Background:

Plaintiffs, ("The Foleys") bring suit against Defendants, National Navigation, ("National") an Egyptian foreign company. The Foleys allege due to carelessness and negligence of National Michael Foley sustained serious injuries for which he seeks compensation for medical care and treatment, loss of earnings, benefits and earning capacity. Mrs. Foley claims loss of consortium, services, support, companionship, and other losses suffered in the future. 

One or about June 9, 2006, Mr. Foley was an employee of Kinder Morgan Terminals ("Kinder Morgan"), a stevedore company. Foley's duties that evening including discharging steel slabs, from the ship M.V. Wadi  Alarish ("the Ship") owned by National. At some time in the evening Foley slipped and fell fracturing his face, skull, left elbow, left wrist, pelvic bone, right hip, right wrist, left shoulder, right knee and ankle. 

The Foleys are suing pursuant to the Longeshore Harbor Workers' Compensation Act ("LHWCA") and at issue is who was responsible for providing adequate lighting, Kinder Morgan, or National. 

National moved for summary judgment on the grounds it did not breach any of the duties owed to a stevedore as governed by the LHWCA. National contends that Kinder Morgan was directly responsible for lighting conditions per OSHA regulations, and that Foley and Kinder Morgan were contributory negligent. 

Foleys contend there are several issues of material fact as to whether National breached the "turnover duty" and the "duty to warn". 

Issue:
Did the Court grant defendant's motion for summary judgment?

Held:
Summary judgment is appropriate if, after examining the evidence in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 

The statutory obligations of a ship owner to a stevedore are governed by the LHWCA and include three specific duties set forth by the Supreme  Court in Scindia Steam Navigation Ltd (U.S. 156, 101 S.Ct 1614,68 L.Ed.2d 1 (1981) 

Those duties are:  the "turnover duty" which includes a corollary "duty to warn" a (2) duty to intervene and the (3) active participation duty. 

The Supreme Court however did not hold that these duties relieve the stevedore company, here Kinder Morgan, from complying with OSHA regulations to make a safer workplace. Specifically, the stevedore's obligation to provide proper illumination is outlined in 29 C.F.R. § 1918.92.

The turnover duty specifically involves a shipowner's obligation to ensure that its ship conditions are safe for the stevedore before the stevedore's operations begin. 

Here, the Court was not able to determine any issue of material fact. Kinder Morgan did not argue that the Ship's lighting conditions were unsafe at the time it was "turned over". Kinder Morgan supervisors testified that they were well aware of the changing lighting situation both that night and as a general concern in the course of operations for the nightshift. 

However there is a two-pronged exception to the general rule absolving shipowner liability when the hazard is obvious, the ship will be liable if either (1) avoiding the hazard would be impractical for the longshoreman or (2) the Ship should have known that the longshoreman would confront that hazard.

The question then turns to whether avoiding the hazard was impractical for the longshoremen. 

The duty to provide adequate lighting after stevedore operations begin falls with the stevedore according to OSHA.  Therefore, because Kinder Morgan, under OSHA, was legally obligated to provide lighting under OSHA regulations and the record fails to create a dispute of material fact regarding whether National breached its duties to warn or turnover under LHWCA, summary judgment is inappropriate. 

Finally, under LHWCA, a shipowner may be liable if it "actively involves itself in the cargo operations and negligently injures a longshoreman". However, Kinder Morgan has presented ample evidence that they were solely in control of the ship as they were unloading it and that National played no part in the stevedore operation. Therefore, no genuine issue of material fact exists whether National falls under the active involvement exception. 

Comment:
The LHWCA places many duties on the shipowner to longshoreman who provide stevedoring services. However, a stevedore who violates an OSHA rule may still be held liable as well as the shipowner if the plaintiff can established the shipowner violated one of the duties owed under LHWCA.  

Steve Gordon
http://www.offshoreinjuries.com