Richard BUNN, Plaintiff-Appellee, v. OLDENDORFF CARRIERS GMBH & CO. KG, Defendant-Appellant.
No. 12-1888.
United States Court of Appeals, Fourth Circuit.
Argued: May 16, 2013. Decided: July 17, 2013.
723 F.3d 454
In sum, because I believe the plain language of
See also 763 F.Supp.2d 753.
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.
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,
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 115-16.1
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
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 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 еxactly 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 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 bit. 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
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.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 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-
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
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.
Id. at 98. 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 reasonable care to carry on its cargo operations with reasonable safety to persons and property.” 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. at 167. “The duty to warn attaches only to latent hazards,” 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 appliсability to ice on the deck under general circumstances [was] never in dispute.” Bunn, 2012 WL 2681412, at *2.
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 shiрowner 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 “af-firmatively undert[aken],” but failed, to remove wire and 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. 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 cаre“). “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.“). Because the credible evidence showed that
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, 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. 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 459). 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 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. After all, the duty to warn is a mere corollary to the turnover duty, not the sole manner of measuring the reasonableness of a ship-owner‘s actions upon turnover. See id. In other words, failure to warn of a latent hazard is but one way a shipowner may violate its turnover duty; promising, but failing, 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 rem-
We are not persuaded by Olden-dorff‘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
(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.
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, 354 F.3d at 266 (noting that shipowners must exercise ordinary care “under the circumstances“). Moreover, the parties to a 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 criminаl 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 turnоver 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 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 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 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.14
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 rather 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 friend fails to explain what such proceed-
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 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
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., 918 F.2d 438, 453 (4th Cir.1990) (“Where ... a party who has violated
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. 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 open and obvious condition.“—was an incomplete statement of the law in any evеnt. 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
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 stеvedoring operations” and “has two components.” Lincoln v. Reksten Mgmt., 354 F.3d 262, 266 (4th Cir. 2003).
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 reason-
able 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.
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,
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] safely.” Ante at 461, 465. 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 would not avoid the hazard and conduct cargo operations reasonably safely.” Kirsch, 971 F.2d at 1031 (emphasis added).
This standard recognizes that “a ship-owner 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, 66, 69 (2d Cir.1981),
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 462.4 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 con-duct after cargo operations have begun in those areas 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 hаzards—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 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
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 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 conсlude 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,6 and the majority extensively discusses that duty, sometimes suggesting that Oldendorff violated it. See ante at 463-66. But the majority ultimately characterizes this discussion as “plenty of dicta,”7 and expressly disavows it as a basis
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 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.” J.A. 133. And another longshoreman, Moxey, did shut down operations when the icy conditions around hold three remained hazardous several hours after Bunn‘s fall. J.A. 92.9
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., 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 prinсiples, 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 467 n. 15 (emphasis in original). But, as explained above, like poor lighting, an unfulfilled promise does not render an 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, 535 F.3d at 394; Kirsch, 971 F.2d at 1030.11
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 Olden-dorff‘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