by Carl D. Buchholz, III and Kevin L. McGee
cbuchholz@rawle.com; kmcgee@rawle.com

Carl D. Buchholz, III, Chair of Rawle & Henderson’s Maritime and Appellate Practice Sections, recently obtained summary judgment in favor of the defendant shipowner in the case of Fiocca v. Triton Schiffahrts GmbH et al (U.S.D.C. New Jersey).

Plaintiff James Fiocca was a longshoreman who was allegedly injured while working aboard the LOMBOK STRAIT on June 25, 2007 when he slipped in a puddle of water/oil at the top of a stairway on the vessel, fell down the stairs, and allegedly sustained serious and permanently disabling injuries to his neck, low back, and knees. Fiocca filed suit against the owner of the LOMBOK STRAIT, claiming that the vessel was negligent for breaching the duty of care it owed to the longshore employees of the stevedore hired to load/discharge cargo from the vessel.

According to the testimony of the witnesses, the stevedore began discharging cargo from the vessel shortly after midnight on June 24. The water/oil was first observed around 3:00 p.m. on June 25 by the stevedore’s gang boss. The stevedore’s gang boss allegedly complained about the presence of the oil/water to one of the vessel’s mates and he testified that he expected the vessel’s crew to remedy the hazardous condition. Around 4:40 p.m., the gang boss was again in the area at the top of the stairs and observed that the water/oil had not been cleaned up. However, the gang boss took no action to warn the longshoremen of the presence of the water/oil or to have the water/oil cleaned up. Around 5:00 p.m., Fiocca’s shift was over and he was preparing to leave the vessel. Fiocca denied seeing the water/oil at the top of the steps before he slipped and fell down the stairs. A coworker took post-accident photographs of the area which showed the puddle of water/oil. However, the vessel’s Chief Officer denied receiving any complaint about the water/oil from either crewmembers or the stevedore prior to the accident.

The shipowner filed a Motion for Summary Judgment arguing that it was entitled to judgment as a matter of law since the stevedore had actual knowledge of the water/oil prior to the accident and actual knowledge that the vessel’s crew had not remedied the condition prior to the accident, as well as the fact the OSHA Regulations placed the responsibility for eliminating such a hazard on the stevedore. In response to the shipowner’s Motion for Summary Judgment, Fiocca’s counsel argued that there were unresolved issues of fact that precluded summary judgment and required liability be decided by a jury.

On March 5, 2012, U.S. District Court Judge Joseph Rodriguez issued a Memorandum Opinion and Order granting the shipowner’s Motion for Summary Judgment. In granting summary judgment, Judge Rodriguez noted that the 1972 Amendments to the Longshore and Harbor Workers’ Compensation Act were intended to place the primary obligation for the safety of the longshoremen on the stevedore employer, and to eliminate the liability of the shipowner for such accidents. Judge Rodriguez noted that under the 1972 Amendments, the shipowner still owed three duties of care to longshoremen: 1) the “turnover duty,” which includes the duty to ensure that the ship and its equipment are in reasonably safe condition and to warn the stevedoring company of any hidden dangers; 2) the “active control duty,” which imposes a duty of care on the shipowner vis a vis the areas of the ship that remain under the ship’s crew’s active control during cargo operations; and 3) a “duty to intervene,” which requires the vessel’s crew to alert the stevedore to any hidden dangers of which the crew becomes aware after discharge has begun.

In the instant case, since there was no evidence the condition existed at time of turnover, Judge Rodriguez concluded the “turnover duty” was not invoked. As to the “active control duty,” Judge Rodriguez noted that this duty requires that the vessel’s crew must have substantially retained control over the area/instrumentality in question, but that the plaintiff had not evidence that the vessel retained and/or exercised active control of the area during the stevedore’s operation; in fact, Judge Rodriguez noted that when the stevedore’s gangboss saw at 4:40 p.m. that the puddle of water/oil was still present at the top of the stairs, he did not request the vessel’s crew to clean up the puddle because “there were no crewmembers in the area.”

Lastly, as to the vessel’s “duty to intervene,” Judge Rodriguez noted that the vessel can only be liable if it has actual knowledge of a dangerous condition and actual knowledge that it cannot rely on the stevedore to avoid or eliminate the alleged hazard. Judge Rodriguez accepted the shipowner’s argument that the plaintiff had no evidence to establish that the water/oil on deck created a hazardous condition, especially to an experienced longshoreman, and specifically noted that the OSHA Regulations for Longshoring provided that the stevedore employer is responsible to “eliminate conditions causing slippery walking and working surfaces in immediate areas used by employees,” not just the immediate “work area.”

Carl D. Buchholz, III is Chair of the Maritime, Insurance Coverage and Appellate Sections of Rawle & Henderson LLP. His federal appellate practice includes an argument before the United States Supreme Court as well as numerous arguments before the U.S. Court of Appeals for the Third Circuit. His state appellate practice includes seven arguments before the Pennsylvania Supreme Court as well as numerous arguments before the Pennsylvania Superior Court and Commonwealth Court. In 2006, the Pennsylvania Supreme Court appointed Carl to the Disciplinary Board of the Supreme Court of Pennsylvania. In 2010, the Pennsylvania Supreme Court designated Carl as Chair of the Disciplinary Board. He graduated from Muhlenberg College in 1967 and Villanova Law School in 1970 where he was a member of the Villanova Law Review and graduated with honors.