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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11967
Non-Argument Calendar
________________________
D.C. Docket No. 4:13-cv-00239-WTM-GRS
TYRONE T. MILLER,
SHEILA MILLER,
Plaintiffs - Third Party Defendants - Appellants,
versus
NAVALMAR (UK) LTD.,
Defendant - Third Party Defendant - Appellee,
GRIEG STAR SHIPPING, AS,
Defendant - Appellee,
GRIEG STAR AS, et al.,
Defendants,
HOMEPORT INSURANCE COMPANY,
Third Party Plaintiff - Third Party Defendant.
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________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 13, 2017)
Before MARCUS, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
This case arises from a negligence action brought by longshoreman Tyrone
T. Miller under Section 905(b) of the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, after he fell while loading
cargo into the M/V CARRARA CASTLE. 1 The District Court granted summary
judgment in favor of the owner of the CARRARA CASTLE, Navalmar (UK) Ltd.
(Navalmar), and the vessel’s charterer Grieg Star Shipping II AS (Grieg)
(collectively, the Defendants). Miller appeals from that ruling asserting Grieg’s
written cargo safety and storage procedures constituted active control over the
vessel requiring Grieg to exercise reasonable care toward longshoremen engaged
in the loading operation. Miller also contends that both Grieg and Navalmar knew
a fall hazard existed on the vessel and were required to intervene and remedy the
dangerous condition when it became apparent that SSA/Cooper Stevedoring
1
Miller’s wife, Sheila Miller, also brought a loss of consortium claim based on the
injuries suffered by her husband. Her claim is entirely derivative of Miller’s negligence action
brought under § 905(b), and so we need not address it further.
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Company (SSA), the stevedoring firm charged with loading the CARRARA
CASTLE, failed to do so. After review, 2 we affirm.
I. BACKGROUND
A. Facts
On September 28, 2011, Tyrone Miller, a member of the International
Longshoreman’s Association since 2006, was employed by SSA to work a shift
loading the CARRARA CASTLE at the Georgia Ports Authority Ocean Terminal
in Savannah, Georgia. The CARRARA CASTLE was owned by Navalmar and on
time charter to Grieg. Pursuant to the time charter agreement, Grieg was allowed
to use the vessel’s cargo spaces for loading cargo and transporting that cargo
overseas.3 Grieg employed SSA and other stevedoring companies to handle the
actual cargo loading and unloading process at various ports across the globe.
Grieg provided SSA with information regarding cargo specifications along with
written guidelines detailing the proper methods for storing and securing particular
types of cargo. These procedures provided that they should not be changed
2
“This court reviews a district court’s grant of summary judgment de novo applying the
same legal standards used by the district court.” Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.
2008). “Summary judgment is appropriate where ‘there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.’” Wooden v. Bd. of
Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P.
56(c)).
3
Under a typical time charter arrangement “the vessel owner commonly retains
possession and control of the vessel, provides the crew and fully equips and maintains the
vessel.” Thomas J. Schoenbaum, 2 ADMIRALTY & MARITIME LAW § 11-5 (5th ed. 2011).
3
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without consultation with Grieg’s port captain, in this instance, Steve Snell, who
was present during the loading process. There is no evidence in the record
suggesting Snell ever sought to enforce the loading procedures or otherwise
interfere in SSA’s loading operations.
On the day of Miller’s accident, the CARRARA CASTLE had arrived in
Savannah to pick up a shipment of Kraft Liner Board (KLB). KLB is essentially
cardboard tightly wound into a very large roll standing approximately eight feet
high and weighing roughly 2,000 pounds. SSA loaded these rolls into the hold of
the CARRARA CASTLE using what is commonly referred to as the chime
method.4 This method involves using a crane to stack the KLB rolls upright in
interlocking rows. The initial row is placed flush against either the port or
starboard bulkhead of the vessel, and each new roll is slotted into the gap or
“chime” between the two rolls in the preceding row. Chiming is preferred over
horizontally stowing the KLB rolls because the weight of the uppermost rolls
would crush the open core of the supporting rows on the bottom of the hold
rendering them unusable. However, use of the chime method does result in the
creation of gaps between the round edges of the rolls and the straight sides and
corners of the cargo hold.
4
Grieg’s written procedures indicated that KLB rolls are to be loaded using the chime
method.
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When Miller arrived to begin his evening shift, the KLB rolls had already
been stacked in four tiers standing approximately thirty-two feet high. Miller was
instructed by his SSA supervisors to begin preparing the hold for tiers of a
different commodity, wood pulp bales, by deploying plywood boards over the
various void spots in the stacks of KLB rolls. After “a momentary lapse in
concentration,” Miller stepped on a plywood board he had just placed over one of
the large corner gaps. The board gave way and Miller fell thirty-two feet to the
floor of the hold suffering significant injuries. The record does not indicate that
the plywood board itself was defective, and Miller offered no testimony to that
effect. The record is clear that no fall protections were placed in the corner gaps
before Miller began covering them with plywood.
B. Procedural History
Miller originally filed his negligence suit against Navalmar on September
30, 2013 in the State Court of Chatham County, Georgia. Navalmar removed the
action to the United States District Court for the Southern District of Georgia on
November 5, 2015. Following removal, Miller filed several amended complaints
articulating new negligence theories, and, on April 29, 2014, named Grieg as a
defendant in the action. After extensive discovery, Grieg and Navalmar filed
independent motions for summary judgment on May 27, 2015. The Defendants
primarily argued that under § 905(b) of the LHWCA neither Navalmar nor Grieg
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owed a duty of reasonable care toward Miller. The district court agreed and
granted the Defendants’ motions for summary judgment. This appeal followed.
II. DISCUSSION
As originally written, the LHWCA made shipowners strictly liable for
injuries suffered by longshoremen due to a vessel’s unseaworthiness as proven by
the existence of an unsafe, injury-causing condition on the vessel. See Scindia
Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 164–65 (1981). But in 1972,
Congress radically altered this scheme by, among other things, adding a statutory
cause of action for negligence against the shipowner, § 905(b), to the LHWCA and
abolishing a longshoreman’s right to recover in strict liability for injuries suffered
due to unseaworthiness. Id. at 165. Ordinary negligence principles govern
statutory claims brought under § 905(b) and the vessel owes the stevedore and her
longshoremen employees the duty of reasonable care “under the circumstances.”
Id. at 166–67 (quoting Marine Terminals v. Burnside Shipping Co., 394 U.S. 404,
415 (1969)).
But, the shipowner is entitled to rely on the stevedore “to avoid exposing the
longshoremen to unreasonable hazards,” and may otherwise expect the stevedore
to “perform his task properly without supervision.” Id. at 170. “[A]bsent 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
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dangerous conditions that develop within the confines of the cargo operations that
are assigned to the stevedore.” Id. at 172. However, shipowners do owe three
distinct duties, known as Scindia duties after the case establishing them, during
cargo operations. These duties are (1) the turnover duty, (2) the active control
duty, and (3) the duty to intervene. See Howlett v. Birkdale Shipping Co., 512 U.S.
92, 98 (1994) (describing the three primary duties created by the Supreme Court in
Scindia). On appeal, Miller only alleges breach of the active control duty and the
duty to intervene, having expressly abandoned his turnover duty claims. 5
A. Active Control Duty
A time charterer violates the active control duty under Scindia if it “actively
involves itself in the cargo operations and negligently injures a longshoreman.”
Scindia, 451 U.S. at 167. Here, Miller primarily argues Grieg’s provision of a
detailed loading procedure to the stevedore, SSA, and the presence of a port
captain aboard the CARRARA CASTLE during the loading process constituted
active involvement in the cargo operation and created a duty of reasonable care
toward Miller and the other longshoremen. 6 He contends Grieg subsequently
5
Although the parties have noted some ambiguity in the LHWCA’s treatment of time
charterers as compared with shipowners, the District Court assumed that Grieg owed the same
duties under the LHWCA as the shipowner, Navalmar. On appeal, the parties do not take issue
with that assumption, so we will also assume, without deciding, that Grieg and Navalmar owed
identical duties under § 905(b).
6
The record does not contain any evidence indicating the port captain actually took steps
to enforce the written loading procedures provided by Grieg.
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breached this duty by not providing adequate fall protection to guard against the
deep corner voids necessarily created by the KLB storage method required under
the loading procedure. Because we find neither Grieg’s storage plan nor the
supervisory presence of a port captain during loading constitute active control
sufficient to create a Scindia duty, we need not reach the question of breach.
While it is true that Scindia itself does not define active involvement in
cargo operations, it makes clear that once control over the vessel is relinquished
“primary responsibility for the safety of the longshoremen lies with the stevedore.”
Lampkin v. Liber. Athene Transp. Co., 823 F.2d 1497, 1501 (11th Cir. 2014); see
also Scindia, 451 U.S. at 170 (noting under the LHWCA it is the responsibility of
“the stevedore, the longshoremen’s employer, to provide a ‘reasonably safe’ place
to work”). And, the Supreme Court has carefully explained at least some level of
involvement in cargo operations does not automatically generate a duty on behalf
of the shipowner. Howlett, 512 U.S. at 103 (noting that even though the vessel and
its crew maintain some involvement in the cargo loading and storage process “[i]t
is settled maritime custom and practice that the stevedore exercises primary control
over the details of a cargo operation”).
Indeed, the provision of a stowage plan to the stevedore, routine practice in
the shipping industry, is not enough to constitute active control because “it is the
stevedore, an independent contractor hired for its expertise in the stowage and
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handling of cargo, that is charged with actual implementation of the plan.” Id.
Nor is the simple presence of supervisory personnel during cargo operations
sufficient to constitute “the type of active involvement and control that would
trigger the ship’s liability.” Derr v. Kawasaki Kisen K.K., 835 F.2d 490, 494 (3d
Cir. 1987); Bonds v. Mortensen and Lange, 717 F.2d 123, 127 n.4 (4th Cir. 1983)
(explaining “we do not take the presence of an officer of the ship’s crew to
constitute ‘active involvement’ in discharge operations”). The record shows
Grieg’s involvement in the cargo loading operation was limited to the provision of
a stowage plan to the stevedore, SSA, and the presence of a port captain to observe
the loading process. As a matter of law, this level of passive oversight is not
enough to create a duty based on active involvement with cargo operations under
Scindia and its progeny.
Miller presents no case law to rebut this conclusion and instead contends
Grieg’s use of mandatory shipping procedures represented a much greater level of
control over the loading process than is typical in the shipping industry. These
mandatory procedures, when coupled with the supervisory presence of Grieg
personnel, constituted enough direct control over the stevedore to constitute active
involvement in the cargo loading process.7 This argument is unconvincing.
Congress intended § 905(b) and the other 1972 amendments to the LHWCA to
7
For purposes of this appeal, we assume Miller is correct and Grieg’s loading procedures
were mandatory, unless amended by the supervisory port captain.
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“make the vessel answerable for its own negligence and to terminate its automatic,
faultless responsibility for conditions caused by the negligence or other defaults of
the stevedore.” Scindia, 451 U.S. at 168. Yet, Congress also recognized that the
shipowner need not remain totally detached from the cargo loading operation. Id.
Naturally, the shipowner has a business interest in the cargo and customarily
provides a cargo plan or other loading instructions. Id. But, consistent with
longstanding maritime process, it remains the stevedore’s job to implement those
instructions safely, and overseeing or assisting in that implementation is beyond
the shipowner’s “ordinary province.” Howlett, 512 U.S. at 103, 114 S. Ct. 2057
(explaining shipowners may rely on the stevedore’s expertise in conducting cargo
operations safely); see also Mallard v. Aluminum Co. of Can., Ltd., 634 F.2d 236,
243 (5th Cir. Jan. 1981) (explaining the shipowner is not liable in circumstances
where “either the stevedore or his employee is in a better position to appreciate
fully the obvious risk and avoid the danger, particularly where the danger is within
the control of the stevedore's own employees” (quotation omitted)). Thus, under
Scindia, the shipowner must actually involve itself in the operational details of
loading, or otherwise directly control the loading efforts of involved longshoremen
effectively displacing the stevedore from its traditional control over loading
operations.
10
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Even if Grieg’s loading instructions were mandatory, the procedures simply
lack direct operational guidance with respect to their implementation. There is no
evidence in the record that Grieg’s personnel supervised the loading process, or
were involved with the loading operation in any direct way. Instead, the
procedures merely provide explanations for the proper storage of particular types
of cargo, and require the stevedore to keep Grieg updated when making major
alterations to these protocols. This type of passive guidance does not constitute the
direct involvement in loading operations Scindia requires before an active control
duty is imposed on the shipowner.8 Accordingly, we find Grieg did not owe Miller
a duty of reasonable care based on its active involvement in cargo operations.
B. Duty to Intervene
Under Scindia, a shipowner9 has a duty to intervene and protect a
longshoreman once cargo operations have begun even if it is not actively involved
8
Miller also contends the mandatory nature of the cargo plan effectively disabled the
stevedore from using its own judgment to “[take] ameliorative measures to avoid the hazard.”
Keller v. United States, 38 F.3d 16, 24 (1st Cir. 1994). However, there is no evidence to support
that assertion. Indeed, the record reveals the stevedore, SSA, retained ultimate control over the
loading operation and had “the ability to just stop the operation” based on safety concerns. And,
in any event, the Grieg procedures are silent with respect to the specific deployment of particular
types of fall protections. The loading instructions simply do not reveal any attempt to restrict the
stevedore’s ability to employ its expertise to protect Miller and the other longshoreman during
cargo operations. Moreover, Miller does not allege the existence of any express oral or written
agreement in which Grieg assumed safety responsibilities during loading operations. In the
absence of such an agreement, the record does not support an inference that Grieg sought to
displace SSA from primary operational control over loading operations.
9
As previously noted, we assume without deciding that, under the circumstances
presented in this case, time charterers and shipowners owe identical duties under Scindia.
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in those operations if “[the shipowner] becomes aware that the ship or its gear
poses a danger to the longshoremen and that the stevedore is failing, unreasonably,
to protect the longshoremen.” Lampkin, 823 F.2d at 1501 (quoting Clark v.
Bothello Shipping Corp., 784 F.2d 1563, 1565 (11th Cir. 1986)). Importantly, a
shipowner only has “a duty to intervene when it has actual knowledge of a
dangerous condition and actual knowledge that the stevedore, in the exercise of
‘obviously improvident’ judgment, has failed to remedy it.” Greenwood v. Societe
Francaise De, 111 F.3d 1239, 1248 (5th Cir. 1997) (quoting Pimental v. LTD
Canadian Pacific Bul, 965 F.2d 13, 17 (5th Cir. 1992)). The duty to intervene is
an exceedingly narrow one and “[o]nly the most egregious decisions by the
stevedore are ‘obviously improvident.’” Harris v. Pac. Gulf-Marine, Inc., 967 F.
Supp. 158, 165 (E.D. Va. 1997); see also Greenwood, 111 F.3d at 1249 (noting
obvious improvidence requires the stevedore to “use an object with a defective
condition that is so hazardous that anyone can tell that its continued use creates an
unreasonable risk of harm even when the stevedore’s expertise is taken into
account”).
Miller argues the record indicates the Defendants must have been aware of
the dangerous voids in the corner of the CARRARA CASTLE’s cargo hold
because those voids were a necessary result of the chiming method used to store
rolls of KLB. Miller also contends the Defendants had actual knowledge that the
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stevedore was failing to remedy the hazard posed by the corner voids both because
the loading procedure actively prevented SSA from ameliorating the condition and,
in any event, the voids created by use of the chiming method were a necessary part
of the process that the stevedore could not have remedied.
However, even if we assume that the Defendants had actual knowledge of
the dangerous condition resulting from chiming the KLB rolls in the CARRARA
CASTLE’s hull, Miller has made no showing that they had actual knowledge of
SSA’s failure to remedy the problem. As the district court pointed out, Miller does
not allege SSA or any of its employees ever complained to the Defendants
regarding unsafe conditions during loading. See Roach v. M/V Aqua Grace, 857
F.2d 1575, 1582 (11th Cir. 1988) (affirming summary judgment because absent
complaints to the ship the owner had no notice of failure to ameliorate hazardous
condition and thus no duty to intervene); Bonds, 717 F.2d at 127–28 (no duty to
intervene regarding obvious hazard in part because “longshoremen proceeded to
unload the ship’s cargo without complaint or incident”). Nor does Miller suggest
SSA took any abnormal action during the loading process. Most importantly, there
is no indication in the record that personnel from either Navalmar or Grieg
oversaw the loading operation, inspected the cargo hold, or otherwise acquired
actual knowledge of the stevedore’s exercise of “obviously improvident” judgment
in failing to deal with the safety hazards posed by the large corner voids in the
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KLB stacks. Accordingly, the Defendants were entitled to rely on the stevedore to
“perform his task properly without supervision.” Scindia, 451 U.S. at 170.
Miller seeks to avoid this result by contending that the chimed method of
stacking KLB rolls was so hazardous it simply could not have been ameliorated by
the stevedore.10 The use of such an inherently dangerous cargo storage method by
the shipowner could be viewed as direct negligence and consequently might
require the shipowner to intervene and ameliorate the hazard. See Keller v. United
States, 38 F.3d 16, 24 (1st Cir. 1994). However, the chimed method of shipping
KLB rolls has been in widespread use for decades, and the record demonstrates
there is nothing unusual or hazardous about the method. Additionally, Miller has
failed to demonstrate the chimed method is so inherently dangerous the stevedore
could not fulfill its ordinary obligation of providing longshoremen with a
reasonably safe working environment during cargo operations. Indeed, the better
part of Miller’s brief is spent arguing the hazards posed by chiming the KLB stacks
were easily avoidable through the use of ordinary safety measures. This argument
must fail as well. The district court did not err in finding the Defendants lacked
actual knowledge regarding SSA’s inability, or failure, to remedy a dangerous fall
10
Miller also argues that the mandatory loading procedures had a similar effect. But, as
we have already explained, the loading procedures did not actually diminish the stevedore’s
operational control over the loading operation. Nor did the procedures indicate an attempt on the
part of Grieg to assume responsibility over the practical implementation of the cargo plan.
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hazard on the CARRARA CASTLE, and consequently they had no duty to
intervene in routine cargo loading operations under Scindia and its progeny.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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