Defendant, Oldendorff Carriers GmbH & Co. KG, appealed a judgment entered on a jury verdict in a longshoreman’s Section 905(b) claim. See 33 U.S.C. § 905(b). The longshoreman was injured on a vessel when he slipped and fell on ice. Although the fact was disputed, the trial court and the jury came to the conclusion that the vessel’s chief officer told the longshoreman’s shift supervisor that the ship’s crew would take care of the ice. They would salt and sand between the vessel holds. When the longshoremen slipped and fell, his shift supervisor notified the officer that “the ship was icy forward,” to which the officer replied that “he only had a limited supply of ice.” The jury found Defendant negligent and awarded a large sum. Defendant appealed to the Fourth Circuit, which affirmed.
At trial and on appeal, Defendant argued that it could not be held liable because of the “open and obvious nature of the icy deck.” But this was not a failure to warn case. It was a “simple case of primary negligence” involving the turnover duty.
The turnover duty has two components:
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 reasonable care to carry on its cargo operations with reasonable safety to persons and property.”
Further, 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.
Here, the problem was not whether the icy deck was open and obvious. The issue was that “it was not obvious the ship owner would promise to take care of the hazard, and then not do so.” The jury found Defendant liable for simple negligence because Defendant affirmatively undertook the responsibility of clearing the icy deck and then failed to remedy the unsafe condition. The Fourth Circuit defended the jury’s decision:
Holding a shipowner liable for promising, yet failing, to remedy a hazard also comports with a well-settled principle of the turnover duty: the scope of that duty depends on the circumstances of each particular case. 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. 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”). These circumstances provide a legally sufficient evidentiary basis for holding Oldendorff liable for Bunn’s injuries.
Bunn v. Oldendorff Carriers GmbH & Co. KG, — F.3d —- (4th Cir. 2013).
