ICABALZETA V. SEA-LAND SERVICES, INC.

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

ALEJANDRA ICABALZETA, ET AL. v. SEA-LAND SERVICES, INC., ET AL. (A-41/42-95)
 

Argued November 6, 1995 -- March March 25, 1996

PER CURIAM

Federico Icabalzeta (decedent) was killed when he fell from a metal ledge while attempting to clean the fuel tank on a ship owned by Sea-Land Services, Inc. (Sea-Land). At the time of the accident, decedent was employed by Coastwide Marine & Ship Services, Inc. (Coastwide), a company with which Sea-Land had contracted to clean the vessel's large fuel tank. When decedent arrived at the top of the fuel tank on the day of the accident, he stepped onto a narrow, horse-shoe-shaped strip of metal along the inside perimeter of the tank. There were no guardrails. Decedent began to walk along this poorly illuminated metal ledge towards the location where the other Coastwide workers were cleaning the tank. Because decedent was unable to see that the ledge was horseshoe shaped, he stepped off the side, falling to his death on the metal deck below. A representative of decedent, Alejandra Icabalzeta, filed a wrongful death action pursuant to section 905(b) of the Longshore and Harbor Workers' Compensation Act (section 905(b)). Icabalzeta contends that Sea-Land breached its duty to provide safe working conditions for Coastwide's employees by failing to provide adequate lighting and by failing to install railings along the ledge off of which decedent fell.

The trial court granted Sea-Land's motion for summary judgment dismissing the complaint on the ground that even if there was an unreasonably dangerous condition in the area of the ship where the accident occurred, this condition was the responsibility of Coastwide, not Sea-Land.

On appeal, the Appellate Division affirmed in part, concluding that Icabalzeta failed to present any evidence from which a jury could find that Sea-Land failed to discharge whatever duty it may have had to provide lighting for Coastwide to use in cleaning the fuel tank. In reversing summary judgment as to Icabalzeta's claim that Sea-Land was negligent in turning over the ship to Coastwide without guardrails in the area where decedent was working, the Appellate Division found that Icabalzeta presented sufficient facts from which a jury could find that Sea-Land breached its duty to provide safe working conditions by turning over a ship that it knew or should have known would pose an unreasonable danger to Coastwide's employees.

The Appellate Division noted that cases interpreting section 905(b) provide that a shipowner has the duty to exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore, such as Coastwide, would be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property. This duty of care is known as the turnover duty of safety. Absent any kind of contractual duty, law, or custom to the contrary, however, 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. Thus, according to the Appellate Division, the U.S. Supreme Court drew a sharp distinction between the shipowner's responsibility for dangerous conditions that are present when a ship is turned over to an outside contractor and dangerous conditions that develop during the course of the contractor's operations.

In reaching its conclusions, the Appellate Division found that the undisputed evidence indicates that the failure of Coastwide's employees to use the lights provided them by Sea-Land to adequately light the area where decedent fell created a transient dangerous condition that arose after the ship was turned over to Coastwide. Without any evidence that Sea-Land knew of this condition, there was no basis for the

imposition of liability on Sea-Land for the alleged inadequate lighting in the area of the accident. In contrast, the Appellate Division found that lack of guardrails was not a transient condition that developed during Coastwide's cleaning operation but rather was a fixed condition that existed when the ship was turned over to Coastwide. Thus, under 905(b), Sea-Land may be liable for its negligence in turning over the ship to an outside contractor without providing a reasonably safe working environment for the contractor's employees.

The Supreme Court granted certification.

HELD: The Court affirms the judgment of the Appellate Division substantially for the reasons stated in its reported opinion. There is a triable issue of fact of whether the claimed defect (the absence of guardrails along the ledge from which decedent fell) was obvious and whether Sea-Land violated its turnover duty of safety to Coastwide.

1. On remand, the trial court should instruct the jury consistent with the Supreme Court's most recent pronouncement in Howlett v. Birkdale Shipping Co., S.A. on the general nature of a vessel owner's turnover duty of safety and duty to warn of latent defects. One component of the shipowner's turnover duty is to warn the stevedore of any hazards that are known to the vessel or should be known to it in the exercise of reasonable care and would likely be encountered by the stevedore in the course of cargo operations but which are not known by the stevedore and are not obvious or could not be anticipated by the stevedore.
(pp. 2-3)

2. In respect of the hazards in the vessel itself, Howlett left undisturbed the duty of a shipowner to exercise ordinary care to turn over a ship on which experienced workers may conduct their operations in reasonable safety. As a general rule, when an experienced stevedore could have avoided a hazard, the shipowner will not be liable for injuries to the longshoreman. If, however, the shipowner reasonably should anticipate that workers may confront that hazard in the course of their duties, and its characteristics are such that neither the workers nor the stevedore could reasonably expect to remedy the condition, the shipowner may be negligent in not eliminating the hazard. (pp. 3-4)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
A-41/ 42 September Term 1995

ALEJANDRA ICABALZETA, To Be
Appointed General Administratrix
of the Estate of FEDERICO
ICABALZETA and ALEJANDRA
ICABALZETA, as Administratrix
Ad Prosequendum of the Estate
of FEDERICO ICABALZETA and
REINA ISABEL LOAISAGA,

Plaintiffs-Respondents
and Cross-Appellants,

v.

SEA-LAND SERVICES, INC., a
corporation doing business
in the State of New Jersey,

Defendant-Appellant
and Cross-Respondent,

and

COASTWIDE MARINE & SHIP
SERVICES, INC. (For Discovery
Purposes Only), a corporation
doing business in the State of
New Jersey and JOHN DOE and
ABC CORP. (names being fictitious,
currently unidentified owners,
operators and maintainers of a
vessel and its appurtenances) and
the M/V COMMITMENT, her engines,
boilers and appurtenances,

Defendants.

Argued November 6, 1995 -- Decided March 25, 1996

On certification to the Superior Court, Appellate Division, whose opinion is reported at 276 N.J. Super. 509 (1994).

James W. Bartlett, III, a member of the Maryland bar, argued the cause for appellant and cross-respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; William J. Riina, of counsel; Mr. Bartlett and Mr. Riina, on the brief).

Richard M. Winograd argued the cause for respondents and cross-appellants (Ginarte, O'Dwyer, Winograd & Laracuente, attorneys; Mr. Winograd and Diego F. Navas, on the brief).

PER CURIAM
We affirm the judgment of the Appellate Division substantially for the reasons stated in its reported opinion, 276 N.J. Super. 509 (1994). We agree that the case presents a triable issue of fact on whether the claimed defect in the vessel was obvious and whether the vessel violated its turnover duty of safety. At the remand trial the court shall instruct the jury consistent with the Supreme Court's most recent pronouncement on the general nature of a vessel owner's turnover duty of safety and duty to warn of latent defects. Howlett v. Birkdale Shipping Co., S.A., ___ U.S. ___, 114 S. Ct. 2057, 129 L. Ed. 2d 78 (1994). A vessel's "turnover duty" is the duty
to exercise ordinary care under the circumstances to turn over the ship and its equipment and appliances in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.

[Howlett v. Birkdale Shipping Co., ___ U.S. ___, 114 S. Ct. 2057, 2063, 129 L. Ed. 2d 78, 87 (1994) (internal quotation omitted).]

One component of this turnover duty is the duty

to warn the stevedore of any hazards
. . . [which] are known to the vessel or should be known to it in the exercise of reasonable care, and would likely be encountered by the stevedore in the course of his cargo operations, are not known by the stevedore, and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.

[Id. (internal quotation omitted).]
 

We are aware that in Howlett the Supreme Court determined that a vessel has no duty to inspect for or to warn of latent hazards in the cargo stow that it would not otherwise gain knowledge of through the exercise of due care. Id. at 2067, 129 L. Ed. 2d at 91-92. That rule was extended to obvious hazards in the cargo stow when the Court vacated the Ninth Circuit's opinion in Riggs v. Scindia Steam Navigation Co., 8 F.3d 1442 (9th Cir. 1993), and remanded that case in light of Howlett. Scindia Steam Navigation Co. v. Riggs, ___ U.S. ___, 114 S. Ct. 2701, 129 L. Ed. 2d 830 (1994). Thus Howlett provides a significant narrowing of vessel liability.
However, the Supreme Court noted that, because of the vessel's relative lack of opportunity to inspect or control the cargo stow, "[f]or the purposes of delineating the scope of a shipowner's turnover duty, [] the cargo stow is separate and distinct from other aspects of the ship." Howlett, supra, 114 S. Ct. at 2066, 129 L. Ed. 2d at 87. We are satisfied that, with

respect to hazards in the vessel itself, Howlett left undisturbed the duty of a shipowner to exercise ordinary care to turn over a ship on which experienced workers may conduct their operations in reasonable safety. Id. at 2063, 129 L. Ed. 2d at 87.
As a general rule, when an experienced stevedore could have avoided a hazard, the shipowner will not be liable for injuries to the longshoreman. If, however, the shipowner reasonably should anticipate that workers may confront that hazard in the course of their duties, and its characteristics are such that neither the workers nor the stevedore could reasonably be expected to remedy or avoid it, the shipowner may be negligent in not eliminating the hazard. Kirsch v. Plovidba, 971 F.2d 1026, 1031 (3d Cir. 1992) (holding that "shipowner may be negligent for failing to eliminate an obvious hazard that it could have eliminated, but only when it should have expected that an expert stevedore could not or would not avoid the hazard"); see also Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (observing that vessel must be free of obvious but unreasonably dangerous hazards that would prevent expert and experienced workers from carrying on operations in reasonable safety).
Judgment affirmed.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-41/42

SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

ALEJANDRA ICABALZETA, etc., et al.,
Plaintiffs-Respondents
and Cross-Appellants,
v.
SEA-LAND SERVICES, INC., etc.,
Defendant-Appellant
and Cross-Respondent,
and
COASTWIDE MARINE & SHIP
SERVICES, INC. (For Discovery
Purposes Only), etc., et al.,
Defendants.

DECIDED

March 25, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE WILENTZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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