Lead Opinion
Affirmed by published opinion. Judge DAVIS wrote the majority opinion, in which Judge WYNN joined. Judge MOTZ wrote a dissenting opinion.
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, PlaintiffAppellee Richard Bunn, slipped and fell on Oldendorffs ship, the CHRISTOFFER OLDENDORFF (“the ship”), during loading operations in the Baltimore port. For the following reasons, we reject Oldendorffs 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 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.
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 deck-house, and between the starboard rail and
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 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 deck-house, 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 his equipment, that he doesn’t hit the hatch cover, and also direct him on where’s the propеr 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. ISO-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*459 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.
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.
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 plaintiffs 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 plaintiffs 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-
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. l:10-cv-00255WMN (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.
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.
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 Shipping Co., S.A.,
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,
“The turnover duty has two components.” Lincoln v. Reksten Mgmt.,
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 reasonable care to carry on its cargo operations with reasonable safety to persons and property.”
Id. (alteration in original) (emphasis added) (quoting Scindia,
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,
In denying Oldendorff judgment as a matter of law, the district cоurt 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,
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.
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 conclud
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,
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. Howlett,
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.,
Holding a shipowner liable for promising, yet failing, to remedy a hazard also comports with a well-settled principle of the turnover duty: the scope of that duty depends on the circumstances of each particular case. See Lincoln,
3.
Apart from the fact that the jury verdict permissibly rested on a finding of simple negligence, Oldendorffs argument 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.
In any case, imposing liability on a shipowner that promises, but fails, to rem
We are not persuaded by Oldendorffs argument that, regardless of Fe-div’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.
(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,
Before moving on to consider Oldendorff s second issue on appeal, we feel it appropriate to offer а 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 470. 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,
Adopting Oldendorffs 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 470. 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 hаtches 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 473 (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.
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.
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 rаther than merely the 15 percent the jury did find. See post, at 473 (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 476. Yet our good
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,
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 the record, stating distinctly the matter objected to and the grounds for the
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 City of Richmond, Va. v. Madison Mgmt. Grp., Inc.,
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 mаy 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,
Moreover, Oldendorffs proposed instruction — “In the absence of any agreement, the ship is not responsible for any 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,
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 hаs insisted, here to the very end, that it was solely a failure-to-warn case. For the reasons set forth herein, we reject Oldendorffs assertion and therefore affirm the judgment.
AFFIRMED
Notes
. 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.
. 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.
. 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 judgmеnt after a full trial and final judgment on the merits.’ ” Varghese v. Honeywell Int’l, Inc.,
. 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,
. 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,
. 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.lMl 10, 12).
. 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 471 (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,
. 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 473. 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 Fe-div’s promise, "the lack of treatment with sand and salt of the ice in the darkened area iwhere [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].”)-
. 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 472-73. 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,
. 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.”).
.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,
Section 5(b) also eliminated the stevedore's obligation, imposed by Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,350 U.S. 124 ,76 S.Ct. 232 ,100 L.Ed. 133 (1956), to indemnify a shipowner, if held liable to a longshoreman, for breach of the stevedore's express or impliеd 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
. In Bonds, we held that the shipowner owed no duty to intervene and stop discharging operations dеspite 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,
. Contrary to our dissenting colleague's assertion, see post, at 473-74 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 470, the duty to warn is a corollary to the turnover duty of safe condition, Howlett,
. 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
. The dissent risks oversimplifying the case by suggesting that darkness alone was the hazard giving rise to Bunn’s injury. See post, at 474-75. 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.
. 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.
Dissenting Opinion
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.
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,
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,
As a cоrollary 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.
Scindia,
Thus, § 905(b) imposes on a shipowner duties at turnover that are very narrow. See Kirsch v. Plovidba,
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,
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,
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.,
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 would not avoid the hazard and conduct cargo operations reasonably safely.” Kirsch,
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,
II.
The majority largely ignores the above principles. Instead, relying primarily on Lieggi v. Maritime Co. of Philippines,
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,
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.,
But the obviousness of a hazard does presumptively bar recovery under a turnover duty clаim. See Kirksey,
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 provi
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,
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,
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 conditions. It seems to me that the answer to that question is certainly no.
The parties focus on the turnover duty to warn,
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,
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 hold three altogether by loading another hold or undertaking another task. Cf. Burchett v. Cargill, Inc.,
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.,
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 treat
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. Pac.-Gulf Marine, Inc.,
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 on-board ice constitute the “totality of the circumstances” that renders Oldendorff liable. Ante at 467 n. 15 (emphasis in original). But, as explained above, like poor lighting, an unfulfilled promise does not render аn otherwise obvious hazard latent. See ante at 472-73. And Bunn has never even argued that custom (rather than the turnover duty) forms the basis for his claim. See ante at 474 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,
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 Oldendorffs 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,
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.,
. 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.
. “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.,
. The negligence of a stevedore does not bar an injured longshoreman's recovery from a negligent shipowner. See Woodruff v. United States,
. 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.,
. 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.
. Contrary to the majority’s suggestion, ante at 463, 469, 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.
. 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 463. 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 [unjable to conduct ... operations around [the hazard] safely.” Ante at 465. But, as noted
. 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,
. Bunn does not argue that a "contract provision, positive law, or custom” forms the basis of his § 905(b) claim. See Scindia,
. 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,
. 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,