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Maritime Update: Vessel Owner Not Required to Intervene in Unloading Operations


On August 3, 2017, the 11th Circuit Court of Appeals determined a vessel owner did not breach its duty to intervene in the operations of an unloading stevedore. The decision in the case of Dixon v. NYK Reefers is discussed below. The case provides a good discussion of the duty to intervene and how our courts view the duties by an independent contractor/stevedore versus those of the vessel owner.

Facts:

The cargo vessel M/V Wild Lotus (“the Wild Lotus” or “the vessel”) docked at Port Manatee, Florida, to discharge its cargo of Del Monte pineapples and bananas. Del Monte hired Logistec as stevedore to load and unload cargo from the vessel.

Stevedores employ longshoremen to unload vessels. The stevedore’s longshore gang is divided into two parts, one that handles unloading on the vessel side of operations and the other that does so on the shore side. A longshoreman gang on the vessel side generally has four forklift operators, one lander, one header, and two crane operators on the deck. The header is the person responsible for directing the gang and making decisions regarding the operation, as well as maintaining radio communication between the longshoremen in the hold and the crane operator. A lander ensures that all debris is out of the way of the forklifts as they move. A lander also often serves as a flagman to communicate with the crane operator when a crane operator lacks precise and unrestricted visibility of the site where the tray is to be lowered. Generally, during stevedoring operations, both the crane operators and the header have radios.

Mr. Dixon was a forklift operator in the gang in hold #2. The header for that gang was not present on the ship that morning, leaving the gang without a header at the time of the accident. There was no lander at the time either; i.e. the lander was standing in for one of the forklift drivers who was on a break at the time. The crane operator did not have a radio at the time of the accident, nor did anybody working in hold #2. After approximately an hour of offloading in hold #2, one of the longshoremen stalled his forklift in the landing zone of the open hatch area of hold #2 as a tray of bananas was being lowered by the crane. Mr. Dixon ran into the open hatch area to restart the  stalled forklift. Tragically, the crane operator lowered the 5,500-pound tray onto Mr. Dixon before he could leave the landing area and Mr. Dixon died as a result.

In the trial court below, the district Judge granted a summary judgment motion filed by the vessel. The Judge ruled summary judgment was appropriate because Ms. Dixon failed to show the defendant vessel owner had a duty to intervene. Because a claim of negligence requires a duty, the case was dismissed. Ms. Dixon then took an appeal.

Holding on appeal:

The 11th Circuit properly looked to the decision of Scindia in which the U.S. Supreme Court discussed the duties owed by a vessel owner when an independent contractor (such as the stevedore) was engaged in loading/unloading operations.

The Supreme Court established three distinct duties (the “Scindia duties”) that a vessel owner owes longshoremen during cargo operations.

First, under the turnover 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 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.’”

Second, under the active control duty, a vessel owner is to exercise reasonable care to prevent injuries to longshoremen in areas that remain under the vessel owner’s active control.

Third, under the duty to intervene, a vessel owner must intervene if “during stevedoring operations, the vessel owner becomes aware that the vessel or its gear poses a danger to the longshoremen and that the stevedore is failing, unreasonably, to protect the longshoreman.”

The issue before the Dixon Court was whether the vessel owner breached this third Scindia duty – the duty to intervene. The dangerous conditions alleged here fit into two categories: (1) negligent actions of the stevedore; and (2) allegedly unsafe equipment provided by Defendants.

Ms. Dixon argued that the cargo operations posed an unreasonable risk of harm to the longshoreman and the vessel owner owed a duty to intervene because the longshoremen were unloading cargo: (1) without a header, who is supposed to look over the hatch to see that there are no longshoreman in the landing area before the tray is lowered; (2) without a lander, who clears the deck and communicates with the crane operator while the tray is being lowered into the hold; and (3) without any radio communication between the longshoremen and the crane operator. Ms. Dixon argued that although these conditions were not defects in the vessel or its gears, the vessel owner still owed a duty to intervene.

The appeals court found there was no evidence that the Wild Lotus’ crew was aware of the dangerous manner in which the stevedoring operations took place. The presence of a header, the presence of a lander, and the use of radios are all conditions that could have remedied the perilous effects of the crane operator’s limited visibility. It was undeniable that the absence of these factors, in combination, contributed to Mr. Dixon’s death. It was not evident, however, that the omission of any one is “obviously improvident.” Critically, it was not evident that any crew member was aware of the existence of all three of these problems. “[T]he mere presence of a vessel’s crew on the ship is insufficient to prove even constructive knowledge – let alone actual knowledge – of a hazard.” The appeals court found nothing in the record to support a finding that any crew member had actual or constructive knowledge of the crane operator’s limited visibility into the hatch. Even if the vessel owner or its crew had actual knowledge of the dangerous condition resulting from the stevedore’s negligence, Ms. Dixon did not show that they knew Logistec failed to remedy the problem. The evidence failed to show that Logistec or any of its longshoremen complained to the vessel owner or its crew about unsafe conditions before or during cargo unloading.

Ms. Dixon also argued the vessel owner crew had a duty to intervene because they should have been aware that the longshoremen would confront rather than avoid these hazards. However, the court noted that the vessel owner and its crew were entitled to rely upon Logistec to unload the cargo properly without supervision.

Ms. Dixon finally argued that the accident could have been prevented had the vessel been equipped with an audio or visual warning system on the cranes. The lack of an audio or visual warning system on the cranes, a condition that existed prior to turning over the vessel, was found by the court not to be a “dangerous condition” that triggered the duty to intervene. There was no evidence that the vessel owner or its crew were notified that the absence of warning devices was a problem or that the longshoremen failed to remedy the problem.

In Scindia, the Supreme Court said “absent contract provision, positive law, or custom to the contrary[,] . . . the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.” Here, because Ms. Dixon failed to identify any facts suggesting that it was customary for the vessel’s crew to discover dangerous conditions in the cargo operations.

In affirming the grant of summary judgment by the district court, the appeals court held, “There is no dispute that negligence led to Mr. Dixon’s tragic death. But the Defendants were not the negligent parties. Defendants were entitled to rely on the stevedore to ‘perform his task properly without supervision.’”

The full decision can be found here: http://media.ca11.uscourts.gov/opinions/unpub/files/201616796.pdf

If you have any questions regarding this matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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