Opinion
CIVIL ACTION NO. 4:19-cv-286
2021-02-23
Remon ROBERSON; and Shaunte Roberson, Plaintiffs, v. SEASPAN CORPORATION; and COSCO Shipping Lines Co. Ltd., Defendants.
Robert Brian Tanner, Griffin Durham Tanner & Clarkson LLC, Zachary R. Sprouse, Brent J. Savage, Savage, Turner, Durham, Pinckney & Savage, Savannah, GA, for Plaintiff Remon Roberson. Robert Brian Tanner, Griffin Durham Tanner & Clarkson LLC, Zachary R. Sprouse, Savage, Turner, Durham, Pinckney & Savage, Savannah, GA, for Plaintiff Shaunte Roberson. Todd Michael Baiad, Bouhan Falligant, LLP, Savannah, GA, for Defendant Seaspan Corporation. David F. Sipple, Hunter MacLean, Exley & Dunn, P.C., Savannah, GA, for Defendant Cosco Shipping Lines Co. Ltd.
Robert Brian Tanner, Griffin Durham Tanner & Clarkson LLC, Zachary R. Sprouse, Brent J. Savage, Savage, Turner, Durham, Pinckney & Savage, Savannah, GA, for Plaintiff Remon Roberson.
Robert Brian Tanner, Griffin Durham Tanner & Clarkson LLC, Zachary R. Sprouse, Savage, Turner, Durham, Pinckney & Savage, Savannah, GA, for Plaintiff Shaunte Roberson.
Todd Michael Baiad, Bouhan Falligant, LLP, Savannah, GA, for Defendant Seaspan Corporation.
David F. Sipple, Hunter MacLean, Exley & Dunn, P.C., Savannah, GA, for Defendant Cosco Shipping Lines Co. Ltd.
ORDER
R. STAN BAKER, UNITED STATES DISTRICT JUDGE
In this negligence case, Plaintiffs Remon and Shaunte Roberson seek to recover for injuries Mr. Remon Roberson suffered while working as a longshoreman on a vessel—the M/V COSCO DEVELOPMENT—while it was docked in the Port of Savannah. (Doc. 17.) The case is presently before the Court on Defendant COSCO Shipping Lines’ ("COSCO") Motion for Summary Judgment. (Doc. 22.) Defendant Seaspan Corporation ("Seaspan") and Plaintiffs each filed Responses in Opposition. (Docs. 28, 34.) COSCO filed Replies to both Responses. (Docs. 39, 40.) In its Motion, COSCO, which was the time charterer of the vessel when Mr. Roberson was injured, argues that it did not, as a matter of law, owe a legal duty to Mr. Roberson, and thus is entitled to summary judgment in its favor. (Docs. 22, 23.) In response, Seaspan, the owner of the vessel, argues that, pursuant to Seaspan and COSCO's time charter agreement, COSCO assumed responsibility for Mr. Roberson's injuries, and, therefore, summary judgment is inappropriate. (Doc. 28.) For the reasons set forth below, the Court DENIES COSCO's Motion for Summary Judgment. (Doc. 22.)
BACKGROUND
I. Procedural History
Plaintiffs initially filed this action in the State Court of Chatham County. (Doc. 1-4, pp. 4–10.) Seaspan subsequently removed the case to this Court. (Doc. 1.) Plaintiffs then filed an Amended Complaint alleging two general causes of action against Defendants: negligence and loss of consortium. (Doc. 17.) Plaintiffs bring this suit under the Saving to Suitors clause of 28 U.S.C. § 1333, the admiralty jurisdiction statute. (Id. at p. 2.) "Under the savings-to-suitors clause, a plaintiff in a maritime case alleging an in personam claim has three options: (1) the plaintiff may file suit in federal court under admiralty jurisdiction ...; (2) the plaintiff may file suit in federal court under diversity jurisdiction; or (3) the plaintiff may file suit in state court." St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1187 n.13 (11th Cir. 2009). Plaintiffs’ case was removed to this Court based on diversity jurisdiction. (Doc. 1.) Additionally, although the Amended Complaint does not explicitly invoke the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (the "LHWCA"), it is undisputed that Plaintiffs’ case is governed by the LHWCA, specifically Section 905(b) thereof, since the case is premised upon injuries Mr. Roberson sustained while working on the M/V COSCO DEVELOPMENT, a vessel owned by Seaspan and time chartered to COSCO. (See docs. 22, 23, 28, 34.)
Plaintiffs’ Amended Complaint, (doc. 17), is the operative pleading in this case. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) ("[A]n amended complaint supersedes the initial complaint and becomes the operative pleading in the case.").
II. Factual Background
A. The Time Charter Agreement
At the time of the incident, April 27, 2019, Seaspan owned the M/V COSCO DEVELOPMENT (the "Vessel"), and the Vessel was time chartered to COSCO pursuant to a time charter agreement between Seaspan and COSCO (the "Agreement"). (Doc. 22-1, pp. 7–47; doc. 23-2, p. 3.) While most of the Agreement tracked the language and format of a standard New York Produce Exchange ("NYPE") time charter, Defendants did make several modifications. (See doc. 22-1, pp. 7–47; see also doc. 28, p. 4 ("The typography throughout [the Agreement] demonstrates that bolded, italicized, [and] underlined text ... are terms inserted specifically for this transaction.").) One modification, upon which Seaspan relies heavily in its oppositional briefing, is the addition of the words "and responsibility" to Clause 8 of the Agreement. (Doc. 29, p. 4.) The modified Clause 8, as it is contained in the Agreement, provides, in pertinent part:
A time charter agreement is a contract of affreightment to use a ship in order to ship goods for a specific time period under which the carrier makes the ship's capacity available to the time charterer for such purpose. See Thomas J. Schoenbaum, 2 Admiralty & Maritime Law, § 11:5 (6th ed. 2018).
The Captain shall prosecute his voyages with due despatch [sic], and shall render all customary assistance with ship's crew and boats. The Captain (although appointed by the Owners) shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to perform all cargo handling load, stow, lash, secure, unsecure, unlash and discharge at their expense and responsibility in accordance with the vessel's approved Cargo Securing Manual, Trim and Stability booklet, strength documents, and loading software, under the supervision of the Captain, who is to sign the bills of lading for cargo as presented in conformity with mate's or tally clerk's receipts.
(Doc. 22-1, p. 11 (underlining, italicizing and bold lettering in original).)
Also relevant to this case are the Agreement's choice of law provision as well as Clause 25. (Id. at pp. 13, 17.) The choice of law provision provides, in relevant part, that the Agreement "shall be governed by and construed in accordance with English law...." (Id. at p. 13.) Clause 25 provides, in relevant part, that the "Owners shall remain responsible for the ... crew ... same as when trading for their own account." (Id. at p. 17.) The Agreement was in effect during the Vessel's call at the Port of Savannah in April 2019. (Doc. 23-2, p. 4.)
The Agreement was originally between Seaspan and an entity named COSCO Container Lines Co. Ltd. (Doc. 23-2, pp. 3–4.) In 2016, COSCO Container Lines Co. Ltd. changed its name to COSCO Shipping Lines Co. Ltd. (Id. ) The ship was on time charter to Defendant COSCO at all relevant times. (Id. at p. 4.)
B. Mr. Roberson's Incident
Mr. Roberson sustained injuries while working as a longshoreman for non-party Ports America, an independent stevedoring company, at the Garden City container terminal in the Port of Savannah. (Doc. 28, p. 1; doc. 29, p. 1; doc. 35, p. 1.) While Mr. Roberson was lashing cargo containers on board the Vessel, a lashing rod detached from the corner casting of a container and fell on Mr. Roberson, injuring his left forearm and hand. (Doc. 29, p. 2; doc. 35, pp. 1–2.) Defendants dispute what caused the lashing rod to detach from the container and strike Mr. Roberson. Pointing to Plaintiffs’ allegations in the Amended Complaint and Plaintiffs’ discovery responses, COSCO asserts that the lashing rod broke because it was defective and the bolts connecting the rod to the container popped out of place, causing it to fall. (Doc. 39, pp. 1–2.) Seaspan asserts that the lashing rod was not defective but that "human error during unlashing and cargo operations" caused the lashing rod to detach from the container and fall. (Doc. 28, p. 7.) Seaspan points to evidence showing that Mr. Roberson "was working too close to live loads" and "did not utilize his partner while conducting de-lashing operations;" that "the crane above [Mr. Roberson] set a box down [in a way that] caus[ed] the lashing rod to fall;" that there had been no complaints about defective equipment on the Vessel during its call at the Port of Savannah; and that Ports America did not initially notify Seaspan of Mr. Roberson's incident because it determined that nothing was wrong with the Vessel's equipment. (Doc. 28, p. 7; doc. 28-1, pp. 4, 8–9.)
A longshoreman is a maritime laborer who is typically employed by a stevedoring company to load and unload cargo from ships in port. See 1 Thomas J. Schoenbaum, Admiralty & Maritime Law, § 10:8 (6th ed. 2018). Cargo shipping companies whose ships call at the port contract the stevedoring company to oversee and implement cargo operations. See id.
Lashing rods are metal rods that secure cargo containers to vessels for ocean carriage. (Doc. 23, p. 2 n.1; doc. 28-1, p. 7.) The top of a lashing rod attaches to an opening (referred to as a corner casting) located in the corner of a container while the bottom portion of the rod attaches to the vessel's deck or hatch cover. (Doc. 23 at p. 2; doc. 28-1 at p. 7; see also doc. 23-1.) When new containers are loaded onto the vessel, longshoremen must lash the containers (i.e., attach the lashing rods to the containers) so that the vessel may go back out to sea. After a vessel docks, longshoremen de-lash the containers (i.e., detach the lashing rods from the containers) so that the containers can be offloaded. The acts of attaching and detaching the lashing rods are known as lashing and de-lashing, respectively.
Although they disagree about what caused Mr. Roberson's injuries, Defendants do agree that Seaspan employed the Vessel's officers and crew and that COSCO did not have any employees on board the Vessel during the call at the Port. (Doc. 23-2, pp. 4–5; doc. 29, p. 8.) While Seaspan contends that there is no way to confirm that it supplied or owned the lashing rod that struck Mr. Roberson, (doc. 23-5, pp. 3–4), Seaspan does admit that another entity, serving as Seaspan's agent, purchased, provided, and supplied the container securing equipment, including lashing rods, for use on board the Vessel during the relevant time period. (Doc. 23-4, pp. 3–4; doc. 29, p. 7.) Defendants also agree that lashing rods constitute vessel equipment under the Agreement, (doc. 23-5, p. 3), and that, as time charterer, COSCO did not have a responsibility to inspect and maintain the lashing rod at issue, (doc. 29, p. 9).
STANDARD OF REVIEW
Summary judgment "shall" be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must identify the portions of the record which establish that there are no "genuine dispute[s] as to any material fact and the movant is entitled to judgment as a matter of law." Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of proof at trial, the moving party may discharge his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.
In determining whether a summary judgment motion should be granted, a court must view the record and all reasonable inferences that can be drawn from the record in a light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 616 (11th Cir. 2007) ). However, "facts must be viewed in the light most favorable to the non-moving party only if there is a ‘genuine’ dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (citation and emphasis omitted).
DISCUSSION
Plaintiffs allege that Defendants or their agents proximately caused Mr. Roberson's injuries (and Mrs. Roberson's loss of consortium) based on the following acts or omissions: (1) "[n]egligent failure to maintain, inspect, and replace damaged or defective vessel equipment;" (2) "[e]mployment of incompetent officers, crew, and/or maintenance personnel responsible for maintaining, inspecting and replacing damaged or defective vessel equipment;" (3) "[n]egligent failure to properly train officers, [and] crew in the acts of maintaining, inspecting and replacing damaged or defective vessel equipment;" (4) "[n]egligent failure to maintain the vessel and/or the container at issue in a reasonably safe condition and failure to provide [Mr. Roberson] with a reasonably safe place to work;" (5) "[n]egligent failure to warn [Mr. Roberson] of the defective condition of the [Vessel] and its appurtenances and vessel equipment;" (6) "[n]egligent failure to warn [Mr. Roberson] of the defective condition of the vessel equipment;" and (7) "[o]ther acts of negligence which will appear more fully at the trial of this matter." (Doc. 17, p. 5.) According to Plaintiffs, Defendants had "substantial control, oversight and knowledge of the equipment on board" the Vessel, "knew or should have known there was an unsafe risk that damaged or defective lashing rods could break and ... result in substantial injuries," and "were in charge of, responsible for, and/or had control over the lashing rods and breached their duties" to Mr. Roberson by failing to maintain the equipment. (Id. at p. 4.)
COSCO moves for summary judgment as to Plaintiffs’ negligence claim and derivative loss of consortium claim. (Doc. 22.) COSCO argues that it is entitled to summary judgment because it did not owe a legal duty to Mr. Roberson as a matter of law. (Doc. 23, pp. 16–17.) Pointing to Plaintiffs’ Amended Complaint and discovery responses, COSCO asserts that "the thrust of" Plaintiffs’ claim is that Mr. Roberson was injured due to defective vessel equipment (the allegedly defective lashing rod) and the crew's failure to maintain such equipment. (Id. at p. 2; doc. 39, pp. 1–3.) Citing Clauses 1 and 41 of the Agreement, COSCO argues that Seaspan—rather than COSCO—had the "standard and customary responsibilities of a shipowner in a time charter arrangement" to maintain the Vessel and the Vessel's equipment, including the lashing rods. (Doc. 23, p. 3.) Furthermore, COSCO asserts that, under Clause 25 of the Agreement, it is not liable for the crew's negligence. (Id. at pp. 11–12.) It also asserts that Clause 8 of the Agreement "does not provide a longshoreman with a basis for recovery against a time charterer for the negligence of the vessel's crew in failing to properly maintain [the] ship's equipment which injures the longshoreman working in cargo operations." (Id. at p. 12.) Thus, COSCO argues that it did not owe a legal duty to Mr. Roberson, and summary judgment in its favor is warranted. (Id. at pp. 16–17.)
"Loss of consortium is a derivative claim and only can be sustained when a defendant is liable in tort to a spouse who is unable to provide consortium." Hendricks v. Earling Shipping Co., No. 2:97-cv-121, 1998 WL 684206, at *5 (S.D. Ga. May 4, 1998) (citing Johnson v. Metro. Atlanta Rapid Transit Auth., 230 Ga.App. 105, 495 S.E.2d 583, 585 (1998) ; Holloway v. Northside Hosp., 230 Ga.App. 371, 496 S.E.2d 510, 511 (1998) ).
Clause 1, in pertinent part, provides that "[t]he Owners ... shall maintain vessel's class and keep her in a thoroughly efficient state in hull, machinery and equipment for and during the service." (Doc. 22-1, p. 9.) Clause 41, in relevant part, provides that "Owners undertake that throughout the duration of the Charter, the vessel and equipment on board shall be maintained in an efficient and seaworthy state with all trading certificates valid." (Id. at p. 23.)
Seaspan responds that COSCO is not entitled to summary judgment because COSCO, through the Agreement's modified Clause 8, "assumed responsibility for loading/lashing operations while the vessel was being loaded and discharged" and there is evidence in the record upon which a reasonable jury could find that Mr. Roberson's injuries were caused by an error during loading operations, rather than by a defect in the vessel's equipment. (Doc. 28, p. 6.) Specifically, concerning Clause 8, Seaspan argues that the addition of the words "and responsibility" shifted responsibility for cargo operations, including injuries sustained by longshoremen during such operations, to COSCO. (Id. at p. 8.) Pointing to the deposition of a Ports America manager and Ports America's internal investigation, Seaspan argues that human error during cargo operations caused Mr. Roberson's incident. (Id. at p. 7.) Thus, according to Seaspan, there is evidence tending to show that COSCO is responsible for Mr. Roberson's injuries. (Id. at p. 11.)
I. The Longshoremen and Harbor Workers’ Compensation Act
"The LHWCA establishes a federal workers’ compensation program for longshoremen and their families." Seaboard Spirit Ltd. v. Hyman, 672 F. App'x 935, 939 (11th Cir. 2016) (citing Howlett v. Birkdale Shipping Co., 512 U.S. 92, 96, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994) ). When a longshoreman sustains an injury, the longshoreman's employer, which is often an independent stevedore, must pay the statutory benefits, regardless of fault. Howlett, 512 U.S. at 96, 114 S.Ct. 2057 (citing 33 U.S.C. §§ 904, 905(a) ). In addition to receiving statutory benefits from his employer, an injured longshoreman may seek damages under 33 U.S.C. § 905(b) from a vessel if the vessel negligently caused the longshoreman's injuries. Seaboard Spirit, 672 F. App'x at 939–40 (citing Howlett, 512 U.S. at 96–97, 114 S.Ct. 2057 ). The term "vessel" includes both the vessel owner and the time charterer. See, e.g., Hayes v. Wilh Wilhelmsen Enters., Ltd., 818 F.2d 1557, 1558 (11th Cir. 1987) (citing 33 U.S.C. § 902(21) ). "[A]s it stands today, the LHWCA ... holds a vessel ... liable only for injuries caused by that [vessel's] own negligence." Seaboard Spirit, 672 F. App'x at 940.
Under the LHWCA, a vessel owes longshoremen three general but limited duties: (1) the "turnover duty," which relates to the condition of the vessel upon the commencement of stevedoring operations; (2) the "active control duty" to exercise reasonable care to prevent injuries in areas over which the vessel retains control once stevedoring operations have begun; and (3) the "duty to intervene" in the stevedore's operations, even in areas under the principal control of the independent stevedore, when the vessel owner has actual knowledge of a hazard of which the stevedore cannot be relied upon to remedy. See Howlett, 512 U.S. at 98–100, 114 S.Ct. 2057 ; see also Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 167–76, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) ; Roach v. M/V Aqua Grace, 857 F.2d 1575, 1581 (11th Cir. 1988). These three duties, collectively known as the Scindia duties, apply "to the employment of independent harbor contractors and their maritime employees." M/V Aqua Grace, 857 F.2d at 1581–82 (citation omitted).
However, "[a] time charterer who has no control over a vessel assumes no liability for negligence of the crew or unseaworthiness of the vessel absent an agreement to the contrary." Hayes, 818 F.2d at 1559. Therefore, the critical inquiry in a personal injury suit brought by a longshoreman against a time charterer is whether the time charterer possessed control over the operation of the vessel that caused the longshoreman's injury, a determination which typically hinges on whether the time charter agreement between the vessel owner and the time charterer shifted the relevant operational responsibility from the owner to the charterer. See, e.g., Johnson v. Del Monte Fresh Produce Co., No. 09-22425-CIV-UNGARO, 2010 WL 11606066, at *8 (S.D. Fla. Dec. 8, 2010) (citation omitted) ("[W]here a time charterer assumes operational control over loading and unloading activities[,] ... a duty [to ensure the safety of longshoremen] may arise. Because the time charterer ... is typically not on board the vessel, the question of whether it controlled the cargo operations is normally one of agency.").
II. The Time Charter Agreement
A. Choice of Law
Prior to interpreting the meaning of the Agreement, the Court must determine which law governs it. See Unitas Containers Ltd. v. Oilnet Ltd., 848 F. Supp. 2d 1358, 1360 (S.D. Fla. 2012) (citing Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575, 1580 (11th Cir. 1995) ). Seaspan attempts to invoke the Agreement's English choice-of-law clause and argues that English law governs the Court's interpretation of the Agreement. (Doc. 28, p. 6.) In response, COSCO argues that because the provision is limited in application to disputes between it and Seaspan—and Defendants have not asserted claims against one another—the choice-of-law provision does not apply. (Doc. 39, p. 7.) Furthermore, COSCO points out that Plaintiffs are not signatories to the Agreement. (Id. ) Thus, according to COSCO, the choice-of-law provision does not apply to Plaintiffs’ action against Defendants. (Id. )
"A choice of law clause ... is a contractual right that cannot ordinarily be invoked by or against a party who did not sign the contract in which the provision appears." Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1169 (11th Cir. 2009). "Despite this general rule, [the United States Court of Appeals for the Eleventh Circuit] has recognized ... that ‘common law principles of contract and agency law’ permit a signatory to bind a non-signatory under a limited set of circumstances, [including]: ‘(1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing/alter-ego; and (5) estoppel.’ " Id. at 1169–70 (quoting World Rentals and Sales, LLC v. Volvo Constr. Equip. Rents, Inc., 517 F.3d 1240, 1244 (11th Cir. 2008) ). The Eleventh Circuit has also recognized that non-signatory parties might be bound by choice of law clauses "where the parties’ rights were ‘completely derivative of those of the [signing parties]—and thus "directly related to, if not predicated upon" the interests of the [signing parties].’ " Id. at 1170 (alterations in original) (citing Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1295 (11th Cir. 1998) ).
The Court finds that the English choice-of-law clause is not applicable here. First, Plaintiffs are not parties to the Agreement. Thus, following the general rule, the choice-of-law clause does not apply to Plaintiffs’ case. See id. at 1169 ("Because the ... appellants never signed the agreement, the Dutch choice of law provision does not apply to their claims."). Additionally, Seaspan does not argue—nor does the record indicate—that any of the exceptions listed in Cooper apply to the present case. Plaintiffs’ negligence and loss of consortium claims exist independently from the Agreement, Plaintiffs are not referenced in the Agreement, and nothing in the record indicates that Plaintiffs hold close relationships with Defendants. Finally, there is no indication in the Agreement that English law is supposed to govern the interpretation of the Agreement in a negligence case brought by a longshoreman and his spouse against the signatories of the Agreement. While Seaspan contends that "any dispute arising between charterer and owner travels under English law," (doc. 28, p. 6), neither Defendant has asserted a claim against the other. Therefore, no "dispute" has arisen between Defendants. Accordingly, the choice-of-law provision does not apply, and the Court uses federal maritime law of the United States to interpret the Agreement.
B. Defendants’ Obligations under Clause 8
"A time charterer who has no control over a vessel assumes no liability for negligence of the crew or unseaworthiness of the vessel absent an agreement to the contrary." Hayes, 818 F.2d at 1559. "The traditional responsibilities of a time charter[er] from which its duties arise are clearly delineated and fairly limited." Johnson, 2010 WL 11606066, at *6.
Under the traditional role of the time-charter[er], the time charter[er] is expressly responsible for directing the commercial activity of the vessel, determining the ship's routes, destinations, timing of the mission, and the designation of the cargo. The vessel owner, on the other hand, remains responsible for the seaworthiness of the vessel, dangerous conditions on board, navigational errors by the pilot and negligence by the crew, and a reasonably safe means of access for those boarding or leaving the vessel.
Id. (quoting Becker v. Tidewater, Inc., 586 F.3d 358, 373 (5th Cir. 2009) ). While a time charterer is not usually responsible for the crew's negligence, "a time charter[er] may expand its role and undertake additional duties traditionally allocated to the shipowner ... including those owed to longshoremen." Id. However, "[a] charter agreement must contain clear, express language to shift responsibility for a crewmember's negligence from a vessel's owner to a time-charterer." Berry v. Mi-Das Line SA, No. 4:08-cv-159, 2009 WL 3112028, at *3 (S.D. Ga. Sept. 28, 2009) (citing Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1343 (5th Cir. 1987) ; Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 242 n.5 (5th Cir. 1981) ). The dispute here hinges on whether Clause 8 of the Agreement shifted responsibility to COSCO in a way that made it responsible for the incident that caused Mr. Roberson's injuries.
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former United States Court of Appeals for the Fifth Circuit handed down prior to October 1, 1981.
As an initial matter, the traditional form of Clause 8 in an NYPE time charter agreement—which does not include the "and responsibility" language of the Agreement here—has long been held to not result in a shift of responsibility to a time charterer for longshoremen's injuries sustained during cargo operations. D/S Ove Skou v. Hebert, 365 F.2d 341, 351 (5th Cir. 1966) ("The typical clause ... specifying ... that ‘charterers are to load, stow, and trim the cargo’ does not give to Time Charterer any operational control over these activities. Rather, these charter party provisions are essentially a specification of the party—owner or charterer—upon whom the ultimate financial cost rests for any one or more of the activities."); Hendricks, 1998 WL 684206, at *2–4 (clause providing that "Charters are to load, stow, trim, lash, unlash, and discharge the cargo at their expense" did not transfer liability for longshoreman's injuries arising out of improper discharge of cargo to time charterer); see also Mallard, 634 F.2d at 242 n.5 ("In light of Skou, this circuit seems reluctant to find any shift of operational responsibility for personal injuries to the time charterer absent clear language to that effect."). Defendants’ Clause 8 was modified from the traditional form, however. As a result, Skou and its progeny are not controlling in this case. Thus, the critical initial issue here is whether the addition of the words "and responsibility" to the phrase "at their expense" in Clause 8 resulted in the shifting of responsibility for injuries to a longshoreman due to negligence during the discharge of cargo to COSCO. See, e.g., Johnson, 2010 WL 11606066, at *8 ("[W]here a time charterer assumes operational control over loading and unloading activities such a duty [to ensure the safety of longshoremen] may arise.") (emphasis added).
Skou was decided prior to a 1972 amendment to the LHWCA that expressly provided a right of action to longshoremen who are injured due to negligence of a vessel, see 33 U.S.C.A. § 905(b), and, as a result, the Eleventh Circuit has since questioned—but not overruled—the vitality of Skou. See Hayes, 818 F.2d at 1559 n.1 ("The 1972 amendments, which afford an injured longshoreman a right of action against a charterer for negligence, undercuts the rational of [Skou ]. At an appropriate time, the en banc court must address the continued vitality of that case."). This Court, however, is still bound by the former Fifth Circuit's decision in Skou regarding the effect of the language used in the traditional form of Clause 8. See Hendricks, 1998 WL 684206, at *4 ("While the Eleventh Circuit eventually may adopt Plaintiffs’ position [that Skou is no longer good law in light of the amendment and Hayes, 818 F.2d 1557 ], this Court must await such a ruling.").
After a careful reading of Clause 8 of the Agreement, the Court finds that, by adding the words "and responsibility," Defendants shifted responsibility for cargo operations—including the responsibility to conduct them safely and in a manner that does not cause harm to longshoremen assisting with the operations—to COSCO. Because "responsibility" for cargo operations—including loading, stowing, lashing, securing, unsecuring, unlashing and discharging—was expressly placed on COSCO, the Vessel's crew members were serving as COSCO's agents when they were handling and otherwise involved in those operations. See Hayes, 818 F.2d at 1562 (Eaton, J., concurring) ("[D]eference may be due Clause 8 in a personal injury claim brought by a longshoreman, because it may well be a pivotal factor on the issue of whether the master and the crew were acting as agents of the shipowner or the time charterer when their negligence injured the longshoreman."); Johnson, 2010 WL 11606066, at *8 ("Because the time charterer ... is typically not on board the vessel, the question of whether it controlled the cargo operations is normally one of agency.").
COSCO appears to admit as much, stating, in its Reply, that "COSCO's responsibility or duty under the express terms of Clause 8 pertains to responsibility for loading, stowing, lashing, unlashing, etc., the cargo." (Doc. 39, p. 3.) Nonetheless, COSCO argues that the addition of "and responsibility" is not materially relevant here because Plaintiffs have alleged that Mr. Roberson was injured by negligent maintenance of vessel equipment, which "is not one of the specified operations covered by Clause 8." (Id. ) Even assuming arguendo that COSCO is correct and Clause 8 does not shift or otherwise impact the general responsibility to maintain vessel equipment in a proper and seaworthy state, COSCO is not automatically entitled to summary judgment, as there presently exists a factual dispute as to precisely what caused the lashing rod to strike Mr. Roberson. COSCO—relying on Plaintiffs’ Amended Complaint and discovery responses—asserts that the lashing rod broke simply because it was defective and the bolts holding it together popped out of place, causing the rod to fall. (Id. at pp. 2–3.) While this theory does not appear to implicate any negligence during the cargo handling activities, Seaspan offers a competing theory, which is supported by evidence and does involve negligence in the performance of cargo operations. Specifically, Seaspan contends that the lashing rod was not at all defective, and that it fell on Mr. Roberson due simply to "human error during unlashing and cargo operations." (Doc. 28, p. 7.) Seaspan provides evidence that lashing rods can fall without necessarily being defective, (see doc. 28-1, p. 7), and it argues that, here, Mr. Roberson "did not utilize his partner while conducting de-lashing operations [which was necessary] to control the lashing rod" and that he "was working too close to live loads," (doc. 28, p. 7). There is evidence indicating that, while Mr. Roberson was de-lashing, "the crane above [him] set a box down [in a way that] caus[ed] the lashing rod to fall on his left arm." (Doc. 28-1, p. 8.) Furthermore, deposition testimony from a Ports America manager indicates that there had been no complaints about defective equipment on the Vessel during its call at the Port of Savannah and that Ports America did not initially notify Seaspan of Mr. Roberson's incident because it determined that nothing was wrong with the Vessel's equipment. (Id. at p. 9.) Because evidence in the record indicates that Mr. Roberson's injury may have been caused by negligent conduct during cargo operations, the interpretation of Defendants’ modified Clause 8 is relevant. The Court, having determined that Clause 8 shifted responsibility for cargo operations to COSCO such that it could be liable to a longshoreman if he was injured due to negligence in the way those operations were conducted, finds that COSCO is not entitled to summary judgment in its favor.
COSCO mostly limits its focus to the allegations in the Amended Complaint. (Doc. 39, pp. 1–3.) However, because COSCO brought a motion for summary judgment, the Court looks to all evidence in the record presented by the parties. See, e.g., Fed. R. Civ. P. 56(c) (contemplating the submission of evidence and not just pleadings).
CONCLUSION
Based on the foregoing, the Court DENIES COSCO's Motion for Summary Judgment. (Doc. 22.)
SO ORDERED , this 23rd day of February, 2021.