IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2007
No. 06-30791 Charles R. Fulbruge III
Clerk
LEONAL ROBINSON
Plaintiff-Appellee
v.
ORIENT MARINE CO LTD; CLIO MARINE INC; WELLS FARGO
NORTHWEST; OLDENDORFF CARRIERS GMBH & CO, K.G.
Defendants-Appellees
v.
PAN OCEAN SHIPPING CO, LTD; UNITED KINGDOM MUTUAL
STEAMSHIP ASSURANCE ASSOCIATION (BERMUDA) LTD
Defendants-Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
In this interlocutory appeal, Pan Ocean Shipping Co. (“Pan Ocean”)
contests the district court’s denial of summary judgment as to Leonal Robinson’s
claims against it. For the following reasons, we REVERSE and REMAND.
I. FACTS AND PROCEEDINGS
No. 06-30791
Pan Ocean executed a time charter from Oldendorff Carriers GmbH and
Co. (“Oldendorff”) for the M/V CLIO PACIFIC. Clause 8 of the agreement
between the companies provided: “Charterers are to Perform all cargo handling
at their risk and expense.”
In Indonesia, the hold of the CLIO PACIFIC had been loaded with crates
of plywood, which were stacked in an unstable manner. Robinson, an employee
of a stevedoring company, P&O Ports of Louisiana (“P&O”), was injured when
one of the plywood bundles flipped off of the stack and landed on him as he
helped unload the CLIO PACIFIC in New Orleans, Louisiana. Robinson sued
Pan Ocean and Oldendorff, among others, claiming entitlement to compensation
under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), which
provides injured longshore workers with a remedy for harms caused by a
“vessel.” See 33 U.S.C. § 905(b). The term “vessel” includes time charterers of
the ship, such as Pan Ocean. Kerr-McGee Corp. v. Ma-Ju Marine Services, Inc.,
830 F.2d 1332, 1338 (5th Cir. 1987).
Under the LHWCA, a vessel generally “may rely on the stevedore to avoid
exposing the longshoreman to unreasonable hazards . . . the primary
responsibility for the safety of the longshoremen rests on the stevedore.”
Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996). A
vessel may be liable to longshoremen under three circumstances:
1) if the vessel owner fails to warn on turning over the ship of
hidden defects of which he should have known.
2) for injury caused by hazards under the control of the ship.
3) if the vessel owner fails to intervene in the stevedore’s operations
when he has actual knowledge both of the hazard and that the
stevedore, in the exercise of obviously improvident judgment, means
to work on in the face of it and therefore cannot be relied on to
remedy it.
Pimental v. LTD Canadian Pacific BUL, 965 F.2d 13, 15 (5th Cir.1992) (internal
quotation omitted). Here, the first duty, or the “turnover” duty, is at issue. The
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No. 06-30791
turnover duty was articulated in Scindia Steam Navigation Co. v. De Los Santos,
451 U.S. 156, 166–67 (1981) and further specified in Howlett v. Birkdale
Shipping Co., 512 U.S. 92, 98–100 (1994). Robinson contends that Pan Ocean
and Oldendorff breached this duty by failing to warn him of the “hidden defect”
of the improperly stacked crates.
The district court found that Oldendorff did not breach this duty because
the unevenly stacked crates did not constitute a latent hazard aboard the ship.
It granted summary judgment to Oldendorff and dismissed Robinson’s claims
against it. But the district court found that Pan Ocean’s duties differed from
Oldendorff’s, and it denied Pan Ocean’s motion for summary judgment. Pan
Ocean appeals this ruling.
II. STANDARD OF REVIEW
We review a district court’s grant or denial of summary judgment de novo,
applying the same standard as the district court. Gowesky v. Singing River
Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is appropriate
if “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). Any reasonable inferences are to be drawn in favor
of the non-moving party. Gowesky, 321 F.3d at 507.
III. ANALYSIS
The district court found that Clause 8 of the contract between Pan Ocean
and Oldendorff placed liability for negligent storage of the cargo on Pan Ocean,
regardless of whether the hazard was hidden. In other words, the time-
chartering agreement created a new duty for Pan Ocean to protect the stevedore
from harm from improperly stowed cargo, beyond a mere duty to warn the
stevedore of hidden dangers. We hold this conclusion to be unsound.
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No. 06-30791
Clause 8 clearly transfers Oldendorff’s duties to Pan Ocean, a fact Pan
Ocean does not dispute. Oldendorff’s duties, however, extended only to the duty
to warn expressed in Scindia. Nowhere in our jurisprudence, the district court’s
order, or any authority cited by the parties do we find a reason that a time
charterer would be held liable for negligent stowage by a stevedore it did not
control. Both the Second and the Ninth Circuits have held that language
virtually identical to that found in Clause 8 acts as an indemnification clause
between the owner and the time charterer and does not affect the duties owed
to longshoremen. See Carpenter v. Universal Star Shipping, S.A., 924 F.2d 1539,
1545 (9th Cir. 1991) (“These clauses determine indemnity issues between the
owner and the charterer and do not inure to the benefit of the longshoremen.”);
Fernandez v. Chios Shipping Co., 542 F.2d 145, 152-53 (2d Cir. 1976) (“Since the
cause of the damage, improper discharge of cargo, is within the scope of
responsibilities shifted from Shipowner to Time Charterer by Clause 8, the Time
Charterer is obligated to indemnify the Shipowner.”). We reach the same
conclusion and hold that it was error for the district court to conclude that the
“risk and expense” language of Clause 8 of the agreement did more than shift
ultimate responsibility for liability from Oldendorff to Pan Ocean. Clause 8 did
not expand or alter the turnover duty otherwise owed to Robinson. The district
court should have analyzed Pan Ocean’s liability using the same standard it had
applied to Oldendorff.
IV. CONCLUSION
For the foregoing reasons we REVERSE and REMAND for further
proceedings consistent with this opinion.
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