufficient

evidence to find that the shipowner, Oldendorff, “should have

expected that an expert [longshoreman] could not or would not

avoid      the    hazard   [here,   icy   conditions     near      hold   three]    and

conduct cargo operations reasonably safely.”                     Kirsch, 971 F.2d

at 1031. 8

        Indeed, the only relevant evidence presented to the jury on

this critical point suggests that an expert longshoreman, in

Bunn’s position, might have avoided this open and obvious hazard

in several ways.            He might have avoided the icy condition near


       8
       The majority, focusing solely on the unfulfilled promise
of the shipowner (by Fediv), effectively ignores this most
fundamental inquiry into whether an expert longshoreman could
have “by the exercise of reasonable care . . . carr[ied] on
[his] cargo operations with reasonable safety to persons and
property.” Scindia, 451 U.S. at 166-67.



                                          42
hold three altogether by loading another hold or undertaking

another task.          Cf. Burchett v. Cargill, Inc., 48 F.3d 173, 179

(5th Cir. 1995); Bjaranson, 873 F.2d at 1208.                    Alternatively, he

might have cleared the ice himself, see Pimental, 965 F.2d at

16; Albergo, 658 F.2d at 69, or enlisted a crew member to do so,

see Kirsch, 971 F.2d at 1034.                    Of course, these options and

others       may    have    been   unavailable     to    Bunn,    but    the   record

provides no evidence to this effect.

       Nor    does    the    record   contain     any   evidence   that    Bunn    was

required to finish the job quickly, making him unable to avoid

the hazard.          See Teply v. Mobil Oil Corp., 859 F.2d 375, 378

(5th       Cir.    1988).     To   the    contrary,     Bunn’s   shift    supervisor

provided unrebutted testimony that if a longshoreman encounters

a hazardous condition on a ship “[h]e is empowered to shut the

operation down.”            JA 133.      And another longshoreman, Moxey, did

shut down operations when the icy conditions around hold three

remained hazardous several hours after Bunn’s fall.                     JA 92. 9


       9
       Bunn does not argue that a “contract provision, positive
law, or custom” forms the basis of his § 905(b) claim.       See
Scindia, 451 U.S. at 172. Indeed, by regulation, it is the duty
of the stevedore to “eliminate conditions causing slippery
walking and working surfaces in immediate areas used by
employees.”   29 C.F.R. § 1918.91.   Thus, the general principle
that a shipowner can reasonably rely on an expert stevedore and
its expert longshoremen to notice and avoid an open and obvious
hazard applies with full force to this case.     See Kirsch, 971
F.2d at 1030; Ludwig, 941 F.2d at 852.



                                            43
        Implicit in the majority’s holding may be the view that an

expert     and   experienced        longshoreman          would   be    unable   to

distinguish between treated and untreated ice and so have no

reason to pursue another option.             This may be so, but the record

contains no evidence on this point either.

     Of course, as the majority notes, Bunn argues in his briefs

that “the lack of treatment with sand and salt in the area where

[he] was obliged to work was not open and obvious.”                     See, e.g.,

Resp. Br. at 18.       No evidence, however, supports this argument.

Rather, at trial, Bunn himself testified that in well-lit areas

of the ship he could distinguish between treated and untreated

portions of the deck.         JA 178, 226-27.         Only in the dark, “very

poor[ly]” lit area around hold three was Bunn unable to tell

whether    the   ice   had   been   treated.         JA    182-83.      Bunn’s   own

testimony    therefore       supports   just    one       conclusion:    that    his

failure to notice the icy conditions was solely because it was

dark,      not    because       treated        and        untreated      ice     are

indistinguishable.       See Resp. Br. at 19 (conceding that “Mr.

Bunn . . . had testified . . . that the darkness in the area

around No. 3 hatch prevented [him] from discovering that the ice

in that area had not been treated.”).

     But to the extent that darkness constitutes a hazard, it is

assuredly obvious, and easily remedied by an expert longshoreman

(or indeed anyone with a flashlight).                     See, e.g., Harris v.

                                        44
Pac.-Gulf    Marine,     Inc.,    967    F.     Supp.     158,    164-65      (E.D.     Va.

1997); Chapman v. Bizet Shipping, S.A., 936 F. Supp. 982, 986

(S.D. Ga. 1996); Landsem v. Isuzu Motors, Ltd., 534 F. Supp.

448, 451 (D. Or. 1982), aff’d, 711 F.2d 1064 (9th Cir. 1983)

(table).           Therefore,     darkness         provides      no     basis     for    a

shipowner’s        liability    under    its       turnover      duties.        Nor     can

darkness render an obvious hazard latent.                        Cf. Harris, 967 F.

Supp. at 164; Chapman, 936 F. Supp. at 986.                      Otherwise the scope

of a shipowner’s turnover duties on identically hazardous ships

could     differ    depending     solely      on    the   time    of    day     when    the

turnover occurred. 10

     In     response     to     this    record      evidence      and    these     legal

principles, the majority is left to contend that not just poor

lighting but also the unfulfilled promise and a purported custom

of shipowners removing onboard ice constitute the “totality of

the circumstances” that renders Oldendorff liable.                         Ante at 24

n.15 (emphasis in original).             But, as explained above, like poor


     10
        The regulatory scheme governing stevedoring operations
supports the conclusion that natural darkness cannot contribute
to the latency of a hazardous condition; for it is the
stevedore’s--not shipowner’s--duty to provide an illuminated
workspace for cargo operations, and to provide longshoremen with
flashlights or other portable lights.   See 29 C.F.R. § 1918.2,
.92; see also Scindia, 451 U.S. at 176 (“The statutory duty of
the stevedore under [33 U.S.C.] § 941 to provide a safe place to
work has been implemented by the Safety and Health Regulations
for Longshoring. 29 CFR § 1918.1 et seq.”).



                                           45
lighting, an unfulfilled promise does not render an otherwise

obvious hazard latent.    See ante at 39.    And Bunn has never even

argued that custom (rather than the turnover duty) forms the

basis for his claim.      See ante at 43 n.9.       Thus, the record

provides no support for the view that the totality of these

circumstances barred Oldendorff from reasonably relying on an

expert longshoreman in Bunn’s position to notice and avoid the

obvious icy conditions.     See Kirksey, 535 F.3d at 394; Kirsch,

971 F.2d at 1030. 11

      In sum, the record is bereft of evidence that Oldendorff

“should have expected that an expert [longshoreman] could not or

would not avoid the hazard [here, icy conditions] and conduct

cargo operations reasonably safely,” Kirsch, 971 F.2d at 1031,

and   contains   considerable   evidence   suggesting   the   contrary.

Accordingly, the jury lacked an evidentiary basis to find that

Oldendorff breached its turnover duty of safe condition.

      11
        For, as we explained long ago, a shipowner is “entitled
to rely on [a stevedore’s] judgment as to whether discharge
operations could safely be undertaken.”    Bonds v. Mortensen &
Lange, 717 F.2d 123, 127-28 (4th Cir. 1983). There, we reversed
a verdict for a longshoreman killed by a crane with a
malfunctioning bell on the ground that the hazard was “known to
all” and was avoidable. Id. We explained that this is “not a
situation . . . in which the longshoremen were precluded from
performing their tasks except by a means which was inherently
dangerous.”   Id. at 127-28 & n.5.    That logic would seem to
require, at the very least, that in this case we vacate the
verdict and remand the case for further proceedings, as I
propose.



                                  46
                                                 IV.

       This is a complex case, made only more so by the parties’

failure to develop facts concerning the character of the icy

conditions         and   the    alternatives             Bunn    had     in    facing       those

conditions.          On the one hand, the record does not provide a

legally sufficient evidentiary basis from which a jury could

find that Oldendorff breached its turnover duty.                                On the other

hand,       the    record      does        not    clearly        foreclose      Oldendorff’s

possible liability for violating its turnover duty.                                 Rather, the

record is simply inadequate to allow a jury to resolve--one way

or    the    other--the        dispositive             legal    question       in    the    case:

whether “an expert [longshoreman] could not or would not avoid

the   hazard       and   conduct       cargo       operations       reasonably           safely.”

Kirsch, 971 F.2d at 1031.

       The        Supreme      Court        has        recognized       that        in     limited

circumstances “where the court of appeals sets aside the jury’s

verdict because the evidence was insufficient to send the case

to the jury,” as I believe it was here, “it is not so clear that

the litigation should be terminated.”                           Neely v. Martin K. Eby

Const. Co., 386 U.S. 317, 327 (1967).                          In my view, this is such

a    case.        Accordingly,         I    would       vacate    the    judgment          of   the

district court and remand the case for a new trial or other

proceedings consistent with this opinion.                           See Fed. R. Civ. P.



                                                  47
50(b); Weisgram   v.   Marley   Co.,   528   U.S.   440,   451-52   (2000);

Neely, 386 U.S. at 327-330.




                                  48
