recognized that, " Scindia compels the holding that the shipowner . . . may not be held liable for injuries arising out [sic] the stevedore's failure to perform his job properly." Derr, 835 F.2d at 493.
The instant case is stronger for non-liability because the dangerous condition which existed at the time of plaintiff's injury was not a latent defect nor a defect in any of the vessel's equipment. The danger posed by USX's use of its bulldozer as a work platform was a transitory or temporary condition occasioned by USX's bringing the bulldozer on board to unload cargo; it was not attributable to any act or omission on the part of the vessel owner. As in Futo, the dangerous condition was created not by a third party but by plaintiff and plaintiff's supervisor; also, plaintiff and plaintiff's supervisor were not in the same position to recognize and correct the danger as defendants but in a better position.
Plaintiff contends that Griffith v. Wheeling-Pittsburgh Steel Corp., 657 F.2d 25 (3d Cir. 1981), cert. denied, 456 U.S. 914, 102 S. Ct. 1767, 72 L. Ed. 2d 173 (1982), imposes a duty of "reasonable care" on the vessel.
In Griffith, plaintiff, a longshoreman, was injured when he fell on the defendant's barge when he attempted to open a defective hatch cover. The barge owner was liable because it knew or should have known of its defective hatch cover and had reason to anticipate the stevedore's negligence in removing the defective hatch. Unlike Griffith, the present case does not involve defective equipment of the vessel. To the contrary, plaintiff's injuries were caused by his improper use of his employer's bulldozer at the direction and under the control of his employer, USX.
Dimick's presence at the time and place of plaintiff's injury is not enough to attribute knowledge imposing liability on the defendant. Dimick was on board to photograph the damage done to the ship by USX not to direct or inspect the welding or ship repair. None of defendants' employees, including Dimick, exercised any control over the repair work. The decision to use the bulldozer as a platform to perform the necessary repairs was made solely by the plaintiff and his supervisor. Plaintiff never discussed the repairs or the manner in which they were to be conducted with defendants' employees. Supervision of plaintiff was the responsibility of USX; the danger posed by the use of the bulldozer blade as a work platform was as open and obvious to plaintiff and Palumbo as to Dimick.
There are no issues of material fact and plaintiff fails to state a cause of action as a matter of law; defendants' motions for summary judgment will be granted. An appropriate Order follows.
AND NOW, this 3rd day of February, 1989, upon consideration of the motions of defendants Navios Corporation, Navios Ship Agencies, Inc. and Philippine President Lines, Inc., plaintiff's answer in response, defendants' reply thereto and plaintiff's supplemental memorandum of law in opposition, and for the reasons set forth in the foregoing Memorandum and Order, it is ORDERED that:
1. The motion for summary judgment of defendants Navios Corporation and Navios Ship Agencies, Inc. is GRANTED. Summary judgment is entered in favor of defendants Navios Corporation and Navios Ship Agencies, Inc. and against plaintiffs William J. Brown and Pamela Brown.
2. The motion for summary judgment of defendant Philippine President Lines, Inc. is GRANTED. Summary judgment is entered in favor of defendant Philippine President Lines, Inc. and against plaintiffs William J. Brown and Pamela Brown.