Court Won’t Extend ‘Turnover’ Duty

The Norfolk U.S. District Court dismisses a longshoreman’s claim arising from injuries he allegedly received when attempting to board a barge owned by Columbia Leasing LLC and bareboat chartered to Columbia Coastal, who hired the stevedore Ceres Marine Terminals Inc. to handle container loading and unloading from the barge; the court says plaintiffs are entitled to summary judgment because they did not violate any of the three general duties ship owners owe to longshoremen.

Claimant, a refrigerated container (reefer) mechanic employed by Express Container Services, was scheduled to disconnect power to the reefer units on the barge when it arrived at Portsmouth Marine Terminal on Aug. 31, 2009. He alleges injuries from being thrown about the basket part of the forklift-and-basket apparatus used to deliver him to the barge, when a forklift prong caught the side of the barge ladder during maneuvering of the metal basket.

Section 905(b) of the Longshore and Harbor Workers Compensation Act permits a longshoreman to seek damages in a third-party negligence action against the owner of the vessel on which he was injured.

Here, claimants assert plaintiffs breached the “turnover duty” because they failed to deliver the vessel and its means of ingress and egress in a reasonably safe condition. Plaintiffs respond that their turnover duty did not include the forklift-and-basket means of ingress and egress because the stevedore owned the forklift and basket. Plaintiffs further assert that the vessel had its own ladder by which people might gain access to the barge and it was the stevedore’s choice to use the forklift and basket instead of the ladder. Plaintiffs also contend any alleged hazard related to the forklift and basket was open and obvious, thus relieving them of any duty to warn.

Claimants ask the court to extend the turnover duty, as a matter of law, to include the means of vessel ingress and egress, even when the means are supplied by a stevedore. The court declines claimants’ invitation to establish such a duty in the § 905(b) context.

The court finds the 4^th Circuit authority cited by claimants inapplicable to this case. The court finds plaintiffs’ turnover duty did not extend to Ceres’ forklift-and-basket method of accessing the barge. Even if a factual scenario may exist where it could be said that, as a matter of law, a vessel owes a duty to provide a safe means of ingress and egress to a longshoreman, this is not the case and the court leaves that question for another day.

Claimants make no assertion that plaintiffs maintained active control of the barge after delivering the barge to the stevedore or that plaintiffs breached their active control duty, and the court finds no genuine issue of material fact with respect to plaintiffs’ active control duty.

Claimants assert plaintiffs breached their duty to intervene because plaintiffs were deemed to have been aware of the inherently dangerous method of accessing the barge and that the continual use of this method was “obviously improvident.”

As a general matter, the ship owner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards. But there may be circumstances in which it would not be reasonable for the ship owner to assume the stevedore will correct the problem.

In this case, the forklift-and-basket combination was wholly owned, maintained and controlled by Ceres; thus, any alleged danger to longshoremen from accessing the barge via the forklift and basket did not arise from the malfunctioning of the ship’s gear being used in the cargo operations. Further, regardless of whether plaintiffs had knowledge of the condition, any inherent method of accessing the barge was obvious and known to all.

In sum, the court finds that, because plaintiffs did not violate any of the three general duties ship owners owe to longshoremen, claimant’s injury was not caused by the negligence of the vessel. Plaintiffs are entitled to summary judgment and exoneration from all claims against them.

In the Matter of the Complaint of Columbia Leasing LLC v. Mullen v. Ceres Marine Terminals Inc. (Davis) No. 2:12cv678, Jan. 10, 2014; USDC at Norfolk, Va.; Patrick M. Brogan for plaintiff/petitioner; Lance A. Jackson for claimants; John E. Holloway for Ceres. VLW 014-3-023, 36 pp.