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WHITFIELD v. CRAIGWIN CO.

December 22, 1989

JAMES WHITFIELD and SHIRLEY WHITFIELD, his wife
v.
CRAIGWIN CO., LTD.


Jay C. Waldman, United States District Judge.


The opinion of the court was delivered by: WALDMAN

JAY C. WALDMAN, UNITED STATES DISTRICT JUDGE

 This action was commenced by a longshoreman to recover for injuries sustained while unloading cargo from defendant's vessel. Presently before the court is defendant's motion for summary judgment.

 I.

 The relevant procedural background of the case can be summarized briefly. On May 18, 1988, defendant Craigwin Co. Ltd. ("Craigwin") filed a motion for summary judgment with the Honorable Louis C. Bechtle. This motion was denied by Order dated June 9, 1988. On August 16, 1988, defendant submitted a motion for reconsideration of the summary judgment motion. This motion was denied by Judge Bechtle by Order dated November 23, 1988. A conference with the parties was then held in Judge Bechtle's chambers in December 1988, after which the court indicated its belief that defendant was entitled to another reconsideration of its summary judgment motion. On February 9, 1989, the action was reassigned to this court's calendar.

 Following the December 1988 conference with Judge Bechtle, defendant submitted a second motion for reconsideration of its summary judgment motion. Because plaintiffs have failed to demonstrate a genuine issue as to any material fact, and because it appears that defendant is entitled to a judgment as a matter of law, defendant's motion will be granted.

 II.

 The relevant facts, construed in a light most favorable to plaintiffs, are as follows. *fn1" On July 14, 1987, plaintiff James Whitfield was working in Camden, New Jersey as a longshoreman aboard the S/S Bergen Arrow, a vessel owned by defendant Craigwin. While unloading certain millwork products, plaintiff was injured when he fell through an improperly constructed wooden framework. *fn2" This framework had been installed by an independently-contracted loading stevedore in Singapore, the vessel's first loading port. The framework was apparently intended to cover an opening between packages of cargo and to prevent the packages from shifting while in transit.

 III.

 A motion for summary judgment will be granted if the moving party can demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making this determination, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Following such a showing by a defendant-movant, the plaintiff must by affidavits or by the depositions and admissions on file "make a showing sufficient to establish the existence of [every] element essential to that party's case." Id. at 322.

 IV.

 Included in defendant's motion for summary judgment is the affidavit of Richard G. Ash, Chief Officer of the Bergen Arrow during the events in question. Mr. Ash states:


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