RONALD JACKSON and PAMELA JACKSON, h/w v. Egyptian Navigation Company

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
02-3828
RONALD JACKSON and
PAMELA JACKSON, h/w,
Appellants
v.
EGYPTIAN NAVIGATION COMPANY,
Appellee
Appeal from an Order
Of the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. No. 99-5695),
Dismissing Plaintiff’s Complaint on
Defendant’s Motion for Summary
Judgment
District Judge: Hon. Michael M. Baylson
Argued December 2, 2003
Before: SLOVITER, ALITO and
FRIEDMAN,* Circuit Judges
(Filed: April 7, 2004)
Stewart L. Cohen
William D. Marvin (Argued)
Steven L. Smith
Kessler Cohen & Roth
Philadelphia, PA 19102
Attorneys for Appellants
Richard Q. Whelan (Argued)
Gary Francis Seitz
Palmer, Biezup & Henderson
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
FRIEDMAN, Circuit Judge.
In this case a longshoreman
employed by a stevedoring company
seeks to recover under the Longshore
and Harbor Workers’ Compensation Act,
(“Longshore Act”), 33 U.S.C. §§ 901-950
(2000), from the shipowner for injuries he
suffered while unloading the ship. The
longshoreman’s theory is that the
shipowner was negligent because it failed
to provide him with a safe place to work.
The district court dismissed the complaint,
and we affirm.
I
A. The appellant Ronald Jackson
(“Jackson”) was employed as a
longshoreman by Delaware River
Stevedores. He was injured while
unloading a cargo of steel coils from a
ship owned by the appellee Egyptian
Navigation Company (“Egyptian”) (an
Egyptian corporation) that had arrived in
Camden, New Jersey the previous day.
* Daniel M. Friedman, United
States Senior Circuit Judge for the
Federal Circuit, sitting by designation.

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The cargo had been loaded in Turkey by
a different stevedoring company.
The ship contained two holds, one
above the other. The unloading of the top
hold began at 8 a.m. and was completed
at 11 a.m. The ship’s crew members then
opened the cover of the lower hold, and
the longshoremen climbed into that hold
to start unloading the cargo stored there.
Jackson was the fifth person to
descend into the lower hold. The first
man down was a superintendent from the
stevedoring company; he was followed by
three other longshoremen.
As Jackson descended a ladder on
the side of the lower hold, he saw the four
others standing on top of the coils about
ten feet above the floor of the hold. Upon
going down the ladder, he saw a narrow
piece of wood extending from one of the
rungs of the ladder (which was about ten
feet above the floor of the hold) across an
open space of approximately four or five
feet to the top of the coils. Apparently
believing that the other men had walked
across the board to reach the cargo,
Jackson started to walk over the board.
The board broke; Jackson fell ten feet to
the floor of the hold and was seriously
injured.
It turned out that the board was
made of dunnage, a cheap and weak
form of wood that stevedores regularly
use in connection with stowing cargo to fill
in empty spaces and thus reduce or
eliminate movement by the cargo during
the voyage. The parties agree that the
Turkish stevedore had supplied and
placed dunnage in the lower hold. The
stowed cargo sat upon dunnage that was
between it and the floor of the hold; there
was also dunnage placed between the
various coils to prevent their movement.
There was no direct evidence on
how or when the board had been placed
between the ladder rung and the stowed
cargo. The ship’s First Officer indicated in
his deposition that in his daily inspections
of the cargo area during the voyage, he
never noticed any plank in that position.
Jackson’s theory is that the board was
placed in that position by the Turkish
stevedore when it loaded the cargo in
Turkey and that it remained there during
the ship’s transatlantic voyage.
B. Jackson and his wife then filed
the present damages action in the United
States District Court for the Eastern
District of Pennsylvania against Egyptian.
The complaint alleged that Jackson’s fall
“was caused by the sudden failure of the
means provided by defendant to walk
from an access ladder permanently
affixed to the vessel, to the top of the
cargo, approximately ten feet above the
floor of the hold”; that Jackson “had been
directed to use this ladder and means of
access by the crew of the defendant’s
vessel, in order to reach the cargo in the
lower hold”; and that “[t]he conditions
which caused plaintiff’s injuries were
created by defendant no later than when
the cargo was loaded overseas, and
defendant allowed those conditions to
remain for the entire length of the
voyage.” The complaint further alleged
that the defendant “knew or should have
known” that “the conditions in the hold
and the means for access to the cargo
were improper, defective, inadequate,
dangerous, and unsuitable,” that the
“plaintiff and the other stevedores would
be required to use these means for
access, because there was no other way

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for them to reach the cargo to prepare it
for unloading,” and that “because of the
conditions in the hold, including the
physical arrangement of the ladder and
cargo access, and the poor lighting
conditions, the plaintiff and other
stevedores would not be able to discover
the danger or protect themselves from it.”
Finally, the complaint stated:
Defendant’s acts and
omissions as set forth
above, by its agents,
servants and employees,
w e r e c a r e l e s s a n d
n e g l i g e n t , m a k i n g
defendant liable to plaintiffs
under general maritime law
and the laws of the
jurisdiction where the injury
occurred.
After some discovery, the district
court granted Egyptian’s motion for
summary judgment and dismissed the
complaint. Jackson v. Egyptian
Navigation Co., 222 F.Supp. 2d 700 (E.D.
Pa. 2002). After discussing relevant
decisions of the Supreme Court and this
court, the district court pointed out that
“[t]he parties do not dispute that, based
on the allegations of Plaintiff’s Complaint,
and the facts and evidence adduced, only
the shipowner’s turnover duty is
implicated here,” id. at 704, i.e., the duty
to turn over to the stevedore a safe place
to work and “to warn of known,
nonobvious hazards,” Serbin v. Bora
Corp., 96 F.3d 66, 70 (3d Cir. 1996)
(quoting Kirsch v. Plovidba, 971 F.2d
1026, 1028 (3d Cir. 1992)). The court
held that the “Plaintiff has produced no
evidence from which a jury could
reasonably conclude that Defendant
breached any duty owed to Plaintiff.”
Jackson, 222 F.Supp. 2d at 709.
The court ruled that Jackson was
“unable to prove” that the “Defendant had
notice of the plank, but failed to take any
action,” id. at 707, that the “Defendant
knew or should have known that the
longshoremen would disregard the risk
posed by the plank,” id. at 708, or that
“the hazard posed by the plank was not
open and obvious to the longshoremen,”
id. at 709. It therefore concluded that the
three factual disputes that Jackson
contended precluded summary judgment
did not present any “genuine issues of
material fact.” Id. at 707.
II
A. Prior to 1972, a longshoreman
injured while working aboard a ship could
recover from the ship under the
Longshore Act without proving
n e g l i g e n ce , p u r s u a n t t o t h e
unseaworthiness doctrine that made the
ship absolutely liable for such injuries.
See Scindia Steam Navigation Co. v. De
Los Santos, 451 U.S. 156, 164-65, 172
(1981). In 1972, however, Congress
significantly changed the basis of the
shipowner’s liability. It eliminated liability
based on unseaworthiness and provided
that “[i]n the event of injury to a person
covered under [the Longshore Act]
caused by the negligence of a vessel,
then such person . . . may bring an action
against such vessel.” 33 U.S.C. § 905(b).
“Section 905 (b) did not specify the acts
or omissions of the vessel that would
constitute negligence.” Scindia, 451 U.S.
at 165. In Scindia and Howlett v. Birkdale
Shipping Co., 512 U.S. 92 (1994), the
Supreme Court explained the scope and
parameters of the ship’s duty to the
longshoremen working on it for a

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stevedoring company.
In Howlett, the Court stated that
Scindia had “outlined the three general
duties shipowners owe to longshoremen.
The first, which courts have come to call
the ‘turnover duty,’ relates to the condition
of the ship upon the commencement of
stevedoring operations.” Id. at 98. As we
have noted, the present case, like
Howlett, involves only the ship’s “turnover
duty.”
Under that duty
[a] vessel must “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
d a n g e r s h e s h o u l d
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.” A
corollary to the turnover
duty requires the vessel to
warn the stevedore “of any
hazards on the ship or with
respect to its equipment,”
so long as the hazards “are
known to the vessel or
should be known to it in the
exercise of reasonable
care,” and “would likely be
e n c o u n t e r e d by t h e
stevedore in the course of
his cargo operations[,] are
n o t k n o w n b y t h e
stevedore[,] and would not
be obvious to or anticipated
by him if reasonably
c o m p e t e n t i n t h e
performance of his work.”
Id. at 98-99 (internal citations omitted).
The Court in Howlett also pointed
out that “there can be no recovery under
[§ 905(b)] for a vessel’s failure to warn of
dangers that would be apparent to a
l o n g s h o r e m a n o f r e a s o n a b l e
competence.” Id. at 104. “[T]he vessel’s
turnover duty to warn of latent defects in
the cargo stow and cargo area is a narrow
one. 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.” Id. at 105.
This court has recognized the
obviousness limitation on the ship’s duty
to warn. In Serbin, this court stated that in
Howlett the Supreme Court held in a
turnover duty case that if “the hazard . . .
was obvious to a competent stevedore,
summary judgment would be appropriate
for the ship,” and that this court “had
already decided that obviousness was a
bar to liability under the turnover duty.”
96 F.3d at 75.
B. Jackson contends that the ship
violated its turnover duty because it knew
of the board’s location in the lower hold
and because the presence of the board
was not an obvious danger that the
stevedore should have immediately
ameliorated but was a concealed defect
of which the ship was required to warn the
stevedore. The district court correctly

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ruled that under the governing principles
discussed above, Jackson had not shown
that Egyptian violated its turnover duty
and that Jackson’s contentions did not
raise any disputed issues of material fact
that precluded summary judgment. 96
F.3d at 75.
Even if one were to assume,
contrary to the district court’s ruling and
the evidence in the record, that the board
was placed in that position by the Turkish
stevedore, remained there during the
entire voyage, and that the ship was
aware of its presence there, Jackson still
could not prevail. The ship has no duty to
warn about an obvious hazard in the work
area that a competent stevedore would be
expected to discover while properly
performing its duties. There is no claim
that the stevedore here was not
competent. The presence of the board
was an obvious hazard, and the
stevedore’s superintendent, who was the
first employee to descend into the lower
hold in connection with the cargo removal,
should either have removed the board or
warned the longshoremen not to use it in
moving from the ladder to the cargo.
The ship’s First Officer explained
the danger the board presented to the
safety of the longshoremen:
[I]t’s very easy for
somebody to slip on a 10
centimeter-wide piece of
wood. And . . . usually, the
laborer will never go on top
of that because it’s [not
safe], and he doesn’t jump
because jumping is against
stability and he could still
lose his stability and fall
down. . . . [W]hether he
w a s o v e r w e i g h t o r
underweight, it doesn’t
make a difference. Stability
rules have to be followed all
the way through.
Under the foregoing analysis, it is
irrelevant that Jackson’s injury resulted
not from his slipping and falling off the
board but from the board breaking while
he was walking across it. The obvious
hazard the board created for the
longshoremen was that it would be
dangerous for them to use as a bridge
between the ladder and the cargo – not
because it was inferior wood that was
likely to break but because it was so
narrow and unprotected that there was a
serious danger that anyone who used it
might slip and fall off it. Although use of
the board was more hazardous because
the board itself was internally weak, the
nature of the hazard the board posed was
not changed by the nature of the injury
Jackson suffered.
Jackson argues that even if the
board posed an obvious danger, this case
comes within this court’s ruling in Kirsch
that the ship may be liable for injuries
caused by obvious dangers “if the
shipowner should have expected that the
stevedore and its longshore workers
could not or would not avoid the danger.”
971 F.2d at 1026. In rejecting this
contention, the district court ruled that
there was “no record evidence supporting
[Jackson’s] contention that [Egyptian]
knew or should have known that the
longshoremen would disregard the risk
posed by the plank.” Jackson, 222
F.Supp. 2d at 709. For example, the First
Officer stated that no member of the
ship’s crew used the board to reach the
cargo and that he did not see anyone

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using the board as a bridge.
This court has stated that
questions relating to the existence and
obviousness of hazards in the cargo area
“generally” are not to be decided on
summary judgment but require a trial.
Serbin, 96 F.3d at 73; Kirsch, 971 F.2d at
1030. This case, however, comes within
the exception to that principle. Here the
evidence is unequivocal that the board’s
presence and placement presented an
obvious danger and hazard to the safety
of a longshoreman unloading the cargo,
which the stevedore should and could
have corrected and for which the
shipowner was not liable. See Serbin, 96
F.3d at 75. There is no evidence from
which a reasonable jury could have
concluded otherwise.
In view of our conclusion on that
issue, we need not consider Jackson’s
contentions that the board was in its
position in the lower hold before anyone
descended to that area to unload it and
that the ship knew of its presence.
The order of the district court
granting the defendant’s motion for
summary judgment is affirmed.

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