Frederick Washington, et al v. The National Shipping Company of Saudi Arabia

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-12578
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D.C. Docket No. 4:16-cv-00337-RSB-CLR

FREDERICK WASHINGTON,
MINI JOLITA WASHINGTON,

Plaintiffs - Appellants,

versus

THE NATIONAL SHIPPING COMPANY
OF SAUDI ARABIA, d.b.a. Bahri,

Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 17, 2020)

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Before MARTIN, LUCK, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge:

This case arises out of injuries Frederick Washington suffered while
working as a longshoreman aboard cargo ship M/V Bahri Hofuf. Mr. Washington
and his wife, Mini Jolita Washington, sued the vessel’s owner, the National
Shipping Company of Saudi Arabia, d/b/a Bahri (“Bahri”). Their complaint
alleged negligence under § 905(b) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 905(b), as well as common law loss
of consortium. The District Court granted summary judgment to Bahri, holding
that it did not violate any of the duties owed by vessels under the LHWCA. The
Washingtons appeal the District Court’s decision, arguing that a material question
of fact remained as to whether Bahri breached its “turnover duty” of safe
condition. After careful consideration and with the benefit of oral argument, we
affirm the District Court’s grant of summary judgment to Bahri.
I.
On August 1, 2016, the M/V Bahri Hofuf (“the Bahri”) engaged SSA
Stevedores (“SSA”), a stevedoring company in the Port of Savannah, to assist in
discharging large steel coils weighing approximately 5.5 metric tons each. Mr.
Washington, who worked as a union longshoreman at the Port of Savannah, was
one of the people hired by SSA to assist with loading and unloading cargo that day.
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While Mr. Washington was working on the Bahri, a trailer loaded with the steel
coils uncoupled from the tractor as the tractor was pulling it up a ramp. This
caused the trailer to fall or roll back down the ramp to where Mr. Washington was
working. He was injured as he moved out of the way. Both the tractor and trailer
involved in the accident were provided by Bahri.
A. The Equipment
As per their agreement, on the day of the accident, Bahri gave SSA the
option of using certain of its own equipment in unloading operations. Bahri’s
contract with SSA, referred to as a Stevedore Terminal Contract, granted SSA
“sole discretion” over the use of Bahri’s equipment and required SSA to
“determine that such equipment complies with standards set by” the Occupational
Safety and Health Administration (“ OSHA”). It also provided that “[a]ny
equipment considered to be unsuitable to [SSA] shall not be used.”
SSA determined, with input from Bahri, that it would offload the coils in
part by loading them onto a Bahri-owned flatbed trailer known as a “MAFI,” and
pulling the MAFI off the ship by using a Bahri-owned tractor known as a
“Terberg.” A Terberg attaches to a MAFI using a connection hitch referred to as a
“gooseneck” connector, which was also provided to SSA by Bahri.
1
The MAFI

1
One side of the gooseneck attaches to the Terberg’s fifth wheel, while the other end—referred
to as the “lip”—slides into the MAFI’s “gooseneck tunnel” and over an internal connecting piece
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and Terberg that Bahri provided to SSA did not have any safety chains that could
have acted as a secondary, emergency connection in case the Terberg and MAFI
uncoupled. The only mechanism to keep the Terberg and MAFI attached was the
gooseneck itself.
Aside from the Terberg-MAFI combination provided by Bahri, SSA also
removed cargo that day using a leased “TICO” truck. Like a Terberg, a TICO
truck is used to pull a MAFI trailer, but instead of connecting to the MAFI through
a removable gooseneck connector, the TICO truck has a fixed MAFI attachment.
Because the mechanism connecting the TICO tractor to a MAFI trailer is “all one
piece,” the TICO-MAFI combination does not utilize any safety chains. On the
day of the accident, SSA alternated between using the TICO truck and the Terberg-
MAFI combination to unload coils from the Bahri.
B. The Accident
Aboard the Bahri, Mr. Washington worked as a “flagman.” In this capacity,
he used hand signals to direct the Terberg tractor through the vessel to the
appropriate loading location, and back out of the vessel once the cargo was loaded
onto the MAFI trailer. Working alongside Mr. Washington were Robert Manning,
a Terberg operator; Charles Hills, a forklift operator; and stevedores Daniel

at the end of the tunnel. The gooseneck lip also has brackets on either side that fit into sockets of
the gooseneck tunnel’s entryway when the Terberg raises the MAFI off the ground.
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Sheppard and Kevin Dotson. Mr. Sheppard and Mr. Dotson acted as supervisors
for SSA during this operation.
Mr. Manning, who was meant to operate the Terberg-MAFI combination
that day, expressed concern to Mr. Sheppard about the lack of safety chains
connecting the Terberg tractor to the MAFI trailer. Mr. Sheppard responded that it
was “fine” to use the equipment without safety chains. Mr. Dotson also assumed
the equipment was safe to use because he had used it previously for the same type
of operation. Notwithstanding Mr. Manning’s initial concerns about the lack of
safety chains, his conversation with his supervising stevedores “satisfied” him that
the equipment was safe to use, and he went on to operate the Terberg-MAFI as
provided.
The Terberg-MAFI combination was used to unload cargo from the Bahri
for several hours that day without incident. However, during one of the Terberg-
MAFI combination’s final trips,
2
the MAFI uncoupled from the Terberg at the top
of a four-story internal ramp. Mr. Washington was standing at the bottom of the
ramp at that time. As the MAFI rolled back down, it began “jumping,” emitting
sparks, and shaking the entire ship. Mr. Washington tried to avoid the MAFI by
stepping out of the way, but the trailer “jackknifed” straight towards him, causing

2
Mr. Manning recalled that there were “maybe three more trips” remaining at the time the
accident occurred.
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him to turn and flee. Mr. Hills, who was operating a forklift at the time, saw the
oncoming trailer and maneuvered his forklift in front of the MAFI to stop its
momentum. As Mr. Washington ran away, a coil that the forklift was carrying hit
Washington’s left leg, almost causing him to fall down before he jumped to safety
on the pipes behind Mr. Hills’s forklift. When Mr. Washington jumped on the
pipes, his shoulder hit the wall adjacent to the ramp. Mr. Hills characterized the
incident as a “life and death situation.”
Because at the time Mr. Washington believed he had merely sprained his
knee and bruised his shoulder, he did not report his injuries right away and
continued to work. However, his condition did not improve in the days that
followed, so on August 30, 2016 he reported his injuries to SSA’s safety director.
Mr. Washington later discovered that he had suffered a double meniscus tear in his
left knee, and a rotator cuff injury in his right shoulder. Due to his injuries, Mr.
Washington believed it would be “very difficult” for him to return to work as a
longshoreman.
C. Testimony Concerning the Use of Safety Chains
Poul Mollerup-Madsen, Bahri’s Port Captain, offered three possible
explanations for the accident. The first is that the MAFI was loaded incorrectly so
there was too much weight on the back of the trailer, causing the MAFI to tilt
backwards and detach. The second is that the MAFI and the Terberg were not
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completely attached via the gooseneck, thus making it more likely that they would
detach on an incline. And third, when the Terberg got to the top of the internal
ramp, it did not raise its fifth wheel high enough so that the MAFI trailer could also
clear the top of the ramp.
Whatever the cause of the accident, several witnesses testified that the use of
safety chains likely would have avoided it. For instance, Mr. Washington’s expert,
Henry Milam, concluded in his report that safety chains act as a “secondary,
emergency system to prevent the accidental disconnect” of a MAFI trailer. Mr.
Manning, an experienced Terberg operator, similarly posited that safety chains
would have avoided the accident. He said uncoupling is not uncommon when
MAFI trailers are pulled up a ramp, but that when this happens, safety chains
prevent the MAFI from rolling away further than the distance of the chain.
Mr. Manning also testified that he was trained to always use safety chains
when operating a Terberg-MAFI combination. Other longshoremen similarly said
that safety chains are generally used with Terberg trucks, and SSA policy dictates
that safety chains be used on MAFI-Terberg combinations whenever available. In
his expert report, Mr. Milam concluded that “best business practices” required the
use of safety chains when unloading cargo using the equipment in question, and
that Bahri had a “general duty” to provide equipment with safety chains. And
finally, the gooseneck’s operation manual provides that trailers such as the MAFI
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in question should “[p]referably” be equipped with safety hooks for increased
safety.
Before the accident involving Mr. Washington, cargo operations using
Bahri’s Terberg and MAFI had been carried out for ten years without any
uncoupling incident. SSA successfully used Bahri’s Terberg-MAFI combination
without safety chains during previous unloading operations, and used gooseneck
equipment without safety chains on the vessels of other shipping lines. Finally,
neither OSHA regulations nor the MAFI operating manual required the use of
safety chains.
D. Procedural History
The Washingtons filed an amended complaint against Bahri alleging
negligence under § 905(b) of the LHWCA and common law loss of consortium.
Bahri moved for summary judgment on both claims. The District Court granted
Bahri’s summary judgment motion, holding that (1) Bahri had not violated any of
the duties owed by vessels under § 905(b); and (2) because Mr. Washington could
not proceed on his § 905(b) claim, Bahri was entitled to summary judgment on his
wife’s derivative loss of consortium claim as well. Mr. Washington moved to alter
or amend the District Court’s summary judgment order under Federal Rule of Civil
Procedure 59(e), arguing that the court failed to consider certain evidence and
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misapplied the law concerning Bahri’s duty under § 905(b). The District Court
denied Mr. Washington’s motion in full.
On appeal, Mr. Washington challenges only those parts of the District Court
orders holding that Bahri satisfied the § 905(b) duty to turn over a vessel in safe
condition, commonly referred to as the “turnover duty of safe condition.”
II.
This Court reviews de novo the grant of summary judgment, applying the
same legal standard used by the district court. Shiver v. Chertoff, 549 F.3d 1342,
1343 (11th Cir. 2008) (per curiam). Summary judgment is proper only if there is
no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “In reviewing a grant of
summary judgment, we resolve all ambiguities and draw reasonable factual
inferences from the evidence in the non-movant’s favor.” Layton v. DHL Express
(USA), Inc., 686 F.3d 1172, 1175 (11th Cir. 2012). We “may affirm the district
court where the judgment entered is correct on any legal ground regardless of the
grounds addressed, adopted or rejected by the district court.” Bonanni Ship
Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir. 1992) (affirming
grant of summary judgment).
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III.
A. Bahri’s Duties Under the LHWCA.
Mr. Washington brings his claim under § 905(b) of the LHCWA, which
allows a longshoreman to seek damages in a third-party negligence action against
the owner of the vessel on which he was injured. 33 U.S.C. § 905(b). Section
905(b) reads, in relevant part:
In the event of injury to a person covered under this chapter caused by
the negligence of a vessel, then such person . . . may bring an action
against such vessel as a third party . . . . If such person was employed
by the vessel to provide stevedoring services, no such action shall be
permitted if the injury was caused by the negligence of persons engaged
in providing stevedoring services to the vessel. . . . The remedy
provided in this subsection shall be exclusive of all other remedies
against the vessel except remedies available under this chapter.
Id.
Before § 905(b) was enacted in 1972, the LHCWA made shipowners strictly
liable for injuries suffered by longshoremen due to a vessel’s unseaworthiness or
due to negligence. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S.
156, 164–65, 101 S. Ct. 1614, 1620–21 (1981). By abolishing claims for
unseaworthiness, and instead limiting a vessel’s liability to claims sounding in
negligence, Congress intended to “shift more of the responsibility for
compensating injured longshoremen to the party best able to prevent injuries: the
stevedore-employer.” Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 97,
114 S. Ct. 2057, 2063 (1994). Consistent with Congress’s intent to limit liability
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against shipowners, the Supreme Court in Scindia interpreted § 905(b) to impose
three limited duties on vessels (often referred to as “Scindia duties”): (1) the
“turnover duty”; (2) the “active control” duty; and (3) the “duty to intervene.” Id.
at 98, 114 S. Ct. at 2063 (citing Scindia, 451 U.S. at 167–78, 101 S. Ct. at 1622–
23).
At issue in this appeal is the first of these duties, the turnover duty. It
encompasses two separate components: the duty to turn over the ship and its
equipment in safe condition, and the corollary duty to warn the stevedore of any
hidden dangers. Id. at 98–99. Mr. Washington challenges only the District Court’s
finding as to the first component, the turnover duty of safe condition. The
Supreme Court defined this duty in Howlett as requiring the ship owner to
exercise ordinary care under the circumstances to turn over the ship and
its equipment and appliances in such condition that an expert and
experienced stevedoring contractor, mindful of the dangers he should
reasonably expect to encounter, arising from the hazards of the ship’s
service or otherwise, will be able by the exercise of ordinary care to
carry on cargo operations with reasonable safety to persons and
property.

Id. (quotation marks omitted). At its core, the turnover duty of safe condition
requires that a shipowner “turn over the ship and its equipment in a condition that
permits a stevedore to do its work with reasonable safety.” Roach v. M/V Aqua
Grace, 857 F.2d 1575, 1581 (11th Cir. 1988).
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Mr. Washington argues here that the District Court wrongly decided, as a
matter of law, Bahri did not violate the turnover duty of safe condition by failing to
provide safety chains with its Terberg and MAFI. According to Mr. Washington,
the District Court employed “flawed reasoning” when it found that Bahri’s
equipment was reasonably safe because it had been used previously without
incident. Mr. Washington’s argument is without merit. The hazard was open and
obvious and could have been avoided by a reasonably competent stevedore.
Summary judgment was therefore appropriate.
B. The Hazard Was Open and Obvious and Could Have Been Avoided By
a Reasonably Competent Stevedore.

Our caselaw has developed since the close of briefing in this case. At the
time of the proceedings before the District Court, this circuit had not yet decided
whether failure to eliminate an open and obvious hazard can constitute breach of a
shipowner’s duty to turn over a vessel in safe condition. Analyzing caselaw from
other circuits, the District Court declined to adopt an open-and-obvious defense.
However, since the conclusion of briefing in this appeal, this Court has expressly
done so, allowing an open-and-obvious defense for negligence claims under the
turnover duty of safe condition. Troutman v. Seaboard Atl. Ltd., 958 F.3d 1143,
1146 (11th Cir. 2020). Troutman held that “generally, a shipowner does not
breach [its duty to turn over a vessel in safe condition] when the injurious hazard
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was open and obvious and could have been avoided by a reasonably competent
stevedore.” Id. Troutman applies to this case.
The parties do not dispute that the Terberg-MAFI combination, without
safety chains, was an open and obvious hazard. Mr. Manning, the Terberg
operator, not only realized that the equipment lacked safety chains, but also raised
concerns with his supervising stevedores before beginning operations. Even after
being notified of Mr. Manning’s concerns, SSA approved the use of Bahri’s
equipment.
While the open-and-obvious defense is “not absolute,” id., the hazard here
does not fall into any exception to the defense. In Troutman, a longshoreman was
injured when he fell from a walkway on the upper deck of a ship—because the
cargo adjacent to the walkway had not yet been loaded, Mr. Troutman fell all the
way to the deck below. Id. at 1145. We rejected Mr. Troutman’s argument that,
because the walkway was “inherently unsafe,” the open-and-obvious defense did
not apply. Id. at 1148. We held instead that Mr. Troutman could have “avoid[ed]
the hazard” by waiting to use the walkway until after the adjacent cargo was
loaded. Id.
In a similar way, SSA could have avoided the hazard here. Under the terms
of their contract, SSA had “sole discretion” over the use of Bahri’s equipment and
it was SSA that was required to “determine that such equipment complies with
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standards set by [OSHA].” The contract also provided that “[a]ny equipment
considered to be unsuitable to [SSA] shall not be used.” In other words, SSA
could have avoided the hazard by using other equipment and SSA was not required
to use Bahri’s Terberg-MAFI if it determined doing so would be unsafe. Indeed,
on the day of the accident, SSA alternated between using the Terberg-MAFI and a
TICO truck that does not require safety chains. Exclusive use of the TICO truck
would have avoided the hazard completely.
3
Beyond that, Bahri’s Port Captain
testified that the accident was caused by operational error, not any inherent unsafe
nature of the equipment. The hazard was thus open and obvious and, as in
Troutman, it could have been avoided by a reasonably competent stevedore.
The undisputed facts therefore show that Bahri satisfied its legal duty to turn
over the M/V Bahri Hofuf in safe condition. The District Court did not err in
granting summary judgment to Bahri.
IV.
For these reasons, we AFFIRM the District Court’s grant of summary
judgment to Bahri.

3
For the first time on appeal, Bahri argues that “perhaps the most important circumstance”
supporting the District Court’s holding is “undisputed testimony” that the Terberg-MAFI
combination “can be safely driven in reverse, such that the MAFI trailer is pushed up the internal
ramps of the ship in front of the Terberg.” We do not read this referenced testimony to be so
clear. Mr. Manning testified that driving the equipment in reverse was “possible” but that he
“[didn’t] know if it was feasible.” In any event, our ruling does not change as a result of this
testimony.
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