Unpublished Disposition, 923 F.2d 862 (9th Cir. 1986)

MEMORANDUM^** 

We must decide whether the district court erred in determining that a shipowner did not breach a duty of care when an employee of a stevedore was injured when he fell through an open grating in a catwalk in a darkened portion of the ship on which he was working. Relying on the teachings of Bjaranson v. Botelho Shipping Corp., Manila, 873 F.2d 1204 (9th Cir. 1989), the district court concluded that the shipowner was not negligent and granted summary judgment in favor of the shipowner in an action arising out of section 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). The appellant Victor J. Lipari argues that the facts present here differ materially from those in Bjaranson and compel a different result. We disagree and affirm the judgment of the district court.

Jurisdiction was proper in the trial court based on 28 U.S.C. § 1332. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(a), F.R.A.P.

A grant of summary judgment is reviewed de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and a reviewing court must apply the same standard used by the trial court under Rule 56(c), F.R.Civ.P. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must view the evidence in the light most favorable to the nonmoving party and decide if any genuine issues of material fact exist and whether the district court correctly applied the relevant legal precepts. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

This court's action in Bjaranson implemented the leading case of Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981), where the Court detailed the limited responsibilities of a shipowner when it turns over cargo operations to a stevedore. The Court held that the shipowner has no duty to inspect or supervise stevedoring operations to discover dangerous conditions that develop during cargo operations assigned to the stevedore, but the owner bears certain responsibilities to the longshoremen: The shipowner has a duty to warn the stevedore of hidden defects that would be known to the shipowner in the exercise of reasonable care before turning the ship over to the stevedore, to exercise reasonable care if it remains actively involved in the cargo operations and to avoid exposing longshoremen to hazards in areas or from equipment that remain in the active control of the vessel. Id. at 166-73. Furthermore, if, during cargo operations, the shipowner has actual or constructive knowledge of a hazard that existed when cargo operations began, and knows that the stevedore is ignorant of that hazard, it may have a duty to intervene. Id. at 175-76; see Landsem v. Isuzu Motors, Ltd., 534 F. Supp. 448, 450 (D. Or. 1982), aff'd, 711 F.2d 1064 (9th Cir. 1983).

The Court stated that " [t]he statutory duty of the stevedore under [33 U.S.C.] Sec. 941 to provide a safe place to work has been implemented by the Safety and Health Regulations for Longshoring. 29 CFR Sec. 1918.1 et seq. (1980)." Scindia, 451 U.S. at 176. The regulations provide:

(a) All walking and working areas shall be adequately illuminated.

.............................................................

...................

* * *

(c) Employees shall not be permitted to enter dark holds,

compartments, decks or other places without a

flashlight or other suitable light. ...

* * *

29 C.F.R. Sec. 1918.92.

We are satisfied that the Scindia-Bjaranson cases teach that a shipowner is not required to turn over a ship free from hazard, but is obliged to turn over a vessel in such condition that an expert and experienced stevedore, by the exercise of reasonable care, would be able to carry out cargo operations with reasonable safety. See Scindia, 451 U.S. at 167; Bjaranson, 873 F.2d at 1207.

Lipari argues that the shipowner here was negligent in failing to adequately illuminate the work area. Lipari realizes that he has a large obstacle to overcome because, generally speaking, responsibilities for lighting the work area fall upon the stevedore and not the shipowner. See, e.g., Landsem, 534 F. Supp. at 451. To surmount the hurdle of the Scindia-Bjaranson holdings, he suggests that two circumstances present here place the responsibility for workplace lighting upon the shipowner, rather than the stevedore. He contends that his case comes within an exception suggested in Scindia that a shipowner's duty may be altered by "contract provision, positive law, or custom," 451 U.S. at 172, and that evidence of a custom altering the allocation of duties was present here. He also suggests that the Scindia-Bjaranson teachings do not apply when the injury occurs, as here, at the start of the stevedore operations, but rather at some later time. These contentions do not impress us.

On October 23, 1986, Lipari was a longshore worker for Marine Terminals Corporation (MTC) aboard the Harbor Bridge, a container ship berthed at the Oakland Container Terminal in Oakland. The Harbor Bridge is owned by appellee Kawasaki Kisen Kaisha, Ltd. (K-Line).

Gangs of longshore workers, including Lipari, first boarded the vessel at 3 a.m. Lipari and another man were instructed by their "walking boss," Johnie Thomas, to remove lashing rods from a particular bay of containers so that the containers could be taken off the ship. No one from MTC inspected the work area before the work began. Lipari testified by deposition that he and his partner, Joe Cabrales, mounted a seven-foot high catwalk running athwartships between two rows of containers and began to delash the containers at midships, working their way outward in opposite directions. A few minutes later Lipari apparently fell through an open grating in the catwalk and strained his back.

Lipari alleges that none of the ship's lights were on in the area where he was assigned to work. He admits that he knew that inadequate lighting was a dangerous condition, but that he proceeded to work without reporting it either to his superior or to anyone else on the ship. He insists that he looked down the catwalk before moving but that it was too dark to see the hole: "I always look before I move, and I did not see any hole." Lipari Depos. at 42:25-43:5; Dist.Ct.Op. at 2.

Through the testimony of Johnie Thomas, Lipari sought to establish a "custom" that would change the legal relationships vis-a-vis the vessel and the stevedore. Thomas testified that although the stevedore usually hired a lashing boss, it did not employ one here. Thomas understood that the stevedore did not hire a lashing boss because the shipowner of this particular vessel generally inspected the work areas for unsafe conditions. Thomas's testimony was the only evidence introduced to establish the purported maritime custom. The district court held that "there is no evidence that the shipowner agreed, either by custom or contract to perform the safety functions of the stevedore." Dist.Ct.Op. at 8.

The district court granted summary judgment for K-Line, holding that even assuming that all of Lipari's allegations were true, the defendant was not liable.

We decide as a preliminary matter that there was no dispute as to material facts and that the matter was ripe for summary judgment. Next we reject as unsound Lipari's suggestion that the stevedore's exclusive duty to inspect or to discover dangerous conditions does not begin immediately with the commencement of unloading procedures, but rather at some later time. Nothing in the holding or reasoning in Scindia justifies an artificial dichotomy that allocates the duty to the shipowner in the early stages of unloading and to the stevedore at some unspecified later time. Indeed, the precise allocation of responsibility stated in Scindia cuts directly across Lipari's argument. There the Court referred to the duty "once the stevedore's cargo operations have begun." Scindia, 451 U.S. at 167.

We decide also that the district court did not err when it determined that there was no past practice or custom that would bring this case within an exception to Scindia-Bjaranson. Much more evidence than that presented by the testimony of the "walking boss" here is necessary to prove a practice or custom in an employer-employee relationship.

The commentators uniformly agree that custom does not arise merely because two parties have engaged in a given course of action on one or more occasions. Under the English common law, a practice was not a custom unless it had "existed since time immemorial," or the year 1189. R. Cross, Precedent in English Law 156-58 (2d ed. 1968), reprinted in R. Aldisert, The Judicial Process 288-89 (1976). Modernly, custom is defined as

[a] usage or practice of the people, which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject-matter to which it relates. It results from a long series of actions, constantly repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of a tacit and common consent.

Black's Law Dictionary 347 (5th ed. 1979).

In an employer-employee relationship, absent a written agreement, past practice is binding on the parties only if " '(1) unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both [p]arties.' " F. & E. Eikouri, How Arbitration Works 391 (3d ed. 1973) (quoting Arbitrator Jules J. Justin), reprinted in R. Aldisert, supra, at 298. S. Lester Block similarly has concluded that "if past conduct is to constitute past practice it must contain three essential ingredients. It must be unequivocal. It must have existed over a reasonably long period of time. It must have been mutually accepted by the parties." S. Block, Customs and Uses as Factors' in Arbitration Decisions 312-13 (1962) (emphasis in original), reprinted in R. Aldisert, supra, at 299.

Accordingly, we agree with the district court's analysis:

[I]t is not enough to show that a ship's ladder is defective (as was the case in Bjaranson) or that a grating has been left open (as in the present case); rather, "the plaintiff must introduce evidence that the hazard was such that an expert and experienced stevedore would not 'be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property.' Scindia, 451 U.S. at 167, 101 S. Ct. at 1622." Bjaranson 473 F.2d at 1208.

The turnover duty "is not breached if the defect causing the injury was open and obvious and one that the longshoreman should have seen." Polizzi v. M/V ZEPHYROS II MONROVIA, 860 F.2d 147, 149 (5th Cir. 1988). "The ship owner has no duty to anticipate the action or inaction of a careless stevedore." Id. Here the lack of lights was an open and obvious condition. The shipowner had no duty to anticipate that Lipari would proceed to work in darkness. Likewise, the open grating was also an open and obvious condition that the stevedore could easily have corrected merely by closing the hinged cover. It was rendered "hidden" only because Lipari proceeded to work in lighting conditions allegedly so poor that he could not see where he was stepping.

Dist.Ct.Op. at 4-5; see also Landsem, 534 F. Supp. at 451.IV.

We have considered all other contentions of the appellant. The judgment of the district court is AFFIRMED.