Richard Bunn v. Oldendorff Carriers Gmbh & Co. Kg

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1888
RICHARD BUNN,
Plaintiff - Appellee,
v.
OLDENDORFF CARRIERS GMBH & CO. KG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:10-cv-00255-WMN)
Argued: May 16, 2013 Decided: July 17, 2013
Before MOTZ, DAVIS, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the majority
opinion, in which Judge Wynn joined. Judge Motz wrote a
dissenting opinion.
ARGUED: Geoffrey S. Tobias, OBER, KALER, GRIMES & SHRIVER,
Baltimore, Maryland, for Appellant. Bernard Jerome Sevel,
ARNOLD, SEVEL & GAY, P.A., Towson, Maryland, for Appellee. ON
BRIEF: Jack R. Daley, OBER, KALER, GRIMES & SHRIVER, Baltimore,
Maryland, for Appellant. Gerald F. Gay, ARNOLD, SEVEL & GAY,
P.A., Towson, Maryland, for Appellee.

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DAVIS, Circuit Judge:
Defendant-Appellant Oldendorff Carriers GmbH & Co. KG
(“Oldendorff”) appeals from a judgment entered on a jury verdict
under § 5(b) of the Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 905(b) (the “Act”). The claim arose when the
longshoreman, Plaintiff-Appellee Richard Bunn, slipped and fell
on Oldendorff’s ship, the CHRISTOFFER OLDENDORFF (“the ship”),
during loading operations in the Baltimore port. For the
following reasons, we reject Oldendorff’s challenges and affirm
the judgment.
I.
Bunn, who worked for the stevedore, CNX Marine Terminals,
Inc. (“CNX”), slipped on ice and injured himself while loading
coal onto the ship, a bulk carrier, on February 16, 2007. We set
forth the facts in the light most favorable to Bunn, the
prevailing party at trial.
CNX shift supervisor Joseph White boarded the ship around 7
p.m. on February 15, 2007, to tell chief officer Andriy Fediv
that CNX employees intended “to start[] loading that night.”
J.A. 113–14. Although the ship had been docked “a few days,” CNX
had been “unable to load [the] vessel” because of “some winter
weather.” Id. at 113. When White boarded the ship, “[he] noticed
that . . . there was ice covered throughout the ship, with the
exception of . . . a pathway back from the gangway to the

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deckhouse.” Id. at 114. White “instructed” Fediv, “[W]e need a
clear path to the holds to be able to load this vessel.” Id.
Fediv, who knew “which hatches [the CNX employees] were going to
be [loading],” responded “[t]hat [the ship’s crew] would salt
and sand between the holds.” Id. at 115–16.1
Based on this conversation, White told longshoreman
Christopher Moxey (before the loading operation started) that
the ship’s crew was “going to treat the ship and make sure it
was safe” by “[s]alt[ing] it, sand[ing] it, [and] shovel[ing]
it.” J.A. 86–88. Hours later, when Moxey and Bunn walked onto
the ship, they found the area between the gangway and the
deckhouse, and between the starboard rail and hatch number five,
“[p]erfectly clear” of ice. Id. at 88–89.
Meanwhile, Bunn had arrived at the terminal at 6 p.m. on
February 15, 2007, and began his 12-hour shift an hour later.
His job was “to clean the terminal and to spread salt, and to go
around and make sure all the equipment . . . was . . . . fueled
and running . . . .” J.A. 223. Sometime between midnight and 1
a.m. on February 16, 2007, White approached Bunn to discuss
loading the ship. Id. at 30, 224. Specifically, White instructed
1 Fediv, the chief officer, testified that the ship’s deck
was icy but he denied that he and White discussed using salt and
sand to treat the ice. Of course, the jury was entitled to
reject Fediv’s testimony and credit White’s, as it did.

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Bunn to work onboard the ship during the night to assist Moxey
in the loading operation. Bunn asked:
well, you want me to go now? [White] said no, take
your time, finish lunch. He said they’re getting the
ship ready and we’re still finishing up getting the
terminal ready.
Id. at 224–25. White told Bunn he would call him or Moxey by
radio when the ship was safe to load. Id. at 225.
In due course, Bunn and Moxey “had the instruction that it
was okay to go up on the ship, the ship was ready,” and the two
boarded the ship around 1:30 a.m. on February 16, 2007. J.A.
177–78. Bunn testified:
When we first got up on [the] deck, we could see a
clear path to the number five hatch, and looking
towards the deckhouse, you could see there was a path
made to the deckhouse.
Id. at 178. Bunn and Moxey began loading coal into the number
five hatch. Id. at 178. During the loading process, coal moves
from a silo to a ship loader, id. at 121, “a giant crane that
hangs over the ship,” id. at 179.
It has a boom with a conveyor belt on it that carries
the coal. At the end of the boom, it has a spoon that
comes down that goes in the hold. It has a spoon that
rotates, and that directs the coal.
Id. at 179. Bunn’s job was to be on the ship and help guide the
coal as it was loaded into the holds.
Being that the ship loader operator is up in the air,
and he sits on one side of the machine, he can’t see
exactly what we can see when we’re close to the hold.
So in order to keep everything safe, we have to watch

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his equipment, that he doesn’t hit the hatch cover,
and also direct him on where’s the proper places to
put the coal . . . . [T]he only way I see it is if I
lean forward over the hold, I can see down in there
how the coal is building up.
Id. at 179–80.
After loading the number five hatch, Bunn told Moxey to
warm himself in the deckhouse; Bunn walked forward to load the
number three hatch, “holding onto the hand rail on the side of
the ship,” J.A. 180–82, whereupon the accident occurred:
It was nighttime. It’s not much lighting when you get
further past the beginning of the ship. At the
beginning of the ship, the deckhouse has lights. But
as you get down, the lighting is very poor.
* * *
Well, I remember coming off the path, and it felt like
I stepped up a little bit. I could tell my surface
changed a little.
I took a couple steps, and the next thing I knew, I
had slipped and fell right then, boom; but I caught
myself with my knees and my hands when I fell.
* * *
Well, then I realized that I kind of hurt myself, so I
took my time. Then I figured well, maybe I’m just on a
patch of ice that I didn’t see and maybe I need to
find where this path is.
So I stood up and I said I’m going to slowly walk,
take little steps toward the hold. I still needed to
get to the hold . . . . So I started to walk towards
the hold, and no more than one, two steps and boom. My
feet came out from underneath of me and I landed on my
back and my elbow.
Id. at 182–84.

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After Bunn’s fall, Moxey told chief officer Fediv that “the
ship was icy forward” and that it needed to be salted. J.A. 90.
Fediv responded that “he only had a limited supply of salt.” Id.
at 91. About a half hour later, Moxey loaded coal into hatch
number seven. Id. at 92. When he returned to hatch number three,
he “noticed that it was still icy.” Id.
At the close of Bunn’s case, and again at the conclusion of
all the evidence, Oldendorff moved for judgment as a matter of
law.2 The company argued (as it had in seeking summary judgment
earlier) that it owed no duty under the Act to warn of the open
and obvious danger posed by the presence of ice in the areas
where the longshoremen would be working. The district court
denied the motions, reasoning that “liability can attach to [a]
ship owner” that “voluntarily and affirmatively undertakes to
remedy an [otherwise open and obvious] unsafe condition, but
fails to do so.” Bunn v. Oldendorff Carriers GmbH & Co. K.G.,
No. WMN-10-255, 2012 WL 2681412, at *1 (D. Md. July 5, 2012).
The court noted that, based on White’s testimony, the jury could
conclude that the ship--on the unquestioned authority to do so
2 See Mot. for J. as a Matter of Law 2, ECF No. 86, Bunn v.
Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D.
Md. May 10, 2012). The joint appendix includes neither a
complete trial transcript nor excerpts of the oral motions and
the district court’s reasons for denying them. Accordingly, we
infer that information from the court’s memorandum opinion
denying Oldendorff’s post-trial motion for judgment as a matter
of law.

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of the chief officer, Fediv--had “voluntarily assumed the
responsibility for salting and sanding the ice in the places
where he knew CNX personnel would be working.” Id. at *2.
The district court also declined to give the following jury
instruction, requested by Oldendorff:
In the absence of any agreement, the ship is not
responsible for any open and obvious condition.
J.A. 84. The court instructed the jury as follows:
The plaintiff’s claims in this case are governed by
the law that is set out in what we know as the
Longshoreman and Harbor Workers Act. In accord with
the law, your basic determination in this case is
going to be to decide whether negligence on the part
of the operator of the vessel CHRISTOPHER OLDENDORFF
caused or directly contributed to the plaintiff’s
accident on or about February 16, 2007, and the
damages claimed to have resulted from that occurrence
. . . .
* * *
Negligence, simply stated, is the failure to exercise
reasonable care under the existing circumstances.
But once the loading or the unloading of a ship by a
stevedoring company has begun, the responsibility for
safe working conditions is generally the burden of the
terminal or the stevedoring company, in this case, CNX
Marine Terminal. A shipowner, Oldendorff Carriers in
this case, will only be responsible or liable for
injury resulting directly from an unsafe condition on
the ship of which it was aware and which it
voluntarily agreed and undertook to remedy, but failed
to do so.
Id. at 385–87.
The jury found Oldendorff negligent and calculated
$1,863,750 in pecuniary and non-pecuniary damages. J.A. 406–07.

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The jury further found, however, that Bunn was also negligent,
and that he was 15 percent at fault for the accident. Id.
Oldendorff renewed its motion for judgment as a matter of
law and moved alternatively for a new trial, arguing that the
court had erred in refusing to give an instruction on the “open
and obvious” defense. Mot. for J. as a Matter of Law 17, Docket
No. 86, Bunn, No. 1:10-cv-00255-WMN (D. Md. May 10, 2012). The
court denied the post-trial motions, and this timely appeal
followed.
II.
Oldendorff raises two principal assignments of error.
First, Oldendorff argues that the district court erred in
denying the motions for judgment as a matter of law. Second,
Oldendorff argues that the district court misinformed the jury
about the applicable law, and therefore erred in denying the
motion for new trial. We discern no reversible error.3
3 Oldendorff also argues that the district court erred in
denying its motion for summary judgment made at the conclusion
of discovery because, as a matter of law, the icy condition of
the ship was open and obvious, and therefore Oldendorff had no
duty to warn of the danger (the same argument made at and after
trial). Although neither party has addressed the propriety of
Oldendorff’s purported appeal of the summary judgment ruling, it
is well settled that we “‘will not review, under any standard,
the pretrial denial of a motion for summary judgment after a
full trial and final judgment on the merits.’” Varghese v.
Honeywell Int’l, Inc., 424 F.3d 411, 421 (4th Cir. 2005)
(quoting Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g
(Continued)

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A.
Oldendorff first argues that the district court erred in
denying its motions for judgment as a matter of law because
“[t]he open and obvious nature of the icy deck was established
beyond dispute,” and Oldendorff had “a responsibility to warn
only of hidden dangers.” Opening Br. 8, 17.4 Those assertions are
correct statements of the law, as far as they go. The problem
for Oldendorff is that its liability does not depend on the duty
to warn; rather, as the district court repeatedly (and
correctly) indicated, this is a simple case of primary
negligence.
1.
Section 5(b) of the Act permits a longshoreman to “seek
damages in a third-party negligence action against the owner of
the vessel on which he was injured.” Howlett v. Birkdale
Corp., 51 F.3d 1229, 1237 (4th Cir. 1995)). There is no reason
to deviate from that rule here.
4 Our applicable standard of review in these circumstances
is well-settled:
We review the denial of a Rule 50(b) motion de
novo, viewing the evidence in the light most favorable
to the prevailing party, and will affirm the denial of
such a motion unless the jury lacked a legally
sufficient evidentiary basis for its verdict. First
Union Commercial Corp. v. GATX Capital Corp., 411 F.3d
551, 556 (4th Cir. 2005).
Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012).

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Shipping Co., S.A., 512 U.S. 92, 96 (1994). The Act does not,
however, “specify the acts or omissions of the vessel that . . .
constitute negligence”; rather, “the contours of a vessel’s duty
to longshoremen [have been] . . . resolved through the
application of accepted principles of tort law and the ordinary
process of litigation.” Howlett, 512 U.S. at 97–98 (internal
quotation marks omitted). In Scindia Steam Navigation Co., Ltd.
v. De Los Santos (“Scindia”), the Supreme Court “outlined the
three general duties shipowners owe to longshoremen.” Id. at 98
(citing Scindia, 451 U.S. 156 (1981)).
The first, which courts have come to call the
“turnover duty,” relates to the condition of the ship
upon the commencement of stevedoring operations. The
second duty, applicable once stevedoring operations
have begun, provides that a shipowner must exercise
reasonable care to prevent injuries to longshoremen in
areas that remain under the “active control of the
vessel.” The third duty, called the “duty to
intervene,” concerns the vessel’s obligations with
regard to cargo operations in areas under the
principal control of the independent stevedore.
Id. (internal citations omitted) (citing Scindia, 451 U.S. at
167–78). Here, only the turnover duty is at issue.
“The turnover duty has two components.” Lincoln v. Reksten
Mgmt., 354 F.3d 262, 266 (4th Cir. 2003).
The first involves the shipowner’s duty with respect
to the ship’s gear, equipment, tools, and work space
that the stevedore will utilize during its operations.
The shipowner must “at least [exercise] ordinary care
under the circumstances to have the ship and its
equipment in such condition that an expert and
experienced stevedore will be able by the exercise of

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reasonable care to carry on its cargo operations with
reasonable safety to persons and property.”
Id. (alteration in original) (emphasis added) (quoting Scindia,
451 U.S. at 166–67). “As a corollary to this initial turnover
duty,” the shipowner must
warn the stevedore of any hazards on the ship or
with respect to its equipment that are known to the
vessel or should be known to it in the exercise of
reasonable care, that would likely be encountered by
the stevedore in the course of his cargo operations
and that are not known by the stevedore and would
not be obvious to or anticipated by him if
reasonably competent in the performance of his work.
Id. (emphasis added) (quoting Scindia, 451 U.S. at 167). “The
duty to warn attaches only to latent hazards,” id. (quoting
Howlett, 512 U.S. at 99–100); “[i]f a defect is open and obvious
and the stevedore should be able to conduct its operations
around it safely, the shipowner does not violate the duty to
warn,” id.
In denying Oldendorff judgment as a matter of law, the
district court reasoned that “[t]he validity of [the] [open and
obvious] rule or its applicability to ice on the deck under
general circumstances [was] never . . . in dispute.” Bunn, 2012
WL 2681412, at *2 (emphasis added).
What was in dispute was whether Fediv voluntarily
assumed the responsibility for salting and sanding the
ice in the places where he knew CNX personnel would be
working.

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Id. The court further reasoned that, “while ice on the deck may
[have] be[en] open and obvious, it was not obvious that the ship
owner would promise to take care of the hazard, and then not do
so.” Id.
[W]hen a ship owner voluntarily and affirmatively
undertakes to remedy an unsafe condition, but fails to
do so, liability can attach to the ship owner . . . .
Thus, there was no question that the central
determination regarding liability to be reached at
trial was whether Fediv had promised to clear those
portions of the deck where those unloading the vessel
would need to traverse.
Id. at *1. Because the jury could reasonably credit White’s
testimony that Fediv had promised to treat ice leading to and
around the cargo holds, the court concluded that the jury could
reasonably find Oldendorff liable for affirmatively undertaking,
and failing, to remedy the unsafe condition. Id. at *2 & n.1.
That is, the jury could reasonably find Oldendorff liable for
simple negligence.
2.
We find no error in the district court’s reasoning. Several
other circuits have long held that a shipowner may be liable
under the Act for promising, yet failing, to remedy a dangerous
condition that injures a longshoreman. See Lieggi v. Maritime
Co. of the Philippines, 667 F.2d 324, 325–26, 329 (2d Cir. 1981)
(affirming a judgment against a shipowner whose agent had
“affirmatively undert[aken],” but failed, to remove wire and

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grease spots that caused a longshoreman’s injuries because, “by
making this affirmative undertaking, the owner [had] eliminated
any possible reasonable basis for relying on the stevedore to
correct the hazardous condition”); Bueno v. United States, 687
F.2d 318, 320–21 (9th Cir. 1983) (finding that a shipowner may
be liable for a longshoreman’s injury aboard the ship when it
“voluntarily undert[akes] to check the safety of the vessel on a
regular basis”); Webster v. M/V Moolchand, Sethia Liners, Ltd.,
730 F.2d 1035, 1037–38 (5th Cir. 1984) (affirming a jury’s
finding of liability against a shipowner because “there was
evidence that the winch [that injured the longshoreman] was not
operating properly, that this was brought to the crew’s
attention, and that their repair efforts failed”).5
Holding a shipowner liable for promising, but failing, to
remedy a dangerous condition comports with “accepted principles
of tort law,” which inform a shipowner’s duties under the Act.
5 Although some scholars view the relevant duty in Lieggi
and Webster as one of active involvement, not turnover, see 1
Thomas J. Schoenbaum & Jessica L. McClellan, Schoenbaum’s
Admiralty & Maritime Law § 7-10 (5th ed. 2012); Kenneth G.
Engerrand & Jonathan A. Tweedy, A Tedious Balance: Third Party
Claims Under the Longshore and Harbor Workers’ Compensation Act,
10 Loy. Mar. L.J. 1, 20 (2011), the Supreme Court has found that
the general principles supporting one duty under the Act may
apply to other duties, as well, Howlett, 512 U.S. at 102. For
the reasons given in text, we can discern no good reason to
limit liability arising from a shipowner’s breach of a promise
to correct a dangerous condition, even one that is otherwise
“open and obvious,” to the “active involvement” rubric.

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Howlett, 512 U.S. at 97–98.6 These principles include the general
rule that “undertakings can create a duty of care.” Dan B.
Dobbs, Paul T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts §
410 (2d ed. 2012) (noting that “one who voluntarily assumes a
duty must then perform that duty with reasonable care”). “An
undertaking in this sense is a kind of explicit or implicit
promise, or at least a commitment, conveyed in words or in
conduct.” Id. (footnote omitted).
The general rule is that the defendant is under a duty
to perform undertakings made for safety purposes and
is liable for physical harm he causes the plaintiff by
negligently performing or quitting performance once it
has begun.
Id. at § 411. Accord Dalldorf v. Higgerson-Buchanan, Inc., 402
F.2d 419, 422 (4th Cir. 1968) (“[A]nyone who does an affirmative
act is under a duty to others to exercise the care of a
reasonable man to protect them against an unreasonable risk of
harm to them arising out of the act.”) (internal quotation marks
omitted). Because the credible evidence showed that Fediv
promised to treat the ice but failed to do so, the jury
reasonably concluded that Fediv had failed to exercise due care.
Holding a shipowner liable for promising, yet failing, to
remedy a hazard also comports with a well-settled principle of
6 Notably, Bunn’s complaint alleged negligence for both
failing to warn of the untreated ice, and for promising yet
failing to treat the ice in the first place. See J.A. 13–14
(Compl. ¶¶ 10, 12).

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the turnover duty: the scope of that duty depends on the
circumstances of each particular case. See Lincoln, 354 F.3d at
266 (noting that a shipowner must exercise ordinary care “under
the circumstances to have the ship” in a reasonably safe
condition) (emphasis added). When the circumstances include a
promise to remedy a dangerous situation, the shipowner may fail
to exercise reasonable care if it does not fulfill its promise.7
Here, the evidence viewed in the light most favorable to Bunn
established that Fediv promised to treat the ice, and failed to
do so (perhaps because he “had a limited supply of salt,” see
supra, at 6). These circumstances provide a legally sufficient
evidentiary basis for holding Oldendorff liable for Bunn’s
injuries.
3.
Apart from the fact that the jury verdict permissibly
rested on a finding of simple negligence, Oldendorff’s argument
7 Our colleague in dissent insists that when the
circumstances include an open and obvious hazard, the shipowner
“has a diminished turnover duty of safe condition.” Post, at 35
(citing cases from outside the Fourth Circuit). For the reasons
stated infra in Part II.A.3, however, the untreated ice was
neither open nor obvious. Moreover, in none of the cases cited
by the dissent did the shipowner expressly promise, and fail, to
remedy the hazardous condition. See, e.g., Pimental v. LTD Can.
Pac. Bul, 965 F.2d 13, 15 (5th Cir. 1992) (observing that the
plaintiff had “offered no proof that the[] [hazardous]
conditions were reported to the vessel crew”), cited post, at
35.

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that the ice was “open and obvious” conveniently overlooks the
fact that the presence of untreated ice was assuredly not “open
and obvious,” and betrays the company’s misplaced, narrow view
of the turnover duty.8 That a shipowner generally need not warn
of open and obvious dangers does not negate the shipowner’s duty
to exercise ordinary care under the circumstances to ensure that
the ship is in a reasonably safe condition. Lincoln, 354 F.3d at
266 (quoting Scindia, 451 U.S. at 166–67). After all, the duty
to warn is a mere corollary to the turnover duty, not the sole
manner of measuring the reasonableness of a shipowner’s actions
upon turnover. See id. (quoting Scindia, 451 U.S. at 167). In
other words, failure to warn of a latent hazard is but one way a
shipowner may violate its turnover duty; promising, but failing,
8 Contrary to our dissenting colleague’s assertion, Bunn did
not concede that the untreated ice that he encountered near
hatch number three was open and obvious. See post, at 40.
Although Bunn asserted in his appellate brief that “the ice-
covered condition of the deck was open and obvious,” Resp. Br.
18 (emphasis added), he maintained that, following Fediv’s
promise, “the lack of treatment with sand and salt of the ice in
the darkened area where [he] was obliged to work”--i.e., the
area near hatch number three--“was not open and obvious,” id.
(emphasis added). See also Opp’n to Mot. for Summ. J, Bunn v.
Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-WMN (D.
Md. Nov. 18, 2010), ECF No. 27, at 6 (“With the assurance by the
chief officer that he would make the slippery condition safe,
the slippery condition that continued to exist because of the
failure on the part of [Oldendorff] to correct same as promised
was no longer open and obvious . . . . [U]ntil [Bunn] fell, the
fact that [the slippery condition] had not been made safe was
neither open nor obvious to [CNX].”).

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to remedy a dangerous condition may also establish a shipowner’s
failure to exercise ordinary care.
In any case, imposing liability on a shipowner that
promises, but fails, to remedy a dangerous condition, and then
fails to warn of its own failure, is not inconsistent with our
prior cases on the open and obvious rule. Although a shipowner
need not warn of hazards that would be “obvious to or
anticipated” by a stevedore, Lincoln, 354 F.3d at 266 (quoting
Scindia, 451 U.S. at 166–67), a reasonably competent stevedore
has no reason to anticipate a hazard that the shipowner has
promised to remedy but fails, without warning, to do so.9 Here,
for instance, the evidence viewed in the light most favorable to
9 The dissent asserts that “a shipowner can reasonably rely
on an expert and experienced stevedore and its expert
longshoremen to notice and avoid an open and obvious hazard,”
regardless of the shipowner’s “pre-turnover promise” to remedy
the hazard. Post, at 38–39. That may well be true when the
hazard remains open and obvious despite the unfulfilled promise
to remove it--imagine, for instance, a longshoreman encountering
a large oil slick in bright sunlight--but that is not the case
here. Common experience tells us that, unlike a brightly-lit oil
slick, ice may not be immediately visible, especially in the
dark. And viewing the evidence in the light most favorable to
Bunn, the untreated ice he encountered was neither open nor
obvious. Bunn discovered the ice--at night, in a poorly lit
area--only after taking the few steps that led to his fall.
Moreover, because Fediv knew where the CNX employees would be
working and had promised more than five hours before they
commenced work to treat the ice with salt and sand, Bunn had no
reason to anticipate a slippery surface near the number three
hatch. Thus, the untreated ice was a latent hazard. See, e.g.,
Lincoln, 354 at 266 (describing latent hazards as those that
“would not be . . . anticipated by” a longshoreman) (emphasis
added) (quoting Scindia, 451 U.S. at 167).

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Bunn established that Fediv promised to treat the ice;
accordingly, a jury could find that neither CNX (the stevedore)
nor Bunn (the longshoreman) had reason to anticipate untreated
ice aboard the ship, even though one might otherwise have
expected such a hazard following a winter storm.10
We are not persuaded by Oldendorff’s argument that,
regardless of Fediv’s promise to treat the ice, the untreated
ice remained an open and obvious condition as a matter of law,
absolving it of liability, even without Fediv communicating the
presence of the untreated ice to the stevedore.11
10 Indeed, several witnesses testified that shipowners
generally bear responsibility for removing ice. See, e.g., Kevin
Palmer Test., J.A. 146 (testifying that “[it] would be usual”
for a ship’s crew to “be scraping the ice off their deck”);
White Test., J.A. 115 (“It’s [the chief mate’s] responsibility,
the vessel’s responsibility to clear [the ship], to make it safe
for stevedores[,] of the ice and the other debris that could be
up there.”).
11 It is readily apparent in its briefs and oral argument
that Oldendorff feels itself hemmed in by its inability to lay
much (if not all) of the blame for Bunn’s injury on his
employer, CNX. There is some force to Oldendorff’s
understandable chagrin in this regard. Although Fediv promised
to make the work areas safe for the longshoremen loading the
coal, White, the CNX shift supervisor, apparently never
reboarded the ship to confirm that Fediv had done so before
ordering his workers, Bunn and Moxey, to commence operations.
But Congress has denied Oldendorff the opportunity it desires.
See Howlett, 512 U.S. at 97:
Section 5(b) also eliminated the stevedore’s
obligation, imposed by Ryan Stevedoring Co. v. Pan-
Atlantic S.S. Corp., 350 U.S. 124 (1956), to indemnify
a shipowner, if held liable to a longshoreman, for
(Continued)

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19
Moreover, a shipowner is absolved of its duty to warn only
if the condition is both open and obvious and the stevedore’s
employee is “able to conduct . . . operations around [the
hazard] safely.” Lincoln, 354 F.3d at 266 (citing Bonds v.
Mortensen & Lange, 717 F.2d 123, 127-28 (4th Cir. 1983)).12 The
breach of the stevedore’s express or implied warranty
to conduct cargo operations with reasonable safety.
Furthermore, even assuming that Bunn indicated on deposition or
otherwise that he expects his employer to furnish a safe place
to work, such testimony does not absolve the shipowner of the
consequences of its direct primary negligence.
Of course, a longshoreman’s own negligence, as opposed to
the negligence of his stevedore employer, may reduce a
shipowner’s liability. And indeed, as mentioned in text, the
jury here found Bunn 15 percent at fault for his injuries.
Although Bunn testified that he “noticed [a] pathway” that had
been cleared of ice, and “glance[d] around and [saw] ice in
other areas,” J.A. 226, this testimony does not establish beyond
dispute that he knew--before he fell and was injured--that the
ice near the number three hatch remained untreated. Indeed, Bunn
also testified that he fell almost immediately upon walking
toward the hold, see id. at 183 (testifying that he took only “a
couple steps, and the next thing [he] knew, [he] had slipped and
f[allen] right then, boom”). On this record, therefore, even had
we been asked to examine the issue (and we have not been asked)
we can discern no infirmity in the jury’s allocation of fault.
12 In Bonds, we held that the shipowner owed no duty to
intervene and stop discharging operations despite a gantry
crane’s malfunctioning bell, which failed to ring “when the
gantry move[d] forward or backward to warn longshoremen and the
ship’s crew of the gantry’s motion.” Bonds, 717 F.2d at 124. We
reasoned that the stevedore and longshoremen “were aware that
the bell was not functioning properly” and had not complained;
“the malfunctioning bell and ship’s design being obvious and
known to all, the shipowner was entitled to rely on [the
stevedore’s] judgment as to whether discharge operations could
(Continued)

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20
evidence, viewed in the light most favorable to Bunn, showed
that Oldendorff breached its duty to warn of the ice near the
number three hatch because it was impossible for Bunn to safely
navigate around the untreated ice to perform the cargo loading
operations. See, e.g., J.A. 92 (Moxey’s testimony that the area
around hatch number three was so “icy” that it was “unsafe” to
complete operations).13
safely be undertaken.” Id. at 124, 127–28 & n.4 (emphasis
added). The reasoning of Bonds is inapplicable when, as here,
the shipowner had no reasonable basis for relying on the
longshoreman’s or stevedore’s judgment; neither CNX nor Bunn had
reason to expect the untreated ice near hatch number three after
Fediv promised to treat it, and thus, the ice was not “obvious
and known to all.” Id. at 127–28.
13 Contrary to our dissenting colleague’s assertion, see
post, at 41 n.7, the rule derived from Bonds and cited in
Lincoln is not inconsistent with Howlett, which was decided
nearly a decade before Lincoln. As the dissent recognizes, see
post, at 33, the duty to warn is a corollary to the turnover
duty of safe condition, Howlett, 512 U.S. at 98. As such, it is
subject to the same governing principles, including the rule
that a shipowner’s liability depends on whether the stevedore is
able “to carry on cargo operations with reasonable safety.” Id.
(internal quotation marks omitted). Indeed, several of our
sister circuits--in decisions issued after Howlett--have
recognized that a shipowner may be liable for failure to warn of
even open and obvious hazards. See, e.g., Hill v. Reederei F.
Laesz G.M.B.H., Rostock, 435 F.3d 404, 409 (3d Cir. 2006)
(noting that a shipowner may be liable for not warning of an
“open and obvious hazard” if “avoiding the hazard would be
impractical for the longshoreman” or “the ship should have known
that the longshoremen would confront the hazard”), cited post,
at 35; Moore v. Angela MV, 353 F.3d 376, 381 (5th Cir. 2003)
(noting that “a vessel has no duty to warn of dangers that would
be obvious to a longshoreman of reasonable competence,” unless
“the longshoreman’s only alternatives to facing the hazard are
(Continued)

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21
(We emphasize that our discussion of the duty to warn is
merely dictum.)
For all these reasons, we are not persuaded that the “jury
lacked a legally sufficient evidentiary basis for its verdict,”
Gregg, 678 F.3d at 341, and, thus, we conclude that the district
court did not err in its denial of the motions for judgment as a
matter of law.
4.
Before moving on to consider Oldendorff’s second issue on
appeal, we feel it appropriate to offer a few respectful
responses to our good friend in dissent.
Our colleague laments that
the focus of the parties on the shipowner’s promise,
rather than the character of the icy conditions, and
the alternatives Bunn had in facing those conditions,
left the jury with insufficient evidence to find
Oldendorff breached its turnover duty.
Post, at 32. But we need not decide whether there was any
justification for “the [parties’] focus . . . on the shipowner’s
promise,” id.; there clearly was, as the promise was among the
circumstances that defined the standard of care. See Lincoln,
354 F.2d at 266 (noting that shipowners must exercise ordinary
care “under the circumstances”). Moreover, the parties to a
unduly impracticable or time-consuming or would force him to
leave the job”).

-- 21 of 48 --

22
lawsuit are entitled to frame the issues as each deems best.
See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008)
(“In our adversary system, in both civil and criminal cases, in
the first instance and on appeal, we follow the principle of
party presentation. That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present . . . . [T]he parties
know what is best for them, and are responsible for advancing
the facts and arguments entitling them to relief.”) (internal
quotation marks omitted). The problem for Oldendorff--one from
which it cannot be rescued at this stage--is that it has elected
to litigate this case solely on the theory that it did not
breach the duty to warn, that is, that Oldendorff owed no duty
to warn of untreated ice after having promised, hours before
actual turnover of the vessel for loading, to treat the ice and
thereby render the areas around and abutting the holds safe.
Although we have offered up plenty of dicta to question the
legal correctness of that assertion, our affirmance of the
judgment is based not on the duty to warn but on the more
general turnover duty of safe condition. That is, we conclude
that the district court did not err in treating the breach of
Oldendorff’s promise, under the circumstances, as a failure to
exercise reasonable care in executing Oldendorff’s more general

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23
turnover duty. In short, the evidence supported the jury’s
finding of simple negligence.
Adopting Oldendorff’s misguided view that the lawsuit
implicates only the duty to warn, the dissent asserts that “the
center of [our] disagreement . . . is the question of whether a
shipowner’s unfulfilled promise to remedy an open and obvious
hazard affects its turnover duty.” Post, at 32. This
characterization misses the mark, not only for the reasons
articulated above but because it wrongly assumes that the hazard
created by the presence of ice on the deck and around the
hatches remained precisely the same after Fediv’s promise to
treat it as it was before he made (and then breached) his
promise: perfectly open and obvious. See, e.g., post, at 39
(reasoning that “[a]s long as an unremedied hazard remains open
and obvious, a shipowner’s liability . . . is thus extremely
limited”) (emphasis added). For the reasons stated above, the
risk of injury from the untreated ice was decidedly not open and
obvious after Fediv made and then breached his promise to treat
it. We agree to disagree on that score.14
14 To put it another way, Oldendorff should have known--
after Fediv’s promise and failure to treat the ice--that neither
Bunn nor his stevedore employer would have expected a
longshoreman to encounter the slippery surface near hatch number
three. Thus, Oldendorff “should have expected that [Bunn] could
not or would not avoid the hazard and conduct cargo operations
reasonably safely.” Kirsch v. Plovidba, 971 F.2d 1026, 1031 (3d
(Continued)

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24
Our dissenting colleague insists that a shipowner’s
turnover duty is narrow, see, e.g., post, at 32, 34, and that
stevedores and longshoremen bear the primary burden for ensuring
safe working conditions for longshoremen, see, e.g., post at 36
(observing that “a shipowner can, ordinarily, reasonably rely on
the stevedore [and longshoremen] . . . to notice obvious hazards
and to take steps consistent with [their] expertise to avoid
those hazards where practical to do so”) (alterations in
original) (quoting Kirsch v. Plovidba, 971 F.2d 1026, 1030 (3d
Cir. 1992)). Indeed, the dissent suggests that Bunn could have
prevented his injury by, inter alia, “clear[ing] the ice
himself.” Post, at 42–43. But that, of course, would have
required Bunn to know about the untreated ice, which he
discovered only upon taking a few steps and immediately falling.
Moreover, the evidence at trial overwhelmingly established (and
the jury was entitled to find) that the responsibility for
removing ice aboard a ship customarily rests with the shipowner.
See supra n.10. As the dissent concedes, see post, at 39,
custom, like any other circumstance surrounding an accident, may
Cir. 1992), cited in post, at 39–40. As such, the jury was
entitled to find Oldendorff liable based on Fediv’s failure to
treat the ice as promised. Id.

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25
inform a shipowner’s duties to longshoremen.15 And, of course,
any negligence on the part of a stevedore--here, CNX, acting
through its agent White--does not absolve a shipowner such as
Oldendorff of its own duty of care. See, e.g., Woodruff v.
United States, 710 F.2d 128, 132 n.9 (4th Cir. 1983) (noting
that a shipowner “will be liable for the full extent of [a]
[longshoreman’s] injuries notwithstanding proof of concurrent
negligence contributing to the injury on the part of [the
stevedore], diminished only by [the longshoreman’s] contributory
negligence.”) (citing Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256 (1979)).
For the reasons set forth, we think to say the turnover
duty is “narrow” is to speak descriptively, not prescriptively;
we do not believe the Supreme Court has built the kind of
impenetrable silos of theories cabining shipowner negligence
with the rigidity that the dissent believes exist. If, indeed,
that is the import of the rule adopted by the Third, Fifth, and
Ninth Circuits, as the dissent’s reliance on their precedents
suggests, we choose a different path.
15 The dissent risks oversimplifying the case by suggesting
that darkness alone was the hazard giving rise to Bunn’s injury.
See post, at 44–45. As stated above, Oldendorff’s liability
arose from the totality of the circumstances, which included not
only the ship’s poor lighting, but Fediv’s promise to treat the
ice, his failure to do so, and the custom of shipowners taking
responsibility for removing ice aboard ships.

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26
In any event, distilled to its essence, the dissent’s real
concern seems to rest on its unstated belief that the jury
should have found Bunn 100 percent at fault rather than merely
the 15 percent the jury did find. See post, at 39 (suggesting
that Bunn “shirk[ed] his duty to act with reasonable care”); but
see supra n.11. But whether Bunn’s failure to exercise
reasonable care for his own safety constituted the sole
proximate cause of his injuries--the crux of the dissent--is not
presented as an issue in this case.
Finally, we confess we find somewhat puzzling the dissent’s
assertion that the proper outcome is neither affirmance nor
judgment for Oldendorff as a matter of law, but rather, “a new
trial or other proceedings.” Post, at 47. Yet our good friend
fails to explain what such proceedings would accomplish.
Oldendorff has not, for example, challenged the sufficiency of
the verdict on the grounds that the district court allowed the
jury to consider unreliable, and therefore, inadmissible
evidence. See, e.g., Weisgram v. Marley Co., 582 U.S. 440, 443
(2000). Nor has Bunn, as appellee, asked for a new trial if we
find the district court erred in denying Oldendorff’s motions
for judgment as a matter of law. See Fed. R. Civ. P. 50(e);
Neely v. Martin K. Elby Constr. Co., 386 U.S. 317, 327 (1967)
(observing that a plaintiff-appellee may be entitled to a new
trial if “[t]he erroneous exclusion of evidence . . . would have

-- 26 of 48 --

27
strengthened his case” or “the trial court itself caused the
insufficiency in [the] plaintiff-appellee’s case by erroneously
placing too high a burden of proof on him at trial”), cited
post, at 47. The task before us, then, is quite simple, and
requires no further proceedings: we need only decide “whether a
jury, viewing the evidence in the light most favorable to
[Bunn], could have properly reached the conclusion reached by
this jury.” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001)
(internal quotation marks omitted). For the reasons stated
above, we conclude that the answer is yes, and affirm the denial
of Oldendorff’s motions for judgment as a matter of law.
B.
Finally, Oldendorff argues that the district court erred in
denying its motion for a new trial because the court’s refusal
to give the company’s requested “open and obvious instruction
deprived the jury of a full and accurate understanding of the
law,” and “deprived [Oldendorff] of the opportunity to argue
effectively the significance of the open and obvious defense.”
Opening Br. 40–41.
“We review for abuse of discretion a district court’s
denial of a motion for new trial,” and “will not reverse such a
decision save in the most exceptional circumstances.” Figg v.
Schroeder, 312 F.3d 625, 641 (4th Cir. 2002) (internal quotation

-- 27 of 48 --

28
marks omitted).16 Similarly, “[w]e review a trial court’s jury
instructions for abuse of discretion,” keeping in mind that “a
trial court has broad discretion in framing its instructions to
a jury.” Volvo Trademark Holding Aktiebolaget v. Clark Mach.
Co., 510 F.3d 474, 484 (4th Cir. 2007). “Instructions will be
considered adequate if construed as a whole, and in light of the
whole record, they adequately informed the jury of the
controlling legal principles without misleading or confusing the
jury to the prejudice of the existing party.” King v. McMillan,
594 F.3d 301, 311 (4th Cir. 2010) (internal quotation marks and
brackets omitted). “Even if a jury was erroneously instructed,
however, we will not set aside a resulting verdict unless the
erroneous instruction seriously prejudiced the challenging
party’s case.” Coll. Loan Corp. v. SLM Corp., 396 F.3d 588, 595
(4th Cir. 2005) (emphasis added) (internal quotation marks
omitted).
Preliminarily, we hold that Oldendorff has failed to
preserve a challenge to the jury instructions, as the company
has provided no record of an objection to the district court.
See Fed. R. Civ. P. 51(c)(1) (“A party who objects to an
instruction or the failure to give an instruction must do so on
16 Collapsing all its claims into one, Oldendorff
erroneously contends that our standard of review of the denial
of its motion for a new trial is de novo. Opening Br. 8-9, 39–
41. It is not.

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29
the record, stating distinctly the matter objected to and the
grounds for the objection”). When challenging instructions on
appeal, a party must “furnish the court of appeals with so much
of the record of the proceedings below as is necessary to enable
informed appellate review.” Faigin v. Kelly, 184 F.3d 67, 87
(1st Cir. 1999) (finding that appellant’s “fail[ure] to supply a
transcript of the Rule 51 sidebar conference” gave rise to a
“presumption that none of his challenges to the jury
instructions were properly preserved”), cited in Belk, Inc. v.
Meyer Corp., U.S., 679 F.3d 146, 154 n.6 (4th Cir. 2012)
(finding that appellant had “waived its challenge to any jury
instructions” because it had failed, inter alia, “to provide a
record citation to where it objected to any given or omitted
jury instruction”). See also Maltby v. Winston, 36 F.3d 548, 560
(7th Cir. 1994) (finding that the appellant had failed to
preserve his challenge to jury instructions because “the
instruction conference in the district court was not
memorialized in the record,” and the appellant had not otherwise
“ma[d]e a sufficient record”).
Here, Oldendorff has provided only its requested
instructions, and those that the court ultimately gave the jury.
“Importantly, the mere tendering of a proposed instruction will
not preserve error for appeal.” Kevin F. O'Malley, et al., 1
Fed. Jury Practice & Instructions § 7:4 (5th ed. 2012). See also

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30
City of Richmond, Va. v. Madison Mgmt. Grp., Inc., 918 F.2d 438,
453 (4th Cir. 1990) (“Where . . . a party who has violated Rule
51 can point to nothing more than the court’s denial of a
requested instruction, a reading of Rule 51 loose enough to
permit preservation of the point would effectively delete Rule
51 insofar as allegations of error in the failure to give an
instruction are concerned.”).
In any event, even were we to reach the issue, we would
conclude it is meritless. For the reasons stated above, see
supra Part II.A, the court properly informed the jury that a
shipowner may be “liable for injury resulting directly from an
unsafe condition on the ship of which it was aware and which it
voluntarily agreed and undertook to remedy, but failed to do
so.” J.A. 387. That a shipowner generally need not warn of an
open and obvious hazard does not absolve the shipowner of its
more general duty to exercise ordinary care under the
circumstances to ensure that the ship is in a reasonably safe
condition. Lincoln, 354 F.3d at 266 (quoting Scindia, 451 U.S.
at 166–67). Thus, we cannot see how Oldendorff was prejudiced,
let alone seriously prejudiced, by the absence of any specific
instruction on the open and obvious defense. Coll. Loan Corp.,
396 F.3d at 595.
Moreover, Oldendorff’s proposed instruction--“In the
absence of any agreement, the ship is not responsible for any

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31
open and obvious condition.”--was an incomplete statement of the
law in any event. J.A. 84. In fact, a shipowner may still be
liable for failing to warn of an open and obvious hazard if a
stevedore’s employee would not be able to work around the
hazard. Lincoln, 354 F.3d at 266. Accordingly, we find no abuse
of discretion in the district court’s denial of the motion for a
new trial.
III.
Like ships passing in the night, plaintiff Bunn, the
district court, and the jury, on the one hand, understood this
case was principally one of simple negligence, whereas on the
other hand, Oldendorff has insisted, here to the very end, that
it was solely a failure-to-warn case. For the reasons set forth
herein, we reject Oldendorff’s assertion and therefore affirm
the judgment.
AFFIRMED

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32
MOTZ, Circuit Judge, dissenting:
With respect, I dissent. In my view, the focus of the
parties on the shipowner’s promise, rather than the character of
the icy conditions, and the alternatives Bunn had in facing
those conditions, left the jury with insufficient evidence to
find Oldendorff breached its turnover duty.1
I.
At the center of my disagreement with the majority is the
question of whether a shipowner’s unfulfilled promise to remedy
an open and obvious hazard affects its turnover duty.
It is well established that § 905(b) of the Longshore and
Harbor Workers’ Compensation Act imposes upon a shipowner a
narrow turnover duty. See Scindia Steam Navigation Co. v. De
Los Santos, 451 U.S. 156, 166-67 (1981); Kirksey v. Tonghai
Mar., 535 F.3d 388, 391 (5th Cir. 2008). This duty “relates to
the condition of the ship upon the commencement of stevedoring
operations” and “has two components.” Lincoln v. Reksten Mgmt.,
354 F.3d 262, 266 (4th Cir. 2003).
1 I agree, for the reasons well stated by the majority, that
Oldendorff’s appeals of the district court’s order denying
summary judgment and its jury instructions are not properly
before us.

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33
First, a shipowner must exercise “ordinary care under the
circumstances to have the ship and its equipment in such
condition that an expert and experienced stevedore will be able
by the exercise of reasonable care to carry on its cargo
operations with reasonable safety to persons and property.”
Scindia, 451 U.S. at 166-67 (emphasis added). This duty is
known as the turnover duty of safe condition. See, e.g., Ludwig
v. Pan Ocean Shipping Co., 941 F.2d 849, 851 (9th Cir. 1991).2
As a corollary to the turnover duty of safe condition, a
shipowner must also
warn[] the stevedore of any hazards on the ship or
with respect to its equipment that are known to the
vessel or should be known to it in the exercise of
reasonable care, that would likely be encountered by
the stevedore in the course of his cargo operations
and that are not known by the stevedore and would not
be obvious to or anticipated by him if reasonably
competent in the performance of his work.
2 “Although the turnover duty of safe condition is usually
framed in terms of stevedores, it is clear that danger to
longshore workers is an essential part of the inquiry.” Thomas
v. Newton Int’l Enters., 42 F.3d 1266, 1270 n.4 (9th Cir. 1994)
(emphasis original). Turning over a ship upon which an expert
stevedore can complete its operations with reasonable safety
necessarily requires turning over a ship upon which the
longshoremen--the stevedore’s expert employees who actually
perform the operations--can complete their duties with
reasonable safety. Id.; accord Kirsch v. Plovidba, 971 F.2d
1026, 1029-30 (3d Cir. 1992). Hence, when determining whether a
shipowner has breached its turnover duty of safe condition, “the
focus of the factual inquiry is frequently directed at
experienced longshore workers”--not just their expert stevedore
employer. Thomas, 42 F.3d at 1270 n.4; accord Kirksey, 535 F.3d
at 396; Lincoln, 354 F.3d at 266; Kirsch, 971 F.2d at 1029-30.

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34
Scindia, 451 U.S. at 167 (emphasis added). This duty is known
as the turnover duty to warn. See Howlett v. Birkdale Shipping
Co., S.A., 512 U.S. 92, 99 (1994).
Thus, § 905(b) imposes on a shipowner duties at turnover
that are very narrow. See Kirsch v. Plovidba, 971 F.2d 1026,
1029 (3d Cir. 1992) (“[T]he shipowner’s duty is only to provide
a workplace where skilled longshore workers can operate
safely.”); see also Scindia, 451 U.S. at 170. The turnover duty
of safe condition merely requires that a shipowner exercise
ordinary care, under the circumstances, to provide an expert and
experienced stevedore or longshoreman, who exercises reasonable
care, the ability to carry out its operations with reasonable
safety. Scindia, 451 U.S. at 166-67. The corollary turnover
duty to warn requires only that a shipowner exercise ordinary
care to provide to a reasonably competent stevedore or
longshoreman notice of non-obvious hazards. Id. at 167.
Indeed, the openness and obviousness of a hazard to a
stevedore provides a shipowner with a complete defense to a
turnover duty to warn claim, no matter how unreasonably
dangerous the hazard. See Kirksey, 535 F.3d at 393. The
majority errs in asserting that a shipowner has a duty to warn a
stevedore of even an open and obvious hazard if the stevedore
“is [un]able to conduct . . . operations around [the hazard]

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35
safely.” Ante at 11, 19-20. In fact, the Supreme Court has
explicitly rejected this view of the turnover duty to warn:
The duty attaches only to latent hazards, defined as
hazards that are not known to the stevedore and that
would be neither obvious to nor anticipated by a
skilled stevedore in the competent performance of its
work.
Howlett, 512 U.S. at 105; see also Ludwig, 941 F.2d at 851 (“The
shipowner had no duty to warn Ludwig [the longshoreman] of the
hazard. It was obvious, so its mere presence carried a
warning.”).
Of course, the openness and obviousness of a hazard does
not absolve the shipowner of its turnover duty of safe
condition. See Manuel v. Cameron Offshore Boats, Inc., 103 F.3d
31, 34 (5th Cir. 1997); Kirsch, 971 F.2d at 1029-30; Ludwig, 941
F.2d at 851. But when a hazard is open and obvious, the
shipowner has a diminished turnover duty of safe condition.
See, e.g., Kirksey, 535 F.3d at 395-96; Hill v. Reederei F.
Laeisz G.M.B.H., Rostock, 435 F.3d 404, 409 (3d Cir. 2006);
Keller v. United States, 38 F.3d 16, 24 (1st Cir. 1994);
Pimental v. LTD Can. Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992);
Ludwig, 941 F.2d at 851-52.
As the Third Circuit has explained, “a shipowner may be
negligent for failing to eliminate an [open and] obvious hazard
that it could have eliminated . . . only when it should have
expected that an expert stevedore [or longshoreman] could not or

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36
would not avoid the hazard and conduct cargo operations
reasonably safely.” Kirsch, 971 F.2d at 1031 (emphasis added).
This standard recognizes that “a shipowner can, ordinarily,
reasonably rely on the stevedore [and longshoremen] . . . to
notice obvious hazards and to take steps consistent with [their]
expertise to avoid those hazards where practical to do so.” Id.
at 1030; see also Howlett, 512 U.S. at 101; Ludwig, 941 F.2d at
852.3 An expert and experienced longshoreman can avoid open and
obvious hazards in a number of ways, for example by fixing the
hazard himself, see Albergo v. Hellenic Lines, Inc., 658 F.2d
66, 69 (2d Cir. 1981), or completing operations while avoiding
the hazard, see Bjaranson v. Botelho Shipping Corp., Manila, 873
F.2d 1204, 1208 (9th Cir. 1989); Morris v. Compagnie Mar. Des
Chargeurs Reunis, S.A., 832 F.2d 67, 70 (5th Cir. 1987). So
long as an expert longshoreman has available such an option, a
shipowner cannot be held liable for a breach of its turnover
3 The negligence of a stevedore does not bar an injured
longshoreman’s recovery from a negligent shipowner. See
Woodruff v. United States, 710 F.2d 128, 131-32 & n.7 (4th Cir.
1983). However, a shipowner breaches its turnover duty of safe
condition only when an expert stevedore and its expert
longshoremen could not through reasonable care carry on
operations with reasonable safety. See Scindia, 451 U.S. at
166-67; Kirsch, 971 F.2d at 1029. If, through reasonable care,
operations could have been completed with reasonable safety, the
inquiry ends there, regardless of how negligent the stevedore
has been.

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37
duty of safe condition. Rather, the shipowner can reasonably
rely on the longshoreman to exercise an alternative option.
II.
The majority largely ignores the above principles.
Instead, relying primarily on Lieggi v. Maritime Co. of
Philippines, 667 F.2d 324 (2d Cir. 1981) and two similar active
operations duty cases, the majority holds that “a shipowner may
be liable under the Act for promising, yet failing, to remedy a
dangerous condition that injures a longshoreman.” Ante at 12.4
The case at hand, however, does not concern the active
operations duty. And the logic of the active operations duty
does not extend to the turnover duty context.
Contrary to the majority’s suggestion, a “stark contrast”
exists between the turnover duty and the active operations duty.
See Davis v. Portline Transportes Mar. Internacional, 16 F.3d
532, 537 (3d Cir. 1994). The turnover duty covers the
shipowner’s conduct before the stevedore’s cargo operations have
begun, while the active operations duty covers a shipowner’s
conduct after cargo operations have begun in those areas
4 The active operations duty requires a shipowner after
turnover “not to take negligent actions in areas under its
control that threaten the longshoremen's safety.” Serbin v.
Bora Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996); see also
Scindia, 451 U.S. at 167.

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38
remaining under control of the shipowner. See Scindia, 451 U.S.
at 167; Davis, 16 F.3d at 537.
The active operations duty does not rest on whether an
expert stevedore and its expert longshoremen could have
completed operations with reasonable safety. Instead, that duty
rests on whether a shipowner negligently exposes longshoremen to
any hazards--even avoidable ones--in areas under the shipowner’s
control during stevedoring operations. See Serbin v. Bora
Corp., Ltd., 96 F.3d 66, 70 (3d Cir. 1996). For this reason,
the obviousness of a hazard does not presumptively bar recovery
under an active operations duty claim. Id. at 75-76; Pimental,
965 F.2d at 16.
But the obviousness of a hazard does presumptively bar
recovery under a turnover duty claim. See Kirksey, 535 F.3d at
395-96; Kirsch, 971 F.2d at 1031; Pimental, 965 F.2d at 16;
Ludwig, 941 F.2d at 851-52. And a shipowner’s pre-turnover
promise to remedy an open and obvious hazard does not itself
affect the openness and obviousness of the hazard at turnover.
Rather, a shipowner can reasonably rely on an expert stevedore
and its expert longshoremen to notice and avoid an open and

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39
obvious hazard. See Kirksey, 535 F.3d at 394; Kirsch, 971 F.2d
at 1030.5
Moreover, a shipowner’s promise to remedy a hazard does not
create a duty actionable under § 905(b). This is so because in
the absence of a “contract provision, positive law, or custom to
the contrary,” all § 905(b) claims must fall under one of the
duties identified by the Supreme Court in Scindia. See 451 U.S.
at 172; Kirsch, 971 F.2d at 1031. An expert and experienced
longshoreman cannot, by the mere virtue of a shipowner’s
promise, shirk his duty to act with reasonable care in the face
of an open and obvious hazard. Holding otherwise raises a
promise to the level of a contract, and impermissibly shifts
responsibility for longshoreman safety from stevedore (and the
longshoreman himself) to shipowner.
As long as an unremedied hazard remains open and obvious, a
shipowner’s liability to an injured longshoreman is thus
extremely limited. Absent a contract provision, statute,
regulation, or custom to the contrary, Scindia, 451 U.S. at 172,
the shipowner is liable only to the extent “it should have
5 The case at hand only involves a shipowner’s turnover duty
regarding open and obvious hazards. A shipowner’s promise to
remedy a hazard that is neither known nor open and obvious may
affect the manner in which an expert and experienced stevedore
reasonably performs its operations. In short, if a hazard is
not open and obvious, a stevedore would have reason to rely on a
shipowner’s representation that the hazard would be removed.

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40
expected that an expert stevedore [or longshoreman] could not or
would not avoid the hazard and conduct cargo operations
reasonably safely,” Kirsch, 971 F.2d at 1031.
III.
Considering the evidence in the light most favorable to
Bunn, and with these legal principles in mind, I cannot agree
with the majority’s disposition of this appeal.
“[I]n many cases the obviousness of a hazard . . . will be
a jury question,” Kirsch, 971 F.2d at 1033, and if that were the
situation here, I would join the majority in sustaining the
jury’s verdict. But, both before this court and in the district
court, Bunn expressly conceded that “the ice-covered condition
of the deck was open and obvious.” Resp. Br. at 18; see also
Bunn v. Oldendorff Carriers GmbH & Co. K.G., No. 1:10-cv-00255-
WMN (D. Md. Nov. 18, 2010), ECF No. 27, at 6. This concession
took this important question out of the hands of the jury at
trial, and binds us as we consider the proper application of the
law on appeal.
Given this concession, the only remaining question is
whether the evidence permitted a reasonable jury to conclude
that the shipowner, Oldendorff, violated either component of its
turnover duty by turning over the ship with open and obvious icy

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41
conditions. It seems to me that the answer to that question is
certainly no.
The parties focus on the turnover duty to warn,6 and the
majority extensively discusses that duty, sometimes suggesting
that Oldendorff violated it. See ante at 15-23. But the
majority ultimately characterizes this discussion as “plenty of
dicta,”7 and expressly disavows it as a basis of its holding.
The majority explains that its “affirmance of the judgment is
based not on the duty to warn but on the more general turnover
6 Contrary to the majority’s suggestion, ante at 15, 30-31,
Bunn deserves as much blame as Oldendorff for focusing on the
turnover duty to warn. Both before the district court and on
appeal, Bunn did little to prioritize or offer evidence in
support of his turnover duty of safe condition claim.
7 In the course of this dicta, the majority asserts that,
although the ice on the ship was open and obvious, the “presence
of untreated ice was assuredly not ‘open and obvious.’” Ante at
15. Howlett, however, cannot be avoided simply by
characterizing the ice as “untreated.” This is so because, by
definition, ice and untreated ice are the same hazard. Just as
a shipowner’s unfulfilled promise to remedy an open and obvious
hazard--here icy conditions--does not render the hazard any less
open and obvious, so too a shipowner’s failure to treat the
hazard does not render it any less open and obvious. Whether
one frames the hazard in this case as “ice” or “untreated ice,”
it remains equally open and obvious, and Howlett forecloses any
turnover duty to warn claim.
Later in its own dicta, the majority relies on dicta in
Lincoln contending that a shipowner has a duty to warn a
stevedore of even open and obvious hazards if the stevedore “is
[un]able to conduct . . . operations around [the hazard]
safely.” Ante at 19. But, as noted above, Howlett simply does
not permit this conclusion. For in Howlett the Supreme Court
expressly and clearly held that “[t]he duty [to warn] attaches
only to latent hazards.” 512 U.S. at 105 (emphasis added).

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42
duty of safe condition.” Ante at 22 (emphasis original); see
also ante at 9 (“[L]iability does not depend on the duty to
warn.”). This disavowal seems appropriate and inevitable given
the clear directive of Howlett--that the duty to warn “attaches
only to latent [not obvious] hazards.” 512 U.S. at 105
(emphasis added).
However, affirmance on the basis of the turnover duty of
safe condition--the sole basis for the majority’s holding--is
not possible because no evidence at trial established a
violation of this duty. That is, the jury had insufficient
evidence to find that the shipowner, Oldendorff, “should have
expected that an expert [longshoreman] could not or would not
avoid the hazard [here, icy conditions near hold three] and
conduct cargo operations reasonably safely.” Kirsch, 971 F.2d
at 1031.8
Indeed, the only relevant evidence presented to the jury on
this critical point suggests that an expert longshoreman, in
Bunn’s position, might have avoided this open and obvious hazard
in several ways. He might have avoided the icy condition near
8 The majority, focusing solely on the unfulfilled promise
of the shipowner (by Fediv), effectively ignores this most
fundamental inquiry into whether an expert longshoreman could
have “by the exercise of reasonable care . . . carr[ied] on
[his] cargo operations with reasonable safety to persons and
property.” Scindia, 451 U.S. at 166-67.

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43
hold three altogether by loading another hold or undertaking
another task. Cf. Burchett v. Cargill, Inc., 48 F.3d 173, 179
(5th Cir. 1995); Bjaranson, 873 F.2d at 1208. Alternatively, he
might have cleared the ice himself, see Pimental, 965 F.2d at
16; Albergo, 658 F.2d at 69, or enlisted a crew member to do so,
see Kirsch, 971 F.2d at 1034. Of course, these options and
others may have been unavailable to Bunn, but the record
provides no evidence to this effect.
Nor does the record contain any evidence that Bunn was
required to finish the job quickly, making him unable to avoid
the hazard. See Teply v. Mobil Oil Corp., 859 F.2d 375, 378
(5th Cir. 1988). To the contrary, Bunn’s shift supervisor
provided unrebutted testimony that if a longshoreman encounters
a hazardous condition on a ship “[h]e is empowered to shut the
operation down.” JA 133. And another longshoreman, Moxey, did
shut down operations when the icy conditions around hold three
remained hazardous several hours after Bunn’s fall. JA 92.9
9 Bunn does not argue that a “contract provision, positive
law, or custom” forms the basis of his § 905(b) claim. See
Scindia, 451 U.S. at 172. Indeed, by regulation, it is the duty
of the stevedore to “eliminate conditions causing slippery
walking and working surfaces in immediate areas used by
employees.” 29 C.F.R. § 1918.91. Thus, the general principle
that a shipowner can reasonably rely on an expert stevedore and
its expert longshoremen to notice and avoid an open and obvious
hazard applies with full force to this case. See Kirsch, 971
F.2d at 1030; Ludwig, 941 F.2d at 852.

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44
Implicit in the majority’s holding may be the view that an
expert and experienced longshoreman would be unable to
distinguish between treated and untreated ice and so have no
reason to pursue another option. This may be so, but the record
contains no evidence on this point either.
Of course, as the majority notes, Bunn argues in his briefs
that “the lack of treatment with sand and salt in the area where
[he] was obliged to work was not open and obvious.” See, e.g.,
Resp. Br. at 18. No evidence, however, supports this argument.
Rather, at trial, Bunn himself testified that in well-lit areas
of the ship he could distinguish between treated and untreated
portions of the deck. JA 178, 226-27. Only in the dark, “very
poor[ly]” lit area around hold three was Bunn unable to tell
whether the ice had been treated. JA 182-83. Bunn’s own
testimony therefore supports just one conclusion: that his
failure to notice the icy conditions was solely because it was
dark, not because treated and untreated ice are
indistinguishable. See Resp. Br. at 19 (conceding that “Mr.
Bunn . . . had testified . . . that the darkness in the area
around No. 3 hatch prevented [him] from discovering that the ice
in that area had not been treated.”).
But to the extent that darkness constitutes a hazard, it is
assuredly obvious, and easily remedied by an expert longshoreman
(or indeed anyone with a flashlight). See, e.g., Harris v.

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45
Pac.-Gulf Marine, Inc., 967 F. Supp. 158, 164-65 (E.D. Va.
1997); Chapman v. Bizet Shipping, S.A., 936 F. Supp. 982, 986
(S.D. Ga. 1996); Landsem v. Isuzu Motors, Ltd., 534 F. Supp.
448, 451 (D. Or. 1982), aff’d, 711 F.2d 1064 (9th Cir. 1983)
(table). Therefore, darkness provides no basis for a
shipowner’s liability under its turnover duties. Nor can
darkness render an obvious hazard latent. Cf. Harris, 967 F.
Supp. at 164; Chapman, 936 F. Supp. at 986. Otherwise the scope
of a shipowner’s turnover duties on identically hazardous ships
could differ depending solely on the time of day when the
turnover occurred.10
In response to this record evidence and these legal
principles, the majority is left to contend that not just poor
lighting but also the unfulfilled promise and a purported custom
of shipowners removing onboard ice constitute the “totality of
the circumstances” that renders Oldendorff liable. Ante at 24
n.15 (emphasis in original). But, as explained above, like poor
10 The regulatory scheme governing stevedoring operations
supports the conclusion that natural darkness cannot contribute
to the latency of a hazardous condition; for it is the
stevedore’s--not shipowner’s--duty to provide an illuminated
workspace for cargo operations, and to provide longshoremen with
flashlights or other portable lights. See 29 C.F.R. § 1918.2,
.92; see also Scindia, 451 U.S. at 176 (“The statutory duty of
the stevedore under [33 U.S.C.] § 941 to provide a safe place to
work has been implemented by the Safety and Health Regulations
for Longshoring. 29 CFR § 1918.1 et seq.”).

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46
lighting, an unfulfilled promise does not render an otherwise
obvious hazard latent. See ante at 39. And Bunn has never even
argued that custom (rather than the turnover duty) forms the
basis for his claim. See ante at 43 n.9. Thus, the record
provides no support for the view that the totality of these
circumstances barred Oldendorff from reasonably relying on an
expert longshoreman in Bunn’s position to notice and avoid the
obvious icy conditions. See Kirksey, 535 F.3d at 394; Kirsch,
971 F.2d at 1030.11
In sum, the record is bereft of evidence that Oldendorff
“should have expected that an expert [longshoreman] could not or
would not avoid the hazard [here, icy conditions] and conduct
cargo operations reasonably safely,” Kirsch, 971 F.2d at 1031,
and contains considerable evidence suggesting the contrary.
Accordingly, the jury lacked an evidentiary basis to find that
Oldendorff breached its turnover duty of safe condition.
11 For, as we explained long ago, a shipowner is “entitled
to rely on [a stevedore’s] judgment as to whether discharge
operations could safely be undertaken.” Bonds v. Mortensen &
Lange, 717 F.2d 123, 127-28 (4th Cir. 1983). There, we reversed
a verdict for a longshoreman killed by a crane with a
malfunctioning bell on the ground that the hazard was “known to
all” and was avoidable. Id. We explained that this is “not a
situation . . . in which the longshoremen were precluded from
performing their tasks except by a means which was inherently
dangerous.” Id. at 127-28 & n.5. That logic would seem to
require, at the very least, that in this case we vacate the
verdict and remand the case for further proceedings, as I
propose.

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47
IV.
This is a complex case, made only more so by the parties’
failure to develop facts concerning the character of the icy
conditions and the alternatives Bunn had in facing those
conditions. On the one hand, the record does not provide a
legally sufficient evidentiary basis from which a jury could
find that Oldendorff breached its turnover duty. On the other
hand, the record does not clearly foreclose Oldendorff’s
possible liability for violating its turnover duty. Rather, the
record is simply inadequate to allow a jury to resolve--one way
or the other--the dispositive legal question in the case:
whether “an expert [longshoreman] could not or would not avoid
the hazard and conduct cargo operations reasonably safely.”
Kirsch, 971 F.2d at 1031.
The Supreme Court has recognized that in limited
circumstances “where the court of appeals sets aside the jury’s
verdict because the evidence was insufficient to send the case
to the jury,” as I believe it was here, “it is not so clear that
the litigation should be terminated.” Neely v. Martin K. Eby
Const. Co., 386 U.S. 317, 327 (1967). In my view, this is such
a case. Accordingly, I would vacate the judgment of the
district court and remand the case for a new trial or other
proceedings consistent with this opinion. See Fed. R. Civ. P.

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48
50(b); Weisgram v. Marley Co., 528 U.S. 440, 451-52 (2000);
Neely, 386 U.S. at 327-330.

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