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BROWN v. PHILIPPINE PRESIDENT LINES

February 3, 1989

WILLIAM J. BROWN and PAMELA BROWN
v.
PHILIPPINE PRESIDENT LINES, INC. and NAVIOS CORPORATION and NAVIOS SHIP AGENCIES, INC.



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, UNITED STATES DISTRICT JUDGE.

 Before the court are motions for summary judgment by defendants Philippine President Lines, Inc. ("Philippine"), Navios Corporation ("Navios"), and Navios Ship Agencies, Inc. ("Navios Ship"). For the reasons stated below, the motions are granted and judgment is entered in favor of all defendants.

 I. FACTS

 The material facts are not disputed. See Fed.R.Civ.P. 56(c). On December 22, 1985 plaintiff William Brown ("plaintiff") was employed by United States Steel ("USX") as a welder. Plaintiff was directed to do welding repair work on the Philippine Roxas, docked at the USX facility at Fairless Hills, Pennsylvania. This vessel is owned by defendant Philippine and chartered to defendant Navios. At the time of the accident, defendant Navios Ship was acting as an agent for both defendants Navios and Philippine.

 Sometime prior to December 22, 1985, USX employees damaged the vessel while unloading a shipment of USX iron ore. Therefore, USX undertook to do the repair work necessary to return the ship to its original condition. It is not material whether or not USX was required to obtain permission from Navios Ship to do the repair work, since knowledge that the work was being done by USX would not have imposed a duty or obligation to supervise the repair work on Philippine, Navios or Navios Ship. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The distance from the top of the bulldozer blade to the cargo in the hold below was approximately ten feet. In order to balance himself while doing the repair work, plaintiff placed one foot on the bulldozer blade and the other foot on the skin of the ship. Plaintiff testified at deposition that he felt secure in his precarious position and did not believe that doing the repair work from that position placed him at risk of injury. Neither did Supervisor Palumbo think that plaintiff was in a dangerous position. Nevertheless, plaintiff fell ten feet from the top of the bulldozer blade to the ground and suffered injuries as result of his fall. He seeks recovery from Navios, Navios Ship and Philippine for their alleged negligent conduct.

 Charles Dimick, of Navios Ship, was present when plaintiff fell from the bulldozer. He was there only to take pictures of the damage done to the ship by USX as an employee of the agent for the ship and its charterer. Dimick had no expertise in ship repair nor did he work in any technical capacity. Dimick stated in his deposition, "I don't know anything about engineering or what's seaworthy or any of that." (Dimick Tr., p. 26). Dimick did not have the power or the authority to tell USX employees how to do their work.

 II. DISCUSSION

 Under the Federal Rules of Civil Procedure, summary judgment may be granted only if there exists no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To establish a genuine issue of material fact, the non-moving party must introduce evidence beyond the mere pleadings to create an issue of material fact on "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If no such issue of fact is established, summary judgment will be granted if the moving party is entitled to judgment as a matter of law.

 The basis of plaintiff's claim is that the vessel owner had a duty to inform plaintiff that it was dangerous for him to do repair work perched on a bulldozer blade suspended in the air. Although defendants did not have a general duty to warn, they did have a duty to warn in instances when the vessel owner or operator had actual knowledge of an unreasonably dangerous condition unknown to plaintiff's employer or to the plaintiff himself.

 Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L. Ed. 2d 1, 101 S. Ct. 1614 (1981), governs the standard of care applicable to vessel negligence under the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. ยง 905(b). In Scindia, plaintiff, a longshoreman, was injured when he was struck by stacks of wheat falling on him because of a defective winch. In affirming the Second Circuit's reversal of summary judgment for the vessel owner, the court held that the vessel's duty to longshoremen did not require the shipowner to inspect or supervise stevedoring operations. Specifically,

 
absent contract provision, positive law, or custom to the contrary . . . the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. The necessary consequence is that the shipowner is not liable to the longshoreman for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself. This conclusion is plainly consistent with the congressional intent to foreclose the faultless liability of the shipowner based on a theory of unseaworthiness or ...

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