OCTOBER TERM, 1993
Syllabus
HOWLETT
v. BIRKDALE SHIPPING CO., S. A.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 93-670. Argued April 20, 1994-Decided June 13, 1994
Petitioner Howlett, a longshoreman employed by stevedore
Northern Shipping Co., was injured when he slipped and fell on a
sheet of clear plastic that had been placed under bags he was
discharging from a cargo hold on a ship owned and operated by
respondent Birkdale Shipping Co. He filed suit against Birkdale
under § 5(b) of the Longshore and Harbor Workers' Compensation Act,
which requires shipowners to exercise ordinary care to maintain a
ship and its equipment in a condition so that an expert and
experienced stevedore can load and unload cargo with reasonable
safety. As a corollary to this "turnover duty," a shipowner must
warn the stevedore of latent hazards that are known or should be
known to the shipowner. Here, the evidence showed that the vessel
had supplied the plastic to the loading stevedore in Guayaquil,
Ecuador, and that that stevedore had placed it under the bags, even
though this was improper. Howlett charged that Birkdale was
negligent in failing to warn Northern and its employees of this
dangerous condition. The District Court granted Birkdale summary
judgment, finding that Howlett had not demonstrated that Birkdale
had actual knowledge of the hazardous condition, and that the
condition was not open and obvious. It declined to infer such
knowledge from the fact that the vessel had supplied the Guayaquil
stevedore with the plastic or that the vessel's crew was present
during the loading operation. Even if the plastic's improper use
was apparent to the crew in Guayaquil, the court added, then it was
also an open and obvious condition for which Howlett could not
recover. The Court of Appeals affirmed.
Held:
1. A vessel's turnover duty to warn of latent defects in the
cargo stow is narrow. As a general rule, the duty to warn attaches
only to hazards that are not known to the stevedore and that would
be neither obvious to, nor anticipated by, a skilled stevedore in
the competent performance of its work.
Scindia Steam Nav.
Co. v.
De los Santos, 451 U. S. 156, 167.
Subjecting vessels to suit for injuries that could be so
anticipated would upset the balance Congress was careful to strike
when it amended the Act in 1972 to shift more of the responsibility
for compensating injured longshoremen to stevedores, who are best
able to avoid acci-
93
dents during cargo operations. In addition, absent a vessel's
actual knowledge of a hazard, the turnover duty attaches only if
the exercise of reasonable care would place upon the vessel an
obligation to inspect for or discover the hazard's existence.
Contrary to Howlett's submission, however, the exercise of
reasonable care does not require a vessel to supervise the ongoing
operations of the loading stevedore or other stevedores handling
the cargo before it arrives in port, or to inspect the completed
stow, to discover hazards in the cargo stow. Pp. 96-105.
2. The District Court erred in resting summary judgment on the
ground that the vessel had no actual knowledge of the hazard
leading to Howlett's injury. Some crew members, who might have held
positions such that their knowledge should be attributed to the
vessel, might have observed the plastic being placed under the bags
during the loading process. The court's additional theory that the
condition would have been open and obvious to the stevedore during
unloading had it been obvious to the crew may also prove faulty,
being premised on the vessel's state of affairs during loading, not
discharge. Of course, the vessel may be entitled to summary
judgment, since there is evidence that the plastic was visible
during unloading, and since Howlett must demonstrate that the
alleged hazard would not have been obvious to, or anticipated by, a
skilled and competent stevedore at the discharge port. pp.
105-106.
998 F.2d
1003, vacated and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.
Charles Sovel argued the cause for petitioner. With him
on the briefs was
Stanley B. Gruber.
Carl D. Buchholz III argued the cause for respondent.
With him on the brief was
Michael P. Zipfel. *
JUSTICE KENNEDY delivered the opinion of the Court. Under § 5(b)
of the Longshore and Harbor Workers' Compensation Act, 33 U. s. C.
§ 905(b), a shipowner must exercise ordinary care to maintain the
ship and its equipment in a
*Thomas D. Wilcox and
Charles T. Carroll, Jr.,
filed a brief for the National Association of Waterfront Employers
as
amicus curiae urging reversal.
Graydon S.
Staring and
John A. Flynn filed
a brief for the American Institute of Merchant Shipping as
amicus curiae urging affirmance.
94
condition so that an expert and experienced stevedore can load
and unload cargo with reasonable safety. As a corollary to this
duty, the shipowner must warn the stevedore of latent hazards, as
the term is defined in maritime law, that are known or should be
known to the shipowner. This case requires us to define the
circumstances under which a shipowner must warn of latent hazards
in the cargo stow or cargo area.
I
The case arrives after a grant of summary judgment to respondent
Birkdale Shipping Co., S. A., so we consider the facts in the light
most favorable to petitioner Albert Howlett. Howlett, a
longshoreman employed in the Port of Philadelphia by stevedore
Northern Shipping Co., was injured while discharging bags of cocoa
beans from a cargo hold on the MV
Presidente Ibanez, a ship
owned and operated by Birkdale. During the unloading operation,
Howlett and three other longshoremen hooked up a draft, or load, of
bags stowed on the tween deck of the hold. When the ship's boom
lifted the draft out of the hold, an 8-square-foot area of the
tween deck was exposed. Howlett, who was standing on surrounding
bags, jumped down about three feet to the deck, where he slipped
and fell on a sheet of clear plastic that had been placed under the
cargo. As a result of his fall, Howlett sustained serious injuries
that have disabled him from returning to work as a
longshoreman.
Howlett brought suit against Birkdale under § 5(b) of the Act.
Both parties agreed that it is customary to lay paper and plywood
on a steel deck to protect a stow of cocoa beans against
condensation damage. They also agreed that, for purposes of
protecting the beans, it was improper to use plastic, which tends
to aggravate condensation damage rather than prevent it. Evidence
adduced during pretrial proceedings suggested that the independent
stevedore engaged by Birkdale to load the beans in Guayaquil,
Ecuador, had placed the plastic on the tween deck. Further
evidence
95
showed that the vessel had supplied the Guayaquil stevedore with
the plastic, along with other material used in stowing cargo,
including paper, plywood, and dunnage. Howlett claimed that before
jumping to the deck he did not see the plastic, which was covered
by dirt and debris. He charged that Birkdale was negligent in
failing to warn Northern and its longshoremen-employees of this
dangerous condition.
The United States District Court for the Eastern District of
Pennsylvania granted summary judgment in favor of Birkdale. Relying
upon
Derr v.
Kawasaki Kisen K. K., 835 F.2d
490 (CA3 1987), cert. denied, 486 U. S. 1007 (1988), the court
held that Howlett, to prevail on his failure-to-warn claim, had to
demonstrate that Birkdale had actual knowledge of the hazardous
condition and that the condition was not open and obvious. After
reviewing the record, the court concluded that Howlett had failed
to present evidence sufficient to sustain his claim. The court
declined to infer that Birkdale had actual knowledge of the
condition from the fact that it had supplied the Guayaquil
stevedore with the plastic, reasoning that "being the supplier of
equipment does not necessarily imply knowledge of its intended
purpose." App. to Pet. for Cert.4a. The court further declined to
infer actual knowledge from the fact that the members of the
vessel's crew were present on the top deck during the loading
operation. And even if the Guayaquil stevedore's improper use of
plastic had been apparent to the crew, the court continued, "then
it readily transpires that this was an open and obvious condition"
for which Howlett could not recover.
Ibid. The Court of
Appeals affirmed without opinion, judgt. order reported at
998 F.2d
1003 (CA3 1993).
We granted certiorari, 510 U. S. 1039 (1994), to resolve a
conflict among the Circuits regarding the scope of the shipowners'
duty to warn of latent hazards in the cargo stow, an inquiry that
depends in large part upon the nature of the shipowners' duty to
inspect for such defects. Compare
Derr v.
Kawasaki Kisen
K. K., supra (vessel need not inspect or
96
supervise the loading stevedore's cargo operations for the
benefit oflongshoremen in later ports), with
Turner v.
Japan Lines, Ltd., 651 F.2d
1300 (CA9 1981) (vessel must supervise a foreign stevedore's
loading operations), cert. denied, 459 U. S. 967 (1982).
II
The Longshore and Harbor Workers' Compensation Act, 44 Stat.
1424, as amended, 33 U. S. C. § 901
et seq., establishes a
comprehensive federal workers' compensation program that provides
longshoremen and their families with medical, disability, and
survivor benefits for work-related injuries and death. See
generally T. Schoenbaum, Admiralty and Maritime Law § 6-6 (1987);
M. Norris, Law of Maritime Personal Injuries §§ 4:11, 4:22-4:29
(4th ed. 1990). The injured longshoreman's employer-in most
instances, an independent stevedore, see
Edmonds v.
Compagnie Generale Transatlantique, 443 U. S. 256, 263-264
(1979)-must pay the statutory benefits regardless of fault, but is
shielded from any further liability to the longshoreman. See 33 U.
S. C. §§ 904, 905(a); Norris,
supra, §§ 4:7-4:10.
The longshoreman also may seek damages in a third-party
negligence action against the owner of the vessel on which he was
injured, and may do so without forgoing statutory compensation if
he follows certain procedures. See
Estate of Cowart v.
Nicklos Drilling Co., 505 U. S. 469 (1992).
Section 5(b) provides in relevant part:
"In the event of injury to a person covered under this Act
caused by the negligence of a vessel, then such person ... may
bring an action against such vessel as a third party ... , and the
employer shall not be liable to the vessel for such damages
directly or indirectly and any agreements or warranties to the
contrary shall be void .... The liability of the vessel under this
subsection shall not be based upon the warranty of
seaworthiness
97
or a breach thereof at the time the injury occurred." 33 U. S.
C. § 905(b).
This provision, enacted as part of the extensive 1972 amendments
to the Act, effected fundamental changes in the nature of the
third-party action. First, it abolished the longshoreman's
pre-existing right to sue a shipowner based upon the warranty of
seaworthiness, a right that had been established in
Seas
Shipping Co. v.
Sieracki, 328 U. S. 85 (1946).
Section 5(b) also eliminated the stevedore's obligation, imposed by
Ryan Stevedoring Co. v.
Pan-Atlantic S. S.
Corp.,
350 U. S. 124 (1956), to indemnify a shipowner, if held liable
to a longshoreman, for breach of the stevedore's express or implied
warranty to conduct cargo operations with reasonable safety. See
generally
Scindia Steam Nav. Co. v.
De los Santos,
451 U. S. 156,
165 (1981); G. Gilmore & C. Black, Law of Admiralty § 6-57, pp.
449-455 (2d ed. 1975) (hereinafter Gilmore & Black). Other
sections of the 1972 amendments provided for a substantial increase
in the statutory benefits injured longshoremen are entitled to
receive from their stevedore-employers. See
Northeast Marine
Terminal Co. v.
Caputo, 432 U. S. 249, 261-262
(1977); Gilmore & Black § 6-46, at 411; Note, 13 Tulane Mar. L.
J. 163, 163-164 (1988). The design of these changes was to shift
more of the responsibility for compensating injured longshoremen to
the party best able to prevent injuries: the stevedore-employer.
See
Scindia Steam, 451 U. S., at 171. Subjecting vessels to
suit for injuries that could be anticipated and prevented by a
competent stevedore would threaten to upset the balance Congress
was careful to strike in enacting the 1972 amendments.
The question whether Howlett produced evidence sufficient to
hold Birkdale liable for his injuries turns on the meaning of the
term "negligence" in § 5(b). Because Congress did not "specify the
acts or omissions of the vessel that would constitute negligence,"
the contours of a vessel's duty to longshoremen are "left to be
resolved through the 'appli-
98
cation of accepted principles of tort law and the ordinary
process of litigation.'"
Id., at 165-166.
The starting point in this regard must be our decision in
Scindia Steam, which outlined the three general duties
shipowners owe to longshoremen. The first, which courts have come
to call the "turnover duty," relates to the condition of the ship
upon the commencement of stevedoring operations. See id., at 167.
The second duty, applicable once stevedoring operations have begun,
provides that a shipowner must exercise reasonable care to prevent
injuries to longshoremen in areas that remain under the "active
control of the vessel."
Ibid. The third duty, called the
"duty to intervene," concerns the vessel's obligations with regard
to cargo operations in areas under the principal control of the
independent stevedore. See id., at 167-178.
The allegations of Howlett's complaint, and the facts adduced
during pretrial proceedings, implicate only the vessel's turnover
duty. We provided a brief statement of the turnover duty in
Federal Marine Terminals, Inc. v.
Burnside Shipping
Co., 394 U. S.
404 (1969): A vessel must "exercise ordinary care under the
circumstances" to turn over the ship and its equipment and
appliances "in such condition that an expert and experienced
stevedoring contractor, mindful of the dangers he should reasonably
expect to encounter, arising from the hazards of the ship's service
or otherwise, will be able by the exercise of ordinary care" to
carryon cargo operations "with reasonable safety to persons and
property."
Id., at 416-417, n. 18 (internal quotation marks
omitted); see also
Scindia Steam, 451 U. S., at 167. A
corollary to the turnover duty requires the vessel to warn the
stevedore "of any hazards on the ship or with respect to its
equipment," so long as the hazards "are known to the vessel or
should be known to it in the exercise of reasonable care," and
"would likely be encountered by the stevedore in the course of his
cargo operations[,] are not known by the stevedore[,] and would not
be obvious to or anticipated by him if reasonably
99
competent in the performance of his work."
Ibid., citing
Marine Terminals, supra, at 416, n. 18. Although both
components of the turnover duty are related in various respects,
Howlett confines his case to an allegation that Birkdale failed to
warn that the tween deck was covered with plastic rather than (as
is ordinarily the case) paper and plywood.
Most turnover cases brought under § 5(b) concern the condition
of the ship itself or of equipment on the ship used in stevedoring
operations. See,
e. g., Bjaranson v.
Botelho Shipping
Corp., Manila, 873 F.2d
1204 (CA9 1989) (no handhold on coaming ladder);
Griffith v.
Wheeling-Pittsburgh Steel Corp.,
610 F.2d
116 (CA3 1979) (defective hatch covers), remanded, 451 U. S.
965, reinstated,
657 F.2d
25 (CA3 1981), cert. denied, 456 U. S. 914 (1982);
Scalafani v.
Moore McCormack Lines, Inc., 388 F.
Supp. 897 (EDNY) (no handrail on platform linking gangway and
deck), aff'd without opinion,
535 F.2d
1243 (CA2 1975). The turnover duty to warn, however, may extend
to certain latent hazards in the cargo stow. This is so because an
improper stow can cause injuries to longshoremen, see,
e. g.,
Atlantic &
Gulf Stevedores, Inc. v.
Ellerman
Lines, Ltd., 369
U. S. 355 (1962);
Ryan Stevedoring Co. v.
Pan-Atlantic S. S.
Corp., 350 U. S. 124 (1956);
Clay v.
Lykes Bros. S. S.
Co., 525 F. Supp.
306 (ED La. 1981);
The Etna, 43 F. Supp. 303 (ED Pa. 1942),
and thus is among the "hazards on the ship" to which the duty to
warn attaches.
Scindia Steam, 451 U. S., at 167.
The precise contours of the duty to warn of latent hazards in
the cargo stow must be defined with due regard to the concurrent
duties of the stevedore and to the statutory scheme as a whole. It
bears repeating that the duty attaches only to latent hazards,
defined in this context as hazards that would be neither obvious to
nor anticipated by a competent stevedore in the ordinary course of
cargo operations. In addition, the vessel's duty to warn is
confined to latent hazards that "are known to the vessel or should
be
100
known to it in the exercise of reasonable care."
Ibid.
Absent actual knowledge of a hazard, then, the duty to warn may
attach only if the exercise of reasonable care would place upon the
shipowner an obligation to inspect for, or discover, the hazard's
existence. See
Kirsch v.
Plovidba, 971 F.2d
1026,1029 (CA3 1992) ("[T]he shipowner's duty to warn the
stevedore of hidden dangers necessarily implies a duty to inspect
to discover those dangers").
Howlett, relying upon the Restatement (Second) of Torts § 412
(1965), maintains that a vessel's obligations in this regard are
broad. Section 412 provides that an owner of land or chattels who
hires an independent contractor must take reasonable steps to
"ascertain whether the land or chattel is in reasonably safe
condition after the contractor's work is completed." In light of
this provision, Howlett argues that "a shipowner, who has hired an
independent contractor stevedore to perform the work of loading
cargo aboard its ship, has a duty to make 'reasonable' (not
continuous) inspections" during and after cargo operations to
discover dangerous conditions in the stow. Brief for Petitioner
27.
We decline to adopt Howlett's proposal. As an initial matter, we
repeat our caveat that the Restatement's land-based principles,
"while not irrelevant, do not furnish sure guidance" in maritime
cases brought under § 5(b).
Scindia Steam, 451 U. S., at
168, n. 14. On a more fundamental level, Howlett's contention that
a vessel must make reasonable inspections, both during and after
stevedoring operations, to discover defects in the stow contradicts
the principles underlying our decision in
Scindia Steam. The
plaintiff longshoreman in
Scindia Steam, injured by cargo
that fell from a defective winch, alleged that the shipowner should
have intervened in the stevedoring operations and repaired the
winch before permitting operations to continue. The case thus
turned not upon the turnover duty but upon the scope of the
vessel's duty to intervene once cargo operations have begun. We
held that the duty to intervene, in the event the
101
vessel has no knowledge of the hazardous condition, is limited:
"[A]bsent contract provision, positive law, or custom to the
contrary," a vessel "has no general duty by way of supervision or
inspection to exercise reasonable care to discover dangerous
conditions that develop within the confines of the cargo operations
that are assigned to the stevedore."
Id., at 172.
The rule relieving vessels from this general duty rests upon
"the justifiable expectations of the vessel that the stevedore
would perform with reasonable competence and see to the safety of
the cargo operations."
Ibid.; see also
Hugev v.
Dampskisaktieselskabet Int'l, 170 F. Supp. 601, 609-610 (SD
Cal. 1959), aff'd
sub nom. Metropolitan Stevedore Co. v.
Dampskisaktieselskabet Int'l, 274 F.2d
875 (CA9), cert. denied, 363 U. S. 803 (1960). These
expectations derive in part from § 41 of the Act, 33 U. S. C. §
941, which requires the stevedore, as the longshoreman's employer,
to provide a "reasonably safe" place to work and to take safeguards
necessary to avoid injuries.
Scindia Steam, 451 U. S., at
170. The expectations also derive from indemnity cases decided
prior to the 1972 Act, which teach that "the stevedore [is] in the
best position to avoid accidents during cargo operations" and that
"the shipowner [can] rely on the stevedore's warranty to perform
competently."
Id., at 171, citing
Italia Societa per
Azioni di Navigazione v.
Oregon Stevedoring Co.,
376 U. S. 315
(1964); see also 451 U. S., at 175 (safety is "a matter of judgment
committed to the stevedore in the first instance"). The stevedore's
obligations in this regard may not be diminished by transferring
them to the vessel.
Given the legal and practical realities of the maritime trade,
we concluded in
Scindia Steam that imposing a duty upon
vessels to supervise and inspect cargo operations for the benefit
of longshoremen then on board would undermine Congress' intent in §
5(b) to terminate the vessel's "automatic, faultless responsibility
for conditions caused by the negligence or other defaults of the
stevedore," id., at 168,
102
and to foreclose liability "based on a theory of unseaworthiness
or nondelegable duty," id., at 172. Agreeing with the Court,
Justice Powell further observed that imposing such a duty-in light
of the stevedore-employer's right to receive reimbursement for its
payment of statutory compensation if a longshoreman prevails in a §
5(b) action against a vessel, see
Edmonds v.
Compagnie
Generale Transatlantique, 443 U. S., at 269-270-would "decrease
significantly the incentives toward safety of the party in the best
position to prevent injuries."
Scindia Steam, supra, at 181
(concurring opinion); see also
Edmonds, supra, at 274
(BLACKMUN, J., dissenting). It is also worth noting that an injured
longshoreman's acceptance of statutory compensation operates as an
assignment to the stevedore-employer of the longshoreman's right to
bring suit against the vessel, so long as the longshoreman does not
sue within six months of accepting compensation. 33 U. S. C. §
933(b). Were we to have accepted the longshoreman's contentions in
Scindia Steam, we would have run the risk of promoting the
kind of collateral litigation between stevedores and vessels
(albeit in a different guise) that had consumed an intolerable
amount of litigation costs prior to the 1972 Amendments. See
Gilmore & Black § 6-46, at 411.
The foregoing principles, while taken from
Scindia
Steam's examination of the vessel's duty to intervene, bear as
well on the nature of the vessel's turnover duty, and hence on the
case before us. We consider first Howlett's view that a vessel must
make reasonable inspections during stevedoring operations to ensure
a proper stow and to detect any hazards or defects before they
become hidden. The beneficiaries of this proposed duty would be
longshoremen who unload or otherwise deal with the cargo at later
ports. But if, as we held in
Scindia Steam, a vessel need
not supervise or inspect ongoing cargo operations for the benefit
of longshoremen then on board, it would make little sense to impose
the same obligation for the benefit of longshoremen at subse-
103
quent ports. In practical effect, then, adopting Howlett's
proposal would impose inconsistent standards upon shipowners as to
different sets of longshoremen, and would render much of our
holding in
Scindia Steam an empty gesture.
These concerns are mitigated somewhat when a longshoreman, such
as Howlett, works on cargo stowed in a foreign port and undisturbed
by longshoremen in a prior American port of call. Foreign
longshoremen are not covered by the Act, so requiring vessels to
supervise and inspect a foreign stevedore's ongoing operations
would not be inconsistent with the precise rule laid down in
Scindia Steam. This consideration, however, does not support
imposing broader duties upon vessels to inspect cargo loading
operations in foreign ports. It is settled maritime custom and
practice that the stevedore exercises primary control over the
details of a cargo operation, see
Oregon Stevedoring, supra,
at 322-323, and we are given no reason to believe that this is any
less true in foreign ports than in domestic ports.
That is not to say, of course, that the vessel and its crew
remain detached from cargo operations altogether. Most vessels take
responsibility, for instance, for preparing a stowage plan, which
governs where each cargo will be stowed on the ship. See generally
C. Sauerbier & R. Meurn, Marine Cargo Operations 217-239 (2d
ed. 1985). But it is the stevedore, an independent contractor hired
for its expertise in the stowage and handling of cargo, that is
charged with actual implementation of the plan. To impose a duty
upon vessels to exercise scrutiny over a cargo loading operation to
discover defects that may become hidden when the stow is complete
would require vessels to inject themselves into matters beyond
their ordinary province. See Williams, Shipowner Liability for
Improperly Stowed Cargo: Federal Courts at Sea on the Standard of
Care Owed to Off-Loading Longshoremen, 17 Tulane Mar. L. J. 185,
198-199 (1993); contra
Turner v.
Japan Lines, Ltd.,
651 F. 2d, at 1304 (vessel "can ensure safety by choosing a
reliable foreign stevedore
104
[and] supervising its work when necessary"). The proposed rule
would undermine Congress' intent in § 5(b) to eliminate the
vessel's nondelegable duty to protect longshoremen from the
negligence of others. See
Scindia Steam, 451 U. S., at
168-169.
We next consider Howlett's view that a vessel must make
reasonable inspections after the completion of stevedoring
operations to discover hazards in the stow. There is good reason to
doubt that adopting this rule would have much practical import. Any
hazard uncovered by a shipowner who inspects a completed stow
would, as a matter of course, be discovered in a subsequent port by
a stevedore "reasonably competent in the performance of his work."
Id., at 167. As discussed above, shipowners engage a
stevedore for its expertise in cargo operations and are entitled to
assume that a competent stevedore will be able to identify and cope
with defects in the stow. See
id., at 171;
Hugev v.
Dampskisaktieselskabet Int'l, 170 F. Supp., at 609-610. Once
loading operations are complete, it follows that any dangers
arising from an improper stow would be "at least as apparent to the
[stevedore] as to the [shipowner]."
Atlantic &
Gulf
Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U. S., at
366 (Stewart, J., dissenting). Because there can be no recovery
under § 5(b) for a vessel's failure to warn of dangers that would
be apparent to a longshoreman of reasonable competence,
Scindia
Steam, supra, at 167, nothing would be accomplished by imposing
a duty upon vessels to inspect the stow upon completion of cargo
operations. That is reason enough to reject it.
For the purposes of delineating the scope of a shipowner's
turnover duty, then, the cargo stow is separate and distinct from
other aspects of the ship. When between ports, the vessel and its
crew have direct access to (and control over) the ship itself and
its gear, equipment, and tools. The vessel's responsibilities to
inspect these areas of the ship are commensurate with its access
and control, bearing in mind,
105
of course, that negligence, rather than unseaworthiness, is the
controlling standard where longshoremen are concerned. Because the
vessel does not exercise the same degree of operational control
over, and does not have the same access to, the cargo stow, its
duties with respect to the stow are limited by comparison. See
Robertson v.
Tokai Shosen K. K., 655 F. Supp. 152,
154 (ED Pa.), aff'd,
835 F.2d
490 (CA3 1987), cert. denied, 486 U. S. 1007 (1988).
In sum, the vessel's turnover duty to warn of latent defects in
the cargo stow and cargo area is a narrow one. The duty attaches
only to latent hazards, defined as hazards that are not known to
the stevedore and that would be neither obvious to nor anticipated
by a skilled stevedore in the competent performance of its work.
Scindia Steam, 451 U. S., at 167. Furthermore, the duty
encompasses only those hazards that "are known to the vessel or
should be known to it in the exercise of reasonable care."
Ibid. Contrary to Howlett's submission, however, the
exercise of reasonable care does not require the shipowner to
supervise the ongoing operations of the loading stevedore (or other
stevedores who handle the cargo before its arrival in port) or to
inspect the completed stow.
III
We turn to the proper disposition of this case. As the Court of
Appeals did not issue an opinion, we have before us only the
District Court's statement of its reasons for granting summary
judgment in favor of Birkdale. The vessel having been under no
obligation to supervise and inspect the cargo loading operations,
and no other theory for charging the vessel with constructive
knowledge having been advanced, the District Court was correct to
inquire whether the vessel had actual knowledge of the tween deck's
condition. The District Court found it undisputed that there was no
actual knowledge. At this stage of the proceedings, however, we
cannot conclude that summary judgment can rest on this ground.
There is sufficient evidence in the record
106
to support a permissible inference that, during the loading
process, some crew members, who might have held positions such that
their knowledge should be attributed to the vessel, did in fact
observe the plastic on the tween deck. And the District Court's
alternative theory that even if some crew members were aware of the
condition during loading operations, then the condition also would
have been open and obvious to a stevedore during unloading
operations, may prove faulty as well, being premised on the state
of affairs when the vessel took on cargo, not during discharge at
the port where Howlett was injured.
All this does not mean that the vessel is not entitled to
summary judgment. Howlett's own witnesses stated that the plastic
was visible, even from the top deck, during unloading operations.
Howlett must overcome these submissions, for even assuming the
vessel had knowledge of the tween deck's condition, he must further
demonstrate that the alleged hazard would have been neither obvious
to nor anticipated by a skilled and competent stevedore at the
discharge port. This contention, however, was not addressed by the
District Court and was not explored in detail here. We think it the
better course to remand the case to the Court of Appeals so that
it, or the District Court, can address in the first instance these
and other relevant points upon a review of the entire record made
in support of the vessel's motion for summary judgment.
For these reasons, the judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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