Price v. Atlantic Ro-Ro Carriers et al

MOTION for Summary Judgment

D. Md.March 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TROY D. PRICE, JR. * Plaintiff, * v. * MOS SHIPPING LTD., et al. * Defendants. * * * * * * * * Civil Action No. CCB 11-1735 MOS SHIPPING LTD., et al. * Third-Party Plaintiffs, * v. * RUKERT TERMINALS CORPORATION, * Third-Party Defendant. * * * * * * * * * * * * DEFENDANT BALTIC MERCUR’S MOTION FOR SUMMARY JUDGMENT Defendant JSC Baltic Mercur (sued as Baltic Mercur Joint Stock Company, here "BM"), by its undersigned counsel, hereby respectfully moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on the Plaintiff’s claim against it, and in support thereof states as follows: Case 1:11-cv-01735-CCB Document 147 Filed 03/10/17 Page 1 of 4 1. In May 2011, the Plaintiff filed a Complaint against defendant BM and others in the Circuit Court for Baltimore City. Defendants timely removed the action to this Court. 2. In his Complaint, the Plaintiff alleges that BM is an owner and operator of the M/V Valga, and an employer of its crew, and thereby responsible for injuries said to have resulted from an accident on the ship while he was there as a longshore worker. This assertion concerning BM is wrong, both on the facts and on the law; and the purpose of this motion is the dismissal of Mr. Price’s claim against BM. 3. Accompanying this motion are: (a) a Declaration dated March 6, 2017, of Andrey Konchak; and (b) a Memorandum of Law, upon all of which BM relies in support of the requested relief under Rule 56. 4. Defendant BM does not request a hearing on this Motion. WHEREFORE, for the reasons set forth in the accompanying Memorandum, Defendant JSC Baltic Mercur prays that the Court grant its motion for summary judgment dismissing the Plaintiff's claim against it, and granting such other and further relief as the Court deems just. Dated: March 10, 2017 Case 1:11-cv-01735-CCB Document 147 Filed 03/10/17 Page 2 of 4 Respectfully submitted, LYONS & FLOOD, LLP Attorneys for Defendants and Third-Party Plaintiffs JSC BALTIC MERCUR MOS SHIPPING CO. LTD. By: Kirk M. Lyons One Exchange Plaza 55 Broadway, Suite 1501 New York, New York 10006 (212) 594-2400 Case 1:11-cv-01735-CCB Document 147 Filed 03/10/17 Page 3 of 4 4 CERTIFICATE OF SERVICE Kirk M. Lyons, an attorney duly admitted to practice before this Honorable Court, affirms on this 10th day of March, 2017, that he caused the foregoing to be filed and thus served upon all parties of record via CM/ECF. Kirk M. Lyons Case 1:11-cv-01735-CCB Document 147 Filed 03/10/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TROY D. PRICE, JR. * Plaintiff, * v. * MOS SHIPPING LTD., et al. * Defendants. * * * * * * * * Civil Action No. CCB 11-1735 MOS SHIPPING LTD., et al. * Third-Party Plaintiffs, * v. * RUKERT TERMINALS CORPORATION, * Third-Party Defendant. * * * * * * * * * * * * DEFENDANT BALTIC MERCUR'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Plaintiff Troy D. Price, Jr. is a local longshore worker who was injured while on a ship, the M/V Valga (the "Vessel"), in Baltimore Harbor. He sued three defendants, and the matter is governed by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901, et. seq. ("LHWCA"). One of the defendants, JSC Baltic Mercur (sued as Baltic Mercur Joint Stock Company, here "BM"), was the technical manager of the ship at the time; and BM respectfully submits that it bears no responsibility for Mr. Price's injuries. The Court should therefore grant BM's motion for summary judgment and dismiss it from the action. Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 1 of 10 2 FACTS The facts relevant to this motion are straightforward and are not disputed. The matter is therefore appropriate for resolution under Rule 56. In August 2008, the Plaintiff was injured while working on the Valga, which was moored at a pier at the Rukert Marine Terminal in Baltimore. Mr. Price was injured when a forklift operated by a fellow employee fell on him through an opening in the 'tween deck of the ship. The circumstances of the actual accident are disputed, but the gravamen of Plaintiff's claim is that Vessel personnel were negligent in some fashion. There were originally three defendants in the action. Mos Shipping Co., Ltd. was the Vessel owner and operator at the time of the accident. The Master, officers, and crew were all employed by Mos Shipping. BM was the ship's technical manager. Under a February 2007 Management Agreement, BM agreed to perform crew, technical, insurance, and accounting management for the Vessel. (A copy of this contract is Exhibit 1 attached to the accompanying Konchak Declaration.) Although BM was responsible under this agreement for certain technical services, the actual operation of the Vessel was always under the owner's control, Mos Shipping. The third defendant was the Vessel's commercial manager, Atlantic Ro-Ro Carriers, Inc. ("ARRC"). That company also had a Management Agreement with Mos Shipping, and on the same form, but for commercial services. In September 2014, the Court granted that defendant's motion for summary judgment. Price v. Atlantic Ro-Ro Carriers, Inc., 45 F. Supp. 3d 494 (D. Md. 2014). Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 2 of 10 3 Discovery is in the expert deposition phase, and Plaintiff has had a full opportunity for discovery from BM. Based on the Court's reasoning in the earlier decision, BM contends that it too is entitled to summary judgment on the Plaintiff's claim. ARGUMENT POINT I STANDARD OF REVIEW The Court has previously explained the standards applicable to a motion under Rule 56. Price, 45 F. Supp. 3d at 500-01 ("'the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.'") Without repeating them here, BM adopts and applies those standards below. POINT II BALTIC MERCUR DID NOT BREACH ANY SCINDIA DUTIES In Price, the Court provided the framework for considering the claim against BM, and there are several aspects of that decision of present relevance. First, the LHWCA governs a longshore worker's claims against the "vessel"; and BM arguably falls within the statutory definition of "vessel."1 Although BM was not the owner, operator, or charterer (leasee) of the Valga, the company is arguably an "agent." 1 Under § 902(21), "vessel" means not only the ship itself, but also "said vessel’s owner, owner pro hac vice, agent, operator, charter [sic] or bare boat charterer, master, officer, or crew member." Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 3 of 10 4 Next, a § 905(b) claim against BM is essentially one for negligence. See Price, 45 F. Supp. 3d at 501 ("section 905(b) codified the existing tort of maritime negligence"). On this type of negligence claim, the duty owed to a visiting longshore worker was defined by the Supreme Court in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981), and its progeny. There are three separate duties, which this Court recognized as being "narrow" ones. Price, 45 F. Supp. 3d at 506. The Court also noted a Congressional intent "'to shift more of the responsibility for compensating injured longshoreman to the party best able to prevent injuries: the stevedore-employer.'" Price, 45 F. Supp. 3d at 505, quoting Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 97 (1994). The first, the "turnover duty," concerns the condition of the ship when it is turned over to the stevedore. This duty is not in issue here. There is no argument that there was something wrong with the ship or its equipment, e.g., the cargo elevator, when the Beacon Stevedoring workers came on board. Price, 45 F. Supp. 3d at 506 n4. The two remaining duties, however, are in dispute. Under the second, the "active control duty," the vessel has a duty to exercise due care to avoid exposing the longshore workers to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation. The third duty is the "duty to intervene," which arises when the vessel has "actual knowledge" of a ship or equipment hazard and the stevedore's decision to proceed despite the unsafe condition. The clearest, succinct statement of Plaintiff's theory of the case is provided in its expert disclosure with respect to its liability expert, Thomas Bolcar: "Mr. Bolcar is expected to testify that the subject accident was caused by the negligence of the vessel through the Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 4 of 10 5 action/inaction of the ship's mate [sic; Third Engineer] Alexander Nosov, in that he was in a position where he was controlling the ship's elevator, the existence of the opening in the deck caused by the movement of the elevator platform and the movement of the stevedores in connection with the unloading of the platform and failed to take action in light of his observation of the forklift operations and the existing conditions." (A copy of the Plaintiff's expert disclosure is attached as Exhibit 1.) In short, so the argument goes, the Vessel officer (Mr. Nosov) not only controlled the deck area where the accident occurred, but he also failed to intervene notwithstanding obviously dangerous conditions. Defendants dispute both aspects of that position. More importantly for present purposes, however, neither contention implicates BM. The Court previously held that the active control duty concerns a party that (1) actively involves itself in the cargo operations and (2) fails to prevent unreasonable hazards in the ship areas under its direct control. The duty to intervene concerns a party with actual knowledge of both (1) a harmful condition and (2) the stevedore's failure to protect its employees. Price, 45 F. Supp. 3d at 506. Because ARRC, the commercial manager, (1) exercised no control over either the operational details of the cargo process or the ship area where the injury occurred, and (2) had no representative present on deck at the time of the accident, that defendant was entitled to summary judgment. Id. A similar reasoning applies here to BM as well. The focus of Plaintiff's claim is plainly on Alexander Nosov, the Vessel's Third Engineer, who was operating the ship's elevator. The issues for trial concern the extent of his control during the stevedoring operations and his knowledge of any unsafe activities by the Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 5 of 10 6 longshore workers. But Mr. Nosov did not work for BM; he worked for the Vessel's Owner, Mos Shipping.2 Under the Management Agreement, Baltic Mercur was responsible for obtaining the officers and crew for the Valga. There is no allegation here, however, that BM performed this task negligently. To the contrary, Plaintiff concedes Mr. Nosov's competence. Thomas Bolcar, Plaintiff's liability expert, states in his report that "There was a qualified Engineering Officer of long service and advanced education on watch on the deck and in charge for the ship where the FLT [forklift] went out of control." (A copy of Mr. Bolcar's report is attached as Exhibit 2, p. 5.) During the cargo operations ARRC had on board a port captain, Vadim Belyakov. An issue on ARRC's motion was the extent of Mr. Belyakov's power to stop operations, with the Court concluding that ARRC's influence "was too remote to constitute 'active control' under Scindia and its progeny." Price, 45 F. Supp. 3d at 509. Here, though, there cannot be a similar issue because BM did not have anyone present on board the vessel, even someone tangentially involved in the cargo operations. Similarly, a claim based on a duty to intervene must also fail. As the Court noted, this duty requires that the defendant have "actual knowledge" of a (1) a hazardous condition, and (2) the stevedore's "obviously improvident judgment" to ignore the situation. Price, 45 F. Supp. 3d at 510. The argument against ARRC failed because, although its port captain (Mr. Belyakov) 2 See accompanying Konchak Declaration, ¶ 7. See also Konchak Declaration, Document No. 91-2, ¶ 7. Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 6 of 10 7 was on the ship at the time, he was not in the area of the accident and did not see what was happening. The same reasoning is applicable to BM. It could not have "actual knowledge" of either a dangerous situation or the stevedore's "improvident" judgment because it too did not have anyone present at the scene or even on board the vessel. Research does not disclose any case in which a technical manager similar to BM has been held to have breached a Scindia duty. The Plaintiff's liability expert, Thomas Bolcar, is of the opinion3 that "The shipping company bears responsibility for Mr. Price's injuries." (See Exhibit 2 attached, Mr. Bolcar's report). At his deposition, Mr. Bolcar made it clear that he was talking about Mos Shipping: Q Yeah. You used the term quote, “shipping company,” close quote, in two spots of your report, Bolcar two. One of them appears on the lower half of page two, and the other is conclusion 11 on page five. A Okay. Q And what is your meaning? What do you mean by the term “shipping company?” A Perhaps a better way to put it is, the shipping company is the company that’s chartering the ship and moving the cargo on it. Q Okay, right. So, is the shipping company the company that employed Alexander Nosov, N-O-S-O-V? 3 The Defendants, of course, dispute not only the rationale for this conclusion, but also whether it is a proper kind of opinion for an expert to make. Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 7 of 10 8 A I would imagine he was employed by the vessel owners. Q So, your use of “shipping company” does not mean the shipowners? A That’s correct. Well, unless they're one and the same. Q In terms of the defendants in this lawsuit, can you identify who the shipping company is? A I believe it’s -- is it MO -- Q MOS Shipping? A MOS Shipping. Q So, your use the term “shipping company,” in your mind, is MOS Shipping? A Yes. (See Exhibit 3 attached, excerpt from Mr. Bolcar's deposition transcript, pp. 50:10-51:17.) In sum, a vessel's duties with respect to a negligence claim under the LHWCA are set, and limited, by the Supreme Court's decision in Scindia. BM did not breach any of these duties to Mr. Price because none involves a matter over which BM had control. The Court should therefore dismiss the claim against this defendant. CONCLUSION Defendant JSC Baltic Mercur's motion for summary judgment should be granted in all respects, and it should be dismissed from this action. BM also seeks such other and further relief as may be warranted. Dated: March 10, 2017 Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 8 of 10 9 Respectfully submitted, LYONS & FLOOD, LLP Attorneys for Defendants/Third-Party Plaintiffs JSC BALTIC MERCUR MOS SHIPPING CO. LTD. By: Kirk M. Lyons One Exchange Plaza 55 Broadway, Suite 1501 New York, New York 10006 (212) 594-2400 Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 9 of 10 10 CERTIFICATE OF SERVICE Kirk M. Lyons, an attorney duly admitted to practice before this Honorable Court, affirms on this 10th day of March, 2017, that he caused the foregoing to be filed and thus served upon all parties of record via CM/ECF. Kirk M. Lyons Case 1:11-cv-01735-CCB Document 147-1 Filed 03/10/17 Page 10 of 10 EXHIBIT 1 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 1 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 2 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 3 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 4 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 5 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 6 of 7 Case 1:11-cv-01735-CCB Document 147-2 Filed 03/10/17 Page 7 of 7 EXHIBIT 2 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 1 of 6 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 2 of 6 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 3 of 6 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 4 of 6 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 5 of 6 Case 1:11-cv-01735-CCB Document 147-3 Filed 03/10/17 Page 6 of 6 EXHIBIT 3 Case 1:11-cv-01735-CCB Document 147-4 Filed 03/10/17 Page 1 of 3 Gore Brothers Reporting & Videoconferencing 410 837 3027 - Worldwide - www.gorebrothers.com 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF MARYLAND 3 Baltimore Division 4 5 TROY D. PRICE, JR. 6 Plaintiff 7 vs. Civil Action No. 8 ATLANTIC RO-RO CARRIERS, 1:2011cv01735 9 et al. 10 Defendants 11 _________________________/ 12 13 14 The deposition of CAPTAIN TOM BOLCAR was 15 held on Thursday, March 2, 2017, commencing at 10:32 16 a.m., at the Law Offices of Semmes, Bowen & Semmes, 25 17 South Charles Street, Suite 1400, Baltimore, Maryland 18 21201, before Kaleigh Irish, RPR, Notary Public. 19 20 21 REPORTED BY: Kaleigh Irish, RPR Case 1:11-cv-01735-CCB Document 147-4 Filed 03/10/17 Page 2 of 3 Troy D. Price, Jr. vs. Atlantic Ro-Ro Carriers, et al. Captain Tom Bolcar - Vol. 1 March 2, 2017 Page 50 1 company, could you be specific as to the company 2 that you referred to? 3 MR. BARTLETT: Where did he use that 4 phrase? I apologize. 5 Q. Page two, under "officer." "EO officer." 6 MR. BARTLETT: I see. Thank you. 7 Q. And in conclusion number 11 on page five. 8 A. Could you repeat the question? I'm 9 sorry. 10 Q. Yeah. You used the term quote, "shipping 11 company," close quote, in two spots of your report, 12 Bolcar two. One of them appears on the lower half 13 of page two, and the other is conclusion 11 on page 14 five. 15 A. Okay. 16 Q. And what is your meaning? What do you 17 mean by the term "shipping company?" 18 A. Perhaps a better way to put it is, the 19 shipping company is the company that's chartering 20 the ship and moving the cargo on it. 21 Q. Okay, right. So, is the shipping company Page 51 1 the company that employed Alexander Nosov, 2 N-O-S-O-V? 3 A. I would imagine he was employed by the 4 vessel owners. 5 Q. So, your use of "shipping company" does 6 not mean the shipowners? 7 A. That's correct. Well, unless they're one 8 and the same. 9 Q. In terms of the defendants in this 10 lawsuit, can you identify who the shipping company 11 is? 12 A. I believe it's -- is it MO -- 13 Q. MOS Shipping? 14 A. MOS Shipping. 15 Q. So, your use the term "shipping company," 16 in your mind, is MOS Shipping? 17 A. Yes. 18 Q. On page four of your report, Bolcar two 19 -- and I'll read it in the record, and then I'll 20 have a question for you. But it's under the 21 preamble section. Page 52 1 Quote, "This action is between the injured 2 innocent bystander, Mr. Price, who was simply doing 3 his work when the machine fell striking him, and MOS 4 Shipping, comma, Baltimore Pier, comma, the company 5 operating the vessel, period," close quote. Do you 6 see that? 7 A. Yes. 8 Q. Do you know what role Baltimore Pier had 9 vis-à-vis the ship? 10 MR. GAY: Objection. Go ahead; you can 11 answer. 12 A. My understanding is that they were 13 operating the vessel. 14 Q. And what do you base that on? 15 A. This experience, and -- 16 Q. Yeah, okay. Do you base that statement 17 on any evidence or any documents that you have 18 reviewed in preparation of your report? 19 A. No, sir. 20 Q. Do the OSHA regulations -- we're going to 21 skip that for a minute. Do the OSHA regulations Page 53 1 contain a definition for a quote, "fall hazard," 2 close quote? 3 A. Yes. 4 Q. Do you know what that definition is? 5 A. I'd have to refer back to give it to you 6 exactly. 7 Q. Okay. I'm going to go now just to your 8 report, on a certain -- I'm just going to pick out 9 certain statements that you've made, and then I'll 10 have some questions on those. If you can go to page 11 three, the top of the page. 12 You say quote, "Alexander Nosov was the 13 officer in charge of the unloading operation for the 14 ship at the time of the incident," close quote. And 15 that's A-L-E-X-A-N-D-E-R, N-O-S-O-V. On what do you 16 base that on allegation? Well, strike that. On what 17 do you base that statement? 18 A. Mr. Nosov's deposition testimony, and my 19 experience on the vessels. 20 Q. And we'll start first with, can you be 21 more specific as to Mr. Nosov's testimony? For Min-U-Script® Gore Brothers Reporting & Videoconferencing 410 837 3027 - Worldwide - www.gorebrothers.com (13) Pages 50 - 53 Case 1:11-cv-01735-CCB Document 147-4 Filed 03/10/17 Page 3 of 3 Case 1:11-cv-01735-CCB Document 147-5 Filed 03/10/17 Page 1 of 4 Case 1:11-cv-01735-CCB Document 147-5 Filed 03/10/17 Page 2 of 4 Case 1:11-cv-01735-CCB Document 147-5 Filed 03/10/17 Page 3 of 4 4 CERTIFICATE OF SERVICE Kirk M. Lyons, an attorney duly admitted to practice before this Honorable Court, affirms on this 10th day of March, 2017, that he caused the foregoing to be filed and thus served upon all parties of record via CM/ECF. Kirk M. 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